Month: Jan 2021

2021i29, Friday: remote learning.

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A 10-day trial is tiring. Done remotely, it’s exhausting; a few thoughts on how to cope. And a couple of wise lessons on motivated reasoning and analogies: food for thought for us advocates.

Short thought: The first four weeks of January 2021 comprised two back-to-back employment tribunal hearings: a four-day one (albeit that it wrapped up in three) and a 10-day one. Both were conducted remotely, using CVP (the courts and tribunals service’s preferred videoconference system, since it works on a smartphone or tablet without the need for a download). 

Both, sadly, we lost. But doing that much remote hearing work in quick succession drove home some important points. I may expand into a proper piece at some stage, and none of this is particularly new, but for those whose remote experience may be limited to single-day trials or applications, bear the following in mind:

  1. They’re exhausting. It might feel lovely to be sitting in your study (assuming you have one – a fairly large assumption, I admit). But the lack of physical presence is surprisingly wearing. The need to be alive to non-verbal cues on postage stamp-sized thumbnails is taxing, while the lack of physicality is itself equally wearing. The ET judge in the 10-dayer religiously took a break every hour, and he was absolutely right to do so. Even so, after five days of witnesses I was absolutely shattered. 
  2. Screen space is critical. Don’t try to do this on a laptop alone – or even, frankly, a single big desktop screen. Two screens are a minimum. Play with the arrangement: having notes (I touch-type) and the videoconference immediately in front works for me, with the bundle off to one side. But everyone’s mileage varies. I also had an iPad set up as a third screen, carrying the witness statements, but that might not be necessary for everyone.
  3. Don’t use Word for notes. Or if you do, don’t try to use bullets or numbering. I have an M1 MacBook Pro, which is incredibly fast even by desktop standards. But I was keeping XX notes in a Word document, along with my questions. Everything was numbered and indented, and on day 2 typing lag became intolerable. I switched to an app without Word’s overhead (Obsidian – more of that another day) and everything went smoothly. Never again.
  4. Use the right A/V kit. In my case, a Blue Yeti mic, a Razer Kiyo webcam, and earbuds (Anker Soundcore ones). For a brief hearing I’d be OK relying on inbuilt mic and camera. But not for a multi-day. Why look and sound worse than you have to?
  5. Finally, back to exhaustion. Eat properly. Drink lots of water. Go for a walk or run every morning before the day’s hearing, and preferably after it’s done too before cracking into prep for the following day. Try to sleep (always a challenge for me). Enjoy the fact that you’re not in a hotel somewhere benighted. And accept that when the submissions are finally done, you’re going to flop.

Notwithstanding all the above, it’s clear remote hearings are with us for a while – and for interlocutory matters likely to remain the norm. Professionally, we owe it to ourselves to get used to them. So invest in the kit, learn to work paperlessly, find the setup that’s right for you. Otherwise, it’s like turning up to court with a bundle printed on paper the size of a credit card bearing your notes in invisible ink: it makes your life far harder, and it stacks the odds against your client. Not really the professional way to do things.

Someone is right on the internet: Earlier this week I wrote about tools for thinking. Tim Harford – FT columnist, More or Less presenter, role-playing gamer and someone who’s a good deal smarter than me – considered something similar in the FT yesterday. (For non-FT subscribers, Tim’s own blog usually carries his FT stuff about a month in arrears. For anyone on the RSS train, well worth following; for anyone else, well worth a regular check-in.) 

Tim’s focus was on motivated reasoning – similar to confirmation bias, where one’s need, desire or willingness to believe something can lead us to see truth where none exists. He uses as the basis for his tale a fascinating story of a fake Vermeer, which fooled the Netherlands’ foremost expert on the painter in the 1930s and became a cause célèbre when the forger was found to have sold paintings to the Nazis, but freed himself from a treason charge by proving his fakery. (He became something of a folk hero – with another slice of motivated reasoning cutting in as people ignored, overlooked or simply “forgot” that he was arguably a Nazi himself.)

