“Birmingham is a dump”

4th October 2022

The governing party of the United Kingdom is currently imploding in my home city of Birmingham:

It makes one think of this:

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There is a certain irony-of-sorts in Birmingham being the venue for this implosion, for two reasons.

First, the modern Conservative party is largely the product of the politics of Birmingham.

Before 1885, the Conservative party had been more-or-less out of office for fifty years.

Peel came and went, and Disraeli had just come and gone.

And then: there was the Irish Home Rule crisis, and the Birmingham politician Joseph Chamberlain and his “Liberal Unionist” supporters crossed the house to sit with the Conservatives, thereby creating the Conservative and Unionist Party.

And it was this combined party that went on to dominate British politics.

(As indeed did the house of Chamberlain, providing a notable foreign secretary and then a prime minister between the wars – both while sitting as Birmingham Conservative and Unionist MPs.)

Until 1945 Labour politicians complained of the Birmingham problem in that this heavily industrialised city kept returning Conservative and Unionist MPs.

And as late as 1992, half the city’s MPs were still Conservative, including the car industry constituencies of Northfield, Yardley and Selly Oak.

And now it looks as if the city is hosting the party’s disintegration.

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Second, Birmingham was where Theresa May gave that speech – after the Brexit referendum.

The necessary implication of her speech was that the United Kingdom was not only to depart the European Union, but that it would also leave the single market and customs union.

These were the famous red lines, which meant that the United Kingdom – or at least Great Britain, if not Northern Ireland – was locked into a Brexit that would mean being outside the European Free Trade Area.

This was not a necessary interpretation of the referendum result – other interpretations were possible.

But it was that interpretation which has since shaped the course of our politics generally, and of the Conservative party in particular.

And it started in Birmingham.

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A few days ago, a visiting Conservative activist was rude on social media about Birmingham:

In some ways our correspondent is correct.

Birmingham is where the Conservatives are dumping policies such as the abolition of the 45 pence tax rate.

Birmingham is where the Conservatives are dumping any sense of collective responsibility and any reputation for governmental competence.

Birmingham, it seems, is where the Conservative party as a serious political force will itself be dumped.

Birmingham is a dump.

***

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***

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Do we now have a hung parliament?

3rd October 2022

This is not a partisan blog, and long-time readers will recall that I was a fan of the hung parliament of 2017 to 2019.

My sentiments were, however, not shared by many in politics and that parliament came to an abrupt end in December 2019.

This was when the opposition parties – stupidly in my view – agreed to an early general election, which turned out to be on the issue of “getting Brexit done”.

And so the Conservatives got a majority of eighty.

To a large extent all what has happened in British politics since 2019 is not so much the fault of Conservatives, but the fault of the opposition parties in allowing it to happen.

But.

Just over halfway through the maximum length of this parliament, we seem again to have somehow reverted to what some now call a hung parliament.

Chris Bryant has got a point.

The governing party now, in reality, comprises the fifty Conservative Members of Parliament who voted for Elizabeth Truss in the first round of the recent leadership campaign, and about a hundred or so more who have or want ministerial office.

On the government backbenches you have figures such as Michael Gove and Grant Shapps, as well as Rishi Sunak and indeed Boris Johnson, and you also have the European Research Group and the Northern Research Group.

The governing party in the House of Commons is currently an unstable coalition.

This was most obvious in how the U-Turn in the abolition of the 45p rate came about.

Gove and Shapps said they would be against it, and so it was dropped.

Those Truss supporters who fantasised about what they could do with an eighty majority are going to be disappointed and frustrated with the actuality.

Not least because the majority has gone down because of by-election defeats.

Thirty-or-so Conservative backbenchers can now veto government policy – and they know that they can get their way.

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Johnson warned us against a hung parliament in 2019.

But it looks like we have got one anyway.

Let us hope it lasts, and that the government does not again get carried away with forcing things through just because it can.

Why and how this has come about will fascinate political commentators.

But from a liberal constitutionalist perspective, it is to be welcomed.

We are governed better when there is real parliamentary accountability and scrutiny – when the government cannot just assume it will get legislation through the commons.

Perhaps party discipline will reassert itself in the governing party, bringing this situation to an end.

Perhaps.

But in the meantime, let us welcome what appears to be a hung parliament again.

***

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FoI requests regarding the “absolutely devastating” legal advice

30th September 2022

The Freedom of Information Act of the United Kingdom is not an impressive statute.

