DAT Green

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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Only the most sensible of comments will be published for this post.

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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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

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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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

“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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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

No, the Justice Secretary does not need to be a lawyer

21st July 2026

Why it is far more important to have an effective politician as Lord Chancellor, rather than somebody who happens to be legally qualified.

From time to time, and from cabinet reshuffle to cabinet reshuffle, some politician is appointed to the combined role of Justice Secretary and Lord Chancellor who is not a lawyer.

It happened again yesterday.

And each time this happens, and it has happened a few times now, there is an adverse reaction, a groaning of some lawyers.

This post sets out why it really does not matter it the Justice Secretary and Lord Chancellor is not a lawyer, and why it is far more important that they are an effective politician within cabinet.

Back in 2007, nearly 20 years ago, a huge and horrible policy and administrative mistake was committed.

This huge and horrible mistake was the creation of a “Ministry of Justice” – created by bolting together the old Lord Chancellor’s Department (at that point called the Department of Constitutional Affairs, which ran the courts, with the prisons and probation parts of the Home Office.

Thereby a small “spending” department came into being, but with out he heft of the Home Office in Whitehall spending rounds.

(The old Lord Chancellor’s Department was not big enough to be a “spending” department, as such.)

So in Whitehall this new Ministry of Justice joined the back of the spending queue, behind health and education and defence and indeed behind the now security-and-immigration dominated Home Office.

And within the Ministry of Justice, courts – and legal aid – joined the back of the spending queue, behind over-crowded prisons and under-resourced probation.

The supposed justification for this move was to heave a more “Holistic” justice system, from courts to probation and punishments.

But, as is usually the case, the word “Holistic” signified woolly thinking.

And since 2007, almost every problem faced by our court system and legail aid budget has been caused by this folly of the then Prime Minister Tony Blair and the then Lord Chancellor (and first Justice Secretary) Lord Falconer.

It was a structural fault from the beginning, and one which gets worse over time.

The creation of this Ministry of Justice also meant that it would be a department no longer necessarily headed by some eminent lawyer.

Until then it was always a former judge – or a QC/KC usually appointed to the House of Lords as a peer, if not already a lord for other other reasons.

The old Lord Chancellor could sit on the House of Lords appellate committee (and did so until the days of Lord Irvine as Tony Blair’s first Lord Chancellor); they also presided over the House of Lords and sat in the cabinet.

They were a one-person rebuttal of the notion of a separation of powers.

But by 2005-7, this constitutional oddity was no longer sustainable, at least in the face of European Convention of Human Rights caselaw on a fair trial: legislators and members of the executive really should not also be judges.

And so the practical judicial role of the Lord Chancellor came to an end (though some ornamental aspects remain). The Lord Chancellor was also replaced in presiding over the House of Lords by the new role of Lord Speaker.

As an ancient office, however, the office of Lord Chancellor itself could not simply be abolished by prime ministerial direction. It would require an immense legislative exercise, and the Blair government ducked this.

And so they combined the office of Lord Chancellor and Justice Secretary, as a work-around.

Here we get to one of the daftest and least useful provisions on the constitutional statute book, section 2 of the Constitutional Reform Act 2005.

This is the provision which some lawyers groan about whenever a non-lawyer is appointed as Lord Chancellor and Justice Secretary.

Section 2 provides:

Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

You will see that section 2(2) is not limited to lawyers. If that had been the intention of parliament, then it would have said so. But it expressly provides other possible bases for the appointment.

Section 2 is also only a weak “may take into account” provision – the list that follows is not binding.

And section 2(2)(e) then renders even that provision moot, as it all rests on the subjective view of the Prime Minister. Theoretically, this may prevent a Prime Minister in some appointments if “Wednesbury” unreasonable, but it is difficult to imagine a court intervening in reality to quash any appointment.

So we have had various non-lawyers as Justice Secretary: including Chris Grayling, Michael Gove, Elizabeth Truss.

And here, as they were former ministers of the crown, the Prime Minister did not even need to resort to section 2(2)(e) with those appointments.

The lawyers who have been Lord Chancellor and Justice Secretary have often been less than impressive.

Kenneth Clarke, an experienced QC, pushed through severe legal aid cuts.

Few would commend the periods in office of Dominic Raab, a solicitor, and David Lammy, a barrister.

