2021vii8, Thursday: Passive, aggressive.

Apologies for the long gap. I may be pedantic, but some words have old meanings that carry genuine value – the more so because of the state we’re in.

I’m torn when it comes to language. 

On the one hand, I’m absolutely alongside the idea of seeing linguistic evolution on a prescriptive rather than normative basis. Language changes with usage. It always has. And one of the joys of English is how – generally – receptive it’s been to incoming influence. 

On the other, there are some usages that are on my “die in a ditch for this, even if it’s a hopeless cause” list.*

I know. These two stances are potentially mutually contradictory. But there’s sense in it, I think, so long as one limits the second stance to a few areas where there’s a genuine, practical justification. 

So, for example, I limit my reaction to “literally” meaning “figuratively” to a mild internal flinch, although I flatly refuse to use it that way myself.

But “disinterested” used in place of “uninterested”? Hell, no. Particularly in our polarised world ([cough]Hancock and others in government giving jobs to their mates [/cough]), the secondary meaning of “interested” – that is, not something which fascinates you, but something you have a stake in – is more important than ever. Finding someone genuinely disinterested – that is, someone who can stand apart from a dispute and see it dispassionately (another great word), or at least someone with sufficient humility and wisdom to seek that position – has huge value. I don’t know another word which captures it quite as effectively. “Neutral”? “Objective”? “Unbiased”? Nope. They don’t mean the same. 

So yes: that one I’ll keep fighting for.

Slightly differently, but on a similar note, misplaced passives drive me nuts. This isn’t just parroting the Strunk & White-style simplism (ooh, that’s another word to defend) that actives are better than passives – not least because of the number of times things that aren’t actually the passive mood are quoted in defence of the position. Grrr. Not least because sometimes a passive is right: when you want to place the stress on the victim of an action, the passive can help keep the focus where it belongs. 

But far too often, there’s the “mistakes were made, lessons were learned” usage: what I call the “institutional passive aggressive mood”. The usage that obscures the fact that people did things that were wrong. That people need to learn and change. And that accountability, as opposed to blame, is important. And, if anything, makes it look like it’s your fault, not theirs, if you’ve got any further problem with them.

You know what? Don’t just listen to me on this. Go to this link, where the near-unparalleled US satirical website McSweeney’s (second only to The Onion, which published the best story in the world on Steve Jobs’ death a decade ago) does a bang-up job putting this very special linguistic usage precisely in the context it demands, with some nice animation to boot. Read it. Enjoy it. Make sure you get to the end. And see how you feel about the institutional passive aggressive then.

*As for whoever wrote the advert on the side of a double-decker bus I saw earlier this week, which used the American spelling “labeled”: well, I’m not the one who should be dying in a ditch for that.


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2021vi28, Monday: Interest.

Accountability starts with keeping track of conflicts of interest. Fail to do that, and corruption comes next. As the Matt Hancock saga shows all too clearly.

Back in my banking days, part of my job – frankly, one of the less fun parts – was to help people understand not only what restrictions and controls applied to what they did, but why.

This was always, to my mind, critical. People might not agree with the “why”. Often, they didn’t. But you owe it to them to explain them. There’s a reason why “Because those are the rules” is on a list of “Things never to say to anyone, ever” in one of the most helpful books on interpersonal communication I ever read.* 

Often I could understand people’s questions. Not least because banking systems and controls frequently appeared to be designed by people who’d never, actually, met people before. Which broke Scott-Joynt’s First Rule of Policies and Procedures: don’t ever expect human beings not to behave like human beings; so design your systems with the grain of how people tick.

(The second rule, of course, is that policies are either written for people to use, or written to cover the organisation’s backside. Those written for the first purpose can often also achieve the second. Those written for the second, usually by lawyers like me, can never achieve the first. This is also the difference between focusing on risk and focusing on compliance; but that’s another discussion.)

But one set of questions always baffled me: those about conflicts of interest, and why they needed to be declared. Banker after angry banker would wave the form at me demanding why on earth the bank needed to know about the relationships they had and the businesses they were connected to. “None of this is relevant,” they’d grouch. “I haven’t done anything wrong.”

They were probably right. And it didn’t matter. Because the whole point of conflicts checks and declarations – whether general ones, or requirements to declare an interest if you’re involved in a decision which could benefit someone or something close to you – is preventative, not detective. It’s to put transparency in place before it’s needed, so that conflicts never actually arise. Which is why the broad declarations are needed: to avoid situations where there might appear to be a conflict, and thus the risk – yes, you guessed it – of corruption.

It doesn’t work that way, of course. People don’t declare. Often it’s relatively innocent, in a way: people think they’re not the kind of person who’d act improperly, to act partially, so therefore they don’t need to declare anything. Only dishonest people need to do that. And they’re not.

Balderdash. Most of us have immense blind spots when it comes to favouring those in our circle. Because we’re human. Because that’s how humans tick. So it’s not a matter of trusting honesty. It’s a matter of building in solutions where problems might arise, shining a great big spotlight on them, verifying connections, and thus obviating the problem as far as possible.

Why has this sprung to mind? It’s fairly obvious, I think: the Hancock Half-Hour of shame. The embarrassing clinch and the shameful do-as-I-say, not-as-I-do in re social distancing regulations and guidance is bad enough. Certainly enough reason for anyone with the slightest integrity to have resigned instantly, or (when it comes to his boss) to have sacked him on the spot. As is the hypocrisy of having demanded the head of Neil Ferguson, and then going on to do even worse yourself. 

But the conflicts are to my mind far more serious. There’s the obvious one, and the less obvious one. 

  • The first: the fact that Hancock appears to have given a job to a woman he was having an affair with, in secret, as well as sending work to members of her family. All while – so it’s reported – keeping comms relevant to this kind of thing out of government systems and on a private Gmail account. When the job or the contract came up, the only ethical thing to do would have been to declare an interest. He didn’t. Draw your own conclusions. 
  • The second: the fact that the only person with the power to decide whether his actions were acceptable or not is the PM. Someone not only with ethics that make Hancock look honourable, but with an immense vested interest in the outcome. 

