Category: Communications and Media & Law and Policy

From 1984 to Miss Minutes: the surveillance state is watching you, and there is little or nothing at law you can do about it

19th July 2021

One of the many pities about Nineteen Eighty-Four being too familiar a book is that one can overlook the care with the author of the story constructs the world of an intrusive surveillance state.

The author, a former police officer, does this briskly and subtly.

First he takes the central character through a hallway where a poster has face that is – metaphorically – ‘watching you’.

Then you are told:

‘In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the police patrol, snooping into people’s windows.’

So you are being watched – not metaphorically – from the outside.

And when the character enters his flat:

‘The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard.’

You are also thereby being watched – and again not metaphorically – from the inside.

We are still fewer than 700 words into the novel, but the author has already depicted the claustrophobic predicament of living in a surveillance state.

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Today’s Guardian has set out in a number of articles the extent to which such a surveillance regime is now translated from a literary text into social and policy reality.

None of this is surprising.

And none of this is new: the author of Nineteen Eighty-Four easily imagined such things in the 1940s.

What has not changed is the want of those with political control to have such power.

All that has changed is that those with political power now have access to the technology that enables them to have that power.

But perhaps unlike the state in Nineteen Eighty-Four, those with power do not proclaim from posters – in hallways or otherwise – that we are being watched.

And instead of it being on a big screen on your wall, you willingly and casually carry the means of this intrusion around with you.

Indeed, you are probably looking at that very device this very moment.

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From a constitutional and legal perspective, the obvious issues are the extent to which – if at all – there is any accountability for the use of these powers and the extent to which – if at all – there is any regard for human rights and civil liberties.

And as this blog has previously averred, there is very little accountability and transparency for those with political power even for things which are in the open and without the daggerful cloak of ‘national security’.

Indeed, even cabinet ministers have realised recently that they are under surveillance in their own offices with no control over that surveillance and the uses to which it will be put.

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The one welcome, fairly recent development is that this surveillance state is now (nominally) on a lawful basis.

Each power and exercise of power by the state has to be within the law.

But.

Two things.

First: such is the lack of real accountability and transparency, it makes no difference to the surveillance state whether it is within the law or not.

Even when there is something that is known-about and contestable, the deference of our judges when ‘national security’ is asserted is considerable.

Our judges may not use gavels – that is a myth – but they may as well use rubber-stamps.

And second: public law, well, only covers directly the actions and inactions of public bodies.

But as today’s Guardian revelations show, the software and technology comes from the private sector and there is little or nothing that can effectively regulate what private entities can do with the same means of surveillance.

Public law bites – to the extent that there are teeth attached to a jaw capable of biting – only once the technology and data are in the hands of public bodies.

It is a depressing situation – and not one which can be easily addressed, if at all.

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This blog has been criticised that it does not provide solutions to the problems that it describes and discusses.

But sometimes predicaments do not have ‘solutions’.

It is a tidy human habit of mind to conceptualise matters of concern as ‘problems’ – for that often implies there must be solutions.

Once you say a thing is a problem you usually are half-way to suggesting that there must be some solution.

But the predicament of those with power having greater and greater control by means of technology may not have any natural limit.

Each update and upgrade just making it easer for those with public and private power to intrude and invade.

Imagine reboots, stamping out your data – forever.

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‘No – not that free speech’ – How ‘free speech!’ advocates can quickly get tied up in knots

16th July 2021

This was a remarkable tweet:

You really would need a heart of stone not to laugh like a drain.

It would appear GB News are in favour of ‘free speech’! – but not that free speech.

It was wrong sort of free speech.

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How do those who say they are arguing from first principle get into such knots?

It is a problem in constitutional matters too.

Some of those who supported Brexit did so, they say, to ‘return power back to Westminster’.

But such Brexiters generally said nothing (or little) about a Brexit-supporting executive seeking to take power from parliament – for example in ensuring that the article 50 notification was done on the basis of a parliamentary act rather than the prime minister’s discretion.

That was the wrong sort of parliamentary supremacy.

And so on – there are many other examples.