Tim’s piece is fantastic. His key advice chimes well with mine, and is simple – if not always easy – to put into effect:

Any of us is capable of falling for a lie. There is no guaranteed method of keeping ourselves safe — except to believe nothing at all, a corrosive cynicism which is even worse than gullibility. But I can offer a simple habit of mind that I have found helpful. When you are asked to believe something — a newspaper headline, a statistic, a claim on social media — stop for a moment and notice your own feelings. Are you feeling defensive, vindicated, angry, smug? Whatever the emotional reaction, take note of it. Having done so, you may be thinking more clearly already.

Well worth reading. Tim is an excellent story-teller, and has a skill with anecdote and analogy that we advocates could usefully learn from. His podcasts, including Cautionary Tales and 50 Things that Made the Modern Economy, are short, elegant and fascinating. Excellent training materials for barristers everywhere.

On analogies: I never knew a silk called Edmund King, from Essex Court, who died just before Christmas of cancer. I wish I had; it seems he was a great advocate and human being. One of his final gifts to the profession was a wonderful piece entitled “How to lose a case”, published on Essex Court’s website, which gave a dozen or so pieces of excellent advice on what not to do in complex litigation. 

In a paragraph about the importance of making complex things seem simple, he stressed the value of analogies. I won’t spoil the piece, but he points to two cases in which he said a good analogy changed everything. Take a look at one of them: Harbourmaster at paragraph 27. The impact of the analogy is palpable. 

The rest of Edmund’s piece is fantastic too. (His intro, with its reference to marriage advice from a celibate priest, endeared him to me instantly.) Read and learn. I did. And as a result, regretted deeply the loss of a man I’ll never now meet.

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2021i27, Wednesday: “The vital importance of audit.”

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It’s a complex world, drowning in data. But there are tools to help the brain cut through. And they help litigators, too.

Short-ish thought/someone is right on the internet: An all-in-one today – mostly about thinking tools, but with a legal sting in the tail. (Promise!) When I’m talking to my daughter about the welter of information (and mis- and dis-information) that floods across her perception each day, I struggle – as, I imagine, do most parents – to boil the problem down into strategies anyone can actually make work.

“Check the source” is great – but mostly it’s so far removed it’s not going to be evident. “Check the intention” is better; if you can at least make an educated guess about someone’s motives, it tells you a lot. But it’s still too hard for the everyday.

So I’ve settled on a couple of things. In a way, they mean much the same; but there are subtle and I believe useful distinctions. And I think they work just as well for adults:

  • First, one about delivery: beware of certainty. Certainty usually implies an unwillingness to learn, or a refusal to accept nuance. The HL Mencken line – that “for every complex problem there’s a solution that’s clear, simple and wrong” – is only too true. As is the rueful joke that there ought to be a “You know, it might be a bit more complicated than that” party out there somewhere. Put all that together, and being very careful of stuff told you by people whose presentation of it implies that they KNOW they’re right, they KNOW it’s true, becomes a sound strategy.
  • Second, one about people. A core test for me, and one I try to persuade my daughter to adopt, is to look at the person I’m talking to and try to imagine them saying, “I could be wrong”, and meaning it. If I can, I’ll listen. If I can’t, there’s a problem. The other value of this one, of course, is one can apply it to oneself. Am I being sufficiently humble about my state of knowledge? Or am I trapping myself or misleading others about the risk of inaccuracy? (I used to use this one as a reporter sometimes when interviewing someone about some plan their organisation had. I’d ask them: what could go wrong with this? If I got a sensible, thoughtful answer, I’d tend to feel a lot better about the plan; it seemed, in modern parlance, like someone might have run a pre-mortem. If I didn’t – and goodness knows I very rarely did – the temptation to do a Paxman and ask myself “why is this lying liar lying to me” got an awful lot stronger.)

