Some thoughts about the internet, law and politics

28th July 2022

From time to time there are fundamental shifts in human communication.

One was the invention of writing – where no longer would things have to rely on memory and oral transmission.

Information could be stored and it could travel distances.

Another was the invention of the printing press.

This meant that – in principle – it was now open to any person to publish and circulate information far more widely than before.

And this was why “the freedom of the press” was such an important principle – long before the advent of Fleet Street and modern newspapers.

Each of these two shifts meant that the ripples expanded of what was capable of being communicated and circulated.

Without writing a person is limited on how much information they can absorb and impart – and you are practically limited to what you remember and who you see face-to-face.

And without printing a person is limited to how much information they can personally publish – by hand copying or otherwise – and how widely that information can be distributed.

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When I was young, it was still practically impossible to circulate information without going through a gatekeeper.

If you wanted to publish or broadcast something to the world, you normally had to go through an established publisher or broadcaster.

Yes, in theory, one could self-publish a “vanity” book, or print a pamphlet, or take a boat in to the English Channel as a “pirate” radio station.

But unless you did one of these eccentric things, you pretty much had to rely on established publishers or broadcasters if you wanted to publish or broadcast your thoughts to the world.

And then came along the internet and the World Wide Web – or at least general access to the internet and the WWW.

At a stroke any person with an internet connection could publish and broadcast to the world.

The old technological boundaries dissolved.

The gatekeepers were still there – and established publishers or broadcasters are not gone (yet) – but they were no longer essential.

On either side of the gates there are now holes in the fences.

This is, I think, a revolution quite as profound as the invention of writing or the development of the press.

And I do not think we are yet fully aware of the consequences of this shift.

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For example, in my own area – law – the old certainties of legal liability were based on there being a moment where a thing was “published”.

Once a thing was “published” then there was potential exposure for liability in defamation or copyright which a person would not have a moment before.

And so publishers took the moment of publication seriously – and things were not published lightly.

Where the law of defamation most visibly broke down in pre-internet days was when you had a leaflet or a small-circulation pamphlet outside of established publishing practices – as in the McLibel or Tolstoy cases – and then there was a mismatch between the scale of the legal process and the scale of the publication.

Now, the McLibel or Tolstoy situation is the norm, and not the exception.

And it was ten years ago yesterday that the appeal was won in the once-famous Twitterjoketrial case, where communications legislation that predated social media was misused to prosecute a non-serious tweet.

(I was the appeal solicitor in that case.)

Now, new legislation needs to be premised on the existence of social media, rather than being strained to make it apply.

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The old channels of information transmission and exchange – be they newspaper titles or political parties – are having less and less purchase.

The political consequences of these declines are becoming apparent, but they are not fully worked through.

Some of the effects are unwelcome – as this blog set out this week with reference to the “3 Ps” – populism, polarisation, and post-truth.

And the sheer, unrelenting nastiness of “culture wars” shows what people can publish to the world when they no inhibitions.

Human beings – as primates – can be said to be bound by Dunbar’s Number – the number of meaningful social relationships one can have at one time.

In pre-internet days, even the greatest celebrities could control their contacts with more than a small group of people.

And now, there is the possibility of constant interactions with limitless people – and not just for celebrities.

Can we, as a species, cope?

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This fundamental shift has to be be accommodated by our constitutional and legal structures.

Otherwise, there will be constitutional and legal dislocations.

And – in the context of the “3 Ps” – populism, polarisation, and post-truth – it is difficult to see how our current constitutional and legal structures, derived primarily from the past, can easily survive.

They were not built for this – and neither, as a species, are we.

Even without the knavery and foolishness of the likes of Trump and Johnson, there are serious issues to be addressed about how we govern ourselves in this internet age.

Or even whether we can still govern ourselves effectively at all.

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How to read a formal document

27th July 2022

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

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

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

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

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

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

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

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

In other words: I am a documents geek.

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Let us begin with what we are looking at.

What is a formal document?

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

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

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

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

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

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

Why has this document been created?

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

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

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

And so on.

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

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

This letter fulfils its function.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The letter thereby is written for the judge.

