Category: Words and Things

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.

*

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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“[X] is [not X]!” – commentary in the age of populism, polarisation, and post-truth

23rd August 2022

One problem with books like Nineteen Eighty-four is that their sheer familiarity means they lose their impact.

Indeed, phrases like Big Brother and Room 101 have become so detached from their literary mooring that they now have their own existence in popular culture.

George Orwell, if he were still alive and writing, would probably say that we should not use such now-hackneyed images and create fresh ones – and he may well have a point.

He would no doubt urge that we throw away Nineteen Eighty-four and come up with new and vivid turns of phrase.

But it is a pity for there is one passage in particular in his great novel which seems very relevant in these days of populism, polarisation, and post-truth, the 3Ps.

You will know the passage:

“From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH”

 In formal terms:

“[X] is [the opposite of X]

[Y] is [the opposite of Y]

[Z] is [the opposite of Z]”

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These slogans are extreme.

But they are perfect, in their ways, for they cover and anticipate what may otherwise disprove them.

These are the slogans of politicians who are utterly unafraid of it being pointed out that the opposite is the case to what they are claiming.

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The slogans of today are similar in effect, if not form, in that they are not capable of being defeated by the opposite being the case in reality.

Yesterday on this blog it was contended (again) that there is not only a discrepancy but a contradiction between the slogan “Law and Order!” and actual law and order.

But there are many more.

For example, think about “Free Trade!” vs free trade.

In the name of “Free Trade!”, we have in Great Britain – with this government’s Brexit policy – cut ourselves off from an immense single market just a few miles away.

Similarly, in the name of “Free Speech!” all supposedly “woke” positions are to be cancelled, especially if taxpayers’ money is involved.

And so on.

There are many more.

*

But none of these contradictions matter, for the slogans can brook no opposition:

“Law and Order!”

“Free Trade!”

“Free Speech!”

Against any practical objection – or empirical disproof – the shouted slogans just get louder, and the nods and cheers – and clicks – continue.

Against this, commentary is often pointless.

It does not matter that anyone is pointing out the differences between what is said and what is done, because these politico-linguistic constructs have lives of their own.

You may as well try to catch ghosts and wisps with a butterfly net.

*

As this blog has averred before, there is still some purpose in commentating, as at least there can be a register at the time that some people saw the mismatches.

And there may be – perhaps – one or two readers who come to a blog like this other than to have their prejudices confirmed.

But generally blogs like this are merely part of the noise that 3P politicians actually want to provoke – the sound of “libs” being “owned”.

Perhaps after the general election there may be politicians in power (even from the current governing party) who want again to connect what they say with what they do.

Perhaps there may even be enough voters who begin to care that they are being lied to.

Perhaps.

But as it stands, a great deal of commentary – including on this blog – is not making things any better, because many politicians know it does not matter if what they say is not true.

If politicians and voters do not mind such contradictions, then pointing out these contradictions has no real purchase.

And until there comes about politicians that want power who can provide leadership – and make voters care about they are being lied to – then there is little point to law and policy commentary.

But we should do it anyway.

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

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How to read a formal document

27th July 2022

This post follows yesterday’s very popular post which provided a close reading of the letter from Prime Minister Boris Johnson to the House of Commons liaison committee.

Indeed, the most popular posts on this blog are often close readings of some formal document or another.

It therefore seems a good idea to do a stand-alone post on how to read formal documents.

*

In doing this, please note I am not trained in forensic linguistics – nor am I clever enough to understand deconstructionism or post-modern philosophy.

My perspective is that of a practical lawyer and legal commentator.

This means that with one hat (or wig) I create legal and other formal documents, and with the other I take them apart and seek to explain them to the public.

So treat this post like a poacher’s guide to gamekeeping, or as a gamekeeper’s guide to poaching.

It is also perhaps relevant that I have a history degree and that I am a former central government lawyer.

In other words: I am a documents geek.

*

Let us begin with what we are looking at.

What is a formal document?

Literally, a formal document would be a document that has a certain, well, form.

And documents that have to be set out in a certain form are usually formal documents.

