Threats to doctors and nurses and lifeboat crews – and why laws and law enforcement are not enough

25th July 2021

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‘…we are indeed drifting into the arena of the unwell. Making an enemy of our own future.’

– Marwood, Withnail and I

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Every so often it seems that the culture wars are coming to an end, and then you get extraordinary things like this:

A speaker tells a crowd in Trafalgar Square that doctors and nurses should be ‘hung’.

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People are abusing lifeboat crews.

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Doctors and nurses and lifeboat crews are perhaps the last individuals that would be insulted and threatened in a decent modern society.

Without any of the mirth of the Withnail and I film, we can echo the sentiment that our country is drifting (ever further) into area of the unwell.

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Those who defend such abuse may seek to say that it is only ‘freedom of speech’.

But no society has absolute free speech.

An immediate verbal threat of harm is not a protected speech act – just as forging a cheque or planning a robbery are not protected speech acts.

And dealing with threats to inflict hurt on other humans is what the law has, in part, always been about.

But to say a thing is against the law is not the same as saying the law would be effective in prohibiting such abuse.

Indeed, the laws as they stand would cover such utterances – and the law has not deterred the threats from being made.

And even if individuals were arrested and convicted, there is no reason to believe the nastiness of the culture wars would abate.

The ultimate issue here is not a public order problem with a neat legal solution.

The issue is cultural and political and social – and so only looking to the law would be an error.

There is a need for cultural and political and social leadership: for arguments to be won, and for behaviours to be discredited.

Laws and law enforcement will be part of that, of course, but they are not a complete answer, or close to it.

Once we are deep inside the arena of the unwell, there is no set of law suits or prosecutions with which we can bound free.

Those who threaten doctors and nurses and lifeboat crews should be prosecuted fully and fearlessly.

But such prosecutions would not make the problem go away.

Something deeper and more disturbing is afoot.

Brace, brace.

**

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The ejection of a Member of Parliament for pointing out the lies of the Prime Minister is a practical example of the function-failure of the UK constitution

The suspension of the member of parliament Dawn Butler from the house of commons is a significant example of the function-failure of the constitution of the United Kingdom.

Butler’s suspension was because she called the prime minister a liar on the floor of the house of commons.

But as the current prime minister casually and freely lies in the house of commons (and elsewhere) this suspension creates a constitutional mismatch.

In essence: there is no real sanction for a prime minister (or other member of parliament) for lying to the house of commons, while there is a real sanction for those members of parliament who point it out.

It is an extraordinary – and counter-intuitive – constitutional predicament.

There is something very wrong here.

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How did we get into this mess?

First, it must be understood and accepted that there is a problem with prime ministerial dishonesty.

Perhaps there always has been – and our current prime minister is no worse than his predecessors – but even if this shruggy view is accepted, there is no doubt the current prime minister lies and lies.

That Hamlet’s father and Jacob Marley were both dead to begin with, and that Boris Johnson  lies, are fundaments in English culture.

One source for the prime minister’s ongoing dishonesty is this particularised, non-sensational list put forward by leaders of six parties in the house of commons to the speaker:

There are similar examples in almost every session of prime minister’s questions.

A more sensational compendium is in this widely viewed video from Peter Stefanovic:

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The reason to emphasise the prime minister’s actual dishonesty as a real concern is that the supposedly pragmatic constitution of the United Kingdom is supposedly good at practical (if inelegant) solutions to actual problems.

This, we are told by constitutional fogeys, is why our constitution is cuts above the formal codified constitutions of foreigners with their ‘rigid’ rules.

Well.

Here is an actual constitutional problem in need of a practical ‘flexible’ solution – and we ain’t got one.

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The second aspect of the problem is that the rules of parliament (which are distinct from the law of the land) in effect prohibit members of parliament from accusing other members of parliament of dishonesty – regardless of whether there is any dishonesty.

It would even be against parliamentary rules to say of a member of parliament that they are a liar even if the lies have been admitted.

