Looking at Brexit after the 2019 general election

18th December 2019

Last week the general election returned the Conservatives with a substantial majority.

Until the exit poll was published there were still hopes, based in optimistic readings of some polls, that there would be a hung parliament.

But that turned out to be wishful thinking.

The period of hung parliaments, from 2010 to 2019 (bar two years), is no more.

Things have changed.

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The greatest change is about Brexit.

The time of Remain resistance is over: there is now no viable political (or legal) path to Brexit being blocked.

It is now virtually certain that the United Kingdom will leave the European Union and that, unless something currently unforeseen happens (say, a logistical or administrative problem), that departure will be at the end of next month.

The United Kingdom is now set to leave the European Union by automatic operation of law on 31st January 2020.

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This post sets out some observations and thoughts on the wider significance of the general election result on Brexit – the bad and the good – and it then sets out an important warning about the next stage of the Brexit process.

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One way, perhaps, of seeing the general election result is as the third manifestation of the “will of the people” on Brexit.

The first “will of the people” was, of course, the referendum result of 2016: that, in principle, the United Kingdom was to leave the European Union.

The second “will of the people” was the 2017 general election result: that the exit from the European Union was to be done by the means of a hung parliament, that is by consensus between the main political parties.

And the consequence of this second “will of the people” was to make it difficult, if not impossible, for a “hard” Brexit without any withdrawal agreement.

The current prime minister was in fact only able to obtain a further general election by accepting that departure had to be with a withdrawal agreement.

The third “will of the people” was last week’s general election result: that the government would now have a comfortable majority for the negotiation of the follow-on trade relationship with the European Union.

The United Kingdom and the European Union would then have the confidence that anything agreed would not be frustrated by parliament.

Seen in this three-stage way, you could say that the “will of the people” was the wisdom of the people (echoing the notion of the wisdom of crowds): (1) providing a mandate, (2) tightening the leash, and then (3) loosening it.

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Of course, the three-stage scheme above is an illusion.

It is a neat pattern one can only see with hindsight.

At the time it was far more messy and, of course, general elections are not like referendums and cannot be easily compared.

The current United Kingdom electoral system is not an efficient register of what is the “will of the people”.

For example, looking at numbers, the Conservatives only increased their total vote by only around 300,000 to get their thumping majority; the main shift in terms of absolute votes was the collapse of the Labour vote by 2.6 million, from 12.8 million to 10.2 million.

Some of you will be more interested in clever things like swings, shares and percentages, but I am always interested in the numbers of actual human beings who make the deliberate decision to vote – and on this basis it is difficult to see the 2019 general election as a strong endorsement of anything in particular.

We may no longer have a hung parliament but we still seem to have a hung electorate.

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As many will know (and no doubt some have scrolled down already to start typing this as a comment), total voter numbers matter little with the the First Past The Post electoral system.

To a certain extent (but only a limited one) the FPTP system itself affects voting behaviour: some don’t bother voting in safe seats, and in perceived marginal seats some may vote for parties they would not do otherwise.

And, of course, the FPTP system in effect distorts the result, so that whacking majorities can be based on minority votes.

In respect of Brexit, a plausible case can be made that the majority of those who voted were actually in favour of parties either against Brexit or in favour of a further referendum (Labour, Liberal Democrats, Scottish National Party, Green Party, Plaid Cymru, SDLP), and only the minority (Conservative, Democratic Unionist, Brexit Party, and United Kingdom Independence Party voters) were in favour of Brexit.

Plausible, but inconsequential, in a FPTP system.

The reason, however, why these points need to be emphasised is that, although the political game is now over on resisting Brexit before it happens, the ultimate political issue is still not settled.

There is reluctant resignation as to, but certainly not consensus for, the United Kingdom’s departure from the European Union; and for Brexit to be based on such resignation rather than consensus does not bode well for Brexit in the longer term.

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Another observation is about lies and honesty in political campaigning.

As this blog has averred before, pointing out that politicians lie is not enough if voters do not mind being lied to.

(Yes, it is still important to expose lies as a public good.)

How can this situation change?

There seems two ways: the hard way and the progressive way.

The hard way is there to be some crisis or “crunch” where it becomes of immediate importance to voters that there should be an alignment between what politicians say and reality: that it becomes urgent to voters that politicians tell the truth.

Brexit may well create such a situation, a reckoning, though no sensible person would want this to happen.

Or Brexit may not ever get pushed to such a brink, and that those in favour will still get by with lies to cover every new predicament.