Conflicts matter. Because being accountable matters. (Not just paper accountability; real accountability, in the sense of submission to those whose interests are not aligned with yours, and who have authority separate from your own.) Because transparency matters. And without it, you have corruption, self-dealing and disgrace.

Always. 

*The book’s called “Verbal Judo”. Setting aside the unfortunate fact that the co-(ghost?) writer seems to be the bloke who later co-wrote the ghastly “Left Behind” series of apocalyptic cod-Christian guff, it’s excellent. Written from a police officer’s point of view, but with much wider application. If I mention that other phrases on that list include “you always/you never”, “come here”, “be reasonable”, and my personal favourite, “calm down”, I hope you’ll agree there’s some smart and thoughtful stuff there.


Note: what with the family stuff that’s going on, I’m going to experiment with just having a single item for each post. That should (a) allow me to post more regularly, by not feeling obliged to have multiple things each day and thus ending up not getting stuff out; (b) make it easier to link to specific pieces. Hope that’s OK. If not, let me know.


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2021iv28, Wednesday: “A bloody computer system killed my brother.”

More on the Horizon scandal. And yes, it’s a scandal.

Someone is right on the internet: A very short hit. Because Dan Hon, an excellent writer on tech, has hit the nail on the head with an important backstory to the Post Office Horizon scandal in which dozens of honest sub-postmasters were prosecuted and convicted because the software running their accounting went horribly wrong – and no-one was willing to admit it.

His take is very much on how Horizon went so badly wrong, from a software and services project management perspective. That makes it sound boring. It really isn’t. It’s critical to understanding how organisations go so far off the rails that they do truly sociopathic things like what the sub-postmasters experienced.

Not least because as is almost always the case, it’s not actually a case of “computer says no”. Instead, it’s a story of human decision-making, and decision-ducking, and arse-covering. With utterly tragic and – quite possibly – criminal results.

Read the whole thing, but this ending is bang on the money. Under the heading “The Biggest Lesson”, Dan writes:

The sister of the former post office worker who committed suicide said: “a bloody faulty computer system killed my brother”. [The Evening Standard, April 12 2021]

My heart goes out to Jayne Caveen. And I hate to do this: a computer system did not kill her brother. Horrible people in management killed her brother, and it’s easiest to blame it on a computer system.

People, people in management, people in positions of trust people running one of the most trusted institutions in England made those decisions to double down and to persecute and prosecute people knowing that the evidence wasn’t reliable and concealing that evidence wasn’t reliable. Intentionally not investigating reports for fear of what might be found, because it might affect public perception of trust, or because it might be discoverable and admissable in court. Cowardice, fear and a lack of integrity is what happened. Pride and boastfulness in a system that could never do what it could. Using technology was and is an excuse. Not taking responsibility is what happened.

Technology is for people and made by people and this is what happens when the people running it don’t realize that.

Amen.


Short thought: Incidentally, the Court of Appeal judgment was unstinting in its criticism of the prosecution. And utterly unyielding in its position that the convictions were not only unsafe, but an affront to justice.

But it didn’t say, in terms that the victims – and victims they were – of this injustice were innocent. That wasn’t its job.

And that’s a problem.

Because ever since 2014, victims of miscarriages of justice – even those who may have had their lives destroyed, spent years in jail, and gone broke trying to defend themselves (see the Secret Barrister’s first book for details of this “innocence tax) – have faced an intimidating bar for getting compensation.

Intimidating? Make that well-nigh unclearable.

Look at it this way. People should only be convicted if a magistrate or jury is confident beyond reasonable doubt that they did what they’re accused of doing. “Beyond reasonable doubt” is now generally seen as not clear enough; judges now direct juries that they need to be “sure”.

This is rightly a high bar (or should be). A criminal conviction is a very big deal.

But under s133(1ZA) of the Criminal Justice Act, as amended by the then Conservative-led government in 2014, this is the test for miscarriage-of-justice compensation:

…there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales… if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).

In other words: you get banged up. You shouldn’t have. Your life is ruined.

But you have to prove your own innocence to the same standard as proof of guilt. Not “more likely than not” innocent. Not “all the evidence points towards someone else” innocent. No: “can’t possibly have been you, under any reasonable circumstances” innocent.

No-one pays to help you do this. No account taken of the fact you might have been seriously psychologically damaged by your ordeal. And if you don’t do all this and submit your application within two years of your conviction being quashed, then by s133(2) you’re out of luck anyway.

I very much doubt the sub-postmasters can reasonably surpass this hurdle. Even though they’ve obviously been subject to the most appallingly inhumane and unjust treatment.

I don’t often say this. But this provision is wholly unjust. It makes a mockery of the need to correct injustices. It needs to go. Although I can’t imagine this government – or any other government which relies on the hang-and-flog vote – doing anything about it.


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2021ii15, Monday: Damn.

Positive test. Feeling OK, but probably won’t. Please forgive me, but this may not be a priority till I’m through…

Short thought: It’s not even two months since I started doing this writing business on a regular basis, and I’m already taking a break.

That said, I think I’ve got a pretty good excuse. A Covid test I took on Saturday came back positive.

Right now, the worst of it is a moderate headache and a stuffy nose. But I imagine it’ll probably get worse. My primary worry is wife and daughter: they’ve both come back with recent negative tests, but that doesn’t mean I can’t infect them. So my life for the next week or two (at least) is the front room and the study. (I recognise I’m very, very blessed to have that much space available.)

I hope you’ll understand if I don’t prioritise this writing till this is over. I may write stuff – it might actually be therapeutic. But please forgive me if that idea slips down the back of the sofa. I may stick to the odd SIROTI – they’re fairly straightforward. Hope that’s OK.

Of course, this either means I’ve managed to catch it twice, or that godawful bug I had in March/April last year wasn’t Covid after all. I rather hope for the former; last time was horrible but relatively short. I could live with that again. In contrast, I’m petrified of long Covid: since I’m self-employed, that would be financially catastrophic for my family. Save us from that.

Fingers crossed, people. See you in a bit.


