Category: Police and Policing

Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

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The overlooked obstacle to the United Kingdom withdrawing from the ECHR

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From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

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That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

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The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

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When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

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Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

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And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

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Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

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This post is partly drawn from this earlier blogpost.

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The commercialisation of private prosecutions

19th May 2023

In the Financial Times magazine this weekend – and on their website (though behind a paywall) – is a fascinating and detailed article on the commercialisation of private prosecutions – especially in respect of shoplifting and online counterfeiting.

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By way of background: usually one way of explaining the difference between criminal law and civil law is that in the former a person is prosecuted by the state, while in the latter a person is sued by another person.

But with private prosecutions, a person can bring criminal prosecutions against another person.

It is an example of the private enforcement of public power.

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Of course, the hope (if not expectation) is that any abuse of these prosecutions would be dealt with by an impartial and independent court looking out for the public interest.

But such prosecutions are outside of the processes the police have of dealing with incidents, and also outside of the processes of the Crown Prosecution Service have in determining whether a prosecution should be brought.

Yes, it is possible for the Crown Prosecution Service to step in and terminate a private prosecution, but that is exceptional.

So what we have are defendants – whose cases would have been dealt with differently had the police or the Crown Prosecution Service – facing harsher sanctions at the criminal courts.

And this is done as a business, as the Financial Times spells out, for those bringing these prosecutions only get paid if they can apply for public funds at the end of a successful prosecution.

It seems the various shops and businesses which are affected by the criminality in question do not contribute to the costs of the prosecution.

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The article points to both a justice gap and to a failure to properly fill that gap.

Many of the shops and businesses nod-along with the private prosecutions because they have no confidence in the police and the Crown Prosecution Service, who in turn are not properly resourced.

And as several of those caught up in the private prosecutions have drugs problems, it can even be contended that some of the prosecutions make no real overall difference to the crime levels, just diverting crime elsewhere from the protected shops and businesses.

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The Financial Times piece is an interesting sideways snapshot of the criminal justice system.

And if you cannot afford to buy the Financial Times tomorrow, and so decide to read it inside the newsagents instead, please do remember not to walk out without paying for the newspaper.

The article will tell you why.

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Today’s Metropolitan Police apology shows they are still failing over Daniel Morgan

10th May 2023

The Metropolitan Police fail and fail again in respect of the murder of Daniel Morgan.

Some of these failures were in the five botched police investigations and the often accompanying corruption.

But some of these failings are in how the Met has dealt with the disclosure of materials to the Daniel Morgan inquiry, which reported in 2021.

In the report, the panel said (emphasis added):

“There was not insignificant obstruction to the Panel’s work. At times the contact between the Panel and the Metropolitan Police resembled police contact with litigants rather than with a body established by the Home Secretary to enquire into the case, and to which the Metropolitan Police had promised to make ‘exceptional and full disclosure’.

“The Panel concludes that, despite the express commitment by the Metropolitan Police in the Terms of Reference to support the Panel’s work, the Metropolitan Police did not approach the Panel’s scrutiny with candour, in an open, honest and transparent way, making exceptional and full disclosure of relevant documents. The way in which material was disclosed or withheld had the effect of making the Panel’s work more difficult.”

And so, to the surprise of absolutely nobody, the Met has now admitted to substantial material non-disclosure:

If you are gullible enough to accept the Met’s explanation for this delayed disclosure at face value, do note that there has been no reason given for why materials found in January are now only being acknowledged in May.

(Also note the deft and vague “number of years” – the appointment of the panel was announced in 2013.)

There can be no good reason for the non-disclosure of these materials and for the delay in admitting they exist.

This is simply a continuation of the evasive and obstructive non-disclosure practices of the Met throughout this whole matter.

The Met did not like – and do not like – the concentrated scrutiny that comes with an inquiry such as that conducted by the Daniel Morgan panel.

The Met would much prefer to deal with the short attention spans of time-poor and story-hungry media.

The problems identified by the Daniel Morgan panel, which I set out in this video, are still present in the Met.

Our thoughts should be with Alastair Morgan and the Morgan family at this latest let-down.

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How Prince Harry’s legal case shows how the phone hacking story has returned to the start of a circle

26th April 2023

The news about the royals and hacking, well summarised and analysed by Joshua Rozenberg at his Substack, brings us back to the start of a circle.

For the phone hacking story only came about because of the royals.

