What is “law and policy”?

23rd April 2019

As this blog is described as a “law and policy” blog, and I describe myself as a commentator on “law and policy”, it may be a good idea to explain what this means (at least what it means to me).

There are many excellent legal commentators out there who will explain the “black letter” law with accuracy and insight.

I sometimes do this, though I am not anywhere as good as they are.

There are also brilliant commentators who will show you what practical law is like in action – most notably the Secret Barrister but many others.

I can try to do this, but again I am nowhere as good as many already doing so.

What I try to do is different from either explaining the law or depicting what happens with courts and clients.

I enjoy looking at legal messes.

In other words: complex situations where there is uncertainty as to either the law (and/)or the outcomes of a legally related process.

I have a particular interest where the impact of the mess is on the wider public, and where the unfolding of the mess takes place in a policy and political context.

Policy takes place in a legal framework, and that legal framework in turn is set by policy choices and priorities. There is a reciprocal relationship between law and policy.

And politics, and everyday life, takes place within this joint law and policy framework.

Usually, this works fine.

But sometimes there is a “disturbance in the force” – situations arise where it looks like the settled framework of law and policy cannot cope.

In a word: crises.

This happened in respect of media law and policy at the time of the Leveson; earlier it happened in respect of the relationship of social media and law, and in respect of the severe problems of libel law.

Long-term followers may recall my commentary and involvement in these matters.

Just before Brexit, I was looking at the “contracting state” and exposed the Saudi prisons contract fiasco of the Ministry of Justice. This is a subject I want to get back to writing about.

And then Brexit came along: the most extraordinary legal and policy mess any of us are likely to ever see.

So my working answer to the question posed above is that “law and policy” describes the practical relationship between, on one hand, law and legal processes (including making legislation and deciding cases) and, on the other hand, the wider public interest (including policy making/implementation/failure and political activity).

I find this relationship fascinating, and that is why I blog and tweet about it (often for free!) and I am looking to write more.


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The cave paintings of Brexit

20th April 2019

I have an inexpert fancy about our prehistoric ancestors.

It is about cave paintings.

These wonderful surviving works deep in caves, painted no doubt by firelight, are often held to be significant and representative: a key to understanding the prehistoric mind.

Perhaps they are.

But I cannot help thinking that there were probably paintings everywhere – on cliffs, on boulders, on trees, on every available surface.

It is just that the ones in the caves are the ones which happened to survive to our day.

All the others were washed off, or otherwise lost.

And in their time, the sort of person who went deep underground to paint by firelight was probably as unrepresentative as an eccentric person of our own day who would go off and do the same.

Similarly, one suspects early civilizations were not obsessed by pottery, no matter how many vases and bowls survive.

In other words: one should try not be biased by available sources.


Anyone writing about Brexit encounters the problem of the lack of reliable information from the usual sources.

The Westminster lobby – where there are many fine journalists – has only been as good as the information available to Westminster politicians and Whitehall briefers.

And because much of the process to date has been driven by Brussels, there has not been that much information available to the lobby to report.

Government press offices have been, in my view, of little use and the number of genuinely helpful Brexit documents published by Whitehall can be counted on one’s fingers.

And so the two usual sources of information for those following British politics – the political press and the government – have been relatively dry.

A Brexit historian with access only to the front parts of UK newspapers and to government publications would be like the classical historian convinced that the Romans were pre-occupied with crockery.


But there has been a great deal of useful detailed information published about Brexit, it has just not come from the traditional sources for British politics.

The European Union has published (in English!) a comprehensive set of reliable documents.

The Brussels correspondents of the British press have all been far more instructive to follow than their Westminster colleagues.

Irish journalists have given us brilliant insights into the issues which have affected and now stalled the Brexit process.

Parliamentary committees have been far more informative – especially in publishing evidence and in their witness sessions – than any front benchers, and all this is available on the parliamentary websites.

Similar praise can be made of the House of Commons library and their in-depth, authoritative and impartial reports on Brexit matters.

Expert bodies such as the Institute for Government and the Centre for European Reform have been magnificent in producing detailed commentary and reports.

And on social media, a host of genuine experts – on trade, on parliaments, on the EU, on the civil service – have emerged to inform and explain in ways which more established newspaper pundits would not be able to do so.

