2021v3, Monday: Miscellany.

It’s a bank holiday. I have to work. So I’m afraid a linkfest will have to do. With a quick shout about sleaze at the end.

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Someones are right on the internet: It’s the early May bank holiday, and I’ve got a hearing tomorrow at 10 for which the papers only arrived late last week. Life at the Bar… so I fear this will have to be a brief canter through some stuff worth (I think) reading:

  • First up, a rather nice discussion of why an absence of good faith doesn’t equal bad faith, relating to a 2019 case, by someone I’m up against in an ET case soon. Scouting out your upcoming opponents is always a good idea. Not least because, as here, you can always learn something.
  • Next, an absolutely stellar piece of writing from one of the UK’s foremost experts on constitutional law, Professor Mark Elliott. He reviews the Government’s apparent intention to legislate on judicial review (going far beyond what its own review advised), and identifies the view of the constitution which seems to underpin it. Which is, to say the least, a rather heterodox and – to these untutored eyes – deeply untrustworthy one.
  • And finally, the wonderful Separated by a Common Language (a site which looks at different usages in English, particularly but not exclusively across the Atlantic), examines the word sleaze. As I may have mentioned before, I hate the word as it’s used here in the UK. Far too often it’s a synonym for corruption, and thus a way of avoiding having to face up to just how bent parts (not all, thank goodness, but critical parts) of our polity actually are.

Short thought: I wasn’t going to editorialise beyond the links, but I have to mention something here. Out walking back from the pub (an actual pub! Wow) with a mate, he commented on how much of a time-waste it felt like the whole “Boris’s flat” thing felt like, given everything else around. I can empathise with his view. But the point of the “flat thing”, and indeed all the rest of the miasma of misconduct, arrogance and downright crookedness that envelops Johnson is not that it’s a one-off, but that it’s symptomatic. Symptomatic of incompetence. Of greed. Of a rules-don’t-apply-to-me mentality which disdains accountability, in favour of a kind of 21st century droit de seigneur. Of an almost feudal sense of right, without any of the balancing obligations which underpinned, at least in theory, every feudal system which has ever survived more than a handful of years, and belies Johnson’s claim to be any kind of real historian.

And why is that important? Because all of the critical stuff that my friend, justifiably, wants to hear about – and still more wants those in charge to get on with, and get right – needs competence, and transparency, and accountability, if it’s to be done at all well. More than ever, in the wake of the past hateful year, we need people for whom the public interest means something beyond “what makes me win the next election” or “what owns the libs”.

That’s why the flat thing matters. That’s why the Arcuri affair matters. That’s why the refusal to take misconduct (Patel) or incompetence (Williamson) seriously matters. That’s why the “VIP lane” for Covid kit matters. That’s why the utterly unserious approach to what would be called “corruption” if it happened in a country at the bottom of the Transparency International CPI index matters.

Because they all point to an administration to whom you, and I, and anyone else outside the charmed circle of mates and muckers, don’t matter – except on voting day. And even then, not often.

That’s not how to solve our huge problems. It’s how to make them worse.

(By the way: it’ll come as no surprise to anyone reading this that I’m not exactly a fan of the current government. Right now, though, I don’t care about Labour vs Conservative. Even though I’m something of a leftie, I’d take a competent, relatively honest Conservative government over an incompetent, dishonest Labour one, because we’ve got work to do. But our current administration is neither competent nor honest. And shows no signs of ever being either.)


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2021v1, Saturday: What’s measured matters.

When measures become targets, they’re useless as measures. But when something isn’t measured at all, it’s invisible…

Short thought: a rare day off yesterday with spouse. So nothing written. Catching up today, I spotted one of the terrifying number of tabs I currently have open and awaiting attention, which dealt with Goodhart’s law. And that took my mind to fraud.

