2021iv19, Monday: Privacy and the Supremes.

One of the most consequential cases on the law and privacy makes it to the Supreme Court next week. I’ll be watching. And some great stuff on gaming and moral panics.

Short thought: There’s no doubt that arguments about privacy are going to grow, and multiply, for years to come. On so many fronts, the question of what companies and governments can do with data about us affects us – literally – intimately. It’s going to be a central focus for so many areas of law – be it regulatory, public, commercial or otherwise – and we lawyers can’t and shouldn’t ignore it.

Which is why I’m blocking out next Wednesday and Thursday (28th and 29th) in the diary – at least as far as work will allow. Those are the days on which the Supreme Court will be hearing Lloyd v Google, probably the most important data protection and privacy case to make it all the way to the UK’s court of final appeal to date. 

As I’ve written before, the Court of Appeal fundamentally changed the landscape in 2019 when they decided that Richard Lloyd, a privacy campaigner, could issue proceedings against Google in relation to its workaround for Apple’s privacy protections. It’s no surprise that Google took the appeal all the way, since the CoA said (in very, very short) that a person’s control over one’s personal data had value in itself, and that no further harm – not even distress – need be proved for loss to exist. (There are other grounds of appeal too, but this to me is the most fascinating, and wide-ranging in potential effect.)

Next week is only the arguments, of course. Judgment will come – well, no idea. But Lord Leggatt is on the panel. I can’t wait to read what he has to say.

(I’ve had a piece on privacy brewing for some time. I just haven’t had the brainspace to let it out. Perhaps next week. I’ll try.)


Now hear this: I’ve always been rather allergic to team sports. Martial arts, on the other hand, have long been my thing. While I’ve dropped in and out, depending on levels of fitness and family commitments, there’s always been one at least at any given time which has given my joy like no other form of physical activity.

If one nosy trouble-maker had had their way, this would have been nipped in the bud. When I was doing karate in my teens, one clown wrote to my dad – then a canon at St Albans Abbey – claiming that my indulgence in this was Satanic and should stop immediately.

No, I don’t get the reasoning either. Needless to say, my dad treated it with the respect it deserved, and lobbed it into the wastebasket. And on I went, via aikido, tae kwon do and (these days) capoeira. No doubt this last, which I hope to keep doing with my current escola in Southend for as long as my ageing limbs can manage it, would have given the writer even greater conniptions, given that the music often name-checks saints and is thought in some quarters to have connections to candomblé.

But I think the writer missed a trick. Because back then, in the 80s, if he’d known I was a role-playing gamer he’d have been tapping totally into the zeitgeist.

By RPG I’m talking about pen and paper, not gaming. I loved these games; via an initial and very brief encounter with Dungeons & Dragons (2nd edition, for the cognoscenti – it was never really my thing), I found Traveller and Paranoia, and never looked back. It’s been a long while since I played, but my love of them, and conviction that they’re good and valuable, hasn’t dimmed.

These days, these games are pretty mainstream. But in the 80s, particularly in the US, they were the subject of significant, if now in retrospect batshit insane, panic. This panic is beautifully explored by Tim Harford in his podcast, Cautionary Tales. I warmly recommend it. You don’t have to know or care about the games themselves for the story to be engaging and fascinating, as an analysis of how societal panics can grow and evolve into something wholly unmoored from reality from even the most unpromising foundations. And yes, the irony there is palpable. 

(Tim’s a gamer himself of no little repute; I imagine a game GMed by him would be wonderful. But he’s fair on this, I think.)

The whole series is great (the one on Dunning-Kruger is particularly brilliant). Tim’s previous podcasts, in particular 50 Things that Made the Modern Economy, are just as good. And he always makes them relatively short, and scripts them properly. Not for him the 90-minute frustrating meander. Thank goodness.

Warmly recommended.

As an aside: A recent FT piece of Tim’s has just appeared on his own website (as usual, a month after FT publication). It’s superb. Lots of people have linked to it, but it’s good enough to do so again. 

It’s entitled: “What have we learnt from a year of Covid?” His last sentence is one with which I utterly concur:

I’ll remember to trust the competence of the government a little less, to trust mathematical models a little more and to have some respect for the decency of ordinary people.

Read the whole thing.


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2021iv16, Friday: The king of the Ponzi?

Madoff’s dead, but fraud lives on. A short history of the Real Book. And the importance of prioritising economics over culture wars.