The other critical one, of course, is an awareness of confirmation bias. There are a million cognitive biases, but this one’s the killer – because it means we test information which confirms our core beliefs with far less care than stuff that doesn’t. 

God knows I fall down on all three of these, every day. But they’re vital tools; and if I can help my daughter adopt them, I’ll have done at least one thing right as a parent.

Hold on a minute, you may say: I thought this was a SIROTI. Where’s the link?

In fact, it’s to something I’ve linked to before, but it’s more important than ever. Dan Davies of D-Squared Digestnotoriety once coined three rules which he said he’d learned in business school and dubbed the “One Minute MBA”. He promulgated them after the Iraq War in relation to (as it turned out) the abject absence of the WMDs which were the ostensible reason for the 2003 Iraq invasion. In short:

  • Good ideas do not need lots of lies told about them in order to gain public acceptance. When anyone handwaves a bunch of deliberate untruths and says that the end justifies the means, walk away. Fast.
  • Fibbers’ forecasts are worthless. Simply put: you can’t fudge or mitigate or moderate forecasts made by a liar. They’re worthless. Ignore them altogether.
  • The vital importance of audit. You need to set the success boundaries for a project before you start – and then you need to check your working afterwards. Anyone who won’t do the first, or seems to fail to want to learn from the second? Again, ignore them if you can. Vote them out if you can’t. They’re dangerous.

I’ve found them enormously effective as a test for all kinds of other things, both political and otherwise. I’ll leave their application to our various current travails as an exercise for the reader. 

The last of these three, the audit bit, is to my mind the really important one – and it chimes back to the original tools. Acknowledging how things actually went – asking the “so how did we do?” question and wanting to know the answer – isn’t just basic intellectual honesty; it’s the most fundamental requirement for doing things better in the future. And checking your working is at the heart of that.

Own your errors. Learn from them. Do better. Anything else, from anyone with any kind of responsibility to others, is a betrayal of that responsibility.

Don’t get me wrong. I’m writing badly if for a second I seem to be falling into the trap of putting all public figures into a big box marked “liar”. Humans lie. It’s what we do. The important thing is how much, when and why. It’s too easy, and ultimately incredibly self-defeating and damaging, to play that political game. 

But the next time some grand plan is espoused, by anyone, listen for the lies told to sell it, the forecasts made, the success metrics. And then watch out later on to see if those metrics are taken seriously – or are handwaved. It’ll tell you a lot about whether you can trust those making the play.

(And now for the legal bit. I’m a great believer, in court, in crafting a narrative. Starting with one’s case theory, it’s vitally important to end up with a story that makes sense. A lot of things can happen during a case, of course, but the team with the most Occam’s Razor-friendly story to tell starts comfortably ahead. 

This is where the One Minute MBA can be really useful. On the one hand, if you can show exaggeration or false forecasts from the other side, that’s a great way to undermine credibility; and if they’ve skirted around anything auditable (or have tried to handwave their promised outcomes later) that, too, is a fantastic lever on which to push.

On the other, of course, if it’s your side that’s got the outlandish predictions and the dodged promises, don’t under any circumstances hope no-one will notice. Your story will have to explain them, rationalise them – if at all possible, find a way of making them sound sensible rather than left-field. Otherwise no-one’s going to live happily ever after.)

Combine a suspicion of certainty, “I could be wrong”, an awareness of confirmation bias, and the One Minute MBA, and that’s a powerful toolbox for dealing with the blizzard of BS in which we all find ourselves. (An appreciation of the difference between lies and BS is useful too.) 

Might be a bit much for a 14 year old, not least because I (like all adults) struggle to put it into effect myself. But I think it’s a start.

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2021i25, Monday: sticking the landing.

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Approaching the last episode of a long-running TV show is terrifying. Will it be a TNG – or a BSG? A fitting end or a final insult?

