Category: Human Rights and Civil Liberties

The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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‘Forgive us our trespasses’ ‘Trespassers will be prosecuted’ What is the law of trespass about? And what could it be about?

17th July 2021

My blogging and journalism tends often to be about public law – that is the law relating to or enforced by the state: constitutional law, criminal law, and so on.

But my primary interest in law – at least on a day-to-day basis as a solicitor – is the law of obligations and of (intellectual) property.

And one concept that has long fascinated me is the law of trespass – and how it contrasts with other areas of common law such as contract and tort.

So over at Prospect magazine this month, my column is on what the law of trespass is about – and what the law of trespass could be about.

In the event of any questions or comments on that column or the topic generally, do set them out below.

 

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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 myth that the prime minister and this government is ‘libertarian’

6th July 2021

The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.

But it is a myth.

By ‘myth’ I mean that it is a thing that has narrative force, and which some people believe to be true, but it is a thing that is ultimately false.

Johnson is, of course, a political libertine, in that he believes rules – and indeed laws – are for other people.

His government attacks the independent judiciary, the impartial civil service and diplomatic corps and the public service broadcaster, as well as disregarding the speaker of the house of commons, the electoral commission, the ministerial adviser on the civil service code, the panel on appointments to the house of lords, and so on.

And so on.

If his government can get away with weakening or eliminating a check or balance, it shall do so.

It will not be told by anyone what to do.

The politics of Kevin the Teenager.

And this defiance is no doubt the basis of the decision of the government to relax the lockdown, despite various warnings.

Members of the government, and their political supporters, are fed up with being told what to do – especially as the impositions are for the benefit of others.

But.

Is this restless defiance ‘libertarianism’?

Is there a coherent vision of limiting the power of the state vis-a-vis the individual?

This is a government which is seeking to disenfranchise people:

(And here it is nice to have a return of classic David Davis, as opposed to the Brexit variant.)

The government is seeking to ban people:

And this is from just two political Davids alone.

There is also, of course, the similar myth of the prime minister’s liberalism – that he, like Donald Trump, is really at heart just a metropolitan liberal.

Yet many in his cabinet – Priti Patel, Oliver Dowden, Robert Jenrick, Elizabeth Truss – merrily play with the fires of culture wars and the politics of social division and confrontation, rather than promoting the politics of inclusion and solidarity.

The prime minister does not mind or care.

By any serious definition of libertarianism and liberalism this government is neither libertarian nor liberal.

There is no general approach to limiting those with state power to the benefit of those who are affected by state power.

Instead we have a government with occasional twitches and jolts against state power while over time accumulating as much power as possible for the executive and dismantling or dismissing any entity capable of saying ‘no’.

The general approach of this government is authoritarian – though this authoritarianism can be set aside when the power of the state would be for the benefit of others.

There are many words for the general approach of the prime minister and his government, but ‘libertarian’ is not one of them.

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Are there again things stronger than parliamentary majorities? Bogdanor and the question of Unionist civil disobedience or even rebellion

In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.

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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.

My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.

If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.

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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.

The judgment is some 68-pages but is readable and is worth reading.

Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.

His summaries are not the ones that I would write – but they are unexceptional even if not balanced.

And then.

The article takes a turn.

We get to the final three paragraphs, and something happens.

Let’s take these paragraphs in order – and sentence-by-sentence.

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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’

The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.

Such a decision could easily have taken place under a codified constitution.

It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.

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‘But Unionists hold a different view of the constitution.

‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’

This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.

The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.

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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.

This refers to this exercise in civil disobedience.

Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?

Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?

It is not easy to tell.

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‘The Unionists are Queen’s rebels.’

I am not sure what Bogdanor means by this.

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‘Where then stands the Protocol?

‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.

‘But that merely kicks the can down the road.

‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’

Here we perhaps go from the salami to the ridiculous.

The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.

There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.

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‘The court in Belfast is, however, right to this extent.

‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’

Here the contentions of the opinion piece appear to become confused.

A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.

Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.

Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.

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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’

Is this proposition correct?

The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.

If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?

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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’

No, I am not sure what this means either.

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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’

This is the last sentence of the article, and its import is unclear.

The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.

For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.

This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.

Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.

And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?

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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.

The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.

The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.

A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.

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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.

But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.

Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.

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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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Did the Home Office blink? – the significance of today’s announcement of a date for the Daniel Morgan report

28th May 2021

Today came the news that the publication of the report on the Daniel Morgan independent panel should be on 15 June 2021.

This is the report into the 1987 death of Daniel Morgan, the collapse of the many subsequent investigations and prosecutions, and the existence of (and the relevance of) any corrupt relationships between the police, the private investigation industry and the press.

The statement of the panel is here and should be read in full. 

This is, of course, welcome news.

It ends the stand-off between the panel and the home office – and, on balance, the home office has given way more than the panel.

The late intervention of the home office – to demand a last-minute ‘review’ of the report – is now unlikely to frustrate the publication of the report.

Delay and blocking

This statement means that, unless something happens to prevent it, there is now a fixed, imminent date for publication.

This should prevent the report being delayed indefinitely by the home office sitting on it during this (supposed) review.

If the objective of the home office was to provide room for delay (or even prevent) the publication of the report, then that objective looks like it has been defeated.

There is a little wriggle-room for potential further delay – but not as much as if there was no date set at all.

Redactions

The statement also deals with the issue of any home office redactions.

Any redactions that the home office insist upon will be identifiable – and so, it would seem, contestable in court.

Each redaction would be an action by the home secretary that could – at law – be looked at by the high court for its reasonableness and relevance.

Any redaction would thereby not necessarily be the end of the matter – but just the prelude for litigation.

The redactions cannot just be silently made, with no one to know.

Again this is a set-back if the objective of the home office was to have room to make such silent redactions.

Forewarnings and leaks

If, however, the home office had as its objective that it would be forewarned of the content of the report, this objective has been achieved.

This means that if – and it is only an ‘if’ – there is anything politically significant in the report then the home office will not have a shock and so will not be bounced.

It also means there is the possibility of leaks from the home office – perhaps to the media – in the days before 15 June 2021.

This is notwithstanding the controlled conditions for the review of the report – which will remind those with longer memories of Robin Cook and the Scott report.

Making sense of the Home Office intervention

As this blog has already averred, there appears to be no good reason for the late home office intervention.

The purported reasons do not add up – and they appear to be improvised and cynical.

As I set out in detail here, the choice of ‘national security’ and ‘the human rights act’ as grounds appear to have been for providing the maximum litigation cover for any home office delay, and not because of any genuine concerns.

I am not a conspiracy theorist by inclination – conspiracies do, of course exist, but usually to hide cock-ups, as only then will a number of people have the motivation and focus to act in concert.

As such I do not think there is any conspiracy between the home secretary and others to try and block or delay or gut the report.

The home secretary may well be (as a lawyer would say) on a frolic of her own in all this, without contact with anyone else with an interest.

It may well be that the home secretary simply did not like the idea of something being published by an independent panel beyond her control or involvement.

But whatever the true motive for the home office’s late bullying intervention, the statement today means that it is more likely than not that we will see the report published in two weeks, and possibly with few if any redactions.

The panel and its lawyers should be commended for facing off this illiberal and misconceived intervention.

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The extraordinary intervention of Priti Patel in delaying publication of the Daniel Morgan report

19th May 2021

This is not a conspiracy theory blog.

Conspiracies do, of course, exist – often to cover up cock-ups, for that is usually the only time when any given group of people have the focus and motivation to act in concert.

But a conspiracy is rarely the first notion that comes to my mind to explain any odd state of affairs.

And so, in respect of the 1987 murder of Daniel Morgan, I do not know why he was killed and who killed him.

This is just not safe legal-libel speak: I genuinely have no idea, and I offer no theory.

