Tag: politics

2021iv7, Wednesday: Gaslighting by government.

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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 thought: This 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?

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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.

2021iv2, Friday: Mixed measures and madness.

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16 ounces. 8 pints. 32 degrees. Really? And thought-provoking writing on persuading the unpersuadable.

Short thought: I think in mixed units.

For long distances (and speeds) it’s miles (and mph). Being a Brit, all our roadsigns are in miles, so that’s simply how I know it at gut level. I can convert easily, but it’s always a conversion.

For short distances, it varies. Inches for anything between my thumb and my shorter than my arm. Metres for longer; centimetres or millimetres for shorter.

For almost everything else, though, it’s metric. I know I’m several kilos overweight. I can recognise a pint, but it feels like about half a litre.

Which means I can understand those people older than me for whom metric still feels alien. But I also recognise that for almost everyone under the age of, say, 25, who’ve lived and breathed metric their entire life, imperial is simply incomprehensible. 16 ounces to a pound. 14 pounds to a stone. 8 stone to a hundredweight. 20 fluid ounces to a pint. 8 pints to a gallon. 12 inches to a foot. 3 feet to a yard. 1,760 yards to a mile.

Let’s not even talk about the fact that the only other jurisdiction in the world which is a metric refusenik is the USA. Whose measures of volume are completely different to ours. Blessed inconsistency, indeed.

Compare that to the straightforward scaling by three orders of magnitude, from mm to m to km, from g to kg to tonne, from ml to l, and I can’t for the life of me understand why anyone would want – for any reason other than a blunt, brain-free determination to turn the clock back – to compel the use of imperial measures. 

Unless, of course, it’s all just yet another dishonest weapon in the so-called “war on woke”, which so often translates into the determination of those with power to keep it. 

I’ll leave it to the reader to examine the front page of Wednesday’s Daily Mail in the above context, since it managed to combine the use of fahrenheit (which, to her credit, my daughter described as “simply insane” when we tried without success to find a canonical reason why water froze at 32 degrees and boiled at 212) with a story on the latest race relations report which seems to have been designed by the government to provide fuel to “own the libs” rather than actually reduce discrimination or improve equality or equity. I’m sure there’s no connection. Not even in a Mail editor’s mind.

Someone is right on the internet: Adam Grant is fantastic. His book Give and Take wholly changed my view on how productive professional relationships function; a change which, I believe, has worked wonders for both my success and my happiness at work.

This piece is characteristically thought-provoking. Instead of looking at why a business leader makes decisions, he looks at how a leader’s mind can be changed. Specifically Steve Jobs, generally seen as not only one of the most successful, but also the most stubborn, arrogant and rude, businesspeople in recent decades. (I say that as a lifelong user and appreciator of Apple products. I can love what’s done by the house that Jobs built, and mourn his early death, and still criticise the man himself.)

Why pick this? Well, as an advocate, I spend my life trying to make a case for something. Mostly, judges are nothing like Jobs – not in their intelligence, which is sometimes breathtaking, but in that they’re neither arrogant nor stubborn. (Rude? I’ve been lucky. I know many that haven’t.) But if you can think through how to persuade someone who’s not inclined to listen, it’ll help you hone your points to razor-sharpness, and make your case take that critical leap into seeming the only sensible reading of the facts. 

Well worth a read. As, indeed, is what Grant writes in general. (Yes, there’s a newsletter. But it’s only monthly.)

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2021iii29, Monday: Wad some Pow’r…

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Why condemning a little less and understanding a little more leads to better advocacy, and better humanity. Plus: 20 years of a timeless operating system. And woodblock prints to take your breath away.

Short thought: I can date the birth of my fundamental politics to two things. The first was when we moved from Hertfordshire to just outside Stoke-on-Trent in 1987 (I was 16) and I came face to face for the first time with the destruction that government policy had wrought, knowingly, on people’s lives over the past near-decade. The second was in 1993, with a single phrase uttered by the prime minister of the day. It was John Major, now a Bencher of my Inn (the Middle Temple) who – in a country rocked (rightly) by the conviction of two 10-year-olds for the murder of a child far younger than themselves – told a Sunday newspaper that it was time to:

Condemn a little more and understand a little less.