Rest in peace: Sorry. Couldn’t let this go by without marking it. Mira Furlan, who was a star (and, with Andreas Katsulas, very much the soul) of Babylon 5, died last week. Nothing much to say that she – or J Michael Straczynski – hasn’t already said. Except thanks. From the depths of my heart, thanks. And may flights of angels sing thee to thy rest.

Short thought: Anyone who watches TV knows that feeling. A series you love, one that’s taken you places full of emotion, apprehension and excitement, one whose characters have grown and changed and learned and sometimes died, is drawing to an end.

And you’re scared. Because you don’t know if they’re going to stick the landing or not.

Put simply: is it going to be a Next Generation, or a Battlestar Galactica? Will it leave you feeling fulfilled or angry?

Some do both to different people. The Sopranos is probably the greatest case in point: the sudden cut at the end of the final show, with no-one knowing what actually happened, divided fans squarely down the middle. (I never really got into the Sopranos, so this is academic. But I empathise.)

From a genre perspective, I’ve been lucky. DS9 stuck the landing – indeed, the back half of its final season was almost uniformly wonderful. Babylon 5’s final season was patchy, but its last episode was transcendent. Fringe took its aggressive weirdness to the edge, and won. Person of Interest, Orphan Black, Elementary, the Good Place: they all went out on top. 

(Let’s not talk about the shows cut off in their prime. Firefly, Dark Angel: I’m thinking of you, with tears in my eyes.)

So the final season of Star Wars: the Clone Wars was a worry. With the weight of Star Wars mythology to navigate, and Revenge of the Sith ready to ruin everything if it got the chance, would they manage it?

Short answer. Yes. Gloriously. Tragically. With heart and soul.

As always, no spoilers – except to say that anyone with a soft spot for Ahsoka Tano (in other words, all right-thinking people everywhere) is going to love it. The final four episodes in particular comprise in effect one awe-inspiring 90-minute animated feature, that gets almost everything – direction, music, script, character and pace – just right.

If Star Wars means anything to you, anything at all: watch it. 

And be prepared for a tear or two. No shame in that.

Someone is right on the internet: Well, technically someone is good on the internet. 

I mentioned a week or two ago the glory that is RSS – and mentioned too my use of Feedbin as a back-end service to look after my RSS needs. I also mentioned Reeder as my feed-reading app of choice.

That wasn’t always the way. The grandparent of all Mac (and later iOS) RSS apps was NetNewsWire, developed by Brent Simmons. It was a lovely app, and like many other old-line Mac users it was my staple. Brent moved on to other things in around 2011 and sold NNW. And somewhere along the line I discovered Reeder and switched. But NNW was still my RSS gateway app, and Brent is one of the old guard of generous, wonderful developers, whose work I continue to follow with interest and gratitude. 

Brent’s “work” domain was always ranchero.com. He’d never bought NetNewsWire.com back in the day; and so, as humans will, someone else bought it – probably in the hope of making a quick buck flogging it to him. Brent never did so.

But in an instance of truly joy-inspiring humanity Ben Ubois – the creator of Feedbin – has acquired it, and given it to Brent for free. Don’t know what his motive was; but the sight of one RSS pioneer doing something beautiful for another is good for the soul.

I’ve always believed we all have better angels, if we choose to let them fly. Believing that is what keeps me sane, particularly over the past half-decade or so when it’s been a bit tougher to hold onto that article of faith. Things like this restore that faith. Blessings.

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2021i22, Friday: floating cats.

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It’s Friday. It’s been a long week. So seriousness can go hang.

Short thought/good read: Christopher Paolini’s To Sleep in a Sea of Stars is a huge book. A quarter of the way through, it’s proving to be a fine one, too. 

In line with my normal principles, no spoilers; and there are reviews aplenty that a quick web search will produce. (There’s also the first several chapters online to read, and to listen to. So no need to dive in and purchase without tasting first.)