Brexit is a complex and many ways novel phenomenon.

And so the sources of good information have been also been (in many ways) new.

There is good information out there, just not in the traditional places.


Thank you for reading me on this new(ish) blog.

And if you want to subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile). I expect to be blogging here more often than being on Twitter for a while.

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

Brexit exceptionalism

19th April 2019

One common accusation in the debates about Brexit is that of “exceptionalism”.

This often happens when there is a sense that the person you (think you) disagree with is asserting something arrogant or special about the UK or Great Britain or England.

“That is British [or English] exceptionalism,” will come the charge, fairly or unfairly.

But for those of us caught up in the dramatics of Brexit, and who are seeking to understand and explain it, there is another potential peril.

Brexit exceptionalism.

This is not a surprise: as Brexit unfolds in all its spectacular messiness, it is natural to assume it is unique.

And there are certainly parts of it which are novel.

But as a fascinating post at the OUP sets out, however, there are many examples of states leaving intergovernmental organisations and with serious consequences.

Departures are not unusual, and nor are painful departures with profound consequences.

Over time, commentators and historians will no doubt describe Brexit in contexts and perspectives which will counter our contemporaneous view that this is all about us.


The EU does have special qualities: it is not just an intergovernmental organisation.

The EU provides for a new legal order which provides rights and obligations which are “vertical” and so attach themselves on individuals and companies within the member states.

The member state, however, retains ultimate sovereignty and also autonomy in many areas of law and policy.

There is no other international organisation which does this: the nearest analogue would probably be states fully within a federal system (for example, the USA or Germany).

A state seeking to depart such a new legal order will necessarily have unprecedented legal and other problems.

That is because the international organisation being quitted will itself have been unprecedented.

And so Brexit is, to a significant extent, exceptional.

The challenge for commentators and historians will be to work out what can be explained (away) by context and perspective, and to describe and account for what about this mess has never been seen before.


Thank you for reading me on this new(ish) blog.

And if you want to subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile). I expect to be blogging here more often than being on Twitter for a while.

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

The three ends of Brexit

18th April 2019

There are only three ways which Brexit – by which I mean the departure of the UK from the EU following the Article 50 notification of 29 March 2017 – can end.

These are for the UK to leave with a withdrawal agreement under Article 50, or to leave without such a withdrawal agreement, or to revoke the notification.

In short: Deal, No Deal, Revocation.

There are ways and means to these destinations: extensions, referendums, general elections, and so on.

But even perpetual extensions would only be putting-off one of the three ends, not an end in itself.

And there are plausible paths to each of the ends.

(A politician once said that he wanted all students to get “above average” examination results. In a similar manner, so plausible is each of these ends, one could say each had a higher than 50:50 chance.)

As of today, nobody knows which of these three ways Brexit can end.

And doing nothing is no help: that just makes No Deal the end come 31st October 2019.


Thank you for reading me on this new(ish) blog.

And if you want to subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile). I expect to be blogging here more often than being on Twitter for a while.

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

Brexit, on the Wednesday after

17th April 2019

One measure of how odd UK politics has been recently is that is somehow strange to be in the middle of a week that does not have the prospect of the UK leaving the EU on the Friday without a deal.

Twice the UK has driven close to that cliff edge before swerving away, thanks to the patience of the EU27 offering us an extension.

We are perhaps too near to what has happened to grasp how extraordinary it is to be have been in this predicament.

A still major world economy came close twice to leaving abruptly complex legal and economic arrangements built over forty-five years without any alternative arrangements in place.

And the reason we did not crash out was the forbearance of the organisation we seek to depart and which many of our politicians and pundits have vilified and insulted.

The UK has been lucky.

Very lucky.

Twice the UK has been in a position where it was outside of our control what would happen next.

One day we will realise just how lucky we were.

But a problem with being lucky is that you can assume that the luck will hold and normalise: that you will always be lucky.

Come 31st October, there is no reason to think we will be lucky again.

Brexit may last for a long time, but ultimately it can only end in one of three ways: leaving without a deal, leaving with a deal, or revocation.