To be fair to Major, who since leaving Number 10 has proved to be one of the saner, calmer and more thoughtful and understated politicians of my experience, he wasn’t saying understanding had to go altogether. Not for him – then or now – the blood-soaked hang-and-flog tendencies so common in the Tory party, and particularly in its current Home Secretary.

But still, it rankled then, and it rankled now. Still more did it reek to me after 9/11, when so often efforts to understand what drove such attacks was labelled almost as treachery. 

The mistake, as so often, was to confuse empathy with sympathy. To empathise, appreciated correctly, is to strive to see the world as another sees it. To understand a worldview. To see what drives someone to behave as they do.

This is not sympathy. Tout comprendre, ce n’est pas tout pardonner. It’s not agreeing with the person in question. One can empathise and still loathe, whole-heartedly, what someone does and why. 

Now, I admit I may not be the poster child for empathy. I’m as short of it as anyone else, on some days. But personally and professionally, I prize it – perhaps as a supreme virtue, from which wisdom flows.

Personally, because – as Sherry Turkle put it in a recent interview – it’s a survival mechanism. It saves you from seeing only the worst in people. It can show you that some behaviour you’ve interpreted as simple malice may have a deeper driver; something you can understand, so that it stops eating away at you and sets you free.

And professionally because, first as a journalist, then as an investigator, and now as an advocate, I’ve always been an asker of questions. It simply isn’t possible to do that successfully without empathising with the subject of the questioning. (Just ask anyone who’s any good at interrogation.) Be it an interview or a cross-examination, step one is to try to see the narrative as the other sees it. And only then craft the questions to take you where you need to go: be it facts, knowledge or the raw material for the argument you need to make. If you can’t empathise, you’ll get nowhere. 

So yes. Just as I mistrust anyone who’s certain, I mistrust anyone who refuses to show empathy. There’s something fundamentally inhuman about such a person. As Pratchett (I think) once said, true evil begins when you start treating people as things. And a lack of empathy is at the heart of that. 

Put more simply: Robert Burns, bless the Immortal Memory, was right. 

All our yesterdays: Other than the BBC Micro my folks bought me when I was a kid, I’ve only ever owned Macs. Between me and my beloved, we’ve probably had a couple of dozen. I’m comfortable on Windows, but I live in Mac OS. I have done since my college days, when my first modern computing was on the old-school all-in-one Mac SE, and continuing on from the first one I ever owned, a PowerBook Duo.

So I remember the travails of the late 1990s, when Mac OS was showing its age and Apple was trying and failing – often flailing! – to find a replacement. (Jason Snell tells that story well; venerable Apple site Tidbits does too. Not for nothing is Copland a bit of a trigger word for those of us around at the time.)

That came in 1999, with the developer previews of the brand-new Mac OS X (pronounced “ten”, although admittedly only by geeks and long-time Mac-heads). It was slow, it was buggy, and it was amazing. The first market release of OS X 10.0 Cheetah (the first of the big cat nicknames that lasted right through to 10.8 in 2012) came 20 years ago last week. 

Lord, the memories. So much has changed – when you look at the candy stripes and brushed metal in the original, the recollection can be rather painful. But as MG Siegler notes, the fundamentals of the interface really haven’t changed that much. “Beautiful,” he calls them. “Timeless.” I’d agree.

For those in need of a retrospective, Ars Technica does well. For the real nerds, the immense, and terrifyingly detailed, reviews by John Siracusa of each release from the first DP in 1999 through to Yosemite in 2014 are worth a look. Memory lane, people. Memory lane.

Someone is right on the internet: I’ve written before about Brain Pickings, the weekly email on a Sunday which rarely fails to produce something thought-provoking, heart-filling and beautiful. Yesterday’s email was all that, and more.

My love of woodblock prints is no secret either, so perhaps it’s inevitable that this email should suit me. But honestly, I don’t think you need to know anything about woodblock prints, or even ever to have seen one, for these to take your breath away. They’re by Kawase Hasui (I can’t write his name forename first; as a Japanese speaker, it feels disrespectful), made a Living National Treasure in 1956 the year before his death.

