The public service of an “Enemy of the People”

22nd June 2024

You may remember this headline:

This was about the first of the two Brexit cases where the courts had to prevent the government acting in spite of parliament. The court held that an Act of Parliament was required for the Article 50 notification – and when this was upheld by the Supreme Court, such an Act of Parliament was duly (and quickly) passed.

But at the time, there were heightened emotions – and there were headlines like this: “enemies of the people”. The judges were, of course, nothing of the kind. The import of their decision was that our elected parliament should have a certain ultimate power, and not a prime minister exercising a discretion.

One of those three judges was the then Master of the Rolls, Lord Etherton.

Last week he received one of the very highest honours for public service, the GBE.

The citation should be read in full (and I have broken it up for ease of reading, and bold emphasis has been added):

“A retired judge and member of the House of Lords, he was Chair of the Law Commission of England and Wales from 2006 to 2009, Chancellor of the High Court from 2013 to 2016 and Master of the Rolls and Head of Civil Justice in England and Wales from 2016 to 2021.

“In May 2022, he was appointed as the chair, by the Chancellor of the Duchy of Lancaster and the Secretary of State for Defence, of the independent review into the impact of the historic ban on LGBT military personnel and veterans, which was published in July 2023.

“In writing his report, he personally read every testimony provided to the Review, over 1,400 pieces, some of considerable length. He met with veterans and charities throughout the UK, attended Prides throughout Britain, and met a range of ministers, other parliamentarians and military officers from the UK and abroad.

“He dedicated 15 months of his life, without pay or reward, to write and deliver the historic, ground-breaking report and the recommendations, which were fully accepted by the Government, are now being implemented in full.

“His work unveiled a culture of homophobia, bullying, blackmail, sexual assault, abusive investigations into sexual orientation and disgraceful medical examinations resulting in appalling consequences in terms of mental health and wellbeing, homelessness, employment, personal relationships and financial hardship.

“His commitment to the truth has helped draw a line under this unjust aspect of the history of the UK’s armed forces that persisted prior to 2000 but whose damaging consequences are still experienced by many LGBT veterans today.”

The report can be read here.

The introduction by Etherton is also worth reading:

“This Report is about the existence, enforcement and consequences of an official policy current in HM Armed Forces between 1967 and 2000 which is a stain on the illustrious history of the UK’s armed forces. The policy was that no person subject to service law who was gay, lesbian, transgender or transitioning due to gender dysphoria, or who was perceived to be such, even if they were not in fact, could be or remain a member of the armed forces. It made no difference that such military personnel had never engaged in same sex sexual relations or that they were not aware of being gay, lesbian or suffering from gender dysphoria when they joined the armed forces, sometimes when only 15 years of age.

“Some of those who offended against the policy of the Ban were either dismissed following a court-martial or administratively discharged. There were others who could not take the strain and stress of continually hiding their sexuality, and so resigned or did not extend their contract. The policy was not enforced uniformly across the armed forces but, where it was enforced, it was usually enforced in a rigorous and often brutal way with long term damaging consequences, many of which have blighted the lives of affected personnel to this day.

“At the heart of the Review which has led to this Report are the statements of those who were victims of this overt homophobic policy. Some victims have died a natural death since the Ban was removed. Others have taken their own lives. Many of those still living have attempted to die by suicide or have thought about doing so.

“Those statements give shocking evidence of a culture of homophobia, and of bullying, blackmail and sexual assaults, abusive investigations into sexual orientation and sexual preference, disgraceful medical examinations, including conversion therapy, peremptory discharges, and appalling consequences in terms of mental health and wellbeing, homelessness, employment, personal relationships and financial hardship.

“The survivors have waited for at least 23 years for acknowledgment of what they have suffered, and for justice and restitution. Their testimonies are very moving. In many cases, completion of their statements in response to the Review’s Call for Evidence has involved great emotional pain and courage in recalling and recording details of events which occurred decades ago but whose consequences are still acutely felt. Most have a strong feeling of bitterness at what took place. The Report contains quotations from those statements illustrating how the Ban operated in practice and its effect on the lives of those who suffered from it.

“The Report considers the factual and legal background to the Ban and its eventual abandonment in January 2000 after the European Court of Human Rights gave judgment in favour of four service personnel who were investigated and then discharged because of their homosexual orientation. The court held that the investigations and discharges in pursuance of Ministry of Defence (MoD) policy were in breach of Article 8 of the European Convention on Human Rights (right to respect for private and family life) as the UK had failed to establish that they were justified.