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

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

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

Another example are contracts.

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

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

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

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

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

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And now we get to the author(s).

Many formal documents are not created by a single author.

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

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

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

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

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

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

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

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

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Now we come to the important bit.

The first of two ingredients of close reading.

Read what the document (actually) says.

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

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

Your job is to work out that purpose.

Some lawyers call this “the rule against surplusage”.

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

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

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

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

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

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And now we come to the difficult bit.

The second ingredient of close reading.

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

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

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

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

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

Here context is important.

Some judges like to say “context is everything”.

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

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

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

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

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

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

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

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

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

But he did not.

And he did not because he could not.

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

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

One can understand why.

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

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

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

Care and effort went into the words and phrases used.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nixon’s resignation letter requires little or no gloss.

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

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

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

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

Welcome to being a documents geek.

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Thank you for reading (closely or otherwise).

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

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

26th July 2022

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

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

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

And so on.

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

The second stage is more difficult.

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

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

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

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

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

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

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

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

You can read the letter here.

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

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

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

There was a follow-up question:

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

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

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

The question being asked was plain – and precise.

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

 

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

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

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

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

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

And what they do not say.

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

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

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

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

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

The admission is instead buried in the following text:

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

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

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

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

This wording is odd.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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There is something strange and worrying here.

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

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

Curious stuff.

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

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

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

The 3Ps, politics and Anglocentrism – or what should they know of Johnsonism and Trumpism who only Johnson and Trump know?

25th July 2022

“And what should they know of England who only England know?” was a question once posed by an imperialist poet.

One of the problems of commentary is insularity: you comment about what is familiar, with nods to things which are – you think – recognisable.

And so it is with law and policy commentary, even when (like this blog) one strives not to be Anglocentric and seeks to pay as much attention to (say) Edinburgh and Dublin and Washington and Brussels as to London and Birmingham.

In particular, one thing commentators seem to do is emphasise endogenous explanations – for example, about what the example of Boris Johnson tells us about the historic weaknesses of the United Kingdom polity and constitution – with a sideways glance at the United States

But Johnson is also a local manifestation of something happening in many countries.

Johnson is not the only one.

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In a fascinating and insightful new book The Revenge of Power, Moisés Naím – a former Venezuela trade minister and editor-in-chief of Foreign Policy posits the 3Ps:

“3P autocrats are political leaders who reach power through a reasonably democratic election and then set out to dismantle the checks on executive power through populism, polarization, and post-truth.”

In his preface he mentions a list of applicable politicians – and although Johnson is discussed in the book, he does not even make this primary list:

“We have in mind here Donald Trump, of course, but also Venezuela’s Hugo Chávez, Hungary’s Viktor Orbán, the Philippines’ Rodrigo Duterte, India’s Narendra Modi, Brazil’s Jair Bolsonaro, Turkey’s Recep Tayyip Erdoğan, El Salvador’s Nayib Bukele, and many others.”

In turn, the 3Ps are defined and illustrated:

“Populism may be the most persistently discussed of the three Ps and the most often misunderstood. Because it ends with “-ism,” it is often mistaken for an ideology, a counterpart to socialism and liberalism in the competition for a coherent governing philosophy. It is no such thing. Instead, populism is best understood as a strategy for gaining and wielding power.”

“Polarization eliminates the possibility of a middle ground, pushing every single person and organization to take sides.”

“In their current approach to post-truth, leaders go far beyond fibbing and deny the existence of a verifiable independent reality. Post-truth is not chiefly about getting lies accepted as truths but about muddying the waters to the point where it is difficult to discern the difference between truth and falsehood in the first place.”

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Of course, elements of all three are not new.

And we can self-indulge in a parlour game of “well, actually, there is this antecedent”.

Yet, the combination is a current phenomenon, made more potent by technological and political changes, such as the decline of parties and of traditional news media.

And it seems to be something liberals and progressives – and even conservative constitutionalists – are finding difficult to combat, or even comprehend.

And even though the Boris Johnsons and the Donald Trumps may personally leave office one way or another, the frames of mind with which they are associated are likely to linger.