But the term has a wider meaning, and I take it to cover serious and considered documents generally.

In this way formal documents are distinct from, say, casual writing.

In essence: a formal document is a document which has been created with care to serve a function.

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So the first step is to understand the function of a formal document.

Why has this document been created?

An Act of Parliament or a deed is created so as to create or affect legal relationships.

A resignation letter is created so as to effect a resignation.

A letter in response to a request needs to be understood in the context of the request.

And so on.

Once you have ascertained the function of a document, that will inform you as to what one can expect to be in the document.

For example, here is the resignation letter of President Richard Nixon:

This letter fulfils its function.

Nothing more needed to be said, and so nothing more was said.

In contrast, this is the Article 50 notification letter of then Prime Minister Theresa May.

All that letter needed to say was that the United Kingdom is providing notification of its intention to depart the European Union.

But the letter went on (and on) for six pages.

There was no need for anything more than one substantive paragraph.

And so by understanding the function of a formal document you can understand which part of its content serves the function of that document – and what part needs other explanations.

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The next question to ask is whether the document is an instrument.

Some documents record things, and some documents do things in-and-of-themselves.

For example, an Act of Parliament does not (normally) record the law but is a source of the law.

Or a deed does not (usually) evidence a contract but can create legal relationships and obligations.

This is why lawyers can be prone to pompous language such as “hereby” and “hereinafter” as the idea is that the words on the page that are themselves (magically) creating things.

If a document is an instrument then for it to have the intended (magical) effect then certain words and phrases (spells) have to set out (incanted) in a certain way.

And if those words and phrases are not set (incanted) in a certain way then the instrument fails.

One error that can be made by those who are inexperienced with dealing with certain instruments is to take such formalities as saying something in particular.

For example, take the preamble for an Act of Parliament:

If you had never seen an Act of Parliament before you may wonder why all these lords (spiritual and temporal), and commoners, happened to be assembled in one place for enacting this bill.

But when you realise the document is an instrument – a document which, in-and-of-itself does a thing, you see which parts make it instrumental – and thereby which parts do not need another explanation

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The next question to ask is about what audiences the document will have.

For example, take a lawyer’s letter threatening legal action.

If the letter is “open” it is intended to be placed before the court to show that the suing party put its case to the defendant(s) before issuing a claim.

The letter thereby is written for the judge.

But the letter is also written for the other side to see – and to have a certain effect on the other side.

Another audience for the letter is the suing lawyer’s own client, who may have wanted a robust lawyer’s letter as a form of satisfaction – or perhaps therapy.

A wise lawyer in a high-profile case will also realise that a potential audience for such a letter can be the public and/or the media.

Another example are contracts.

A contract is there to tell the court what the parties have agreed, including as to what would happen in certain circumstances.

But a contract also needs to be comprehensible to the parties without going to court.

And the contract may need to be disclosed to regulators and tax authorities, or investors and business purchasers.

Parts of the contract may be written with one or more of these audiences in mind.

And in this internet age, resignation letters – of which there have recently been a large number in British politics – can be written not just for the respondent but also for the public to read on social media.

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And now we get to the author(s).

Many formal documents are not created by a single author.

Indeed, many formal documents can be regarded as negotiated documents – whether the negotiation is between different parties (like a contract) or between the nominal author and their advisors and employees.

A ministerial letter can be as much the product of civil servants and perhaps special advisers than of the mind of the minister themselves.

Some formal documents, such as Acts of Parliament, are the work of dozens – perhaps hundreds – of people.

Sometimes one can discern the subjective intention of an author – and how the creation of a document serves that author’s personal or partisan interests.

This is especially true if a particular person approves the final version of the document.

But sometimes that personal or partisan interest is not obvious and is difficult to disentangle from the function of the document and the purposes of its content.

Authorial intention is important – sometimes crucial – but it is not the only thing.

The best starting points with a formal document are function and purpose – and it is then, by relief, that you can sometimes see how an author’s personal or partisan interests are being promoted or protected.

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Now we come to the important bit.