The story came about because the Fleet Street press of the time – with their well-connected links with the Metropolitan police and the private investigation mini-industry, and unchecked by fearful politicians – sought access to information from the voicemails of the royal household.

Because the royal household became involved, the matter was passed to different police officers at the Metropolitan Police, who then raided and took compelling evidence from private investigators.

And in Scotland Yard that evidence was stored, and it became relevant to civil claims some years later, and then suddenly the scope and extent of tabloid phone hacking became apparent.

But without the royal household connection, the crucial evidence would not ever have been seized and stored, and without that evidence being available for later litigation, the hacking story may never have emerged.

What happened shows the practical importance of the monarchy to our politics, regardless of constitutional theory and conventional wisdom.

It seems only the monarchy has any autonomous power when the police and the media and the politicians collude.

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Such crude phone hacking now seems from another age – technologically, culturally, politically, legally.

After the current crop of cases it may well be that the phone hacking litigation comes to an end.

Prince Harry’s various cases will then perhaps be the other bookend to that provided by the original hacking of the royal household telephones.

But as the parties attend hearings at the Royal Courts of Justice in the Strand, the sophisticated surveillance and data retention by the state and technology companies continues at an unimaginable scale, again unchecked by either politicians or the media.

The phone hacking of a media generation ago seems like a garden shed affair compared with a huge urban conurbation of the exercise of “investigatory powers”.

Any abuses and misuses (or even uses) of the current technology will, in turn, probably never come to light so as to horrify.

Unless, of course, the abuses and misuses (and uses) affect the royal household.

And only then, maybe, will we ever get to hear about it.

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The police officers who want to be armed are perhaps the ones who should not be police officers

20th January 2023

There is an old adage: those who want to have power are the ones who should be disqualified from having power.

Similarly, those police officers who want to be armed should be the ones who perhaps should not even be police officers.

This thought is prompted by the examples first of Wayne Couzens and now David Carrick, both of whom were keen to have the status of being able to have a gun.

Neither Couzens nor Carrick, as far as we know, misused a firearm.

But both seemed desperate to have the status of being able to have a gun and perhaps to boast about it, to themselves and others.

And that was a danger sign.

Of course, there is a necessity to have armed police: that is an unfortunate feature of the modern age.

A civilian and entirely unarmed police force belong to a golden age –  an age which probably never existed.

But.

The question is not whether some police are armed, but about how armed police are selected.

And it would seem those who put themselves forward, so that they would not only have the legal right to inflict coercive force on others, but also be able to inflict lethal force, are the constables who should perhaps be thrown out of the police altogether.

Only perhaps the police officers who are chosen by others – their superiors and peers – to have guns should be the constables who are reluctant to be armed.

And if this approach is adopted then the ‘vetting’ process would be a lot easier:

“Do you want to have a gun? You do? You’re dismissed.”

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The striking paradox of the police

19th January 2023

Here is a striking (ahem) paradox.

One one hand: police officers cannot strike.

And on the other hand: it is almost impossible to sack a police officer.

One would think that an occupation which had such near-absolute job security would also be one where the workers had ready access to taking industrial action.

But no.

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Police officers have not been able to strike since the Police Act of 1919, which in turn followed the (fascinating) police strike of 1918-19.

Since then police officers have been represented nationally by the Police Federation, rather than the more conventional trade unions that represent other emergency and front line workers.

The Police Federation is very good at protecting its members.

Successive governments have been supportive of the police generally and avoid upsetting the Police Federation in particular .

Indeed, when the then home secretary Theresa May in 2014 dared to criticise the Police Federation there was that rare thing: a genuine sense of political shock.

(I think this may be the only speech by a serving cabinet minister that has ever made my jaw drop.)

But her sentiment did not last long, and during her subsequent premiership she showed little interest in police reform.

The police also maintain (mutually) good relations with the media, and – as the Leveson Inquiry indicated – the police are an important source of content for the press.

And so perhaps the prohibition on striking has never been really tested because there has never been a need to do so.

What more power would the Police Federation want?

What would be gained by threatening to go on strike?

Indeed when in 2013 the possibility of being able to go on strike was put to a vote of federation members, less than half of police officers voted one way or the other.

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Yet every so often there is an example of how difficult it is to dismiss police officers.

For conduct which in other occupations and professions would lead to instant dismissal or disqualification, there is often the appearance that nothing is taken that seriously.

