Tag: coronavirus

2021iv19, Monday: Privacy and the Supremes.

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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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2021iv14, Wednesday: Equality, of a sort.

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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.

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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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2021iii24, Wednesday: Does it add up?

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The slipperiness of statistics, and why us advocates need to learn to love numbers. Plus: wise words from the US on design.

Short thought: I have a problem with numbers: I like them.

Don’t get me wrong. I’m not a mathematician. My formal maths education stopped at A-level, decades ago, and has only restarted recently as I’ve sought to help my daughter with her GCSE maths studies through lockdown.

But numbers don’t scare me, and there’s an ethereal beauty to maths which always appeals. Which, I think, is generally a good attitude in an advocate.

Still, that’s the problem. I sometimes find it hard to understand just how daunting maths – and particularly statistics, perhaps – can be to many people. To be clear: that’s a failure of empathy on my part, not any failing on theirs.

Why “particularly statistics”? Because, I think, they can often defeat common sense. And while Darryll Huff’s seminal book “How to lie with statistics” overdoes it (Huff later became a key smokescreen for Big Tobacco, unfortunately), the fact remains that using stats to obfuscate instead of illuminate is an old and well-used trick because it works.

(Chart crime is a subset of lying with statistics, or perhaps an overlapping circle on a Venn diagram. Because often chart crime arises from negligence, not malice. FT Alphaville’s Axes of Evil series, from which the above illustration is drawn, is an excellent set of examples.)

A great illustration of the “common sense is wrong” problem is highlighted in a piece by a Conservative MP, Anthony Browne. (I don’t usually link to pieces by Tory MPs on ConservativeHome. But this, despite the clickbait headline about government policy, is really good.) Anthony says his constituents are up in arms because their kids are getting sent home from school on positive LFD Covid tests, and kept away even when they have a negative PCR test thereafter. Surely the PCR tests are gold standard? This can’t be right.

Well, yes it can, says Anthony. And he’s spot on. The issue arises because of the counter-intuitive way that false positives (getting a yes when it should be a no) and false negatives (the other way round) interact with large populations with a relatively low incidence of what you’re testing for.

Put simply:

  • Imagine a million kids, and 0.5% of them – 1 in 200, or 5,000 – have the Bug.
  • A positive LFD test is almost always right (only 0.03% false positives – only a tiny fraction of people told they have the Bug will prove not to have it), but a negative test is much more unreliable (49.9% false negatives – in other words, if you’ve got the Bug there’s a 50/50 chance the test will say you haven’t).
  • A positive PCR test is basically always right. But 5.2% of people with the Bug will get a negative result nonetheless.
  • Of the million kids (remember: about 995,000 are fine, about 5,000 have the Bug), the LFD will flag 2,500 of the kids with the Bug. (Yes, the other 2,500 won’t get flagged. But that’s a different problem…) It’ll also flag about 300 kids who are clean. Oops.
  • So 2,800 kids get sent home, along with their close contacts. Assume all 2,800 then have a PCR test.
  • The zero-false-positive thing means all 300 of the mistakes will get picked up. Yay! Back to school for them and their classmates?
  • Er… no. Here’s the problem. That 1-in-20 false negative rate means that about 125 or so of the 2,500 kids who DO have the bug will get a negative result as well.
  • So of the 425-odd kids whose PCR looks like they should be allowed back into school, a third of them are actually Bugged.

This, says Anthony, is why the government is right to disallow immediate return after a negative PCR. And I see his point. The stats are right, if utterly counter-intuitive. 

What’s this got to do with advocacy? Well, so much of our work involves numbers. In crime, it’s DNA tests. In personal injury, it’s causation for some kinds of illness and injury. In commercial matters, we spend our lives poring over company accounts and arguing over experts who tell us what’s likely and what’s not. And an awareness of Bayesian reasoning can be a huge help when assessing whose story stacks up.

And if we don’t speak numbers, how can we possibly ensure our clients’ cases are properly put?

This point isn’t new, and the profession knows it. Working with the Royal Statistical Society, a couple of years ago it put together a guide for advocates on statistics and probability. It’s brilliant. Download it, and keep it as a ready reference. And – as I’m trying to do – find ways of illustrating probability that are transparent to people for whom this just isn’t straightforward, or that take into account the times when statistics boggle the common-sense mind.

One final word on Anthony’s piece, though. He rightly points out that these numbers change as the incidence drops. The false-negative rate in the above example, for instance, falls to less than 10% once the incidence of the Bug is down to 1 in 1,000. 

But his overall point – that government policy is backed up by the numbers – has one big hole, it seems to me. As we noted, the false negative rate for LFDs is 50%. So even on our example, that’s 2,500 kids WITH the Bug who are in school, in the honest but mistaken belief that they’re no risk to anyone.

