2021i11, Monday: reluctance or refusal?

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

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

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

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

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

And there’s barely any of them left.

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

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The difference between reluctance and refusal.

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

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

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

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

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

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

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

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

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

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

2021i8, Friday: cat day.

Sorry. Have to prep for next week’s trial. Cat pic ok with everyone?

Short thought: I’m a bit short on thoughts today. I’m digging my way back into a vast bundle for a 10-day hearing starting on Wednesday (adjourned from last March, a week or two before lockdown hit). And I was meant to be taking the cat to the vet today to get neutered, but it’s been cancelled owing to an emergency op for someone else’s pet. So that’s a couple more weeks of guilt for us about what we’re having done to her…

The more so because – as this picture demonstrates – she seems to have the power to create wormholes on demand. Smart kitty.

(Her name’s Iroh, btw.)

I’ll be back next week, although I think this is going to drop to 2-3 a week while the trial’s on. Blessings, all.

Someone is right on the internet: More online comfort food today. God knows if anyone’s ever checked, but I have a feeling that lawyers – and perhaps especially barristers – have quite a close relationship with stationery, and particularly writing implements. Even those of us, like me, who’ve drunk the paperless Kool-Aid.

So this curated rundown of the 100 best pens (via Helen Lewis, bless her and her excellent newsletter for ever) is both a horrific time-suck and a wonderful treat. As well as a source of arguments and outrage if they’ve left your favourite off the list, or demoted it below some ghastly ballpoint.

Me? I’m happy, because my lovely Kaweco fountain pen (described as “the Volkswagen of pens, with a Jaguar engine”) is in at number 5. As is the Uni-ball Vision at 61, the more so because the “peculiar shade of green” they mention is a go-to staple for me.

Shameless plug: I feel a bit guilty about having an Amazon affiliate link for the Kaweco (I should admit it: any amazon stuff I post here has an affiliate link which might give me a penny or two if you click and buy, although that gets stripped out if you receive this by email). So as well, let me shamelessly plug my favourite stationery shops: in no particular order Choosing Keeping, who sold me my first Kaweco; The Journal Shop, whose notebook selection is to die for; and Present & Correct, whose curation of stationery oddballs is second to none and a source sans pareil of gifts for stationery lovers. All brilliant, all with fabulous stuff. Keep ‘em running through lockdown, people. Well worth it.

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2021i7, Thursday: How to read.

Yes, I know. A staggeringly arrogant title. But we lawyers have to get through huge piles of stuff. And finding ways to curate the pile is a genuine bonus.

Shortish thought: I haven’t got time to write a long thing I was planning on curation of online content. Not with one multi-day hearing finishing today and another starting next Wednesday. But I can take a moment to preview it with one critical tool for reading stuff: RSS.

(For the uninitiated: many websites, particularly news and blogs, publish what are called RSS feeds – which a dedicated app or site can use to drag down headlines and either whole pieces or summaries for you to read at your leisure. My blog’s is at https://remoteaccessbar.com/feed/.)

I know, I know: with Twitter, Facebook, and the rest, who needs RSS?

Any sensible lawyer, that’s who. I’ve been curating feeds for about 15 years now. Originally, like almost everyone else, I used Google’s Reader site to do so. Then Google shut down Reader in 2013 and a world of alternatives blossomed. I use Feedbin as the back-end to manage and grab the feeds; it costs me a few bucks a month. And Reeder as my app of choice for Mac and iOS for actually reading them. Costs me about a tenner every couple of years; I have no problem paying for major updates for something I use a dozen times a day. (There are loads of alternatives – both backend and reading/processing. Honestly, we’re spoiled for choice. Just stick “RSS reader” into your search engine of choice.)

Why is it good? And why is it good for lawyers? Well, think of all the chambers, law firms, legal academics and bloggers whose stuff you see linked to on Twitter etc, or get emails from, or glance at from time to time. Now think of how much you probably miss as the firehose of the Twitter feeds and unread emails shoots by. Now imagine if you could get all that stuff in one big list. Then (and this is the really game-changing part) use your cursor keys to shoot down that list, scanning headlines and summaries before starring anything you want to read later and dumping the rest. Once you get into the habit, you can keep-or-dump a couple of hundred entries in a minute or two. And then read them. Often offline. Whenever you’ve time. On any device.

Now tell me that doesn’t sound fantastic.

Still need convincing? Check this. Yup: that’s feeds for BAILII. Thank me later. Those, as they say, are my submissions.