Words can’t describe. Please – just enjoy.

(I should add that Kawase – whose personal and family names, wonderfully, both have water characters in them, somehow fitting for an artist in a medium whose most famous expression, ukiyo-e, translates as “pictures from the floating world” – isn’t the only beauty in yesterday’s email. There were wonderful musings at the bottom of the message about the importance of treating love not as a noun, something you receive and which you must seek out, but as an active verb, a practice to which you commit yourself. A simple grammatical shift, but with such depth of meaning…)

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2021iii24, Wednesday: Does it add up?

JSJ1 Comment

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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2021ii10, Wednesday: “Conspiracy without the theory.”

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Some excellent, if depressing, writing on the modern prevalence and abuse of conspiracy theories. But also: fantastic new knowledge tools for Mac/iOS users.

Someone is right on the internet: I remember my first argument about conspiracy theories. It was decades ago: I was in India, on a gap year, in a cafe somewhere in Rajasthan. Jaisalmer I think, out in the Thar Desert. And some other Brit was expounding on some conspiracy or other. I took the other side: what I now recognise is the classic position of noting how improbable it was that everyone involved could collaborate so perfectly and secretly. I can’t remember what it was about; probably the Moon landings.

One of the many depressing things about the past few years has been the proliferation (and popularisation by people you really wish knew better for selfish ends) of conspiracy thinking, to genuinely poisonous and damaging effect. This piece does an excellent job of walking through – as it puts it – their “enduring allure”, noting as they do that the USA was founded on a conspiracy theory of a sort, and that “losers” in politics often turn to conspiracy theories and paranoia to explain the outcome. (A classic piece of writing, Richard Hofstadter’s “The Paranoid Style in American Politics”, noted this tendency more than half a century ago. He’s no more wrong now than he was then; I suspect we’d see strong echoes here, too.)

But then the piece takes a darker and scarier turn, noting that the turn now is towards – as the authors put it “conspiracy without the theory”. By which they mean the old days of obsessing over bullet trajectories (Kennedy) and flag shadows (Moon landings) are gone. Who needs actual facts to analyse when instead you can disappear down a rabbit hole of assertion like QAnon – something which, as has been noted, seems almost as tailor-made to deliver addictive dopamine hits to its adherents as a computer game?

Compared with this, the innocent era of the Bush administration – when people were shocked, shocked to hear an anonymous US government source declare that they “created their own reality” in contrast to what he dismissively referred to as “the reality-based community” – seem like halcyon days.

It just works: Those who’ve been reading my stuff for a while will be aware of (and may fairly despair of) my on-off search for the right tool for taking notes and keeping records. Scrivener, Ulysses and Notion have all come in for favourable reviews – and are, without a doubt, fantastic pieces of software. For the right user, each of them is probably spot on.

But none have settled for me. Scrivener’s clunky sync was a killer. Ulysses’ clumsy search and less-than-ideal tagging frustrated me intensely. Bear – which I’ve only mentioned in passing before – is an excellent “dump stuff for later” tool with the best tag system I’ve come across, and I still use it for that purpose; but is just too “flat” for my purposes. (I need ways of keeping info about particular cases together without relying on tags or keeping everything in a single file.) Notionwowed me with its versatility, but I need reliable offline working and easy import-export, and that isn’t it.

At least I’ve realised what my priorities are by now. Not all are deal-breakers, but all are important:

