DAT Green

The FAFO of Harold Godwinson: how the Bayeux Tapestry tells a moral tale and a constitutional story

14 October 2026

Anniversary of the Battle of Hastings

Looking at a great work of medieval sequential art

The Bayeux Tapestry, as convention requires we call the embroidery currently on show at the British Museum, is a familiar thing.

It is so familiar that it is difficult to look at it and and think about it afresh.

It is the stuff of a thousand book plate illustrations.

Indeed, it is almost impossible to buy a book about Norman history without those figures on the cover.

The Tapestry dominates our visual imagining of the conquest of 1066.

Yet for a long time – centuries – the Tapestry was essentially unknown. There is no doubt that it was created quite soon after the events it depicts (the various details of the weapons and ships depicted tell us this) but its existence was only recorded centuries later. And it was not really known about in England until the 1700s.

This lateness means two things.

First, the Tapestry was a late addition to our understanding of what happened in 1066. For hundreds of years the conquest and its effects was understood without these helpful illustrations: the pictures came later, so to speak. In this way, the Tapestry joins (say) Beowulf and Sutton Hoo as latter-day aids to our understanding of the medieval period.

Second, the Tapestry was hardly a successful work of propaganda. One of things which ‘everyone knows’ about the work is that it is – it must be – Norman propaganda.

But is it?

Although the historians’ consensus is that the Tapestry was made in Kent, there is no evidence that it was shown in England and there is also no evidence that it was intended as propaganda for the consumption of the English.

Not everything was – or is – about us.

The evidence is that it was shown in, and intended for, the audience in Bayeux. And that audience hardly needed convincing of the merits of the Normans and their overseas activities.

If the Tapestry was intended to be propaganda then it was rather unsuccessful propaganda.

It does not seem to have been shown in England, and the English did not even know about it for centuries.

The purpose(s) of the Tapestry is(are) likely to be otherwise.

Let us approach it from a different direction.

Certain works of art perhaps need to be seen in their intended context to be properly appreciated.

A great movie, for example, maybe should be seen on the big screen, and not on a television, and still less on a handheld device.

Having gone to see the Tapestry at the British Museum on a relatively uncrowded press viewing, one thing became obvious – indeed it was a revelation.

The Tapestry seemed best appreciated at slow walking speed.

(You can also do this with the close replica of the Tapestry at Reading town museum, which is warmly recommended to those who do not want to join the crowds in London.)

At slow walking speed the story unfolds, almost like a work of animation.

Historians do not think the Tapestry was ever put on, say, a couple of spindles and watched like a modern cartoon film, but if it was you really would not be surprised.

And at slow walking speed one realises another thing.

The Tapestry tells a story.

“Yes – oh dear yes – the novel tells a story.”

E. M. Forster, Aspects of the Novel

But what story does the Tapestry tell?

One story it does not tell is of a long-prepared conquest.

Duke William does not start getting together his invasion force until after Harold breaks his oath and becomes king of England. The invasion fleet is then depicted as being put together rapidly, almost like the A-Team television show loving it when a plan suddenly gets together.

The point conveyed by the Tapestry is that the invasion was a reaction to the Harold reneging on his promise. The necessary implication is that had Harold not reneged on his promise then there would not have been a military conquest. There would not have need to been any military exercise.

Nor does the Tapestry really tell the story of that conquest being successful – at least not in what seems to be the slightly truncated version which has survived. The work cuts off at the point the English are fleeing from the battle and it does not tell us what happens next. Historians tell is that a missing final section is likely to have William on the throne of England (neatly bookending Edward being on the throne at the beginning and calling back to Harold being on the throne halfway through).

But even with that happy (at least for William) ending, the Tapestry tells us nothing about how William then imposed and consolidated his power.

Indeed those devising and compiling the work in the late 1000s had no idea that the conquest of 1066 would last. Another invasion of England in 1016 had come and gone, and England in the eleventh and twelfth centuries was not notable for its stability.

We know that 1066 and all that happened to be the last military conquest of England, but the embroiderers did not, could not know this. The year 1066 could have ended up as half-forgotten as 1016. Those who devised and compiled the Tapestry were not intended to show something they thought would last a thousand years.

Again, the Tapestry was not – is not – all about us.

The Tapestry is a work of sequential art.

(Here I must credit Scott McCloud and his brilliant work on understanding comic art.)

The Tapestry is intended to tell a story – or stories.

Leafing through the plates in an expensively illustrated book, or clicking through frames and captions on a computer screen, does not convey the same flow as following the story (stories) in person.

And the story is (or at least the main story is) that of the English nobleman Harold Godwinson: about how he came to freely make an oath on the relics of Bayeux, how he then reneged on that oath, and the consequences for him of doing so.

(Here I must credit a stimulating conversation with the great historian Marc Morris, whose books you must buy and read.)

The first part of the Tapestry – some fifteen or twenty steps – is about Harold and how he ended up at the court of Duke William.

It is pretty much a bromance.

William saves Harold from capture, Harold saves William’s men from quicksand, they hunt together, they battle together, and William presents Harold with a gift at court.

It is all very sweet.

More Brokeback, than Bayeux.