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The answer is, I think, about how people like to invoke principle in political, policy and legal matters.

Say you like [x] or are opposed to [y].

You can say ‘I like [x]!’ or ‘I oppose [y]!’.

You could, but it may not get you very far.

And so you gild the utterance: ‘[x] is good!’ and ‘[y] is bad!’.

But even that can not be enough, and so you invoke principles.

And you end up saying that liking or disliking [x or y] is matter of ‘free speech!’.

So, take for example that a person may dislike a certain minority [z] and would like to say so.

They could say: ‘I dislike [z]’ – but they not want to say this, at least aloud in polite company

Or: ‘[z] are bad people’ – though again they may be deterred.

And so they resort to ‘disliking [z] is quite frankly a matter for an individual quite frankly, and quite frankly people should have the right to say so, quite frankly, as it is free speech.’

Here, the resort to principle to being used to frame a proposition that the person making the utterance would not want to say in a more direct form.

But.

The problem is that the person making the utterance is invoking principle as a matter of rhetorical convenience.

And this is an error.

For the principle of free speech is, well, a principle.

And as a principle it has application generally, if not absolutely.

And so it applies to utterances with which you will strongly disagree.

This is why those who (say they) believe in free speech as a matter of general or even absolute principle end up so quickly in knots.

How those who want to parade their anti-woke offensiveness are (genuinely) horrified by the taking of the knee, or a white poppy, or inclusive language employed by a third party.

It is because their resort to principle is a cynical rhetorical device.

Their only interest in ‘free speech!’ is that it allows them to make utterances that, for whatever reason, they do not wish to make in more direct ways.

They do not want to say that they like [abhorrent sentiment] or that [abhorrent sentiment] is good.

They instead just want to say it and get away with it, but without any implications.

Last week I even had a tweeter telling me that the England footballers expressing political opinions should not be selected for their clubs or country – and when I looked at their bio, it said ‘supporter of free speech’.

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This, of course, is not just a problem with those with which you disagree.

Anyone engaged in policy or legal or political discussion can make the same mistake.

And this is because we all seek to gild our utterances, as it is a natural temptation to big up one’s opinions.

The best guard is to only use first principles in circumstances where you know that you would also invoke the same principle when it was something applied to something with which you dislike, or even oppose.

The resort to principle – rightly – can have considerable purchase power in a discussion, but that power also can be devalued quickly.

And in particular: the principle of free speech has no real purchase if it is only to gild sentiments to which you do not object.

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The best of questions and the worst of speeches – a practical example of the accountability gap in UK policy-making

15th July 2021

When the question came, it was superb.

Take a moment to listen to this question to the prime minister from the Sky political editor Beth Rigby – and hold on to hear her follow-up.

As a question from a political journalist to a prime minister, the question could not be bettered – in form, content, or delivery.

Superb – but not exceptional.

The fact is that there are some outstanding journalists – in the United Kingdom and the United States – capable of asking excellent questions.

In the United States even before the election of Donald Trump as president in 2016, many of his material and manifest lies, faults and failures were already in the public domain – thanks in part to diligent investigative journalism.

But it did not matter.

A sufficient number of voters clapped and cheered for Trump anyway for him to win the electoral college, if not the popular vote.

Similarly, sufficient number of voters clapped and cheered for Boris Johnson and his governing party to win the general election in 2019, if not the popular vote.

And Johnson’s material and manifest lies, faults and failures were also in the public domain.

It did not matter.

It is a public good – that is a good that does not need any further justification – that journalists as brilliant as Rigby and others ask these questions.

But it is not enough.

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How do politicians get away with it?

Here we must turn to the speech that the prime minister gave before the press conference.

The speech was a policy speech – not a political speech to a party conference or a rally.

The speech was also a formal speech as prime minister, with the text formally published on the government’s official website.

And it was perhaps the worst formal policy speech ever given by a prime minister.

Look at the state of this:

Here is just one sentence:

There are prisoners in Belmarsh with shorter sentences.

The speech is gibberish, for sentence-after-sentence and paragraph-after-paragraph.