The formal guide to the rules of parliament is known as Erskine May, and the relevant passage about accusations of dishonesty is:

‘Expressions when used in respect of other Members which are regarded with particular seriousness, generally leading to prompt intervention from the Chair and often a requirement on the Member to withdraw the words, include the imputation of false or unavowed motives; the misrepresentation of the language of another and the accusation of misrepresentation; and charges of uttering a deliberate falsehood.’

This is not an absolute bar to making accusations of dishonesty against other members of parliament – there is a formal but ineffective way:

‘If a Member wishes to pursue accusations of a kind not permitted because of these principles, the proper course is to table a distinct motion about the conduct of the other Member.’

The issue with such a motion is that – even if passed: so what?

Erskine May also does have a section on misleading the house, which provides:

‘The Commons may treat the making of a deliberately misleading statement as a contempt.’

To which the issue again is: so what?

One may as well cast a line into the Thames, catch an improbable and unpolluted fish, and slap that unfortunate fish on the dispatch box.

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The wider predicament is that the constitution of the United Kingdom is premised on what the historian Peter Hennessy has long characterised as the ‘good chap’ theory of government.

Here is Hennessy’s phrase being used back in the innocent days of 2005 where the concern was merely memoirs by former officials.

More recently, in 2019, here is Hennessy and another author explaining in detail the failures of the ‘good chap’ theory – a report which should be read by anyone with an interest in constitutional affairs.

In essence: the constitutional arrangements of the United Kingdom work as an honour-based system based on those with power exercising self-restraint.

All it takes is a knave to disrupt and undermine the system – and there is nothing within the system to check and balance such knavery.

This complacency is why there are more ready sanctions against those who accuse ministers of dishonesty than there is against the dishonesty of ministers – for the latter, according to constitutional fiction would not (or should not) happen.

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There is merit in having a general rule against lightly making serious accusations in the houses of parliament.

But the counterpoint to such a rule is that there should be a practical means of addressing the problem of ministerial dishonesty.

Otherwise we have the current situation: wonky, lop-sided and discrediting.

That Butler should face a serious a sanction while Johnson does not defies common sense and it should should defy our constitutional arrangements too.

Some may say all this shows that there is a need for a ‘written’ (or codified) constitution.

But the solution to this problem does even not need such a drastic (and unlikely) change – and the problem of executive dishonesty happens in states with written constitutions too.

The solution would be for constitutionalism to (again) be taken seriously by politicians generally.

Constitutionalism (a theme of this blog) is the notion that there are political rules and principle that are above partisanship.

The reason why the prime minister can get away with such dishonesty is that a majority of the house of commons let him.

If a majority of the house averred that such conduct was unacceptable, regardless of party or faction, then the speaker would have the powers to address the issue.

As it stands, the speaker is given the powers to deal with accusations of dishonesty, but not the dishonesty itself.

It would not need a written constitution to solve this problem.

It would instead take resolution – and, literally, resolutions.

It would need members of parliament to take constitutionalism seriously.

And until members of parliament take constitutionalism seriously again, we are going to have the now-familiar sight of our dishonest prime minister sitting safely at the dispatch box, dismissively shaking his head – while those who point out his lies are ejected.

And that is because the constitution is dismissively shaking its head too.

**

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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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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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The recent two by-election defeats for the governing party and their implications for law and policy

2nd July 2021

This is not a party partisan blog and there are good and bad in all mainstream parties (though some parties have more good than others).

But it is a liberal constitutionalist blog, and so the two recent defeats for the governing party are a good thing: the politics of inclusion and solidarity seem (just about) to have defeated the politics of exclusion and division.

The fragile coalition that bought the current government to power in December 2019 – in effect, to ‘get Brexit done’ and to ensure that the then leader of the opposition did not become prime minister – may turn out to be unsustainable.

So what?

This is of interest to those with strong feelings about party politics – but are there any implications for law and policy, from a non-partisan perspective?

Perhaps.

One of the features of the illiberalism of the current government seems to be a belief that constitutional and cultural conflict ‘play well’.