And at the end of this (literal) courting, Harold makes an oath to William, presumably of fidelity to William and to the claim of William to the throne of England.

The oath is not at the cathedral of Bayeux, as historians tell us it was not yet consecrated, but it seems at least close by the town.

Relics (of it seems British saints) have been carried to the oath-making – they are depicted in portable reliquaries.

And having these relics at a central place of the story makes sense when you realise where the Tapestry was intended for.

The Bayeux Tapestry is, unsurprisingly, about something in Bayeux.

The Tapestry was not – is not – all about us.

Oaths were important.

(Oaths are a reminder that binding legal obligations can be created in entirely oral cultures. Written instruments came far later.)

Oaths made over the relics of saints were important.

Oaths made over the relics of saints at Bayeux were important.

Oaths made over the relics of what was to become the cathedral of Bayeux were certainly not to be taken lightly.

The Tapestry may not have been intended as propaganda to the English, but it certainly had a powerful message for those who attended, and swore oaths and made other promises and commitments at, the cathedral in Bayeux.

Look at what happens when someone breaks such an oath.

Look at what happened to Harold Godwinson.

That the Tapestry tells the story of the FAFO of Harold Godwinson makes sense.

The import of that story did not depend on what happened next in England after his defeat and death.

And the import of that story did not depend on Duke William’s claim to the English throne being based on a promise from King Edward, or by marriage and succession, or by conquest.

All that matters for the story is that Harold Godwinson freely made an oath and then broke it, and that in turn broke him.

But for this story to work, the oath had to be voluntary.

An oath given under duress negates the binding nature of the oath.

And that is one reason why the first part of the Tapestry sets out in detail the bromance between William and Harold. You have to believe that it was a happy and essentially equal relationship.

Another reason is, if you think about it, Harold had absolutely no interest in making such an oath or giving such a promise.

He was in prime position for succession in England: why undermine his own self-interest by volunteering such an oath to a powerful rival?

But if he has a good relationship with William based on mutual respect – and William having saved him from captivity – one can just about imagine Harold giving his chum and saviour William such a valuable gift.

Of course, it is unlikely that Harold Godwinson volunteered such an oath or promise.

If there ever was such an oath, then it was probably given under duress and thereby worthless.

Anyone who cared about such a thing in England would have probably known or realised this, thereby again discrediting the Tapestry as propaganda.

But if the Tapestry was not intended for English consumption, but for the edification of Bayeux worshippers, that pesky detail does not really matter.

As well as telling a moral tale the Tapestry is interesting about constitutionalism and kingship.

As the historian Leonie V. Hicks avers, the notion of a ‘rightful’ king is misconceived at this time. There was no neat binary between competing claims, with one being legitimate and other other illegitimate.

Like a bouquet tossed at a wedding, a crown was very much up for grabs.

You could put together a plausible claim – succession, inheritance, marriage, invitation, oaths, conquest, whatever – but the king was whoever the king was. The pleasing affirming narrative came later.

In the Tapestry the legitimacy of the oath stands out.

The (literal) illegitimacy of William (‘the Bastard’) is not mentioned and is not relevant.

And when Harold takes the throne he is shown to be as much of a king as Edward was, and as William was to become.

The Tapestry does not show any indication that Harold is not a legitimate king.

The Tapestry also shows that once one was a king – or a duke – then the powers were in place to exercise.

Duke William commands that Harold be released by Guy and then orders an invasion fleet to be quickly put together, and Harold commands his men. There is no question about what kingly – or ducal – power meant, once one had it.

What was fluid was how one obtained the position, rather then what the position then entailed.

And so the Tapestry tells a constitutional story as well as a moral tale.

Go and see the Tapestry at the British Museum – or the excellent replica at Reading (close by the train station) – and see what story you think is being told, rather than projecting on to it the story told by others.

Make a promise to yourself to do so.

And don’t break it.

The Manchester City decision shows the costs of an aggressive litigation strategy

5th October 2026

How the club’s lack of cooperation and putting forward dishonest evidence have put the club at a disadvantage

This is a post is on the decision by an independent commission on Manchester City. In particular, this post critically examines two passages:

(1) the conclusion that that certain factual witnesses for Manchester City gave evidence at the hearing that they knew to be untrue and so had been dishonest (at paragraph 29(b) of the decision); and

(2) the finding that Manchester City made concerted efforts to stop and frustrate the Premier League investigation (at paragraph 157 of the decision).

This post goes no further than the decision in setting out any matter of fact and, as a matter of opinion, this post is based on a close reading of the decision.

A quick word about bias. I happen to support a club similar to Manchester City which was bought about the same time as Manchester City and is also a big city club with a great deal of commercial potential. I hope, however, that if my club Aston Villa had been found to have done the same things as Manchester City I would write the same sort of post.

For there, by the grace of gods, go many large football clubs that could have been purchased instead of Manchester City.

Now let us begin.

Imagine you are a senior person in a corporation facing legal trouble.

How would you deal with this predicament?

There are perhaps two things to do.

First, you will need to have a grasp of the problem: you will need advice on the applicable law and procedure and an assessment of the evidence available. This should give you a sense of what is often called the “merits” of the situation. Most experienced and competent lawyers will give more-or-less the same view of the merits given the same law/procedure/evidence, regardless of who instructs them and for how much.