But there’s one lovely bit that came at a perfect time. Our kitten, Iroh, is proving to be an acrobat par excellence. Her ability to jump is remarkable; it involved earlier this week an almost parkour-like bounce off a wall to get to the top of a bookcase. And as for her tendency to jump up and grab door handles with both front paws: well, no-one’s yet told her that she doesn’t have opposable thumbs, clearly.

Which is why daughter and I idly speculated a couple of days ago about whether cats would make good space pets. Their grace, balance and agility would be unbeatable in micro-gravity, we mused.

Blow me down if Paolini doesn’t then, the very next day, produce a cat in a starship, grabbing a ladder with its paws and launching itself like an arrow down a corridor. Fantastic stuff. 

If only it wasn’t called Mr Fuzzypants, puir wee beastie. But you can’t have everything. 

Someone is right on the internet: This is just beautiful. For Japanophiles like me, Spoon & Tamago (which means “egg”, incidentally) is a lovely site, bringing all kinds of Japanese artistic and cultural wonder to our lives. 

And not just artistry. Natural wonder comes, too. As with these fabulous pix from Japan’s northernmost main island, Hokkaido. I had no idea this freezing phenomenon was possible. And my life is the better for knowing it is.

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2021i21, Thursday: shinjirarenai hodo oishii.

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Translation: delicious beyond belief. My favourite Japanese delivery place has gone national. And a smart and luminous way of adding randomness.

Short thought: Before the Bug, when I worked in London most days, every so often I’d treat myself to Japanese food – thanks to Waso. It was a delivery service which brought amazing bento boxes to your office, in a half-hour time slot. 

Then came the pandemic. It nearly killed Waso as offices shut down. Thank goodness it managed to re-create itself delivering Japanese meals (and indeed other cuisines, too) to people’s homes. I was delighted – but desolated that it only delivered in London. Our Essex fastness was too far out.

Now, at last, they’re starting to deliver nationally. Once a week – but that’s plenty good enough. And I couldn’t be happier. I want to hug its founder, Toshihiro Yoshimura. Unfortunately our freezer is a bit full – but as soon as we can eat it down, I’m bulk ordering.

Ganbatte kureyo, Toshi-san. Your food is wonderful. Your business is too. Consider me delighted that I’m back to being a happy customer.

Someone is right on the internet: quick one, this. And a bit of an old one. But as anyone with even vaguely geekish pretensions will probably know, computers don’t really do random. The best they can manage is pseudorandom: something that looks like a dice roll but really isn’t.

So perhaps it’s not surprising that a company in need of randomness for security reasons will look to something analogue in order to service purposes. And CloudFlare (that’s the outfit that blew the whistle on the Solar Winds fiasco) uses lava lamps.

Yes. Lava lamps. Whole rooms of them.

Go and have a look. It’s just wonderful.

(Thanks to Jason Kottke for spotting it.)

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2021i18, Monday: Eight legs. Nine brains. All good.

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Again, a quick hit because I’m in court later this morning. But this one’s for lovers of octopuses everywhere.

Someone is right on the internet/books to expand the mind: Not too long ago I highlighted Children of Ruin, by Adrian Tchaikovsky, as a book I was looking forward to. (Update: I’m done with it. It was fantastic.) I do revile spoilers, but I’m really not giving anything much away when I say the book involves octopuses in a pretty big way.

I love octopuses. They’re gloriously weird (video embedded below, but linked here if you prefer that sort of thing), in comparison to us bipedal vertebrates who struggle with the idea of a creature with – in effect – brains in each leg. (That’s leg, not tentacle. Tentacles are feeding appendages with suckers only at their ends.) There’s a serious body of thought (encapsulated in the wonderful Other Minds, by Peter Godfrey-Smith) that postulates that they’re sentient – at least to some degree, assuming sentience is a matter of degree rather than a digital yes-no question – and that they’re therefore the closest thing we’ve yet encountered to a wholly alien intelligence. At least from our (perhaps limited) primate point of view.