So you have the sight of infantile government ministers picking fights and attempting to provoke ‘culture wars’.

And you have the loud trumpeting of attempts to further dislocate constitutional arrangements – with the executive seeking to undermine the checks and balances provided by the courts, the legislature, the impartial  civil service and diplomatic corps, and so.

Each attack intended to impress and mobilise the minority electoral base that is believed to be sufficient to keep this illiberal government in power.

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But it seems not to be working any more.

The lever may have come loose.

If this is the case – if – then there are two possible things that may happen: bad and good.

The bad thing would be that government ministers and their supporters want more illiberalism!

More division and exclusion!

More constitutional conflict and culture war!

Or, a good thing: government ministers and their supporters may come to their senses as they realise the diminishing political returns for their illiberal (and vile) confrontational politics.

Any sensible person would hope for the latter.

But nobody who has followed politics since 2016 could be confident that such a welcome development will occur.

So it all could get worse.

Brace, brace.

**

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Five Unchecks and Imbalances – a catalogue of Boris Johnson’s ongoing assault on constitutionalism

29th June 2021

Every so often someone posts or tweets a succinct summary of the direness of a predicament.

And yesterday the Guardian live blog managed to put all the following into a single blog update:

None of these are a check or balance in the classic constitutional sense, such as the judiciary or parliament as a whole (though, of course, the speaker is one of the five).

And if only one of these example were sidelines, one could dismiss it as part of the rough tumbles of practical politics.

But taking all five together, there is a trend that should concern anyone – apart from the hyper-partisan supporters of the government.

Each example tells of the lack of constitutional self-restraint that that is the stuff of constitutionalism.

(Constitutionalism being the view that there are political rules and norms that have priority over partisan advantage.)

And these five examples are in addition to the disregard the prime minister has to the checks and balances in the classic constitutional sense: the judiciary, parliament, the independent civil service and diplomatic corps.

This is not – yet – a constitutional crisis, for as the two Miller cases and the Benn Act show, it is still possible for other elements of the constitution to ultimately assert themselves.

But is certainly all part of an ongoing assault on constitutionalism.

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The Accountability Gap and the State of the United Kingdom

19th June 2021

Here is a challenge.

Think of a normal, day-to-day process of the United Kingdom state.

And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.

It is not easy.

Freedom of information is impotent.

The public services ombudsman is inefficient (at best).

Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.

The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.

Written parliamentary questions take an age to be answered – and the answers given are often useless.

Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.

The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.

And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.

Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.

And there are other examples.

(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)

Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.

And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.

In particular: the failure of parliament to be an effective check on the executive.

There is a severe accountability gap in the state of the United Kingdom.

And it is from this gap so many other political problems emerge.

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Democracy vs Liberalism – the worrying but significant 2014 speech of Viktor Orbán

29th May 2021

One of the more complacent views of the last few decades is that there is a necessary link between democracy and liberalism.

The notion that if you believe in one then you believe in the other.

And, in turn, there is the converse view – that illiberals will tend to be undemocratic, if not actively anti-democratic.

This is assumption is evident in a spate of books over the last few years about the death of democracy where, if you read carefully, they describe the (possible) death of liberal democracy.

For – and this is still a shock for many – there is nothing necessarily liberal about a democracy.

It is possible – and indeed not uncommon – for a conservative bloc to mobilise sufficient support to prevail in elections.

There can sometimes even be sufficient conservative support for illiberalism to be majoritarianism.

Liberal democracy is only one form of democracy (and, also, of liberalism).

The notion that illiberals are also undemocratic, if not anti-democratic, is a comforting notion for the superficial liberal.

The truth is that in any democratic system there will be a great deal of opposition to liberal views.

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Here it is instructive to read this 2014 speech (in translation) by the Hungarian prime minister Viktor Orbán – who visited the United Kingdom this week.

It is a speech that should be read in full by any liberal and anyone else who wants to understand the illiberal turn in modern politics.

It is perhaps, in its way, one of the most politically significant speeches of recent years – though what it signifies is not pleasant.