Short thought: Very briefly, because of a hearing earlier today, it’s worth marking the passing of Bernard Madoff, by far the biggest Ponzi schemer ever unearthed.

I say “unearthed” because although all Ponzi schemes have a shelf-life, the numbers in the Madoff scandal were never entirely settled; and the sheer weight of skulduggery around these days, particularly in some corners of the crypto world, does sometimes make me wonder what else is lurking.

As the piece linked to above notes, fraud isn’t a victimless crime. Financial losses are life-changing in themselves, causing despair and sometimes suicide. And the loss of trust is just as damaging. Fraud is corrosive to societies as well as individuals, just as its close relative corruption.

Madoff’s passing is also an excuse, once more, to bewail the UK’s utterly disastrous approach to fraud. We haven’t had a single, big-bang Madoff here. Instead we have huge numbers of victims, losing billions each year to multiple fraudsters via scams which – to be honest – aren’t that sophisticated (often affinity frauds, of the kind Madoff specialised in), and spend (comparatively speaking) next to nothing in investigating and prosecuting them. A disgrace, and one which the Powers That Be remain singularly uninterested in tackling.


Someone is right on the internet: As I’ve mentioned once or twice, I play jazz piano. Note I’m not calling myself a jazz pianist. I’m nowhere near good enough for that. But I try. And I love it.

Anyone who’s ever played and studied jazz will have spent time poring over chord charts of standards old and new. And most of us will have, either on paper or as PDFs, a fakebook or two: a massive tome full of single sheets, with a melody and the chords, for everything from Round Midnight to Chameleon.

I know I do. I’ve even got a couple of fakebooks for specialised areas such as bossa nova. 

But I knew, to my shame, nothing about their background and history. This filled me in. It’s a short read, and points out that fakebooks aren’t without controversy, risking (as some fear they do) the ossification of an in-the-moment art form. But for anyone who’s ever squinted at a chord chart in a dimly-lit club or basement somewhere – trying to keep the line as the atmosphere of the jam fills your soul with a joy and spirit you just can’t get anywhere else and guides your fingers to do things you never knew they could – it’s a good one.


Someone else is right on the internetSimon Kuper, at the FT, is a great writer. Thoughtful, humble, interested and therefore interesting. Even when he writes about football, I’ll read his stuff. And I can’t say that about anyone else.

In today’s FT (paywall – sorry) he makes a point that many have made – but he makes it really well

There are always people who go around missing the main story of their times. No doubt some thought leaders in Paris in 1789 or Petrograd in early 1917 were getting all fired up about sideshows. Something similar is happening now: an obsession with “wokeism” and culture wars at a moment of economic transformation.

By which he means: shouting about culture wars has a huge opportunity cost. The economic damage of Covid, or the benefits of the shift in US economic policy under Biden (which is turning out to be far more progressive than most would have expected), is going to be consequential for everyone.

Meanwhile:

Today’s identity-based point-missing is often deliberate. Every morning, nativist politicians scour the news for a wokeist outrage — in a big world, there’s always one — and then spend the day banging on about it. This is an old phenomenon, explained by the sociologist Stanley Cohen in 1972: a conservative attempt to drum up a moral panic about a group of young people defined as “folk devils”. The “woke brigade” is only the latest in a lineage of folk devils that stretches back through Islamist terrorists, “superpredators” and hippies to early 1960s Mods and Rockers. Rightwingers exaggerated the dangers of all these groups.

Now, Simon is talking about the right-hand side of the aisle. I think the ailment stretches across politics. I imagine he does too, although I agree with his underlying point that the right is generally more effective in using it (perhaps cynically) as a cover for getting on with other priorities while “firing up the base”. 

Me? I’ll continue with my policy of ignoring anyone who decides to push buttons with straw-man terms like “woke” or “gammon” instead of trying to engage.

And keep trying to stop my brain atrophying, by reading people like Simon.


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2021iv14, Wednesday: Equality, of a sort.

Equality in principle is very different from equality in practice. As we’re seeing in the Greensill affair – and as a French writer cynically and beautifully put it many years ago. And US officialdom catches up, at last, on surface transmission of the Bug.

Short thought: Back when I was a reporter covering business, I spent a lot of time talking to C-suite executives. To help mitigate the risk of getting overawed, a colleague gave me advice I’ve always recalled.

The only difference between you and the rich and powerful, she said, was that they’ve got more money and power than you do.

There are countless layers to unpack in that advice, and the more you peel away the better it is.

