Category: Words and Things

The misconceived politics of “Law and Order!” and “Red Tape!”

14th April 2022

On theme of this blog is the relationship between political discourse and underlying law and policy.

For example, the difference between “Law and Order!” as a slogan, complete with capital letters and an exclamation mark, and – well – law and order.

A contrast, of course, which is very telling this week as the leader of the party of “Law and Order!” conceded he had broken the criminal law on government property, and only one minister resigned.

Law and order is for other people.

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Other phrases – again complete with capital letters and exclamation marks, are “Health and Safety!” and “Red Tape!”.

And here too the political vocabulary plays strange things with reality.

Over at the Guardian, there is a fascinating and informative article by the deputy news editor of Inside Housing on the Grenfell inquiry, Lucie Heath.

Heath says:

“the inquiry has consistently painted a damning picture of the deregulation drive that was a key focus during Cameron’s time as prime minister.

“The obsession with abolishing red tape saw ministers at that time ignoring warning signs about a growing building safety crisis, and civil servants too disaffected to speak up.”

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Rarely a month goes by without some minister getting easy applause for saying that we should get rid of “Red Tape!”

Dynamic words are often used, such as “unleash” or “unshackle”.

But such words are not an articulation of a policy, but a substitute for one.

And usually those who speak generally about cutting “Red Tape!” are unable to provide particularised examples.

Of course, some rules and regulations need to be revisited – especially those that have been put in place because of that other political phrase “Something Must Be Done!” – but this should be conducted on a case-by-case basis.

Regulations – in and of themselves – are neither inherently bad nor inherently good.

And getting rid of regulations – or not taking regulations seriously – for the sake of it is just as misconceived as putting in regulations for the sake of it.

Sometimes – as is being uncovered by this inquiry – what seems like mere “Red Tape!” can be very important indeed.

And so just as we would have better politics if politicians and the media did not confuse “Law and Order!” with law and order, we would also benefit if we did not clap and cheer on attacks on “Red Tape!” but looked at each case to see if regulations were needed or not.

If so, we would be “unleashing” or “unshackling” sensible political discourse.

And wouldn’t that be a thing?

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Being duly diligent about the phrase ‘due diligence’

23rd February 2022

Another day, another phrase for us to examine.

Today the phrase is ‘due diligence’  – a phrase that appears to be used in politics by those hoping it means something that it does not.

Here is the example from today:

The phrase is a nod-along word in politics, something said to reassure the listener.

It sounds impressive, even formal.

But.

Those who invoke the phrase need to be able to explain what they mean by it.

And it seems they cannot:

The phrase – to state the obvious – comprises two words.

Taking the second word first, it means that a person is being careful in respect of a certain matter: [x] is being diligent.

The first word ‘due’ then qualifies that diligence, so it means that person is not only being careful but that the person is being appropriately careful in a given circumstance: [x] is being duly diligent.

And so, anyone claiming to be duly diligent needs to be able to explain exactly how they are applying their diligence in a given situation.

In commercial and corporate legal practice, what constitutes being duly diligent can vary according to the nature of the investigation or inquiry in hand.

Some issues will require anxious scrutiny while others warrant less intense scrutiny.

And once the lawyers have done their ‘due diligence’ – that is, been duly diligent – they can advise their clients on the risks of a certain transaction or other course of action.

In all cases, those being duly diligent will be able to not only assert they have been careful but how they have gone about being careful.

So, coming back to Boris Johnson’s spokesperson and their buzz phrase of the day: what did they mean by ‘due diligence’?

It should mean that the Conservative party has not only been diligent in respect of donations to the Conservative party, but that the Conservative party also has method in its diligence: that certain questions have been asked and that certain risks have been assessed.

That the Conservative party has been – well – duly diligent.

And if the party has been duly diligent it then should be able to explain what that means in these circumstances.

For if that cannot be explained, it indicates that nothing is actually meant by the term – and it is mere flapdoodle.

And we can work this out by ourselves being – well – duly diligent about those who use the phrase ‘due diligence’.

https://twitter.com/davidallengreen/status/1496480334363435008

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The polity and the media

9th February 2022

There have been various communications revolutions in human history.

One, of course, is the development of human language – though we are still working out the extent to which this actually separates us from other animals capable of complex communications.