But what is odd about this murder was the aftermath: a remarkable succession of failed investigations and prosecutions.

Here, again, there may be explanations short of a conspiracy.

Court cases and so on fail all the time, and for various reasons.

And even if those reasons point to systemic failures, often those system failures are not conspiracies but just, well, system failures.

But.

The succession of failed investigations and prosecutions in the case of Daniel Morgan also indicate that there may be concerted wrongful conduct.

And nobody who knows anything about the metropolitan police and their relationship with the tabloid media at the relevant time would be surprised if there had been undue pressure and corruption.

Still: we do not know for certain.

And this is why an independent panel inquiry was set up in 2013 to, as far as possible, get to the bottom of what happened and what, if anything, went wrong.

(My 2012 piece calling for a formal inquiry is here.)

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The panel spent eight years putting together a detailed report.

The eight year period indicates the complexity and perhaps the seriousness of the matters being investigated.

And this long-awaited report was about to be published…

…when in an extraordinary intervention Priti Patel, the home secretary, has delayed its publication.

https://twitter.com/davidallengreen/status/1394982007093043201

 

We even have the remarkable sight of Patel relying on the Human Rights Act as part of the excuse for the delay.

As the panel has pointed out – in an impressively robust statement (which you should read) – there is no good reason for this intervention.

None of the supposed reasons add up, and it appears to me that the home secretary’s stated reasons are mere pretexts.

This is an extraordinary intervention by a politician in an independent inquiry.

And it also may be counter-productive – as it is drawing attention to a report that – even if it were critical – may have had little press or public attention.

After all – as I aver above – few would be surprised that bad things were happening at the time with the police and the media.

So, even if there is something in there which Patel, for political reasons, did not want in the public domain, her delay may be bringing attention to a thing others may have preferred were left not emphasised.

Some commenters believe that the report will be an exposure of the corrupt relationships between the media and the police of the time.

I have no idea.

But many will be even more interested in the report now after Patel’s extraordinary and perhaps clumsy intervention.

And we should hope that the report when published finally brings some justice for the family of Daniel Morgan who have campaigned tirelessly since his death for the truth to be revealed.

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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.

https://twitter.com/davidallengreen/status/1392125915543523330

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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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Do ‘Appeals for Calm’ work?

8th April 2021

Another evening of disturbances in Northern Ireland.

And so another round of ‘appeals for calm’.

Of course: such a call is the responsible thing to do – and nothing in this post should be taken to gainsay this.

But do such appeals actually work?

Does this – almost ritualistic – reflexive speech act ever have the intended effect?

And if so, how?

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A cynic may contest that one function of ‘appealing for calm’ is to just give something ‘community leaders’ something to say and do – a gesture as empty and meaningless as ‘thoughts and prayers’.

As such there could almost be a circular definition – a ‘community leader’ is the person who ‘appeals for calm’, and ‘appealing for calm’, is what a ‘community leader’ does – thereby a ‘community leader appealing for calm’ is almost a tautology.

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But such cynicism may be misplaced, for there appear to be many examples of appeals for calm that have had efficacy:

And from my home city of Birmingham:

https://twitter.com/ArghZombies/status/1379923278739992576

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So there are historical instances where the ‘appeal for calm’ seems to have had the intended political and social effect – though of course there may be other features present.

But the ‘appeal for calm’ has another important function.

And this is that it will be significant when the expected speech act is not made by a particular individual.

Here we have an example from just three months ago:

Silence as a signal.

As so often with language and politics, it can be more important when certain words and phrases are not used than when they are.

This is true not only for formal texts such as laws, but also for rhetorical acts in certain situations.

An ‘appeal for calm’ thereby might or might not work – but a failure or obvious refusal to ‘appeal for calm’ can have unwelcome consequences.

Appealing for calm is therefore an important piece of political behaviour – both for what it can achieve and also for what may happen if the appeal is not made.

Words matter, but so does silence.

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