It is because the law/procedure/evidence will usually point in one direction that when a civil case is at a more advanced stage, when there the parties know the submissions of each other and evidence has been disclosed, that cases tend to settle. The stuff of civil litigation is often at pre-trial stage: what happens at trial will then be theatrics.

(And a similar thing happens with criminal cases, which is why many defendants change their plea.)

An early view on the merits is invariably essential.

Once you have a view on the merits, you then have to decide what to do.

One approach is to be conciliatory and cooperative. You know what evidence is going to come out at some stage, and you will have advice on what a tribunal is likely to do on the basis of such evidence. There is thereby no need to make things worse for your corporation. You may as well start earning credit as soon as possible.

Another approach is to be firm and robust. Here the plan is to settle on the best possible terms by showing that you are actually resolved to go all the way. Like military theorists who say one obtains peace by preparing for war, a party will often settle on good terms by showing (and convincing) the other parties that it is genuinely preparing for trial.

And then there is the aggressive approach.

This is when a party does things or does not do things that go further than then firm and robust presentation of a case, so as to have an effect on the other party and/or the tribunal and/or third parties.

This can include non-cooperation with investigators, or intimidatory communications or onerous cynical applications, and even providing false and misleading evidence, and so on.

Aggression is going further than is required to present a case in its best way.

A party that has the law and the procedure and the facts on its side will not usually need to be aggressive. Indeed, aggression is often the tell of a weak case.

Aggression can also be counter-productive. There can be additional sanctions and costs consequences for non-cooperation, and stridency can be held against you on appeal. Within a regulatory or litigation process, aggression can make little or no sense.

And so when a party is aggressive there can be an external reason.

A common reason for aggression is send more general signals: so as to deter and inhibit third parties from various courses of action. Litigation is deeply unpleasant for normal people, even when it is not aggressive. A sense that a potential counterparty will be aggressive is often the reason to not take them on.

Sometimes the bullying is directed so as to gain a better chance of favourable settlement, even though the merits of the case are against the bully. This can work even with appeals: a party loses badly at first instance, but still gets a favourable settlement because the winning party cannot stomach going through with an appeal.

Aggression can also be desperation: it gives the illusion of the management of a corporation doing something when there is actually nothing to be done. As they nod in their mirrors they can boast to themselves that they “went down fighting”, even when the fighting comprised punching themselves in the face.

And sometimes parties are aggressive for the same reason dogs lick themselves: just because they can.

There are no real consequences for them from the aggression: an adverse ruling is a cost of business, and it can be afforded. Here the aggression is the point.

None of these are good reasons for being aggressive in regulatory matters or litigation.

They are bad reasons, but they are reasons all the same.

The approach of Manchester City to their regulatory and disciplinary woes has been aggressive.

At an early stage of facing investigation, the management of the club will have had advice on the merits of its overall case.

They would have been told the applicable rules, the relevant process, and the likely assessments by the tribunal of the evidence available to the club.

Nothing in the recent decision of the disciplinary commission on that evidence would therefore have come as a surprise. It would have been within the range of foreseeable outcomes.

The question for those in charge of Manchester City would have then been how to approach the investigation.

And for some reason, the club chose to be aggressive.

We know this because of the finding of the commission:

“The Club made concerted efforts to stop and frustrate the [Premier League] investigation.”

(The club maintains it “is innocent of the accusations made by the Premier League and a comprehensive body of irrefutable evidence exists in support of all of its positions, relating to this case”. Note, not just a “body of evidence” – but a “comprehensive” body of evidence, and one which is “irrefutable”.)

At some point a decision would have been made by someone senior at Manchester City for co-operation not to have been provided to the investigation.

That decision would have been made at a senior level, and we can assume that the decision-maker(s) would have had advice in place on the consequences of not co-operating.

It would seem that the decision-maker(s) made the decision not to co-operate anyway.

The commission did not only say that the club made efforts to stop and frustrate the investigation (and here note also the two distinct words “stop” and “frustrate”).

The commission also used the strong word “concerted”.

Given that the sentence of the decision would be damning enough without the word “concerted”, then one can ask what is added by this word.

The word indicates that a form of conspiracy or collusion between more than one person, and that a deliberate and planned approach was adopted.

The word “concerted” thereby super-charges what would already be an unfortunate finding.

The commission would presumably not use this word unless there was substance in the (unpublished) appendices.

We also know that this finding that there were concerted efforts to stop and frustrate the investigation was made without the Premier League’s supposed further evidence that “the Club had committed ‘additional and perhaps more 39 egregious acts of non-cooperation’ by making inaccurate, dishonest and/or misleading statements when responding to questions from the Premier League about its financial arrangements in the course of its investigation.”

And so even without this alleged further evidence, the finding was still that there was a concert party of wrong-doing in respect of dealing with the investigation.

Given the likelihood of such a finding of non co-operation, it is difficult to see a good reason for the co-operation not to be provided.

And if there was not a good reason, then there was a bad reason – or no reason at all.

There are other findings which come down to Manchester City doing things which would then count against them in dealing with this case.

The club put forward witnesses who not only said false things, but who were dishonest.