In other words, the reliance on LFDs for school testing is a false comfort – a form of pandemic theatre (akin to the security theatre that made air travel such a pain before it was wiped out by the Bug). And compared to that, quibbling over the 125 kids to whom the PCR has wrongly given the all-clear seems a bit pointless. 

(An invitation: I like numbers, but I’m not a statistician. If I’ve got any of the above wrong – particularly the final bit about the 2.5k kids innocently swanning around leaking Bug everywhere – let me know and I’ll correct myself.)

Someone is right on the internet: As a follow-up on the font conversation on Monday, I’ve always been a fan of style guides. Not the ghastly prescriptive grammatical guides (Strunk and White, I’m looking at you); I mean the guides some publications craft to help their writers keep things consistent. Good examples come from the Guardian and the Economist.

These, of course, deal with words themselves, not the typography in which they appear. But a good friend (thanks, Ian) points to a guide published by the Securities and Exchange Commission in the US. It’s aimed at people creating investor notifications, for instance about listings, and spends a lot of time suggesting clear language (and is really good on that). But there’s also a chapter (chapter 7) dealing with design, which says wise and interesting things about fonts. Worth a look.

It also makes some worthwhile and entirely true points about layout: for instance, that a ragged right-hand margin is far more readable than a justified one. I’d love to adopt that one in my legal drafting. However, I suspect that if I hand in a Particulars of Claim, or a skeleton argument, with a ragged margin, I’m likely to get into even more trouble than I will by continuing to use Garamond. Baby steps…

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2021iii1, Monday: One person to read re The Bug.

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A US publication has two writers I revere. One is simply the best reporter on Covid-19 that I know of.

Someone is right on the internet: I’ve only a few minutes, ahead of a hearing this afternoon. So a short word only today, about a writer whose work I adore.

The Atlantic, for anyone who doesn’t know, is a US publication of more than 150 years’ standing. It mostly writes about US stuff, from a US perspective.

And despite the fact that I live in Essex and haven’t been to the US for years, I pay $50 a year to subscribe. For two reasons.

Both reasons are writers. The first is James Fallows. One of the smartest and most thoughtful politics and society writers I know, a guy whose work I’ve followed since university (he used to live in and write about Japan). He’s had a line over recent years in examining towns and cities across the US, and how they are revitalising themselves (or sadly sometimes not). Important, ground-up journalism that honours the trade. He’s humble, he writes like a dream, and I love his work.

But the second is the key right now. Zeynep Tufecki made her name on big data, the attention economy and AI, and has been consistently on point on those topics. Equally, she’s had interesting and sobering things to say about the trend towards authoritarianism and populism. But her true value right now – and the reason why I read literally (I’m a pedant – I mean this, ahem, literally) everything she writes – is in her coverage of The Bug. It’s been consistently accurate, ahead of the curve, pragmatic, free of hyperbole and helpful. Her latest, on the pandemic communication mistakes that keep getting made – is brilliant, and is an example of the rest. It makes the point, for instance, that harm reduction should be a primary goal – so since human beings need to meet one another, encourage them to do so outside. Even mid-lockdown. Help people understand how to reduce the risk, to themselves and others, and most will take the advice – rather than meet in secret, indoors, and run a far higher risk.

Unsurprisingly, she’s got a newsletter. I never fail to learn from it. I recommend it warmly.

In the meantime, though, skim through her more recent work. (I know the Atlantic has a paywall, but you get several stories for free. And subscribing is always an option.) As we crawl towards a vaccinated world, with all the pitfalls and traps ahead of us, I promise you’ll come away smarter, better prepared, and as a result safer.

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2021ii24, Wednesday: freedom.

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10 days of self-isolation is over, and the seaside beckons. Also: what the Emperor’s New Clothes can tell us about whistleblowing.

The Thames Estuary. This morning. After 10 days indoors, I promise you this was like the Caribbean to me…

Short thought: My personal (and family) lockdown is lifted. My symptoms are pretty much gone. A quick drive down to the sea this morning felt simply wonderful. There’s nothing like fresh air and wide horizons when the furthest vista you’ve seen for 10 days is your own backyard fence. Joy, unconfined. Literally.

Someone is right on the internet: I’ve long had a professional interest in whistleblowing. As an investigator, a great deal of work comes from them. As a barrister whose practice includes employment, whistleblowing forms part of a surprisingly large proportion of claims. They can be tricky to bring home, since one has to prove not just detriment (or dismissal) but that the whistleblowing disclosure is the main (for dismissal) or a significant (for detriment) cause of the employer’s decision. And the larger the employer, the trickier that causation can be to show.