But although it’s useful, it isn’t entirely true. French writer Anatole France captured it pithily more than a century ago:

La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.

Which translates roughly as:

The law, in its majestic equality, prohibits rich and poor alike from sleeping under bridges, begging in the streets and stealing loaves of bread.

In other words: money and power do, sadly, have a quality all their own. And law, and rules, inevitably affect people with them differently.

I was reminded of these when reading something by David Allen Green, someone whose stuff I follow religiously. Writing about the Greensill lobbying affair, he starts with the proposition that it’s right that everyone should be able to make their case to public power. Banning people from seeking to exercise influence causes serious problems. In principle.

His analogy is, I think, not an ideal one. He notes that in theory everyone “has the ‘right’ to dine at the Ritz”, but not everyone can afford it. Whereas in fact, so long as the Ritz doesn’t discriminate on the basis of a protected characteristic, it doesn’t have to sell its services to anyone it doesn’t want to.

Government is different. It has to serve everyone. Which is one reason why CEOs don’t necessarily make good political leaders: there’s always the risk that they’ll write off a chunk of the citizenry in the same way as firing a slice of the workforce, or moving upmarket and leaving former customers behind.

But David’s underlying point is a sound one. Even if his initial proposition is right, the fact is that money and power make a massive difference. They make some voices much louder, and act – deliberately or carelessly – to silence many others. So the very least we should expect is to know exactly who is saying what to whom, and with how much money behind them. Absolutely. No exceptions.

Openness isn’t the only or final answer, of course. It’s not sufficient. It doesn’t solve for the problem identified in another of France’s observations (and uncomfortably evident today): Si 50 millions de personnes disent une bêtise, c’est quand même une bêtise. (Rough translation: Idiocy voiced by 50 million people is still idiocy.)

But it is necessary.

As David puts it:

And if such absolute openness and transparency and procedural certainty is not feasible, then they should not be able to directly approach ministers and officials at all – even if it is in respect of their personal interest (as opposed to on behalf of a paying client, which is a gap Cameron was able to exploit).

They can write a letter to a member of parliament, or wave a placard on Whitehall, like anyone else.

Quite.


Update: On Monday, I shared a superb piece of writing by Zeynep Tufecki, dealing with Covid theatre. She was particularly scathing about the cult of the wipedown: the opportunity cost we pay for the amount of time, money and energy spent on cleaning and disinfecting, when these have long been known to be a very minor element in the overall risk.

As John Naughton points out, US officialdom has now caught up. The CDC, now creeping back to its role as a central and strong player in the fight against the pandemic after its near-crippling by Trump, confirms formally what Zeynep was saying (and she, as she freely notes, is only reporting what others have proved long ago): that while transmission via surface contact is possible, the risk is low. Aerosol spread is far more dangerous and far more common.

To which some might answer: well, there’s still a risk. So we shouldn’t relax our guard vis-a-vis cleaning stuff.

Well, up to a point. But the real point is the one I discussed on Monday. If everything’s a priority, nothing is. So we need to prioritise wisely. When you focus on the wrong risk, you fail to protect against the right one. Sure, clean stuff. But if keeping up with that in any way eats into resources you need to spend in proofing against bigger risks, then think carefully about rebalancing.


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2021iv12, Monday: Covid theatre.

We knew everything we needed to know to make people far safer from Covid a year ago. If there’s ever an inquiry, the question will be: why didn’t we take heed? Why did we rely on hygiene theatre for so long?

Short thought: Ever since 9/11 catalysed an upsurge in security – and don’t get me wrong; I don’t challenge the principle at all – there have been voices accusing the Powers That Be of indulging in security theatre.

These aren’t crank voices. These aren’t the security equivalent of anti-vaxxers or the masks=muzzles brigade. These are smart, thoughtful people, who point out that many security measures do very little actually to make us more secure, but do far more to give the impression that the problem is being taken seriously.

Security theatre has at least three major risks – and these are only the ones that occur with a minute or two of thinking, so there are probably far more.

First, it makes people think the problem is solved, when not even symptomatic relief is being supplied. Second, it gives people information about what they need to do that simply isn’t accurate, meaning they’ll focus on false friends instead of actually mitigating risks. And thirdly, in a world of limited resources, there’s an immense opportunity cost of spending time, money and (most important) attention on the wrong things instead of the right things – particularly since inertia (and the fear of looking like you’re “not protecting people”) means it’s incredibly hard to stop doing the theatrical stuff. A bit like crime: even though the only way prison works as a crime reduction strategy is by keeping criminals off the streets, which for many forms of low-grade offending is a short term gain for a long term loss, politicians almost never admit it in public. As HL Mencken put it, for every complex problem there’s an answer that’s clear, simple and wrong.