  • Portability. I don’t want my stuff locked up in a format or location I don’t control. So ideally files on the desktop or in a cloud share I trust, and Markdown as the format. 
  • Easy export. I need to be able to dump stuff into a PDF or Word document easily, with minimal formatting faff. 
  • Bringing stuff together. I need to have everything about one topic easily accessible.
  • Search. There’s no excuse here. Rock-solid, no-brainer universal search is essential. If you make me work for it (Ulysses, I’m looking at you), that’s a critical fail.
  • Linking, in both directions. I’d forgotten how much I love this. Not only must I be able to embed links to other files/documents in the system into any other file; ideally I want to see what links to the thing I’m looking at now. This is backlinking; it’s a very old-school hypertext function, but now I’m using it again I’m staggered how I survived without it.
  • Multi-platform. Being limited to the desktop doesn’t work for me. Admittedly my new machine is lovely; but my workflow absolutely embraces phone and iPad. I need convincing to do anything that blocks that.
  • Multi-window. I need to see two or three things at a time. 
  • Speed. I’m lucky enough to have good kit. If the software slows it down, that’s unforgivable. I’m looking at you, Word.
  • Keyboard shortcuts. Don’t force me to use a mouse or trackpad any more than I have to.

In our new no-paper world, I’d very much recommend anyone else thinking through their own priorities. I’m very happy to discuss with mates what they need, and what might fit.

Me? Two new tools have presented themselves, both of which tick almost all these buttons. Both promise shortly to tick them all, although we’ll see what those promises are worth. 

First, there’s Obsidian. This is desktop-only, for now, which is a real pain. But it’s wonderful: in essence, a smooth, keyboard-led take on a Markdown wiki and knowledge handler with everything stored locally as individual text files, back- and forward-linked to high heaven. It’s not for everyone: it’s a kind of throwback to a primarily text-heavy world. But I just ran a 10-day hearing with everything in Obsidian: a master page for the case, with pages branching off (in separate panes) for each witness’s evidence, for my own notes, and for important background. All cross-linked and lightning-fast.

Then there’s Craft. I found this late last year, and frankly I don’t quite know how to describe it. It’s got some (though not all) of Notion’s virtues – a block-based structure where each paragraph on a “page” can easily have links, formatting and other things defined by easy keyboard shortcuts, or be turned into a link to a sub-page which in turn backlinks smoothly. It isn’t as versatile as Notion, but it’s happy offline, it’s quicker and smoother, and its exporting is excellent. Initially it was single-window, but that’s been sorted now. It’s cross-platform all the way, too. The one fly in the ointment is that right now it stores its own data; but its developers promise the ability to host data wherever you want within weeks, and their pace of evolution is excellent, so I’ve some faith they’ll manage it.

For the moment, I’m sticking with Craft. It’s smooth, it’s elegant, it’s designed by people who clearly care deeply about their users, and much as I love Obsidian (and I do), for now cross-platform ease is too important to sacrifice. I’d strongly recommend it.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii8, Monday: The intellectual dishonesty of pushing buttons.

JSJ3 Comments

New rule: if you use a dog-whistle, I’ll stop reading. Fair enough? And a lovely rabbit-hole for word-loving geeks.

Short thought: By way of a tangential follow-on to the stuff on tools for thinking the other week, there’s been something else on my mind. And I recognise that I may be about to sound doctrinaire, narrow-minded, closed.

Which is ironic. Because that’s more or less the charge I’d level at the people to whom, I’ve decided, I’m not going to bother reading any more. 

That’s not entirely correct. I’m not shutting people out altogether because of something they write. I’m shutting the particular thing they’ve just written. 

Because I’m tired – so tired – of push-button words. You know: Woke. PC. Gammon. Karen. Cancel culture. TERF. And so many others.

(A point of clarification. This is about the use of the label. Not whether I agree or disagree with the underlying position it (mis)represents. As I hope I’ll make clear in a second.)

I think it started with “Remoaner”. Yes, I voted Remain. And I still think Brexit was a bad idea, done worse. (As with all things in UK politics, there’s a Yes Minister quote to fit the moment: “If you’re going to do this damn’ silly thing, don’t do it in this damn’ silly way.”) But among my friends are those who think otherwise, and we’ve come to understand and respect (and even care for) each other better because we started from assuming we were all acting in good faith. Still, every time I read a piece of writing with the word “Remoaner” in it, I just stopped reading. I thought: you’re pushing your readers’ buttons. You want them immediately to leap over the pros and cons, and move right on to an assumption of idiocy and bad faith on the other side. And that’s just wrong. 