This week there has come to light the horrific case of David Carrick, but there are numerous other instances.

There seems to be, looking from the outside, structural problems within the police generally, and within the Metropolitan police in particular, that mean that violent and dishonest police officers have too much job security.

Of course, the nature of policing means that officers should have due protection from vexatious and malicious complaints.

But the level of current protection seems far too high to be explained just by the perils of policing a resentful public.

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Today the leader of the opposition suggested a substantial overhaul, such as when the Royal Ulster Constabulary was converted into the Police Service of Northern Ireland.

This would have to be more than a mere change of name.

But it is unlikely to ever be done, for in power governments since 1919 have almost always had an interest in not upsetting the police.

Perhaps the test will be if the Police Federation holds another poll, and a majority of its members take an interest and vote on whether to have the right to strike.

For that would point to real power slipping of the police in respect of policy.

But in the meantime, we have that striking paradox: the workers with some of the strongest employment protections have the fewest rights to take industrial action.

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New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

6th January 2023

Over at my new law and lore Substack, I have published an essay for paying subscribers on how the Malone case of 1979-1985 exposed the lie of our supposedly liberal constitution and changed the way we were governed.

The essay starts as follows:

Consider this simple, attractive proposition: in the United Kingdom, you are free to do as you will, unless there is a law against it.

What could be wrong with such a nice proposition: it is almost a perfect articulation of principled liberalism.

But.

This proposition can have a hidden and ugly implication.

For it also can mean that the State can do as it wishes, to you and other people, unless there is a law against it.

And the case which exposed this unpleasant truth – and helped put an end to it, so that the State was required to have a legal basis for interfering with our lives – is the 1979-85 case of Malone.

This is the story of that case, and of its effects.

You can read the rest of the essay with a paid subscription here.

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This essay is also being posted on Patreon for those who subscribe to this blog using that medium.

For those who subscribe and donate through either Patreon or PayPal, please leave a “PRIVATE” comment below confirming you want me to add your email address to the Substack system so you can have a one-year complementary subscription to the law and lore Substack.

It is important that nobody pays “twice” for my content.

Guest Post: Adam Wagner’s Emergency State reviewed by the legendary police blogger Nightjack

18th October 2022

The legal blogger Adam Wagner has written a book about the coronavirus regulations.

But the internet does not need another post by one legal blogger saying another legal blogger is wonderful, and so I asked someone else to review it.

Richard Horton was a police sergeant in Lancashire tasked with making sense of and enforcing the regulations on a daily basis, and so I asked him to do the review.

Horton also happens to be the legendary former police blogger known as Nightjack, winner of the Orwell Prize in 2009 – and it is a great honour for this blog to publish his guest post.

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Emergency State by Adam Wagner

Review by Richard Horton

 

A few years ago I was a jobbing Police Sergeant on a response team in South Lancashire. My hair was short, my beard was goatee and life was good, busy, but good.

Enter stage left the wily Chief Inspector of my parish with a cunning plan. “Richard” he said, “we have a job that needs doing at Licensing Sergeant. Could you take it on?”

I was on the far side of 50 with a borked right knee. Retirement was only a few years away. The joys of managing an ever increasing workload with ever decreasing resources and dealing with the belligerent antisocial at weekends were beginning to fade.

I was being offered one of those fabled “glide path to retirement” jobs.  This was the Licensing Department, a small team that knew the job better than me, lots of meetings, the occasional licence review. This was the job to see me out to my pension, and all I had to do was to get my head round the Licensing Act.

Of course I snatched his arm off.

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I settled into the new post fairly quickly. There was a first month punctuated by my wise staff coughing gently and saying “Errm Sarge, you can’t actually do that” and I was lucky enough to do some barrister-led training in licensing.

I had my feet underneath me, everything was going well and then March 2020 happened.

From then on, my colleagues and I had to operate in a rapidly mutating landscape of laws and regulations that soon resembled the hedge in Sleeping Beauty.

The world had caught a virus and here in England, the Government tried to take control.

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Nightly, ministers appeared on radio and television making policy pronouncements about the State of Emergency. From the start, there was a disconnect between what was being said and what was being written into the regulations.

On one notorious occasion, a local night club operator understood this and used better reading and barrister advice on those regulations to stay open until the last possible minute when the local council and I had convinced ourselves that the venue should close.