The progressive way is for there to be political (and media) leadership: for those with political (and media) power to make make voters care that they are being lied to.

The current state of the opposition parties in the United Kingdom is not encouraging in this respect.

They sometimes seem to be too busy lying to themselves, and blaming others, to be able to focus on exposing the lies of those who govern us.

The one benefit of the general election result is that it creates an opportunity (though no more than an opportunity) for the opposition parties (at least outside of Scotland) to get their acts together.

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A further observation is that Remain – insofar as it can be said to be a cohesive entity – failed when it mattered.

Both in the period immediately before the general election and in the general election campaign itself, politicians in favour of Remain (or at least a further referendum) could have done things differently, and this may have made a difference to Brexit.

There was a possibility of a “government of national unity” (GNU) but that was unacceptable to the (leaders of the) Labour and Liberal Democrat parties.

There was the possibility of electoral pacts.

Of course, such a GNU and/or pact may have just created new problems, and it may have meant that Brexit was only delayed rather than avoided.

But those roads not taken had at least the possibility of a destination other than departure.

And no doubt the lack of a GNU or a pact will be discussed and disputed for decades to come.

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Brexit, of course, is yet to begin.

All that has happened to date has been a mere prelude to what will follow departure.

The general election result has changed little as to the actual problems of Brexit: the task is still as massive and complex as before, and Brexit should not be done at speed and with shallowness of thought.

The capability of Boris Johnson and Dominic Cummings to win a general election just as they won the referendum does not make their approach to other activities any better or likely to succeed.

And so to the warning I mention above: after departure on 31st January 2020 (or whenever), Article 50 comes to an end.

This means the leisurely, last-minute nature of obtaining extensions will also come to an end.

After departure the key Brexit dates will be as set out in the withdrawal agreement, and these dates cannot be varied quickly or easily.

A decision needs to be made by July 2020 whether to extend the transition period beyond 31 December 2020.

Already the United Kingdom government is displaying the self-limiting bravado that served it so badly in the exit process, and it is now committing itself to no extension (and this will be “enshrined in law”).

This is lapped up by the uncritical press and its readers, but the real problem is that politicians will think they can still get quick fixes at the deadline.

Such extensions are far less possible (perhaps not even possible at all) and shows the usual lack of seriousness.

The transition period should continue as long as it needs to, and should not be artificially curtailed.

Let’s hope we don’t learn this lesson the hard way.

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And now to end this post on some positive notes.

The European Union will be more comfortable negotiating with a government with a working majority and this is a good thing for both sides.

The government majority also perhaps lessens the leverage of the “European Research Group” should the prime minister wish to dump on them as he dumped on the Democratic Unionist Party at the end of the last parliament.

The withdrawal agreement being in place will mean that on citizenship issues, and on many other practical matters, there is legal certainty now in place whatever happens at the end of the transition period.

The transition period means that the United Kingdom remains aligned with European Union law and policy for longer, and so may make rejoining or a close association agreement easier in the medium to long term.

And the government’s wish for a speedy trade agreement means that, as with the exit agreement, it will no doubt be on the European Union’s terms, as the United Kingdom has not given itself enough time to formulate any alternative, and this again makes rejoining or a close association agreement easier in the medium to long term.

These may not be great consolations for those committed to Remain.

But the story of the post-Brexit relationship of the United Kingdom and the European Union has not yet begun, and it is not only down to Brexiters to shape what happens next.

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Three things not happening on this election day

12th December 2019

“The hustings are over, the bunting is down, the mad hysteria is at an end. After the chaos of a general election, we can return to normal.”

(Blackadder, third season, episode one)

Many people will be commenting on what is happening today so this post offers commentary on three things which are not happening.

The first thing that is not happening is that we are not considering the currently suppressed report into Russian interference in the politics of the United Kingdom.

One would think that publishing such a report would be a prerequisite of a government seeking to go to the country.

But no.

The second thing that is not happening is that parliament is not scrutinising either the withdrawal agreement implementation bill or the withdrawal agreement which the bill implements.

Neither document has yet had any detailed scrutiny, even though the United Kingdom is set to leave the European Union by automatic operation of law on 31st January 2020, which is just over a month away.

Given that the bill was supported at its second reading by a majority of MPs you would think that the time before 31st January would have been spent ensuring that the 580-page plus withdrawal agreement – that deals with a range of complex and consequential provisions – was properly scrutinised.

But again, no.

The third thing that is not happening is that we are not about to enter the final year of the five-year parliament elected in 2015.