(I now recall eating a tiny baby octopus, whole, served as an appetiser in Japan, with a fair degree of revulsion. It was 20-odd years ago, but still…)

And to make it even better, it turns out that at least two members of the Outer Temple family – one of this year’s pupils, and one of next year’s – are as fascinated by them as I am, if not more so. I can’t believe we’re alone in forming an informal cephalopod fan club. Who’s with us?

(If your taste in cephalopods stretches beyond the octopus, then security guru Bruce Schneier has, for years, put up a weekly Friday Squid Blogging post. Admittedly, sometimes – as here – it’s a recipe (ouch); and it’s also an excuse to provide a forum for his readers to chat about security issues. But it’s a lovely touch. Well worth a look.)

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2021i15, Friday: Thank God it wasn’t me.

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In (virtual) court for a 10 day hearing at the moment. So again I’ll be brief. A wrenching judgment, and a lovely bit of writing about a friendly neighbourhood hero.

Short thought: Whenever I’m talking to law students, I always say: read the judgments. Not just the brief snippets with the authoritative bit you want to quote. No; read the whole thing when you can. Partly for the context, of course. (And because every advocate has, albeit hopefully only once, done that thing where you find a fabulous quote, but overlook the perfect way of distinguishing and thus destroying your point two paragraphs further down. Which, of course, your opponent finds and seizes upon to devastating effect.) But mostly because the best judgments are some of the most phenomenal legal writing you’ll ever be exposed to; an education in themselves.

Put differently – when I read a really good one, I find myself thinking: I want to write like that when I grow up.

But every so often comes a judgment… and you’re so, so glad you weren’t the one who had to write it. Guy’s & Thomas’s v Pippa Knight [2021] EWHC 25 (Fam) is one such.

The story’s heart-wrenching. Pippa is five years old. She is on a ventilator. She suffered brain damage in 2017. Her father took his own life shortly afterwards, having already lost a child to meningitis. She can’t breathe on her own, is unconscious and has lost most function. The hospital went to court to ask whether it should withdraw life-sustaining care. 

I can’t do anything approaching justice to the care, consideration and professionalism of Poole J in reaching and writing this judgment. Katie Gollop QC has done a fine job of describing the key points. Read her twitter stream. Read the judgment. It will break your heart. But maybe some things should.

There’ll be those who say Poole J was wrong. That care should not, or should never, be withdrawn. There’ll even, perhaps, be those who see him as a monster, or as having committed a grievous sin. (On which subject: I’m a person of faith – and I have zero sympathy with, and some anger for, those who use tragic cases for politico-religious ends. I don’t think anyone has here, thank God. But still.)

But I see none of that. I see a fine jurist, facing a heart-rending choice with no good or easy answers, doing his level best to do what the law – and, I think, morality – requires: to put the child first. While still respecting and highlighting the awe-inspiring love and dedication that her mother has shown her throughout her life.

I want to write like him when I grow up. Just not about that. Please God, not about that.

Someone is right on the internet: I’m a sucker for Spider-Man. I sometimes find superheros somewhat annoying (although that doesn’t stop me watching Marvel movies, or the Arrowverse DC TV shows). But Spidey has always been special.

Like so many others, I watched Into the Spider-Verse with gratitude, wonder and delight. Not just because in Miles Morales there’s a whole new generation reflected in the best and most demotic hero ever. But simply because of the joy, craft, art and genius – and love! – that went into making it. It’s a genuine masterpiece. 

And I have to admit, Tom Holland does an excellent job in the new MCU ones.

But every so often I go back to the 2002 film that got Spidey onto the silver screen and kept him there. Sam Raimi’s Spider-Man creaks a bit at the edges, and the effects – well, you have to work a bit not to see the seams. But the film, and Tobey Maguire in it, get Peter Parker right. Like no other film truly has. (The sequel did too. More so, perhaps. Let’s agree not to talk about the third one, OK?)

The AV Club, home of some of the best culture and genre writing around (its TV reviews are to die for), in one of its long-running series (this one looks at the highest-grossing movie in the US for each year, starting in 1960), has made it to 2002. And their write-up on Spider-Man gets it just right.

