Nad’s not Mad – she just has reactionary Tourettes

Every time Nadine Dorries MP gets on TV and in the press my heart sinks a little. I’m a Conservative supporter, even though that seems to be perpetually unfashionable – hardly anyone seems to admit being one in polite company – but the sorts of views she expounds every time make it a little harder to explain “yes, but that doesn’t mean I agree with her”. That said, the backlash against her views also seems to be often quite disproportionate. For example, even if you believe that recommending abstinence from sex is not a very productive form of sex education I don’t think you have to vilify someone for disagreeing and wanting it nevertheless to be available as an option that is discussed alongside contraception and methods of having sex safely.

The latest Dorries policy to raise hackles has been her proposal, (thankfully rejected by the Government), that independent counselling be made available to women who are seeking an abortion. Fortunately I have never, to my knowledge at least, been in the position of being responsible for an unwanted pregnancy or to have had to go through the process of obtaining a termination. I can see both sides to the argument that a termination involves the ending of another’s life and is therefore wrong and that it can also be wrong to require a woman to carry to term and bear a child that they either don’t want or are incapable of supporting. This piece is not about whether abortion is right or wrong or whether it should be allowed or not.

The thing which is most curious about the proposal on counselling is its difference to the proposal on abstinence as sex education. That is, that it excludes the possibility of other forms of advice being given. Although the independent counselling Dorries and Frank Field MP propose is not to be compulsory, it will be the only form of counselling that could be given. Specifically, they ask that counselling on abortion should not be provided by organisations which have “an interest” in carrying out termination procedures. This means that charities like Marie Stopes which both counsel and get paid to carry out terminations would not be considered independent and would therefore have to choose which of the two activities they were to carry out. On the other hand, organisations which had a particular moral or religious stance to the advice and counselling they were providing (eg Care Confidential who were exposed on Newsnight as training their counsellors to tell women that abortion was a mortal sin) would be considered independent.

The parallel that has been drawn by Frank Field is with misselling of financial services by advisers who were not independent of the providers of the products. However, there is a crucial distinction. In the financial services context the problem is the lack of impartiality of non-independent advisers. A Marie Stopes counsellor could be described as lacking impartiality on the basis of the supposed financial benefit to their organisation of being paid to carry out abortions. However, a counsellor with a specific religious stance on abortion would be equally lacking in impartiality. Impartiality rather than independence is the important feature. In financial services advice there is little or no moral element to the choice being made by the customer so it is not unreasonable to conflate independence and impartiality. In the morally charged issue of abortion, the financial element is likely to be rather less significant and so seeing impartiality and financial independence as equivalents rather dangerous.

I would be very surprised if Marie Stopes counsellors were ever disappointed by a woman deciding after counselling that they did not want a termination or that they would seek to talk them round. On the other hand, a counsellor who believed that abortion was up there with the very worst sins that a woman could commit would never be likely to think that anything other than a decision not to have an abortion (other than perhaps in very limited and defined areas such as where they had been raped) was a disaster. I’d expect, and indeed want, such a counsellor to keep on pushing towards “no” if that was their belief.

That would be the opposite of what one would normally want from an independent and impartial adviser. That is not to say that anyone who has a particular religious or moral view on abortion should be disqualified from advising or counselling on it. Relatively few religious people conform to the media stereotype of hellfire preachers, most or many think deeply about their beliefs and are aware of the difficulties of the struggle in reconciling abstract beliefs with practical human action. Many will believe that it is not their role to judge people and will be conscientious in both standing up for their moral beliefs and accepting that individuals need to make a free choice. The reality is that impartiality and independence are not easy to get in a counsellor on something as morally complex as abortion and that an unsophisticated disqualification of either religious links or links to providers of abortions is foolish.