The first of two ingredients of close reading.

Read what the document (actually) says.

Read every word and every phrase and think about those words and phrases.

You should presume every word and every phrase of a formal document is there for a purpose.

Your job is to work out that purpose.

Some lawyers call this “the rule against surplusage”.

The document itself should have a function – but in serving that function every word and every phrase in that function can be presumed to have a purpose.

Of course, you can have redundant words and phrases – just as you can have redundant code in a computer program.

But until you are satisfied that the words and phrases are redundant, the safe presumption is that they are purposeful.

For what is written with care should be read with care.

So you should ask: what is that word or phrase doing?

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And now we come to the difficult bit.

The second ingredient of close reading.

This is working out what is not said – or what could have been said differently, but was not.

For it is one thing to read carefully what is written, but it is another to work out what is not there.

Here we are not only concerned with complete, glaring omissions.

It is more about the words and phrases that could have been used – but were not.

It is about the text in the context of its function and of the relationship between the author(s) and its audiences.

Here context is important.

Some judges like to say “context is everything”.

This is true – but this does not mean context is anything.

The context of a text needs to relate to that text – and, in particular, the function of the text, the purpose(s) of its content, the audiences of the text, and the position (and subjective personal and partisan interests) of its author(s).

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Now let’s look again at Johnson’s letter to the liaison committee.

That letter, in response to a direct and plain query, could have said (and ideally should have said):

1. Alexander Lebedev’s name and his position as a former KGB spy;

2. That the then Foreign Secretary meeting Alexander Lebedev at the party was unexpected;

3. But in any case, that no official business was discussed between Alexander Lebedev and the then Foreign Secretary; and

4. That the meeting was, of course, reported to officials.

Had the Prime Minister been able to give this (ideal) response then he would have done so.

But he did not.

And he did not because he could not.

(And, although Johnson is a habitual and fluent liar, he could not say something in this exchange and in this formal document which may emerge as untrue.)

He did not want to say plainly: “As Foreign Secretary, I was not surprised to meet Alexander Lebedev, a former KGB spy, at a party where government business may have been discussed, and I did not subsequently report this meeting to officials”.

One can understand why.

So, applying the above approach, we can work out the following.

The function of his letter was to reply to the committee’s query.

The purpose of the content of the letter was to give the impression that he was answering the question posed.

Care and effort went into the words and phrases used.

As a ministerial letter, it would have been authored by Johnson in negotiation with his advisers, but he would have had final approval.

The audience for the letter is the committee and the public – and, crucially, individuals who may have evidence that government business was discussed.

We know what he could (and should) have said in an ideal world in response to the query – that he had not met a former KGB spy and he had not discussed government business without officials present.

We also know what he could have said, if he were writing plainly – that he had met a former KGB spy and may have discussed government business without officials present, and he did not report this meeting.

By comparing what he could (and should) have been able to say with what he did say we can see a gap.

Johnson went out of his way not to mention Alexander Lebedev by name, let alone his position as a former KGB spy.

Johnson went out of his way not to say that the meeting was unexpected – saying only that it was not “pre-arranged”.

Johnson went out of his way not to say plainly that official business was not discussed, but instead used a formulation “[a]s far as I am aware” that makes no sense as he would presumably have complete knowledge of any conversation to which he was a party.

And Johnson goes out of his way to give the impression that things were properly reported when he did not report the conversation to officials subsequently.

All this can be worked out not by just reading what the letter says but by comparing what the letter said with what it should have said in response to the query.

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A close reading of any formal document is a combination of reading carefully what is said and considering carefully what could have been said but was not.

The danger of this approach, of course, is that one can speculate or project things.

This is why understanding the function of the document and the purpose(s) of its content are important.

Regard to function and purpose provides the guide to measure what is said against what is not said – and it also provides the discipline against speculation and projection.

Nixon’s resignation letter requires little or no gloss.

May’s Article 50 notification letter indicates that five pages of verbiage requires some explanation by something other than the notification itself.