The problem may therefore ultimately not be about the peculiarities of uncodified British constitution or its codified American counterpart.

The 3Ps were (are) going to be a problem whatever our constitutional arrangements.

It is not the fault of us not having a codified constitution any more than it is the fault of the Americans having a codified constitution that privileges illiberal and low-population states.

The problem is not (ultimately) constitutional or legal, but political.

It is about our sense as a polity: about what is acceptable in our political leaders, about what we value as checks and balances, and about how we believe political decisions should be made.

And because it is a political problem then it needs a political solution.

No constitution-mongering, by itself, will offer an easy way out.

The cases for liberalism and progressivism – and indeed constitutionalist conservatism – all need to be made afresh and in new ways.

Even seeking to place fundamental rights beyond the reach of 3Ps politicians will not be enough, as these politicians and their political and media supporters will simply politicise and discredit and trash the rights instruments, rather than respect them.

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It was never going to be inevitable that the world would become more liberal and progressive, and enlightened and tolerant – despite the triumphalism of some liberals and progressives in the heady halcyon (ahem) days of Clinton, Blair, Obama and the EU constitutional treaty.

That said, it is also not inevitable that the 3Ps politicians will win – their triumphalism may, in turn, also be ill-based.

So it is still all to fight for.

But.

In this contest, we should not think these are just local problems for local people.

The 3Ps politicians are part of a worldwide trend, and so we need to be aware of what works and does not work elsewhere – and not just in the United Kingdom and the United States.

Where has the case for constitutionalism – codified or not – been made successfully?

Where have people been made to care that their politicians are lying?

Where have voters and politicians valued checks and balances that may go against their partisan and personal advantages?

For, to adapt the poet:

“And what should they know of Johnsonism and Trumpism who only Johnson and Trump know?”

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

 

“Attrition” – a guest post by Joanna Hardy-Susskind

22nd July 2022

The guest post below by Joanna Hardy-Susskind is a remarkable piece of writing, and it may be one of the best ever UK legal blogposts.

It was published yesterday on the Secret Barrister blog and it is republished here, with the kind permission of both Joanna and SB, so that it can gain the widest possible audience.

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Attrition

In 1999, Baz Luhrmann topped the UK charts with Everybody’s Free (To Wear Sunscreen).

We used to play that song on the drive to school. I was 12. My mum drove a banger that we called Bessie. “Come on Bessie” we would cheer as she chugged up the hill. Sometimes Bessie let us down, but no one minded. She did her best. Bessie’s radio had a cassette player. I liked to watch it hungrily eat tapes and spit out a glorious pop sound. My mum played the Sunscreen song on repeat. I remember those days. I remember that song. And, recently, I remembered the words:

“Live in New York City once”, the song advised, “but leave, before it makes you hard”.

School was the local comprehensive. Students were the beneficiaries of textbooks-between- two, dicey Ofsted inspections and our very own Police Liaison Officer. We did our best with what we had. And, by pure chance, it transpired we had something better than wealth: we had luck.

I had the good fortune to be born to hardworking, tremendous parents. They taught me right from wrong and the grey areas in-between. They taught me that precisely nothing in this life was given for free. And that, for some, working twice as hard is required to even make the starting line.

I was determined. And I was lucky. I read. Ferociously. I liked the words. As an adult I sometimes pronounce words incorrectly because I have only read them in books. I occasionally do it in court. Judges look at me quizzically, my expensively educated opponents tilt their heads and I confuse them all by just beaming. “Here I am”, I think silently, “with people like you”.

I remember going with my dad to buy our first family PC. It was magnificent. I typed out the words I had read. I moved them around the page until they flowed. Until they sounded just so. I did not recognise it then, but I know it now – it was advocacy. I memorised syllabuses and mock exam questions and photosynthesis and Pi and Oxbow lakes and the Somme. An A Level was not something my school offered. So I navigated Sixth Form, UCAS, bursary and then scholarship applications. I moved word after word around page after page and I persuaded people. That I knew things. That I could pass exams. That I might have some promise.

