2021xi4, Thursday: Once upon a time…

Let me tell you a story. I think it’s about corruption. But do decide for yourself.

Once upon a time, there was a man in Harare. His name was Edwin. He was a ZANU-PF member of Zimbabwe’s Senate.

Photo by Josh Appel on Unsplash

Edwin had a friend who ran a business in his constituency. The business sold cars. Edwin’s friend was bidding for a contract to sell cars to the government. Edwin’s friend’s business paid Edwin a consultancy fee. Edwin talked to his colleagues in government, encouraging them to contract with his friend’s business. He didn’t say anything about his relationship with his friend, or that the business in question was owned by his friend, or about the money the friend’s business had given him.

Was Edwin acting corruptly?

I agree.

Oops. I’m sorry. I’ve got the story wrong. Try this one instead.

Edwin wasn’t in Harare at all. He was in Stoke-on-Trent. He was a Labour councillor. (And this is back in the days when 95% of Stoke’s council was Labour – when, as the sneering cynics might have unfairly said, you could get a monkey elected in Stoke if you strategically shaved them, stuck them in a suit and pinned on a red rosette.) Edwin’s friend owned a garage. Edwin’s friend paid Edwin some money to “advise” him on business. The friend wanted to pull down the garage and build flats. That would make him a killing. The friend’s planning application was becalmed in the planning committee. Without telling anyone about his relationship with his friend, or about the money, or about any connection he had with the planning application, Edwin spoke up in favour of the application.

Was Edwin acting corruptly?

I agree.

Damn. I’m really messing this up. Because both stories are true. And in both cases, Edwin got found out.

An independent arbiter, appointed by the assembly each Edwin was part of, and sticking to the rules that the assembly had agreed, investigated Edwin’s conduct. In the time after the conduct in question, each Edwin had lost his wife in tragic circumstances, so the arbiter in each case gave their Edwin every chance to defend himself, extending deadlines and giving him more leeway than would be normal. Each arbiter found their respective Edwin’s defence to be baseless – “stretching credulity”, it said about one of his arguments – and his conduct to have breached the rules of the assembly. In each case a cross-party committee of Edwin’s fellow representatives agreed with the arbiter’s findings, and censured Edwin, suspending him from the assembly.

Hold on a minute, said each Edwin’s party – ZANU-PF in the one case, Labour in the other. This isn’t right. Edwin hasn’t had a fair say. Let’s press pause on this while we reconsider the rules we’d previously agreed were fine. Each of the two parties whipped Edwins’ colleagues to suspend punishment while – for however long it takes – a committee on which that party holds a majority thought again.

Each Edwin, of course, is still sitting. Still unpunished.

In each case, is Edwin’s party acting corruptly?


I recognise I’m not being terribly subtle here.

Obviously I’m not talking about Edwin. And I’m not talking about ZANU-PF or Labour. Although if either of them did this, they’d be just as much in the wrong.

This isn’t about parties. This is about probity. About ethics. About the wholesale abuse of power for private advantage.

About, in other words, corruption.

Owen Patterson’s party (because of course that’s what this is about) whines about a lack of due process from the Standards Commissioner (whose report is here). From a party whose Lord Chancellor and Attorney-General want to make it so ministers found to have acted unlawfully can simply, administratively, change the law to suit their purposes, this is cant. Base hypocrisy.

For shame.

I also recognise that these are strong words. Stronger, I think, than I’d usually use.

A few days ago my old friend Max left a comment on a previous post on LinkedIn. He referred – approvingly, I should note – to my “blogrants”. For a moment I was taken aback. Do I really rant? I hope not.

Notwithstanding that, I realise I may have done so here.

But I haven’t spent most of my working life working against corruption elsewhere to nod and wink when I see it at home.

There’s a point to the story-telling method I’ve adopted above – and not only, as I’ve discussed before, because we humans respond to stories, not to bare recitations of fact.

It’s instructive, particularly in this country where we like to believe we’re cleaner than most, to swap out places like “London” or “the UK” and tell the same story as if it were in Harare. Or Abuja. Or San Salvador. Or Kabul. Or Moscow. Or Beijing. Or Beirut. Or any of the other places that we think we’re better than. It’s also important, if one is to have a shred of decency, to imagine how one would feel if it was – in political terms – the other lot. It’s like steel-manning the issue.