Now, security theatre isn’t always wrong, or a waste. Sometimes it embeds trust where trust is both genuine, and needed, and in short supply. But mostly, it’s the other way round.

Why talk about security theatre just now? Because according to Zeynep Tufecki, who continues to be one of the smartest, sanest voices on our pandemic predicament, we’ve done the same with Covid. Her most recent newsletter details the nearest thing to a natural experiment in the spreading of Covid: the cruise ship Diamond Princess, which trapped thousands of people in a closed environment as the Bug spread. Passengers were isolated in cabins. Everything was cleaned. No-one had the chance to cough on anyone else once they were symptomatic.

And yet, tragically, more than 700 people were infected and 14 died.

Zeynep’s point is this. The Diamond Princess was hard evidence that Covid spread primarily not through droplets, or through shared surfaces, but through aerosol distribution; on an asymptomatic basis; and via super-spreader clusters rather than evenly. (This was reinforced later by the experience of a choir in the US, where several dozen people got together to sing, in a big space, properly distanced, properly disinfected – and most of them got sick.)

And this was in February 2020. Research followed quickly. And by the middle of last year, at the very latest, it was clear that 2-metre rules and obsessive cleaning were at best tinkering. What mattered was masking, avoiding close contact and crowds, minimising enclosed spaces, making sure ventilation worked. The essential, critical basics.

So taking the UK: why didn’t we do this quicker? Why instead did we load ourselves down with complex legislation that even us lawyers struggled to unpick, changed sometimes at literally a few minutes’ notice; with exact instructions about distancing; with orders and threats rather than encouragement and collaboration; with quantitative measures, not qualitative ones; with a focus on the tinkering, not on the core?

I don’t know. If we ever get an inquiry, I want it to focus on this. I suspect it’s a combination of a refusal to trust people to be their brothers’ and sisters’ keepers, of a tendency to see everything as a zero-sum exercise in winning rather than a humbler matter of what works, and possibly – heaven forfend – an unconscious reluctance to see the Asia-Pac success as something that can be generalised, rather than something specific that was to the region. Something “cultural”. Was there an ethnic bias in there? Something arising from an overblown UK self-image of some uniquely freedom-loving people? Again, I don’t know. But I wouldn’t rule it out.

Anyhow. Zeynep’s piece is worth your time. Its explanatory power is impressive. Its analysis likewise. The final paragraph hits home:

I realize that there is a lot of focus on misinformation that we recognize: the claims of 5G spreading via vaccines, of many deaths following vaccination, claims that vaccines don’t work at all, or even the idea that vaccines might have caused the death of a 99-year old, already visibly infirm, prominent member of the royal family in the United Kingdom. I understand all that and the role of such misinformation. But as I close the misinformation trifecta series about problems beyond the ones that are “over there,” committed by others, I’d like us not to forget what actually happened in more mainstream and arguably more important circles, and is still influencing how we have been responding—and failing to respond—to this pandemic.

Please don’t let that stop you reading the rest.


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2021iv9, Friday: (Not) getting things done.

Has productivity fallen because we’re all doing things we’re just not that good at? And how tech perverts language.

Short thought: Once upon a time, the BBC had a specialist expenses unit in Cardiff. Unsurprisingly, journalists run up some fairly bizarre expenses from time to time, and the unit could handle all of them. Legend was you could send them a photo of a receipt written in Coptic and scratched in the whitewash on the wall of a house, and someone in the team would dredge up a memory of John Simpson having done something similar in the 80s and find a way to process it.

This, of course, cost money. So it was shut down about 20 years ago, outsourced and standardised, and therefore became entirely useless. The result: a lot of stressed reporters spending foolish amounts of time trying to work out how to file expenses instead of, you know, reporting.

This came to mind when reading a piece from Tim Harford earlier this week. Tim (whose praise I’ve sung before), wonders whether the lack of productivity increases is because all of us “knowledge workers” are doing loads of stuff we’re not actually that good at, rather than the things we’re in fact meant to apply our finely-honed brains to; and because the organisations we work within tend not to have terribly good systems for managing workflow.

