The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: policy

On catgate and outrageousness

The Guardian is making very ominous sounds about Ken Clarke’s future career in the wake of “catgate” which, if true, is possibly the saddest political coup in history.

I suspect most people have heard about Catgate by now — one of Theresa May’s researchers has found a immigration case in which a cat was mentioned and has either cynically misrepresented it or catastrophically misunderstood it to the extent it was headlined in a Party conference speech as an outrageous “yuman rites” story.

Ken Clarke, echoing many of us in all walks of life who are a bit sick of our area of expertise being done very badly in public, pulled a face when May said that the central legal issue in the case was immigrants having a cat. That sounds like a ridiculous reason to let someone stay in Britain, right?

Spoiler: it totally is.

Outrageousness

The notable thing about outrageous stories is that they’re unexpected — that makes it stand out. You see it regularly in health reporting to the extent that if a new study reveals unexpected results it’s probably wrong. There’s a lot science doesn’t know yet but it wasn’t born yesterday either.

Your gut has a reasonable sense of how the world should (and nearly always does) work. If you see a car rolling uphill that stands out as not expected. This is why gravity hills are interesting:

If you gut says “that doesn’t sound right” it’s worth checking if it is. That’s what Ken Clarke did with Catgate, and it so happens that he was perfectly right. It turned out that the cat was mentioned in passing by a witness as an example of how he had cemented a family relationship with other humans.

Unexpected anecdotes are also an extremely poor way to make policy. We should not abolish the Human Rights Act because an aide at the Home Office found a story about a cat.

Frankly, it’s outrageous to think otherwise.

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Strategic defence review hamstrung before it even starts

It is a “risk calculus”, it’s true and we should accept this however something has to change if we’re in an era when military advisors can tap the side of their nose and say “you never know” when journalists ask what exactly they’re spending forty five billion pounds a year defending us from. It’s a number so big you have to write it out or it doesn’t register.

There is a huge vested interest in the arms industry and there’s really nothing that cannot be justified if you say it’s in the interests of national security. However it’s completely ridiculous to just pour money at something on the off chance it happens in the future. You’re in trouble if you start doing that anywhere else – there has been huge outrage at the amount of vaccine and antiviral drugs that were stockpiled to deal with swine flu that turned out to be unnecessary even though it would have saved millions of lives if they had been needed. Yet, even then, considerably larger amounts of money are spent making sure we’ve got enough Eurofighters so we’re able to adequately shoot down the military jets that our enemies just don’t have.

There is always a problem of “fighting the last battle” because that’s really all you can be sure of – evidence based defence policy is really pretty tricky stuff. Obviously I’d still like evidence based policy to come into defence because the current policy of “I have a (generally faulty) kind of outdated product I’d like you to finance the production of and then buy” is killing us financially. The lack of evidence from the future is why you have ludicrously unhelpful naked body scans and liquid restrictions at airports – 9 years ago some terrorists hijacked a plane and no one wants it to happen again. The problem is that you never want to be the guy who relaxed the restrictions, just in case a plane blows up the next minute and you have egg on your face so it becomes a persistent challenge to be tougher than the guy before you.

That’s why Britain is planning to spend up to (some say at least) one hundred billion pounds on a nuclear deterrent. We’re never actually going to fire it, and no one thinks we’re going to, but having it scares off the Soviet Union. I’m not convinced it actually scares off suicide bombers (the hint’s in the name) that are pretty much the only big ticket enemy that’s attacked British soil this century.

That is why it is crazy that Trident is not included in this year’s strategic defence review. It’s absolutely crazy to earmark the biggest expense and something that just sits around being there and then argue that everything else that’s cheaper has to be more efficient.

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Do you have any evidence for that?

Apparently mephedrone is deadly and we should ban it. Apparently I know that because one person possibly might have died of it. Way, way out in front of this is lightning, donkeys, your bath, driving and so on. Stalin famously insisted that all intelligence he was given was to be corroborated by at least one other, independent source. This is a great way to avoid misinformation tainting your decisions and, despite being a murderous despot, this was a fairly good idea.

I believe in evidence based policy making, it’s why I was so pleased that the Science and Technology Committee re-started their Evidence Checks. These are not checks that the thing being investigated works or not, just that the government policy is supported by evidence. It comes down to wanting to reasonably trust the state to spend their money on things that work.

The problem with banning something because it possibly, maybe killed one person is that you’re banning something based on purely anecdotal evidence. If you don’t want homoepathy on the NHS because there’s no reliable evidence for it, then why would you want drugs banned without similar evidentiary support? We’re not quite as crazy about drug offences as the USA but we’re not a million miles off, we need a better way to pick what substances we’re going to toss people in jail for than “I read about it in the Daily Mail.”

On a similar note, the EU has decided to require that producers of “superfoods” prove what they say they can do. This seems entirely reasonable – if you want to sell me white veal on the basis that it will make cancerous growths sprout legs and walk out of my body I don’t see why you shouldn’t have to prove that. The producers could don’t have to say it’s a superfood – they could always say “buy it just because it’s tasty.” Naturally the superfood producers think this is ridiculous and they shouldn’t have to be held to the same standard as drug companies, presumably because they cure illnesses in entirely different ways. It seems to be a case of food producers wanting to make the sort of claims that pharmaceuticals do without needing to put the work in first.

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Court of Appeal rules no seatbelt is not contributory negligence

Law Actually has covered the decision of the Court of Appeal that a teenager left with brain damage after a crash was not contributorily negligent in his injuries.

This is a case which it seems immediately apparent is a bit strange – the victim was in a car being driven (by someone else) at more than twice the speed limit, while not wearing a seatbelt and even carrying a passenger on his knee down a country road. It seems pretty inevitable that something would go wrong with that setup, yet it wasn’t the victim’s fault that he got hurt (arguably, in a but for sense).

There are times when the victim, though injured by someone else, is not totally blameless in his actions. This creates situations where people who are quite obviously at fault can win delicts against other people, which can seem a little unjust. One way of dealing with this is to subtract a portion of the damages payout to account for their contribution to the injury.

Contribution is one of the most important parts of many cases – I recently participated in an excellent mock employment tribunal training session very generously run by a commercial firm in the city where the employer’s poor dismissal procedure was saved by a 100% contribution because of the employee’s actions. It’s a hollow victory if you beat someone in court but don’t get any money.

However if you act negligently but don’t, provably, contribute to your injury (like here) you can escape the contribution. Your contribution to your injury is a question of fact and it seems that expert evidence couldn’t make the link.

However Michael, and I have to agree with him here, points out that there are massive policy implications in this case. I suspect that the whole case came down to just about two policy decisions – do you support a seriously injured person who needs to finance long term care (hence the court action) or do you make a statement about seatbelt safety. Showing that hard cases make bad law it seems difficult to take a paternalistic stance when the claimant is quite as vulnerable as he is in this case. I don’t think that’s a suitable reason to decide either way and I don’t think that’s what the court used – since the necessary causal link was unproven – but it makes it emotive nonetheless.

Safety devices in vehicles is quite a difficult area – there are some occasions where, for example wearing a bike helmet actually makes some injuries worse and generally failing to land on your head negates the benefit in wearing a helmet at all. The Libertarians don’t believe that it’s even justifiable that the state should make a policy of using safety devices at all since it’s personal choice. I think that there are a lot of reasons that someone would or wouldn’t wear a seatbelt and I question how much this case, an appellate court upholding that a teenager with severe brain damage should get the full damages, will really influence teenagers to drive dangerously or for people to not wear a seatbelt.

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