I failed often. And, each time, I returned home to my parents and their relentless cheer. “You did your best,” my mum would say. After my Oxford interview, a rejection letter landed on the doormat. I read it and muttered “two of the other candidates went to the same school, the SAME SCHOOL.”

Sometimes, I still mutter it to myself.

But luck, like rage, has a habit of holding out. I got into Law school. Words fell into place there. Sentences and paragraphs and persuasion. I was good at it. But it took everything I had. Loans. Sacrifice. Scholarships. A brutal commute when the money ran out. “It will all be worth it one day love”, my dad would offer on our bleary-eyed 6am car journey to the station. He would drive in his slippers. I would eat cereal in the passenger seat.

To become a barrister then, you had to eat 12 dinners “in hall”. It was a heady mix of Harry Potter and a weird wedding banquet. I did not know any barristers – so I took my mum. We rode cheap off-peak trains, googled which forks to use and giggled in the Ladies’ loo after drinking Port.

In my final interview to become a barrister – with 2 vacancies for 300 candidates – I wore a second-hand suit from eBay. No one noticed. My words tumbled out persuasively. More so, it transpired, than the same old boys from the same old schools. When I got the job, I opened the box containing my barristers’ wig in our lounge. We all stared at it like it was a wild animal.

Off I went. Defending people. People who had less luck, less guidance, fewer words. Many of them hoped that the courts would be fairer to them than life had been.

The words did not prepare me for the fighting. For the people I had to fight for. The terrified 14 year old girl in custody who asked me for a tampon, the shamed 55 year old who had lost his job and stolen, the addicted 21 year old with the sobbing mother, the father concealing a wobbly lip for a son who had not done his best. “Keep a professional detachment” my elders would say and I would nod before going home to lie on my bathroom floor with a rock in my heart. On and on it went. The drivers, the employees, the teachers, the students, the children, the ordinary people who thought court was no place for them until it was. Human story after human story. Stories I recognised. The grey area between right and wrong expanded. And I fought. A first court appearance then paid £35. I would have done it for free if I had not been shouldering a five-figure student debt. The cases got more serious, the money got a little better, but the relentless conveyor belt never let me exhale. I measured my success in precious ‘Thank You’ cards I stored safely in a box.

When luck runs low, I read them.

The finances have never kept pace with the fight. With what is required of me. With what is required of the mass of legally-aided barristers who ultimately have to rely on successful partners, generous families or sheer luck to get by. But, money aside, it is the conditions that deliver the sucker punch. Without a HR department the job takes and takes. There is no yearly appraisal. No occupational health appointment. No intervention. No one to assess the toll. There is a high price to be paid for seeing photos of corpses, for hearing the stories of abused children and for sitting in a windowless cell looking evil in the eye. There are no limits as to how much or how often you can wreck your well-being, your family life, your boundaries. No limit to how many blows the system will strike to your softness. The holidays you will miss, the occasions you will skip, the people you will let down. The thing about words is that they sometimes fail you. When you emerge from a 70-hour week and notice the look in the eyes of the proud parents who propelled you here – but miss you now.

And then, slowly, but to the surprise of absolutely no one, my colleagues – my friends – began to leave. Now, everything runs late. “Counsel will have to burn the midnight oil,” the nice Judge chuckles to the nice jury before I go home to lie on my bathroom floor again. The cases keep coming. The backlog grows. I am increasingly numb to the cruelty of telling broken human beings that the worst thing that ever happened to them will not be resolved for years.

Trial dates creep into 2023. Then, 2024. I edit police interviews for free. I prepare pre- recorded cross-examinations for free. I write sentencing notes for free. I teach new barristers for free. I offer suicide-prevention advice for free. The government issue statements saying everything is fine and I read them over and over trying to work out how they did not realise that justice costs something. That this is all worth something. That some of us gave everything to be here.

And so, it was this week I was reminded of Bessie and the song and those words.

“Live in New York City once, but leave, before it makes you hard”.

Perhaps being a criminal barrister is like living in New York City. Do it once, sure. But maybe I should choose a time to leave. Before it makes me hard.