One culprit, of course, is email. I shudder when I see someone’s phone screen with a little red spot saying they’ve got 32,483 unread messages. As someone who – while a long way off Inbox Zero – nonetheless reads, acts upon, defers or deletes everything as soon as it comes in, it makes me physically ill. But I understand how it happens: the sheer amount of stuff hitting this single channel can rapidly become unmanageable. And I don’t think things like Slack are an answer: it’s just yet another inbox, for the most part.

If I’m honest, I think the main problem is that there’s an organisational equivalent of the Dunbar number. The Dunbar number is the idea that the practical optimum number of people in a community (whether physical or virtual) is about 150 – the number where there are enough people to have a range of views, skills and experiences, but where you can still know everyone. For work, though, I think it’s a lot smaller: maybe a dozen at most. Yet most people who work in anything but the smallest of business are blizzarded with information about a range of things that simply aren’t really that important to them.

It’s one of the reasons I find the idea of one day going back to a paycheque far less appealing than I thought it would, before I jumped into this world of self-employed advocacy. These days, I’m part of a Chambers which only just goes into 3 digits. But usually I’m working in teams which max out at half a dozen: solicitors, client and maybe one other barrister. Yes, I’ve got several such projects going at any one time; but still, my signal-to-noise ratio across all forms of communication is far, far higher than it used to be.

I’m sure some businesses get this right. Information that people need when they need it goes in intranets or elsewhere, rather than in emails. Announcements are corralled into groups, rather than put out willy-nilly. CC and BCC are ruthlessly suppressed. Meetings – and the vast paper-counts that have to be read first – are pruned.

It’s just that I never worked in one. One reason why I’d hate to go back.


Someone is right on the internet: Thinking about the Dunbar number makes me recall something I read by John Naughton a few weeks ago. Back in the days when I was an investigator, it was always great to discover that a target was promiscuous when it came to Facebook friends. (Of course, these days Facebook isn’t anywhere near as useful a tool for social network mapping, but it still has its place – certainly for people over 25 or so.) The reason being, it was often possible to back into someone’s friend lists via one of their other friends, whose privacy settings might well be less rigorously enforced.

Despite being something of a geek, I’ve long loathed this use of the word “friend”, as I do the word “like”. (I got exceptionally pissed off when Twitter dropped stars in favour of likes. I used to star things as a way of denoting them as worth hanging onto. Much of that I didn’t “like” in any meaningful way.)

But John put it better than me:

Much of the Orwellian language that’s endemic in the tech business reminds me of Heidegger’s definition of ‘technology’ as “The art of arranging the world so that you don’t have to experience it.” Just think how Facebook has perverted the word ‘friend’, or how nearly every company has perverted ‘share’. As Sam Goldwyn might have said, in Silicon Valley if you can fake empathy you’ve got it made.

Spot on.


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2021iv7, Wednesday: Gaslighting by government.

Two smart people find much to fear in the UK government’s views on judicial review. For what it’s worth, I feel the same. And a fundamental, and discriminatory, misunderstanding of objectivity.

Someones are right on the internet: I’m reversing the usual order here, because from a UK perspective this one’s a lot more urgent and important. (Thank you, the Eisenhower Matrix.)

I’m the first to say that administrative law isn’t my speciality. But it’s critical: if we want to live in a world of laws rather than fiat decisions made by those with power (and while the rule of law isn’t perfect, it’s an awful lot better than the alternatives), then making sure our government can be held to account is as important a thing as a thing can be.

Which is why a lot of angst was triggered by the Government’s Independent Review of Administrative Law, led by Lord Faulks, when it was launched. The fear was that it was a stalking-horse for the current UK government – which hasn’t been exactly shy about its desire to do what it wants without question or limitation, or indeed about its rampant levels of corruption – to hamstring judicial review.

In fact the Faulks Review’s report is generally regarded as a pretty level-headed, sensible piece of work. (One or two evidence-related quibbles aside.) It side-stepped most of the really extreme stuff the government seemed to want in favour of relatively modest reforms. But that hasn’t stopped the government making it clear that it wants to go the whole hog, both in its response and in its summary of government submissions

As I said: I’m no expert. But when Joshua Rozenberg calls it an attempt at “emasculating” judicial review, and Professor Mark Elliott – one of the foremost academic experts on administrative law – accuses the government of “constitutional gaslighting”, it’s worth listening.

One point in particular which both Elliott and Rozenberg note, and the trigger for this strong language, is the government’s desire, in any case other than where a government decision was ultra vires (wholly outside its powers) to do away with nullity. 