Won’t say more. If the phrase “With great power comes great responsibility” means a thing to you, go and read it. You won’t regret it. And then, if you’re like me, you’ll want to push off and watch it. All over again.

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2021i12, Tuesday: Portrait, for preference.

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Why do most iPad cases only do landscape? And bookshelves to die for.

Short thought: I’d be the first to admit I’m reliant on my iPad. I’ve owned 4 of them: a first-gen, an iPad 3, a 2017 iPad Pro 10.5”, and now a 2018 iPad Pro 12.9”. They’ve been first-line writing tools, media consumption devices, and portable libraries.

Now, as a barrister, more than ever I can’t imagine working without one. Particularly when, as is the case, I sync all my case files and background docs: I can essentially sit down in an armchair, read and mark up bundles, refer to authorities and practitioner texts, and scribble (literally or figuratively) notes into one of several apps which also sync beautifully, so everything is back on my mac when I’m next at my desk. And the 12.9” screen is big enough to be the bundle when I’m physically in court. Perfect.

But there’s one thing I don’t get. A good case is a must, of course – so why do so few hold your iPad in the portrait position? For reading, or typing, it’s perfect. A single page of a book or authority. A single sheet of a Word document. What’s not to like?

I only know of two manufacturers who do this well: Pipetto and Moshi. I’ve tried both, and favour Pipetto. There are others on Amazon, sometimes a good deal cheaper; but I’m not confident on quality. And some that rotate – but bloody hell, they’re bulky, whereas Moshi’s and Pipetto’s remain both sleek and light. Or you could have a separate stand – but haven’t you got enough bits and bobs already?

Am I the only person for whom this is a thing? And why do I never see portrait cases in best-buy lists? Seems bonkers. If you have an iPad and you’re a barrister, I do recommend you look into it. It’s a bit of a game-changer.

Someone is right on the internet: Even in this paperless era, books are special. The feel of the pages. The weight in your hand. A beautiful binding. For some, even the smell!

So there’s also something magical about bookshelves. Admit it: we all scan someone else’s bookshelves when we’re in a room of theirs. We did so physically; and we’re certainly doing it now, virtually, squinting behind people’s heads at what their webcam will pick up. (Hands up: I’ve got the White Book carefully positioned behind me, along with a copy of the Employment Law Handbook I co-wrote. But then I’ve also got a book of Hiroshige’s 100 Views of Edo, which is just as much a part of me as the law is. Or – for less formal occasions – an Asterix book…)

So this gallery of unique bookshelves generates pure envy. Some are slightly bonkers, certainly. But some are gorgeous. And some – well, let’s just say we need new shelves in the front room. And I’ve got ideas.

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2021i11, Monday: reluctance or refusal?

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Vaccination – mandatory or not? Wise words from the Family Division. And the bell tolls for mainstream specialist legal journalism.

Thing I wrote: I was going to do a short thing about whether employers could require staff to get Covid vaccinations. But it turned out longer than I anticipated, so it’s a separate piece here. tl;dr: I don’t think so, not lawfully; except for care homes and healthcare, where the health and safety picture is very different. And if someone’s imbibed the conspiracy theories and is trying to stop other staff from getting vaccinated – well, that’s a whole ‘nother story, with more room for an employer to take a firmer line.

Short thought: Applause to the President of the Family Division, Sir Andrew McFarlane. His latest message (see paras 11-16) makes crystal clear why court hours – normally from 10 to 4.30 – are no more “part time” than are teachers’ hours, and why it’s simply not right or sustainable to make early or late listings a matter of course. No reason why what he says shouldn’t apply elsewhere.