If it’d be corruption elsewhere, it’s corruption here. Not sleaze. Corruption. Names are important.

Call this what it is.

1140: a quick update, having finally got round to reading this morning’s Politico playbook from which the below info was taken. For the record, the following Conservative MPs voted against the party whip. They should be applauded. Some would say: well, they’re only doing what they should; where’s the credit in that? But this is like whistleblowing. They’ve put their careers in jeopardy. This is brave, and right.

Aaron Bell. Jackie Doyle-Price. Richard Fuller. Kate Griffiths. Mark Harper. Simon Hoare. Kevin Hollinrake. Nigel Mills. Jill Mortimer. Holly Mumby-Croft. Matthew Offord. John Stevenson. William Wragg.

19 Tory MPs voted in favour despite having in the past had complaints upheld. Not strictly speaking a conflict, but still fairly grubby. I won’t name them, since I guess they’ve a right to their opinion, however shameless it is.

Not so for the three Tory MPs whose alleged misconduct is still under investigation:

James Cleverly. Daniel Kawczynski. David Warburton.

I can’t put it better than Politico does:

If they can’t see why it’s inappropriate to be voting to effectively get rid of the current standards process then Playbook can’t help them.

Quite. Again: for shame. If only they had any.

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2021vii8, Thursday: Passive, aggressive.

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

I’m torn when it comes to language. 

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

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

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

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

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

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

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

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

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

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

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2021vi28, Monday: Interest.

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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2021vi23, Wednesday: “Important.”

Qualified good news about open justice – but with a significant sting in the tail. And a fascinating update on corruption definitions from an old friend.

Short thought: For anyone relatively new to the law (by which I mean the past half-dozen years or so) the idea of a life before BAILII is just incomprehensible. 

Seriously? No public access to judgments? Court decisions – which in our common law world define much of the law, and are absolutely critical to anyone resorting to it – only available at vast cost, or to the tiny minority of practitioners? Madness. Worse; injustice. 

(A good description of why this matters is in the case of R (Unison) v the Lord Chancellor. I’ll take any excuse to point to paras 65-73 because it’s one of the paradigm examples of judicial disdain, cloaked in perfect and elegant courtesy. In this case, the Supreme Court saying to the government minister in charge of the legal system: just sit down and shut up, while we explain your job to you. With pictures. And short, easy words. But the key paras for this purpose are 69-70, where the critical role of case law in our common law system is concisely and superbly outlined. With a sarcastic sting in the tail.)

So the fact that we have this resource, with vast numbers (if by no means all) of judgments from the Tribunals, via the High Court and Court of Appeal, to the Supreme Court, freely available, and searchable, is not just desirable. It’s necessary.

Having “grown up” in the law with BAILII, I find the existence in the US of PACER both staggering and an outrage. A public database of federal court decisions – great. But not only is it charged for – but the charge is $0.10 a page! As any trial lawyer will tell you, researching a case often means looking at loads of authorities, many of which will prove ultimately to be useless or even counter-productive. Most are dozens of pages long. Some are hundreds. This is just as much an obstruction of justice as were the Employment Tribunal fees that the Unison case ultimately, and rightly, defeated.

All this said, it’s worth remembering that BAILII isn’t a public enterprise. It gets about a quarter of its £230,000-odd budget from the Ministry of Justice, but it’s a charity.

Some may see this as an anomaly. And change is on the way. The MoJ has just this week announced that the National Archives will from next year host an openly-available archive of “important” court and tribunal judgments, including “Judicial Review rulings, European case law, commercial judgments and many more cases of legal significance from the High Court, Upper Tier Tribunal, and the Court of Appeal”.

I’m not going to be a curmudgeon about this – at least, not immediately. This is an advance. It’s absolutely worth having. And putting it in the hands of the National Archives, rather than the MoJ, is the right move.

