14th November 2025
By apologising, the broadcaster has taken the sting out of Trump’s excessive attack
I have done a piece at the New Statesman where I used to be legal correspondent, you can read it here.
You can comment below.
The letter the BBC could send to Trump in reply to his $1bn claim
12th November 2025
Yesterday this blog offered a close reading of the letter Trump’s lawyers had sent to the British Broadcasting Corporation. As a follow-up, this is a letter that the BBC could send in reply.
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Dear Sirs
We refer to your letter.
As a preliminary point, it is accepted that the edited video in the Panorama programme was an error which should not have been made by the production company or approved by us for broadcast. We apologise for that error both to our viewers generally and to your client in particular. It was a failure of commissioning, journalistic and editorial standards. The programme has been removed from our iPlayer online platform and it will not be broadcast again with the error.
But failures of commissioning, journalistic and editorial standards do not by themselves give rise to a legal claim. We have looked carefully at your client’s claim as set out in your letter, and for the reasons below that claim is denied.
Your letter provides no evidence that your client was aware of the programme when it was broadcast or for at least a year afterwards. If your client maintains this claim please disclose evidence for our pre-action inspection that your client was aware of the broadcast before the press coverage of the last two weeks. Please also inform us when you were first instructed in respect of this complaint. In your letter you are anxious that we retain relevant documents, and so we presume you also have relevant documents about your client’s awareness of the programme. If you do have such evidence, please confirm that is the case.
The programme was not broadcast in the United States generally or Florida in particular. Our programmes on iPlayer are not available in the United States. Please provide any evidence for our pre-action inspection that the programme was watched by any person in your jurisdiction. Again, given the document retention requirements you set out in your letter, you presumably have retained such documents. And again, if you do have such evidence, please confirm this is the case.
You state in your letter three times that your client has suffered “overwhelming financial and reputational harm”. This is presumably on the Beetlejuice principle that if you say something three times it somehow appears. But your letter contains no evidence of either financial or reputational harm, let alone both. And your letter certainly fails to provide evidence of any harm being “overwhelming”. Given that your client was actually re-elected to the presidency within days of this programme being shown (in the United Kingdom but not the United States) there is no obvious harm that was suffered by your client.
If you do have any evidence of the alleged harm, either “overwhelming” or at all , and if your client continues with this claim, please provide that for our pre-action inspection. Please also provide evidence that the programme was “widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide”.
Talking of “tens of millions” you provided no basis whatsoever for the figure of one billion dollars. Please confirm whether this is a billion in an English or an American sense. As the figure seems arbitrary, please provide your workings out of the quantum. As it stands, the figure has no more meaning than a demand for one trillion dollars, or for one dollar.
Both your client and the BBC believe in the value of freedom of expression. Your client benefits from the constitutional and other legal protections for free speech in the United States. The BBC also should have the benefit of the same protections. We made a mistake for which we have apologised and undertaken not to broadcast again. But this should not be a matter for the courts.
Thank you for your attention to this matter.
Yours faithfully
[ ]
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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.
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A close look at Trump’s $1 billion claim against the BBC
11th November 2025
The litigation letter is weak, but his underlying practical position is not weak
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The headlines are eye-catching.
Other, similar front pages are here.
What is going on?
And what can be usefully said from a United Kingdom perspective about this threat by the President of the United States of America to sue our state broadcaster, the British Broadcasting Corporation?
This post is divided into three parts: (1) what is being complained about, (2) what can be said about the threat from a legal perspective, and (3) how this threat fits into he context of how President Trump uses civil litigation and threats of civil litigation.
In essence: what are the facts, what is the legal analysis, and what is the practical position.
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Posts like these take time and opportunity cost – and this blog (currently) is free-to-view and does not have advertising. So if you do genuinely value independent and informed law and policy commentary (rather than AI slop, client journalism, or litigation PR) please become a paying subscriber.
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Let us begin.
The complaint is in respect of a Panorama programme broadcast by the BBC on 28 October 2024, which is well over a year ago.
The BBC page for the programmes is here:
You will see on that page that “this episode is not currently available”.
You will also see that dates of the broadcast:
Note that the broadcast dates are before Trump’s successful election on 5 November 2024.
And if you look carefully at that page you will also see that the programme was not made by the BBC, but by a third-party production company. This was thereby not made directly by the BBC news teams, though they would have presumably reviewed and approved the content before broadcast.
