2021iv7, Wednesday: Gaslighting by government.

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

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

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

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

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

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

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

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

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

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

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

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


Short thoughtThis made me mad.

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

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

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

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

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

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

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

For shame, WaPo. For shame.


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2021iv5, Monday: Deliberately rigged?

Right back atcha, CRED.

Short thought: In re the UK Government’s Commission on Race and Ethnic Disparities (or CRED, to give it its backronym): I haven’t read the whole report, so I’m not going to take a view on it as a whole. But as short takes on the bits I have read:

  • At least some of the recommendations aren’t bad at all. (Improve transparency on how algorithms affect non-white people? Definitely. Require ongoing de-escalation training for all police officers? Should’ve happened years ago.)
  • Some of the others (the curriculum looking at the upsides of slavery? Please), and the foreword – written by the Commission’s chair, Dr Tony Sewell – are tendentious at best, and give at least the appearance of being thoroughly intellectually dishonest.

I’m going to cherry-pick one example from the foreword, because it’s particularly egregious and serves – unless it’s wholly unrepresentative of the rest of the report – to undermine the integrity of the whole thing.

Dr Sewell writes:

Put simply we no longer see a Britain where the system is deliberately rigged against ethnic minorities. The impediments and disparities do exist, they are varied, and ironically very few of them are directly to do with racism. Too often ‘racism’ is the catch-all explanation, and can be simply implicitly accepted rather than explicitly examined.

The evidence shows that geography, family influence, socio-economic background, culture and religion have more significant impact on life chances than the existence of racism. That said, we take the reality of racism seriously and we do not deny that it is a real force in the UK.

The Commission was keen to gain a more forensic and rigorous understanding of underlying causes of disparities. However, we have argued for the use of the term ‘institutional racism’ to be applied only when deep-seated racism can be proven on a systemic level and not be used as a general catch-all phrase for any microaggression, witting or unwitting.

Look at two key phrases: “deliberately rigged”. “Deep-seated racism proven on a systemic level”.

And contrast it with the definition of institutional racism used in the Macpherson Report into the murder of Stephen Lawrence, published more than 20 years ago:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. (para 6.34)

Dr Sewell, deliberately or negligently, throws this definition out of the window. It’s a good thing that almost no organisation is prone to being “deliberately rigged against ethnic minorities”. But to narrow the problem to solely that, and declare victory, is to describe night as day.

Just as bad is the idea that institutional racism only exists when “deep-seated racism can be proven on a systemic level”. Let’s leave aside the casual, if not malicious, straw-manning of implying that anything else amounts to a trivialising of the term, and look at how the law deals with discrimination – on race and ethnicity grounds as in other things.

Of particular importance here is s19 of the Equality Act 2010, which deals with indirect discrimination. This is where a “provision, criterion or practice” (“PCP”, as we in the trade call it – often a policy, whether formal or informal) is applied to everyone, but has a particularly detrimental effect on people with the same protected characteristic as the claimant – that effect extending to the claimant herself. The classic example: a height requirement for a job, if it didn’t have a good reason for existing, would discriminate against women and some ethnicities, simply because they’re on average shorter than men (on the one hand) and than other ethnicities (on the other).

There’s no “deliberate rigging” here. The PCP might be applied in good faith. But it’s still discriminatory. And if one PCP, or a clutch of them, has the effect of systematically disadvantaging non-white people – well, how is that not institutional racism at work?

As for the proof point: it’s good law, and rightly so, that the claimant doesn’t have to show the mechanism. As the Supreme Court held in Essop v Home Office in 2017, if someone can show they’re the subject of a PCP and that PCP has caused them to be treated less favourably than someone else, they don’t need to prove exactly how the one leads to the other. Put differently: they don’t need to prove “deep-seated racism on a systemic level”. Frankly, they almost never could. If that were the standard, no-one would ever win an indirect discrimination case. The more so because the courts are well aware that discrimination is rarely overt, or obvious, or amenable to direct proof. Instead, as explained by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite, the norm – not the exception – is to look at what facts are established, and then see whether discrimination can be inferred from them.

In the name of fairness, I must make two big caveats here.

Firstly, there’s a difference between institutional racism in the abstract, and the workings of indirect discrimination against individuals. Obviously there is, and I’m not seeking improperly to conflate the two. But it’s both fair and proper, I think, to look at the Sewell Report in the context of how the law defines discrimination – and, of course, against the backdrop of the Macpherson Report – and interrogate its implications. They’re not good.

