Blaming the blob

24th April 2023

There is an enduring myth that great political reforms can be achieved while antagonising those expected to put those reforms into practice.

That a lone genius or “hard” taskmaster wondering around, say, Whitehall can effect fundamental social and economic changes while also battling and even belittling the civil service.

This is not to say that such a figure cannot have political impact: headlines can be produced and even votes can be won.

But to actually achieve change on a national – or even regional and local – level requires administration.

In essence: ministers and their advisers need to have senior officials and other civil servants on their side.

Senior officials and other civil servants may not agree personally with the politics of the government of the day (and when I was a government lawyer I was certainly not a Blairite, and I still am not), but most public servants do take being non-partisan seriously in their work.

Wise ministers – of all major parties – know this.

Having a “culture war” against the “blob” is therefore not a form of policy-making and implementation, but a substitute for it.

It is what one does when one actually is not serious about effecting reforms.

Since 2016, in particular, there have been many attacks on, and removals from, the senior civil service.

And when policies fail because of the automatic operation of, well, reality, “remainer” and “obstructive” and “activist” civil servants are blamed instead.

But such complaints are the sounds of failure.

What those wanting to drive through fundamental change need to do is work with public servants rather than against them.

Of course, there will be group-think and conventional wisdom, but a minister through their private office and with intelligence can challenge and offset such things without confrontation or rancour.

Ministers and their advisers would do better to remember that they can either achieve change or “take on” their departments, but not both.

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The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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Waiting for yet another report

20th April 2023

This evening those who take an interest in Westminster politics are waiting for yet another report.

The report – this time into allegations against Dominic Raab, which he denies – has been delivered.

It is reported Raab has read it and sees no reason to resign, and so it is now up to the Prime Minister whether Raab should be sacked, and the Prime Minister has not decided.

It seems not vey long ago we were all waiting for the Sue Gray report, and there have been various other reports and inquiries, some of which have been quietly abandoned.

The purpose of this short post is not to preempt the report: I have not seen it and, as of today, almost certainly neither have you.

Instead it is to mark that, again, reports and inquiries are taking the place of traditional politics.

Perhaps this practice is a good thing: that information is compiled before a decision is made.

But perhaps it also a bad thing: for it enables ministers and others to avoid and even evade responsibility and accountability with an investigation takes place.

It almost a contracting-out of democratic and representative functions, at least in the short- to medium-term.

And the practice is now as much a part of our polity as the more formal elements that would be detailed in a constitutional text book.

Somebody should maybe commission a report into the practice, so that we too can put off doing anything about it.

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A look at why Fox and Dominion settled

19th April 2023

Almost all civil litigation ends before a trial takes place.

Civil litigation – where one party sues another person in respect of a legal wrong – is distinct from criminal litigation and much public law litigation where it is expected that some court hearing takes place.

In civil litigation, weak cases tend to be withdrawn at an early stage, while stronger cases tend to get settled.

Indeed, civil litigation is often a structured form of deal-making, providing a hard procedural framework for negotiations and compromise.

This is because of two things.

First, it is usually plain at an early stage if the claimant actually has any sound claim at law, or a defendant a sound defence.

Second, before any trial, it is also then usually plain how strong the evidence is – witness evidence, expert evidence, documentary evidence, exhibits – for both parties.

Of course, dramatic things can happen at a trial – some stunning exercise in cross-examination, or some unfortunate admission – that can make a difference to a case.

But usually, any competent litigator (or, in the United States, trial lawyer) will be able to advise weeks before any trial on the likelihood of success or failure.

Pre-trial stage is where the most significant litigation work takes place – not in the theatrical, rhetorical flourishes of counsel in the courtroom.

But in the methodical grunt-work of getting a case prepared for trial.

For the litigation paradox is this: you are more likely to get a satisfactory result before trial by preparing to go for trial.

And you are less likely to get a satisfactory result before trial if it is obvious you are not willing or able to go for trial.

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There are exceptions to the general rule that almost all civil litigation ends before a trial takes place.