I have known this from the beginning, for I was a government lawyer when the Act took effect.

I even attended meetings of the now notorious “clearing house” at the Cabinet Office that considered certain complex and/or cross-governmental requests.

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The Act has no bite – unless you want to spend a considerable amount of time challenging decisions all the way to court.

If a public authority does not want to give you the information requested then it will usually find a basis for not doing so.

There is perhaps no more insincere a genre of official correspondence than FoI letters saying that exemptions apply, additional time is needed and balancing exercises need to be conducted – all of which are, in reality, delaying tactics which end up with no information being willingly disclosed.

Everyone concerned knows this – those requesting the information, the FoI officers, and their internal clients.

It makes you think of this classic Onion story:

Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.

*

But.

From time to time, FoI requests may be useful.

And in respect of the “absolutely devastating” legal advice previously discussed on this blog – see here and here – FoI requests may be interesting.

This is partly because by publishing the advice on 2 September 2022 the government waived legal advice privilege in that advice.

The usual go-to privilege exemption for government in respect of FoI requests for matters concerning legal advice is, in my view, no longer available for the government here.

And by going to an external law firm, rather than using the government legal service, the usual go-to exemption of commercial interests is less strong for the government, as there is a public interest in openness about whether this procurement actually provided value for money.

The immediate publication of the advice on the gov.uk website also raises a further public interest in favour of disclosure, given that it appears to have been an attempt to bounce the privileges committee.

As the committee stated:

My FoI requests are here, where you will be able to follow their (lack of) progress.

Each request seeks disclosure of particular information and there is method in the madness of how I have arranged and framed the requests – in particular how they are arranged and framed so as to strengthen the (inevitable) appeals.

I have no illusions that the government will not disclose this information happily, and so I am thinking backwards from the (inevitable) appeals.

“Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.”

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My motivation, for what it is worth, has little or nothing to do with whether the former Prime Minister is disciplined or not by the privileges committee.

That is a matter for the committee and parliament, and I do not really care either way, as long as the committee and parliament are satisfied.

My concern, as a former government lawyer, is that there is something deeply wrong for any government (of any party) to use and publish legal advice in this manner.

Legal advice is legal advice, and government communications are government communications, and there should be little public overlap.

And this is especially the case where it appears an opinion was sought not for legal advice, but to be published and publicised so as to influence a parliamentary committee and to place public and media pressure on that committee.

It would not matter if that was Boris Johnson or Jeremy Corbyn or Elizabeth Truss as Prime Minister.

Something wrong happened here, and it really should not happen again.

***

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It is not “local journalism”, it is journalism

29th September 2022

This was not a good day for the new Prime Minister Elizabeth Truss.

And that was just one of many local radio interviews, which are collected together here:

 

The interviews were excruciating.

And they were very effective:

One reaction to this round of interviews was to praise local journalists for pressing this hard questions about urgent matters.

But this was not mere local journalism, it was journalism.

And it showed up, by relief, how hard questions about urgent matters are not similarly pressed at the national level.

There are some very fine national journalists, in the so-called lobby and otherwise.

But there is also what can be called an information economy.

A national political journalist is often only as good as their access to political information that is not otherwise available.

Of course: there is a need for off the record and background conversations.

But.

Politicians and their advisers take advantage of the need for a supply of information and so can exclude any journalist who pressed hard questions about urgent matters.

This means that the only broadcast and newsprint journalists who will press on regardless are those who are so established no longer need to be supplied by the information economy of Westminster.

And such established media figures will often have their own agendas and prejudices too.

But for an up-and-coming political journalist there is a constant risk of exclusion from the information economy.

And it is easier to state the problem rather than to fix it.

One possibility is that the news media shy away from using stories where there is nobody on the record.

But if one news media site does this, then it will be at a competitive disadvantage.

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My own approach to commentary and journalism is to rely as much as possible on public domain sources – asking hard questions of texts rather than of people, and comparing (and contrasting) multiple documents.

But that sort of commentary and journalism can only go so far, and the human elements  of policy and law making need there to be journalists who ask questions of politicians.

And politicians need to face such questions, as it is a good discipline.

Accountability leads, generally, to better government.

So it would benefit everyone involved if the Westminster information economy was made more, well, more efficient.

And, if so, a Prime Minister would not be able to tell the difference between quizzed by a national journalist and a local journalist.