But there is a problem. The words “important” and “of legal significance” do a lot of heavy lifting. Again, any trial lawyer will tell you that it’s not always the obvious cases that are worth having. Sometimes, the “legal significance” won’t emerge for some time, till various authorities and competing bits of jurisprudence settle out over time. This could leave huge gaps. And I want to know: who gets to decide what’s “important”? 

I’m not alone in this. Smarter and better minds – such as Paul McGrath and Natalie Byrom – have beaten me to it.

The counter to which could be: BAILII will still be there. Well, yes… but as part of this new deal, the MoJ will stop its funding to BAILII from next year. That’s a huge slice of budget. I’m really worried about its future. And its loss would be a loss to us all.

Someone is right on the internet: As anyone foolish enough to expose their thinking online (but not irretrievably arrogant) will tell you, one of the greatest joys of this game is when something you write prompts someone smart to help you expand your mind.

Tristram Hicks, former Detective Superintendent of the Metropolitan Police, has been kind enough to do that. Tristram, whom I’ve known on and off for a good long while, specialised during his policing career in economic crime: fraud, asset recovery, money laundering – and corruption. 

He’s reminded me firstly that I got the standard corruption definition wrong in my piece on Monday. I should have said: “abuse of entrusted power for private gain”. That’s “private”, not “personal” as I had it. 

In the context in which I used it, I’m not sure there’s a great difference; “private” in the sense of “for the sake of the organisation itself, not for the sake of its mission” works better than my explanation, but perhaps not materially.

But Tristram points me to a piece he wrote for Sussex University’s Centre for the Study of Corruption, which I commend to any reader of these pages as an excellent use of 10 minutes of their time. (It’s not long – less than 10 sides of A4.) Entitled “Why are there so few domestic corruption cases in the UK?”, it explores some of the familiar (no resources; no incentives; no measures) reasons why domestic corruption goes largely uninvestigated, unprotected and thus unpunished – but also some more unfamiliar ones. 

(He doesn’t mention my particularly caustic and cynical take: that successive governments are so wedded to the UK’s image as a “clean” place that except in certain specific locations, such as prisons and border control, there’s simply no incentive to lift the rocks and look underneath. In case we find anything…)

But alongside this, Tristram also points out that my mistaken definition is the one the Government adopted for its 2017-22 Anti-Corruption Strategy, although it wrongly attributed its wording to Transparency International (the source of the “private gain” one). And then it added a further gloss: the corruption, by the Government’s definition, had to “benefit a third party – an individual, business or other organisation”. Like Tristram, I don’t believe this is right. At its most basic level, the additional condition might be interpreted as ruling out people within the organisation in question – particularly those running it, whose motives might well be mixed up with or attributed to the organisation itself. And even if that’s not the case, this definition carefully exempts the kind of “institutional corruption” we were discussing on Monday.

Not good enough. We’re not as clean as we think we are. Narrowing the definitions to exclude some of the ways in which that manifests itself only makes things worse. Thanks, but no.

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2021vi21, Monday: It doesn’t have to be “personal” to be corruption.

Organisations can be corrupt, not just people. As a new report shows. And without an public duty to be transparent, that will be the rule, not the exception.

Short thought: There are a million definitions of corruption. It’s one of those “know it when you see it” kinds of words, and an exact definition is probably unhelpful. 

(Put up with me here. I’m going to wander off into a bit of a discursion. But I promise: it’ll come back to something current, and important. Something that ought to make you pretty angry. It did me.)

You can see this in one of the most common ones, which boils down to “the abuse of entrusted power for personal gain”. It’s not bad, so far as it goes. But there’s a lot of freight in those words, and in each of them – and that can lead us in unfortunate directions.

(One useful omission is any reference to “dishonesty”. For years, there’s been legal argument about whether dishonesty was an essential element in corruption. In the UK, it’s now pretty settled that it doesn’t – and that’s a good thing. “Corrupt” and “dishonest” are overlapping circles: you can be either without the other, although often they co-exist. Think, for instance, of blatant, balls-out abuse of power where someone simply takes advantage of their position without even bothering to hide what they’re doing. Not uncommon, and not in the slightest dishonest. But corrupt all the same.)