Someone is right on the Internet: While we’re on the subject of The Bug: I’m not the only one to be staggered by Taiwan’s handling of this thing. I remember a headline in December saying – I think – that they’d just had their first new case in seven months. Not death. Case.

Total deaths: 9. Total cases: under a thousand.

Wow.

It’s a place which deserves closer attention. Not just because of that, and not just because – in TSMC – it has one of the most important and critical chipmakers for the world’s electronics. But for so many other reasons.

I won’t bother to enumerate them. I’ll leave that to Noah Smith, who knows far more about the place than I do.

All I can add is this: one of my good and dear friends, my ex-boss Hui Chen, is Taiwanese-American. And she’s been in Taiwan pretty much throughout this madness. The thought that someone I care about has been in practically the safest place on the planet is a bright spark in a dark universe. Thank goodness.

(Noah also knows a lot about Japan. This piece, about Japan’s interwar history of fascist coups which failed in the short term but which arguably succeeded in aggregate, is sobering when one thinks of the 6 January affair, and Trump’s recent acquittal.)


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2021ii12, Friday: Different ≠ worse.

Why section 3 of the Unfair Contract Terms Act 1977 has a lesson for our polarised world. And something special about the spiritual geography of offices – those places we may miss more than we know.

Short thought: I’ve rambled before on the power of analogies for advocates. I was half-convinced anyway, before Edmund King QC (RIP) pushed me all the way. It’s a bit like when I first found out about the Dunning-Kruger effect*: its explanatory power was such that examples suddenly started popping up everywhere. 

(To be more precise: they were there anyway. I just didn’t have a name for them. Like that cognitive glitch when you think about red cars and then notice them everywhere. They were always there; your conscious mind simply had no reason to single them out before.)

A fresh one popped into my head when I was prepping for yesterday’s hearing. In the end I didn’t use it: the judge found for us on another ground, and agreed with us on this point without me really having to argue it. But it set me thinking, about how easy it is to overlook how different doesn’t have to be better or worse.

The situation was this. My client had bought an expensive hospitality package for a sporting event from a vendor; the vendor didn’t come through, but offered them a different package claiming it was an “upgrade”. Among several key issues was how to make clear that something can be substantially different without having to be inferior. The point was for the sake of s3 of the Unfair Contract Terms Act 1977, which means a business offering another business a “substantially different” product from what they’d promised can only rely on a get-out clause in the contract if that clause is objectively reasonable. The point being that if (but only if) the product was substantially different, I could bring in the (genuine) unreasonableness of the clause in question.

The analogy I came up with: Imagine you’re a computer vendor. Your client wants a PC. You provide a higher-spec Mac. For many people – myself included – this is absolutely an upgrade. (Don’t flame me, people. I’ve used both platforms side-by-side for decades. I’m allowed.) But that’s irrelevant. For a PC user, the higher spec doesn’t matter. There’s a material and important difference. And any customer would reasonably be entitled to a swap or a refund.

(It works the other way round, too, of course. I realised this when I first used a PC for work, after always using Macs, and got horribly confused that there was no menu bar at the top of the screen. The lack of a Start menu must do the same for PC-to-Mac switchers. I feel the pain.)

Why did this stick in my mind? Well, with polarised politics and with-me-or-against-me thinking has come, I think, a diminution in our preparedness to consider that sometimes people just see things differently – and that sometimes, that isn’t a bad thing. When that different outlook causes real harm and power imbalances, then by all means we should act. But the starting point has to be an acceptance that everyone has the filter of their own lived experience, colouring what they see and how they understand. And many, if not most, of the distinctions will be just that. Not better. Not worse. Just different.

It’s a bit like steel-manning. Start from an assumption of good faith. Try to see and understand. Test your own assumptions. We may be stuck with polarisation for a while; it’s useful for a certain type of politician who cares more about the short-term boost than the long-term catastrophe, and sociopaths like this are sadly in the ascendant. But each of us, in our private lives, can make this work. And the smallest change can echo outwards. 

*I feel obliged to mention this recent piece seeking to debunk a chunk of what most people understand to be the Dunning-Kruger effect. I’m not wholly convinced; the effect’s application seems anecdotally to be too prevalent. But I’d be dishonest not to include it. 


Someone is right on the internet: Calling Paul Ford a writer is like calling Thelonious Monk a musician. It’s true, so far as it goes. But that’s not very far. Paul Ford is also a software designer, and much more. 

Many geeks who didn’t know of him before came to know and love him from What is Code? (on Bloomberg, so a metered paywall), a long read – in fact, at 38,000 words, practically a novella – about what coding and programming was really about, and like. It’ll take ages to read. You’ll need a cuppa, or three. But if you are even slightly interested in how the software business works, and how people write and create it – and in our world today, how could you not be? – it repays the investment several times over.

Now he’s done it again, albeit far shorter. The Secret, Essential Geography of the Office in Wired (also a metered paywall) does more to describe something essential about how workplaces function in 1,200-odd words than I’ve read in years. The geography he talks about isn’t just physical; it’s social. And it’s temporal. It’s both beautiful, and achingly painful in its sometimes uncomfortable sociological implications. 

And it’s recognisable. He mentions being told of specific spots in one workplace where you can go to cry; and I remember my time at BBC TV Centre, with its dozens of sometimes half-hidden staircases, and a spot on one – just between the fifth and sixth floors – where I went to cool off after an argument. And the joy of the balcony on the front of the building, facing east across London, where on an early shift – if you timed it right between stories – you could make it up there just in time for sunrise.

It’s different now. A Chambers is more of an interconnected set of separate worlds than a single entity. Each room is distinct; hierarchy, at least in our Chambers, is far less noticeable. (It may be different in more traditional buildings on staircases like an Oxbridge college.)

But we’ve still got a back staircase. Echoing bare stone steps, worn at the edges by generations of advocates. And amid the lockdown, having been in Chambers only four times since March last year, is it strange that I miss that staircase almost more than anything else?


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2021ii10, Wednesday: “Conspiracy without the theory.”