***

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Fantasy and Policy

28th September 2022

Today, it is reported, there were almost mass insolvencies of pension funds:

Pension funds – like constitutional law – should not be exciting.

Pension funds should be dull.

Something wrong is happening.

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There is a sub-genre of fantasy literature which uses the literary device of a portal.

You go though a wardrobe, or over a rainbow, or down a rabbit hole, or past the second star on the right.

And you are then in another world, where certain fundamental elements are different and strange.

Recently British politics has been unusually volatile, but at least it was within certain familiar parameters.

We had the Regency smugness of David Cameron’s administration; the misplaced Victorian earnestness of Theresa May’s; and the Edwardian charlatanship of Boris Johnson’s.

All bad in their way, but you could comprehend what was wrong about the administration and its approach to law and policy.

But the administration of Elizabeth Truss – despite some early but misleading indications of pragmatism – is of a very different type.

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It must have seemed so simple, only a few days ago.

Treasury orthodoxy could be cancelled easily – and the permanent secretary Tom Scholar was sacked.

Tax cuts could be announced.

And, at a stroke, the British economy would be “unleashed”.

The new chancellor Kwasi Kwarteng told the House of Commons that the government would “release the enormous potential of this country”.

But.

The problem with words like “release”, “unleash” and, indeed, “unchained” is that they are often mere substitutes for policy.

By using such words you are presupposing that there is a thing which is being constrained that only requires the constraints to be removed.

It is, in its way, a form of magical thinking.

And it must have seemed straightforward to the new administration that all that was needed was for tax cuts to be announced and, hey presto and abracadabra, growth would be be produced:

One suspects that even now at Ten and Eleven Downing Street, the Prime Minister and Chancellor do not understand why the Friday statement has had these consequences.

They did the magic things and said the magic words – powerful words like “release” and “unleash” – but what has actually been released and unleashed is not what they wanted.

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You could say that the problem is that Truss and Kwarteng are being ideological.

But many practical and effective politicians have ideologies: Clement Attlee and Aneurin Bevan with the creation of the National Health Service, or Margaret Thatcher (at least in her early premiership) and Norman Tebbit (whose trade union reforms are pretty much still in place forty years later).

What is different with the current administration – and this is apparent even after a few weeks – is not that it has an ideology, but that it has nothing else.

There is no engagement with the real world as it is, and no understanding that there is even a real world outside with which to engage.

The fundamental elements of their political vision are different and strange: this is Narnia, this is Oz, this is Wonderland, this is Neverland.

We can enter their world, but they have no notion of ours.

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Portal fantasies often end with the intruding hero(es) eventually coming back to this world – sometimes changed, sometimes not.

The other world usually carries on, just as before – but without the Pevensie children, or Dorothy, or Alice, or Wendy.

Sometimes, however, people from our world get stuck there, perhaps lost or disguised, unable to escape.

We are currently stuck with our fantasy government, perhaps for the next two years until a general election.

Brace, brace.

We are not in Kansas anymore.

***

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The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

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This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

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As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

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Caption: legal commentators reading the committee report

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The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

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This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

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Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

***

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Making the Accession Council inaccessible

26th September 2022

You may recall this blog had a positive post about the broadcasting of the Accession Council:

That detailed post even featured in the House of Commons briefing on the accession of the King:

The broadcasting of the full Accession Council was a boon for the public understanding of the constitution of the United Kingdom, I said.

I even ventured that that further Privy Council meetings could now be televised.

This could be done easily, it seemed to me, as such broadcasts would be in the gift of the King.

Oh what a fool I was.

Of course this welcome shift to transparency would not last.

As reported by the Guardian:

(Highlighting added.)

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It was too good to be true.

The new King is still the same old Prince of Wales who insisted that his notes to ministers be outside the scope of the Freedom of Information Act.

Prince Hal has not become Henry V.

This is not a bright new morning of royal openness, but a resumption of the tight controls of information that we are used to.

This is such a shame.

The crown had an opportunity to throw obscure parts of our constitution into public gaze, to balance the usual focus on Westminster and Downing Street, to reveal the hidden wiring.

The King had an opportunity to use his control of what can be broadcast to show his engagement with process and practice.

And now, the cloak is too pulled over again.

Oh well, it was good while it lasted.

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Policy and ambition – 1988 revisited

23rd September 2022

Once upon a time I was an Economics A-Level student, and that time was 1987 to 1989.