The 2015 general election gave the Conservatives a comfortable majority, which they then converted into four years of political chaos and successive general elections.

The irony is that the Conservatives are promoting themselves today as a solution to the current political disarray, when it was the Conservatives getting their first majority since 1992 which is the direct cause of what is now going on around us.

One would think a sufficient number of voters would realise this and desert the party whose misuse of a majority led to this mess.

But, yet again, no.

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The L word, the F word, and contemporary UK politics

9th December 2019

In a few days there will be a general election in the United Kingdom.

This post is not about the possible election result – that is still uncertain and it may even come down to voting intentions which are as yet not settled.

This post is instead about two words that should have had more impact on the campaign, and current politics generally, but have not.

One word begins with L, the other with F.

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The L word

The first word is “lie”.

Some commentators in the United Kingdom aver that more should be done to confront politicians with their lies.

Peter Oborne, a journalist of immense integrity, has even sought to document and expose each lie of the current prime minister (the estimable website is here).

This is essential work: nothing in this post should be taken to mean that recording each lie is not important.

But it is not enough.

This is because many politicians now do not care about being called a liar, or even be shown to be one.

Such a reaction is a cost of political business for them – and some even relish that they “trigger” such a response as some perverse form of validation.

The ultimate problem is not that many politicians lie.

The ultimate problem is far more worrying and far more difficult to resolve.

The ultimate problem is that many voters want to be lied to.

These voters may pretend otherwise, claiming that they want “honest politicians”.

In reality, such voters just want politicians to say what the voters want to hear.

There is therefore an incentive for politicians to lie.

Until and unless many voters can be made to care about being lied to, every fine and worthy effort in exposing the lies is (at least in the short-term) futile – a public good but not enough to effect immediate change.

There are many political lies: small lies, forgettable lies, lies that take longer to expose than any mortal attention span.

But the biggest lie in the current general election – a lie that may determine the outcome – is “Get Brexit Done”.

Brexit cannot be “done” without years of intense effort and attention.

Entire international relationships have to be rebuilt from scratch; entire areas of law and policy have to be reconstructed; entire social and economic patterns of behaviour have to be re-worked.

And all this in addition to the making of actual decisions about what we want those relationships, laws, policies, and social and economic patterns of behaviour to be.

And all that in turn against the intractable problem of fitting in a Brexit policy within the framework of the relationship between the United Kingdom and Ireland.

Brexit cannot be “got done” by mere exhortation.

It is a lie but a lie many want to believe and cannot be dissuaded from believing by mere arguments, logic or evidence.

And by the time many voters will come to care that they were lied to, Brexit will be too long gone for any voter choice to make much difference.

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The F word

The second word – the F word – I will not type.

It is a word which has lost its traction when it needed to still have traction.

The word describes the 1920s and 1930s manifestation of populist nationalist authoritarianism, a political phenomenon that despite the heady optimism of democratic campaigners has never been too far away.

Complacently, some believed that the thing had gone away with the end of the second world war, or with the transitions to democracy of Spain and Portugal.

The thing, however, is always there.

What happened in the 1920s and 1930s in Germany and Italy and elsewhere was always just one set of manifestations of the thing.

Populist nationalist authoritarianism has more purchase on voters than many conservatives, liberals and socialists realise.

It is the politics of easy answers.

In the United Kingdom there are those in favour of Brexit who routinely trash the (independent) courts, the (independent) civil service and diplomatic service, the universities, the broadcasters, even the supremacy of parliament.

This populist disdain for independent institutions is unhealthy.

The threat of the “will of the people” is used as intimidation.

Coupled with nationalistic rhetoric (on immigration and Brexit generally) and authoritarian hostility to legal checks on government (contempt for human rights), you have all the ingredients of the thing described by the F word.

But if you call this thing by its name, it now has little or no effect.

People will yawn and shrug and pay no real attention.

And because what we have before us is not visually the same as the 1920s and 1930s manifestation of the thing – no uniforms, no goosesteps, and so on – many of those hearing the F word will regard what is now happening as not being an example of the F word at all.

Of course, using the F word is not as important as stopping the thing it describes from taking hold.

 

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Calling politicians – and pundits – liars, and describing the vile populist nationalist authoritarianism that they promote as the F word, is not going to stop them lying or the thing the F word describes.

The words are not enough, and it may be that new words are needed to make old warnings.

And unless voters can be made to care about being lied to by politicians, or about the implications of the populist nationalist authoritarianism (again) being promoted, then there will be little to stop either the politicians or the F word thing.