Some excellent, if depressing, writing on the modern prevalence and abuse of conspiracy theories. But also: fantastic new knowledge tools for Mac/iOS users.

Someone is right on the internet: I remember my first argument about conspiracy theories. It was decades ago: I was in India, on a gap year, in a cafe somewhere in Rajasthan. Jaisalmer I think, out in the Thar Desert. And some other Brit was expounding on some conspiracy or other. I took the other side: what I now recognise is the classic position of noting how improbable it was that everyone involved could collaborate so perfectly and secretly. I can’t remember what it was about; probably the Moon landings.

One of the many depressing things about the past few years has been the proliferation (and popularisation by people you really wish knew better for selfish ends) of conspiracy thinking, to genuinely poisonous and damaging effect. This piece does an excellent job of walking through – as it puts it – their “enduring allure”, noting as they do that the USA was founded on a conspiracy theory of a sort, and that “losers” in politics often turn to conspiracy theories and paranoia to explain the outcome. (A classic piece of writing, Richard Hofstadter’s “The Paranoid Style in American Politics”, noted this tendency more than half a century ago. He’s no more wrong now than he was then; I suspect we’d see strong echoes here, too.)

But then the piece takes a darker and scarier turn, noting that the turn now is towards – as the authors put it “conspiracy without the theory”. By which they mean the old days of obsessing over bullet trajectories (Kennedy) and flag shadows (Moon landings) are gone. Who needs actual facts to analyse when instead you can disappear down a rabbit hole of assertion like QAnon – something which, as has been noted, seems almost as tailor-made to deliver addictive dopamine hits to its adherents as a computer game?

Compared with this, the innocent era of the Bush administration – when people were shocked, shocked to hear an anonymous US government source declare that they “created their own reality” in contrast to what he dismissively referred to as “the reality-based community” – seem like halcyon days.


It just works: Those who’ve been reading my stuff for a while will be aware of (and may fairly despair of) my on-off search for the right tool for taking notes and keeping records. Scrivener, Ulysses and Notion have all come in for favourable reviews – and are, without a doubt, fantastic pieces of software. For the right user, each of them is probably spot on.

But none have settled for me. Scrivener’s clunky sync was a killer. Ulysses’ clumsy search and less-than-ideal tagging frustrated me intensely. Bear – which I’ve only mentioned in passing before – is an excellent “dump stuff for later” tool with the best tag system I’ve come across, and I still use it for that purpose; but is just too “flat” for my purposes. (I need ways of keeping info about particular cases together without relying on tags or keeping everything in a single file.) Notionwowed me with its versatility, but I need reliable offline working and easy import-export, and that isn’t it.

At least I’ve realised what my priorities are by now. Not all are deal-breakers, but all are important:

  • Portability. I don’t want my stuff locked up in a format or location I don’t control. So ideally files on the desktop or in a cloud share I trust, and Markdown as the format. 
  • Easy export. I need to be able to dump stuff into a PDF or Word document easily, with minimal formatting faff. 
  • Bringing stuff together. I need to have everything about one topic easily accessible.
  • Search. There’s no excuse here. Rock-solid, no-brainer universal search is essential. If you make me work for it (Ulysses, I’m looking at you), that’s a critical fail.
  • Linking, in both directions. I’d forgotten how much I love this. Not only must I be able to embed links to other files/documents in the system into any other file; ideally I want to see what links to the thing I’m looking at now. This is backlinking; it’s a very old-school hypertext function, but now I’m using it again I’m staggered how I survived without it.
  • Multi-platform. Being limited to the desktop doesn’t work for me. Admittedly my new machine is lovely; but my workflow absolutely embraces phone and iPad. I need convincing to do anything that blocks that.
  • Multi-window. I need to see two or three things at a time. 
  • Speed. I’m lucky enough to have good kit. If the software slows it down, that’s unforgivable. I’m looking at you, Word.
  • Keyboard shortcuts. Don’t force me to use a mouse or trackpad any more than I have to.

In our new no-paper world, I’d very much recommend anyone else thinking through their own priorities. I’m very happy to discuss with mates what they need, and what might fit.

Me? Two new tools have presented themselves, both of which tick almost all these buttons. Both promise shortly to tick them all, although we’ll see what those promises are worth. 

First, there’s Obsidian. This is desktop-only, for now, which is a real pain. But it’s wonderful: in essence, a smooth, keyboard-led take on a Markdown wiki and knowledge handler with everything stored locally as individual text files, back- and forward-linked to high heaven. It’s not for everyone: it’s a kind of throwback to a primarily text-heavy world. But I just ran a 10-day hearing with everything in Obsidian: a master page for the case, with pages branching off (in separate panes) for each witness’s evidence, for my own notes, and for important background. All cross-linked and lightning-fast.

Then there’s Craft. I found this late last year, and frankly I don’t quite know how to describe it. It’s got some (though not all) of Notion’s virtues – a block-based structure where each paragraph on a “page” can easily have links, formatting and other things defined by easy keyboard shortcuts, or be turned into a link to a sub-page which in turn backlinks smoothly. It isn’t as versatile as Notion, but it’s happy offline, it’s quicker and smoother, and its exporting is excellent. Initially it was single-window, but that’s been sorted now. It’s cross-platform all the way, too. The one fly in the ointment is that right now it stores its own data; but its developers promise the ability to host data wherever you want within weeks, and their pace of evolution is excellent, so I’ve some faith they’ll manage it.

For the moment, I’m sticking with Craft. It’s smooth, it’s elegant, it’s designed by people who clearly care deeply about their users, and much as I love Obsidian (and I do), for now cross-platform ease is too important to sacrifice. I’d strongly recommend it.


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2021ii8, Monday: The intellectual dishonesty of pushing buttons.

New rule: if you use a dog-whistle, I’ll stop reading. Fair enough? And a lovely rabbit-hole for word-loving geeks.

Short thought: By way of a tangential follow-on to the stuff on tools for thinking the other week, there’s been something else on my mind. And I recognise that I may be about to sound doctrinaire, narrow-minded, closed.

