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.

(Don’t forget – if visiting a site doesn’t float your boat, you can get this stuff in your inbox. Subscribe at https://remoteaccessbar.substack.com/.)

2020xii29, Tuesday: Day One.

Short thought: I can’t say much about Dame Elizabeth Gloster’s report on the FCA’s handling of London Capital & Finance. The FCA is a client. But suffice it to say that the grey area that is currently the perimeter – the boundary between what’s regulated financial services activity and what isn’t – is going to be a point of serious contention for the foreseeable future. Even the FCA acknowledges (perhaps implicitly, but still) that it isn’t always clear what falls on either side of the line; it now publishes an annual perimeter report setting out the current state of play. If I wanted to be optimistic, I’d say that one of the very few dividends of Brexit might be to grasp the nettle and define it more clearly, or at least make a better stab at dealing with those who deliberately blur the distinction. But my optimism only goes so far.

I really need to get round to readingBeing Mortal, by Atul Gawande. Given it several years ago, after my dad died. Haven’t yet been able to read it. (I’m not sure if that’s causative or not.) Gawande is just marvellous; I really owe it to myself to get on with this. And it’s a sign of some basic competence in the incoming Biden administration that he’s been co-opted into the US’s coronavirus taskforce.

Someone is right on the internet (with apologies to the stone-cold classic XKCD): Ars Technica with the history of the ARM architecture whose use by Apple is now overturning several decades of microprocessor orthodoxy. (I’m using an M1-powered MacBook Pro. It’s revelatory. Honestly.) Recall that this is arguably the most influential and game-changing UK tech company of the past several decades. So when you hear UK government spokespeople bloviating about national champions, or tech mastery, just recall that ARM was bought by Softbank in 2016, and Softbank agreed to sell it to Nvidia earlier this year.

Things I wrote: The Brexit deal is (nearly) done. What’s it mean for legal services, and data protection? Mostly a case of Watch This Space.

(Don’t forget – if visiting a site doesn’t float your boat, you can get this stuff in your inbox. Subscribe at https://remoteaccessbar.substack.com.)

A deal. At long last.

Any deal was always going to be better than no deal. And there’ll be lots of tall tales (put generously) told about its glories. But so much of this is placeholder…

I clearly haven’t been reading carefully enough, or broadly enough, because I haven’t seen anyone crowing about how wise it was to go down to the wire.

I’m sure it’s out there somewhere. But the fact is, there’s finally a deal. (That’s the UK page. The EU one is here.)

It’s 1240-odd pages plus a couple of extra documents. Better people than me have scanned it already, in far more detail than I want to when I’m still on holiday. (Yesterday was spent in bed, lounging with wife and daughter, on a binge rewatch of the final season of the West Wing. Amazing. I really need to do that more often.)

But a couple of things stand out.

For the areas I’m most interested in professionally – legal services and data protection – a lot remains to be worked out.

Data protection, thank goodness, has a pin stuck in it till 1 May (or 1 July, unless either side objects); we don’t become a third country till then, or until an adequacy decision is made, or unless the UK does something unilaterally stupid. (This is p406 of the Draft Agreement, if you want to check.)

So no need for binding corporate rules or standard contractual clauses. For the moment. Although lots of people will have spent mounds of money and time trying to put them into place. And the implications of Schrems II for law enforcement/intelligence mass collection still make adequacy far from a done deal.

So what about us lawyers? Not such good news. All my friends at the Bar who were getting Irish qualifications are looking sensible. Predictably, perhaps, the UK spin on the section on lawyers is fairly cakeist. As Joshua Rozenberg notes, there’s careful wording suggesting – but not explicitly saying – that all is reasonably well for UK lawyers who advise clients in the EU.

It’s not, unless your advice is limited to UK law: as Nicole Sykes points out, each country has its own rules. And most bar third-country (that’s us) lawyers from advising on their own or EU law unless they’re either EEA (or Swiss) nationals, residents, or often both.

And as for the question of mutual recognition of qualifications: well, that too is kicked into the long grass; the “we’ll get to it, honest” pile.

Sigh. It really is a sign of the fundamental unseriousness of our leaders in this negotiation that they’ve always prioritised form over substance, headlines and politics over policy. I know my experience is in the more loathed parts of the services sector (finance and the law; add in estate agency and I’d have the unholy trinity), but the UK makes a lot of money, earns a lot of tax, and brings in a lot of jobs from overseas services sales. And data protection is an area where going it alone kills jobs, privacy and human rights. Was it really too much to ask that they’d be a priority?

Question asked. Question answered. I guess we have to trust to cooler heads, and more sensible negotiation, in the months and years to come. Feeling good about that?