And even if you want to give the benefit of the doubt – as not even lawyers and legal commentators speak as precisely as they write – this is not an unofficial transcript but the version approved for formal publication on the official government website.

And regardless of form, there is not a single concrete policy proposal in the speech.

Just words, words, words.

How does he get away with it?

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We have a juxtaposition, a tension – if not a contradiction – in our political and media affairs, and it has implications for all policy-making and law-making.

We may well have first-rate media questions – but we also have low-level political accountability.

Why?

Because politicians with executive power – at least in the United Kingdom – rarely have to be publicly accountable when it can really matter.

A prime minister can brush off a journalist’s question.

A prime minister can brush off the leader of the opposition.

A prime minister with a majority, and ministers generally, are not publicly accountable to anything in any meaningful way for their policy-making and law-making.

Even general elections are not a real check or a balance – as the government reneging on manifesto commitments show.

There is, of course, political accountability to their own back-benchers – but that is rarely in respect of specific policies or laws, and that accountability is informal and often hidden in private meetings and communications.

That is not public accountability.

And so we have the concurrent spectacle of the best of questions and the worst of speeches, and there is little or nothing anybody can do to make the situation any different.

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The media and policy contexts of Tyrone Mings’ extraordinarily powerful tweet

13th July 2021

Yesterday the England international and Aston Villa footballer Tyrone Mings posted this tweet:

There is no equivocation: the express charge – that the home secretary is both stoking the fire of racism and a hypocrite – made by a senior and outstanding footballer is about as serious a thing that could be said by the one of the other.

That it is a quote tweet of the home secretary – and thereby both a direct response to and gloss of the minister’s tweet – makes it all the more striking.

Even without knowing anything more of the circumstances, it is a text of extraordinary power.

And at the time of posting this blog, the tweet had over 400,000 likes and 140,000 retweets/quote tweets – dwarfing the figures of the home secretary’s tweet.

It would appear our home secretary’s populism is not that popular.

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Understanding the various contexts for Tyrone Mings’ tweet adds to and does not diminish its force.

But such is the power of the tweet the contexts are also worth considering.

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One context is that this is the latest contribution from an individual with an open and long-standing interest in racial and social justice.

This is Tyrone Mings last year in Birmingham at the protests at the death of George Floyd:

Unlike politicians, for him this is no bandwagon.

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Another context is that social media allows there to be a countering and opposite reaction to the vile populism of politicians and their media supporters.

This is the media context of the tweet.

As this blog set out yesterday, the fragmentation of political parties and of the media enable knavish and foolish politicians an extensive reach for their culture war politics.

But it is not all one way.

The populists can be confronted and exposed.

The challenge for those who care for social justice and liberalism is to counter and oppose the illiberal populists on a sustainable basis.

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A further context is that Mings’ tweet undermines the attempts by the current government to evade responsibility for stoking the racism that manifested itself after England’s defeat – but is always present in our society.

This is the policy context of the tweet.

The government’s current ploy is to blame the social media companies with the threats, no doubt, of ‘tougher measures’ and perhaps even ‘crackdowns’.

But it is the ministers and their political and media supporters who derided as ‘gesture politics’ the direct moves by the footballers to show the watching supporters that racism was unacceptable.

Of course: social media companies need to take more responsibility – but they are conduits.

The footballers were instead confronting racism at its source – and government ministers mocked them for doing so.

Mings’ tweet exposed the emptiness and cynicism of the government’s political tactics.

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Any powerful political utterance will work on a number of levels.

But sometimes, that a statement has force in a number of contexts is an implication of someone having the courage and presence to say the right thing at the right time to the right person.

The implications and the contexts then take care of themselves.

The populism of illiberal politicians rarely have the substance and the effects of statements such as Mings.

It is almost as if the populism of the home secretary and others in the cabinet is the true ‘gesture politics’.

And they should remember that those who start culture wars can also lose them.

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When culture war combines with constitutional impotence: a warning from history

12th July 2021

The first time I heard about Otto von Bismarck was when I started my history A-level – until then I knew the name ‘Bismarck’ only as a name of a sunk battleship from world war two.