Again, “dishonest” is a very strong word.

We do not have Appendix 6, but there would presumably be substance in there that not only was the evidence provided by club witnesses incorrect, but that the witnesses were dishonest.

Unless those witnesses suddenly went off on a frolic of their own at the hearing and gave dishonest oral evidence unexpectedly, then the club calling that evidence would have taken the decision to put the witnesses that would provide that evidence before the commission.

Note here that the commission do not say that this dishonest evidence was on trivial or irrelevant points, but that it was from “important factual witnesses” and it was false in “key respects”.

Maybe the club will reverse the commission’s decision on appeal.

Maybe the club will succeed in a further appeal to the High Court on a point of law or procedure.

If so, with either outcome, the evidence and legal submissions would have been enough without the aggression. The aggression was not required.

Maybe the Club will force the Premier League to “settle” the case before either appeal.

If so, the adverse findings of the commission are likely to still stand.

Nothing will really have been gained by the aggression – and a lot lost.

Indeed, the lack of cooperation and the dishonest witness evidence reduce the chances of any successfully appeal significantly.

The club is now not in a happy place legally.

Not only has it been found to be in breach of various regulations, the commission ruling uses terms like “sham”, “disguise” and “conceal” in respect of those breaches, on the basis of “strong, cogent evidence”.

But this post is not about that evidence. This post is about what the club did once it knew it faced an investigation about those matters.

It made a decision not to cooperate.

It made a decision to put forward witnesses to provide evidence on key points which was found by the commission to be dishonest.

Those were aggressive decisions the club made once it knew it was in regulatory and legal peril.

And it would have done so knowing the likely consequences of those decisions in the findings of the commission.

There is more FAFO than FA in the commission decision.

Manchester City have only got themselves to blame.

***

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Words and Things

25th September 2026

The dislocation between political discourse and reality

Both law and history are often about the relationship between words and what we can call reality. They are about other things too – physical evidence and artefacts and so on – but usually words are the thing.

One feature of modern politics is what seems to be a disconnect between words and reality. That the words used – phrases, texts – do not correspond with the world around us. They are merely tools of conveniemce.

Here, Trump is biggest culprit, though he is not the only one.

Over at Prospect today I have done a piece on “free speech” and “national security” and how such terms are used without them connecting to anything meaningful.

As a legal commentator (and history geek) I perhaps notice this disconnect especially painfully. Some observers may shrug, but it seems to me to be something which cannot be sustainable. There may be a crunch – a linguistic and conceptual equivalent to a credit crunch – where this dislocation will need to be re-set.

But until then we are left with something akin to a vehicle where the steering column and brakes do not connect to the wheels, leading to an impending crash which will not be a pretty sight.

Why everyone interested in law should see Coyote vs Acme

14th September 2026

How Coyote vs Acme is one of the best films made about civil litigation

(Some mild spoilers, caveat emptor.)

There are many good films and plays about the law. Many of these are about criminal law – and the criminal legal process readily lends itself to drama. There are some good films and plays about the civil law, usually about tort cases – negligence or defamation.

But there are few good films and plays about commercial law: the buying and selling of goods and services. It is often a dull subject, and dull subjects are hard to make into good drama.

We now have, however, a good – indeed great – film about commercial law. It is a film which everyone interested in law should see. It also happens to be a wonderful film generally, but it is one which also will be appreciated by lawyers and those who love them.

The film is Coyote vs Acme – a mixed live-animation movie in the tradition of Who Framed Roger Rabbit and as least as good.

Coyote is the client. He sees an advert for what can be called a ‘billboard lawyer’ and he decides to instruct the attorney for a case. The lawyer specialises in small product liability cases. The cases are genuine but not high-value and the defendant corporations do not contest the claims. There is thereby a steady run of settlements and thereby an equally steady revenue stream. On this basis the lawyer has a small practice employing a handful of people but is subject to very real financial constraints. At one point a staff member even wonders aloud about who will pay for the photocopying – perhaps the most plausible line of a dialogue ever in any film about law.

This is the sort of High Street (or Main Street) practice many lawyers and clients outside the heady world of the City (or Wall Street) will recognise. Such realistic depiction of a law firm would be a boon in any movie, let alone in an animated feature. And yet it is not the only note of realism in this movie.

Coyote’s envisaged case is not for a small claim. Instead, it is for a very big claim. He wants to claim in respect of all the devices manufactured by Acme he has used in his failed attempts to catch Road Runner. This intended scope means that it is the sort of claim which the billboard lawyer’s firm cannot properly handle. The practice is geared towards a succession of small claims that will settle before trial, and certainly not for a wide-ranging complex claim that would likely be contested to trial and then to appeal (and appeal).

The exact legal basis for the claim is not clear (at least on first viewing). It would appear that Coyote wants more than a mere refund for the costs of the kit. Indeed he seems to want damages – but damages for what? As he seems to walk away unharmed from each calamity a personal injury claim would be difficult to put together as a matter of evidence. Maybe he wants to recover for loss of a chance, in respect of not getting his desired dinner. Or perhaps it is for stress and upset. The basis of the claim is not explicit: he is the sort of client that wants to bring a claim and wants the lawyer to work out how such a claim is brought. Again, this is realistic.