“The Report makes recommendations as to what might be done now by the government to acknowledge that the policy was wrong and unjust and in many cases has had life-long adverse consequences for those affected, and also to demonstrate that the service of veterans who suffered under the Ban is appreciated just as much as that of any other veterans who have served the interests of the nation. It considers how veterans affected by the Ban can now be better supported by health and welfare organisations such as the NHS and veterans’ charities.

“The Report is a unique record of what, to the modern eye, is an incomprehensible policy of homophobic bigotry in our armed forces. Promotion and enforcement of the policy by the MoD and by many in the senior ranks of the armed forces set the ethos for other serving personnel in all ranks. The armed forces today are a very different environment in terms of greater diversity and inclusion. My hope is that, if the government accepts all of my recommendations, which are briefly summarised in Annex 11, a line may finally be drawn under this unjust aspect of the history of the UK’s armed forces that persisted prior to 2000 but whose damaging consequences are still experienced by many LGBT veterans today.”

Views may differ on the 2016 tabloid headline quoted above, but there can be no sensible dispute that Etherton now deserves a headline just as bold:

“Servant of the Public”.

Of majorities and “super-majorities”

21st June 2024

The greatest prize that the constitution of the United Kingdom can bestow is a substantial parliamentary majority at a general election.

With such a majority you can be confident to pass major legislation, not worry too much about backbench opposition, and even face down the House of Lords.

And so one of the most remarkable things about the current government – which brought about its own emphatic general election victory in December 2019 by (among other things) “Getting Brexit Done” is how little use it has made of this great prize.

Some people are suggesting that after this next general election (in less than two weeks now) the Conservative may now be out of government for a very long time. Who knows? But if so, that will be a lengthy period for the politically-right-of-centre to kick themselves for not having used their chance to drive through fundamental reforms when they had it.

Many people would find it difficult to name – other than Brexit – one fundamental reform which current government has driven through with primary legislation. The last few Queen’s and now King’s speeches have been limp affairs.

All that political and legislative power – as close to absolute power that our constitutional arrangements can admit – and nothing, or close to nothing.

Given that part of the reason for the Brexit referendum and for then “getting Brexit done” was for the political advantage of the Conservatives, it seems odd. What was the (party political) point? All that chaos and dislocation, for this?

In the early 1990s the Conservatives lost their overall majority under John Major and then were out of office from 1997 – and in a long haul, and via a coalition, they eventually gained an overall majority only in 2015.

They promptly threw that away in 2017.

They then exploited an exceptional political situation in December 2019 and got that majority back, and then did nothing much with it.

And now that second chance at an overall majority is about to end.

Over at Prospect – please click here to read – I have done a post on the fears of a Labour “super majority”.

But what Tories should fear is not the use of a “super majority” but just the effective use of a sustainable and substantial parliamentary majority.

And that can be quite the forceful thing, not that the outgoing government ever really cared to use it.

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The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

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The predicted governing party implosion in historical and constitutional context

11th June 2024

From time to time the party now known as the Conservative and Unionist party has done badly – very badly.

In 1828-32, the old Tory collapsed as what some historians call the British “ancien regime” itself collapsed with Roman Catholic emancipation and the Reform Act of 1832.

Relatively moderate Tories, “Canningites” like Melbourne and Palmerston, went off to join with the Whigs.

But the Tories were back in government by 1834, and rebranded as by Peel as “Conservatives” they had an overall majority by 1841.

In 1845-46, the Conservatives collapsed as the Corn Laws were repealed (the “Brexit” of its day.

Relatively moderate Conservatives, “Peelites” like Gladstone, went off to ally themselves with the Whigs.

But the Conservatives were back in government by 1852, and after reinvention by Disraeli they had an overall majority by 1874.

In 1905-06, the Conservatives – now allied with the Liberal Unionists – collapsed, in good part because of splits on tariff reform and imperial preference (the “Brexit” of its day).

Relatively moderate Conservatives, “Free Traders” such as the young Winston Churchill, went off to join the Liberals.

But the Conservatives (who formally fused in 1912 with the Liberal Unionists to create the current Conservative and Unionist party) were back in government by 1916, and (posing as a national coalition) they had an overall majority by 1918.

And in 1997, the Conservatives lost badly, in good part to splits on the European issue following Maastricht and Black Wednesday (the “Brexit” of its day.

There were a number of defections of (now forgotten) Conservative politicians to the Labour and Liberal Democrat parties.