The first thing we learned about Bismarck the politician was that he launched a culture war – a Kulturkampf.

And the first things we learned about this Kulturkampf was that it created needless social divisions, that it was counter-productive and was quickly abandoned, and that Bismarck did not really have a sincere belief in any of it anyway.

Of course, what one gets to know from any A-level history course is often more simplistic than a more nuanced understanding that you can get from further reading and thought.

But this understanding of Bismarck and his Kulturkampf is more useful in understanding the policy of our current government than knowing the names of second world war battleships.

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At the time of my A-levels in the late 1980s, there was the political attack on the ‘loony left’ and then a decade or so later ‘political correctness’ was the target – ‘gone mad’ or otherwise – and now it is ‘deep woke’ or whatever.

And although from time to time this politics of nasty name-calling was translated into policy and law – for example, section 28 – it never seemed (at least to me, in my privileged state) the very essence of government policy until the current government.

Now there are a number of ministers who freely indulge in culture wars – playing like infants with matches.

A report published by the Fabian society today – of which I have only had a preliminary scan – offers a detailed analysis of the current culture wars and those who promote them:

These four summary bullet-points are especially plausible.

And the current configurations of media and politics seem to give each of these ‘peddlers’ more power than they may had before.

The decline in mainstream political parties as broad coalitions, moderating the extremes, means the grievance-mongers can rise quickly to political power – and that illiberal politicians can mobilise their illiberal bases directly and unashamedly.

(The political figures I remember from the late-1980s being the rent-a-quote members of parliament for ‘loony left’ hit-pieces – Beaumont-Dark, Dicks, Dickens – were all safely on the backbenches – now the quotes would come directly from the cabinet.)

The decline in traditional media as gatekeepers on who gets access to broadcasting and publication also mean that the perpetually outraged and the trolls have immediate and effectively limitless reach.

The grievance-mongers, the perpetually outraged and the trolls all existed (if with different labels) before the rise of the internet, but they did not perhaps have the easy access to media and political power.

A recent post on this blog averred that this political culture war has, in turn, constitutional – and constitutionalist – implications.

There is a reckless political belief that there are no constitutional rules or norms which are beyond being gamed for political advantage.

And when culture war combines with constitutional impotence then we have the politics of another German chancellor – you know, that one whose name you still do not need to have studied history to have heard of.

There is a worrying alignment of culture war and constitutional weakness, and unless one or both of these are addressed, it will not be difficult for knaves or fools to exploit their grim opportunity.

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“Deep Woke”, football, inclusive solidarity – and constitutionalism

8 July 2021

In the last week we have been introduced to the phrase ‘deep woke’.

It was used by my Financial Times colleague Gideon Rachman as an expression to describe the governing party’s disdain to this welcome and inclusive article by Gareth Southgate.

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A deep wookie.

(Source.)

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Southgate’s articulation of solidarity is everything that the facile populist nationalism of the current government and its supporters is not.

No wonder they have a phrase to deride it.

The practical approach of Southgate was set out in this detailed and insightful piece at The Athletic site (which is strongly recommended for its journalism-led content – and so subscribe to it rather than complaining about the paywall):

Reading Kay’s account of organisational change and inclusive solidarity, I was struck by its potential implications in respect of constitutionalism and political behaviour.

https://twitter.com/davidallengreen/status/1412486141568245768

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One of the problems in the current politics of the United Kingdom is the hyper-partisan disregard for constitutional principles and practices that mean politicians of different views can work together.

The prime minister Boris Johnson and his former assistant Dominic Cummings, and their supporters, have promoted the weaponisation of constitutional matters – from misleading the Queen to attacking the judiciary and ignoring the house of commons.

In these toxic Bannon-ite circumstances, the solution is not a written (that is, codified) constitution – for the knaves would just seek to game that too.

The problem is not formal – still less legalistic – but cultural.

There is not a sense of constitutionalism in the government – the understanding that there are political norms and practices higher than party advantage.

Instead, we have childish glee as a government-supporting politician finds a new confrontation to force or contrives a culture war to stoke.