I find it too heart-breaking to look that decision squarely in the eye. But many have managed it. Perhaps they had no choice. Criminal Bar Association figures show an average decrease in real earnings of 28% since 2006. Our most junior barristers work for less than the minimum wage. We have lost a quarter of specialist barristers in 5 years. 300 walked away last year alone. We miss them. Their talent and company and humour. Their help in shouldering a backlog that now stretches to the horizon.

Though sometimes I feel it, I am not alone. This summer, my (learned) friends took brave and bold action. To make this profession a better, fairer place than when we arrived. For those who choose to remain. For those brave enough to leave. And for those of us, hopelessly in love with this job, who are yet to decide.

But, most importantly, we must make this vital, important job viable for anyone who is about to begin. Regardless of their starting line.

Joanna Hardy-Susskind is a criminal defence barrister.

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Some of this is normal, and some of this is not

21st July 2022

One job of a commentator is to separate out what is normal and what is not.

It is only by separating this out that you can reckon what is significant and what that signifies.

So over at Al Jazeera I have had a go at separating out what is (constitutionally) normal and what is not about the current political drama.

Please click and read here.

As you will see: that there is a change of Prime Minister between general elections is quite normal – and as this blog has noted many times, every single Prime Minister since 1974 has gained or lost office between general elections (or, for May and Johnson, both).

And it is also normal for the mid-term successor to be either a current or recent holder of one of the so-called ‘great offices of state’.

Since the Second World War, the incoming mid-term Prime Ministers have been: 1955 – Foreign Secretary; 1957 – Chancellor; 1963 – Foreign Secretary; 1976 – Foreign Secretary; 1990 – Chancellor; 2007 – Chancellor; 2016 – Home Secretary; 2019 – (very recent) Foreign Secretary.

So far, so normal.

A Prime Minister is going mid-term and will be replaced by either the Foreign Secretary or a (very recent) Chancellor.

Framed like this, the current political drama is normal, ordinary.

But it is not normal or ordinary, is it?

The current political situation is abnormal and extraordinary.

In the last few weeks we have had mass ministerial resignations and ministers openly attacking their government’s policy on television.

A Prime Minister who only in December 2019 won a mandate and a sizeable majority has been spat out because he was repugnant to the body politic.

And one measure of just how unusual the current political situation is just how close we came to the next Prime Minister not even being in the cabinet – or even a current or recent minister.

Such inexperience in an incoming Prime Minister can happen at general elections – neither Blair nor Cameron had been ministers before becoming Prime Minister – but it would be unusual midway during a parliamentary term.

Given the combustible politics of the current governing party – and the ongoing challenges posed by Brexit and other matters – one can only wonder what usual political events will happen before we get finally – and hopefully safely – to the next general election and – which our political system badly needs – a change in the governing party.

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The next Prime Minister

20th July 2022

We are about halfway through the maximum length of this parliamentary term.

The last general election was on 12 December 2019 and – according to this working out – the very last date for the next general election would be 24 January 2025.

Today’s leadership vote seems to mean that the Prime Minister for that second half of this parliamentary term will be Elizabeth Truss, as she is more popular with the party members who will now vote.

If so, Boris Johnson’s cosplay of Churchill will segue into the Thatcher copslay of his successor.

The governing party as a political history re-enactment society: the Westminster equivalent of the Sealed Knot.

Regardless of the current governing party being the Conservatives, and regardless of whether the victor is Truss or Sunak, it is unlikely that after twelve years of government any governing party will be emphatically re-elected.

“Time for a Change” is a powerful political force, as Douglas-Home found in 1964, Major in 1997, and Brown in 2010.

It is not fun to be a Prime Minister when your party has been continuously in office for a long time.

It is even harder, no doubt, when you cannot be a “fresh start” from what went before.

From a policy point of view, the key question for the new Prime Minister will be whether the post-2019 programme (or lack of programme) is continued.

And if new policies are adopted, what the mandate is for those policies.

Will we have yet another Queen’s Speech this autumn?

And in more direct terms, how can Truss (or Sunak) re-orientate policy on Brexit and the Northern Irish Protocol so that outstanding issues can be better addressed, if not resolved?

Can the incoming Prime Minister effect any change in government policy (to the extent there are policies)?