For the non-admin lawyers, “nullity” means that if a court finds a government decision unlawful, then it is as if that decision were never made. Without getting too deep into the technicalities (that’s what Elliott’s post is for), what the government seems to want is to change that so that in the overwhelming majority of JR cases, the most that will happen is the government can’t do it again. But what it’s done already, however extensive or damaging, and even though it was unlawful, is fine. In other words: its unlawful actions are retrospectively made lawful. 

Why is this gaslighting? Because, as Elliott points out, the justification is apparently that the rule of law requires this kind of certainty. The doublethink is breathtaking: we need to be allowed to break the law and get away with it, the government seems to be saying, because otherwise people couldn’t be certain about whether our decisions would stick or not.

To take a thoroughly imperfect and highly simplified private-law analogy:

  • Let’s say you’ve got a contract with X for X to supply you with widgets. You’ve been paying full whack for them. 
  • But your customers are complaining: apparently the widgets are below the standard the contract requires. You sue X. 
  • It’s a matter of first-year contract law that you’ll want a compensatory remedy: X has broken the contract, you want to be put in the position you’d have been if they hadn’t, so you want the amount you’ve lost as a result of the substandard widgets. 
  • That could be calculated any number of ways (usually how much profit you’ve lost whether through lower sales, lower prices or compensation paid), but the point is that X acted unlawfully, and its past action has to be unpicked. 
  • Damages are an imperfect medium for this, of course – but they’re what’s available. And the critical point is that no-one is saying X gets a free pass for its past behaviour, and simply has to avoid flogging you the rubbish widgets in the future. 

As I said: this is a very imperfect analogy. Private and public law are different, not least because remedies in the latter are rightly discretionary. The public interest has to play a part. But what the government is seeking is indeed extreme. It would emasculate a critical control on government overreach. And that scares me. It should scare you.


Short thoughtThis made me mad.

The tl;dr version: apparently a Washington Post reporter was angry because the paper had failed to support her after she reported sexual assault allegations against a prominent basketball player. The paper first suspended her, then reinstated her but banned her from covering stories about sexual assault.

Why? Because she’d been the target of such an assault herself, and had spoken out about it.

I can’t even. Let’s set aside the rampant sexism inherent in such a move and just consider an analogy. Would we ban someone from covering labour disputes because they’d vocally complained about having been mistreated by a boss in the past? Take someone off the health beat because they’d once sued a healthcare provider?

No. Obviously not. So why on earth do it here?

Bring sexism back into the picture and it’s even worse. As I wrote the other week, I don’t and can’t really understand the experience; but it seems clear that many if not most women will have undergone some form of unwanted sexual conduct in their lives. God willing, mostly at the minor end (although what right do I have to draw that distinction?) – but unwanted, unwarranted and undeserved nonetheless.

Which makes me think that if this happened here in the UK, I could make a pretty good employment discrimination case out of it. Either it’s direct discrimination (s13 of the Equality Act 2010) – if the argument could be made that a female reporter was stopped from working in an area that a male reporter (even one with experience of assault) would still get to write about. Or indirect (s19), if it’s a “we’re not going to let anyone who’s been a victim of assault and who hasn’t kept it to themselves write about it” – since that would amount to a provision, criterion or practice which applied far more to women than men. Or even victimisation (s27), since the reporter in question raised a concern about her treatment and lost the chance to cover these stories as a result.

I’m not saying these are sure-fire cases, if they ever were brought. But couch them in those terms, and the idiotic wrongness becomes even more apparent. And we haven’t even got onto the toe-curlingly ghastly logical end-point of the WaPo position, which echoes with the core argument of sexists down the ages and which the piece I linked to makes crystal clear: since most women have suffered something along those lines, even those who’ve not made it public, no women should be allowed to cover assault against women. They can’t be trusted to be objective, can they? Not women. Leave that to the blokes. Their brains work better. 

For shame, WaPo. For shame.


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2021iv5, Monday: Deliberately rigged?

Right back atcha, CRED.

Short thought: In re the UK Government’s Commission on Race and Ethnic Disparities (or CRED, to give it its backronym): I haven’t read the whole report, so I’m not going to take a view on it as a whole. But as short takes on the bits I have read:

  • At least some of the recommendations aren’t bad at all. (Improve transparency on how algorithms affect non-white people? Definitely. Require ongoing de-escalation training for all police officers? Should’ve happened years ago.)
  • Some of the others (the curriculum looking at the upsides of slavery? Please), and the foreword – written by the Commission’s chair, Dr Tony Sewell – are tendentious at best, and give at least the appearance of being thoroughly intellectually dishonest.