It does not have to be this way.

And it is strange that it takes footballers to point this out – not only the mature inclusivity of Southgate but also, for example, the thoughtful kindness of figures such as Marcus Rashford and Jordan Henderson, among others.

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There cannot be ‘Public Sector Reform’ without genuine transparency and a general duty of candour

20th June 2021

(This is the third in a trilogy of short posts about the accountability of the United Kingdom state – see Garbage in, Garbage Out and The Accountability Gap.)

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Every so often there will be some politician – usually Michael Gove but sometimes someone else – who will urge that there be ‘public sector reform’.

This reform should be ‘radical’ or ‘fundamental’.

Heads will nod, and hands may even clap.

Worthy pdfs will be clicked on earnestly, only for the tabs to be then left unread.

And then nothing really happens until the next time some politician – usually Michael Gove but perhaps someone else – will urge that there be ‘public sector reform’.

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What is often missing in many of these heady, fine-sounding proposals is the one thing that would genuinely be radical or fundamental.

This would be to force public sector bodies to disclose information against their will.

For as long as public bodies – politicians and officials – can pick and choose what information can be disclosed publicly, there can never be any meaningful reform of the public sector.

There needs to be a tension – a check and a balance – in respect of any public body’s estimation of itself and its performance.

Unfortunately – as typified by the cabinet office under Michael Gove – there is a general public sector disdain for transparency and freedom of information.

There always seems to be some reason to keep public sector information secret – from ‘national security’ to ‘commercial confidentiality’.

Indeed, the most dismal and insincere official documents in existence are freedom of information non-disclosure decision letters.

Everyone involved knows that the content of such letters is faithless guff – but nobody with any power seems to care.

When there is no duty of disclosure and no duty of candour there can be no holding of the public sector to account.

And if there is no way of holding the public sector to account then any ‘public sector reform’ will not succeed against the private interests of the officials and politicians involved – nor against the interests of external suppliers.

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So, to mimic David Hume, there is something to ask of any public sector reform, whether it is proposed by Michael Gove or somebody else:

Will the proposed public sector reform result in the public sector disclosing information that it otherwise would be unwilling to disclose?

No?

Will the proposed public sector reform mean that officials and politicians – and relevant third parties – being candid when they otherwise would not be?

No?

Then commit the proposed public sector reform to the flames, for it will contain nothing but sophistry and illusion.

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Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions

11th June 2021

In three tweets in a thread posted this week, Dominic Cummings, the former assistant to the prime minister, refers to ‘Potemkin’ paper trails and meetings.

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What does he mean?

And does he have a point?

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What he is alluding to, of course, are the ‘Potemkin’ villages, where things in bad conditions were dressed up to be in good conditions so as to mislead others.

In the context of judicial review, Cummings presumably does not mean that bad reasons would be dressed up as good reasons.

What he instead intends to mean is that there could be artificial reasons and contrived meetings the purpose of which was to make a decision judge-proof.

To a certain extent, he has a point.

In the judicial review case in question, had there been evidence of officials conducting any form of evaluation exercise then the tender award may have been harder to attack legally.

And such an exercise could, in reality, have been nothing other than going through the motions rather than anything that could have actually led to another agency actually getting this valuable contract.

But this is not the reason the courts require reasons for certain decisions – and it may not have changed the judgment in this case either.

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Judges and courts are not stupid and naive.

Judges and courts know full well reasons can be artificial and contrived.

The judges were once barristers and solicitors and, as such, they would have had considerable experience of advising clients on providing reasons for certain decisions. 

The purpose of requiring reasons for decisions – and for ministers and officials to say they are true reasons – is to make it more difficult for bad and false decisions to be made.

For example – take the decision by the government to seek a prorogation of parliament in 2019.

No minister or official – or adviser – was willing to sign a witness statement (under pain of perjury) as to the true reason for advising the Queen to prorogue parliament.

And without such a sworn (or affirmed) reason, the government lost the case.