For, as the recently sacked minister Michael Gove has said, the government is “simply not functioning”.

And yet another minister today did not turn up to something:

In essence, is it possible that the governing party can become serious about governing again?

Or is it going to be a long wait until the next general election?

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Boris Johnson did not “see off” Brenda Hale – so why did he say that he had?

 

On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:

The retirement was to be on 10 January 2020.

This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.

Lady Hale’s retirement by 31 January 2020 was thereby inevitable.

There was nothing she – or anyone else – could do about it.

This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.

*

Yesterday the now departing Prime Minister Boris Johnson said in the House of Commons:

“With iron determination we saw off Brenda Hale and we got Brexit done.”

But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).

So what did he mean?

In terms of practical litigation, the statement also makes no sense.

The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.

Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.

So presumably he does not mean that, either.

*

What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.

The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.

But the more ardent supporters of Brexit did not – and still do not – see it that way.

And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.

If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.

Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.

If so, these interpretations would accord with something else the Prime Minister said yesterday:

“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”

Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.

Perhaps him using that terms is an indication of the deep state we are actually in.

If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.

This is not a healthy frame of mind.

And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.

*

Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.

Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.

As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.

Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.

And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.

Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.

But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.

For, if anything, that is what needs to be “seen off”.

***

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The lack of seriousness about policy, “mandates” and “collective ministerial responsibility”

18th July 2022

Today will be the hottest day, we are told, since records began.

It is strange to be living on such a historical day.

One would expect the “most [x] day ever” was some other time, with historical footage or monochrome photographs.

But no, it is today.

And on this hottest day since records began, we have current and very recent members of the government tearing into the government’s record in general and each others’ records as ministers in particular.

Confidential and private ministerial exchanges – easily outside the reach of even the most determined Freedom of Information request – are being casually and freely disclosed on national television.

And these disclosures are not being made because they pass some (supposedly) objective public interest test, but because such disclosures are to the personal and political advantage or disadvantage of particular candidates.

It is quite a spectacle.

If you were watching this – but were unaware of the doctrine of collective cabinet and ministerial responsibility – you would never guess such a doctrine existed.

Of course, this is a leadership election – and so perhaps one could contend that such a doctrine is suspended for the duration of the contest.

Just like the doctrine was suspended for the referendum campaign.

But.

It could also be contended that this spectacle is not an exception but indicative of a new (if temporary) norm.

When Prime Ministerial authority collapses, a cabinet full of ambitious politicians loses its only real source of discipline.

And until and unless there is another authoritative Prime Minister – and the signals from the current leadership debates are not encouraging – such public rows and confrontations may reoccur.

But there is perhaps a deeper problem.

Another explanation for the lack of collective cabinet and ministerial responsibility is a lack of seriousness about policy.

Instead of politicians being in office to implement policy, policy positions exist to promote the careers of politicians.

In this way, policies like words are the counters of the wise, but policy positions are the money of fools.

And it seems many current ministers do not care for many overall government policies to do with such issues as the economy, fiscal policy, and – notably on this hot day – climate change.

(They do, however, support – or say they support – the performative cruelty of the Rwanda deportations.)

This lack of overall commitment to government policy is especially significant given that this government is between parliaments.

As the fine columnist Zoe Williams observed about the most recent televised debate:

“Two points of unity in the hour: none of them would have Boris Johnson in their cabinet, should he ask to serve; none of them wanted an early general election.

“This is the crucible of their problem: they want to keep the mandate, while wholeheartedly disowning the mandated, and on what grounds, they have no clue.”

Williams is correct to highlight this tension, if not contradiction.

Even before Boris Johnson announced his departure as Prime Minister, this government was running out of ideas.

The most recent Queen’s Speech was an unimpressive affair, on any sensible view.

Brexit is still not “done”, and “levelling-up” is a slogan without substance.

And now, with Johnson gone, it becomes even less obvious what the governing party should do with the majority it obtained from the 2019 general election.

At least with Johnson in place, the purpose of that majority was to keep Johnson in place.

And now he has gone, even that personal and selfish purpose disappears.

Any new programme by the incoming Prime Minister will not have a general election mandate.