Which is ironic. Because that’s more or less the charge I’d level at the people to whom, I’ve decided, I’m not going to bother reading any more. 

That’s not entirely correct. I’m not shutting people out altogether because of something they write. I’m shutting the particular thing they’ve just written. 

Because I’m tired – so tired – of push-button words. You know: Woke. PC. Gammon. Karen. Cancel culture. TERF. And so many others.

(A point of clarification. This is about the use of the label. Not whether I agree or disagree with the underlying position it (mis)represents. As I hope I’ll make clear in a second.)

I think it started with “Remoaner”. Yes, I voted Remain. And I still think Brexit was a bad idea, done worse. (As with all things in UK politics, there’s a Yes Minister quote to fit the moment: “If you’re going to do this damn’ silly thing, don’t do it in this damn’ silly way.”) But among my friends are those who think otherwise, and we’ve come to understand and respect (and even care for) each other better because we started from assuming we were all acting in good faith. Still, every time I read a piece of writing with the word “Remoaner” in it, I just stopped reading. I thought: you’re pushing your readers’ buttons. You want them immediately to leap over the pros and cons, and move right on to an assumption of idiocy and bad faith on the other side. And that’s just wrong. 

And when I started thinking like that, I realised that so much of modern political discourse, on all parts of the political spectrum, was doing the same thing. In sports analogy terms, playing the person not the ball. Pushing the button, delivering a nice big dose of we’re-right-they’re-wrong dopamine, rather than actually trying to make the case. It’s not dog-whistling, because it’s not even bothering to hide in plain sight. No; it’s waving other views aside. Apply label, turn off brain, stop listening, assume the worst. 

In a way, it’s akin to what I’ve long regarded as the ultimate intellectual dishonesty: the straw-man fallacy. Even those not familiar with the term will recognise it straight away: the (deliberate) misrepresentation of someone else’s view so it’s easier to (ostensibly) refute. A classic example: we’re debating the notion of a just war. I say: I have an ethical problem with violence . You say: “So you’d be happy to watch your family get killed and do nothing about it.” You’ve taken my position to an absurd extreme, so as to make a case against something I’ve never said and don’t think. (It’s only a couple of years ago that I learned of the opposite, steel-manning. Which I love. As a barrister, it’s the key to winning a case: construct the best possible version of the other side’s argument first, and only then find a way of beating it. When I lose a case, it’s often because – on reflection afterwards – I realise I didn’t do that as well as I should have.)

Labelling someone as “woke”, for example (or, a few years ago, an SJW; before that, PC), is similar. You freight their position with a bunch of assumptions that you know “your” side will recognise and abhor. Then you go straight on to argue against that caricature rather than against reality. It’s a fundamentally dishonest way of doing things, whether you mean it that way or not. It short-circuits genuine thought and engagement, in favour of scoring points and pointing fingers. And whether it’s from the right, the left or somewhere in between, it’s abhorrent.

So that’s my rule. When I encounter a push-button word, I stop reading. 

I know it’ll mean I don’t read some things that perhaps I should. But attention is a very limited resource, for us all. And if you’re going to waste mine (and others’) by pushing buttons instead of engaging brains, I can’t be bothered with you. I’m going to turn the page. Close the tab. Move on. And read someone I disagree with who’s got more integrity.


Someone is right on the internet: Geeks like words. It’s part of who we are, on the whole. We have whole languages sometimes (conlangs – love ‘em). But even when we don’t, any fandom has words, phrases, which carry in their etymology histories of how our genres have evolved that we’re probably not aware of in the slightest. 

Which is where the Historical Dictionary of Science Fiction comes in. Find a word or phrase. Jump drive. Nanobot. Sentient. And trace it through writings and media over the past 70 years or more. It’s a lovely rabbit-hole. Enjoy.


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2021ii5, Friday: Malleable memory.

The litigation process causes witness inaccuracy – and the courts are recognising that. Also: a wonderful hymn to the joy of errors. And why stories can help fight corruption.

Short thought: Job one, when you’re a barrister, is to read the papers. 

In olden times – that is, a year ago – these would normally arrive in fat bundles. Possibly, even today, tied up in pink tape. (Ah, the nostalgia.) Nowadays it’s PDFs. Already put together if you’re lucky. Buried in dozens of nested emails if you’re not. (The fact that I’ve written about this three times in the past six months shows how painful this is.)

But however they come, knowing the papers, inside out, is critical.

In commercial litigation this is if anything more important. The reason? Over the past decade or so, judges in the English commercial courts have recognised the fundamental problems with oral witness evidence, long considered the gold standard and backbone of any trial. 

The first really stalwart example of a judge making it clear that documents, not people, were what they would primarily rely on was the case of Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), in which Leggatt J (now Lord Leggatt JSC) made clear at [15]-[22] his awareness that memory is fallible, that the process of civil litigation itself risked making it still more fallible, and that the mechanics of memory formation itself meant relying on witness recollection except as a means of scrutinising the documents in the case was usually a futile exercise.

There’s been push and pull about Leggatt J’s points ever since. But at their heart they stand up. They reflect, among other things, the growing and spreading knowledge of how cognitive biases function (warning: that link is a rabbit hole from which you may not emerge), and the fact that memory is a construct, not a recording. 

The Courts’ recognition of this, at least in commercial litigation, is now official. Enshrined in a new practice direction (PD57AC for those keeping score – starting at p64 of the linked PDF), are rules about witness statements at trial which seek to mitigate the adverse effects of the litigation process and improve the odds of witness evidence actually being useful. The explicit recognition of what one might call the Gestmin principle is at para 1.3 of the appendix, at page 69 in the PDF I linked to:

Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

(1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

(2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

(3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

The other reason for the PD (and this was made clear on a enlightening webinar by the Leeds BPC Forum earlier this week addressed by Andrew Baker J) is the burgeoning use of witness evidence to make arguments. Judges are getting more and more annoyed by this – one can do little better than look at the many, many posts on Gordon Exall’s Civil Litigation Brief (this is just the latest) on this subject for excellent examples. 