Sometimes there is an area of law that is genuinely unclear, and so neither party can be sure which way a court will go, and so a judgment is needed.

Sometimes there is a need for a property or other legal right to be judicially and publicly determined.

Sometimes you have a party who simply wants their day in court, regardless of legal advice to settle.

And sometimes, a party may have got itself into such an awful legal costs tangle that it has to, in effect, bet on the outcome of a trial as the least bad outcome.

But these (and some other) exceptions aside: almost all civil litigation ends before a trial takes place.

The only questions are when and how the litigation ends.

And this may surprise some outsiders, for whom litigation is about what happens in a courtroom.

But like battles and wars which are won and lost before any confrontation takes place, so is most civil litigation.

This is, in a way, the art of law.

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None of the above will be news to long-term readers of this blog.

But the latest application of the truth that almost all civil litigation ends before a trial takes place is the settlement in the United States of the Dominion lawsuit against Fox.

The settlement was in the days before a trial was scheduled to take place.

On the face of it, this is not a case that should have got as far as it did.

In particular, it would appear that the evidence was strongly on the side of Dominion – especially the disclosures about those at Fox knowingly broadcasting untruths.

But.

The lateness of the settlement indicates two things.

First, either party – or both parties – were playing hard.

And this would not be a surprise given the amounts – and reputations – at stake.

Dominion, in particular, conveyed an impression that it wanted public vindication – and so would be committed to go to court if there was not a public apology.

As it happens, there seems not to have been a public apology – but Dominion’s demand for one no doubt led to Fox having to settle for a higher amount than it would have done otherwise.

Both sides knew that a public admission of wrongdoing was Fox’s weak point – in a way that, in the United Kingdom, News International has been careful not to admit whether certain newspapers were involved in phone hacking.

On the other hand, Dominion had its own weak point.

And this was possibly the second reason for the lateness of the settlement.

To win at court, Dominion had to go beyond showing that Fox were aware that it was broadcasting untruths.

Dominion had to show “malice” – which in the United States, as in England, is a high and difficult threshold to meet.

Malice is a state of mind, like dishonesty in a fraud case.

And short of an admission, malice has to be somehow shown by inference from the available evidence.

That is often not easy regardless of an abundance of evidence of wrongdoing – and thereby there is an element of uncertainty for both sides: will they, won’t they, etc.

And both sides knew about this uncertainty too.

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Fox and Dominion were in a litigation struggle.

Fox wanted to avoid any public acknowledgment of wrongdoing, but the courtroom clock was ticking louder and louder, and in turn Dominion realised their case was not an easy win because of the requirement to show malice.

But Dominion seemed to have convinced Fox that it was committed to getting public vindication.

And so Fox settled, for an extraordinarily high amount.

As such it has deprived some from the spectacle of a courtroom drama and possible public humiliation for individuals connected with Fox.

But for connoisseurs of civil litigation – who know trials are unlikely – the pre-trial litigation struggle was spectacle enough.

And it was well-played by Dominion.

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The next eighteen months

18th April 2023

The next general election, we are told, is likely to be within the next eighteen months.

The last general election, back in December 2019, returned the Conservatives with a whopping, substantial majority.

That majority, in turn, can be seen as having been the electoral dividend of Brexit – of getting Brexit “done” – and also of seeing off the Faragist Ukip and then Brexit parties, as well as routing Corbyn’s Labour Party.

It was, in political turns, a highly successful partisan political manoeuvre.

Boris Johnson and his party in December 2019 had the very greatest prize the constitution of the United Kingdom could bestow: a large single-party majority in the House of Commons.

Something the Conservative party had rarely had since the governments of Margaret Thatcher.

And what has the governing party done with this huge majority since 2019?

The government has ****ed it away.

The Conservatives have, so far, nothing substantial to show for this big majority.

Zilch.

And time is now running out.

It may well be that the Conservatives will not have another opportunity with such a large majority – and some Conservatives perhaps know it.

There is perhaps not enough time for the governing party to force through any controversial legislation –  especially if there is opposition in the House of Lords.