Yet on the face of it, Coyote’s claim is weak. The various contraptions he has purchased were presumably not intended for catching Road Runners. If so, it would be hard to argue that they were not fit for purpose, if they were used for purpose for which they were not intended. Presumably the products are commercially off-the-shelf, but not for dropping off a cliff.

In this situation one would expect a reasonable law firm acting reasonably to decline the instruction. The case is not only not in accordance with the firm’s business plan, it would probably be inappropriate for a firm to take on a case for which it is simply not suited; the client is not clear as to the legal basis of the claim; and the claim itself looks weak.

Coyote, who is well used to setbacks, looks like he has encountered another disaster. He may as run headfirst into a law firm painted on the side of a mountain.

But – and this is where the movie shows a real insight into civil litigation – things change.

The firm somehow takes on the case. The defendant corporation makes an immediate and genuine offer to settle. This is not what many would expect in this circumstance. Acme’s reaction suggests there is more to this case.

And then Coyote does what many lawyers would dread. He refuses the generous settlement offer. He wants to go to trial. He appears to not want to be compensated for the wrongs committed against him, he wants his day in court.

Such a response presents a problem in most civil litigation. Almost all civil litigation ended in settlement: it is a form of structured deal-making and negotiation. Even clients who embark on civil litigation ‘as a matter of principle’ invariably settle. This is especially so in commercial cases, for commercial problems usually have commercial solutions.

The reason Coyote does not want to settle is that he has a collateral purpose in bringing this case (which this post will not spoil). Sometimes civil claims are brought as a means to a non-financial end, and this is one of those cases. But this stubbornness then undermines Coyote’s law firm. Taking on such a claim was already a huge risk: turning down a lucrative settlement is a catastrophe.

But then we come to the one thing on which almost all civil cases ultimately turn: evidence. One reason why most civil claims settle is that before trial that almost all the evidence is shared at an earlier stage, and the lawyers on both sides can advise their clients accordingly. Little usually can still turn on witness evidence at trial, however impressive the cross-examinations. Evidence and its disclosure before trial is key and usually determinative.

And evidence emerges that may transform Coyote’s case from what seems a weak claim to a strong claim. This evidence explains the corporation’s generous offer to settle. It also explains why the corporation changes approach and adopts aggressive litigation tactics. Acme’s general counsel comes under executive pressure to make this problem go away. The bully is bullied. Coyote and his lawyers are on to something.

There is a trial and post-trial proceedings – and these will please those who like courtroom drama. But the pleasure of this film is showing what happens up to and outside those proceedings, for what happens outside of the courtroom is the real stuff of civil litigation. And Coyote v Acme, in a cartoon world, captures the true nature of civil litigation wonderfully.

Some films can be appreciated on many levels. Everyone who is interested in law will have their favourites. Coyote v Acme – which almost was not released for commercial reasons – should be a favourite for anyone interested in the practicalities of bringing and defending civil legal cases. It is not only criminal lawyers who can have all the fun.

Litigation settlements and public policy

3rd September 2026

How settling litigation is being (wrongly) used for broader political goals

There have been two interesting examples of litigation settlements in the United States being used for wider political goals.

In respect of one example, the liberal minded may go Boo!

In respect of the other example, the liberal minded may go Hurrah!

This post sets out why one should go Boo! to both.

The first example is President Trump’s supposed settlement of his claim against his own government. You may recall that one proposed term of this settlement was the creation of a huge slush fund for his political supporters.

Boo!

Of course, such a move was illiberal and misconceived. It is not the proper purpose of a settlement agreement to set up arrangements by which over a billion dollars of public money can be distributed to those who broke the law in their political support for Trump.

This is instead the sort of thing for which legislation should be used – or not used.

Using what is, in essence, a private agreement to set up such a scheme is far more than a compromise between parties settling a law suit.

And the fund seems to have got little traction and looks like it has been abandoned.

It was an ingenious ploy – and quite, quite wrong.

The second example is the settlement by which various states in the United States have forced Meta to make widespread changes to its platforms in respect of child protection.

Hurrah!

Meta has thereby been obliged to make changes which it has long resisted and in respect of which it has lobbied politicians to oppose.

The state governments nonetheless worked out a means be which they could get their way.

As part of the agreement to end the litigation, Meta undertook to make wide changes in its commercial and technical practices.

But again, a settlement agreement is not the appropriate means to effect such wider changes.

One may clap and cheer at the result – a mighty corporation tamed – but we should also tut at how it was achieved.

Litigation is not an exact science and cases can and do go against expectations. The dynamics of a case change over time, and developments in the course of litigation can swing in various directions and at a range of speeds.

In this case, it so happened that Meta saw an advantage in settling on such terms. But that may well not have happened. And any settlement could have been on far less attractive terms to the government.

And public policy should not really be set by one lot of litigation lawyers in a contest with another lot of litigation lawyers.

Forcing such changes on a corporation like Meta is instead the job of laws and law-makers, governors and decision-makers.

That Meta and other corporations are so effective in stymying such rule making and decision making does not change this basic constitutional point.

In this case, yes – there was a good outcome for those who wish corporations to be more responsible.

