Category: Words and Things

The curious resignation letter of Lord Geidt – what it says, what it does not say, and what it signifies

16th June 2022

Lord Geidt is an unlikely man of steel.

Yet it appears that steel was the reason for his resignation.

And so, as a discreet but embarrassed courtier, he has chosen to exit via the ‘trade’ route.

(Photo by Chance Agrella from Freerange Stock – donation made.)

*

See this outstanding and informative thread from the estimable trade expert Sam Lowe for the practical background to this matter:

*

But what can we make of the resignation letter and the reply?

*

Lord Geidt comes from a diplomatic background.

And diplomats, like lawyers, are wordsmiths.

(It is just that their wordsmithery is often about imprecision and ambiguity, in contrast to the lawyerly lust for precision and clarity.)

He will have chosen his words and formulations carefully.

So let us look at the operative paragraph:

An “impossible and odious position” is quite a striking thing to say.

(Though “deliberate and purposeful” seems a tautology.)

The Prime Minister’s letter sets out more about the request for advice:

*

There is a lot here that does not make immediate sense.

Lord Geidt for all his many merits is not a lawyer, still less a trade lawyer.

There would be no obvious reason for “tasking” him for a view on something to do with the legality of tariffs.

The question must have come before him another way.

Some are speculating that it may be because of party donations, but this appears to be being denied (though the denial is in a curious form):

My current suspicion is that there may have been a request for a ministerial direction to do something with which an official did not feel comfortable, which then somehow got referred to Lord Geidt.

Who knows.

But connecting the [X] of a steel tariffs issue to the [Y] of an ethics adviser resigning is not easy.

And this is the case even if Lord Geidt simply used this issue as a pretext to resign.

There is something missing here.

*

But.

What is not missing here, however, is that this incident shows that our current Prime Minister is at best indifferent to two rules-based regimes.

The first is the Ministerial Code – which, as this blog has previously averred, is a constitutional nonsense, as it offers no real check or balance whatsoever to any Prime Minister.

The second is the rules-based system of the World Trade Organisation.

You may recall government-supporters during Brexit clamouring for the United Kingdom to trade on ‘WTO terms’.

It often seemed they did not know what that actually meant, and it was said because it sounded good.

Well.

It seems that the government of the United Kingdom is as contemptuous of this type of international law as it is of others.

This very week we have seen the government of the United Kingdom seek to break international law with the Northern Irish Protocol Bill and make aggressive noises about compliance with the orders of the European Court of Human Rights.

The rules of the World Trade Organisation are now the third international law regime the government of the United Kingdom want to be free from this week – and it is still only Thursday lunchtime.

*

At the heart of this government is a sense of lawlessness – that in area after area there is the view that rules do not and should not apply.

The resignation of Lord Geidt seems to be a double-whammy of two such areas – the Ministerial Code and WTO rules.

But it could have been compliance with the orders of the European Court of Human Rights, or compliance with the Northern Irish Protocol, or compliance with Covid regulations, and so on.

And so on.

Perhaps we will find out more about the circumstances of this particular resignation.

But we already know from previous resignations that much of what has happened is already all too clear.

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

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.

The curious clause one of the Northern Irish Protocol Bill

14th June 2022

Let us start at the beginning, for it is a very good place to start.

And at the beginning of the Northern Irish Protocol Bill, just after the title, purposes, and preamble, is clause 1.

(A ‘clause’ is what becomes a ‘section’ by legal magic when a Bill becomes an Act.)

Clause 1 provides:

There will be time to look at the other provisions of this Bill, but let us take a moment to look at clause 1.

The content of the clause is not part of the title, purposes or preamble to the Bill.

No, we can check, and it has a clause number.

Clause 1 is intended to be part of statute, to have the force of primary legislation.

But.

It does not seem to be law.

I do not know what it is.

It is called ‘Introduction’ – as if it was part of some Penguin Classic.

But the the title, purposes and preamble are usually all the ‘introduction’ a statute needs.

For example. the purposes tell us that the Bill is to make “provision about the effect in domestic law of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes.”

That will tell a court what the Act will be for, if a court needs an introductory aid to construction or interpretation of any of the provisions.

The provisions of this clause 1 do not create obligations, or confer any discretions or rights.

What are they doing?

Are they capable of legal effect, in and of themselves?

Are they intended to have legal effect, in and of themselves?

Are they intended to be aids to construction or interpretation of any of other provisions, in the case of ambiguity or doubt?

If so, how?

What are they supposed to be?

They read more like a policy statement or explanatory note for the Bill – but these are separate documents that the government has also published.

The published explanatory notes do not help us:

“[S]ummarises”?

Is the purpose of a clause to “summarise”?

“[M]akes clear”?