Secondly, and I must make this clear: I have no reason to believe Dr Sewell or the Commission would wish the Equality Act (whether s19 or any other element of it) to be undermined. That’s not what I’m suggesting. Not for a second.

But to draw a parallel with harassment, as defined in s26 of the Act: it’s not just a behaviour’s purpose which is important, but its effect. Even assuming good faith on CRED’s part – and, while saying nothing about the Commission’s motives, I have to admit I find it hard in the light of many ministers’ public pronouncements to assume any such good faith on the part of those who commissioned them – maturity means you own the outcome of your actions, even if they’re not what you intended.

Dr Sewell’s foreword may not set out to undermine protection against discrimination. I’m sure he wouldn’t intend to do so. But it may have that effect.


There’s another side to this, one which comes from an advocate’s point of view.

We barristers spend a lot of time arguing over expert evidence. Experts, even when briefed by one side or the other, are meant to serve the court, not the person who pays their bill. It was beautifully put by Thorpe LJ in Vernon v Bosley:

The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.

Unsurprisingly, given that any situation requiring expert evidence is likely to be far from clear-cut, each side’s expert report will likely favour its own position – while (if it’s any good) making clear that there are a range of other views, albeit less reliable than the writer’s.

However, just once in a while you come across an expert report in which it’s crystal clear that the writer has started from the desired conclusion and argued backwards, cherry-picking or at the very least selectively weighting the evidence to ensure they end up where they want. These are the reports any opposing counsel loves: they offer the rare opportunity not just to interrogate the findings, but to undermine the credibility of the whole report such that the judge may treat its contents with disdain.

As I said at the start: I haven’t had a chance to read the whole report. So it may well be that the rest of it is far more nuanced and thought-through than the foreword.

But if this was the executive summary of the opposition’s expert report which landed on my desk? I’d be dancing for joy. Open goal time.

2021iii26, Friday: Monster beamy.

Fat ships and hydrodynamics. And GCHQ makes the most of the fact that one of my heroes is now on a banknote.

I’m sorry. I’d intended to write something on empathy – a hugely undervalued and misunderstood trait, for us advocates as much as for everyone else. But I’m facing the usual barrister clashing-deadline problem today, so I have to content myself with a couple of links.


Someone is right on the internet, 1: One of the benefits of blogs, and now of the less toxic corners of social media, was always said to be that genuine, unfiltered expertise was never more than a click away. (Let’s not do the “experts suck” thing. Please?)

But good old-fashioned mainstream media also has an important role here. Not all experts can communicate. But the best reporters excel in taking expertise and translating it for us lay people, without diluting its true value.

For anyone puzzled, baffled or just plain incredulous about what’s happening in the Suez Canal right now, the FT does a glorious job of dealing with the hydrodynamics behind the grounding – or as the writer, Brendan Greeley, puts it, “walling”, of the Ever Given.

(The main story is here. Sorry, subscribers only; this is a gift link, but it’ll only work for three people, so if you do have an FT subscription please use the first link.)

A taster:

By any historical standards, the Ever Given is a monster. But it’s a monster in a specific way: it’s fat. The more containers you can stack on a single ship, the cheaper the marginal cost of each new container. But the specific engineering of container ships mean that they can’t get longer; they have to get wider. An oil tanker is a shoe box with a lid: hull on the bottom, oil in the middle, deck on top. But a container ship is a shoebox without a lid: hull on the bottom, then containers all the way up. It’s not as strong without the lid.

Why no lid? Because there’s a limit to how long you can make something out of welded steel plates, given the forces at play in the open ocean. So for container ships, you make them wider – “monster beamy”, as Brendan puts it – and pile them higher. And what did this mean for the Ever Given?

Wind definitely played a role, but there was probably something else happening, too. The ships keep getting bigger. But everything on Earth stays the same size.

That’s how he ends, but I’m not really giving anything away by quoting that. The piece is great. If you can, read it.


Someone is right on the internet 2: Of the UK’s three main intelligence agencies, the funny thing is that the least prominent in popular culture is both the most overt, and the most expensive. It’s the Government Communications Headquarters or GCHQ, whose main site is a huge round building in Cheltenham (the shape of which is rather elegantly reflected in its logo and typography).