This distinction between production and broadcast is not unusual for such programmes.
There is also no evidence that the programme broadcasts were readily available in the United States:
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As regards the content complained of, the Guardian have provided this handy comparison, which you should now click on and watch:
It is a speech by President Trump on 6 January 2021.
In the Panorama edit two parts of the speech are put together so to give the impression that a single statement was made – effectively a succinct incitement to violence:
“We’re going to walk down to the Capitol and I’ll be there with you, and we fight. We fight like hell.”
In fact the first part – “We’re going to walk down to the Capitol…” – and the last part – “…and we fight. We fight like hell” – were at different parts of the same speech. Indeed, the two passages are about 54 minutes apart.
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From a journalistic and editorial perspective, the Panorama edit is misleading. It conveys the false impression that the two statements were said in one go. There is nothing in the Panorama edit to suggest any passage of time between the two utterances.
As such, from a journalistic and editorial perspective, the Panorama edit is indefensible and it should not have been broadcast.
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However, not all journalistic and editorial errors are breaches of the law.
For such an error to be unlawful as well as unfortunate something else is needed. A complainant needs to bring the error into the scope of the applicable law, which in England and Wales, for example, would the laws of libel and of malicious falsehood.
A journalistic or editorial error is not, in and of itself, actionable at law.
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So what is the legal complaint of President Trump and his legal representatives?
According to Sky the legal letter is as follows:
Re: Demand to Retract False And Defamatory Statements About The President of the United States of America
Dear All:
This law firm serves as litigation counsel for President Donald J Trump (hereinafter referred to as “President Trump”). Please direct all future correspondence relating to this matter to my attention. This correspondence serves as a demand under Florida Statute § 770.011 that you immediately retract the false, defamatory, disparaging, and inflammatory statements made about President Trump, which were published in a Panorama documentary that was fabricated and aired by the BBC.
Failure to comply will leave President Trump with no choice but to pursue any and all legal rights and remedies available to recover damages for the overwhelming financial and reputational harm that the BBC has caused him to suffer, with all rights and remedies being expressly reserved by President Trump.
In the Panorama documentary, titled “Trump: A Second Chance”, which was first broadcast on October 28, 2024 – a week before the 2024 United States presidential election – the BBC intentionally sought to completely mislead its viewers by splicing together three separate parts of President Trump’s speech to supporters on January 6, 2021.
The documentary showed President Trump telling supporters: “We’re gonna walk down to the Capitol and I’ll be there with you and we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”
This fabricated depiction of President Trump was false and defamatory given that President Trump’s actual and full remarks were: “We’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down any one of you but I think right here, we’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressman and women.”
Moreover, the BBC edited out President Trump saying, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Thus, as set forth in an internal whistleblower memorandum, the BBC’s segment maliciously made it appear that President Trump “[said] things [he] never actually said,” by editing together footage from the start of the speech with a separate quote early an hour later.
Due to their salacious nature, the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide. Consequently, the BBC has caused President Trump to suffer overwhelming financial and reputational harm.
A. Applicable law
Words are defamatory under Florida law when “they tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure one in one’s business or profession.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Am. Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (citation and quotation marks omitted)). Statements are defamatory if “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Jews for Jesus, 997 So. 2d at 1108).
Further, “where the speaker or writer neglects to provide the audience with an adequate factual foundation prior to engaging in the offending discourse, liability may arise.” See Zambrano v. Devanesan, 484 So. 2d 603, 607 (Fla. 4th DCA 1986).
Even if the BBC attempts to whitewash its conduct as simply an expression of its opinions, Florida law makes clear that such a defense will not absolve its liability. See Dershowitz v. Cable News Network, Inc., 541 F. Supp. 3d 1354, 1362 (S.D. Fla. 2021); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990) (”Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications.”) (emphasis added); see also Eastern Air Lines, Inc. v. Gellert, 438 So. 2d 923, 927 (Fla. 3d DCA 1983) (“[A] statement that although ostensibly in the form of an opinion ‘implies the allegation of undisclosed defamatory facts as the basis for the opinion’ is actionable.”) (emphasis added).
Consequently, the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer.
B. Demand
The above-referenced false, defamatory, malicious, disparaging, and inflammatory statements were published to deliberately denigrate President Trump. The timing of the fabricated documentary is evident.
The BBC’s reckless disregard for the truth underscores the actual malice behind the decision to publish the wrongful content, given the plain falsity of the statements.