But it would be better if such wider changes were done by those actually elected to make and implement public policy: by politicians after deliberation, and not by opposing litigation lawyers in a deal.

Over at Prospect I have developed this argument further.

Just like setting up public inquiries are often an admission of the failure of accountability of institutions that should have dealt with matters in real time and at the time, looking to litigation settlements to push through wide changes is also an admission of the failure of institutions to deal with matters as they should.

Settlements of litigation cases should have the narrow purpose of, well, settling a dispute between parties.

Settlements of litigation cases should not be used to settle wider political and policy issues.

Communications technology, human nature, and law

25 August 2026

Some things change, some things stay the same

Any commentator on human affairs has to reckon with two things: that certain things do not change, and that certain things do.

The job is to work out the difference.

In one way – perhaps the X-axis – there is nothing new under the sun.

And in another way – the Y-axis – there is always something new.

Pundits will also have preferences: some prefer the old and will disparage the new, and some will prefer the new and disparage the old.

Some pundits will be small-c conservative and others small-r radical.

But all commentators have to wrestle with the two same things: continuity and change.

Internet-based communications are new, at least in their technology and availability and reach.

For those who grew up before around the year 2000 it was actually quite difficult for most people to communicate outside of your own circle. You could write a letter to the newspaper or someone on the telly or print a pamphlet and hand it out, but that was about it.

To publish or broadcast to the world at large required access to resources in the hands of the few, not of the many.

Broadcasting houses and publishers were the gatekeepers.

(And, in the case of publishers, had been for about 500 years, since the spread of printing presses.)

Now, anyone with access to an internet connection could – in principle – publish or broadcast to the world.

That has to be counted as a fairly profound change.

And we maybe as a species have not yet fully realised the implications of that change.

But one thing cannot have changed that much in a couple or so decades: human nature.

Human beings are still a fairly cruel species.

Human beings were cruel before internet-based communications, and unsurprisingly human beings are still cruel after internet-based communications.

The only difference is the availability of new technological means for human beings to be cruel to each other, and at scale.

Some blame the social media platforms for enabling this cruelty – but the key word is “social”.

Yes, the platforms could curb and censor at lot more than they do (and they should), but the ultimate problem is still the people who use the platforms.

People are still people.

The problem this combination of the new and the not-so-new is that the law is so far not able to keep pace.

The law is most useful in concrete and practical inter-personal relationships where causation and a lack of remoteness between things can be established.

The law is less useful where causes and effects are two or three steps apart.

As such the law is not helpful in what one can call “stochastic” violence or terrorism – the general and vague encouragement of hostile and lethal acts against groups and individuals by instigators using communications networks.

And over at Prospect last week I set out how the law is similarly not helpful in mainstream and social media pile-ons – where each contributor will (at least to themselves) feel justified, but the aggregate effect can be dangerous, if not lethal.

We may be a cruel species, but we also have developed forms of law and government to regulate human conduct.

Survival of the fittest can sometimes mean political innovation and conceptual change.

It is perhaps no coincidence that human ability to make tools – weapons – to kill each other was more-or-less concurrent with our ability to organise ourselves in more complex political groupings, regulating the harm we can do each other.

But we are are now developing communications technologies which mean we can harm each other in ways undreamed of by our ancestors.

The question is whether, if at all, we can limit the lethal effects of this.

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When a (proper) coroner’s inquest is preferable to a public inquiry

20th August 2026

A short post in respect of the death of Jason Arday

This post is not about the alleged wrongs of the late Jason Arday, as the facts are not fully available; and this post is not about the circumstances of his death, again because the facts are not fully available. No opinion is expressed on either point, as I do not know enough to express an opinion.

This post is instead about a specific issue: what would be the appropriate means of addressing the concerns that many have about the circumstances of his death.

Some are promoting the idea of a public inquiry.

And there is something about the phrase “a judge-led public inquiry” that has a certain nod-along attraction. Such an inquiry sounds like a good thing in response to the demand that something must be done.

The problem is that public inquiries are often not good things.

Public inquiries are often the means by which “something must be done” ends up with nothing actually being done.

As this blog has previously averred, public inquiries are easily rigged, and often delayed, and their recommendations ignored.

Public inquiries are not magical devices.

Public inquiries are not necessarily your friends.

Indeed, public inquiries are far easier for the powerful to manipulate than, say, civil litigation.

The law provides a different and sometimes better mechanism for inquiring into the circumstances of a tragic death, and with formal procedures and legal powers.

Coroners’ inquests are by no means perfect – too often their effectiveness depends on the coroner, and coroners are of mixed qualities and abilities.

But coroners’ inquests are geared towards investigating the circumstances of a death. They are designed to do things which would be difficult for a public inquiry, however structured.

If a coroner’s inquest into the death of Jason Arday is somehow unsatisfactory then, yes, perhaps there may be reason for a specialist inquiry. But in the first instance, a coroner’s inquest should be allowed to do its job.

For that is what coronial inquests are for.

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Why Trump’s lawsuit against the BBC is not going well for him

4th August 2026

How he has fallen into a discovery trap of his own making

One point which was emphasised in the litigation department of where I was a junior litigator was to always prepare for trial.