Another was the notion – which we appear not have had for most of the history of our species – that language can be written down and thereby stored or sent long distances.

This notion was instrumental in the development of more complex societies, as it meant for example than laws could be recorded and conveyed other than by oral tradition and transmission.

And about five hundred years ago, the development of movable type meant that things could get published and circulated on a scale that would not have been possible in days of manual reproduction of texts.

The most recent radical change in communication is one with which many reading this blog will be familiar.

In our lifetimes, when we were young, it was difficult-to-impossible to communicate with and publish to the world – unless you went through the gatekeepers of established newspapers, publishing houses or established broadcasters.

Yes: you could, perhaps, publish a vanity book, or pamphleteer outside McDonalds, or launch a pirate radio station in the North Sea.

But short of such extreme exertions, it was hard – as recently as the 1990s – to publish or broadcast whatever you wanted to the world.

And now, by reason of the internet and easy-to-use platforms, anyone with an online connection can, in principle, publish or broadcast on the widest possible scale.

We are now perhaps so familiar with this change that we forget how radical a shift this is.

And we are still reckoning the consequences.

One consequence is that our conventional ideas of politics and media are shifting – and we do not know for certain what will happen next.

The lack of gatekeepers on political discourse has a relationship with the populism-supporting figures such as Johnson and Trump.

Traditional mediating vehicles of transmission and participation – say, political parties and newspapers – are now in many respects redundant in these days of direct connections.

The law itself struggles to keep up – and our laws on social media are a hotchpotch of the unrealistic and outdated, but these laws also have no obvious alternative.

One hobgoblin of law and policy thinking is that nothing is new – we can see that the same will happen as before, as long as we know the right precedents.

How will our polity will be affected by these fundamental changes in politics, media and communications?

Will it mean a more liberal future?

Or a more authoritarian one?

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The joy of implicitly

17th January 2022

“Implicitly” is a mischievous word, a Puck of a word.

And those who say and hear such words must be careful, else this Puck of a word can cause unexpected confusion.

It is the word of the moment in British politics.

Last week, the Prime Minister told the House of Commons:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed implicitly that this was a work event, but with hindsight, I should have sent everyone back inside. ”

Now what was the naughty “implicitly” doing in that sentence?

The word must be there for some purpose, as this was something carefully worded that the Prime Minister read out.

Read that sentence again without the word:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed that this was a work event, but with hindsight, I should have sent everyone back inside. ”

This sentence is intelligible – and had he believed it was a work event, that is all that needed to be said.

But someone added the word “implicitly”.

Why?

It is not an especially legalistic word – so, although the sentence was plainly lawyered, it is not there for a specific legal purpose – or at least not one I can identify.

But presumably it is there to change meaning from the plain “I believed” into something else, something more vague and perhaps evasive.

A Westminster/Whitehall insider told me that the use of “implicitly believed” was very much the “don’t ask, don’t tell” of workplace gatherings.

A sort of plausible ambiguity – to let you get away with things that you would know, had you considered it, would not be the case.

In this way it would be a coded synonym for ‘conveniently’.

And the word seems to matter: for it has been repeated by Number 10 and other ministers – and so it is the line to take.

So: the word makes a difference to meaning – and it is a word that matters so much that its use is being forced upon press officers and ministers.

Maybe it means that the Prime Minister cannot show any explicit evidence that he had that view (or expressed that view), and so assumed it.

Here is Adam Wagner, the leading authority on the coronavirus regulations.

Or maybe Johnson is seeking to deftly avoid any legal liability?

Who knows.

But what is certain is that it matters to Johnson – and that he believes in this phraseology, well, implicitly.

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Why blog about law and policy?

22nd December 2021

This is just a brief post today about the difference between law and policy, and the relationship between the two.

First: the two are different.

Law is (ultimately) about what one can enforce or have recognised by a court.

Policy is about achieving certain outcomes that will not be (or may not be) achieved but for such policy.

Laws are often part of a policy – along with resources, prioritisation, organisation, communication and leadership.

And policy is also sometimes part of law: a court may, as a matter of ‘public policy’ avoid certain outcomes, such as preventing open justice or access to the courts.

You will see the law/policy balance in many areas, if you look carefully.

The difference between guidance and prohibitions in public health (and the blurring of the line).