Oh dear gods.

If the rest of the Bill needs a provision like this so as to “make” things “clear” then the drafting of the other provisions needs to be done again.

Perhaps clause 1 is just to get “Union with Ireland Act 1800 and the Act of Union (Ireland) 1800” somehow onto the face of the Bill – indeed on to page one – so as to placate unionists?

And, applying the rule against surplusage – that courts give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant (definition taken from here) – what actual difference does clause 1 make to the rest of the Bill?

If clause 1 were – say – to be deleted, what difference would it make to the legal effect of the Bill once enacted?

The fear must be that the creeping use of legislation as a form of political propaganda – press releases by other means – has now infected the very statutory provisions themselves.

It is difficult to imagine what the parliamentary drafter intends by clause 1 as to its legal effect.

Perhaps this has happened with other Bills – and, if so, please leave comments and links below with examples.

Perhaps it a commonplace, and I have missed it in other legislation.

But it does not seem right.

And it perhaps suggests that the government does not sincerely intend to place this Bill on the statute book, and that the Bill as a whole – and not just clause 1 – is merely for political consumption.

**

POSTSCRIPT

 

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

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.

 

 

 

 

The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.

This post is not about the report in detail, but about the current Prime Minister’s response.

It is a response that Boris Johnson often gives at times of trouble.

It is the response of saying that he ‘takes full responsibility’.

What could this phrase mean?

Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.

Oh no – this is ‘full’ responsibility.

Rhetorically, it is an impressive statement – to which some may even nod-along.

But it is hard, if not impossible, to see what it means.

For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?

What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.

What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.

There is not any real difference; nothing changes.

If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.

This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.

In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.

It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.

For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.

The action the Prime Minister would perform is to resign.

And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.

Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.

So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.

That is to say: no constitutional meaning at all.

**

Please support this independent law and policy blog so that it can continue – do not assume it can continue without your help.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

You can also become an email subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

*

The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

*

So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

*

To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

*

Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

*

The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

*

So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

*

For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

*

Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

**

Thank you for reading – and please support this blog.

These free-to-read law and policy posts every week day take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

The misconceived politics of “Law and Order!” and “Red Tape!”

14th April 2022

On theme of this blog is the relationship between political discourse and underlying law and policy.

For example, the difference between “Law and Order!” as a slogan, complete with capital letters and an exclamation mark, and – well – law and order.

A contrast, of course, which is very telling this week as the leader of the party of “Law and Order!” conceded he had broken the criminal law on government property, and only one minister resigned.

Law and order is for other people.

*

Other phrases – again complete with capital letters and exclamation marks, are “Health and Safety!” and “Red Tape!”.

And here too the political vocabulary plays strange things with reality.

Over at the Guardian, there is a fascinating and informative article by the deputy news editor of Inside Housing on the Grenfell inquiry, Lucie Heath.

Heath says:

“the inquiry has consistently painted a damning picture of the deregulation drive that was a key focus during Cameron’s time as prime minister.

“The obsession with abolishing red tape saw ministers at that time ignoring warning signs about a growing building safety crisis, and civil servants too disaffected to speak up.”

*

Rarely a month goes by without some minister getting easy applause for saying that we should get rid of “Red Tape!”

Dynamic words are often used, such as “unleash” or “unshackle”.

But such words are not an articulation of a policy, but a substitute for one.

And usually those who speak generally about cutting “Red Tape!” are unable to provide particularised examples.

Of course, some rules and regulations need to be revisited – especially those that have been put in place because of that other political phrase “Something Must Be Done!” – but this should be conducted on a case-by-case basis.

Regulations – in and of themselves – are neither inherently bad nor inherently good.

And getting rid of regulations – or not taking regulations seriously – for the sake of it is just as misconceived as putting in regulations for the sake of it.

Sometimes – as is being uncovered by this inquiry – what seems like mere “Red Tape!” can be very important indeed.

And so just as we would have better politics if politicians and the media did not confuse “Law and Order!” with law and order, we would also benefit if we did not clap and cheer on attacks on “Red Tape!” but looked at each case to see if regulations were needed or not.

If so, we would be “unleashing” or “unshackling” sensible political discourse.

And wouldn’t that be a thing?

**

Thank you for reading – and please support this blog.

These free-to-read law and policy posts every week day take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

Being duly diligent about the phrase ‘due diligence’

23rd February 2022

Another day, another phrase for us to examine.

Today the phrase is ‘due diligence’  – a phrase that appears to be used in politics by those hoping it means something that it does not.

Here is the example from today:

The phrase is a nod-along word in politics, something said to reassure the listener.

It sounds impressive, even formal.

But.

Those who invoke the phrase need to be able to explain what they mean by it.