And when I started thinking like that, I realised that so much of modern political discourse, on all parts of the political spectrum, was doing the same thing. In sports analogy terms, playing the person not the ball. Pushing the button, delivering a nice big dose of we’re-right-they’re-wrong dopamine, rather than actually trying to make the case. It’s not dog-whistling, because it’s not even bothering to hide in plain sight. No; it’s waving other views aside. Apply label, turn off brain, stop listening, assume the worst. 

In a way, it’s akin to what I’ve long regarded as the ultimate intellectual dishonesty: the straw-man fallacy. Even those not familiar with the term will recognise it straight away: the (deliberate) misrepresentation of someone else’s view so it’s easier to (ostensibly) refute. A classic example: we’re debating the notion of a just war. I say: I have an ethical problem with violence . You say: “So you’d be happy to watch your family get killed and do nothing about it.” You’ve taken my position to an absurd extreme, so as to make a case against something I’ve never said and don’t think. (It’s only a couple of years ago that I learned of the opposite, steel-manning. Which I love. As a barrister, it’s the key to winning a case: construct the best possible version of the other side’s argument first, and only then find a way of beating it. When I lose a case, it’s often because – on reflection afterwards – I realise I didn’t do that as well as I should have.)

Labelling someone as “woke”, for example (or, a few years ago, an SJW; before that, PC), is similar. You freight their position with a bunch of assumptions that you know “your” side will recognise and abhor. Then you go straight on to argue against that caricature rather than against reality. It’s a fundamentally dishonest way of doing things, whether you mean it that way or not. It short-circuits genuine thought and engagement, in favour of scoring points and pointing fingers. And whether it’s from the right, the left or somewhere in between, it’s abhorrent.

So that’s my rule. When I encounter a push-button word, I stop reading. 

I know it’ll mean I don’t read some things that perhaps I should. But attention is a very limited resource, for us all. And if you’re going to waste mine (and others’) by pushing buttons instead of engaging brains, I can’t be bothered with you. I’m going to turn the page. Close the tab. Move on. And read someone I disagree with who’s got more integrity.

Someone is right on the internet: Geeks like words. It’s part of who we are, on the whole. We have whole languages sometimes (conlangs – love ‘em). But even when we don’t, any fandom has words, phrases, which carry in their etymology histories of how our genres have evolved that we’re probably not aware of in the slightest. 

Which is where the Historical Dictionary of Science Fiction comes in. Find a word or phrase. Jump drive. Nanobot. Sentient. And trace it through writings and media over the past 70 years or more. It’s a lovely rabbit-hole. Enjoy.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

A deal. At long last.

JSJ2 Comments

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

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

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

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

But a couple of things stand out.

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

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

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

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

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

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

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

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

Unlawful? Or – far worse – dangerous?

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Test and trace relies on trust. Undermine it, and people’s lives are at risk. If the Times is to be believed, companies gathering customers’ data on behalf of restaurants and bars are doing just that.

If there’s one thing that the nations which have succeeded in containing Covid have in common, it’s that a robust, successful and trusted test/trace/isolate system.

Technical skill and fearsome logistics are critical, of course. But trust is the key. If citizens don’t trust the system, they won’t comply with it – or won’t even participate to start with. And then we’re stuffed.

Which is why today’s Times story (paywalled) is so disturbing. It alleges that companies which run services gathering details of customers for restaurants, bars and pubs via QR codes are holding onto the customer data and selling it on. If that’s the case, the companies (and the outlets they’re hired by) are not only acting in a way that’s potentially unlawful. What’s in some ways worse is that they’re undermining the trust without which a test-and-trace system is useless. And that puts us all in genuine danger.

Assumptions

Of course, I don’t know if the story is true. I haven’t seen the T&Cs that allegedly customers are being asked to sign up to. And I don’t know how transparent the process is.

But let’s work on the hypothesis that the story is essentially true, but also that there’s at least a nod to data protection rights by the companies concerned. Let’s therefore assume the following:

  1. Customers snap a QR code;
  2. They’re taken to a web page on their device which asks for their personal details;
  3. there’s either a privacy policy on the page, or a link to one;
  4. customers are asked to consent to the policy as they provide their personal details.