But the Conservatives were back in office by 2010, and they had an overall majority by 2015.

The four examples above have common themes – including the facts that the Tory-Unionist-Conservatives-National Coalition managed to get back into office again, before winning an overall majority at a later election.

There is also the example of 1945, where a heavy Conservative defeat was followed by taking office again by 1951.

But there is one theme which is different, and which may make what happens after the imminent general election in 2024 different.

After each of the defeats referred to above, the defeated rump of the party pretty much remained. It did not go off to create a new party to their right.

And so as the pendulum of politics in time moved away from those who had defeated that rump, they were able to take advantage.

Of course, they also often took the time and effort to rebrand or reinvent themselves. And they were able to take advantage of working with others, such as the Liberal Unionists after 1886 and the other parties in national coalitions from 1918 to 1935.

But they never had to deal with a party trying to take their place as the main party opposing the more left-wing party.

Here an analogy may be with the Liberals, who last won an overall majority in 1906 – and were then after 1906 outpaced by the rising Labour party.

All because the Tory-Unionist-Conservatives have come back each time before, it does not mean that they necessarily will do again.

The “first past the post” electoral system tends to favour established parties with their established brand names – and tribal loyalty and voters’ muscle memory will tend to do the rest.

As such, the Conservatives have an advantage over the Reform party now trying to outpace it to the right.

It may well be that the Reform party do no better than flash-in-the-pan(ic) parties like the “New Party” of 1931-32 and the SDP of 1981-88.

But when the electoral system finally shifts against a party, it shifts – as the Liberals found out after 1906.

And until and unless there is fundamental electoral reform, the Conservatives not only face heavy defeat (which they have survived many times before) but also a spirited attempt by Reform to be their replacement.

So, if as widely predicted there is a heavy defeat for the Conservatives on 4 July 2024, will they soon bounce back as they (and their previous incarnations) did after 1832, 1846, 1906, 1945 and 1997?

Or will this be their equivalent to what happened to the Liberals in 1906?

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Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy

1st June 2024

On balance, the prosecution of Donald Trump in New York did not look likely to succeed.

The prosecution had to show that certain business records were falsified at the direction of or on behalf of the defendant, and falsified for a further unlawful purpose.

That was a lot for a prosecution to prove – especially when there is no documentary admission that the defendant said “I direct that these records be falsified” and “I also direct that those records should be falsified for this ulterior wrongful purpose”.

What made such a prosecution even more difficult was that a key prosecution witness was a self-confessed liar with a self-confessed grudge.

And what made such a prosecution even more difficult than that is that the jury verdict had to be unanimous.

Regardless of the celebrity – or notoriety – of the the defendant in this particular case, these general features made this look like an ambitious prosecution.

But.

The prosecution pulled it off.

The prosecution were able to satisfy the unanimous jury that the records were falsified at the direction of or on behalf of Trump for the unlawful purpose of affecting an election. The prosecution was able to corroborate the evidence of its key witness.

Overall, and again regardless of the identity of the defendant, it was an impressive piece of lawyering.

And as Joel Taylor remarked on Twitter, it was also an impressive piece of jurying.

Yet it must be said that it was an unimpressive piece of defending.

Of course, Trump had the right – indeed, as an American, a constitutional right – not to give evidence.

And, of course, it was open to the defence to test the prosecution case without putting forward a positive account of the facts – especially in an elaborate and complicated case like this.

But one gained a sense in this case that a wiser defendant would have allowed the defence to adopt a different approach.

Yes: Michael Cohen, the self confessed liar and grudge holder, could be attacked in respect of his credibility.

But when the prosecution has been careful to corroborate almost all the material points in his evidence, then attacking Cohen’s credibility may not be sufficient.

The defence strategy here was not hopeless – it could have worked had the jury become preoccupied with Cohen – but it was a risky one to adopt.

The defence really had to put forward an overall positive explanation for the sequence of documented communications, authorisations and payments that the prosecution put before the jury – an explanation more plausible (and lawful) than the (unlawful) explanation advanced by the prosecution.

An explanation that would, in essence, raise reasonable doubts that that the prosecution version of events would be the true one.

And it appears that the defence did not do so, leaving the jury with only one explanation that covered the mass of documentation that fraudulent records were created to disguise unlawful payments: the prosecution’s explanation.

Trump and his lawyers wanted to tell the story of a corrupt prosecution and a dishonest witness, but the story they really needed instead to tell was that which explained the entirety of the evidence before the jury.