And it seems they cannot:

The phrase – to state the obvious – comprises two words.

Taking the second word first, it means that a person is being careful in respect of a certain matter: [x] is being diligent.

The first word ‘due’ then qualifies that diligence, so it means that person is not only being careful but that the person is being appropriately careful in a given circumstance: [x] is being duly diligent.

And so, anyone claiming to be duly diligent needs to be able to explain exactly how they are applying their diligence in a given situation.

In commercial and corporate legal practice, what constitutes being duly diligent can vary according to the nature of the investigation or inquiry in hand.

Some issues will require anxious scrutiny while others warrant less intense scrutiny.

And once the lawyers have done their ‘due diligence’ – that is, been duly diligent – they can advise their clients on the risks of a certain transaction or other course of action.

In all cases, those being duly diligent will be able to not only assert they have been careful but how they have gone about being careful.

So, coming back to Boris Johnson’s spokesperson and their buzz phrase of the day: what did they mean by ‘due diligence’?

It should mean that the Conservative party has not only been diligent in respect of donations to the Conservative party, but that the Conservative party also has method in its diligence: that certain questions have been asked and that certain risks have been assessed.

That the Conservative party has been – well – duly diligent.

And if the party has been duly diligent it then should be able to explain what that means in these circumstances.

For if that cannot be explained, it indicates that nothing is actually meant by the term – and it is mere flapdoodle.

And we can work this out by ourselves being – well – duly diligent about those who use the phrase ‘due diligence’.

https://twitter.com/davidallengreen/status/1496480334363435008

******

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.

The polity and the media

9th February 2022

There have been various communications revolutions in human history.

One, of course, is the development of human language – though we are still working out the extent to which this actually separates us from other animals capable of complex communications.

Another was the notion – which we appear not have had for most of the history of our species – that language can be written down and thereby stored or sent long distances.

This notion was instrumental in the development of more complex societies, as it meant for example than laws could be recorded and conveyed other than by oral tradition and transmission.

And about five hundred years ago, the development of movable type meant that things could get published and circulated on a scale that would not have been possible in days of manual reproduction of texts.

The most recent radical change in communication is one with which many reading this blog will be familiar.

In our lifetimes, when we were young, it was difficult-to-impossible to communicate with and publish to the world – unless you went through the gatekeepers of established newspapers, publishing houses or established broadcasters.

Yes: you could, perhaps, publish a vanity book, or pamphleteer outside McDonalds, or launch a pirate radio station in the North Sea.

But short of such extreme exertions, it was hard – as recently as the 1990s – to publish or broadcast whatever you wanted to the world.

And now, by reason of the internet and easy-to-use platforms, anyone with an online connection can, in principle, publish or broadcast on the widest possible scale.

We are now perhaps so familiar with this change that we forget how radical a shift this is.

And we are still reckoning the consequences.

One consequence is that our conventional ideas of politics and media are shifting – and we do not know for certain what will happen next.

The lack of gatekeepers on political discourse has a relationship with the populism-supporting figures such as Johnson and Trump.

Traditional mediating vehicles of transmission and participation – say, political parties and newspapers – are now in many respects redundant in these days of direct connections.

The law itself struggles to keep up – and our laws on social media are a hotchpotch of the unrealistic and outdated, but these laws also have no obvious alternative.

One hobgoblin of law and policy thinking is that nothing is new – we can see that the same will happen as before, as long as we know the right precedents.

How will our polity will be affected by these fundamental changes in politics, media and communications?

Will it mean a more liberal future?

Or a more authoritarian one?

******

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.

The joy of implicitly

17th January 2022

“Implicitly” is a mischievous word, a Puck of a word.

And those who say and hear such words must be careful, else this Puck of a word can cause unexpected confusion.

It is the word of the moment in British politics.

Last week, the Prime Minister told the House of Commons:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed implicitly that this was a work event, but with hindsight, I should have sent everyone back inside. ”

Now what was the naughty “implicitly” doing in that sentence?

The word must be there for some purpose, as this was something carefully worded that the Prime Minister read out.

Read that sentence again without the word:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed that this was a work event, but with hindsight, I should have sent everyone back inside. ”

This sentence is intelligible – and had he believed it was a work event, that is all that needed to be said.

But someone added the word “implicitly”.

Why?

It is not an especially legalistic word – so, although the sentence was plainly lawyered, it is not there for a specific legal purpose – or at least not one I can identify.

But presumably it is there to change meaning from the plain “I believed” into something else, something more vague and perhaps evasive.

A Westminster/Whitehall insider told me that the use of “implicitly believed” was very much the “don’t ask, don’t tell” of workplace gatherings.

A sort of plausible ambiguity – to let you get away with things that you would know, had you considered it, would not be the case.

