Oct 2021 – #RemoteAccessBar

Words change the world. Sometimes they do so as a result of malice aforethought. Maybe, just maybe, there’s a word for that…

Sometimes words are just beautiful, in context, for their own sake. No idea how this street in Birmingham came to this name. But on the day I took this photo, having gone to Birmingham from Essex for a hearing that was called off at the last moment, I couldn’t have asked for a mot more juste.

We lawyers love words.*

It’s an professional deformation. Perhaps particularly (but certainly not exclusively) for us barristers; our working lives consist overwhelmingly of finding precisely le mot juste for every situation our clients face.

But the law is made up of words. And their meaning, especially in the specific context and usage (grammatical, purposive, even cultural and historical) in which they’re deployed, is our stock in trade.

Sometimes it makes us pedants, to lay eyes. And sometimes that’s right.

But take the simplest of contracts. A few words, between two people. But words which create a promise that binds. That create, in a sense, a new reality.

No surprise, then, that how words are properly to be understood occupies an immense proportion of jurisprudence.

Just read paragraphs 10-13 of the Supreme Court’s judgment in Wood v Capita – the most recent apex court distillation of how we, in England and Wales, are meant to read a contract. As a judge slightly testily pointed out to me earlier this month, this was in a sense simply the upsum of a string of earlier cases familiar to any commercial hack: Rainy Sky, Arnold, Investors Compensation Scheme. Continuity, not change, as Lord Hodge said in para 15.

(That claim of consistency is a familiar trope in Supreme Court, and before it House of Lords, writing. After all, a critical element of a top Court’s job in a common law jurisdiction is to take legal situations where precedent has become knotted and cut through it to provide a definitive roadmap. Cloaking that in the idea that “this is what everyone really meant all along” – my favourite example being the “restatement” of Twinsectra’s take on dishonest assistance in Barlow Clowes – is part of the fun.)

In another sense, though, Wood was again words changing the world: setting out, in fewer than 1,000 words, a definitive guide to how words and context should be balanced so as to come to a true understanding.

(* Which means sometimes we love them for their own sake, not because of their world-altering power. Take a recent piece by Helen Lewis, which described automatic cars as “babyfied clutch-free go-karts”. I’m so jealous. But I’m also overjoyed that such a gleefully descriptive combination of words has come into the world.)

The way words change the world came home to me consciously after reading a lovely piece (thanks to the blessed John Naughton for pointing it out) about the word “performative”. The piece has changed my world: it means I’m going to stop deploying that word in its now-usual usage (indicating that someone’s using speech merely as a sign-post to demonstrate their “sincerity”, rather than actually planning to do anything about whatever problem that speech is addressing). Because, so Wilfred M McClay writes, that’s almost a diametrical opposite to its original coinage: which was to denote words which don’t describe, but do. Words which change the world.

As McClay explains:

Once we’re alerted to this distinction, we begin to see it in many places. When the bride and groom say “I do” in their marriage ceremony, or when the officiant pronounces them man and wife, when promises are made and words of permission are granted, when a will orders the bequest of a precious object, and in fact in nearly all contracts—the language being used is performative in character. It is language that does not merely describe something. It enacts something.

Now, I’m no stickler when it comes to changing meaning. I’m more descriptive than prescriptive. Language evolves, as do we (culturally, if not biologically – or rather, the latter is so many orders of magnitude slower that it’s not relevant in this context).

But some words are valuable because their “old” meaning has powerful relevance. In our current, riven condition, the word “disinterested” – with its core meaning of “no skin in the game” – seems to me more important than ever, and treating it the same as “uninterested” seems to me not only lazy, but dangerous.

And as a lawyer, the idea that there’s an adjective which neatly describes the kind of language on which so much rests – and about which we professionally obsess – is a welcome one.

Mind you, perhaps there’s another use for “performative” which elides, to an extent, the two meanings – apparently contradictory though they may seem.

You see, contrary to some popular views, there’s one thing we (and here I’m talking about barristers in particular, in our relationship to courts) just don’t do. Not unless we’re wholly lacking in ethics, and deserve to get thrown out of the profession.

We don’t mislead. Sure, we argue our case. We highlight what helps and downplay what doesn’t. We try to persuade the tribunal that the world is as our client would prefer. That’s our job. And sometimes, I admit, that can come fairly close to the line of eliding what is into what we want it to be.

But we don’t just say black is white. We don’t gaslight. We don’t bamboozle, or trick, or confuse. Partly because we’re not allowed to. Partly because most judges are wise to that kind of thing. Partly because you always get found out in the end, and you’ve only got one reputation to lose. But also – perhaps a little bit – because, deep down, as lovers of words, doing this just feels fundamentally wrong.