Note that it isn’t clear whether consent to the policy is a condition of providing details through this service (and thus a refusal means they can’t come in), or whether the system allows customers to provide their details (and thus permits entry) even if they refuse to consent to the privacy policy.

For the purposes of this analysis, I’m going to assume it’s the latter. (Consider this a form of steel-manning.) I’m also going to ignore the distinction between data controllers and processors. Without seeing the contractual arrangements between (say) pub and QR firm, I don’t for certain know who’s in which box. For this purpose, though, it doesn’t really matter. Both roles need a lawful basis on which to process customers’ personal data, and that’s the focus of this analysis.

Is it lawful?

Let’s start with the easy bit. Collecting customers’ personal data for the purposes of supporting NHS Test and Trace is not only lawful. For restaurants and so on (I’m going to just say “restaurants” from now on), it’s been obligatory since 18 September under the Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020. Of course, these regulations also require the NHS QR code to be displayed as the primary option – so it’s hard to see why anyone would snap a private sector code instead of that one. (Despite justified earlier concerns, the current NHS app is in fact pretty privacy-friendly, working as it does – at long last! – on the Apple/Google keep-it-on-the-phone basis instead of the abortive, and thoroughly arrogant and foolish, previous centralised approach.)

But if someone doesn’t want to use the NHS App, the restaurant is still obliged to collect the data another way. Whether through a QR code, or otherwise. And till 18 September, restaurants were doing so because they were asked to, although it wasn’t a legal requirement.

Which is where the data collection firms stepped in. Paper forms are a pain. Unless you pre-book everyone (in which case you’re collecting the data in any case) far better to allow the walk-in customer to snap a QR code, fill in a few details and bingo! All done. With the bonus that your own staff aren’t harassing and annoying your customers, to their detriment and yours.

But here’s the problem. Clearly collecting someone’s name and contact details means processing their personal data. And to do that under the Data Protection Act 2018 and GDPR, you need a lawful basis: at least one out of consent, a contractual requirement, a legal obligation, the data subject’s vital interests, a public task, or your legitimate interests.

Note that each purpose for processing needs its own lawful basis. So just because one purpose is fine, that doesn’t mean others will be too.

If all you’re doing (or were doing prior to 18 September) is to take records for Test and Trace purposes, holding them solely for that, and junking them after the recommended 21 days (or even a bit longer if need be), I don’t see a problem. As of now, it’s both a legal obligation and likely a public task, and a fair argument can be made for it being in the vital interests (that is, protection of life) of the data subject as well. Honestly: I can’t see a challenge on this basis holding up.

But what about keeping the data for marketing or onward sale?

If you’re the restaurant itself, and you make clear to the customer that they have the option of allowing you to use the data for you to stay in contact with them – and, critically, they can say no as easily as saying yes without being barred from entering or otherwise inconvenienced – there’s not a huge problem. So long as you explain really clearly, in plain English, what you’re doing, make it easy for customers to opt out later, and don’t abuse the data for other purposes.

In other words, you’re relying on consent. There really isn’t any other basis that works. Legitimate interest is a non-starter, since your interest in hanging onto the data for marketing purposes without consent is dwarfed by their interests in privacy; your contract with them to serve them food in exchange for money can easily happen without contact details; and the others are just ludicrous. (Sending them emails about your Winter menu will save their life? Please.)

And consent is tricksy. It has to be (by Article 4(11) GDPR) a “freely-given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she by a statement or a clear affirmative action signifies agreement”. It has to be possible to get the service in question without consenting to the data processing (Art 7(4)). And the data subject has clearly to be able to distinguish between the processing they’re being asked to consent to, and other matters.

I can imagine how a restaurant could write a request for customers to allow it to retain the test-and-trace data with sufficient clarity and choice.

But I really struggle to see how the business running the collection on their behalf could do so, in any meaningful sense. Or at least, in any way that wouldn’t drive away the vast majority of customers.