Accordingly, President Trump hereby demands that you:
1) immediately issue a full and fair retraction of the documentary and any and all other false, defamatory, disparaging, misleading, and inflammatory statements about President Trump in as conspicuous a manner as they were originally published;
2) immediately issue an apology for the false, defamatory, disparaging, misleading, and inflammatory statements about President Trump; and
3) appropriately compensate President Trump for the harm caused.
Moreover, please allow this letter to serve as notice to you, to your affiliated entities, subsidiaries, to all of their employees, and any other person acting on behalf of or in concert with the BBC, to preserve any and all evidence related in any way to the above-mentioned malicious, false, and defamatory statements the BBC published, and any other statements that the BBC has published regarding President Trump.
By way of this letter, the BBC is hereby directed not to destroy, conceal, or alter any paper or electronic files, physical evidence, and/or other data relating in any way, no matter how remote, to your false claims regarding President Trump, and/or the circumstances leading to their dissemination, including, but not limited to:
1) all communications between you and any third party in any way related to your wrongful claims regarding President Trump;
2) all sources for your false claims regarding President Trump;
3) any and all documents and data referring to, reflecting, or relating to communications between you and any such third parties or sources regarding your false claims regarding President Trump; and
4) any and all documents in any way related to your false claims regarding President Trump. This includes any information alleged to be protected by Florida Statute § 90.5015. Monarch Air Group, LLC v. Journalism Dev. Network, Inc., No. 23-CV-61256, 2025 WL 445491, at *1 (S.D. Fla. Feb. 10, 2025) (interpreting Fla. Stat. § 90.5015 and explaining that the Eleventh Circuit “recognizes a qualified privilege for journalists, allowing them to resist compelled disclosure of their professional news gathering efforts. This privilege shields reporters in both criminal and civil proceedings.”) (quoting United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013)).
I understand that many records and files are maintained electronically. However, this letter specifically requests that all paper and hard copy originals be maintained and preserved in their original format.
By the same token, electronic documents and the storage media on which they reside may contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists and has been preserved, please preserve and maintain all electronically stored documents in their original native format, including all metadata.
This preservation demand specifically encompasses any and all electronic documents, including but not limited to, all word-processed files, emails, spreadsheets, all databases, log files, and any other electronically stored and/or generated documents or files.
If the BBC does not comply with the above by November 14, 2025, at 5:00 p.m. EST, President Trump will be left with no alternative but to enforce his legal and equitable rights, all of which are expressly reserved and are not waived, including by filing legal action for no less than $1,000,000,000 (One Billion Dollars) in damages.
The BBC is on notice.
PLEASE GOVERN YOURSELF ACCORDINGLY.
[ ]
(That last term in block capitals is a feature of US litigation letters.)
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There some rather odd things about this legal threat.
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First, the letter states in three places about the the reputational harm caused to Trump:
“…the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer”
“…the overwhelming financial and reputational harm that the BBC has caused him to suffer”
“…the BBC has caused President Trump to suffer overwhelming financial and reputational harm.”
The Panorama programme was broadcast in the United Kingdom days before Trump was re-elected in the United States.
It is impossible to see how Trump being re-elected is consistent with him suffering any harm by the broadcast, let alone “overwhelming financial and reputational harm”.
And if you look closely at the letter, no harm is even shown – let alone “overwhelming financial and reputational harm”.
Instead harm is merely asserted – rather than demonstrated.
As such this seems a weak litigation letter.
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The failure by this letter to show harm then feeds into the threat that Trump may sue for “no less than $1,000,000,000 (One Billion Dollars) in damages.”
Because no harm is shown, this figure is arbitrary.
The letter may have said one dollar or a trillion dollars and would have made as much rational sense.
It is a preposterous demand.
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The letter is also alert to the inconvenient truth that the programme was not actually broadcast in the United States. This is is why the following passage is included:
“…the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide.”
There is no evidence in the letter that anyone in the United States, let alone Florida, either saw the programme or even know of its existence.
Interestingly, in the demands for document retention, the letter fails to even ask the BBC for evidence of the extent of downloads and broadcasts of the programme. This is a strange omission, if this was a serious legal threat.
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I am not an American lawyer, and so I can offer no view on the merits of this legal threat under the laws of Florida. Even what can seem weak litigation letters may have traction in other jurisdictions.
But if this threat was made under the laws of England and Wales (Scotland and Northern Ireland have their own legal systems) one would say that this claim also had its weaknesses over here.