Johnson’s letter to the liaison committee contained twelve paragraphs in response to a simple query, seeking to mask and misdirect from the true situation – that he had, as Foreign Secretary, met a former KGB spy and was not able to say definitively no official business was discussed, and that this meeting was not subsequently reported to officials.

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In essence: a formal document is one where the document has been created with thought and care to serve a function, and with words and phrases chosen (and not chosen) by its author(s) so as to serve particular purposes before certain audiences.

And a close reading of that formal document is where you have regard to the thought and care that went into that document, and its context, working out why certain words and phrases were chosen and what things were not said instead.

Welcome to being a documents geek.

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Thank you for reading (closely or otherwise).

Please help this blog continue providing free-to-read close readings of documents, as well as independent commentary on constitutional matters and other law and policy topics.

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

“As far as I am aware, no Government business was discussed” – A close reading of Boris Johnson’s letter about the Lebedev meeting

26th July 2022

There are perhaps two stages to a close reading of a legal, formal or otherwise considered or negotiated document.

The first stage – sometimes overlooked – is to read what the document actually says (and not what you think or hope it says).

The questions to ask here are: What is the content? How is that content framed and conveyed? What propositions are put forward? How are paragraphs and sentences structured? What words are used?

And so on.

In essence: if thought has gone into compiling a text, thought should also go into reading that text.

The second stage is more difficult.

Here the reader needs to work out not what is said, but what is not said.

Why did the writer not say certain things which they otherwise would have said?

What were the words and phrases and sentences which could have been used, but were not?

Of course: this second stage can be prone to speculation or projection or other forms of (over-)elaborate analysis.

But it can be a useful exercise when one has a document where the wording seems, well, strained or odd.

In short: why does the text say this – and not something else?

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Now we come to a letter that was placed today into the public domain.

The letter is from the current (and departing) Prime Minister Boris Johnson and it is on his official headed paper.

You can read the letter here.

The portion of the letter with which this blogpost is concerned is that under “Question 41“.

The background to this is as follows: on or about 28 April 2018, Boris Johnson, then Foreign Secretary, attended a social event in Italy where one of the other guests was Alexander Lebedev, a former KGB agent.

He was asked about this when he appeared at the recent liaison committee of the House of Commons on 6 July 2022:

There was a follow-up question:

This was not a comfortable moment for the Prime Minister – and it was at the time he was being forced to announce his upcoming departure as Prime Minister.

You will see from the exchanges above that Johnson said he would write to the committee – but in any case the chair of the committee wrote to the Prime Minister on 8 July 2022 expressly asking for – among other things – the Prime Minister to write on the matter of:

“Whether you met with Alexander Lebedev on 28 April 2018 without officials, and whether officials were subsequently informed of the meeting”

The question being asked was plain – and precise.

*

In his letter dated 21 July 2022 (and published by the committee today) devotes over a page of a four-page letter to responding to this question:

 

*

You will see the response to the question asked comprises twelve paragraphs.

And you will see that from the fifth paragraph onwards, the information provided is not the information requested.

Indeed, if you look at the final paragraph, the Prime Minister is providing information about who Labour politicians have met.

Only the first four paragraphs of the response relate to the request and should be read again:

You can read these paragraphs as well as anyone, and it is worth taking time to read what they say.

And what they do not say.

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For some reason, there is no mention of Alexander Lebedev by name – he is instead alluded to as “Evgeny Lebedev’s father”.

Johnson was asked both in the committee and in the chair’s subsequent letter whether officials were subsequently informed of the meeting.

Johnson’s letter places emphasis on a notification made about hospitality and that officials were “aware” in advance that he was attending.

You will see both the notification and the “aware” comment are about the social event generally – and not the meeting with Alexander Lebedev in particular.

Johnson cannot bring himself to say plainly that officials were not subsequently informed of the meeting with Alexander Lebedev.

The admission is instead buried in the following text:

In plain language: the Prime Minister did not subsequently notify officials of his meeting with Alexander Lebedev.

Johnson seeks to misdirect the reader with mentions of a notification about hospitality and officials being “aware” in advance of the social event generally, but the answer to the straight question is that he did not notify officials.