A Lord Chancellor and Justice Secretary having a legal qualification or legal experience has not helped one iota.

There is nothing about running prisons and probation that requires a Justice Secretary to be a lawyer.

Indeed, there is nothing in running the court system which requires a Justice Secretary to be a lawyer – indeed many of those that keep our court systems running are not themselves lawyers.

There is also nothing in fighting and winning Whitehall battles for funding that requires a Justice Secretary to be a lawyer.

And there is nothing in managing a small, back-of-the-queue spending department that requires a Justice Secretary to be a lawyer.

The Justice Secretary does not give legal advice, neither do they act in court.

The ornamental aspects of the job can be done (and have been done) by a non-lawyer.

Attorneys General and Solicitors General, with their quasi-legal roles, should be lawyers.

But there is no good reason for a Justice Secretary to be a lawyer, and we have not been well served by some of those who have been.

It is far more important that they are an effective politician within cabinet.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Another new Prime Minister…and another new former Prime Minister

20th July 2026

Regular readers of this blog will recall that there is nothing unusual and indeed nothing wrong with our political system’s capacity to eject Prime Ministers from office.

As set out in a previous post, it is that we keep appointing poor Prime Ministers that is the problem, not that we are deft at getting rid of them: an input issue not an output issue.

In essence – our body politic retains an admirably efficient discharge system for getting rid of poor PMs, it is the diet which is at fault.

And regular readers will also recall that changing Prime Ministers mid-term is pretty much the norm and not the exception.

Every Prime Minister since 1974 has either gained office or left office mid-term (and sometimes both).

It is important to remember that we have a parliamentary system and not a presidential system.

And so what is happening today, with the appointment of Andrew Burnham to replace Keir Starmer is not even a constitutional drama, let alone a constitutional crisis.

That said, one remarkable feature is that, notwithstanding 650 members of parliament were elected at the last general election, the new Prime Minister had to be shipped in from outside parliament. One would hope that, in a parliamentary system, at least one elected member of parliament would be up to the job of having the confidence of a majority of the House of Commons (the constitutional test).

But, no.

The new Prime Minister appears to have a genuine belief in devolution and perhaps also electoral reform. This is, of course, welcome, though it is unlikely that substantive constitutional reforms can be enacted this side of a general election, especially if not in the manifesto.

On the other hand, not all constitutional reform needs primary legislation and endless parliamentary time. Let’s see what, if anything gets done to repair our constitutional arrangements before the next general election.

Looming behind all this, is that there is still a realistic prospect of an radically illiberal government being returned at the next election and, as this blog has previously averred, our constitution is in poor shape to withstand any radical illiberal assault.

Parliament really should be fixing the constitutional roof while the sun shines, especially in terms of delegated legislation.

Otherwise, today’s news means another former Prime Minister is now added to the pile.

A judgment for the ages, and my Prospect article

17th July 2026

Do read this judgment – and my Prospect comment

Yesterday this blog published a post, but it had a borked link to the judgment mentioned. Although this was quickly corrected online, it meant those who only read emails would not have the link.

That judgment of the ages is here – and you really should read it in full.

And my Weekly Constitutional article at Prospect on the case is here.

I should be publishing a fuller post on here on the case soon.

Trump’s most extraordinary abuse of court comes to an end

16th July 2026

A judge has made a splendid Order, which should be read in full.

There has never been a case like this one.

That is not just the view of some passing legal blogger, but of the judge herself. As Judge Kathleen M. Williams said in her latest, highly significant order:

“But perhaps the most startling misstatement advanced by Plaintiffs is their characterization of this case as “ordinary.” […] There is nothing “ordinary” about this case; it is the very definition of sui generis.”

“Sui generis” is a legal phrase, meaning a thing is unique.

As a biologist would say, a thing has a genus all of its own.

The case is, of course, the (supposed) litigation between President Trump and his own government, which was (supposedly) settled in a way so as to lead to a huge slush fund for political allies and wide ranging tax immunities for Trump.

And that has come to a halt, with this wonderful piece of legal writing, which you should read in full.

I will do a longer piece on here when I have fully recovered from an irksome illness, and thank you for your patience in the meantime.