Someone is right on the internet: David Allen Green does a fantastic job of public comms about the law. Increasingly, he and his ilk are on their own, though, since – as David writes – specialist legal correspondents in the press are disappearing. I remember, back in my reporter days, sitting round a table in the Law Offices with Joshua Rozenberg (then the Telegraph’s legal correspondent), elegantly roasting the then-AG about the just-published Fraud Review. He was, and is, a marvel. But he’s no longer a staffer. And with the exception of the Times and FT, there aren’t any left.

Sure, as I mentioned last week when talking about RSS readers, the internet is full of superb legal writers, from ol’ SB to Joshua himself. But they’re mostly read by us specialists. At a time when the rule of law is under assault – and it is – people with a popular platform who can explain why spin about legal aid, or Tribunal fees, or sentencing, or judicial review, is plain wrong are more important than ever.

And there’s barely any of them left.

(For a somewhat more optimistic take, Joshua’s own view is worth reading. He notes Dom Casciani has now added Legal to his Home Affairs brief. Dom’s really good. But the jobs aren’t the same. And that’s an awfully big beat.)

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The difference between reluctance and refusal.

JSJ1 Comment

I don’t think (legally speaking) employers outside care or healthcare are likely to be able to force staff to vaccinate. But even in those areas, in these early days it’s best to talk about it. Which will enable you to spot the conspiracy theorists putting everyone at risk…

A good friend of mine, Daniel Barnett, recently let me loose on his HR Inner Circle, presenting an hour-long ask-me-anything about employment law on Zoom. Great questions, from thoughtful HR professionals. (including a nice one on TUPE. I’m mad. I actually like TUPE stuff.) It was a delight, and a privilege.

(Daniel, as I’ve mentioned before, terrifies me. His entrepreneurial existence is scheduled and planned apparently to the microsecond – he says thanks to online outlining tool Workflowy. Tried it. Not for me. I’ll stick with Craft for the moment – which I’ll get round to writing about in detail once these cases are over.)

Two questions were about vaccines – specifically, whether an employer could require staff to take them as a condition of employment. It turns out that Daniel – unknown to me – had posted a video about this shortly before the session. We came broadly to the same conclusion: no, usually they probably can’t – but the unpalatable and impoverishing alternative for the employee might well be to resign or be fired, and sue for unfair dismissal. (Possibly automatic unfair dismissal on health and safety grounds, but that’s trickier. Another friend, Gus Baker, is a good guy to go to on that.)

That said, the situation’s likely to be different in care homes and the NHS. There, there’s a strong H&S obligation to protect service users and staff in a high-risk environment. I (and I think Daniel) would reckon an employer would have a far better argument there, as they undoubtedly do for mandating regular tests.

What Daniel didn’t get a chance in his video to consider, and what I discussed on the call, was whether it might be different in these early days of the vaccine. I think it may well be, even in care environments. Many people could be forgiven for some nervousness: I’ll be at the front of the queue once my turn comes, but given the unprecedented (and bordering on miraculous) speed of development and rollout I wouldn’t be surprised to find people thinking they might want to leave it a month or two, to see if any unanticipated side-effects kick in. On the whole, I’d think it’s worth employers talking to staff and understanding reluctance; that’ll probably go some way towards encouraging participation in due course. Certainly much more than a hard line from the get-go.

This approach may seem obvious – but its roots are in the same kind of “harm reduction” approach to healthcare that created needle exchanges for drugtakers, stressing that shame and stigma don’t work, but trying to understand where people are coming from does.

But what about those who aren’t reluctant but rather refuse? Particularly those who seem to be imbibing Facebook-driven madnesses concerning 5G, Bill Gates-designed microchips or other lunacies? And – still worse – try to persuade others to boycott the thing as well?

Like Daniel, in a care environment I think employers might have a good case for taking a hard line on this. Particularly if you’re not only refusing but agitating for others to do likewise. The risks are too high, for too many people.

And it frankly scares me. A relative of mine who works in a care home had his first jab just before the New Year. He says two thirds of his colleagues have refused – and a number of them are definitely of the “it’s all a plot, tell your friends” variety. I despair. Humans. Really.