Indeed, there is no reason to believe from the content of this letter that officials were aware in advance that Alexander Lebedev would be in attendance.

Johnson further states the meeting with Alexander Lebedev was “not a formal meeting, nor something that was pre-arranged”.

This wording is odd.

That it was not “a formal meeting” is no more than a tautology that this was a social event – it is not a new point, but a dressing up of a point already made.

And that the meeting was not “pre-arranged” does not preclude the meeting as being expected.

Johnson does not say he was surprised to see Alexander Lebedev, which he could have said.

*

The most remarkable phrase in the letter, however, is that “[a]s far as I am aware, no Government business was discussed”.

That formulation is strained in the extreme, as it would be within the Prime Minister’s knowledge what was discussed and what was not.

The “[a]s far as I am aware” proviso makes sense in a formal document when a person cannot have complete knowledge of a thing themselves.

But Johnson would presumably have complete knowledge of what he said.

Note also the Prime Minister does not simply say “[N]o Government business was discussed”.

If the Prime Minister could have said just that, he would have done so – and put the matter beyond any doubt.

But he did not say that, and that is presumably because he cannot say that.

He also does not use the more common “[a]s far as I can recollect” proviso.

The only reasonable explanation for the proviso “[a]s far as I am aware” in that statement is that the Prime Minister is aware of the possibility that government business was discussed, and so he does not want to be pinned down to a more committed answer that could mislead parliament.

*

In summary, Boris Johnson did not notify officials that he had met Alexander Lebedev, and he cannot recall exactly what was discussed.

That is the only sensible interpretation and construction on the letter he has sent to the liaison committee, even though the letter goes out of its way not to mention Alexander Lebedev, and goes out of its way not to say expressly that officials were not subsequently notified, and goes out of its way to implicitly accept government business may have been discussed.

Instead of the twelve paragraphs of misdirection and waffle he could have said:

“I did not notify officials that I had met Alexander Lebedev, and I cannot recall exactly what was discussed.”

Instead, none of the information which the committee asked for directly is provided directly.

*

There is something strange and worrying here.

If the meeting in Italy was straightforward and above board, then the response published today would also have been straightforward and open.

But the response was not – and that presumably is because the meeting was not.

Curious stuff.

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Thank you for reading – and please help this blog continue providing free-to-read, independent commentary on constitutional matters and other law and policy topics.

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

Some thoughts about blogging and “style”

 1st July 2022

You will be somewhat bemused to know that this blog has featured in a style-guide for writing.

Yes, I know.

But it is true:

It would appear that this blog is regarded as having a distinctive style – and that the distinctive style is, in turn, regarded as being helpful to those interested in the topics covered by this blog.

So, on this Friday afternoon – as I put together some longer pieces for next week – I thought it may interest some of you for me to write something about why this blog has this distinctive (that is, peculiar) style.

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The main reason I write in one-sentence paragraphs on this blog is because it suits me – for it helps me organise and then express my thoughts.

With a one-sentence paragraph there is no hiding place for the author.

Either the one-sentence paragraph puts forward a worthwhile proposition or it does not.

With longer paragraphs – with multiple clauses and sentences – there is scope for waffle, inexactness, and evasion.

And so one-sentence paragraphs are a means of keeping an author sharp – they are a discipline.

Even if nobody read this blog – and one happy day constitutional law may again be so dull that nobody will read blogs about law and policy – I would still write in this style on this blog.

That may well be selfish, but it is true.

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And just as there is no hiding place in each one-sentence paragraph this also means there is no hiding place in a sequence of one-sentence paragraphs.

If there is a fault in the reasoning or the evidence, it will stand out.

The weakness in the chain will be evident – glaringly so.

This again helps me as a writer, but it also helps you as a reader.

If I make a mistake in my reasoning or with my evidence, you can quickly work out where I have gone astray.

You can either then dismiss the point I am seeking to convey or engage in the comments below (or on Twitter).

And so if my propositions are weak and/or my observations and illustrations banal and/or my arguments unsound, you will at least know where the fault is.