And if elements of that programme are controversial, then – given we are now at least over halfway through this parliamentary term – there may not be enough time to push contentious legislation through the House of Lords.

We may therefore end up with a lame duck government, unable to promote new policies and unwilling to face a general election.

This will also be in a period of weakened Prime Ministerial authority and a decline in collective ministerial responsibility.

And all this in the context of a cost of living crisis, war in Europe and ongoing climate emergency.

The general lack of seriousness about policy risks changing from being an irksome bug in our government to its characteristic feature, at a time where we most need seriousness about policy.

This is not looking good.

***

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The “written constitution” debate after Boris Johnson

15th July 2022

There is no doubt that the deed was done.

The body politic, finding Boris Johnson repugnant, spat him out of the premiership.

His political collapse was remarkable.

Two-and-a-half years ago, he had the greatest prizes that our constitution can bestow.

He had a substantive majority from a general election – and so he could get his programme through the House of Commons.

He had a mandate for a manifesto – and so he could also get his programme through the House of Lords without rejection or delay.

He could handpick his cabinet – without having to accommodate major party rivals, for he then had none.

He could handpick his Number 10 staff – including appointing controversial figures.

And circumstances and events were also favourable for him politically.

He had “got Brexit done” – or at least he had done to the (then) satisfaction of his party and the electorate.

Covid, and then Ukraine, provided unifying issues on which the country would look to the Prime Minister for leadership.

He even had the benefit of being Prime Minister during the Platinum Jubilee.

(Can you imagine what, say, Benjamin Disraeli would have done with that.)

Yet Johnson spaffed it all away.

And he lost power before the new parliament was even halfway through.

It is an astonishing political collapse.

It is difficult to think of a precedent – not even Anthony Eden’s failed premiership compares.

*

But.

What, if anything, does this tell us about the constitution – and about whether we need a codified (or “written”) constitution.

(Yes, we all know the constitution is already largely written down, though just not in one place – but this is the phraseology we have to work with in this debate.)

*

On one hand, the swift ejection of Johnson from the gut of the polity shows that something is working.

This is especially so when you realise he did not lose any formal vote, and that he recently won a vote of confidence from his own parliamentary party.

A more formal position for the Prime Minister may have meant we would have had to suffer Johnson for a fixed term – as codes can fortify as well as restrain.

In the United Kingdom, the office of the Prime Minister has little formal recognition, and it has few mentions in statute.

It rests on the twin stools of the royal prerogative and the supremacy of parliament – and when a Prime Minister loses the actual (if not formal) confidence of their cabinet and/or their parliamentary party, they become politically weak very quickly.

And as this blog has frequently mentioned: every Prime Minister since 1974 has either gained power or lost power between general elections – and, in the cases of May and now Johnson, both

*

On the other hand, we come to one of the most wonderful phrases used in politics.

“We should not be complacent.”

What is wonderful about this phrase is that nobody would ever say sincerely “we should be complacent.”

No one yells, “yay, complacency!”

But complacency can be a state of mind, even if it is not admitted.

And there is force in the point that with Johnson we were lucky he was a buffoon.

The reason for his departure from the premiership was not policy.

It was not his constitutional trespasses and subversions.

And it was not any of his various forms of unlawful behaviour.

The reason for his departure was his personal failings.

A Boris Johnson clone, stripped of the personal failings, but with the same policy (or lack of policy), the same contempt and disdain for constitutional norms, and the same mix of casual and directed unlawfulness, would still be in power.

We were lucky Johnson was a charlatan and a fool, but what if we were to have a fanatic and a knave?

*

The leading public law academic Mark Elliott has asked the question about whether recent events show the need for a written constitution on his outstanding blog.

My view is that this is not an easy question to answer.

There will be those who will say – as a reflex – that “this shows the need for a written constitution”.

One suspects that this is what they would say in any conceivable situation.

But those with the opposite reflex need to reflect and re-consider – even if they re-adopt the same view.

The decline and fall of Boris Johnson’s empire was an extraordinary event.

But the lessons of extraordinary events are often not immediately obvious.

 

***

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