First, it is would be out of time: there is a one year limitation period.
Second: the claimant would have to show – and not merely assert – serious damage to their reputation. The letter does not do so.
And third: the ceiling for damages claims for libel in England and Wales is about £300,000 – and any award over £100,000 is rare.
This rules out one million pound claims, let alone one billion pound claims.
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Would the BBC have any defence in a hypothetical case brought in England, regardless of the above defences?
A straight defence of truth would not be available – Trump did not say what the Panorama edit had him saying, at least not in one go.
However, the truth defence also covers things which are “substantially” true. This is a riskier defence to mount, but if the BBC did mount it would be along the lines of Trump did effectively promote an insurrection, even if he did not say in one go what was said in the Panorama edit.
Here the BBC could point to findings of Congressional committees and the terms of the impeachment of Trump passed by the House of Representatives (even though he was not convicted by the Senate). The BBC could also say that the 54 minute gap between the statements did not necessarily mean that the latter statement – “fight like hell” – was not an incitement.
An English court would also have regard to the programme as a whole, and also to Trump’s speech as a whole.
Whether Trump was an insurrectionist would presumably not be something Trump would want to have decided by an English court on the basis of the civil standard of proof – the balance of probabilities.
On the other hand, it was a bad journalistic and editorial fail, and so the BBC would not relish this being decided by the London high court either.
On the face of it, if this was litigated at the high court in London (and assuming limitation was not a problem, and the claimant was able to show serious damage) one could see it going either way, though one would expect a successful claim to be worth only about £30,000.
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Stepping back, what we have here is an overstated claim on a somewhat artificial basis. Until recent news reports, one suspects neither Trump nor anyone else in the US even knew about the Panorama programme.
And given he was re-elected president (in the USA) days after broadcast (in the UK), any claim for damages would seem to fall flat.
But.
The facts of the Panorama edit are ugly for the BBC. It was a bad mistake, and so it would not be one where a confident defence could be mounted.
And this, in turn, means Trump has leverage.
Trump loves leverage.
For Trump, civil litigation is a form of deal-making – the promotion of his political and business interests by other means.
One should not approach his legal manoeuvres as if they are cases that will go all the way. They are skirmishes intended to force a deal, a compromise, a back-down by the other side.
A confident BBC would admit a mistake and move on without admitting legal liability.
But we do not have a confident BBC.
We have a media corporation lacking confidence.
Trump loves media corporations -and other institutions – that lack confidence.
And although one would hope the BBC would mount a complete defence to any claim being brought in a jurisdiction where a programme was not even broadcast and where no damage has been shown, one can also imagine the BBC seeking to make amends including by means of compensation (of licence fee payers money) so as to avoid litigation.
The litigation letter may be weak, but Trump’s underlying practical position is strong: the BBC made a mistake, and he knows how to take full advantage of it.
So putting aside the theatrics of a bombastic letter with its senseless $1 billion claim, there is a power play here which Trump has done many times before.
And the real mistake of the BBC (and the production company) was opening itself up to such a play of power.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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The BBC’s depressing lack of inherent institutional strength
10th November 2025
The BBC needs to be a robust, independent institution
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The British (or Bullied) Broadcasting Corporation is suffering another kicking.
Of course, the BBC is not perfect, and nor is its ultimate legal method of funding, which relies on the criminal law and a prohibition on using television sets without a licence (ie, permission) from the state.
That the criminal law is involved at all in this area is a wrong and something to which this blog may return. There are other ways of funding a public service broadcaster and the sanction for non-payment of the licence fee should be a civil debt and not anything to do with the criminal law.
But there is also a great deal of good about the BBC and its special legal structure.
(Personal tastes will differ in respect of content. I will give a shout for radio channels 3, 4 and 5, the world service, local news, and for Match of the Day. I loathe the Today programme and Question Time, now parodies of what were once-interesting news formats. And many current news priorities of the online BBC news do seem rather odd, though not in the way the commercial media aver.)
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The primary benefit of the BBC is that there is a large-scale broadcaster and online publisher structurally outwith the commercial pressures of the other forms of news media. And this is a valuable benefit.
Legal frameworks and nominal autonomy, however, are of less importance than a sense of institutional integrity.
Just as this blog emphasises that constitutionalism is more important than the form of any constitution, institutions such as the BBC require an independent robustness more than anything written in a charter.