My team and I would literally huddle round our little office radio waiting for the latest press conference. I would wait expectantly for the publication of each iteration of the regulations. We then had to go out and enforce this stuff.

The simple life of a Licensing Sergeant was suddenly complicated. I vividly remember right at the start taking a police van out along the Merseyside border to check on some outlying pubs. I passed many groups of people, families as far as I could tell, who were going on a walk  for exercise. In many cases they looked very uncomfortable seeing a police van approach. I just smiled and waved. Some smiled and waved back. Some didn’t. It felt very strange.

Despite my best efforts, I could not reconcile the briefings to what was coming out in the regulations. Guidance from above was still some distance away. Policing was taking a “let a hundred flowers bloom” approach to enforcement. Things were getting muddled.

I thought I understood what it all meant. I became a sort of one eyed go-to for colleagues but in truth I just was not sure.

Into that chaos stepped Adam Wagner, a human rights barrister at Doughty Street Chambers. He was doing the hard work of reading, understanding and explaining the Coronavirus regulations for the rest of us. It came as some relief to have his work as a reference that proved more reliable and helpful than any amount of briefing and policy announcements.

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Almost inevitably, having stepped into the very centre of the storm, Wagner has now written a book about the State of Emergency and called it Emergency State.

As a history of the times it struck me as entirely accurate. As I read the book there were may moments where I was right back in the Licensing Office reading the latest regulation and thinking “Umm, OK, how are we going to make this work? Actually can we make this work?”

What was a substantial meal? Did a Scotch Egg count? Was the rule of 6 households, acquaintances, indoor, outdoor, socially distanced, masked? What distance was a social distance?  How loud could you sing at the karaoke? Was it a nightclub or a multi-use licensed venue? What actually was a nightclub? What parts of my responsibilities were in what tier?

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As soon as my copy of Emergency State arrived I was inevitably drawn to pages 66-68 of the book, Police – understanding of rules.

Wagner dip sampled police officers on their understanding of the regulations and as I feared, he found that the unenforceable guidance had been rolled up into the law by some of my colleagues.

He is generally sympathetic to our plight but rightly points out that in the State of Confusion, many people were given police instructions that were not based on any legal power and many fixed penalty notices were given out that should not have been.

This is important stuff when the police had been given such great power and authority. Policing should learn from this because in the cold light of hindsight, it will diminish our legitimacy.

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From the beginning Wagner sets out that this was a real emergency. There was a virus, it was killing many people, there was no cure, little effective treatment and no vaccine. There was a real prospect of NHS resources being overwhelmed.

He doesn’t claim any special medical knowledge but he understood early the value of bringing his experience and knowledge as a barrister to bear on getting a proper understanding of the scope and power of each development of the Coronavirus regulations. It is a balanced and thorough view. Many times as a I read Emergency State I found myself thinking “Yes Adam but….” only to find that my but was addressed a few paragraphs later.

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The book is helpfully organised chronologically with each chapter headed up by the relevant dates and poignantly the cumulative Coronavirus death toll.

Chapter 6 – Patchwork Summer took me back to that incredibly good summer in 2020 when I spent time patrolling parks with local council staff because there was a local political opinion that somehow groups of people gathering legally in a public park to enjoy picnics and cold beers from the local off licences was a thing to be stopped. Those gatherings were not stopped but we had to look.

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If I had to pick one chapter to survive it would be Chapter 8 – Step By Step.

We should never forget “Partygate” and Wagner sets out persuasive evidence that inside government, things were much closer to the Versailles court of the Sun King than to say, Battle of Britain era Fighter Command.

I read this chapter with a near constant smile. Who had kept all the receipts? Who knew what regulations were being flouted on which dates? Who could definitively say “You broke your own regulations, the ones that you made”? Who could point out that the Metropolitan Police policy on retrospective enforcement of the regulations explicitly allowed and indeed encouraged retrospective investigations into something like “Partygate”?

This comes as a conclusion to one of Wagner’s central themes that for about two years there was an exercise in strong use of state power with very little effective scrutiny. As a country we largely rolled with it but those thorny thickets of regulation  were often poorly thought out, impractical and unfair. All the while, behind the palace walls there was hedonistic exceptionalism.

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As I read this book, I could always feel Wagner setting out his evidence and heading towards conclusions. It is well written and accessible and it has to be to coherently draw together the ratcheting of fiat law into everything from the public joy of a walk in the country to the private joy of the bedroom. This is no dry legal telling of the tale. It takes the reader back into the daily history, the tragedies and the fear of Coronavirus. It has a narrative that you can feel.