Making voters care about any of this is the challenge for liberal and progressive politicians (and pundits) in the United Kingdom and elsewhere.

And the biggest challenge is to make enough voters care in time.

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The wrong lesson from the 2016 renegotiation

4th November 2019

Before the referendum, there was the renegotiation.

This was the renegotiation that was finalised at the European Council in February 2016.

The deal then agreed in principle between the United Kingdom and the other 27 member states of the European Union may not seem important now.

The deal never had effect, as it was rescinded after the referendum result.

The deal did not even feature much in the referendum campaign.

It now seems almost a footnote.

But looking back, with the benefit of perspective (if not hindsight), the deal is a telling prelude of much of what has followed.

Egged on by think tankers, political advisers and pundits, the then prime minister David Cameron sought, among other things, to obtain an emergency brake on EU migration.

He was warned by wise heads that such a thing could not be agreed short of amending the EU treaties.

And that it certainly could not be agreed at a mere European Council meeting.

So it was not: such an objective was impossible, and Cameron failed.

All that could be changed in respect of migration was some minor tinkering with indexation and entitlement to benefits.

Even Cameron, in his recently published memoirs, admits to mistakes about the renegotiation, including the framing of domestic expectations.

And he indeed misled his political and media supporters in what could have been plausibly agreed at that Council meeting.

Demanding things from the EU is easy, getting agreement from the EU is not easy.

Unfortunately, many Brexiters seem to have taken a different message from Cameron’s failure.

Cameron, they aver, did not try hard enough, he was too soft.

In essence, say the Brexiters, he should been louder in insisting on what was described as impossible: it was a failure of political will.

This lack of realism has been carried forward to the current Brexit negotiations.

This is why, when the pushes did not even get to be shoves, the pro-Brexit government has had to accept a withdrawal agreement on terms that suit the EU.

The EU is a creature of law that takes the single market seriously.

And this is why the same problem will arise with any future trade agreement.

Demanding something that cannot be done does not work, even if it is shouted slowly in English.

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Brexit and Conservatism

5th July 2019

The Conservative Party has long been a mix of ideologues and pragmatists.

The pragmatic tradition was strong – associated with RA Butler and politics being the art of the possible.

Even Margaret Thatcher was far more pragmatic in policy – at least before 1987 – than her fans both at the time and since would admit.

But that pragmatic tradition seems to now be weak.

There are still a few sensible senior Conservatives, even Ministers, but they appear powerless in the face of shouty populism.

Applied to European Union matters, Tory pragmatists once wanted to make things work.

In the 1980s the (in my mind) second most significant Conservative politician of the time – Lord Cockfield – pushed forward the Single Market in a practical and sustainable way rather than through grand design and heady rhetoric. 

My January 2017 FT piece on Lord Cockfield is here. In it I said:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter. In 2016-17, the entire government has produced nothing other than platitudes and unconvincing excuses for secrecy.

“The UK may have had a Cockfield to put the single market in place, but it certainly does not have one to take the UK out of the EU.”

This is still the case, over two years later.

Brexit could have been done (regardless of the merits of the idea) but it needed a realistic and unideological approach.  

No silly speeches, no daft “red lines”, no loud promises of the impossible just so as to get claps and cheers from grinning idiots.

Instead, Brexit was done in perhaps the worst possible way.

How this came to happen will be a matter for debate and reflection long after the current events are over.

But one remarkable thing is how the Conservative Party which once valued unshowy pragmatism ended up so shallow and ineffective.

And another remarkable thing is that, three years after the referendum, Conservative MPs and members are set to elect as leader a politician who personifies the very shallowness and ineffectiveness of its Brexit policy.

Getting policy wrong is bad – but not learning any lessons whatsoever is arguably worse.

Many people reading this post will not be Conservatives (and may even have Very Strong Opinions on that party). 

But I am not (and this blog is not) party partisan: there are good and bad in most mainstream political parties.

My point is that it is sad and unfortunate that the political party which in a matter-of-fact way took the UK into the EEC, drove forward the Single Market, sponsored enlargement, and was a useful brake on the the heady excesses of the EU project, has become such a shambles.

The Conservative Party is no longer about the art of doing the possible, but about the artlessness of promising the impossible.

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A test for constitution-mongers

17th June 2019

(Title page from the Edmund Burke’s Reflections on the Revolution in France, 1790)

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Constitutional law should be boring.