Each step of the litigation process, from pre-action correspondence onwards, was to be regarded to be part of a whole. Each part related to another part.

Everything had to fit together.

This meant that, say, shooting off letter before claim with no real regard to what would – or could – happen later on was an absolute no-no. You do not just send a threatening letter, still less issue and serve a claim, just to press the other side into settlement. You had to assume that the case could go all the way, and plan accordingly. Sending threatening letters as an end in themselves could be left to other law firms. Only when you had thought through every contingency should any legal letter be sent or any claim brought.

Perhaps paradoxically, this meant cases did tend to settle early. As military theorists aver, for peace prepare for battle. The other side’s lawyers (if competent) can often tell if a threat or a claim is serious, and they will advise their clients appropriately.

This policy tied in with the maxim from the same litigation department: we may be disappointed by what the other side do in a dispute, but we are never, ever surprised.

(Always beware of the litigation lawyer who says in correspondence that they are “surprised” by something the other side do, for they are doing the wrong job.)

President Donald Trump does not adopt this cautious thought-through approach with his litigation.

He instead seeks to press the other side into an early settlement. He assumes that with a big enough threat that the other side will cave. For him threatening and issuing lawsuits are about creating and using leverage. It can be fairly described as bullying.

And in practice it often works. There are many law firms as well as other entities and institutions that duly surrendered at the prospect of a legal assault. Such appeasement may have good reasons or bad reasons, but it means that Trump does not need to do any more that raise his litigation standard. The other side do the rest – and do it to themselves.

But what happens when the other side does not give in, and they instead make a fight of it?

Then such a front-loaded tactic can come a cropper, for it is a tactic without a strategy. Like a chess player who can only think one move ahead, an aggressive litigator can quickly be placed at a disadvantage. For what can seem a good idea when launching a claim can soon be exposed as a very bad idea.

And so we come to the pratfall, the utter clustermuck of President Donald Trump’s lawsuit against the British Broadcasting Corporation.

This is an example of a front-loaded claim which is now coming apart because of its own contradictions. And we can watch this happen in real time. The admirable United States practice of publishing dockets online mean we can see the progress (or otherwise) of this lawsuit, document-by-document.

The circumstances giving rise to the claim are well known. The BBC showed (in the UK) a documentary about Trump where footage of a speech was misleadingly edited. This was a significant editorial mistake for which the BBC apologised. Executives even resigned.

Trump smelt blood. Trump often brings cases when there is an actual wrong. What he then does is use that wrong as a basis for far-reaching and excessive demands. In his case against his own Treasury there was a wrong about his wrongfully disclosed tax records. He is adept at spotting weaknesses and exploiting them.

And so Trump is suing the BBC in respect of this editorial error. The error was enough for a pretext for a claim, so as to exert pressure on a major media company. But there are problems with the claim. There seems to be, for example, no evidence that anybody in the United States even saw the documentary, let alone that the programme caused him any damage.

Yet when he brought the claim, he put the demand at five billion dollars (or ten billion dollars depending on how the claim is constructed, though the two amounts seem to be duplicated).

How could he possibly justify such an inflated demand?

Well, Trump asserted that the BBC documentary at issue had made him suffer “extensive economic harms” and “injury to [his] business and personal reputation inflicted by [the BBC]… thereby causing massive economic damage to his brand value and significant damage and injury to his future financial prospects”.

He further pleaded that this damage resulted in “direct harm to his professional and occupational interests, including, without limitation, the value of his brand, properties, and businesses, and severe diminishment and tarnishing of his reputation as a politician, leader, and businessman in the eyes of the American public and around the world.”

This, of course, is all twaddle – preposterous flapdoodle.

But it served the immediate purpose of rendering plausible the amount demanded. It was not just harm to him personally, but to his business. There was not just economic harm, but “extensive” economic harm. There was not just economic damage but “massive” economic damage. And so on. The claim could not be put higher.

Such bombast and bluster in support of an inflated claim has now brought problems to Trump, for the BBC did not fold but are defending the claim. Trump now has to evidence the claims of “extensive” and “massive” economic harm and damage.

The BBC are seeking discovery – disclosure – of documentation and other materials that are relevant to whether Trump has suffered any such economic harm and damage.

Discovery is an important pre-trial stage in any litigation case. What comes out in discovery will often make a break a claim or a defence, long before any trial date. No sensible plaintiff (as they are called in the United States, and still should be called here) should ever embark on a claim without an assessment of its own evidence base.

And similarly, no defendant should ever oppose a case hoping, Micawber-like, that something will come out in discovery. Discovery should always be a servant and not a master. But if a defendant is having to defend a case, discovery is a fair and effective weapon in the litigation arsenal.

Because of the wide-ranging claims of commercial damage, the BBC are entirely justified in seeking discovery of documents relevant to the claim. And such discovery is not limited to evidence in support or defence of the claim, but it covers any relevant material. The material does not even need to be admissible. The only exception is privileged documentation.

Trump does not want to disclose this evidence, even though the claimed damage is an element of the claim being brought. His lawyers resisted the application. His lawyers argued that the request is improper as well as disproportionate and unduly burdensome. The lawyers even said that such commercial damage could just be dealt with by a simple expert report at trial.