Ultimately, the decision is really none of anyone’s business other than the woman seeking the abortion. She should be provided with the opportunity for counselling to help her to make what must be an astonishingly difficult choice, if she wants or needs it. The form of the counselling and any underlying approach, whether religious or otherwise should be made clear from the start so that an informed choice can be made as to which service to use, but I don’t see any need for the State to prescribe artificially what form or set of beliefs on the issue should be promoted or rejected in what ultimately is an issue of personal choice.

The other peculiarity of Dorries’ approach is that it is also inconsistent with her support for the Health and Social Care Bill more generally. One of the major elements of the Bill is to make most health services susceptible to being provided by private healthcare businesses. That is not necessarily a bad thing. However, what it does mean in this context is that the Bill overall will have the effect of making more advice and counselling on healthcare in the hands of people who are not, in Dorries’ sense, independent of the provision of that care. Abortion might be argued to be something of a special case because it involves a potentially mortal sin in the taking of the life of another.

I believe this is a mistake and a matter of degree. There are many healthcare decisions made on the advice of doctors and other professionals which are similarly weighty. The logic of Dorries’ position would be to say that doctors seeking to provide a life-saving blood transfusion to the child of Jehovah’s Witnesses would be insufficiently independent of the commerciality of the process to provide that transfusion to be allowed to advise on it. The organ donor services would similarly be too closely linked to the commercial aspects of carrying out transplants to be allowed to advise and counsel relatives of potential donors. Instead in that example, it would be better for those families to be provided with independent counsellors who, for example, may have religious views on the importance of being buried intact.

More broadly, much of Conservative economic policy relating to public services is inconsistent with Dorries’ ideas of independence from the financial benefits of providing the service. The Localism Bill and its aim of making all public services contestable will have the effect of giving more organizations, whether local not for profits, charities or large corporations a financial interest in the provision of public services. Many of these may be sensitive and involve advising people about the use of the services being provided. Must there be a presumption also of independence of advice in say referring someone to an outsourced addiction treatment service?

For that matter, couldn’t the NHS as it is be considered to lack independence? After all it gets its funding to carry out the same procedures that it is funded to advise and counsel on! This is one of the reasons why Louise Mensch MP’s suggested compromise amendment with its reliance on the independence of the NHS fails conceptually (as does the idea that neutral counselling could be an option – being pro-choice is as much a moral stance as being pro-life).

To be consistent, the proposal should therefore either be coupled with a rejection of the broader marketisation policies in the Bill or be broadened out to require similarly “independent” advice for a much wider range of procedures. The former would have Ms Dorries rapidly sidelined by the Government. The latter would be so obviously unworkable and wrong as to keep her reactionary Tourettes well off the front pages.

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What the Hell is going on? Don’t ask your lawyer

After the telegenic distraction of the riots, hackgate rumbles back into life. The DCMS Select Committee has published further correspondence provided to it following the appearances to give evidence of the Murdochs and Rebekah Brooks http://bit.ly/n2CvjI . At the same time, the “smoking gun” of a letter sent by Clive Goodman, the News of the World’s royal correspondent who was imprisoned for phone hacking has surfaced. In this letter, sent to News International as part of Goodman’s attempt to appeal his dismissal for that conviction.

The letter alleges that it was wrong to have dismissed Goodman on the basis of gross misconduct for hacking when it was widely known, discussed and approved of by NotW management including the then editor, Andy Coulson. The law firm Harbottle & Lewis were instructed by NI to advise on the prospects of Goodman’s appeal, were sent a number of emails by NI to review to prepare this advice and advised that there was no evidence to support the allegation that Goodman’s activities were known of by Coulson or his deputy. The Murdochs relied heavily on this advice when giving evidence to the select committee to Harbottle & Lewis’ irritation. This irritation was at least in part due to their inability to respond because doing so may have led to them being seen to have breached their duty of confidence to their client, NI. Since then, NI has agreed to waive the privilege in the legal advice to the extent that it is necessary to enable Harbottle & Lewis to assist in the Police and Parliamentary investigations.