Someone is right on the internet: It’s been a weird 24 hours, hasn’t it? What with the quasi-putsch attempt in DC (David Frum suggested that word – a good one, better than coup) and all, maybe everyone needs a boost. Here you go: a work of breathtaking, glorious artistry. It made my day.

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2021i6, Wednesday: CVP doesn’t like Macs.

Or maybe it just doesn’t like me; but there’s a solution. And Octavia Butler is glorious.

Short thought: I’m in the middle of a multi-day hearing, which moved to a remote setting (using CVP, the browser-based vidconf platform whose pending introduction was massively accelerated last year to deal with the pandemic). I’m not sorry about that; four days in an ET hearing room in Croydon amid Tier 4 didn’t exactly delight. (Bury St Edmunds ET did the right thing on Monday, moving my 10-day hearing starting on the 13th to CVP. Not all courts and tribunals are behaving so sensibly, but kudos to these two – and the Lord Chief Justice has now made it pretty clear that remote or hybrid is the default, unless justice can’t be done that way.)

While I’d infinitely prefer to do it over Zoom or even Teams, the CVP rollout is nonetheless one of HMCTS’s success stories.

However – and perhaps oddly since a large number of barristers use Macs (at least, the ones I know) – I’ve been unpleasantly surprised at how poorly CVP plays with them. My first few CVP hearings, Chrome – the recommended browser – refused to recognise any camera or microphone, built-in or otherwise. Firefox worked, but wouldn’t access my external webcam and mic; only the built-in ones. You can access CVP through Teams or Skype, but some of the functions are restricted. (And on older Macs, such as my previous machine, a 2018 MacBook Air, Teams sends the fan screaming; although the new and lovely M1 MacBook Pro is just fine.)

I’ve finally (I think) found a solution to the Mac/Chrome/CVP misery. It’s an annoying workaround, but at least it seems to do the trick, which is to:

  • Quit Chrome
  • Go into System Preferences/Security & Privacy/Privacy
  • Untick Chrome in the list of permissions for both Camera and Microphone. (If it’s not in both lists, add it to each with the little “+” button. THEN untick them.
  • Then retick them again…
  • And restart Chrome.

Your mileage may vary. I seem to have to do this every time I leave the “room”, which is a pain. But at least it works.

Someone is right on the internet/something I really need to read: For someone who firmly recognises that great literature is great literature irrespective of its genre, I am sinfully under-read when it comes to Octavia Butler. The wonderful Brain Pickings newsletter drove this home to me in its Christmas issues, by linking to this insightful, impactful selection from the verses which head the chapters in Butler’s Earthseed books.

One rather painfully on-the-nose example:

Choose your leaders with wisdom and forethought.

To be led by a coward is to be controlled by all that the coward fears.

To be led by a fool is to be led by the opportunists who control the fool.

To be led by a thief is to offer up your most precious treasures to be stolen.

To be led by a liar is to ask to be told lies.

To be led by a tyrant is to sell yourself and those you love into slavery.

Parable of the Sower and Parable of the Talents are now on my Kindle. Next up, I think. And Brain Pickings is brilliant. Well worth a look.

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2020i5, Tuesday: Lifting the shell.

Again, it’s a busy week. So two quick hits: a potential AML game-changer, and catnip for Apple geeks.

Short thought: Those who are calling it “groundbreaking” aren’t wrong. One of the more frustrating loopholes (and when I say “loophole” I mean “something the radius of the Channel Tunnel”) in the global anti-money laundering and counter-fraud architecture has long been the ease with which anyone can set up anonymous shell companies in the US.

Congress’s override of Trump’s veto on the US defence bill in the waning days of last year – he’d blocked it ostensibly because it didn’t have anything tacked on to deal with Section 230, the bit of US statute which gives social media services some immunity for website publishers from liability for third party content – also allowed through the Corporate Transparency Act. This, agreed after years of campaigning, makes it mandatory for anyone registering a new company anywhere in the US to disclose the name, address and date of birth of its beneficial (i.e. human) owners, as well as an ID number such as driver’s licence or passport; and for existing companies to produce this info within two years.

No time for in-depth analysis, and obviously the proof is in the pudding – and (thinking of the widespread and largely unpunished abuse of Companies House requirements in the UK) in the enforcement. But campaigners and writers aren’t wrong to call this “the most sweeping counter-kleptocracy reforms in decades” aren’t wrong. Big news.