And yet we see it all the time. Weasel words. The truly dirty ones which don’t lie with untruth; instead, they lie with truth, or partial truth, or (still worse) with bullshit. Words like “clearly” – always a flashing red light indicating that someone is papering over cracks in their argument and hoping you won’t notice.

And in politics, phrases like “enshrined in law” – a deliberately meaningless coinage which, as David Allen Green witheringly explains, seems to indicate decisive action where none actually exists.

Why are phrases such as these so diabolical? Because they pervert meaning. They send signals intended as cover for inaction at best, or dog-whistles at worst. In the new sense, they’re little more than “performative”. Ouch.

But are they perhaps – also – “performative” in the “proper” sense as well? I think so. Because – as they seek to gaslight us into believing in action where none exists; or, as with recent pronouncements by our learned Attorney General, argue for a “rebalancing” of power to free judges from unwanted political entanglement, when in fact what’s called for is a naked and autocratic executive power-grab – they seek to redefine the world. To tell us: don’t believe your lying eyes. Believe us.

These are words which try to change reality. They may be malevolent.

But they’re still performative. And we ignore that at our peril.

Three days ago, someone murdered David Amess. We were political poles apart; and yet he strove to be my representative. We owe it to him to remember these are not mutually exclusive.

*Sir David Amess, painted by Madmanity at the skate park in Leigh-on-Sea which Sir David opened in 2008.*

He was my MP.

And someone murdered him.

I can’t claim any special connection to Sir David Amess. I never voted for him. I didn’t agree with much of his politics, if any. I never met him. I was lucky enough never to need his help.

But he was my MP. And that’s important.

Because someone – honestly, it doesn’t matter who at this point – thought it was OK to stab him. To kill him. To take him away from his family. From his constituents.

I wish his family succour in their grief. I wish Sir David eternal rest and peace. He was a lifelong and dedicated Catholic, so I have no doubt that he had faith his end here on this Earth wouldn’t be the last word. And I pray that he was right.

But it’s his constituents I want to focus on. And only very slightly because I’m one of them. There are 650 MPs in the UK. And the majority of them aren’t ministers or shadow ministers. They might serve on a committee or two. But most see their first job as representing their constituency. Critically: most have it as an article of faith that they’re there not just to represent, but to serve, everyone in that constituency: those who voted for them, and those who never would, alike.

Everything I’ve heard says Sir David was just one such public servant. He seems never to have sought a government post, or to have been at all interested in one. Instead, everyone who’s encountered him – from local businesses and charities to people who needed his voice to speak for them when officialdom was flexing its muscles – seems to have found him absolutely committed to this place in which I live, and (perhaps more importantly) to each person in it.

(Reading this as I write, I recognise that “we can’t break the link with constituents” is an argument often deployed against moving away from first-past-the-post. And I agree: that link is critical. But pure FPTP isn’t the only way that link can be maintained. STV is one way. There are others. And the warping effect of FPTP, leaving many people near-permanently disenfranchised, may contribute to the despair about politics, and the encouragement of division between voters, which I’m abhorring here.)

And that’s the point. Sir David didn’t engage in “othering” any of his constituents. I doubt – from what I’ve heard – that he would have done so to those with whom he strenuously disagreed politically either. I’m sure he had faults. But I suspect that wasn’t one of them.

But consider how many of his colleagues on all sides of politics don’t do that. Who talk of traitors. Enemies of the people. Scum. Who seek to embed and exploit division. Who look for scapegoats, a “them” whose fault it can be. Whatever “it” happens to be today.

This sets a tone. No-one’s responsible for Sir David’s death other than the person whose hand held the knife. But we’re all accountable for the context in which such atrocities happen. In which MPs routinely face multiple threats of death and violence each week – the more so if they’re anything other than a white male.

Don’t get me wrong. I want us to disagree. Strenuously. No kumbaya here, please. I want us to argue. To debate. To be able to say someone’s ideas are wrong, or harmful, or counterproductive. (And to make the case; not just to say “I’ve a right to my opinion” – because an opinion without a foundation is sometimes little more than a prejudice.)

And on occasion – if (and only if) merited – to challenge the motivation behind the ideas as well.

But rarely. Instead, play the ball. Not the person. Most of the time, if someone thinks differently from you, that says nothing about the content of their character. Don’t ever assume that without evidence.

Apparently Voltaire never actually said that while he disagreed with what someone said, he’d “defend to the death your right to say it”. It’s a misattribution – although many judge it an accurate distillation of Voltaire’s views.

I believe Sir David would have agreed with the sentiment. I believe the best honour we can pay him, a servant of the public to the end, is to strive to live by it.

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