Harbottle & Lewis’ response to the allegations is included in the latest set of documents published by the Select Committee http://bit.ly/nReyCo (this includes at pages B6 and B7, Goodman’s letter). While, unsurprisingly they have sought to (properly) place in context the advice they gave and the limited nature of the advice and instructions, the response is interesting because of what is unsaid. The media are seizing upon Goodman’s letter as being a smoking gun that blows away the defence raised by the Murdochs and Rebekah Brooks that they did not know about hacking and had been advised that it was not more widespread than Goodman and Geoff Mulcaire, the investigator he used (who was also imprisoned for his part in the activities).

However, although it is clear that Harbottle & Lewis were not asked to advise generally on whether there had been criminal activities undertaken by or with the agreement of NotW, they were asked specifically about the allegations raised by Goodman. Goodman also wrote a further letter requesting the disclosure of various items of correspondence and it looks from Harbottle & Lewis’ submission that the correspondence sought by Goodman was what was provided to it for review. This is consistent with the limited instructions (to advise on the Goodman claim). So, even leaving to one side whether it was right for NI to have appeared to rely on the advice from Harbottle & Lewis more generally, one thing that surprisingly does not seem to be disputed by the lawyers is that they concluded that Goodman’s claims, as they were to be pursued by him and on the basis of documents he knew to be in existence, were not supported by the evidence. That does not mean that there was not other evidence to support it, but that this other evidence was not known about by Goodman when writing his apparently damning letter.

The evidence that Goodman thought would support his claim for unfair dismissal did not do so and this is what Harbottle & Lewis have confirmed. What if the file of documents sent for Harbottle & Lewis’ review was incomplete? That certainly is possible on the basis of allegations that NI might have destroyed old records (not necessarily for malign purposes, document retention policies in large businesses are actually Newspeak because they are more about the normal practice for destroying documents). Harbottle & Lewis also note in their submission to the Select Committee (at para 5(l)) that some of the emails they did see were “only in cut off form”.

However, this would have required NI to be seeking advice that it knew to be limited and irrelevant to the limited purpose it was provided for on the basis of an intention to use it for a different purpose at an undefined later date. I don’t like conspiracy theories and think it more likely that NI did send Harbottle & Lewis precisely those documents which Goodman referred to so as to get good advice on the prospects of the litigation then being threatened. As they were documents which would have been likely to have been ordered to have been disclosed in the event of Goodman pursuing his employment claim, it does not really make a lot of sense to have withheld them from Harbottle & Lewis at the time. If NI had wanted a “certificate” to the effect of having done nothing wrong more generally, there are other ways in which it could have achieved this which would have been less convoluted and less susceptible to being found out.

Of course, this is nowhere near the end of the matter, but it does mean that the Goodman letter is incendiary but of limited probative value in itself. It remains the self-serving assertions of a convicted hacker unsupported by the documentary evidence it relied upon. Other documents and the truthfulness and believability of the evidence given by the participants in the events will be needed and without them, there is nothing very much.

UPDATE

I had an interesting exchange with Louise Mensch MP, one of the members of the Select Committee following first publishing this blog post. A point which she picked up on and thought to be particularly important was the series of exchanges between Harbottle & Lewis and NI on finalising the terms of the advice that was being given.

A first observation is that there is nothing intrinsically wrong or unusual about a client and their lawyers tweaking the wording of draft advice to come to a mutually acceptable form of words in the final, formal advice. Legal documents are nuanced things and both lawyers and their clients will perceive different nuances. Ultimately, lawyers will not agree to provide advice in terms which they do not believe to be defensible so the final version of the advice is reliable even if not the lawyers’ preferred approach.

Louise Mensch’s interpretation of the documents was that NI wanted Harbottle & Lewis to say that there was “no evidence” linking others to Goodman’s acts and that Harbottle & Lewis rejected this wording in terms and insisted on saying that there was “no reasonable evidence”. She said that this was important because “no reasonable evidence” implied that the lawyers had found “some” evidence and that what she interpreted as NI’s attempt to get the lawyers to say “no evidence” was itself evidence of NI trying to cover up the existence of “some” evidence. This does not make a huge amount of sense to me as evidence which was not sufficient to be “reasonable” was unlikely to have been good support for Goodman’s allegations. Be that as it may, the bigger issue I have with her approach is that it does not seem to be supported by Harbottle & Lewis’ account of the drafting process.