Someone is right on the internet: For long-term Macheads like me (I’ve owned precisely two Windows devices – a Surface which I resold and a cheap Windows Phone just so I’d know what it was like – and two Androids, a Nexus 4 and a bargain Nokia I’ve since given to a relative, against several dozen Apple devices between me and the missus), Jason Snell’s series on 20 seminal Macs has been a joy. As he’s explained, it’s not necessarily the best machines, but the most notable. And the utterly deserved winner is the iMac G3, the machine that set Apple on the road from mess to megacorp. The whole series is pure comfort food for Apple nerds. Perfect for a New Year’s Day kickback and relax.

(I never owned an iMac G3, although I had one on loan from a client for a while. My personal fave on the list was also the first Mac I ever bought, the PowerBook Duo. I still have one in the house. Time, perhaps, to see if it still boots. Although if it doesn’t, as we found was the case with the – jawdroppingly-beautiful, even 20 years on – family Pismo the other day, it’ll hurt…)

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2021i4, Monday: Does “any” really mean “any”?

These notes may be brief this week. I’m in a hearing Monday to Thursday, and daughter’s (initially remote) school is restarting tomorrow. So I’ll focus on SIROTI, with other things when I can.

Short thought: I’m pondering (for a client) what the word “enactment” means in a UK statute. On the face of it, it’s straightforward: it means something enacted as written statute, whether in primary or secondary legislation. But does “enactment” (the reference here is s43L(2) of the Employment Rights Act 1996, saying that a “reward payable by or under any enactment” doesn’t count as “personal gain” for the purposes of working out whether whistleblowing is protected or not), mean solely domestic legislation? Or would – say – a whistleblowing payout by a foreign regulator under its domestic statutes be covered? I incline towards thinking it does, primarily because I can’t think of a reason why “any” shouldn’t mean just that. But I’m happy to be contradicted.

Someone is right on the internet: I first got interested in Japan in my early teens. (It was samurai and ninja that did it, of course. I was 13, after all.) But the delight in the country blossomed like a tree in cherry season, and my first degree was in Japanese. (I’d also done a school history project on the rise and near-extinction of Christianity in Japan in the 16th and 17th centuries. And this in the pre-Internet times. I can’t recall how I found the sources.)

For various stupid reasons I haven’t been back there for 20 years, so reading Craig Mod’s dispatches, often tracing his walks through Japan, is a vicarious delight.

Like anyone else worth reading online, he takes me to sites (as well as sights) I might not otherwise have found. Like this entrancing, magical and scholarly (in the best sense) New York Times piece on Hokusai. Seriously: no description by me can do it justice. Go and revel in it.

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2021i1, Friday: Start over.

A new year. Time to do better.

Short thought: Nothing much today. 2020, by common agreement, sucked. If we work together, and listen humbly to one another, we can make this year better. Let’s.

Someone is right on the internet: Hui Chen, former compliance counsel to the Department of Justice and now Chief Integrity Adviser to the Attorney-General of Hawaii, is an ex-boss and an old friend. She has a post talking about this past year. In which she lost her father – not to the Bug, but to an aneurysm. She writes wisely about what’s gone wrong, and where, even in the dark times, light can be found.

Hui became my boss in July 2014, as she became Standard Chartered Bank’s first ever global head of anti-bribery and corruption. I became her deputy. We hit it off in days. Less than three months later, I lost my dad. And she went from being a good boss to an amazing one. Her kindness and goodness to me – and my family – as we dealt with this were unparalleled, and her encouragement thereafter was a huge part of how I found the guts to take a risk and become a barrister. I can only hope, and pray, that she and her family have been surrounded by equal kindness and goodness as they’ve dealt with their loss.

Things I wrote: A new year is a chance to look back. So I thought it might be amusing to travel in time almost two decades to my reporting days at the BBC, and a piece I found in the archive describing my first experience with ADSL as opposed to dial-up, hooked up so far as I recall to my TiBook. Not sure it’s aged terribly well as a piece of writing, but oddly it brings back fond memories of the Series1 Tivo box I owned around the same time. Those were the days.

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2020xii31, Thursday: Some things don’t add up.

Counting things is important. But not everything that matters can be counted…

Short thought: Back to the Brexit deal, and what is – I admit – probably a wholly specious comparison.