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Another advantage of short paragraphs – one-sentence or not – is that they are easier to read on the screen.

They are – for want of a better word – scrollable.

A reader may read five successive short paragraphs, but he or she may be put off from reading the same sentences in one long paragraph.

This is often not the case when reading from physical pages, but when you are reading from computer screen and other electronic devices, short crisp paragraphs are often more readable.

And this is especially helpful when there is a lot of ‘white space’ – and thanks to the generosity of my Patreon and Paypal supporters, this blog has not – yet – resorted to commercial advertising to blight the nice white space surrounding the words.

For to misquote a clever philosopher: there should be nothing outside the text.

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Another reason why I write like this is that I was brought up in tabloid-reading households.

You may not like such newspapers – and you may prefer broadsheets with their correspondingly broad passages.

But writing brisk short sentences about current affairs is a skill in and of itself, and for most of my childhood that is how I read both news and comment.

(The veteran newspaperman Neil Wallis once told me he had guessed from my blogging that I had been brought up in a tabloid-reading household, and he was right.)

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So there are advantages of blogging in this way, both for the author and for the readers.

But.

It is not the ‘right’ way.

And this is because there is no ‘right’ way.

There are instead ways of blogging that work for both writers and readers – and there are ways that do not.

Some of the gods of British blogging – such as Chris Grey on Brexit and Lawrence Freedman on strategy and war – provide highly readable, compelling blogs with detailed multi-sentence paragraphs.

As did the greatest of all British legal bloggers, the late Sir Henry Brooke – who, wonderfully, came to blogging after being a court of appeal judge.

His blog – which is thankfully still online years after his death – is a must-read for anyone interested in the law.

So there are a number of ways of blogging.

It all comes down to what suits the writer, and to what suits the readers (if any).

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But.

There are disadvantages of this blog’s approach.

Some propositions are complex and so require more than can be packed into one sentence.

You then get odd-looking long sentences that try so hard to keep everything in one sentence – but they are obviously contrived, and they are as awkward to read as they are awkward to write, and so should never have been started in the first place; and they often resort to sub-clauses just to keep to the somewhat artificial one-sentence rule.

Such sentences should be avoided.

As Orwell averred after offering his rules for good political writing:

“Break any of these rules sooner than say anything outright barbarous.”

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So the style of this blog is adopted mainly for the selfish reason that it helps me to think clearly and to organise and express those thoughts.

And if blogging in multi-sentence paragraphs helped me do the same, then I would blog like that instead.

One-sentence paragraphs are therefore not a model, but just a technique.

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Overall, the best guide to good writing is that it is not about the writing, but about the thinking.

If you think clearly, you will tend to write (and speak) clearly.

And if you do not think clearly, then no style-guide will help you.

For, as the techies say: garbage in, garbage out.

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Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

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Who watches the watchmen?

Summer Solstice 2022

Over at Al Jazeera – where I am pleased to write posts from a liberal constitutionalist perspective – I have written about what the Lord Geidt resignation tells us about British politics.

Somewhat flatteringly, that post has been chosen as a ‘best column’ by The Week magazine:

From a personal perspective, the post is one of very few I have written for the mainstream media with which I am happy.

(One day I will get the hang of writing paragraphs with more than one sentence.)

On the back of that Al Jazeera post I thought I would add here some thoughts about constitutionalism and absolute power.

For, as Lord Acton famously once said (and to which I allude in the Al Jazeera post), power tends to corrupt and absolute power corrupts absolutely.

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One problem with many – if not most – proposed or imagined political systems is that there is little or nothing to check or balance those who will have the most power under that system.

The hope is presumably that those with the most power will be selfless patriots – good kings, good chaps, and so on.

But, of course, what will tend to happen is that those with power will be corrupted, and those with absolute power will be corrupted absolutely.

And not just corrupted in a narrow financial sense, but in the broader sense of becoming debased.

In this way Orwell’s pigs in Animal Farm may be a more realistic guide to what happens with sustained one party control than the focused O’Brien in Nineteen Eighty-four.