Obviously, every situation varies. And not all – even not most – whistleblowers are the “keep my identity secret” kind. Most disclosures are overt: employers sometimes forget that if an employee raises a concern about whether the company is acting lawfully, or safely, and does so with some belief that it’s in the public interest, that’s whistleblowing – even if all it amounts to is telling their boss to her face what the problem is because they don’t think she knows, and she should.

But in my experience there’s a constant: most whistleblowers aren’t doing it for fun. They’re doing it because they think they have to, or ought to. And no-one sues on it unless they don’t have any choice.

This is a point made by Margaret Heffernan, author of Wilful Blindness (a book I adore, and which should be on the shelf, or Kindle, of anyone interested in how cognitive bias – ours and others’ – can play hell with our decisions and lives), in a recent FT piece. (Sorry, the paywall will only allow three clicks on this. Wish it were otherwise). She notes:

While the popular image of the whistleblower is typically an eccentric loner, the truth is more prosaic: whistleblowers are likely to be loyal employees, passionate about high standards, who go outside their organisation as a last resort when nobody takes them seriously. They aren’t defiant troublemakers; they’re disappointed believers.

I agree. Which isn’t to say that some aren’t eccentric to start with, or perhaps more often driven to eccentricity, even obsession, by the whole experience. But her point is a straightforward one. Organisations are fundamentally inimical to people pointing out problems; yet without them, the organisation can’t possibly improve. As Heffernan points out, this is a “tragic waste of knowledge”: not just for the organisation, but for all its stakeholders.

It boils down to this. Everyone knows the story of the Emperor’s New Clothes. I used to use it in training sessions; the laugh, as I described the child shouting out from the crowd, “Hey mister, I can see your bum in that,” was a critical means of opening the door to a discussion of why problems needed to be shared; and acted to reinforce my promises that if it was a choice between my job and breaking a whistleblower’s confidentiality unless I was compelled by law to do so, I’d be the one taking the walk.

Sure, it’s funny. But everyone who’s ever heard that story has asked themselves what happened to the child afterwards. Did she get a cookie? A pat on the head? Or did several large soldiers pop round to have a word with her parents later, to drive home the message about it being safer if you bring up your kid to be seen and not heard?

My cynical side always suspects the latter. And certainly organisations tend in that direction: I’ve several times had senior managers tell me I had to disclose the name of a whistleblower. I never have, including the time a CEO threatened to fire me if I didn’t. But honestly, as Heffernan says, a smart company will listen first.

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2021ii19, Friday: “Sleaze”… and a Free Man of England.

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Rabbie Burns was right. We need to see oursels as ithers see us – particularly where corruption is concerned. And on another tack: a lovely court victory over a dangerously deluded sovereign citizen.

Short thought: The immortal Robert Burns was right when he asked for the gift of seeing oneself from the outside. (From To a Louse, although personally I prefer To a Mouse, which introduced the phrase “the best-laid plans of mice and men” into the language.)

This gift is particularly important for those of us in so-called “developed” countries who work on anti-corruption. It’s fatally easy to look at a healthy CPI score, fold one’s hands over one’s stomach, and see corruption as somebody else’s country’s problem. Instead of looking at what happens here from the outside – and judging it accordingly. (Joseph Cotterill, now the FT’s southern Africa bureau chief, used to do this beautifully, as this Twitter thread delivering a stiletto to the kidneys of UK politics in 2017 demonstrates.

I’ve long felt the UK has a particularly acute failing here. The first general election I remember in real detail was the 1997 one. In the runup to it, the papers were full of allegations of “sleaze”, suggesting something rotten at the heart of the Tory government which was by then 18 years old. 

But here’s the thing. “Sleaze” was a catch-all term, encompassing sexual wrongdoing, political favour distribution and what, anywhere else, we’d call corruption or bribery. By using the term, not only did we elide these differing concepts into some generalised moral failing. We also avoided having to look in the mirror and admit it: we’ve got a corruption problem. Which both rubs our collective ego, and protects those in power who are quite happy for the “you scratch my conscience, I’ll drive your Jag” status quo to continue.

And this is where Burns’s gift would come in so useful. A good exercise when looking at some bit of skulduggery involving the abuse of power in the UK is always to say: if this happened in Nigeria, or Afghanistan, or Indonesia, or Venezuela, or any other country in the lower reaches of the CPI, what would we call it? If we’d call it corruption there, we’re dishonest not to do so here.

Take a classic small-scale example. You’re on a local authority planning committee. Your child is a tennis player with semi-pro. A local tennis club has a great record for training young people, but a waiting list. You’re having lunch with a friend, a developer. His husband is on the club membership committee. Your child is mentioned. The waiting list unaccountably shortens soon afterwards. When a planning application from the developer next emerges, do you disclose your child’s new-found membership?