Before 31st October 2019 there is no real prospect of a new deal: the EU does not want to re-open the current deal, and the UK has not shifted its position.

The UK is unlikely to be any closer to being able to cope with leaving without a deal on 31st October, especially as “no deal planning” has been stepped down.

And so we are left with either seeking another extension, which we may not get, or facing up to revocation.

Between now and Hallowe’en the main issue in UK politics is the extent to which politicians address this hard choice of no deal, deal, or revocation.


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Twitter and blogging, an update

16th April 2019

I am having another Twitter break: I have them from time to time.

(And I often get teased for this, and rightly so, as I mention I am having a break and then something happens to get me tweeting again.)

I was going to have one last week, when the further Brexit extension was confirmed.

But then the Assange story resumed and, as it happens, I know a fair amount about that case by reason of blogging about it in 2012.

The Assange stuff, however, should now be quiet for a short period, while the Swedish prosecutor decides on whether to revive the case given that Assange is again available.

I also now have this new blog to play around with, and I would like to post more here. I think I am tired of tweeting (and Twitter tells me I have been on there some ten years, which is scary).

I realise, of course, that posts on here will not get as much circulation as tweets which “go viral” – but, frankly, that may not be a bad thing. You can get into a rut with anything, and perhaps it is time to do more long-form writing on here and elsewhere.

If something genuinely significant happens I will go back on Twitter. But I am bored of tweets, for now, and the atmosphere on there is often unpleasant. People can be so nasty with such ease.

So this post is just a marker of intent: not every post has to be earnest and an event!


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A warning for Brexiteers supporting the Deal this week

17th March 2019

A number of pro-Brexit Members of Parliament may be switching to supporting the current draft withdrawal agreement – the “Deal” – and so will support the government in this week’s “meaningful vote”.

They should be careful.

Since the Deal was published, UK politicians and the media have been preoccupied with the “backstop” arrangements – which are a small part of the published deal and are intended, by definition, not to apply unless necessary.

This preoccupation has been at a cost – very little else of the Deal has been discussed, let alone scrutinised, while Brexiteers have been distracted.

And once the Deal is approved and executed, it will be too late for Brexiteers to change their mind.

For Brexiteers, the sensible course of action would be to seek a long extension, so that the rest of the Deal can be properly assessed.

Otherwise there is a real risk that they will accept the bulk of an agreement just because they can bring themselves to support the government despite a small part of the agreement.

And the Deal, once ratified and executed, has direct legal effect in the UK.

“We did not realise the Deal also included this,” will sound rather pathetic from those MPs who voted for an agreement on one basis without bothering to read and assess the rest of the agreement.


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Welcome to the new blog

17th March 2019

Jack of Kent is no more.

I had been getting tired of the old fellow for some time.

Having a blogging name was something you did ten or so years ago, and I chose the name of Jack of Kent after the medieval wizard who outwitted the Devil by close attention to what was said.

It seemed a good name for a legal blog.

But one obvious problem was that my name is not Jack and (although I lived in north Kent when I started the blog) I am not from Kent.

Another problem was that I recently felt I did not know what to do with the JoK name – was it a distinct brand or a distinct approach, was it a character?

It was beginning to feel all rather odd, as I did not tweet nor do my journalism under the JoK name.

So I have now killed the old fellow off.

Bye, Jack.


This blog is now under the name I do my legal commentary on Twitter and at the Financial Times and elsewhere.

You will see the url has changed.

The JoK name may still crop up in update emails, and so on, until the name change works its way through the system.

And I am afraid a lot of old links will now be dead. I am sorry for the inconvenience that will cause.


But I have also done more than change the site name.

I have taken down my old posts, as it seemed a good moment to start afresh with my online presence.

(Though over time I may re-post some of the old posts which seem worth re-publishing.)

One nice thing about blogging independently is that you can take things down as easily as you can put things up.

Independent blogging (as opposed to blogs on commercial or news sites) is, in essence, a form of pamphleteering. It is a flexible and often ephemeral medium.


I think the time has arrived to start afresh with a new personal blog.

Indeed – though I cannot promise – I may even get into the habit of blogging more regularly on here (instead of tweeting).

And it must be said, WordPress is now a lot more user-friendly than it used to be.

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