And once that spirit goes, then the institution itself is undermined.
There will be those who will clap and cheer at the senior BBC resignations over the last couple of days, but such elation is misconceived. For the BBC to be this weak as an institution when faced with outside (and politically motivated) criticism is not a sign of a healthy mixed polity.
One of the many bad things done by the Blair governments was the kicking of the BBC over the Iraq WMD issue. The political benefit gained by the administration of the day was more than outweighed by the collapse of institutional confidence within the BBC.
And the current kicking seems similar in its nature – and will no doubt have similar effects.
Something precious in our polity is again being trashed, just because some with political motives want to give the BBC a good kicking, and the BBC will not (or cannot) defend itself.
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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.
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The real problem which blights our prison and punishment system
7th November 2025
The way we think about custodial sentences is what needs to change
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Today’s news is about prisons:
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Let us take a step back.
There is a serious addiction problem which blights our prison and punishment system.
The relevant addicts only make it worse for themselves and for everyone else.
And they never seem any nearer to breaking free from the cycles of despair and misery.
The addiction, of course, is that of our political and media classes to custodial sentences.
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There are long-term, medium-term and short-term problems with our prisons.
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The short-term problem is the general lack of funding, lack of direction and lack of thought about how to manage the prison estate. At the moment this general mess is breaking through into the national news because of mistaken prisoner releases.
But those mistaken releases – treated by many in media and politics as a gotcha against the government – are in merely obvious manifestations of the ongoing chaotic and dangerous conditions of our penal system.
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The medium-term problem, at least in England and Wales, is the structural craziness of having the prison system as part of the ministry of justice, a small department (also responsible for courts and probation) that has little or no political gravity in Whitehall.
The decision of the Blair government in 2005 to create a “holistic” (vomit) MoJ by taking prisons and probation out of the Home Office and lumping it with the former Lord Chancellor’s department has led to our prisons being inherently underfunded ever since.
The Blair government made many bad decisions, but this is one of less famous but far more consequential ones.
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The long-term problem is the fundamental assumption in our politics that the norm for punishment should be lengthy (and expensive) terms of imprisonment.
It is a fairly recent notion in historical terms, and only really came about in the early 1800s, after the general moral turn against corporal and capital punishments and the practical turn against transportation.
As I once put in a paragraph of which I am still proud:
“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.”
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Perhaps one day, like slavery and witchcraft trials, sensible humane people will wonder why we ever did such a thing.
That is not to say there is a group for which detention is appropriate for public protections, and (notwithstanding the sentiments of some other liberals) there is a place for full-life tariffs for certain crimes.
But generally prison is a costly system for worsening the social problem of crime.
Other than a hundred-or-so prisoners with full-life tariffs, the assumption is that the prisoners will be one day released. It is just a way of delaying a problem.
Whatever the solution to crime, it is likely to involve punishments that do not snap and effectively extinguish social, community, family and employment ties – for it is those bonds which are more likely to bind people to more constructive pursuits and lead to meaningful rehabilitation.
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But our political and media class are addicted to the bidding war of ever-heavier sentences, and the criminal division of the court of appeal and the sentencing council are content to nod-along with the wants of the addicts.
Yet we cannot afford this addiction.
We simply do not have the capacity to go along with what is demanded.
And so we get news stories like the ones that are now breaking.
Breaking news about a broken system.
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Equal and opposite effects: how liberals are working out to how to campaign in the modern age
6th November 2025
They now need to work out how to exercise and retain power
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Yesterday this blog set out that many in politics and media are trapped in a latter-day Plato’s cave of social media, unable to make sense of the world about them other than by looking at projected shadows.
But there is currently another aspect of social media that is worth remarking upon, especially in the light of the campaigning and victory of the new mayor-elect of New York, and also here in England of the campaigning of the new leader of the Green party.
One tactic which they adopt is to take the nasty and spiteful coverage of them by illiberal news outlets, and to simply turn it on its head. Instead of being cowered by the relentless personal and political hostility, they use it as part of their own campaigning. It is an unafraid approach, and it renders the unpleasant attacks fairly impotent.
This should not be surprising – our post-Enlightenment ways of thinking means that we can expect each effect to have an equal and opposite effect, a thesis to have its antithesis, that demand will be met by supply, and so on.
Just because the illiberals were the best first-movers on how to use social media platforms it does not necessarily mean that they retain that first-mover advantage. Those opposed to illiberalism can, in turn, develop fresh and innovative tactics to replace those now-clumsy approaches which have failed before.