Reasons also provide a reviewing court with a basis of assessing whether a decision was so unreasonable that no reasonable decision could have made it, and also of assessing whether relevant considerations had been included and irrelevant considerations were excluded.

Providing reasons does not provide an escape route for cynical and irrelevant and unreasonable decision-making.

But it is an impediment, and one that makes it harder for ministers and officials to get away with bad decision-making. 

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And in the recent judicial review, it is not clear to me (as a former central government procurement lawyer) that even an artificial ‘Potemkin’ exercise would have necessarily saved the decision from legal attack.

Awarding a high-value contract to cronies where a nominal (though documented)  exercise of discretion had not shown any actual objective advantage over other possible suppliers would still have been open to legal attack.

So this is not necessarily a case where the failure to provide a ‘Potemkin’ paper trail is to blame for the loss of a legal case.

The pram may well have fallen down the stairs anyway.

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*****

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How to treat the parliamentary evidence today from Dominic Cummings

26th May 2021

Dominic Cummings, the former assistant to the prime minister excites strong opinions – and it is difficult to escape those strong opinions when you write or think about him.

But the attempt should be made – as what he had to say at today’s remarkable parliamentary committee hearing may or may not be important.

The approach I would recommend is as follows:-

First – avoid confirmation bias – especially when it is from an unexpected source.

Many of the things he said confirm the prejudices of those critical of the current government generally and the prime minister in particular – and there was glee to hear him, of all people, say these things.

You should be especially wary of things which affirm what you think must be true.

Second – be aware of the selective nature of the evidence.

For example – some ministers were damned, but other ministers – such as the chancellor responsible for ‘eat out to help out’ and uncertainty over furlough payments – were not criticised

Nor was the cabinet office minister blamed for any difficulty in his department.

If this was a general critique of ministerial competence then it was lopsided – and almost vindictive.

Third – be aware also of motivation.

The former assistant to the prime minister wants, of course, to be vindicated – not least because of the Barnard Castle tarnish.

He has an understandable desire to have been right all along – and his failures only being that he did not do more sooner.

And fourth – there is the issue of honesty.

The former assistant to the prime minister once admitted that the £350million-a-week promise for the NHS was a convenient lie.

He was also one of those ministers and advisers who could not and did not sign the statement of truth (under pain of perjury) about the true reason for the prorogation – and it was the lack of such a witness statement that meant the government lost the case in the supreme court.

Indeed, the fact that if he said something untrue today may have been a contempt of parliament holds no fear for him – as he already has been held in contempt of parliament and with no consequences.

It was a win-win situation today from his perspective – he could take the benefit of absolute parliamentary privilege to make serious allegations, but with none of the sanctions for that benefit being misused.

Nonetheless, a lot of what he said ‘rang true’ – and it may be that there will be evidence that substantiates his many general and detailed claims of wrongdoing by others – some of which are highly serious.

And nothing he said should be dismissed out-of-hand just because he was the one who said it.

Everything he said may be true.

But everything he said, for the four reasons above, needs to be corroborated.

Today was great political theatre – but more is needed before any reliance can be placed upon this great political performance.

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The Daniel Morgan panel report will be the nearest we ever get to Leveson Part II

23rd May 2021

We have a lopsided view of the bad things that were happening in respect of the media around the turn of this century.

The focus has been on the press – journalistic ethics, newsroom culture and the breaches of the civil and criminal law.

But those did not happen in a vacuum.

What elements of the press did was part of a wider problem, which involved the metropolitan police and the private investigation industry.

Of course, the press took advantage of these relations and was the source of a lot of the money involved.

But there were wrongs being committed on the supply-side of the trade in personal information.

Had the Leveson inquiry continued with its phase two – that was to look at the dealings of the press with the police and so on – then we would now have a more rounded picture of what went on.

But the Leveson inquiry will now never continue to phase two.

And so the nearest we will get to a documented understanding of this supply-side will be the independent panel report on the Daniel Morgan case – a case which goes to the heart of the problematic relationship between the press, the police and the private investigation industry.

It may well turn out to be the best record we will ever get of what then happened – and how so many got away with so many things which they should not have done so.