I’m going to cherry-pick one example from the foreword, because it’s particularly egregious and serves – unless it’s wholly unrepresentative of the rest of the report – to undermine the integrity of the whole thing.

Dr Sewell writes:

Put simply we no longer see a Britain where the system is deliberately rigged against ethnic minorities. The impediments and disparities do exist, they are varied, and ironically very few of them are directly to do with racism. Too often ‘racism’ is the catch-all explanation, and can be simply implicitly accepted rather than explicitly examined.

The evidence shows that geography, family influence, socio-economic background, culture and religion have more significant impact on life chances than the existence of racism. That said, we take the reality of racism seriously and we do not deny that it is a real force in the UK.

The Commission was keen to gain a more forensic and rigorous understanding of underlying causes of disparities. However, we have argued for the use of the term ‘institutional racism’ to be applied only when deep-seated racism can be proven on a systemic level and not be used as a general catch-all phrase for any microaggression, witting or unwitting.

Look at two key phrases: “deliberately rigged”. “Deep-seated racism proven on a systemic level”.

And contrast it with the definition of institutional racism used in the Macpherson Report into the murder of Stephen Lawrence, published more than 20 years ago:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. (para 6.34)

Dr Sewell, deliberately or negligently, throws this definition out of the window. It’s a good thing that almost no organisation is prone to being “deliberately rigged against ethnic minorities”. But to narrow the problem to solely that, and declare victory, is to describe night as day.

Just as bad is the idea that institutional racism only exists when “deep-seated racism can be proven on a systemic level”. Let’s leave aside the casual, if not malicious, straw-manning of implying that anything else amounts to a trivialising of the term, and look at how the law deals with discrimination – on race and ethnicity grounds as in other things.

Of particular importance here is s19 of the Equality Act 2010, which deals with indirect discrimination. This is where a “provision, criterion or practice” (“PCP”, as we in the trade call it – often a policy, whether formal or informal) is applied to everyone, but has a particularly detrimental effect on people with the same protected characteristic as the claimant – that effect extending to the claimant herself. The classic example: a height requirement for a job, if it didn’t have a good reason for existing, would discriminate against women and some ethnicities, simply because they’re on average shorter than men (on the one hand) and than other ethnicities (on the other).

There’s no “deliberate rigging” here. The PCP might be applied in good faith. But it’s still discriminatory. And if one PCP, or a clutch of them, has the effect of systematically disadvantaging non-white people – well, how is that not institutional racism at work?

As for the proof point: it’s good law, and rightly so, that the claimant doesn’t have to show the mechanism. As the Supreme Court held in Essop v Home Office in 2017, if someone can show they’re the subject of a PCP and that PCP has caused them to be treated less favourably than someone else, they don’t need to prove exactly how the one leads to the other. Put differently: they don’t need to prove “deep-seated racism on a systemic level”. Frankly, they almost never could. If that were the standard, no-one would ever win an indirect discrimination case. The more so because the courts are well aware that discrimination is rarely overt, or obvious, or amenable to direct proof. Instead, as explained by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite, the norm – not the exception – is to look at what facts are established, and then see whether discrimination can be inferred from them.

In the name of fairness, I must make two big caveats here.

Firstly, there’s a difference between institutional racism in the abstract, and the workings of indirect discrimination against individuals. Obviously there is, and I’m not seeking improperly to conflate the two. But it’s both fair and proper, I think, to look at the Sewell Report in the context of how the law defines discrimination – and, of course, against the backdrop of the Macpherson Report – and interrogate its implications. They’re not good.

Secondly, and I must make this clear: I have no reason to believe Dr Sewell or the Commission would wish the Equality Act (whether s19 or any other element of it) to be undermined. That’s not what I’m suggesting. Not for a second.

But to draw a parallel with harassment, as defined in s26 of the Act: it’s not just a behaviour’s purpose which is important, but its effect. Even assuming good faith on CRED’s part – and, while saying nothing about the Commission’s motives, I have to admit I find it hard in the light of many ministers’ public pronouncements to assume any such good faith on the part of those who commissioned them – maturity means you own the outcome of your actions, even if they’re not what you intended.

Dr Sewell’s foreword may not set out to undermine protection against discrimination. I’m sure he wouldn’t intend to do so. But it may have that effect.