I’ve been puzzled for months, if not years, by the narrow focus among Brexiteers on zeroing out tariffs, and the complete lack of attention to the far greater, and far harder, problem of non-tariff barriers. It’s as though we were marooned in mercantilist times, decades or even centuries ago. I’m no expert on international trade or the law underpinning it, but even I recognise that tariffs are, frankly, the easy bit (indeed, the bit that was solved with the customs union we entered when we joined the EEC, and the common market, 47 years ago). It could be simply that any non-tariff agreement involves giving up some mythical sovereignty (defined, it seems, by the standards of an unusually grabby two-year-old or an elderly orange-faced narcissist: “No-one gets to tell me what to do, and I don’t have to bear the consequences of my decisions”). It could be that many of them, including sadly our leaders, simply don’t understand – although I doubt that. I don’t know – although I know we’ll all be paying for it.

Now for the specious comparison. Tariffs are easy to count and thus to shout about; non-tariff barriers are by their very nature more nebulous and qualitative. Similarly, in competition, we’ve been dealing for years with the fall-out from the narrow US anti-trust focus on consumer prices (measurable) while ignoring the less measurable questions of monopsony-driven market dominance. I’m not saying there’s a connection, of course. Nor am I saying there’s anything genuinely comparable. But I do find it interesting that in both cases looking at stuff that’s easy to count, to the exclusion of other stuff that in the long run probably matters more, has led to significantly harmful outcomes.

Anyone reading this who’s had experience of KPIs or KRIs (whether in terms of personal or institutional performance) can probably think of examples where “if it can’t be measured, it doesn’t matter”, applied thoughtlessly or reductively, has gone horribly, horribly wrong. I know I can. Let me know your thoughts.

Someone is right in the internet: Well. Two someones. First Bruce Schneier, who combines smarts and thoughtfulness like few others on security matters, with the best take on the Solar Winds fiasco that I’ve seen, noting that this should – but tragically won’t – put the final nail in the foolish argument for software backdoors. Second an old friend, Sean Maher, who’s looking at it in the context of government capacity and the decades-long ideological assault on it in the US/UK. Sean’s focus is on the investment implications – but his points are of much broader relevance.

Things I wrote: A while ago, I wobbled. In fact, like so many others in this hellswamp of a year, for a few hours or a day I broke. So many people I know and respect, and several hearts of gold that I didn’t, chipped in with support or shared burdens. So I wrote a follow-up.

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Unbroken. At least for the moment.

I cannot, possibly, thank you enough.

Everyone who wrote to me, commented, or otherwise made contact following that thing I wrote a while ago. You are blessings, every single one.

Some said it helped them think about what they did, and how. Some, bravely, shared their own travails. Some simply offered a hand. A shoulder. A (digital) nod. Every little bit was wonderful, and generous, and human.

(Particular thanks to Max, who reminded me of a truism that we all should be saying to ourselves and those we care about, on a far more regular basis: that it’s ok not to be ok. It really is.)

It’s even possible I may have helped a person or two myself. If I have, then Lord knows every word was worth it.

And I’m OK. Even amid Tier 4 (let’s call it what it is – a renewed lockdown – even if our government remains too cowardly to do so) – late, again; inefficient, again; incompetent, again: why don’t they learn? – I feel surprisingly together. I’m sleeping more. I’m reading more. I’m running more. (Including, sometimes, in the rain and before sunup. The calm of being out running as dawn starts to break – wow.) I’m walking more. I’m playing the piano more. I’m spending more time with my wife and daughter.

More simply, I’m trying to make time just to breathe, and to see the small things that make life worth living. A cobweb with dewdrops. A bright green caterpillar on the front step. A huge full moon with an aurora of cloud around it. A street I’ve never walked down before. The always-renewed pattern of light on the estuary waves.

And we’ve got a cat. Ostensibly it’s for daughter. Honestly? It’s as much for me. The idea of reading papers while enveloped in an industrial-strength purr was enticing beyond belief, and has proved to be even better. I’m sure more experienced cat-owning barristers will attest to the benefits of that.

So things are better. There’s a vaccine. Early signs are good. Trump is on the way out, even if his party has descended into something genuinely alarming, full of believers in what amounts to a one-party theocracy. (As a person of faith, theocracies terrify me. Because people who are certain they’re right, and who have power, are even scarier if they’re convinced God agrees with them.) There’s a Brexit deal; it’s rubbish, and has gaping holes that’ll take years or decades to fill, and we’ll suffer for it. But not as badly as we would on a no-deal finish.

So I’m grateful. Because perhaps, having recognised and accepted my weakness, and having had people I respect say good and kind and thoughtful things about it, I can be stronger. As, God willing, can we all.