But Conservative ministers will know that this is probably their last chance: to validate the the 2019 general election result, and perhaps to validate the Brexit that made that election result possible.

As the clock runs down, we can expect louder and more extreme positions to be announced – on “culture wars” and other things – notwithstanding there is almost no time to get legislation through.

There will be attempts to use (and misuse) ministerial powers and delegated legislation.

The government will be in a hurry.

For not only is the next general election at stake, but perhaps the validity of the whole enterprise of Brexit.

The next eighteen months are going to be frantic and noisy.

The more time runs out, the more frantic and noisy the government party will become.

And, if the Conservatives do lose the next general election, that frantic noise may come to be seen in retrospect as a death rattle.

 

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After Twitter.

17th April 2023

Social media, now that it has been invented, cannot be un-invented.

Anyone with the resources and inclination, and with access to the internet, can create a site where others can post things for others to see.

The technology is not, shall we say, rocket science.

Of course, there may come a time when few, if any, people will have the inclination to put together a social media platform.

There may also be a time when few, if any, people would want to devote scarce resources to providing such a platform.

And people may simply get bored.

Just because a communications technology exists, it does not mean that people will keep on using it.

And from pamphleteering to CB radio, and from carrier pigeons to telegrams, there are many examples of communications media that fell out of fairly widespread use.

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A barrister friend recently asked me what would be the next big platform after Twitter, as if I would somehow be in the know.

I said that it was unlikely there would be another single platform that would serve so many people in so many ways.

Already social media is beginning to fragment: LinkedIn has improved and so now not too bad for work-related (and thereby law-related) discussions; Mastodon is a haven for nerds and geeks and for those of us who know the difference; Facebook is the ghost of social media past, looking down at the graves of Friends Reunited and My Space; Instagram is for those who are impossibly beautiful or have impossibly beautiful pets; and TikTok can be as witty and informative as your preferences and the algorithms and the censors and the templates allow.

Why would people move (back) to a one size fits no-one single platform?

Especially just for typing in character-limited text boxes.

Twitter will (probably) not die, but it will never be the popular and splendid hive it once was.

And there will be those (of us) who will never quite abandon the platform.

But I cannot see why anyone would use it now, from scratch, given the other available platforms.

As the novelty of social media wears away, and it becomes just another form of communication, it will becomes as dated (or as timeless) as any other form of broadcast and publication.

It will no longer be special.

One interesting question, perhaps, is whether social media lasted long enough to fatally undermine more traditional broadcasters and publishers.

People will not be buying newspapers again in large numbers, and nor will they just want to read or watch what others schedule for them to read or watch.

There has been a fundamental shift in the means of broadcasting and publication, just as a Marxist would talk of a shift in the means of production and distribution.

And that shift also cannot be un-invented.

So something new is ahead, but we do not know what it is.

But whatever it is, it will probably not turn out according to expectations.

And so, at least in that one respect, it will be just like rocket science.

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Apologies for the gap over the Easter holidays: I took some extra time to rest and recuperate, but now I am back to normal.

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Easter

Maundy Thursday 2023

The story of the trial of Jesus of Nazareth has always fascinated me.

I happen to be a non-militant atheist but that hardly matters, for the gospels’ narrative(s) of the arrest, trial and punishment of Jesus of Nazareth is(/are) set out in largely secular terms.

Nothing – or almost nothing – depends on any miracle or divine intervention.

(This contrasts with the narrative(s) before Palm Sunday and after the crucifixion.)

It is essentially a human story – about what humans did to to someone who they saw as human.

Of course, it is difficult to make sense of some of the narrative(s) – not least about how someone accused of those crimes ended up being executed by the imperial power by means of crucifixion.

One day, perhaps, I will set out more thoughts about this trial process – and in a way which is satisfactory (I hope) to those (of you) who have faith as well as to those (of us) who do not.

But in the meantime, I mention this to show that even where there are fundamental differences there can be common ground.

And it is always good to find it if you can.

Happy Easter, or Passover, or holidays, to all my followers – and I will return to the blog on Tuesday.

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

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