Change the story a bit, so it’s happening in a more ostensibly corruption-prone place. Change the tennis club to a university place or an internship. Change the local council to a national quango. Would it be corruption? Would it, at the very least, require disclosure and probable recusal?

I think so, yes. But I wonder how many people, in the UK context, would have thought so. 

As I said, this is not a new thought. But it’s been sparked anew by two things.

First, my jottings on fraud were responded to by a former colleague whom I deeply respect, Mark Ward. Mark was a tech correspondent at the BBC, but is now senior research analyst at the International Security Forum. Mark and I are both baffled by how a crime with such huge (both deep AND broad) impact can be accorded so low a priority. Now, I can’t help wondering if it’s part of the same picture: a cross between wilful blindness and contentment that someone else is paying the bill when the grown-ups keep doing what they do.

Second, a throwaway line in a newspaper report noted that the government’s anti-corruption champion, John Penrose MP, is married to Baroness Dido Harding. The former head of TalkTalk (widely regarded as a considerable failure in that role, having presided among other things over one of the most egregious corporate data protection breaches in recent UK memory), who was put in charge of Test and Trace without any competition or assessment. And who is widely regarded as having failed extensively in that, as well.

Yes. The person in charge of anti-corruption is married to someone who’s seen (with a good deal of justification) as a major beneficiary of nepotism.

Again. Put this in another less self-satisfied country. What would it look like? How would it be viewed?

(Update: an earlier version of this got Dido Harding’s old job wrong. She was made CEO of TalkTalk, not Carphone Warehouse, when the former was split from the latter.)

Someone is right on the internet: I’ve been fortunate never to have had to deal personally with so-called sovereign citizens. Those people who in the US start talking about black helicopters and the illegitimacy of all things federal; and who over here tend to start blathering insanities about Magna Carta (thank the blessed David Allen Green for wading through the muck on that one).

Sarah Clover, from King’s Chambers, wasn’t so lucky – but at least it’s produced a fascinating case, where a gym owner in Preston trotted out many of the greatest hits which made him – as he put it – a “Free Man of England”: governing only by consent, a redefinition of the Common Law, and the non-applicability of the Coronavirus Regulations because they were a “statute of legislation”. No, I don’t understand that tautology either. 

Anyhow, read Sarah’s piece. It’s great.

Only one problem. The poor man seems not to have mentioned Magna Carta. Missed a trick there. No doubt poorly advised…

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2021ii17, Wednesday: the other shoe.

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So it’s four days since I took a test, three since the result. Not much in the way of symptoms. How long, o Lord, how long…

Short thought: This is weird. Day four (at least) of having The Bug (again, I think). And aside from a mild headache and some fatigue: nothing to speak of. Heart rate? Normal. Blood O2? Normal. Temperature? Normal*. I’m in limbo.

I confess I hadn’t really thought through what it would be like to get a positive test while asymptomatic. I realise that’s a failure of imagination on my part. But it’s odd. Here I am, self-isolating as best I can, knowing that in theory the clock runs out on that next Tuesday night – but also knowing, as far as I’ve been able to find out, that while symptoms mostly emerge within 5-6 days of infection, it could be a couple of weeks.

So if I was tested on Saturday, in theory I could be sitting here happily for another 10 days or so and still get the whammy at the end of it, even if that’s at the far end of the probability curve. 

In the meantime: limbo. Bayesian reasoning doesn’t help, because I haven’t got any more useful info than I had on Sunday. The lack of major symptoms to date isn’t a helpful data point because of the lengthy incubation period. The fact that I’ve no idea when, before Saturday, I picked it up means that period in itself is unknowable. (Which leads me to rack my brain unhelpfully. Where was it? The 20 minutes in Waitrose last Thursday? The half-hour in Tesco the day before? The three minutes in the pizza takeaway on Friday night? The five minutes picking up coffee on Saturday morning? When was Day One, really? There’s been nowhere, and no-one, else. And the rest of the family have been even fewer places than me.) Perhaps if we get to the end of the week I can adjust my priors – but the potential risk to others is so high, I might discount even that.

Even then, is it a false positive? Am I an asymptomatic (mostly) carrier? Or are the T-cells from last time doing a good job this time round? No idea. No way of having one. Sigh.

So here we go. Sit. Wait. Wonder. Fret. But also thank God, the stars and whatever any of us believes in that – thus far at least – I’m getting off far, far more lightly than most. Amen. 

(And yes, I know that given the above this feeling is a bit premature. Give me this one. Ok?)

*Thank you, Apple Watch. A gift to hypochondriacs everywhere, although in this instance pretty useful.

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2021ii15, Monday: Damn.

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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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2021i11, Monday: reluctance or refusal?

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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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