There’s another side to this, one which comes from an advocate’s point of view.

We barristers spend a lot of time arguing over expert evidence. Experts, even when briefed by one side or the other, are meant to serve the court, not the person who pays their bill. It was beautifully put by Thorpe LJ in Vernon v Bosley:

The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.

Unsurprisingly, given that any situation requiring expert evidence is likely to be far from clear-cut, each side’s expert report will likely favour its own position – while (if it’s any good) making clear that there are a range of other views, albeit less reliable than the writer’s.

However, just once in a while you come across an expert report in which it’s crystal clear that the writer has started from the desired conclusion and argued backwards, cherry-picking or at the very least selectively weighting the evidence to ensure they end up where they want. These are the reports any opposing counsel loves: they offer the rare opportunity not just to interrogate the findings, but to undermine the credibility of the whole report such that the judge may treat its contents with disdain.

As I said at the start: I haven’t had a chance to read the whole report. So it may well be that the rest of it is far more nuanced and thought-through than the foreword.

But if this was the executive summary of the opposition’s expert report which landed on my desk? I’d be dancing for joy. Open goal time.

2021iv2, Friday: Mixed measures and madness.

16 ounces. 8 pints. 32 degrees. Really? And thought-provoking writing on persuading the unpersuadable.

Short thought: I think in mixed units.

For long distances (and speeds) it’s miles (and mph). Being a Brit, all our roadsigns are in miles, so that’s simply how I know it at gut level. I can convert easily, but it’s always a conversion.

For short distances, it varies. Inches for anything between my thumb and my shorter than my arm. Metres for longer; centimetres or millimetres for shorter.

For almost everything else, though, it’s metric. I know I’m several kilos overweight. I can recognise a pint, but it feels like about half a litre.

Which means I can understand those people older than me for whom metric still feels alien. But I also recognise that for almost everyone under the age of, say, 25, who’ve lived and breathed metric their entire life, imperial is simply incomprehensible. 16 ounces to a pound. 14 pounds to a stone. 8 stone to a hundredweight. 20 fluid ounces to a pint. 8 pints to a gallon. 12 inches to a foot. 3 feet to a yard. 1,760 yards to a mile.

Let’s not even talk about the fact that the only other jurisdiction in the world which is a metric refusenik is the USA. Whose measures of volume are completely different to ours. Blessed inconsistency, indeed.

Compare that to the straightforward scaling by three orders of magnitude, from mm to m to km, from g to kg to tonne, from ml to l, and I can’t for the life of me understand why anyone would want – for any reason other than a blunt, brain-free determination to turn the clock back – to compel the use of imperial measures. 

Unless, of course, it’s all just yet another dishonest weapon in the so-called “war on woke”, which so often translates into the determination of those with power to keep it. 

I’ll leave it to the reader to examine the front page of Wednesday’s Daily Mail in the above context, since it managed to combine the use of fahrenheit (which, to her credit, my daughter described as “simply insane” when we tried without success to find a canonical reason why water froze at 32 degrees and boiled at 212) with a story on the latest race relations report which seems to have been designed by the government to provide fuel to “own the libs” rather than actually reduce discrimination or improve equality or equity. I’m sure there’s no connection. Not even in a Mail editor’s mind.


Someone is right on the internet: Adam Grant is fantastic. His book Give and Take wholly changed my view on how productive professional relationships function; a change which, I believe, has worked wonders for both my success and my happiness at work.

This piece is characteristically thought-provoking. Instead of looking at why a business leader makes decisions, he looks at how a leader’s mind can be changed. Specifically Steve Jobs, generally seen as not only one of the most successful, but also the most stubborn, arrogant and rude, businesspeople in recent decades. (I say that as a lifelong user and appreciator of Apple products. I can love what’s done by the house that Jobs built, and mourn his early death, and still criticise the man himself.)

Why pick this? Well, as an advocate, I spend my life trying to make a case for something. Mostly, judges are nothing like Jobs – not in their intelligence, which is sometimes breathtaking, but in that they’re neither arrogant nor stubborn. (Rude? I’ve been lucky. I know many that haven’t.) But if you can think through how to persuade someone who’s not inclined to listen, it’ll help you hone your points to razor-sharpness, and make your case take that critical leap into seeming the only sensible reading of the facts. 

Well worth a read. As, indeed, is what Grant writes in general. (Yes, there’s a newsletter. But it’s only monthly.)


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