Category: Liberalism and Illiberalism

My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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The outlaw ministry

12th May 2022

From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.

And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.

Ho ho, every time.

But.

The real problem with this government is not that it acts unlawfully or illegally.

The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.

It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.

Instead, the government does not see law as even applying to it.

To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.

The law applies to little people, and not this government.

‘Law and Order’ is a campaigning slogan, but not a principle of government.

As this blog has previously averred, this government engages in three types of lawlessness.

First, it often conducts itself without any lawful basis.

Second, it seeks to introduce legislation that will enable it to freely break the law.

Third, it permits law-breaking at the highest level.

It is difficult to imagine a government with less respect for law, and for the rule of law.

This is not so much a government of law breakers, but a government of outlaws.

The law is an inconvenience which can be disregarded as and when it is inconvenient.

Such an approach has its hedonistic attractions, but it cannot end well.

Brace, brace.

 

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

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Macron’s victory – and the ongoing predicament of liberalism

25th April 2022

For some the victory of Emmanuel Macron in France is not enough.

The victory over his illiberal opponent was not sufficiently crushing.

He is not an especially liberal politician himself.

And his illiberal opponents may do well in elections to come.

But.

An implicit assumption of those holding such views is perhaps that a ‘once-and-for-all’ blow could somehow be struck, knocking out the illiberals.

Unfortunately, like the poor, the illiberals will always be there.

The horrors of mid-twentieth century authoritarianism was not the only manifestation of illiberalism.

Nazism and Fascism were not the classic form of such illiberalism, but how it formed in certain places at certain times.

The price of liberalism, like that of liberty, is eternal vigilance.

And so: when there are wins, like there was in France – and Slovenia – yesterday, there is nothing wrong with cherishing and celebrating such victories.

But such elations and rejoicing are necessarily short-lived, for pretty soon liberalism is going to have to politically defend itself all over again.

And again, and again.

For if liberals – and progressives – become complacent, and think that history has ended with the right side winning, then you next get resurgent illiberalism – as in the United States and elsewhere.

The contest of liberalism and illiberalism is a struggle without end.

So after the claps and cheers, we return to the position of brace, brace, and we do what we can to avoid the crashes to come.

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

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The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

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So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

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To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

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Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

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The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

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So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

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For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

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Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

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Thank you for reading – and please support this blog.

These free-to-read law and policy posts every week day take time and opportunity cost to put together, as do the comments to moderate.

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***

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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Censorship vs the Babble – both work for authoritarians

7th April 2022

This post is just to set a quick thought (as I am recovering from illness).

It is to contrast and compare two things, which seem to be leading to a common end.

The first is Putin-style censorship – the sort which means Russians generally do not appear to have true information available about the invasion of Ukraine.

This suits the authoritarian nationalist populist Putin.

The second is the anything-goes babble of social media and 24-hour online news and comments, where few are actually censored.

The effect of this babble appears to be that liberal and progressive voices are drowned out, with hyper-partisan shouts of fake news and ‘balance’.

This suits the authoritarian nationalist populist politicians in many other countries.

So we have two modes of media which seem very different, but which have the same authoritarian effect of undermining and restricting critical voices.

Anyway, just a quick thought. What do you think?

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Orban and the future of illiberalism

4th April 2022

Once I was walking through the streets of an old university town with a religious-minded friend, and he turned to me and said: ‘you do realise that we are still in the early history of the church’.

The truth of that specific proposition was lost on me – I am a non-militant atheist – but the more general point has always stayed with me.

What any one generation may see as the end (or after the end) of a process may just be the start.

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Those of us born after the 1950s and 1960s are used to thinking of ourselves as ‘post-war’.

Hitler and Stalin were regarded as historical figures, not near-contemporaries.

When I started my history degree in 1990, the events of just over forty-five years before seemed like from another century.

But now, thirty-or-so years on, 1990 is like only yesterday.

The fall of the Berlin Wall and the end of the Soviet Union feel like recent events.

History had – has – not ended.

And those of us who saw ourselves as fundamentally separated from the horrors of the mid twentieth-century will possibly be seen by future historians as just occupants of a happy interlude before the horrors of this new century.

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This blog has previously covered Viktor Orban and his robust, unapologetic and evasion-free illiberalism.

(Read this post here.)

For Orban there are no polite but insincere platitudes about the value of diversity and individual autonomy.