Suppose They Held a By-election and Nobody Came

9th July 2026

The Farage stunt by-election in constitutional context

“Suppose They Gave a War and Nobody Came”

– a 1960s slogan and a title of a 1970 film

The current leader of the Reform Party has resigned his parliamentary seat so as to force a by-election in his Clacton constituency, in which he will stand for re-election.

This is, of course, a stunt.

For a few wonderful hours yesterday it seemed we might have had the constitutional excitement of this by-election either being delayed or denied.

This is because – somewhat oddly – a Member of Parliament cannot directly resign their seat.

This is a constitutional fiction – a daft piece of political-legal make-believe.

The notion is that – like, say, with jury service – being summoned to attend parliament is a civic duty. Indeed, in the past it was a onerous duty which the knights of the shires and the burgers from the boroughs would often not like to do – and would get out from doing if they could.

And so if you were selected for attendance at the Commons then you had to go – at your own expense, in lodgings in that London (well, Westminster), and without payment: a chore not a privilege.

Once a Member of Parliament is returned, the expectation is that they serve out their term.

But.

There were – and are – means of a Member of Parliament rendering themself (or being rendered) as disqualified.

The old joke was that lords, lunatics or bankrupts that were exempt.

(Or all three, ho, ho, ho.)

And also exempt were those who were appointed to offices of profit under the Crown.

In fact there is now an entire schedule of exempt offices – a long, long list.

And to maintain the daft fiction, two historic offices were included on the schedule just so Members of Parliament could pretend that they are not actually resigning.

It really is very silly.

But what this means is that it is not within the sole power of a Member of Parliament to resign.

Unless they are appointed to a genuine exempt outside job (like being a judge) they have to apply to the Chancellor of the Exchequer (and thereby a government minister) for appointment to one of the make-believe offices.

The convention is that such applications for the Chiltern Hundreds or the Manor of Northstead are accepted.

But that is a mere convention: if the Chancellor of the Exchequer said no, then that decision could not be easily gainsaid.

According to the House of Commons library there have been (at least) two instances of the application being refused:

(Note the almost early appearance there for Nathan Barley.)

But even if the application is granted, there is then the distinct and separate question of moving the writ for a by-election, which is a matter for the House of Commons. And, again, it is only by convention that this is usually done promptly.

And so, an MP like Nigel Farage who resigns to fight a by-election can be denied or delayed in two ways: by the government, and by Parliament.

Alas, however, the Chancellor of the Exchequer denied us any constitutional fun.

The bin, of course, is joke candidate Count Binface, for all the other main parties said they would not contest this pointless by-election.

This morning the writ was moved – a by-election is likely in August.

Farage should be careful: the Brexit referendum of 2016 was itself an election which those who called thought would go one way, but the voters did not vote they way they were “supposed” to.

Also in 2016, there was the example of Boaty McBoatface.

Constituents and voters, like tribunals, do not like being taken for granted.

Farage appears to have been adopting political tactics that might have come from S. Baldrick.

Farage has created an embarrassing situation for himself, entirely by himself.

And he will gain no advantage in the the face of the current House of Commons investigation, which can simply resume even if he is re-elected with a “mandate” against a sentient rubbish bin.

In a news interview today, the muddled thinking can be indicated by his party saying the Commons committee is a “kangaroo court” but him also complaining about committee delays that may drag on until October.

That is a mighty slow kangaroo.

Of course, complaints of “kangaroo courts” and “witch hunts” by politicians like Farage, Boris Johnson and Donald Trump are often of painfully elaborate but procedurally fair processes, from which they know there is no easy escape or evasion.

That is why the processes have to be rubbished in the most colourful way, in the hope that the easily bored will nod-along.

“Kangaroo court!”

“Witch hunt!”

The (lack of) thinking here is also that Farage could somehow head off a further by-election caused by an adverse Commons investigation report (in which the main parties would compete), with this by-election.

But he did not think things through, nor take account of foreseeable risks.

Like other insurgent politicians, he can only think about one chess move ahead.

Now, even if if he wins, he has lost any advantage and instead gained ridicule and discredit.

And he is left to reflect on what could have bin.

(Sorry.)

By-elections can have great power in our political system.

The two recent by-elections in the north of England have altered the course of the politics of the United Kingdom.

But this year looks as if there will be a third by-election, if not of great power but of equally great lack-of-power.

For Farage has somehow called a by-election, and nobody came.

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