For ages, the subject was boring – entire pages, sometimes entire chapters, of UK constitutional law books would have no leading cases from the lifetimes of those teaching the subject, let alone those being taught.

The party battles and the political crises would come and go, but the settled practices of the constitution would carry on much the same.

And now  it is the most interesting time to be a constitutional lawyer in England since the 1680s.

(That last sentence is deliberately limited to England, as the constitutional histories elsewhere in the United Kingdom are different.)

This is not to say we have (yet) a constitutional crisis.

So far, our constitution has been (fairly) resilient in the face of executive power-grabs and novel predicaments.

The executive was stopped by the courts from making the Article 50 notification without parliamentary approval.

And the executive was then stopped by parliament (using at times some ingenious and arcane procedures) from taking the UK out of the EU without a deal.

Of course, neither of these outcomes were inevitable and could have gone the other way – and the latter may still happen on Hallowe’en.

But to the extent a constitution exists to resolve tensions so that they do not become contradictions, the UK constitution has done (generally) well so far with Brexit.

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Over at Prospect magazine I have done a short piece on the constitution.

My argument in essence is that the test for a codified (or any) constitution is that it can recognise and regulate tensions between the elements of the state (the main elements being the executive, the legislature and the judiciary).

Some who read perhaps too quickly (if at all) raced to characterise my piece as an argument for an uncodified constitution.

But I am ultimately neutral on the form of any constitution – I am more interested in how well it functions.

Neither a codified nor an uncodified constitution is inherently superior.

The test is a practical one.

And the test for those who urge codified constitutions (who Edmund Burke wonderfully called “constitution-mongers”) is to show how their models and proposals would work.

It is not enough to assert that, of course, a codified constitution would be better as a matter of principle or of faith.

Show us the proposed constitutional code – the detail and the drafting –  and let it be examined and tested.

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Causes and effects and Brexit

24th April 2019

Battle of Naseby.jpg

When thinking and writing about Brexit I often recall the wise words of the great historian Conrad Russell.

Russell set about, between the mid-1970s and the early-1990s, re-considering and then revising the matter of what led to the English civil war.

His conclusion was, in effect, that we were asking the wrong questions.

His view was that to explain causes you had to consider first effects.

Here, the passage which I keep remembering is in his The Causes of the English Civil War, the printed edition of his Ford Lectures of 1987-88:

“In investigating causes, the first necessity is to match them with effects, and it therefore seems a logical priority to begin by trying to establish the effects for which causes must be found.

“If the effects are wrongly postulated, the causes will be wrong also.

“If we discuss causes without any investigation of effects, we are simply indulging in unverifiable speculation.”

(Sentences separated out for ease of on-screen reading.)

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So what are the “effects” of Brexit which we would need to explain if we are to understand the “causes” of the current predicament.

It would not be enough to explain why there was a referendum in June 2016, as the result was close and could have gone differently.

It would also not be enough to explain why there was a close Leave victory, as that would not explain (by itself) why the UK government then adopted the approach it did, from all other possible approaches.

And it would not be enough to explain why the UK government handled Brexit policy so badly after the referendum, as a great deal also came down to how EU27 responded, and this would need explaining in turn

There would seem to be no one grand cause of Brexit but a complex of different origins, any of which could have been different, and could have ended with different outcomes.

In the years to come, some historians and pundits will posit that whatever outcome we end up was inevitable all along.

(Those historians and pundits currently, however, have not any idea what will happen.)

As one great wit put it: history is a box of tricks we play upon the dead.

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Russell himself contended that the “effects” of the English civil war which needed explaining were: the Bishops’ wars, the English defeat, the failure to reach settlement, the failure to dissolve or prorogue parliament, the choice of sides, the failure to negotiate, and the problems of the king’s diminished majesty.

He averred:

“The removal of any one of these seven things could have prevented the civil war as we know it.”

This was his view, of course, other historians disagree – though few if any serious historians now suggest that there was just one or two big causes of the English civil war.

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The task for those of us who are seeking to explain the extraordinary contemporary phenomenon of Brexit is not to get caught up too much in the excitement of daily events, and also to not readily adopt the easy benefits of hindsight.

In other words: the key question is not only about why and how Brexit has unfolded in the way it has, but to also grasp why and how events did not go differently.

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Welcome to the new blog

17th March 2019

Jack of Kent is no more.

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

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

It seemed a good name for a legal blog.

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

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

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

So I have now killed the old fellow off.

Bye, Jack.

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

You will see the url has changed.

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

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

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

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

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

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

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

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

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

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

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

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