In essence, Trump and his lawyers were trapped between the broad terms of the initial claim and the direct consequences of those broad terms. What must have seemed a bright idea to force the BBC into early settlement is now a very real problem for them at this disclosure stage. They have to put up, else they may face a court order to shut up.

Because of the refusal to disclose the evidence, the matter went before the court. And in a readable and interesting Order, the judge sides completely with BBC. In paragraph after paragraph the judge hoists up Trump and their lawyers by their own petard.

This, of course, may not be the end of the case. Trump may appeal. Trump’s lawyers may come up with some ingenious device to get past this obstacle. Or the BBC may choose this moment to offer a face-saving sop to Trump so as to extract itself from this daft but dangerous litigation. This case is unlikely to have a clean break.

But until and unless something else happens, Trump and his lawyers have a problem – and it is a problem entirely of their own making.

Always prepare for trial.

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On the early release of prisoners

30th July 2026

The political-media addiction to lengthy sentences, and its consequences

Perhaps the greatest problem with our prisons policy is that of addiction: the addiction of those in politics and the media to demanding lengthy sentences of imprisonment.

Those in politics and the media cannot help themselves: every relevant news event means they have to shout louder for “tougher” punishments and shout down those who say or act otherwise.

But there are at least two further problems which flow from this problem.

First, and more urgent, is that of capacity: we simply do not have the capacity to imprison all those whom those in politics and media want imprisoned.

Second is a deeper social and cultural problem: imprisonment for reasons other than public protection or for the most serious of crimes is not a public good.

As I once set out in an article at the Financial Times:

Please use the sharing tools found via the share button at the top or side of articles. Copying articles to share with others is a breach of FT.com T&Cs and Copyright Policy. Email licensing@ft.com to buy additional rights. Subscribers may share up to 10 or 20 articles per month using the gift article service. More information can be found at https://help.ft.com/faq/gifting-and-sharing-an-article/what-is-a-gift-article/. https://www.ft.com/content/14628747-057b-3a97-be9f-7ba7ead51a42 Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime. What fiendish scheme would this diabolic agent devise? The demon could suggest a system where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them; where the offender is taken away from any gainful employment and social support or family network; where the offender is put in places where drugs and brutality are rife; where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and where all this is done at extraordinary expense for the taxpayer. A system, in other words, very much like the prison system we now have in England and Wales, as well as in many other jurisdictions.

“Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime. What fiendish scheme would this diabolic agent devise?

“The demon could suggest a system where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them; where the offender is taken away from any gainful employment and social support or family network; where the offender is put in places where drugs and brutality are rife; where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and where all this is done at extraordinary expense for the taxpayer.

“A system, in other words, very much like the prison system we now have in England and Wales, as well as in many other jurisdictions.”

One day, perhaps, we will look back at routine mass incarceration in the same ways most of us look back at the institution of slavery and witchcraft trials: what were they thinking?

But even if not, and this exercise in futurology is misconceived, there is still the immediate practical problem of there not being enough prison places.

Over at Arguably, the former (Conservative) justice secretary and author of the 2025 sentencing review David Gauke has a sensible and well-informed article on this practical problem. You can read it here, and it is worth taking the time to read.

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“The best time to fix a roof is…”

28th July 2026

We have three years to protect our constitutional arrangements before a possible radical illiberal majority at the next General Election

There is enough time left, just about, to fix parts of our constitutional arrangements before the next general election. This is important, as there is a non-trivial possibility of a radical illiberal majority at that general election.

Of course, given our (largely Victorian) doctrine of parliamentary supremacy, and given the general deference our courts give to the executive, there is little which could be ultimately done to prevent the damage which a radical illiberal majority could do.

But the damage could be slowed down significantly.

For example, our current constitutional arrangements make it easy for ministers and departments to change and make law by statutory instruments, without any meaningful parliamentary involvement.

Making such secondary legislation subject to a distinct process involving parliamentary consideration would at a stroke check any attempt by an incoming government to inflict a raft of Trump-style executive orders on day one. Eventually a new administration could get round this obstacle, but it would reduce the speed of the assault.

Similarly, making it easier for citizens to challenge disproportionate executive decisions and secondary legislation would similarly make it harder for a new government to push through excessive measures.

And there many other things that could be done too, from making public procurement more transparent, to giving teeth (or even a tooth) to freedom of information laws, to limiting the powers of a new Prime Minister to create peers.

We could do so much strengthen the roof before this incoming storm. There may not, of course, be a storm. Maybe everything is going to be ok. Nonetheless, it would be worth doing anyway.

But we will not do any of this, even with three years to go of the current parliament, a period which provides more than enough time to force things through the House of Lords if need be.

Over at Prospect I have reviewed an interesting paper by the Constitution Unit at University College London: Safeguarding the Constitution: Key Steps to Strengthen UK Democratic Resilience.

It is a paper well worth reading, and if TL;DR you can read a summary here.

There are some good proposals in there, and some nice-to-haves, but as I set out at Prospect, I think the recommendations are incomplete.

And as aver at the end of that article: our constitutional arrangements are vulnerable, and it is complacent to think otherwise.

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