It is true that the initial draft of the advice stated:

 “we did not find any evidence which proved that [REDACTED] knew that Clive Goodman, Glen Mulcaire or any other journalists at the News of the World were engaged in illegal activities prior to their arrest.” (para 5(n))

However, this draft was the draft proposed by Harbottle & Lewis, not wording suggested by NI. In fact, NI’s initial instructions to Harbottle & Lewis stated that the internal review by NI’s heads of legal and HR “found nothing that amounted to reasonable evidence [of the Goodman allegations]” (para 5(h)(iii) and instructions email from NI at Appendix B page B1). NI did suggest changing “any evidence” in the Harbottle & Lewis first draft to “anything which appeared to us [ie Harbottle & Lewis] to prove” (para 5(o)) but this was not accepted and the final wording ended up as:

“did not find anything in those e-mails which appeared to us to be reasonable evidence that Clive Goodman’s illegal actions were known about and supported by both or either of Andy Coulson, the editor, and Neil Wallis, the deputy editor, and/or that Ian Edmondson, the news editor, and others were carrying out similar illegal procedures”

There is nothing in Harbottle & Lewis’ submission which suggests that there was a particular pressure by NI to say there was “no evidence” or that there was a fight by Harbottle & Lewis to water this down to “no reasonable evidence”. In fact, the record from Harbottle & Lewis suggests that this was not really debated – “no reasonable evidence” was NI’s position when seeking the advice, the first draft of that advice strengthened this to “no evidence” but the final agreed version went back to NI’s original formulation. NI’s suggestion of a change from “no evidence” to “anything which appeared to [Harbottle & Lewis]” can, if anything be seen as watering down the initial Harbottle & Lewis draft.

None of this is to say that there was absolutely no evidence anywhere of wider knowledge by NI or NotW management of illegal hacking. There may well have been. However, it is semantic pseudo-legal quibbling to focus on the changes in the draft advice to provide a eureka moment to say that, in the particular context of the seeking of limited advice from Harbottle & Lewis, there is a substantial admission of the truth of Goodman’s allegations.

When is an interview not an interview?

In most times this would be seen as a bit of a silly question or perhaps the feed line to a particularly pedantic joke. With the recent controversy over Johann Hari’s interviewing technique not to mention the intense scrutiny of journalistic practices by the News of the World and the simmering fight between Louise Mensch MP and Piers Morgan over whether he knew of voicemail hacking while editing the Daily Mirror, it is worth a second look.

In her recent libel case, Dr Sarah Thornton claimed against the Telegraph for libel in a review of a book she had written (“Seven Days in the Art World” http://amzn.to/ruUt5a). The High Court judgment can be found at this link and is surprisingly readable http://bit.ly/qYe3MG . The review, by Lynn Barber (whose teenage years formed the basis of the wonderful film, An Education http://amzn.to/oNyfEI) claimed that Dr Thornton had falsely said in the book that she had interviewed her. The normal and natural meaning of “interview” was explained by Tugendhat J as being where “one person asks questions of another so as to elicit an answer”. This sounds like a potential entry in the Encyclopaedia of Things We Already Know.

However, Ms Barber claimed that whether something is an interview or not depends upon how helpful and informative the responses given are. On that basis the allegations against Johann Hari might be even more grave – if the responses given by so many of his interviewees were so vague or unclearly expressed as to require cleaning up and replacement with quotes from other interviews and published works, perhaps he was wrong to have claimed to have conducted the interviews at all. Or, when I’ve done badly in a job application I could claim that I hadn’t in fact had an interview at all. Fortunately for us and the English language, the High Court Judge was rather more sensible. And it isn’t every day you can say that either.