Either way, though, the message is clear. Know your papers. Make them tell the story you need to tell, and use witnesses carefully to buttress that story. Because if you don’t, the other side definitely will.


Someone is right on the internet: Speaking with the experience that comes from being the parent of a 14-year-old, her generation seem to have a harder time with perfectionism than mine ever did. I don’t know why, but I suspect the welter of examples, spread across countless media, of people who seem effortlessly to succeed – with all the hard work in the background neatly occluded – may have something to do with it. The fact that Gen Z simply, frankly, has it harder than we do, with narrower pathways to success and far greater consequences for screwups along the way, is probably also relevant.

Even so, I remain a true believer in the principle that to be good at anything, you have to be OK with being bad at it for a while as you try to improve. And that it’s OK – no, it’s critical – to be OK with getting it wrong. So long as you only get it wrong the same way once. I remember interviewing someone for a job once who surprised me at the “do you have any questions for me?” stage by asking how I’d deal with her making a mistake, which sparked a great discussion about the importance of assessing people by how they correct and learn from errors, rather than by the errors themselves. A reallybrave question, but in fact an excellent one – one which made sure she got onto the final shortlist. 

So this piece by David Duchovny (yes, that David Duchovny) struck a chord. Starting with a Beckett quote – “Fail again. Fail better” – he weaves a hymn to the importance, and sometimes even the joy, of screwing it up and trying over. Or, as Fred and Ginger put it, “Pick yourself up, dust yourself off, and start all over again.” He also used a word I’ve never seen before, but am now in love with: hamartia, which he describes as the “near miss” that delivers an electric energy driving the next attempt. (Dictionaries give a darker meaning: the tragic flaw in a hero that triggers their downfall. But Duchovny’s sentiment, if not his usage, is bang on.)

Seriously, it’s a great read. (Sorry, paywall again, but The Atlantic’s is metered so you should be able to take a look.) And I can’t sing this song often enough. 


Thing I wrote: In less plague-ridden times, Fiona Horlick QC – a fantastic advocate and a genius at health and safety and disciplinary law – is my roommate at Chambers. 

(Barristers’ chambers are usually, although not always, set out in individual rooms rather than open-plan spaces. Our work doesn’t lend itself to the disruption and lack of privacy of open-plan. But often those rooms are shared with one or two others – which both cuts the cost and makes for a pleasant collegiality. Alex Haines, one of only a handful of lawyers who are genuine experts in the law of international organisations like the IMF or the international development banks, is in our room too.)

For the moment, of course, we’re physically far-flung. But we’re still working together. And Fiona and I put together a piece for the Government’s Public Sector Counter-Fraud Journal (link to the whole thing in PDF; we’re on page 5) on how the stories people tell themselves can encourage corruption – and how we can use those stories to quell it or find it as well. My past life as a reporter means that perhaps I look too much for narrative in my work as a barrister, but finding the right story can be a hugely important tool (a bit like finding the right analogy – see the last chunk of this piece). And understanding how the stories which people tell themselves can influence their actions is important for this, too.


Thing I said: My friend Daniel Barnett, who’s been mentioned in these annals before, was as upset and (frankly) perplexed by the Times’s assault on employment tribunals and their judges as I was. So he corralled – sorry, persuaded – several employment lawyers to take the Times’s inaccurate claims apart on his YouTube channel. I was one of them. Personnel Today followed us up – thankfully with a pic of someone else, not me. Phew.

Incidentally, judges aren’t the only people who can’t answer back. Think of all the tribunal staff who’ve been working their hardest, amid this nightmare of a pandemic, to keep the show on the road and to keep delivering justice. They don’t have a voice either, but their morale is hit just as badly by inaccurate garbage like this. We’re fortunate to have a voice; as (for barristers) self-employed professionals, speaking up for people is our job. So in this we’re speaking up for them, too.


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2021ii3, Wednesday: Getting away with it.

Fraud hurts huge numbers of people, hugely – yet it’s a law enforcement also-ran. When might that change? And, staying with crime, fantastic writing about my favourite detective author of all time.

Short thought: For anyone involved in dealing with fraud – as an investigator, an insurer, a lawyer or otherwise – the past couple of decades have been frustrating beyond bearing. Those 20 years have seen the resources devoted to investigating and prosecuting private-sector fraud dwindle to near-nothing, while fraud grew to half of reported (if not always recorded) crime (as the online environment both created new attack vectors and exposed a huge population of potential targets) and losses estimated by some in the hundreds of billions.

Some blame banks. And they’re not beyond reproach: the schemes set up to repay victims of authorised push payment or APP fraud (where someone bamboozles you into making a payment to the wrong recipient) have been dogged by reluctance, under-resourcing (again) and a tendency by some institutions to pin the blame on the victim far more than may be entirely justifiable

But there’s a fundamental tension here, as exposed in the recent case of Philipp v Barclays Bank [2021] EWHC 10 (Comm). A bank’s primary duty is to carry out its customer’s instructions, not to police those instructions on the off-chance there’s a fraudster behind them. There is a duty to act on reasonable suspicion of fraud or dishonesty; it’s called the Quincecare duty. But it’s of limited application, and (as the Court found in Philipp) doesn’t apply where it’s the customer themself, rather than an agent or someone purporting to act for them, who’s delivering the instructions. The public policy trade-off between the mandated duty and fraud protection is a real one, not something which can simply be refashioned on the fly.

So what about the regulators? Most fraud isn’t undertaken by regulated institutions. No doubt regulators such as the FCA could do more to police the perimeter of their powers – and as Dame Elizabeth Gloster has found in relation to the London Capital & Finance fiasco, it has often been shortsighted at best in how it approaches that task. But it’s not a complete answer by any means.

I’m not sure there’s a simple answer. (Which calls to mind HL Mencken’s maxim: for all complex problems, there’s an answer that’s clear, simple and wrong.) But a recent report by RUSI suggests a re-framing of the problem which I like, and which I think puts the emphasis where it belongs. 