They ended up telling the wrong story.

Previously I have pointed out that a court hearing – a trial – is where Trump is a fish out of the water:

What works for Trump in one, well-versed context does not work for him in another.

One can see why, among other reasons, he wants to put off the other court cases as long as possible, even if he can weaponise them for fund-raising and campaigning. Trials are a thing he cannot dominate by his usual strength of will and cunning alone.

(This also may be related to his aversion, when in office, of committing troops to combat situations – another means by which he would lose control of events and narratives.)

Because Trump cannot win in court, he has to win outside of court.

Just like because he did not win the last presidential election, he has to win outside of the electoral college.

And he does this, of course, by discrediting the process – by attacking the very legitimacy of institutions.

This hyper-partisanship regarding “stolen” elections and “corrupt” courts is dangerous.

Legitimacy can be fragile, and if the legitimacy of democratic and judicial processes is undermined then a polity will quickly become unhappy and fractured.

For if people do not believe in the legitimacy of democratic and judicial processes then they will tend to find other, less peaceful ways of addressing their political concerns.

And this is where the political and judicial systems themselves need to mount a plausible defence.

Trump may not be the master inside a courtroom, but he is a formidable and politically lethal operator outside the courtroom.

As always, it is not enough for justice to be done, justice needs to be shown to be done.

Trump and his supporters are now mounting an outright attack on the legitimacy of political and judicial institutions.

It may not only be Trump that needs a good defence strategy.

The unwelcome weaponisation of police complaints as part of ordinary politics

31st May 2024

Here is a news snippet that showed the sheer dislocation in our politics.

It is from 2022. You may remember the context.

There was always something that seemed wrong about “Beergate”.

But one has to be careful to identify exactly what was wrong.

The proposition that politicians were subject to the law is one which should get universal assent in a liberal society.

And that the course of police investigations should not be subjected to political interference is another fine principle.

Instead the problem was about how the complaint and investigation was weaponised politically.

It appeared that politically motivated complaints to the police were to become a feature of our politics.

And that did not seem right.

Less obvious, however, was what to do about it.

For, as this blog has averred before, not every political problem has a solution.

“Beergate” was not to be a one-off.

The tax affairs of Angela Rayner also led to a politically motivated complaint to the police and to a clamour on newspaper front pages.

And, just as with “Beergate”, the serious allegations were found not to warrant any further action.

But again it is less obvious what formally can be done about it. What law could be enacted or policy adopted to make sure It Never Happens Again.

This week at Prospect (click and read here) I set out that any solution will have to come from the world of politics and not the legal system.

There should be a self-denying ordinance: a sense that this is not acceptable politics.

And, if that does not work, we can only hope the tactic becomes seen as ineffective, and it falls into disuse.

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Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end

29 May 2024

When the general election was suddenly called I was in the middle of writing about another legal topic for Prospect.

And then when the current Prime Minister squelchingly announced a general election, I was asked if I could quickly write about that instead.

My first thought was that this new general election told us something about the unintended consequences of constitutional reform – for the Fixed-term Parliaments Act 2011 was supposed to put an end to this sort of thing.

Had the Act had its intended prime effect, we would still be 4/5 way through the 2020-25 parliament, which would have followed the 2015-20 parliament.

But, of course, that did not happen.

Instead of an orderly and leisurely succession of predictable five-year parliaments, we have had consistent political chaos and constant constitutional drama.

We had a general elections in 2017 and 2019 by sidestepping (in two different ways) the primary object of the 2011 Act, and then the Act itself was repealed in 2022.

That is not to say the Act was ineffective: it certainly had effects.

Indeed the extraordinary events of late 2019 – where Parliament insisted with the Benn Act that there could not be a no-deal Brexit which, when enacted, enabled the then Prime Minister to get opposition support for a December general election – only make sense by knowing the constraints of the 2011 Act in stopping that Prime Minister calling a sooner election.

And the course of that 2017-19 “hung” parliament – a much underestimated parliament, though it certainly frustrated those who dislike having parliamentary checks and balances on executive power – can also only be understood by knowing that a Prime Minister was not able to easily call another general election.

The Fixed-term Parliaments Act 2011 certainly was an effective piece of legislation, they were just not the effects that were intended.

But writing about that 2011 statute did not seem enough to carry a Prospect article.

I was stuck.

And then…

…and then this was tweeted – and widely retweeted:

It is safe to say that in thirty years of thinking about constitutional issues I have never considered such a question: could a general election, once called, somehow be un-called?