So what do I mean by “freight” in the words? This is where I behave like the stereotypical barrister: picking apart the language. But there’s a point, as I hope you’ll see. Taking it a step at a time:

  • Abuse”. Not all uses of power for personal gain are necessarily corrupt. A decision on behalf of your organisation might make you better off, but also be in the organisation’s best interests – and those of its stakeholders. No abuse there. No corruption.
  • Entrusted power”. An essential element in how law in England defined corruption used to be that an agency relationship needed to exist. This is still there in civil matters, to an extent: it’s trite law now (following FHB) that if someone acting for you takes a bribe, the law sees their gain as in fact yours, and which that agent (holding it in trust for you) therefore can’t lawfully use for themselves. As recently as 15 years ago, amid arguments over what ultimately became the Bribery Act 2010, many pushed for explicit inclusion of an agency requirement in the proposed new statute. Ultimately that idea died; but we still have the essential idea that bribery, at least (and corruption more generally) is about what you do with authority that you’ve been given and which you wield on others’ behalf.
  • Gain”. This is often misinterpreted as something strictly financial. In the UK, at least, that’s not the case, at least so long as bribery is concerned: the offences in the Bribery Act are committed for the gift or receipt of “financial or other advantage” (see for instance s1(2)(a) and s2(2)). Unlike in the Fraud Act 2006 s5, where “gain” has to be in property or something financial, an intangible advantage will qualify. Such as, for example, the preservation of a reputation, or the burying of bad news.
  • Personal”. This, I’d suggest, is also a dangerous one. It gives the impression that corruption is solely and always about individuals – whether acting in their own favour or for (for instance) their families or friends. 

Now we’re at the point. Sorry it took this long. The reason for this textual exegesis is the Daniel Morgan Independent Panel, whose report (all 1,200-odd pages of it) was finally released last week. For the uninitiated, it tells a thoroughly grubby tale of the grossly-incompetent investigation, over decades, by the Metropolitan Police of a 1980s murder of a journalist.

But worse than the incompetence is what the Panel’s report says is the Met’s “institutional corruption”. Partly because of the prevailing suspicion that Met officers were far too close to crooks for comfort, as they were with private investigators who hovered in the hinterland between the two. 

But mostly because of what appears to be an eight-year effort by the Met to obstruct the Inquiry, whether by failing to produce evidence, blocking access to systems, or otherwise. The Panel doesn’t mince words:

In failing to acknowledge its many failings over the 34 years since the murder of Daniel Morgan, the Metropolitan Police’s first objective was to protect itself. In so doing it compounded the suffering and trauma of the family.

…The lack of leadership, the reluctance to confront serious issues and the refusal to be publicly and internally candid about failings and deficiencies within the organisation, in this case and others, engenders distrust among the community served by the Metropolitan Police and within the organisation itself. The support of that community, and the confidence of good police officers in the organisation which they serve, is vital to the delivery of effective efficient policing. It is to be hoped that the findings and recommendations contained in this report will lead to a change of culture and ethos throughout the police service.

One could say that “institutional corruption” is a misuse of language. Is it really corruption for an organisation to drag its feet just to try to stifle criticism and keep its incompetence under wraps? That’s not “personal gain”, is it?

Wrong. What we’re talking about is, I think undoubtedly, the abuse of entrusted power. And it may not necessarily be for the individual gain of those making the decisions, but it’s definitely to aid the organisation at the cost of those it serves. Perhaps “personal” isn’t the right word; but to the extent that we’re talking about placing its own interests above the demands of its assigned duties and obligations, it fits. 

Another criticism might be: well, isn’t self-preservation an inevitable habit of any large institution? Of course it is. But there’s still a dividing line. We’re back to the “know it when you see it”. There’s vigorous PR. And then there’s this. They’re not the same. It’s facile, and I think foolish or in some cases dishonest, to suggest otherwise. 

The Morgan report is huge. Few will read it. But the summary is less than 20 pages. It tells an entirely unedifying story. And, to anyone concerned that those who protect us can be trusted not to privilege their own concerns over ours, it’s in my view essential reading.

Someone is right on the internet: A key recommendation in the Morgan report is the imposing of a “duty of candour” for public servants and public institutions. In other words, they would have a responsibility to be proactive in informing the people they claim to serve about what they’re doing and how.