RUSI sees fraud as a national security issue. It takes the UK’s three national security priorities – protecting our people, projecting our global influence, and promoting our prosperity – and points out that fraud does serious damage to all three. It impoverishes and immiserates the people of the UK. It damages our standing by making us seem to be a paradise for untouchable crooks (including substantial involvement by organised crime) and launderers. And it undermines our prosperity by leaching from the public purse and leaving us with a financial system and economy where transactions can’t be trusted. 

Taken together, it posits (I think rightly) that fraud imposes a uniquely damaging disruption not only financially but on society as a while

It suggests what it calls a “whole-of-system” approach, whereby non-criminal justice state actors including intelligence services work together with the criminal justice system to tackle the issue. Unsurprisingly, it calls for significantly enhanced funding – not just for existing specialist forces such as the City of London Police, but nationally. And it makes the case for clearer accountability and leadership.

Of course, you could say we’ve heard this all before. And yes, we have: the 2006 Fraud Review said some of these things, albeit in a different way, and a retrospective 10 years later found little had changed

But the losses are now staggering. Everyone knows someone – a relative, a friend, a business partner – who’s lost sometimes significant sums to fraud. The pandemic has created huge new opportunities for fraudsters. And if the government is even slightly serious about “levelling up”, or “building back better”, then keeping billions in honest circulation rather than in fraudsters’ pockets has got to be a good idea. Aside from anything else, the well-known principle of loss aversion indicates that if someone loses cash to fraud, they’re even less likely to spend what they have left. Not a great help to a pandemic-stricken economy.

And that starts, inevitably, with resourcing it in line with the huge harm it does.

Put more simply: if not now, when?


Someone is right on the internet/things worth reading: I’ve been a sucker for a good mystery all my life. As a kid, I thought Poirot and (later) Miss Marple were the best. Lawrence Block’s Burglar books were a later unashamed pleasure. I haven’t quite read all of Rebus, so I’ve gone back to the beginning and started over before reading the latest ones.

But if you backed me into a corner and said I could only have one detective fiction creator, there’s no contest. Dorothy L Sayers was, is and probably ever shall be the one for me, and Peter Wimsey is my sleuth. Five Red Herrings takes the cliche of train timetables and makes a masterpiece from it; Murder Must Advertise gives us a glorious double life; and Busman’s Honeymoon somehow combines mystery and romance into a piece of sterling literature.

But Gaudy Night is special. The point of view changes to Harriet Vane, initially a secondary character (in Strong Poison) but now a co-star in her own right. And – as beautifully explored in the New Yorker (sorry, paywall – but this could be one of your monthly freebies; it’s worth it) – an exemplar of how Sayers laid the groundwork for today’s flowering of superb female mystery authors. The article’s worth a read. And the books? Just go for it.

(I should also mention the supremely well-done BBC Radio adaptations – all available on Audible, with Ian Carmichaelas Wimsey and Peter Jones, famous among geeks for being the voice of The Book in H2G2, as Bunter. Not quite up to the Sherlock Holmes standard set by Bert Coules with Clive Merrison as Holmes and Michael Williams as Watson – but really, really close…)


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2021ii1, Monday: Hack job.

The Times publishes a misleading set of hit pieces about employment tribunals and judges. One of those it insults is a colleague. I can’t in good conscience let it lie.

A departure today from the normal routine of short thoughts etc. A colleague of mine, Natasha Joffe, has just been the subject of a piece of shoddy journalism. And I can’t let it pass. There aren’t that many barristers who used to be reporters, but I’m one of them; and this ought never to have passed the subs, let alone made it to publication. That it did reeks of an editorial hatchet job. 

For tl;dr purposes, I’ll put it simply. The overall impression of this piece, that employment judges being appointed are somehow substandard, is simply wrong, and unfair to the individuals named. It tells a one-sided story, ignoring vital context, and thus gives a misleading picture in all but one respect. That one thing is that the system is overburdened; but that’s not the fault of “inexperienced judges”. It’s the result of political decisions coming home to roost, to everyone’s cost.

(To be absolutely clear: this is my personal view, not that of my Chambers. But I suspect I’m not alone.)

The piece in question is in the Times. It accompanies an equally shoddy news story. (Update: a friend has provided shareable links to both pieces which are OK for non-subscribers legitimately to access.) The main assertions in the piece, and the news story it accompanies, are as follows (note these are the Times’s assertions; my repeating them here doesn’t mean I think they’re right or true):

  1. The MoJ is rushing to appoint “inexperienced” employment judges to deal with a huge backlog. A “hearings free-for-all”, the paper calls it.
  2. Employers are unfairly treated by tribunals, because they can’t recover their costs. 
  3. The backlog is because of a “surge in demand” since the 2017 Supreme Court case which ruled that fees were unlawful.
  4. The surge is mostly unrepresented litigants in person, some of whose cases “seem extraordinary”.
  5. The tribunal system should change its rules and throw out more cases, but is instead hiring inexperienced judges selected on the basis of lower standards. 
  6. The “lower standard” being no need for previous judicial experience. An anonymous “judicial source” said it was “quite a stretch for someone to be thrown in immediately as a full-time judge”.
  7. Profiles of several of the “inexperienced” (and by inference unsuitable) new judges follow. One is Natasha Joffe (a former member of my Chambers). She started work in September 2020. The Times says she is “among inexperienced judges appointed with backgrounds that might appear more embedded on one side than the other in employment issues”, saying that “her brief biography by the MoJ contained no previous work as a judge but stated that she was called to the Bar in 1992”. It also notes that she wrote “The Mumsnet Rules”.
  8. A number of other legal professionals are called out by name as well. One is snidely described as having previous judging experience limited to “choosing the winners of the Southport Writers’ Circle International Poetry Competition 2009”. Others appear to be unsuitable, in the Times’s view, because they were (like Natasha) authors, or because they were solicitors whose work was closely involved with trade unions.