What a notion!

Constitutional law should not be this fun; constitutional law should be dull.

And not only had I never considered it, I also could not think of an immediate answer to the question.

The historian and commentator Robert Saunders mentioned that in 1831 the following happened:

Perhaps a vote like this could have been passed by a majority of the House of Commons, but it would have had to have been done very quickly.

And it would have required, well, a majority of the House of Commons – and those government backbenchers aghast at the sudden general election are presumably a minority.

So that was not going to happen.

The only other realistic way would be for there to be a change of Prime Minister – or a change of mind by the Prime Minister.

And that would all have to been done before parliament dissolved tomorrow (30 May 2024).

That has not happened.

And it is difficult to think how it could have happened, for there would not have been enough time for a vote of no confidence and a new election for a new Conservative leader. It also assumes that the King would have accepted the new leader immediately as Prime Minister.

It is a measure of how strange the last few years have been that such a possibility was canvassed.

Another way for the general election to be un-called could be perhaps a judicial review going even further than “Miller II” – which merely quashed a prorogation – that attacked the very proclamation of a general election.

That would have been a breathtaking (and rather entertaining) invitation to the courts for an extension of the remit of judicial review – and surely those government supporters who were upset by the Miller cases would not resort to such an ambitious and bold legal claim.

And now, we will perhaps never know how such an un-calling of an election would be done in practice.

As I mention in the Prospect article (please click and read), it may be that with this general election our period of constitutional giddiness is coming to an end.

Or it may be that there are new constitutional excitements ahead: the moves towards Irish unification and Scottish independence, towards a closer and more sustainable relationship with the European Union, and towards a reformed House of Lords. There may even be scope for a re-examination of the role and powers of the Crown as and when there is a new monarch.

So a “brace” – if not a “brace, brace”.

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Another inquiry report, another massive public policy failure revealed

21st May 2024

There are so many governmental scandals that it is difficult to keep up with them all, and one horrific scandal this blog has not before covered is about contaminated blood.

This week this inquiry report was published, and even a cursory view of its conclusions is evocative of the public policy failures that have been covered here.

There are two points in particular which will stand out for followers of this blog.

The first point is that it appears that officials did not tell ministers everything. You may recall that this was also the problem with the Post Office horizon scandal. You may also recall that the Afghan war crimes inquiry has also revealed that officials were not forthcoming – and even obstructive – even when there was a determined minister seeking explanations.

It is this disconnect – if not breakdown – between ministers and departments that undermines and indeed discredits the old doctrine of individual ministerial responsibility (which I also wrote about at Prospect).

A minister cannot be meaningfully responsible to parliament (and thereby to the media and the public) if they themselves are given duff and misleading information. As the techies among you will know: GIGO – or garbage in, garbage out.

And this leads to the second point: this inquiry is yet another example of an exercise in accountability that should and could have been undertaken by parliament and in real-time. (My Prospect piece on this is here.)

Instead, and long after many of the key events, it has been left to an inquiry to show what happened at the material times – and what went wrong at the material times.

As such, this is another example of failure by our parliamentary system to provide proper, real-time scrutiny.

Parliament is simply not well-equipped to force information and materials out of an unwilling government. Parliamentary questions are easily batted back; select committees have few real powers to prise out documents.

And our media is also not well-equipped. Press offices are unhelpful when the queries are unwanted; freedom of information in the United Kingdom has no real teeth. A great deal of press scrutiny – perhaps too much – is dependent on briefings: information is disclosed only when it suits someone in government.

How many more inquiries – with damning detail and revelatory narratives – are we to have before we realise that it is parliament that needs significantly strengthening?

Parliamentarians should have access to coercive powers to compel evidence from ministers and officials which are no less powerful than those available to public inquiries.

And parliamentary questions as a norm should be addressed to and answered by the actual officials responsible, rather than the evasive and convenient fiction that ministers are responsible for entire departments.

But all this would require taking parliament seriously.

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On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed

Star Wars Day, 2024

I once came across a quote in a history book which I have never been able to re-find. It was from an acquaintance of I think Lord Randolph Churchill (Winston’s father), or perhaps of Benjamin Disraeli, and it was along the lines of:

“Dear Sir, you do not believe that there are actually solutions to political problems?”

This astonished admonishment from a Victorian politician has lingered.