A Schumer can be replaced by a Mamdani.
What we, in a more jaded time than the optimism of Enlightenment thinking, realise is that conflict and confrontation is not always a prelude to a happy equilibrium: things break down, thesis and antithesis do not resolve as a synthesis, markets do not clear and are certainly never ‘perfect’.
So while one can welcome the fact that liberals (and progressives and socialists) are no longer at any inherent disadvantage at his time of internet-based campaigning, such witty online deftness is not in and of itself sufficient to defeat the illiberals.
As the post here yesterday set out, social media is only one element amongst others when seeking to force political change – others are constitutional structures (and lack of structures), patterns of political participation, and social and economic contexts.
That said, the first job of a politicians is to work out how to get power – and that is a precondition of exercising and retaining power.
But fresh and innovative thinking is also required about how to exercise and retain power – against what will be a formidable illiberal push-back – as well as in campaigning.
Liberals (and progressives and socialists) are now working out how to meet the political challenge of modern campaigning; they now need to meet the equal (and perhaps opposite) challenge of modern governing.
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Trapped in a latter-day Plato’s cave
5th November 2025
Social media platforms do not necessarily correspond to the outside world
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Once upon a time the writer of this blog had far too many followers on social media, and when one has far too many followers, things start becoming distorted. And unless one does something about it, one can go quite mad.
By ‘quite mad’ it is meant that one’s sense of reality becomes disconnected from, well, reality. One begins to replace thoughts with ‘takes’ – and to replace developing those thoughts with promoting memes. The value of your takes and memes is then measured by likes and reposts from the similarly afflicted.
Pretty soon you are trapped within a self-contained and self-perpetuating system of understanding the world, and one becomes unable to see the world in any other way.
You are trapped within a latter-day Plato’s cave.
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Many in politics and media now seem to also chained in that cave, unable to see the world other than via how X/Twitter and Facebook present this world.
No social media platform is perfect – the ‘social’ bit ensures that, as people are not perfect – but some platforms are better than others (I prefer Bluesky for law and policy, and Mastodon for general geekery).
Being able to differentiate the world around you from (mainstream and social) media representations of it is crucial to half-decent thinking about the world.
Of course, one has to take account of social media – the rise of Brexit and Trump require an understanding of how certain politics thrive with electronic networks. But social media is only one element amongst others – constitutional structures (and lack of structures), patterns of political participation, and social and economic contexts.
The challenge for liberals is not to ignore social media but to put it in its place: to use it and learn from it, but not to be overwhelmed by it.
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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.
An instance of the royal prerogative
All Souls’ Day, 2025
Why an Act of Parliament was not needed to remove the title from the former Duke of York
The most fundamental feature of the constitution of the United Kingdom is the Crown.
At least, conceptually.
In one way or another the Crown invariably provides the ultimate source of power for the other elements of our constitutional order: Acts of of Parliament have effect once they have royal assent; the judgments handed down in the royal courts of justice; the discretionary powers of the prime minister acting on behalf of the crown.
Trace any legal power back far enough, and you will usually end up with the Crown.
(With a few exceptions.)
Indeed, the Crown can confer legal effect on all sorts of written instruments, of which Acts of Parliament are merely one example amongst others: royal charters, orders in council, royal warrants, royal proclamations, letters patent, and so on.
Once they are endorsed by the crown they, by constitutional magic, have legal effect.
It is a convention of the common law courts that Acts of Parliament have priority above the other royal instruments (a mere rule of statutory construction, as someone once mischievously put it.). But from another point of view, all are instruments that have legal effect once they are endorsed by the monarch.
Like a prime minister, an Act of Parliament is first amongst equals.
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When the question arose about how to remove the ducal title from an individual previously known as a prince, many assumed that it could only be done by Act of Parliament.
Here there seemed to be a precedent: the Titles Deprivation Act of 1917 – the text of which is here – which was used to remove titles from aristocrats on the side of Germany in the first world war.
Presumably, the thought went, such a statute would be required again.
No.
If one looks carefully at the 1917 Act you will see that it recognises but does not create a right of the-then king to remove an honour. It instead provides a scheme for selecting which peers would lose their titles, and for dealing with consequential points like succession and property.
The 1917 Act was one way of putting the question before the king and for addressing any aftermath, but it was not the only one. It was not an exclusive method.