Yes, I know: for me, that’s a fairly short leap from practically anywhere. But bear with me for a moment. Goodhart’s Law, named after economist Charles Goodhart, holds that “Any observed statistical regularity will tend to collapse once pressure is placed upon it for control purposes.” Or, more simply and pithily: measures become useless as measures once you start using them as targets.

Why is this? Because measures are diagnostic: things that help you understand a situation. They’re therefore only any use as long as they’re objective. And as soon as people start being graded according to that measure, it will be gamed. Think hospital waiting lists, or A&E waiting times, or paying teachers (or funding schools) by kids’ school grades. Or stack ranking in workplaces.

Which means I have mixed feelings about this story in the Times (£, sorry). It talks of six metrics by which police forces will be ranked. None of them, predictably, explicitly deals with fraud – the single largest crime problem the UK faces, yet the one with probably the least amount of focused resource and attention.

This brings back memories. In 2007-8 I spent a short amount of time working with people at what was then the (short-lived) National Fraud Strategic Authority. One thing that passed across the NFSA’s desk was a proposed set of police performance indicates. There were 147 of them, I recall – and not a single one dealt with fraud. Most were obviously chosen because they were things that were easy to count, rather than things that would genuinely make a difference in the effectiveness of policing.

So on the one hand, having just six – and high-level at that (homicide, serious violence, drug supply, neighbourhood violence, cybercrime and “victim satisfaction”) – is a step up. As is a Home Office source’s comment that “I wouldn’t classify them as targets.”

So not a Goodhart problem, then?

Hardly. Because the next sentence is: “It’s about tracking progress — we’re giving forces extra officers and now we want to see outcomes.”

So it’s directly a Goodhart problem. As has been the case before, forces will game their resource spend to make sure the Home Office is happy.

And fraud, as ever, will be forgotten. As will its millions of victims. Because, to be cynical, their problems cost too much to fix.

(Yes, yes. “Cybercrime” could be interpreted to include a lot of fraud. But it’s not the same thing. And how is “dealing with cybercrime” to be measured? I have no idea, and I’m pretty sure the Home Office doesn’t either.)


Someone is right on the internet: This is the third piece in a row in which I’ve mentioned the Horizon scandal. I won’t apologise. This is disgraceful, and it deserves a lot of noise.

So today I’ll simply point to someone who, if we had Pulitzers in this country, would deserve one for his coverage of this: Nick Wallis. This piece by him in Private Eye describes the scandal in great detail. Read every word. And then get very angry. And then decide how the issues that arise herein might arise elsewhere – and start thinking about who should be held to account for not making this a priority.

One quick sideline: I should have mentioned when writing about Horizon that the Post Office – shortly before Mr Justice Fraser tore Horizon to shreds – agreed to a £58m settlement of many postmasters’ claims. You can make your own mind up as to whether sociopathy on this level can be satisfied by that, or whether individuals should also be held to account.


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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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2021iv26, Monday: An affront to justice.

Firstly – sorry for being off-schedule. Exhaustion, I’m afraid. Back to work, with a few words about the wholly shameful tale of the Horizon prosecutions.

Preface: I apologise. Last week was insane, to the point where I fell asleep before 9 on Friday night and (unusually for me) slept for more than 8 hours without interruption. The combination of general exhaustion and a hearing on Thursday for which the papers arrived very late, together with a family need to drive into central London and back on Wednesday (which meant losing about 6 hours of the working day) means I’ve wholly failed to keep up the schedule.

With readers’ permission, I’m going to forgive myself the lapse, and simply try to get back on schedule.

With that in mind…


Short thought: There are probably more egregious examples of shameless people doing shameful things than the one highlighted in the acquittal on appeal of 39 sub-postmasters in the Horizon affair. But offhand, it’s very hard to think of any.