His illiberalism could not care less about your feelings.

His significant 2014 speech – which should be read by anyone interested in how Europe is going – places the illiberalism in plain sight.

We cannot say we were not told.

Now Orban and his political supporters have won yet another super-majority in Hungary.

And this was achieved despite the opposition liberal and progressive parties working together – and despite Orban’s conspicuous lack of support for Ukraine.

There perhaps could not be more favourable conditions in practice for Orban’s political opponents.

And they still lost.

Of course, the Hungarian political and media system is rigged in favour of Orban.

But not everything can be blamed on conspiracy.

What if – in a democracy – illiberalism is actually more popular than liberalism?

What if illiberalism is – as Orban avers – an ideology of the future, and not something for the history books?

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We may – perhaps – not still be in the early history of the church.

But we may well still be in the early history of populist authoritarian illiberalism.

And Orban – who studied at the very same university college as me and my religious-minded friend, and only the year before – no doubt thinks so.

Orban may be right.

So let us do what we can to show that we are in the early history of liberalism.

For Orban may also be wrong.

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When both lawyers and the law are to blame

4th March 2022

Over at the Financial Times I have a piece on the extent to which lawyers are to be blamed for the abuse of English law by oligarchs.

https://twitter.com/davidallengreen/status/1499802380711387138

The article is, in turn, an elaboration of a post I did at this blog earlier this week – and it is a topic I have also tweeted about.

And one response has been to assume that my attempt to say that lawyers are not entirely to blame means that it is being suggested that lawyers are not at all to blame.

I have been careful to state – and explain – that lawyers are culpable, and that solicitors especially get to choose who they act for and in what way.

This is not good enough for some commenters – and I have been told that I am somehow making excuses.

But the problem is with any area of law that relates to dreadful things – oligarchs, torture, slavery, police brutality – there are both systems and individual agency.

This is an area this blog has explored before.

https://twitter.com/davidallengreen/status/1424059049360994307

And the focus on either systems or individual agency does not give you a full understanding of how the law and lawyers can enable such bad things to happen.

It has not been pleasant getting the ire that some want to dump on lawyers generally – but until and unless we can see that problems can be both systemic and personal, we are unlikely to resolve those problems.

And just jeering at lawyers, while satisfying, can be a substitute for meaningful reform of bad law and bad legal practice.

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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 and comments will not be published if irksome.

Wokery and law and policy

18th February 2022

Back in the 1980s there was something called the ‘loony left’.

It was a general smear against the Labour Party – based on what were very few actual examples from a few left-wing politicians, mainly in local government.

As a political tactic, it was very successful.

But one problem for the-then governing Conservative party is that some of that party’s leaders actually believed it was true.

They believed there was actually a substantial thing called the ‘loony left’.

And this was part of the reason after 1987 leading Conservatives nodded-along with the ‘community charge’ – or ‘poll tax’ – so as to make these ‘loony left’ local authorities more ‘accountable’.

It is also why, around the same time, we ended up with the vile Section 28.

Government ministers in the late 1980s, and their political and media supporters, took seriously the ‘loony left’ political scare tactic.

And atrocious legislation and policies then followed.

The ironic thing was that the ‘community charge’ that was intended to counter ‘loony left’ councils did far more to bring down the Thatcher administration than it did to undermine any left-wing councils.

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Now, it is happening again – but CTL+F ‘loony left’ and replace with ‘wokery’.

As before, the phrase is a political tactic.

And also as before, there are government ministers (and their media and political supporters) who are taking such things seriously.

The sheer lack of proportion is well described by the Conservative former Lord Chancellor David Gauke in this New Statesman article.

As Gauke avers, it is the current government and not ‘the woke’ that “has attempted to illegally suspend parliament and threatened to break international law. Brexit was always a huge geopolitical error that weakened the West, but the UK government is implementing it in a way that creates additional tensions with our closest allies. It is also a government that appears to think the Prime Minister is above the law.”

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On the back of this facile ‘anti-wokery’ may come legislation just as illiberal and misconceived as Section 28.

It may even lead to colossal policy errors like the ‘poll tax’.

And as with the 1980s, the fundamental problem will be that right-wing populists believed in the turnip-ghosts they had conjured up to scare themselves and voters.

That is why the speech of cabinet minister Oliver Dowden against ‘wokery’ is so dangerous – including for the Conservatives themselves.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.