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And so what happened last week was that the current king used another legal instrument – a royal warrant – to remove the title from his brother.
The warrant instructed the Lord Chancellor – responsible for maintaining the roll of peerage – to remove the title.
As simple as that.
One reason is was so easy was because of the constitutional changes of 1999-2005 which affected the composition of the House of Lords and the changed the nature of the Lord Chancellorship – see here.
Because a peerage no longer carries an automatic right to sit in the legislature, there is really little legal traction to a title, and so less impediment to it being removed by means other than an Act of Parliament.
A royal warrant was thereby a deft workaround, instead of a statutory scheme such as the 1917 Act.
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Never underestimate the residual force of royal power in the United Kingdom (though Scots law is not necessarily the same on this as the laws of England and Wales and Northern Ireland).
The king can still do all sorts of things which have legal effect and without any Act of Parliament.
And many of these powers can be used “on behalf of the Crown” by ministers.
The problem with all this is that those royal powers are not directly checked and balanced by parliament.
And so whilst we may clap and cheer and the king’s clever constitutional move here, it would generally be preferable for such things to be dealt with by parliament, and not the crown.
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The one-way constitution
29th October 2025
Some say Trump and his circle are disregarding the constitution – but that is only half right
We have a tendency to think in binaries – and this is certainly true about when we think about constitutions and constitutionalism.
We will take a view on whether a politician is acting either within a constitution or not.
And if not, we may use emphatic phrases with redundant adverbs: “[A] is completely disregarding the constitution” or “[B] is totally ignoring the constitution” – and so on.
But with the case of Trump and others, this is not correct, “completely” or “totally” or otherwise.
For in practice Trump keen on the constitutional protections that protect him and confer on him powers, and his various supporters are keen on the constitutional provisions that protect them and give them powers.
The constitution is not disregarded or ignored when it is to their advantage.
When it suits them, the constitution is very much intact.
They just do not want those elements of the constitution that check and balance them, or which confer rights on those they want to attack
It is one-way constitutionalism.
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Over at Prospect (click here) my latest “weekly constitutional” post applies this general observation to a couple of concrete examples: about how the Trump-allied Speaker of the House of Representatives is using his powers to not swear in a political opponent over a month after she was elected, and how the conservative majority on the Supreme Court are using a “shadow docket” to determine cases in the government’s favour without full hearings.
But there are many other examples – consider Trump’s use of the pardon power to circumvent and frustrate accountability in the criminal justice system, or how is using executive orders to usurp the proper role of Congress (with Congress nodding-along).
All these examples are, in their different ways, uses and abuses of powers and rights allocated by the constitution.
If Trump and his allies were genuinely disregarding the constitution they would not be able to do these things.
Instead what they are doing is gaming the constitution.
A constitution for me, but not for thee.
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As such, they are adopting a similar approach to how they deal with other matters of first principle.
Free speech for me, but not for thee.
Law and order for thee, but not for me.
And so on.
As someone once described conservatism, though it also is wider application:
Conservatism consists of exactly one proposition, to wit:
There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
There is nothing more or else to it, and there never has been, in any place or time.
This is formal power using a one-way valve.
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If full, two-way constitutionalism is to be restored in the United States and elsewhere it will not be a case of building up from ground zero.
It will be a far more difficult exercise stabilising and remedying a structure which has half-fallen down – and against the unwilling occupants of the still-stable bits.
Restoring constitutionalism will be a big job – and it will be more demanding than, say, having a revolution and starting again.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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Why ‘A House of Dynamite’ is a good film about how those with power make decisions
28th October 2025
This unconventional nuclear thriller does something rare in movies
What follows are some thoughts about A House of Dynamite (Netflix).
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This is not a review as such, but the response of someone who regularly commentates on decision-making by those with political power to a rather good film depicting a decision-making process.
This is a film where spoilers really do need to be avoided, so please be careful with what follows if you intend to watch it.
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SPOILERS BELOW
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A House of Dynamite is a film about decision-making by those with power during a crisis.
The crisis is that an intercontinental ballistic missile is suddenly discovered heading towards the United States from the north Pacific – more particularly, heading towards Chicago.
The launch of this missile was not detected at launch – it is instead discovered mid-flight over the Pacific – and we join the action minutes away from impact.
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Often thrillers follow a conventional beginning-middle-end structure, with a resolution, one way or the other.
This film does not.
It instead has a middle-middle-middle structure, with no (clear) resolution.