Or the extent to which post-Brexit policy (or lack of policy) depends on changes to what was agreed in the withdrawal treaty and the Northern Irish protocol.

Or the current small-c approach of the Supreme Court to (supposed) judicial activism.

Or how supporters and opponents of abortion in the United States are going about legislating and litigating in ever-more ingenious ways.

For me this relationship between law and shaping policy, and between policy and shaping law, is fascinating.

Black letter law is dull – it is akin to reading sheet music and attempting to create the tune in your head.

Law, like music, comes alive in its performance.

And other than very technical areas of the law, law is about changing (or not changing) the world about us, so that certain outcomes happen instead of others.

So this is why I commentate about law and policy – it is a way of practically understanding what is (and what is not) going on.

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The Myth of the Dead Cats

9th December 2021

There is a certain Dickensian quality to the unfolding political events in the United Kingdom.

The events of a Christmas past – last Christmas – are illuminating the politics of Christmas present.

And, unlike other wrongs and transgressions by this wretched government, the facts and significance of last year’s Christmas party are readily grasped by the most unpolitical of people.

It has ‘cut through’.

Many people will not empathise with or understand those who may have their citizenship withdrawn, or want to make noisy protests, or want to make a hazardous channel crossing without drowning.

But, just like a day trip to see a castle, people easily understand about a works Christmas party.

This is not to say there are not more fundamentally bad things happening in law and policy at the moment.

This tweet summarises the current illiberal situation well:

The government of the United Kingdom is pushing forward legislation that will enable its officials to kill people without legal consequences, to prohibit meaningful protest, and to summarily remove citizenship from you because of where your family is from.

All this is as sickening and disconcerting as it can be.

But none of this has ‘cut through’.

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Whenever the government does more than one bad thing at once, somebody somewhere will comment that one of the things is ‘a dead cat’.

This is the phrase to describe a tactic of political distraction.

One of the bad things happening – usually the more trivial – will be described as a cunning misdirection, to distract us from a far less trivial thing.

But.

The thing about ‘a dead cat’ tactic is that it requires basic competence.

It relies on the notion that those in power are capable of doing something that works.

This is a perhaps comforting idea.

The reality is, at least with the current government, that there is no basic competence.

The true situation is that the government is doing lots of bad things at once, all over the place.

This is a scarier predicament.

When one of the bad things gets more public and media attention, it is not because a deliberate political tactic has worked.

It is instead because the thing in question just happens to be more understandable.

That is the only difference.

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This is a chaotic government.

It is tempting to posit some order or pattern – or conspiracy – as the alternative of absolute disorder is too horrible an idea to contemplate.

Indeed, it is an even more horrible prospect than a dead cat suddenly slammed upon a table.

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The Great Cat Massacre by Robert Darnton

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

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The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

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Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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“We do not recognise…” – on the increasingly popular evasive phrase used by government press offices

3rd December 2021

One of the joys of dealing with press officers is their insincerity.

They know they are being insincere and evasive, and you know they are being insincere and evasive.

But they are in their role, and you are in yours.

One of the increasing common formulations adopted by press officers is “We do not recognise [x]”.

The phrase is not a denial: it is not being stated that [x] is false.

Nor is it, of course, an admission.

It is something in between.

In this way the phrase is like “We do not admit” used by civil litigators – though in litigation you should only use that phase if the fact is actually outside of your knowledge, even if you do not accept it to be true.

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“We do not recognise [x]”.

So an alleged thing may be true and unwelcome – but a spokesperson has managed to find something about the thing alleged which means they can avoid admitting it without denying it.

https://twitter.com/davidallengreen/status/1466708215983398913

As a lawyer, I would just then want to ask “well, what do you recognise to be the case?”

Though so deft are press officers at their insincerity and evasion that this clever follow-up will also no doubt be dodged.

And so we have this phrase – joining the likes of “we do not want to get into speculation” and “we do not give a running commentary” – as a means by which government press officers pretend to you (and perhaps to themselves) that there a good reason for not providing the information or confirmation requested.

The shame of it is that government press officers are (or should be) public servants.

The provision of information to the press and the public, in the public interest, is what they are actually being paid to do (and for which many will get civil service pensions and even gongs).

Yet they seem to to take pride in not serving the public interest but the political interests of current ministers.