Alan Moore – who I mention expressly in the Al Jazeera post – has repeatedly shown in his stories what can happen when individuals get unchecked power.

In Watchmen – there is a character with absolute superpowers who goes quite mad, a character with immense wealth who becomes immensely destructive, and a character with complete government protection who does whatever he wants to whoever he wants.

And these are the supposed good guys – and none of them is the supposedly unhinged one, Rorschach.

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Switching from imagined communities to historical examples, there are actually few examples of that most peculiar figure ‘the enlightened despot’.

What we do have are despots with good P.R. and gullible historians.

For if a leader is ‘enlightened’, they do not need to be a despot.

Even the supposed good guys of the modern age – the British – have a wretched record if you look closely enough – for example in Kenya, in Northern Ireland, and in Afghanistan and Iraq.

The documented evidence of torture and war crimes by the British cannot be denied, but few realise or care.

For that is what happens when you have good P.R. and gullible historians.

Even the popular comedy meme about ‘Are we the bad guys?’ is dressed in foreign uniforms.

But corruption – in both its narrow and broad sense – is not just about what happens to foreigners.

It can happen in any polity – and with any rulers, if they believe they can get away with it.

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That is why any political system which confers great power on any individuals is suspect.

Yes, you may have a selfless patriot as an initial ruler, but what do you get when the selfless patriots die away?

The primary job of any liberal constitution is not that it provides and allocates powers, but that it effectively checks and balances those with powers.

It assumes the worst – even if there are hopes for the best.

And if those with the greatest powers in any political system are without checks and balances then it should not come as a surprise that powers are abused.

Indeed, it would be more of a surprise if they were not.

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The curious resignation letter of Lord Geidt – what it says, what it does not say, and what it signifies

16th June 2022

Lord Geidt is an unlikely man of steel.

Yet it appears that steel was the reason for his resignation.

And so, as a discreet but embarrassed courtier, he has chosen to exit via the ‘trade’ route.

(Photo by Chance Agrella from Freerange Stock – donation made.)

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See this outstanding and informative thread from the estimable trade expert Sam Lowe for the practical background to this matter:

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But what can we make of the resignation letter and the reply?

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Lord Geidt comes from a diplomatic background.

And diplomats, like lawyers, are wordsmiths.

(It is just that their wordsmithery is often about imprecision and ambiguity, in contrast to the lawyerly lust for precision and clarity.)

He will have chosen his words and formulations carefully.

So let us look at the operative paragraph:

An “impossible and odious position” is quite a striking thing to say.

(Though “deliberate and purposeful” seems a tautology.)

The Prime Minister’s letter sets out more about the request for advice:

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There is a lot here that does not make immediate sense.

Lord Geidt for all his many merits is not a lawyer, still less a trade lawyer.

There would be no obvious reason for “tasking” him for a view on something to do with the legality of tariffs.

The question must have come before him another way.

Some are speculating that it may be because of party donations, but this appears to be being denied (though the denial is in a curious form):

My current suspicion is that there may have been a request for a ministerial direction to do something with which an official did not feel comfortable, which then somehow got referred to Lord Geidt.

Who knows.

But connecting the [X] of a steel tariffs issue to the [Y] of an ethics adviser resigning is not easy.

And this is the case even if Lord Geidt simply used this issue as a pretext to resign.

There is something missing here.

*

But.

What is not missing here, however, is that this incident shows that our current Prime Minister is at best indifferent to two rules-based regimes.

The first is the Ministerial Code – which, as this blog has previously averred, is a constitutional nonsense, as it offers no real check or balance whatsoever to any Prime Minister.

The second is the rules-based system of the World Trade Organisation.

You may recall government-supporters during Brexit clamouring for the United Kingdom to trade on ‘WTO terms’.

It often seemed they did not know what that actually meant, and it was said because it sounded good.

Well.

It seems that the government of the United Kingdom is as contemptuous of this type of international law as it is of others.

This very week we have seen the government of the United Kingdom seek to break international law with the Northern Irish Protocol Bill and make aggressive noises about compliance with the orders of the European Court of Human Rights.