Good lord. Where to start? Taking them in order:

  1. “Inexperienced” is an idiotic word to use here. Employment judges often, but not always, work as “fee-paid” (ie part-time) judges for a while before they go full-time. But fee-paid judges do the same work, in the same way. So everyone starts somewhere. There’s no difference in practice between a fee-paid judge and a salaried judge on day one, and no requirement to do the one before the other. So the point is to look at whether they can do the job. And taking Natasha as an example: she’s been doing employment law for 28 years (and was in fact appointed in 2019). She knows her stuff. To call this a “hearings free-for-all” is a cute phrase, but utterly misleading. Not to mention stale beyond belief.
  2. The costs-free environment is deliberate, and fairer than the alternative. If you’re suing your employer for a few hundred or a few thousand pounds, and you knew that if you couldn’t prove your case you faced costs of ten times that, you’d give up. Similarly, if you’re an employer, at least you can reasonably predict what it’s going to cost you to fight. You can insure against it, without the worry of the other side’s costs on top. And having just lost two cases for claimants in the past month (ouch), I think I can say that tribunals don’t routinely favour one side or the other.
  3. The “surge in demand” since UNISON in 2017 is real. What the Times fails to make clear is that between 2013 and 2017, during the period when taking (say) a discrimination case all the way to a final hearing cost claimants £1,200 in fees, the number of cases fell by around 70%. That’s mostly not people jacking in nuisance cases. That’s real people, with real grievances, being denied justice because they couldn’t afford it. The sharp fall allowed the Government to ditch large numbers of employment judges. The backlog is because there aren’t now enough to cope with what is, in practice, largely a reversion to the mean. In other words: the mismatch between judges and cases is an artefact of political decisions, coupled with the effect of Covid. Not a surge in people bringing pointless cases.
  4. Yes, there are lots of litigants in person, because there’s no legal aid. Legal aid helps weed out useless cases. No-one would deny that useless cases get brought. But often they get thrown out. Rule 37 of the Employment Tribunal Rules of Procedure allows a strike out (at the request of a party or at the Tribunal’s own motion). And any employment lawyer with tribunal experience will tell you that it does happen. Often. 
  5. The tribunal system can’t just change its rules. They’re statutory. So if they’re to change, the Government will have to do it for them. And a wholesale reinterpretation of those rules – say, to strike out more cases – would be the subject of appeals (and probably successful ones). Judges don’t decide to change interpretation on a whim, and no sane person would want them to. 
  6. As for the suggestion about “inexperience”: see 1, above. The blind quote could be anyone, from an usher to someone in the MoJ selling a line or flying a kite. (In other words: pushing out a quote to see how it’s received. If it goes down well, the minister can double down on it later. If it doesn’t, you can walk away from it unscathed.) And given that this situation arises largely from political decisions made in the past 10 years, of course it’s a blind quote. It’s notable that Dominic Kennedy, the investigations editor whose byline the news piece carries, hasn’t done anything to interrogate these issues. 
  7. Now for the hit job on Natasha. As noted above, she’s been in this game for 28 years. She’s represented both sides, as almost any experienced employment barrister will have done, so the suggestion she “might appear more embedded on one side” is wrong. She’s as qualified as any newly-minted employment judge, whether fee-paid or salaried. A quick web search would have brought up her professional CV. But why bother, when as a salaried judge, Natasha can’t answer back? The fact that she wrote a book based on MumsNet postings is neither here nor there, unless it’s intended to give the impression of someone unserious. The whiff of sexism is inescapable.
  8. Much the same applies to others named. The fact that two of 59 “newly-appointed” judges have strong trade union connections is irrelevant; Dominic doesn’t seem to have scanned the list for close industry connections which, according to his approach, would suggest bias in favour of employers. I’m sure they’re there too. And as someone who appears before ETs on a regular basis, I don’t care. If a judge reaches a biased decision, we’ll appeal them; and the Employment Appeal Tribunal will eat them for lunch. But it’s really, really rare.

I wrote a lot of investigative pieces during my time as a reporter. This is how it usually works:

  • You get a whiff of a story. Sometimes from a source, sometimes from open documents, sometimes from events.
  • You pitch to your editor what you think the story’s going to end up being. Hopefully, they tell you to get on with it.
  • You do research. You talk to lots of people. You get very frustrated with a few blind alleys. You test your hypothesis.
  • Sometimes it checks out as you’d expected. Often, it changes in the process and you end up with a rather different story. 
  • You go back to your editor and explain where you are. Hopefully, they say: OK, changed story is still interesting. Go ahead and write it up. Sometimes they say: I don’t like the changed story. Spike it and do something else. Or sometimes – worst of all – they say: no, I wanted the original story. Write that one.
  • If that happens, you’ve got a choice. Either you push back; or you find ways of adapting your research to fit the original pitch.

This piece smells of pushing a line. It would be so easy to include the context about UNISON and tribunal fees, the truth about how judges are appointed, the reality that a barrister with three decades of ET experience is absolutely standard material for a role as an employment judge. 

My suspicion? That material might well have been in the early drafts. A decent reporter would have included them. But they made the story more nuanced, less impactful. So they probably got taken out in the editing process. So as to make for – as one former editor of mine used to put it – “a better top line”.

This hack job isn’t victimless. It smears the reputations of professionals who can’t talk back. It paints an inaccurate picture of a system which – and this is the bit the Times gets right – is genuinely in trouble. There aren’t enough judges. There isn’t enough tribunal space. Tribunal systems are archaic – one of the reasons so many cases got postponed for so long (from April to September very few final hearings took place; that’s a half-year lost) was that they’re still very paper-based, and the electronic systems wouldn’t support remote working for a long time. And that’s the result of the huge cuts which tribunal fees allowed governments to make, and the fact that they’ve never yet been properly reversed. 

The result, even before Covid, was frequent delays. Between September 2019 and March 2020 I had three multi-day cases pushed back as much as a year because judges weren’t available – sometimes on the day. That doesn’t just hurt claimants. It hurts employers too. You’ve had to take critical staff off the front line to sit around in a tribunal waiting room, and then they all have to go home? And you have to do it all over again? That doesn’t do either side any good. 

You can infer this from Dominic’s piece. Sort of. But it wouldn’t produce the “know-nothing judges in hearing free-for-all” headline the Times seemed to want. A better top line, wasn’t it?


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