This uncomfortable truth should be stark and glaring to those who work in government press offices.

But they do not see it.

Perhaps they do not recognise it.

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How if a business issued the government’s “40 new hospitals” guidance it would be acting unlawfully

1st December 2021

The current government makes much of its manifesto promise that it will build ‘forty new hospitals’.

But at prime minister’s questions today, the opposition leader referred to the following guidance for public officials (or ‘playbook’ as it is formally described):

So a ‘new hospital’ includes an additional new clinical building where there is an existing hospital.

And even the refurbishment (or upgrade) of an existing hospital, as long as it looks different from the outside.

Both of these are jolly good things to be welcomed, but no sensible person would call them ‘new hospitals’.

Yet the government is requiring public officials to say this untruth.

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What if a business did this to consumers?

The Consumer Rights Act says things have to be as described.

Regulation 5 of the consumer regulations provides that an unfair commercial practice includes when a practice ‘in its overall presentation in any way deceives or is likely to deceive the average consumer in relation to…the quantity of the product’.

That reference to ‘overall presentation’ means that something hiding in the small print is not good enough as a legal escape.

If a business made such claims to a consumer then the law would regard this as ‘a misleading commercial practice’ and in breach of consumer protection rights.

Even without consumer law, claims that a major thing would be ‘new’ when it would either be merely an addition or a refurbishment would be likely – under general contract principles – to be either a misrepresentation that would mean the contract would be put aside or a material breach of a contract.

Indeed, some would go further and say such knowingly misleading statements in would even constitute fraud.

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The reason why these false claims are to be made so that it will appear that the governing party has met its own political manifesto commitment – and note how the manifesto itself distinguishes between upgrades and new hospitals:

‘Everyone in the UK should have the peace of mind and confidence that come from world-class health care – and so this new One Nation Conservative Government is giving the NHS its biggest ever cash boost, with 20 hospital upgrades and 40 new hospitals […]’

‘[…] have begun work on building 40 new hospitals across the country , as well as investing in hospital upgrades […]’

‘We will build and fund 40 new hospitals over the next 10 years. This is on top of the 20 hospital upgrades announced in the summer […]’.

Three times the promise is explicitly made in the manifesto.

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Of course, law is not politics, and political language is not to be held to legal(istic) standards.

But.

It is rare to have official guidance – even if called a ‘playbook’ – which sets out how public officials are to describe something falsely as a new hospital when it is not a new hospital.

Not only are ministers lying to us, but ministers are now requiring public officials to lie too.

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“Law and Order” vs law and order, “Free Trade” v free trade, and so on – but can the dislocation between political language and policy substance be healed?

27th November 2021

Consider the following areas of policy: law and order, taking control of our borders, free trade, and so on.

All of them sensible, everyday areas of policy.

Now take each of those phrases, and do a little magic: capitalise them, and add speech marks and an exclamation mark.

You now have: ‘Law and Order!‘, ‘Taking Control of our Borders!’, ‘Free Trade!’,  and so on.

This blog has previously averred at the distinction – indeed discrepancy – between law and order and ‘Law and Order!’: that those promoting the slogan do so at the expense of law and order in practice.

And this week this blog also set out why a strident and unilateral approach of ‘Taking Back Control’ is the opposite of a practical and effective border policy.

As for ‘Free Trade!’ the reality of Brexit is that it is perhaps the biggest single protectionist measure in modern British history, even though Breixters profess that they believe in free trade.

There is a fundamental dislocation of political language and policy substance.

But it is one thing to observe and note these tensions – contradictions – but it is another to know what to do about them.

And it is important that this dislocation is fixed, for it is difficult to see how we can have any sensible politics and policies when there is a basic dysfunction in our political discourse.

Maybe there is no solution.

Perhaps this fracture can never heal, and all the opponents of the current government can do is adopt a similarly cynical approach to language and policy.

If there is a solution then it no doubt has to be one which addresses the demand for (or at least tolerance of) meaningless politics by voters and the supply of meaningless politics by those in politics and the media.

One can hope that the next great reforming politician will be the one who reconnects political language and policy substance.

But there is no particular reason or evidence to think that we will get such a politician.

And so in the meantime, all we can do with this dislocation is (if you forgive the pun) brace ourselves.

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