There is a conceit in the notion that just because a problem can be stated it thereby can be solved. Maybe this fallacy comes about by reason of human optimism, that articulating a problem means that somewhere somehow it can be remedied.

If course, stating a problem accurately and plainly is a necessary condition of it being solved.

But it often is not sufficient – at least not in terms of public policy.

And one problem is how, if at all, the media should be regulated.

Not long ago the media were far easier to regulate.

This was because there were fewer media entities to regulate and the ability to publish and to broadcast was more restricted.

Indeed, until the 1990s it was was actually quite difficult for most people to publish or broadcast to the world – or even to circulate things beyond your immediate circle or place. You had to go through gatekeepers who had a near-monopoly of the means of publication and broadcast: newspaper titles, publishing housed, broadcast stations.

From time to time there would be the spirited eccentrics who would, say, set up up a pirate radio station in the North Sea or self-publish books and pamphlets. But such self-publication was derided as a “vanity”.

(Little did they realise the upcoming relentless mass self-publications of social media.)

That such self-publication was possible at least in theory was always an important principle- indeed, it was the original meaning of the phrase “freedom of the press” (a 2012 New Statesman post on this is one of my favourite pieces).

But few if any sensible people had a press at home, even though could have one.

Now most people have access to the means of publishing and broadcasting to the world.

The device you are reading this on is no doubt capable of such worldwide publication or broadcast, at least via a social media platform.

And just as it was once odd to possess a personal printing press or pirate radio ship, it is now similarly odd not to personally possess something capable of far greater publication or broadcast.

For want of a better word, this is an information and communications revolution. A fundamental shift, comparable to the first writing and alphabets, or the invention of movable type.

And the implications of this revolution are still being worked out – if they can be worked out at all.

How – if all – can media be regulated now that everyone is a potential publisher?

My day job is as a media and communications (and commercial) lawyer – constitutional law is a mad hobby – and I see everyday the attempted use of law and policy to try to make people and companies do things (and not do things) which they otherwise would not do (or would do) but for that law and policy.

Such regulation is hard. Sometimes it is ineffective. Sometimes it is ignored. Sometimes it has unintended effects. Sometimes, even, it works.

Turning to the wrongful conduct of parts of the news media in the first decade of this century (and before), there is no doubt bad things happened – and there is also no doubt that we do no know the extent of the bad things that happened.

And the one thing that can be correctly said of the Leveson Inquiry – and of the criminal and civil litigation that followed – is that a lot of these bad things were placed into the public domain which otherwise would not have been placed into the public domain.

This was a boon for the public understanding of the news media.

But.

The purpose of the Leveson Inquiry (of which only one of two parts took place) was to use that investigation for the purpose of proposing a new regulatory model.

And this is where there is maybe a category error.

For what happened in the UK news media before around 2012 is not a good data set for regulating the news media in 2024 and beyond.

Indeed, it is far harder to say what is now news media. You cannot walk down Fleet Street and its environs and point, saying “there” and “there” and “there”.

For example, if a freelance journalist has a social media following of hundreds of thousands they often can have a bigger “circulation” than any title they work for. In those circumstances, what practical purpose would there be in just regulating the latter? And if you try to regulate the former, at what point do you stop trying to regulate everyone?

Anyway, please now click here and read my article at Prospect on whether “Leveson 2” should take place.

And tell me and other readers of this blog what you think.

For, dear Sirs and Madams, you – unlike me – may believe that there are actually solutions to political problems.

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Trump’s case – a view from an English legal perspective

24th April 2024

I am not an American lawyer, but here are some thoughts from an English litigation perspective.

Trump is adept at what he calls (or his ghost writer called) ‘the art of the deal’ – that is a transactional approach based on exploiting leverage.

Such an approach is not unhelpful in pre-trial shenanigans, where it is one party dealing with another party. Pre-trial litigation is often deal-making by another name. But when a dispute gets to court (and most Trump-related litigation does not get to a courtroom) then such bilateral game-playing becomes far less important. A third party – the judge (and sometimes jury) takes power. Trump’s blustering and bargaining is not well suited for this. Bullying will now not be enough.

And there will also be another thing he now cannot control: evidence. And this evidence will feed into the media mainstream, with the added credibility of being on oath. For somebody who is a deft manipulator of the media and his public image this los of information control will also be painful for him.

I have no idea if Trump will be convicted. I suspect it will be hard to get a conviction.

But he is now a fish out of water, at least for a while.

Comments Policy

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, or if they risk derailing the discussion.

More on the comments policy is here.