As the government’s code-makers and code-breakers, as well as the outfit responsible for securing and penetrating networks and systems, their importance has in fact never been higher. So it’s no surprise they’re making the most of one of their own now appearing on the new £50 note, in the shape of Alan Turing.

My first real brush with computers was in the Turing Room at King’s College. Back in those prehistoric days when most students didn’t have their own computers, the Macs arrayed in the Turing Room were – for those of us who by the 1990s had already moved away from hand-writing essays – a home from home. (And also cemented me on the Mac vs PC side of the equation.)

However, I didn’t know much about Turing himself. I didn’t know he’d formulated much of the theoretical basis for computing. I didn’t know he’d been the linchpin of the UK’s efforts to crack Enigma at Bletchley Park (home of the Government Code and Cipher School, GCHQ’s precursor) in WW2. I didn’t know he was gay. I didn’t know he was hounded for it. I didn’t know he was charged and convicted for indecency as a result. I didn’t know he lost his security clearance. I didn’t know he was compelled to take drugs as an alternative to prison. And I didn’t know the misery of this compelled him to kill himself.

I learned later. Marvelled at the man. And grieved for him, in despair that a mind like that should be thrown away by such paltry injustice.

He’s been posthumously pardoned. His home town, Manchester, has a statue to him, with a plaque that reads:

Father of computer science, mathematician, logician, wartime codebreaker, victim of prejudice.

All true.

Turing was a marvel, and an icon – to me and many others. Despite the controversy that sometimes attaches to banknote choices (and the fact that generally I don’t think UK ones have been terribly attractive), I love the fact that Turing will, from his birthday date in June, grace the £50.

And it’s probably fitting that GCHQ is marking the launch with a series of puzzles. While cryptography today is fundamentally a computing problem, for most of human history it’s been about someone pitting their brain against someone else’s, and seeing which (forgive me) cracks first.

Cards on the table. I sorted the first, which is a straightforward bit of general knowledge. But after that, I’m stuffed. (I may love Cracking the Cryptic, but mostly as a spectator. I can only do their puzzles with a lot of handholding.) For smarter and more corkscrew minds than mine, though, I imagine this should be fun. Let me know how you get on.


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2021iii12, Friday: We just don’t get it. And most of us simply can’t.

“My life has been one long risk assessment.” For most of us men, ours hasn’t, and we need to recognise what that means.

Short thought: I remember a time – I was about 12 – when a couple of older boys strolled past me in the street, saying something rude (I was a nerdy, skinny kid). I kept walking, kept my head down. Then I heard them turn and start following me. I sped up a bit. So did they. I heard them catching up.

So I started running. So did they. I wasn’t a good runner, but I poured every gramme of energy into my legs. They were right behind me. I was terrified. I realised a friend’s house was only a few dozen steps away. I made it to the open gate, ran through to ring the bell, and heard them slow and walk past just as the door opened.

To this day, I’ve no idea what prompted the incident. I’ve rarely been more scared.

And even in the light of that, I will never, ever truly be able to understand what many if not most women go through, day after day after day. The intrusion. The unwelcome attention. The fear, the foreboding, the painful and exhausting need for constant awareness of all that’s around you.

Most of us men don’t get it. And most of us, however hard we try, simply can’t. As one woman on Twitter put it recently:

This was in answer to a thread that I imagine many if not most women will relate to, describing repeated and utterly inexplicable (at least for any reasonable reason) levels of unwanted attention and intrusion from men of every age and position. For no other reason than that they were men and the object of their attention was a woman; and that, to them, gave them licence.

Some of the male responses, of course, were predictably disastrous: be more careful; teach your daughters how to stay unobtrusive. Others sought to be helpful, talking about learning to “own your space”. Missing the point, gents: some of us, too many of us, create a threat environment that makes it simply unsafe for women to ignore male presence in many spaces.

My recognition of this reality for women means I absolutely support the existence of women-only spaces. It’s not discriminatory for women to want places where people like me don’t belong. It’s simply safety. The chance to let the guard down. To relax. To not be exhausted. At least for a while.

And – while I know I’m entering a minefield here – it also means that while I’m just as much for trans people’s rights as I am for anyone else’s, I don’t see as inherently discriminatory the idea that women born as women might need, still, to carve out corners of the world which are theirs alone. If you’ve grown up as a child, a teenager, a woman with this as your lived experience, what right do I have, knowing nothing of how that constant risk assessment will grind at your soul, to deny you a place where the shoulders can drop, the breath be released and the walls come down?