In this way it would be a coded synonym for ‘conveniently’.

And the word seems to matter: for it has been repeated by Number 10 and other ministers – and so it is the line to take.

So: the word makes a difference to meaning – and it is a word that matters so much that its use is being forced upon press officers and ministers.

Maybe it means that the Prime Minister cannot show any explicit evidence that he had that view (or expressed that view), and so assumed it.

Here is Adam Wagner, the leading authority on the coronavirus regulations.

Or maybe Johnson is seeking to deftly avoid any legal liability?

Who knows.

But what is certain is that it matters to Johnson – and that he believes in this phraseology, well, implicitly.

******

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.

Why blog about law and policy?

22nd December 2021

This is just a brief post today about the difference between law and policy, and the relationship between the two.

First: the two are different.

Law is (ultimately) about what one can enforce or have recognised by a court.

Policy is about achieving certain outcomes that will not be (or may not be) achieved but for such policy.

Laws are often part of a policy – along with resources, prioritisation, organisation, communication and leadership.

And policy is also sometimes part of law: a court may, as a matter of ‘public policy’ avoid certain outcomes, such as preventing open justice or access to the courts.

You will see the law/policy balance in many areas, if you look carefully.

The difference between guidance and prohibitions in public health (and the blurring of the line).

Or the extent to which post-Brexit policy (or lack of policy) depends on changes to what was agreed in the withdrawal treaty and the Northern Irish protocol.

Or the current small-c approach of the Supreme Court to (supposed) judicial activism.

Or how supporters and opponents of abortion in the United States are going about legislating and litigating in ever-more ingenious ways.

For me this relationship between law and shaping policy, and between policy and shaping law, is fascinating.

Black letter law is dull – it is akin to reading sheet music and attempting to create the tune in your head.

Law, like music, comes alive in its performance.

And other than very technical areas of the law, law is about changing (or not changing) the world about us, so that certain outcomes happen instead of others.

So this is why I commentate about law and policy – it is a way of practically understanding what is (and what is not) going on.

******

Thank you for reading – and now please help this daily law and policy blog survive.

It needs your help to continue for another year – for the benefit of you and other readers – there is no paid subscription model.

Each free-to-read post takes time and opportunity cost.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

If you value this free-to-read and independent legal and policy commentary – both for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

*****

You can also have each post sent by email by filling in the box above (on an internet browser) or on a pulldown list (on mobile).

******

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.

The Myth of the Dead Cats

9th December 2021

There is a certain Dickensian quality to the unfolding political events in the United Kingdom.

The events of a Christmas past – last Christmas – are illuminating the politics of Christmas present.

And, unlike other wrongs and transgressions by this wretched government, the facts and significance of last year’s Christmas party are readily grasped by the most unpolitical of people.

It has ‘cut through’.

Many people will not empathise with or understand those who may have their citizenship withdrawn, or want to make noisy protests, or want to make a hazardous channel crossing without drowning.

But, just like a day trip to see a castle, people easily understand about a works Christmas party.

This is not to say there are not more fundamentally bad things happening in law and policy at the moment.

This tweet summarises the current illiberal situation well:

The government of the United Kingdom is pushing forward legislation that will enable its officials to kill people without legal consequences, to prohibit meaningful protest, and to summarily remove citizenship from you because of where your family is from.

All this is as sickening and disconcerting as it can be.

But none of this has ‘cut through’.

*

Whenever the government does more than one bad thing at once, somebody somewhere will comment that one of the things is ‘a dead cat’.

This is the phrase to describe a tactic of political distraction.

One of the bad things happening – usually the more trivial – will be described as a cunning misdirection, to distract us from a far less trivial thing.

But.

The thing about ‘a dead cat’ tactic is that it requires basic competence.

It relies on the notion that those in power are capable of doing something that works.

This is a perhaps comforting idea.

The reality is, at least with the current government, that there is no basic competence.

The true situation is that the government is doing lots of bad things at once, all over the place.

This is a scarier predicament.

When one of the bad things gets more public and media attention, it is not because a deliberate political tactic has worked.

It is instead because the thing in question just happens to be more understandable.

That is the only difference.

*

This is a chaotic government.

It is tempting to posit some order or pattern – or conspiracy – as the alternative of absolute disorder is too horrible an idea to contemplate.

Indeed, it is an even more horrible prospect than a dead cat suddenly slammed upon a table.

**

The Great Cat Massacre by Robert Darnton

******

This daily law and policy blog needs your help to continue for another year – for the benefit of you and other readers.

Each free-to-read post takes time and opportunity cost.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

If you value this free-to-read and independent legal and policy commentary – both for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

******

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.

Comments will not be published if irksome.

 

Posted on