We are not told how this crisis arose. We never find out who fired the missile, or why.
We are also not expressly told how the story ends. There is no explicit confirmation of whether the missile strikes Chicago or not.
(Though one can perhaps infer what happens from the final two scenes.)
The film is entirely about the middle bit: from the discovery of the missile to moments before the expected strike.
We are told the story of what happens in this middle bit from three overlapping perspectives – hence middle-middle-middle – with each segment concentrating on particular decision-makers, advisers, and providers of information.
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Usually thrillers about those in power attribute a great deal of autonomy to those at the top.
In this film, however, we are shown how information flows from the bottom, about what information is shared and reported upwards, and that information can be incomplete or even misleading.
We also do not have one decision-maker, but several in video conference, jointly and urgently sharing and assessing incomplete information.
And in assessing this information they resort to established processes and policies. Books and folders are pulled out, charts and graphics are used to illustrate options.
But these processes and policies involve choices to be made – they are not railroads, and so it is then back to the individual decision-makers struggling with only having incomplete information.
Various decisions are made: the coin-toss firing of interceptors (which miss), the triggering of a continuity protocol and various evacuations (which interfere with efficient decision-making more than anything), and so on.
(These formal decisions are dramatically placed alongside personal decisions where the same individuals, with the same information, decide to break protocols and contact loved ones.)
When the strike on Chicago becomes a virtual certainty it becomes apparent that one ultimate decision needs to be made, and that decision can only be made by the President: whether to retaliate – and, if so, to what extent and against whom, and on the basis of what (if any) information and for what purpose.
The President is kept off-screen until the final segment – but when he appears we see him dealing with the incomplete information we have watched being put together, and the policies and processes and options that have been briefed to him.
We are not told what ultimate decision he makes.
But we know what materials he has before him. We have seen those materials being pulled together from the bottom up. We know what he has been told and not told. We know what decisions he could make at that point given what evidence has been provided and the choices put to him.
To have this as the end of the film, rather than whether the missile strikes and whether there is a strike-back, is a brave and good way to bring the film to an end.
And it means that it is this final predicament which lingers – an unsettling end, rather than a means to a neater end.
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What was for me satisfying about this film is how it showed the ongoing interaction between information and processes and human agency. Not one of these three things ever took absolute priority. This balance is rare in any political or indeed legal thriller.
Sometimes a film will come down to the individual brilliance (or otherwise) of a key character, or to the (sometimes suddenly) revealed information being overwhelming, or to the leaden deadening deployment of laws and rules or of bureaucracy.
The full spectrum from a Perry Mason trial to Franz Kafka’s The Trial.
But for there to be a constant balance (and imbalance) between information and processes and human agency from beginning to end is as rare in fiction as it is common in reality.
In practice: information will point in various directions; procedures require the use of discretion with no clearly correct answer; the human beings involved will often be all too human when faced with the horrible predicament they are in – and force of personality will usually only have a limited effect.
As one key exchange in this film puts it, a practical but grave political (or legal) crisis can seem to those involved to be a unstable mix of insanity and realism.
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This is not a film review blog, and so there is little for me to say about the acting and cinematography other than they were of the high standard you would expect of a production with such resources.
But there was one dramatic detail which the film got right again and again.
Much of the action in this film was in big wide interior spaces – situation rooms, conference rooms, a large politician’s office.
But for those practically in those settings the rooms do not seem large – their perspective is not that of the establishing shot. Instead, being in such spaces quickly becomes closed and claustrophobic.
If you are busy (and stressed) in, say, the grand conference rooms of Westminster and Whitehall, or in the ornate court rooms of the Royal Courts of Justice and Supreme Court, you very quickly forget the quaint environments. You instead become focused on what is immediately in front of you and beside you. The grand and ornate setting is quickly out of mind.
This film similarly shows those in situation rooms and conference rooms from a close perspective – what the individuals can see and hear (and not see and hear).
Films which show a political (or legal) exchange in wide-span can be misleading, for none of those involved will be thinking or acting in wide-span.
To understand decision-making it helps to see what it looks like to the decision-maker, and the information before them.
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Of course, what does not ring true with this film is that you have a president and a US defense secretary agonising about anything – and it is significant that production of this film began well before the current incumbents of those offices were in place. This is more a Obama or Biden era film rather a Trump one.
One wonders what a similar film with a Trump figure and company would would be like.
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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.