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One of the things that stands out is in the speech that it is openly – explicitly – ‘illiberal’.

An exposition of liberalism is set out (and not altogether inaccurately) and then critiqued.

This dismissal of liberalism is unapologetic.

It is blatant, with no sugar-coating.

Orbán is an illiberal and he knows it, and he claps his hands.

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Another thing that stands out is that – unlike many Western (supposed) defences of (and apologies for) liberalism, it is not flimsy.

It is an articulation of an illiberal position.

The position being articulated is vile and wrong, but it is not superficial.

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A third thing that stands out, of course, is that it does not really explain, still less justify, the specific assaults on civil society in Hungary of his government – it is a speech which largely stays in the realm of the abstract.

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And the fourth thing which is striking about the speech is that – on the face of it – it is not an undemocratic speech – it is the speech of a politician who seems confident that there will be sufficient political support for illiberalism within a democratic system.

It is even a speech of a politician who does not see membership of the European Union as being incompatible with his illiberalism.

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This blog is written from a liberal, constitutionalist perspective.

But as a practical blog, it is not enough to disdain illiberalism, let alone deride it.

As the old saying goes: know your enemy.

Scoffing at Orbán – just like sneering at Donald Trump or Boris Johnson – is not a complete political answer to the challenges presented by modern illiberalism.

As long as these individuals and their parties can mobilise their bases, they will use political means to defeat or hinder liberalism, and they will claim to be democratic in doing so.

The ‘will of the people’ is rarely invoked by those who respect the wills of individual people.

And what happens when liberal democracy is, well, trumped by democracy itself?

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Wanted by HMG: Someone to make sense of Brexit

17th May 2021

Some things are almost beyond parody.

The government of the United Kingdom, almost five years after the Brexit referendum, wants help on identifying post-Brexit opportunities. 

The natural response to this is, of course, to laugh like a drain – and to then despair.

But it also worth reflecting on.

One of the strengths (if that is the correct word) of the Leave campaign was that it was primal in its message – and what is primal is usually inexact, if not vague.

And with such primal force, Leave won and the Remainers lost.

Brexit was forced through.

But for every strength there is a weakness.

And at this point of the process, those who have forced Brexit through will say, in effect: ‘what now?’

Those who were opposed to Brexit will scoff and hope that such an implicit admission discredits the cause of Brexit.

But what has power because of a lack of detail will usually not falter because of a lack of detail.

There was never any particularised plan for Brexit: it was instead a political roar of anguish and defiance and (for many) misdirection.

David Frost could go even further and say freely and expressly: we want outside input in identifying opportunities because we do not have a clue what to do next.

Those who supported Brexit would either shrug or nod at the sentiment.

And as a wise person once said: there are no problems, only opportunities – it is just that some opportunities are insoluble.

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This illiberal Queen’s Speech is the next step for authoritarian populism after Brexit

11th May 2021

Well, that was quite the Queen’s Speech.

A legislative programme geared to make a certain sort of person grin and clap and cheer about ‘owning the libs’.

But it is not just about mere superficialities – it is in substance a multi-pronged attack our liberties.

The prime minister is not only taking back control of when there will be general elections, the government is making it harder for people to vote.

The government is also making it harder for government decisions to be challenged in court, and it is making it harder for anyone to protest about any of this.

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Of course: this is not a surprise.

Five years ago, senior members of the governing party affected to want to give effect to the ‘will of the people’.

But, as is often the case with authoritarian populists, the supposed mandate of the people was only ever a convenient rhetorical device for ever-greater central control.

And the sorry state of our politics means that the government will probably get away with this.

There may be opposition in the house of lords – and some measures may be open to legal challenge.

Yet, even with the few remaining checks and balances in out constitutional arrangements – this is what the government does as the next step after ‘taking back control’.

The impression is that Brexit was not about liberation, but about creating a political culture where the opposite of liberation – imposed authority – became more entrenched.

Our post-Brexit polity is now looking very dismal and depressing indeed.

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

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