The tale is told, with clarity, in the Court of Appeal’s judgment. For those few who don’t know:

  • A Post Office accounting system, called Horizon, found significant errors and omissions in the accounting of a number of post offices.
  • The Post Office said, and continued to say, that Horizon’s numbers were unquestionably accurate, and that the only explanation was fraud by the sub-postmasters running the post offices in question.
  • It prosecuted dozens of them. For many, the Horizon data was the primary basis for the prosecution. Many were found guilty. Others pled guilty because they weren’t given access to underlying data and – in effect – had to prove their own innocence without the tools to do so.
  • But – as it later transpired – Horizon was fatally flawed. Its data was unreliable, as an earlier civil court case demonstrated in a superb judgment from Fraser J, one of a series of such exemplary pieces of jurisprudence.
  • And the Post Office knew it, but despite advice from a barrister who does credit to my profession (see paras 81-90 of the Court of Appeal judgment), refused to disclose it so as to avoid embarrassment.

A number of sub-postmasters appealed their convictions. And now, for all but three of them where there was other evidence, their convictions have been quashed.

I’m not sure “quashed” is a strong enough word. The judicial distaste, bordering on real anger, for the way the Post Office conducted the matter (as a private prosecutor) rings out throughout the 447 paragraphs of the Court of Appeal’s judgment.

Honestly, I can’t do justice to it. It’s a long read. But this is one of the great scandals of English criminal law: the conviction of dozens of people whom the Court of Appeal says were subject to prosecutions which amounted to “an affront to justice”.

These are not idle words. What the Court is saying is that in effect the system of criminal justice was abused by the Post Office, in its deliberate failure properly to investigate, and then to disclose matters which it had been clearly warned it had a legal duty to share with those it was prosecuting.

The depth of dissatisfaction is clear at paragraph 133:

POL’s [Post Office Ltd] failings of disclosure and investigation… ‘directly implicate the courts’. If the full picture had been disclosed, as it should have been, none of these prosecutions would have taken the course it did before the Crown Court. No judge would have been placed in the unhappy position of learning – as some judges (or retired judges) will do if they read this judgment – that they unwittingly sentenced a person who had been prevented by the prosecutor from having a fair trial.

To be clear: the Court of Appeal isn’t just feeling sorry for its sibling judges. Far from it. From the previous paragraph:

It is important here to state that many of these appellants went to prison; those that did not suffered other penalties imposed by the courts; all would have experienced the anxiety associated with what they went through; all suffered financial losses, in some cases resulting in bankruptcy; some suffered breakdowns in family relationships; some were unable to find or retain work as a result of their convictions – causing further financial and emotional burdens; some suffered breakdowns in health; all suffered the shame and humiliation of being reduced from a respected local figure to a convicted criminal; and three – all “Horizon cases” – have gone to their graves carrying that burden. Inevitably, the families of the SPMs have also suffered. In each of the “Horizon cases” it is now rightly conceded that those human costs and consequences were suffered after the denial by POL of a fair trial.

POL’s conduct was beyond shameful. It betrayed the trust of trusted, loyal employees. It condemned them to ignominy and poverty on false information, covering its own back along the way.

POL and those responsible for making the relevant decisions showed absolute contempt for the court. I can’t help wondering whether the court might, in turn, wish to take more formal notice of this. There’d be some justice in it, for sure.


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2021iv19, Monday: Privacy and the Supremes.

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

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

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

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

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

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


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

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

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

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

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

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

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

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

Warmly recommended.

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

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

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

Read the whole thing.


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2021iv16, Friday: The king of the Ponzi?

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

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

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

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

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


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

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

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

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


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

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

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

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

Meanwhile:

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

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

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

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


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2021iv14, Wednesday: Equality, of a sort.

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

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

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

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

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

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

Which translates roughly as:

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

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

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

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

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

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

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

But it is necessary.

As David puts it:

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

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

Quite.


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

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

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

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


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2021iv12, Monday: Covid theatre.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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


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

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

But John put it better than me:

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

Spot on.


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2021iv7, Wednesday: Gaslighting by government.

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

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

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

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

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

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

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

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

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

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

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

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


Short thoughtThis made me mad.

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

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

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

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

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

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

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

For shame, WaPo. For shame.


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