And I remember one day sitting watching the 1988 Budget given by Nigel Lawson, and it is an indication of how I was not like other A-Level students that this was very exciting.

I even remember writing out “Medium Term Financial Strategy” into my exercise book of quotations – perhaps the dullest book of quotations ever compiled – and sitting with the Times and Financial Times spread out on the living room carpet.

But most of all I remember the triumphalism.

Socialism and the post-war consensus was over: Thatcher and Lawson had re-written the economic rules, and our reward were to be good times that would never ever end.

And all this accorded with the theories taught on the Economics A-Level course.

It was all so easy – and one had to ask why had nobody ever done this before.

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But.

The 1988 boom ended with bust, as all booms tend to do.

This was not a sound financial strategy – either for the medium term or otherwise.

And Lawson and then Thatcher lost their jobs, and a recession occurred while I was at the university into which my Economics A-level result had helped me.

(Though it was not until around 2008 that I finally dropped my free market views, when it became obvious that – left to themselves – markets tended to disequilibrium – and implosion  – rather than to equilibrium.)

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I also remember Gordon Brown as Chancellor contending that there would be “no more boom and bust”.

This was a similar triumphalism to that of Thatcher and Lawson, but from another political party that believed they had cracked how to manage the economy.

And that triumphalism was also undermined by events.

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After a while, watching governments and politicians (and pundits) come and go, one can become unimpressed, if not cynical.

The not-a-budget announced today by new Chancellor Kwasi Kwarteng is certainly something that would have fascinated my 1988 Economics A-Level student self.

It is probably even a speech that my 1988 Economics A-Level student self could have given.

The statement is a simple application of some economic theories to the complicated world of real economic activity.

Perhaps it will work.

Perhaps Kwarteng will confound his critics.

Who knows?

Economics is not an exact science – and some would say economics is not a science at all.

Perhaps this engineered boom means that we can have economic good times for ever and ever.

But.

The messy nature of human affairs means that few ambitious plans work – and especially those which are accompanied by triumphalism, the claps and cheers of the easily impressed.

Policy, like law, is hard.

This is because policy, like law, has to deal with human behaviour in complex societies.

And if policy and law were really that simple to get right, our politicians would not keep on making so many mistakes.

“Brace, brace.”

(Which I really should have written down in my exercise book in 1988 instead.)

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The magical thinking of Donald Trump

22nd September 2022

A theme of this blog is that law is akin to magic, and that law and lore have a good deal in common.

For example:

But the comparison is only made as a-kind-of-analogy.

I never thought that when writing about law in modern times I would come across actual magical thinking.

I was wrong.

Consider this:

Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.

The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.

This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.

And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.

Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.

It would be an extraordinary thing – even supernatural and paranormal.

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Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.

There is no actual evidence of de-classification, then his explanation needs to deal with that absence.

There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.

It is all very odd.

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Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.

If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.

The only difference here is whether the law applies to Trump as it applies to others.

Or is there a legal privilege for Trump?

This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?

Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?

Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.

For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.

 

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What is the point of legal blogging and legal commentary on social media?

21st September 2022

I have been asked to give a lecture by the University of Birmingham, where I went to law school (and where I am now an honorary lecturer).

The lecture will be on law, blogging, and social media.

(You din’t think they would let me near substantive law?)

I hope that the lecture can be released as a podcast and as a pdf.

I am putting some thoughts together – but my knowledge is limited.

I know about my own blogging and use of social media, and about that of some of my peers.

But my perspective is that of a provider of stuff, rather than as a consumer of stuff.

And so I was wondering what the readers of this blog thought about legal blogging and legal commentary on social media.

In particular, I should be grateful for responses to the following queries about the legal blogging and legal commentary on social media of others (and please not mine – please don’t use my stuff as examples):

Does legal blogging and legal commentary on social media provide any information or insight to you that you would not otherwise have access to?

Are there particular examples of posts or threads or videos or podcast episodes which you regard as especially helpful?

Does legal blogging and legal commentary on social media really help the public understanding of law?

And if so, how?

Do you use (and do you prefer) other sources of legal information – such as journals, the trade press, and the mainstream media?

And given law had managed quite well for thousands of years before the World Wide Web and social media/blogging/podcast platforms, is legal blogging and legal commentary on social media just a waste of time?

What, if anything, does it do which is new and different from other forms of media?

Any other thoughts welcome, especially if you have links to examples.

Many thanks.

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