This isn’t an “all men are awful” thing, either. It’s not a shout against all possessors of a Y chromosome. Hell, I’m one. I’m sure I’ve inadvertently made women uncomfortable at times in the past, and I’m sorry for that. But that doesn’t make me evil.

All it does do is put an obligation on me to recognise this reality. To account for it. To watch my conduct and consider how, without meaning to, I might be ringing someone’s alarm bells. And to stand up in support if I see other men behaving like this.

This isn’t “compromising my freedom”. It’s not me being woke. It isn’t PC gone mad.

It’s about me caring about other human beings. Owning my actions.

Frankly? It’s about being a man.


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2021iii10, Wednesday: Will the press ever change?

Another instalment in that popular game, “Questions to which the answer is no.”

Yeah. Right.

Short thought 1: Hearing this afternoon, so a genuinely short thought this morning prompted by the above announcement.

There’s an old rule in journalism: any time you see a headline ending in a question mark, assume the answer is “no”. On the whole, it’s a cheap sub-editor’s tactic, to get controversy into a headline and attract readers to a story with a good deal less to say. A bit like the inclusion of “quotes” in a headline: it usually means the quote is unsubstantiated, but makes for an attractive top line. If the paper thought it was true, after all, they wouldn’t need the quote marks.

Which brings me, in a roundabout way, to the media and the royals. 

I have very little interest in the royal family. I recognise I live in a constitutional monarchy. As a lawyer, I am fascinated and concerned by the effect that has on how the law works, and doesn’t (the prerogative, for instance, bothers the heck out of me – particularly with our current government’s attitude to it). 

But the people? I’m no more exercised by them than I am by the thousands of celebrities whose names pretty much always escape me. I have impressions of them, but I realise they’re informed by very little actual information, as opposed to a mixture of propaganda and hit pieces.

Which brings me to the point. I’m painfully aware, as an ex-reporter, of just how poisonous the British press can be. How full of itself. And how utterly devoid of any ability to reflect, own its errors, and acknowledge any need for change.

You might say: a bit like the Bar, in some ways. True. But I think we’re finally facing up to our faults; not fast enough, but with a widespread realisation that our trade has been too white, too male, and too posh for far too long.

The press, on the other hand? It’s hard to read the “defence” of the media against charges of racism by the Society of Editors with anything other than incredulity. The difference in treatment of Kate Middleton and Meghan Markle tells its own story, for anyone with eyes to see. And there’s plenty more where that came from. SoE director Ian Murray’s comment that the Sussexes provide “no supporting evidence” doesn’t come close to passing the giggle test. Any half-way decent editor would red-pencil a line like that from copy they were handed in a hot second.

All institutions in the UK are tainted by bias and discrimination, built into their DNA. All institutions have a choice: face it, deal with it, do better. Or stick your fingers in your ears and shout loudly in the hope the problem goes away. 

I’m happy that apparently the SoE is riven in response to this self-satisfied, indefensible special pleading. And glad to see the letter by more than 200 journalists highlighting the SoE’s statement as a sign of “an industry in denial”. Although I’ve no great hope that anything will change.

(Incidentally, I saw in John Naughton’s newsletter last week that Bob Satchwell, an earlier director of the SoE, has just died. I didn’t know Bob well, but I knew him enough to think that he’d never have sanctioned anything as tone-deaf or simply ignorant as this. He was good people. He’ll be missed.)


Short thought 2: Some smart person (I wish I could remember who) said that the single most important job a leader has is hiring. Who they choose, to do what, tells you more about their priorities and values than anything else.

Which is why the hiring of Tim Wu and Lina Khan by the Biden administration in the US is fascinating. Tim Wu has done as much as anyone to put the principle of net neutrality and the dangers of what he termed information empires in the public eye. Lina Khan, meanwhile, wrote a seminal paper while at law school called “Amazon’s Antitrust Paradox”, and is widely seen as one of the most thoughtful critics of the narrow, “antitrust is all about prices to consumers and nothing else” idea which has crippled competition law in the US for decades and arguably allowed the tech giants to dominate as they have. 

Their hiring is a very strong indicator that the anything-goes days for tech are over in the US. Watch this space.


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