If I were to clumsily summarise it, I would say that a State of Emergency was necessary but we somehow ended up with an Emergency State.

There are lessons to be learned about keeping that state in some sort of effective balance and on this occasion neither the courts or the legislature were particularly effective.

We (mostly) willingly surrendered many freedoms and although they were eventually returned to us, a blueprint for making further lock downs and restrictions on our freedoms with weak scrutiny and little ongoing accountability is now known. Without scrutiny and accountability we may be left solely reliant on the wisdom and responsibility of our state which is a bad thing.  Will those lessons be remembered when we pass this way again?

Probably not I think but if they are, this book Emergency State will be a good start for anybody that wants to know what really happened and more importantly, how it happened.

Richard Horton

TAFKA NightJack

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The dropping of “The Bill of Rights” – and why it is both good and bad news

7th September 2022

The Human Rights Act 1998 is still in place.

And Dominic Raab is not.

Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.

The legislation was the Moby Dick to his Captain Ahab.

But the whale has swum away again.

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Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.

When this was published my reaction was that it was a dud and a misdirection.

In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.

The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.

Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.

And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.

It was difficult to conceive of a greater exercise in pointlessness.

But, for Raab, the Act had to be repealed.

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“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”

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And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:

This revelation has the ring of truth.

The “Bill of Rights” is dead.

And so…

…Hurrah.

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But.

The cheers cannot last for too long.

For this further news is also important:

The quoted statement may look like verbiage – but it signals something important.

The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.

And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.

These moves will be driven mainly by the Home Office, and not the MoJ.

This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.

The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.

The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.

Dominic Raab and his “Bill of Rights” may have gone.

But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.

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Never underestimate archivists and librarians – as Donald Trump is discovering

31st August 2022

Here is a lovely story about libraries and public policy.

The year is 1983.

The library is the British Library, formerly hosted in the reading room at the British Museum and other sites.

Nicolas Barker, then the library’s head of conservation, and Lord Dainton, then the chair of the British Library Board, had a problem.

Public finances were under pressure, and spending cuts were everywhere.

But.

They needed to work out a way to convince the then Prime Minister Margaret Thatcher about the urgent need for the move of the library to a new purpose-built building.

They decided to keep the issue simple: no lengthy paragraphs in a wordy report, still less charts or tables.

And certainly no waffly arguments.

They instead took her half a dozen books, as well as a novel by one of her favourite authors, which were falling apart, regardless of the care being taken to conserve them.

They placed the books on the table in front of Thatcher.

Silence.

She looked with horror at the state of the books.

Silence.

And then they then said:

‘Mrs Thatcher, we need a new building because all our books will fall to pieces if they stay where they are.’

So horrified was the Prime Minister at the potential fate of the national collection that they got the go-ahead for the new building.

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There are perhaps two morals to this tale (which I have told before here and is recorded in this obituary).

One is that sometimes exhibits are more persuasive than words.

The other is never to underestimate archivists and librarians.

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That there seems a real prospect of legal jeopardy for former President Donald Trump because of a breach of American archival law.

For many watching this is evocative of Al Capone being nailed on tax evasion charges.

Archival offences seem to Trump’s supporters a convenient pretext for legal action, rather than a substantive wrong.

But.

It is a substantive wrong.

For keeping documents and other information safe both for now and for posterity is a central function of the state.

It is how the government (and legislature and judiciary) of one day speaks to those charged with power in the future.

It is how those with power can be confident that certain information does not go to those who would use that information to cause damage and injury.

Like the integrity of the currency and protecting the realm, preservation of certain information is a core duty of those entrusted with power.

And like the damaged books put in Thatcher, visual evidence can be telling:

(Source.)

Of course, few of us know the facts.

It may well be that this legal exercise comes to nothing, and Trump escapes personal legal liability again.

And Trump is entitled to due process, like you and me.

But the wrongful removal of information from a government is not a trivial thing.

For without properly documented information, modern governments could not function.

That is why laws and policies about document management and retention are so important.

And there would be a wonderful irony if laws and policies about ensuring the integrity of written information were used to check the arch-abuser of political language and post-truth politics.

POSTSCRIPT

The historian Dr Adam Chapman has provided us with this similar story – click through to read more:

 

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