Let’s take the best-case scenario. ([Steel-manning], after all, is a good intellectual and ethical practice.) Let’s say the QR code landing site says, in capital letters (to paraphrase): You’re filling this in for health protection purposes. But alongside that, we’d like to hang onto the data you provide, sell it to data brokers and other customers, and to keep doing so for the next 20 years. Please tick this box if you’re OK with that. But you don’t have to, because it’s totally optional. So feel free not to bother.

Good luck getting anyone to tick that. And even that’s arguably non-GDPR compliant, since it’s hard to work out how anyone could meaningfully later opt out.

What seems rather more likely is either a link to a lengthy privacy policy, coupled with a box that asks people to confirm they’ve read it, or at best something mealy-mouthed about “other purposes” or “providing you with information and services you may like”. In either case, I don’t think this comes close to sufficing.

And consider the context. People are providing their data for what they think is a vital health protection purpose. Against that context, satisfying the Article 7 requirement for consent to a collateral purpose to be clearly distinguished from “other matters” is, in my view, a pretty high hurdle. Nothing short of crystal clarity is likely to suffice.

So if the Times is right, I suspect the 15 firms that ICO is apparently investigating could have an interesting time.

Why do you say it’s dangerous?

Lawfulness, or rather a lack of it, is bad enough.

But what really concerns me is the trust factor. We’ve had enough trouble in the UK with people mistrusting the Government’s actions and motives. Whether it’s people claiming the North is being treated far worse than the South as far as lockdowns are concerned, or the furore over the infamous Cummings odyssey in May, or the frustration of the UK Statistics Authority over what it saw as misleading or even manipulated test statistics, it’s clear that for many the predominant response to Coronavirus restrictions is now suspicion, rather than acceptance or support.

And that’s the public sector. The private sector, meanwhile, is being asked to police the restrictions – restaurants, for instance, have to refuse entry (under regulation 16 of the Regulations linked to above) to anyone who refuses to use the NHS QR code and won’t give their information otherwise. This is hard enough for restaurant staff. Imagine how much worse it could be if the refusenik customer thinks their data’s being stolen at the same time.

The real threat, though, is to broader trust. As I said earlier, the countries who are coming through this nightmare without terrible social and economic damage (not to mention, of course, with far fewer deaths and debilitating illnesses) are those with political leaders who have played it straight. Who haven’t exaggerated or appeared to use Covid as a tool for other political ends. Who’ve shown that this isn’t just the highest policy priority, but the only one that matters. And who’ve shown that competence is more important than ideology or loyalty.

In other words: those whose leaders have taken trust seriously, and done everything in their power to earn it, every day. It’s not that they haven’t made mistakes. It’s that they’ve been recognised and learned from.

We have a trust deficit. It’s killing people. Anyone deliberately or recklessly (as opposed to accidentally or inadvertently) undermining that trust is playing with lives.

And when you do something that discourages people from engaging with test/trace/isolate, you’re doing just that.

Lies and freedom. They don’t mix.

JSJ4 Comments

“All politicians lie,” so they say. No; all human beings lie. What matters is what lie, when – and what it does to your ability to choose.

I’m a sucker for a series.

By which I mean a sequence of books (for preference) or a good serialised TV show. Genre, of course – you can critique me all you like, but good fantasy/scifi/etc, written with love and care, can’t be beat.

Pratchett’s Discworld*. DS9 – particularly later seasons as the story gained pace. The Broken Earth. B5, of course, and Farscape. Aubrey/Maturin. Rivers of London. And Dresden.

A long-running tale is part of it, to be sure. But the key is writers and creators who let their characters grow and change over time, rather than remain stable as the world shifts around them. It’s a privilege to be part of that.

My problem, particularly with books where there’s been a long gap between instalments – and I recognise this may just be me – is a tendency to want to re-read the whole series before diving into a new one. Which, with the Dresden Files, is taking a while.

Sometimes, though, doing this unearths gems you may have missed the first time round. There’s a couple buried in Ghost Story which hit me squarely between the eyes – and made me think about what I respect, what I despise, and why I make the distinction.