The rules of the World Trade Organisation are now the third international law regime the government of the United Kingdom want to be free from this week – and it is still only Thursday lunchtime.

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At the heart of this government is a sense of lawlessness – that in area after area there is the view that rules do not and should not apply.

The resignation of Lord Geidt seems to be a double-whammy of two such areas – the Ministerial Code and WTO rules.

But it could have been compliance with the orders of the European Court of Human Rights, or compliance with the Northern Irish Protocol, or compliance with Covid regulations, and so on.

And so on.

Perhaps we will find out more about the circumstances of this particular resignation.

But we already know from previous resignations that much of what has happened is already all too clear.

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The curious clause one of the Northern Irish Protocol Bill

14th June 2022

Let us start at the beginning, for it is a very good place to start.

And at the beginning of the Northern Irish Protocol Bill, just after the title, purposes, and preamble, is clause 1.

(A ‘clause’ is what becomes a ‘section’ by legal magic when a Bill becomes an Act.)

Clause 1 provides:

There will be time to look at the other provisions of this Bill, but let us take a moment to look at clause 1.

The content of the clause is not part of the title, purposes or preamble to the Bill.

No, we can check, and it has a clause number.

Clause 1 is intended to be part of statute, to have the force of primary legislation.

But.

It does not seem to be law.

I do not know what it is.

It is called ‘Introduction’ – as if it was part of some Penguin Classic.

But the the title, purposes and preamble are usually all the ‘introduction’ a statute needs.

For example. the purposes tell us that the Bill is to make “provision about the effect in domestic law of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes.”

That will tell a court what the Act will be for, if a court needs an introductory aid to construction or interpretation of any of the provisions.

The provisions of this clause 1 do not create obligations, or confer any discretions or rights.

What are they doing?

Are they capable of legal effect, in and of themselves?

Are they intended to have legal effect, in and of themselves?

Are they intended to be aids to construction or interpretation of any of other provisions, in the case of ambiguity or doubt?

If so, how?

What are they supposed to be?

They read more like a policy statement or explanatory note for the Bill – but these are separate documents that the government has also published.

The published explanatory notes do not help us:

“[S]ummarises”?

Is the purpose of a clause to “summarise”?

“[M]akes clear”?

Oh dear gods.

If the rest of the Bill needs a provision like this so as to “make” things “clear” then the drafting of the other provisions needs to be done again.

Perhaps clause 1 is just to get “Union with Ireland Act 1800 and the Act of Union (Ireland) 1800” somehow onto the face of the Bill – indeed on to page one – so as to placate unionists?

And, applying the rule against surplusage – that courts give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant (definition taken from here) – what actual difference does clause 1 make to the rest of the Bill?

If clause 1 were – say – to be deleted, what difference would it make to the legal effect of the Bill once enacted?

The fear must be that the creeping use of legislation as a form of political propaganda – press releases by other means – has now infected the very statutory provisions themselves.

It is difficult to imagine what the parliamentary drafter intends by clause 1 as to its legal effect.

Perhaps this has happened with other Bills – and, if so, please leave comments and links below with examples.

Perhaps it a commonplace, and I have missed it in other legislation.

But it does not seem right.

And it perhaps suggests that the government does not sincerely intend to place this Bill on the statute book, and that the Bill as a whole – and not just clause 1 – is merely for political consumption.

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POSTSCRIPT

 

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The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.

This post is not about the report in detail, but about the current Prime Minister’s response.

It is a response that Boris Johnson often gives at times of trouble.

It is the response of saying that he ‘takes full responsibility’.

What could this phrase mean?

Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.

Oh no – this is ‘full’ responsibility.

Rhetorically, it is an impressive statement – to which some may even nod-along.

But it is hard, if not impossible, to see what it means.

For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?

What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.

What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.

There is not any real difference; nothing changes.

If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.

This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.

In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.

It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.

For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.

The action the Prime Minister would perform is to resign.

And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.

Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.

So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.

That is to say: no constitutional meaning at all.

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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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