This topic is picked up by David Allen Green in the latest of a set of posts concerning what he believes is a prerequisite for meaningful public service reform. David points out, perhaps slightly caustically, that calls for such reform are frequent (and the person voicing them is “usually Michael Gove”), but are rarely accompanied by any acknowledgement that without an imposition of transparency – that is, the obligation to disclose information they don’t want anyone to see – such calls are essentially meaningless. They are, he says, 

Nothing but sophistry and illusion.

I think he’s right. Governments (and public bodies) in general are loathe to let sunlight into what they do, but I don’t think it’s an exaggeration to say our current administration takes this to an extreme: whether it’s changes to judicial review, or a backstairs bit of the Cabinet Office making sure freedom of information requests are hobbled, or an apparently academic disquisition on whether judges are trespassing on the rule of law in cases concerning (also) freedom of information, the trend is to lock down, not open up. To avoid scrutiny. To obscure transparency.

In a nutshell: to be unaccountable.

This cannot be right. Particularly in our majoritarian polity, where the combination of first-past-the-post elections and parliamentary supremacy puts immense power in the hands of the government of the day, trammelled only by conventions which this administration doesn’t seem to recognise, transparency is critical if those running the show are to be held to account. 

Mind you, I’d be saying the same thing were another party to be in power. Power corrupts. When it’s wielded without accountability, in the dark, its abuse is practically inevitable. 

Ah, you might say. But you’re forgetting Hanlon’s Razor: that wonderful (and I’ve always believed accurate) warning against assuming malice where something can just as easily be explained by incompetence. (More pithily put as: “Cock-up is far more common than conspiracy.”)

No. I haven’t. If anything, that’s still more important. Errors, mistakes and negligence only get learned from if they’re recognised. Institutional pressure to sweep cock-ups under the carpet is always intense: yes, partly for legal reasons, but as often simply to save face. Without transparency, the same errors happen. Over and over again. 

And we all pay.

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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.

Incidentally: do subscribe at http://remoteaccessbar.substack.com if you fancy getting this automatically. Now, advert over. Let’s get on.

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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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.


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

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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A corruption hypothetical.

When people claim the UK is “clean” (usually while denigrating somewhere else) it always makes me angry. Because corruption creeps in everywhere, and never more so than where when people are convinced it doesn’t exist…

Imagine the following synopsis of a news story:

  • A property developer in a legendarily corruption-prone country – let’s call it Bribeia for the sake of argument – wants to build something that needs planning permission.
  • So he donates a chunk of cash to the coffers of the ruling party. As part of this donation, he gets to come to a rubber-chicken, thousands-a-plate fundraiser and hobnob with ministers.
  • He ends up sitting next to one such minister, and tells him about the development, urging that it be approved. The minister is non-committal, but they swap mobile numbers.
  • They then exchange multiple text messages. The minister continues to be carefully non-committal in his text messaging, but the developer tells him that he needs the approval by a deadline to avoid paying a whopping tax bill to the local government – coincidentally run by the main opposition party.
  • The non-committal communications notwithstanding, the minister tells his civil servants not only to approve the development, but to make sure it’s done in time to avoid the tax.

You’re all smart people, so you’ll all have instantly recognised that this is the Jenrick-Desmond affair, albeit transplanted elsewhere.

But tell me honestly. I mean it: do tell me, whether on Twitter, LinkedIn or otherwise. If this chain of events happened in a country in the bottom half of the TI CPI, would you hesitate for all that long before regarding both the developer’s conduct and that of the minister as potentially corrupt?

And if that’s the case for Bribeia, why’s it any different here?

(I’ll leave it as a thought exercise for the reader to analyse Desmond’s conduct in the context of Section 1 of the Bribery Act, pausing only to note that the person who is given or promised the advantage doesn’t have to be the same person as the one who performs a function improperly, but also noting that it might be tricky to prove intent. Similarly, an interesting academic exercise is to imagine that Desmond was indeed dealing with a Bribeian minister (that is, a foreign public official) rather than a UK one, and assess his conduct in the context of section 6. Although from what I’ve read, the test at s6(3)a)(ii) looks unsatisfied.)