Late in the book – and I won’t spoil it with too much context for the uninitiated – the main character, Harry Dresden, is talking to someone far mightier, but also far gentler, than he. That person’s mission in life is to preserve people’s right to choose, because good and evil mean nothing unless that fundamental human right is preserved. He notes that a particularly vicious misfortune which befell Harry was born of a particularly well-crafted and well-timed lie: convincing him that what was, wasn’t, and making him think he had no choice but to walk down a bad road.

And the character says this: “When a lie is believed, it compromises the freedom of your will.”

That sticks with me. We all lie. Yes, we whinge about politicians doing it – but we all do. Mostly for self-protection. But there are big lies and little lies. And the difference is found not in the extent of the untruth, but in the anticipated consequence.

So a lie designed and intended to sway the world, to destroy the chance to make an honest decision: that’s the lie that’s unforgivable.

Perhaps this is why our profession’s greatest sin is to mislead the court. Sure, represent your client. Highlight the truths that help. Play down those that don’t. Tell the story in the best way for your side – the most believable way. But to mislead the court – even by hiding a relevant authority that doesn’t help – is to rob the tribunal of its chance to make its mind up. It’s not persuasion. It’s a con.

It’s also why I reserve a special hatred for con artists. Sure, I can admire the artistry bit – sort of. But the most successful cons which turn their marks into their best salespeople. Whose self-esteem has been warped by the lies, such that it can scarcely survive if the lies are challenged.

And that inevitably leads me back to politics. As I said, all politicians lie. They’re human. Sometimes to make life easier. Sometimes to protect secrets – whether for fair reasons or foul will depend on the circumstances. Sometimes to protect a confidence.

But outright lies, told to sway and shape opinion, when it’s clear on close inspection that the teller knows perfectly well what they’re doing? That’s treating people as pawns. Playthings.

As marks.

Some thinkers take this further. Harry Frankfurt’s famous essay (and later book), “On Bullshit“, made a distinction between lies on the one hand – where the liar at least placed some value on the truth, prizing it in the act of obscuring it – and bullshit, where the teller simply didn’t care what was true and what wasn’t as long as it served their purpose. It’s a distinction that has been often criticised.

I’m not sure where I stand. I see the distinction, and we do seem to be swimming nostril-deep in particularly noxious and damaging political bullshit in recent years. (Brexit, Johnson, Corbyn, Trump, so many others. Lord, the list goes on. And a special mention for Michael Gove, whose Ditchley speech was an example of extreme – and, I can only conclude, calculated – intellectual dishonesty.)

But I think I care less about the lie-vs-bullshit axis than I do about this question of choice. Whether in politics or people’s personal lives – think of abusers warping the world to rob their victims of a vision of anything different, for instance – robbing people of the freedom to choose feels like the big differentiator.

Dan Davies, author of a wonderful book called “Lying for Money”, put it particularly well, in something he wrote getting on for a couple of decades ago entitled “Avoiding projects pursued by morons 101“. Seriously, read it – it’s not long. But it boils down to three rules, all of which focus on lies and testing them:

  • Good ideas do not need lots of lies told about them in order to gain public acceptance. (If people won’t buy into them without being lied to, that tells you everything you need to know.)
  • Fibbers’ forecasts are worthless. (You can’t mark a liar to market. You can’t hope to fudge their numbers towards reality. If a liar says “this is what will happen”, the only safe thing is to assume the opposite.)
  • The vital importance of audit. (Any time someone won’t let their predictions or their advice get tested against reality, or moves the goalposts mid-game, run. Immediately.)

Put differently: If you catch someone deliberately lying to you, so as to change your mind about something important: that’s it. They’re done. Stop listening to them. Now.

You can accept lies as a fair form of discourse. Or you can – while accepting that we’re human, and so we fail – focus on the right to choose with your eyes open.

You can’t have both. And anyone who favours option one? Don’t trust them. Ever. About anything.

* I’m gradually re-reading the whole Discworld saga. Taking it very, very slow. Essentially to leave till the last possible moment the time when I pick up the Shepherd’s Crown – because it will be the last new Pratchett I ever read. And that hurts.