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The King can do no wrong

George Archer-Shee died at nineteen, in what might almost be called a natural death for a young British man of his class at that time – he was killed in the First Battle of Ypres. His name is inscribed on the Menin Gate but he has no known grave.

He shared the manner of his death with thousands of others, but, quite against his own wishes, his short life before that had taken an unusual turn. At the time of his death he had been famous for six years.

It all started in 1908 when George Archer-Shee was thirteen and a cadet at the Royal Naval College, Osborne. He was accused of having stolen a five shilling postal order intended for another cadet. An elderly post office clerk said she remembered Archer-Shee as having cashed two postal orders that day, one of his own (which no one denied) and the stolen one. Archer-Shee protested his innocence to no avail; he was expelled without much ceremony.

That should have been that, a minor story of Edwardian disgrace, but his father refused to take it lying down. He engaged one of the most celebrated lawyers of the day – Sir Edward Carson, famous for many reasons, some of which are still controversial today, and determined to pursue the case to the highest court in the land. But there was a slight problem: if I have understood it right, at that time one could not sue the Crown.

Quoting a 1939 article in the Pennsylvania Law Review:

It was early recognized in England that while an action could not be brought against the King, yet as the “fountain of justice and equity” he would entertain petitions from his subjects for the redress of their wrongs; and it was established during the reign of Edward I that the subject might bring a petition of right, which, if approved by the King, would be heard in his courts. The King indicated his approval of the petition by writing on it, “Let right be done”. A petition of right, as distinguished from a petition of grace, asked “for something which the suppliant could claim as a right, if the claim were made against any one but the King”. Originally a petition of right was employed only to recover some interest in land, and there was doubt whether it would lie to recover chattels, but by the time of Henry VI it was settled that it would lie for the recovery of goods and chattels. It was not until 1874 that it was decided that the petition would lie for breach of contract. It would never lie for a tort, for the King can do no wrong.

At the time the petition of right was filed in the Archer-Shee case the law was clear that those in the service of the Crown, whether military or civil, could be dismissed at will and were without remedy by petition of right or otherwise.

Carson won in the end, as he usually did. Archer-Shee was exonerated. And the important precedent was set that the King can do wrong, and can be sued.

So far, so Whig history. The setting of that precedent is how I come to know about the case. I think I read a rather good account of it and why it mattered in Look and Learn magazine in the mid 1970s. Terence Rattigan wrote a play loosely based on the story called The Winslow Boy. It has been filmed at least twice.

But a more recent event also involving the Post Office – and the refusal of the Post Office to admit the possibility of error – and the refusal of the British State as a whole to admit the possibility of the Post Office being in error – and the blackening of the names of innocent people – made me think that we need to learn that lesson again.

Let the BBC tell the story:

Post Office scandal: What the Horizon saga is all about

A group of former sub-postmasters and sub-postmistresses have seen their names cleared at the Court of Appeal after the UK’s most widespread miscarriage of justice.

It marks the latest stage of a computer scandal, and a long and complex legal battle, which could leave the Post Office with a huge compensation bill.

Between 2000 and 2014, the Post Office prosecuted 736 sub-postmasters and sub-postmistresses – an average of one a week – based on information from a recently installed computer system called Horizon.

Some went to prison following convictions for false accounting and theft, many were financially ruined and have described being shunned by their communities. Some have since died.

Edit: In the comments Rudolph Hucker pointed out that the doctrine driving the Post Office’s reckless prosecution of so many of its own employees bore an even closer parallel to the doctrine, supposedly overturned by the Archer-Shee case, that “the King can do no wrong” than I thought. He linked to a piece from the radio station LBC called ‘The Post Office were mendacious in the way they denied justice’ The title is a quote from Nick Wallace, a journalist who has been covering the Horizon scandal for many years.

Due to its long legacy, the Post Office has a “proximity to state power that is almost unparalleled.”

Mr Wallis continued: “It was able to use its own investigation and prosecution units to bypass the CPS and the police force to prosecute its own employees to the tune of one a week for 14 years. There were 736 successful convictions just using Horizon IT evidence.”

He told Shelagh that when the Post Office found out its prosecutions may be unsafe, “they covered it up.”

“They went out of their way to say to campaigning MPs and the Justice for the Postmasters’ Alliance that nothing was going wrong with the IT system and there was nothing wrong with their prosecution.”

They then “threw tens of millions of pounds trying to deny the subpostmasters justice,” Mr Wallis said.

“They were mendacious in the way they went about denying justice and they colluded with the Government in order to do this, because the Government is 100% shareholder of the Post Office and it has skin in this game.

Give me your huddled masses yearning to breathe free

“Who reads the Daily Mail?” asks Ed West in Unherd.

Yet while the newspaper’s power is waning, it has now opened up a new chapter beyond, with the Mail Online having just overtaken the New York Times to become the most visited newspaper site on earth, drawing over 50 million unique visitors a month.

The Mail is particularly successful in the US, where it has found a niche among mainstream news sites that are both dreadfully boring and ideologically dishonest, so deliberately cryptic that you have to be a Bletchley Park veteran to actually understand what is being reported. The Mail is popular with many Americans because, in contrast, it tries to tell a story – which is, after all, what journalism should be about.

Some fallacies will never die

“SNP MSP claims border with England would ‘create jobs'”, writes Tom Gordon in the Herald.

AN SNP candidate has claimed that a new a trade border between Scotland and England resulting from independence could “create jobs”, despite the impact on business.

South Scotland MSP Emma Harper, who is challenging a Tory incumbent in Galloway & West Dumfries, was accused of spouting “half-witted nonsense” after the comment.

Speaking to ITV Border, Ms Harper criticised Boris Johnson for creating a Brexit hard border down the Irish Sea despite previous assurances it wouldn’t happen.

Asked “so why add another one here?”, she replied: “If a border will work, we can show that a border will work, there are issues that have been brought to my attention that show that jobs can be created if a border is created.

Job creation for guards: sounds just the Scottish National Party’s style. Perhaps that is why they are so keen on the Hate Crime (Scotland) Bill. Think of the career opportunities for snoopers and informers!

Are Extinction Rebellion more popular than I thought, or was it just that jury?

“Jury acquits Extinction Rebellion protesters despite ‘no defence in law’”, reports the Guardian.

I remain a supporter of the principle of jury nullification, but, sheesh, guys, this isn’t 2018. Obviously I am in a bubble. I had thought that the blowback after XR stunts like disrupting public transport and doorstepping Sir David Attenborough – stunts that seemed calculated to target potential allies – had turned most people against them. Evidently not all.

I predicted this, it didn’t happen. I predicted this, it didn’t happen. I predicted this, it’s happening.

European MPs targeted by deepfake video calls imitating Russian opposition

Five Eyes, one closing

“Five Eyes on China cut to four as New Zealand puts trade first”, reports the Times.

New Zealand has broken with Anglophone allies over using the “Five Eyes” intelligence-sharing network to confront China, reversing an agreement to expand the network’s remit.

Nanaia Mahuta, the foreign minister, declared that New Zealand was “uncomfortable” with pressuring China and wanted to pursue its own bilateral relationship.

The network, a Cold War-era partnership to share intelligence, took a new turn last year when it began issuing statements as a single entity, including condemning China’s human rights record.

Last May defence ministers from Britain, America, Canada, Australia and New Zealand endorsed an expanded role with a public commitment not only to meet shared security challenges but “to advance their shared values of democracy, freedom and respect for human rights”.

Mahuta, 50, said she had informed the other Five Eyes members of New Zealand’s changed position.

Ms Mahuta waxed poetical about the relationship between New Zealand and China:

She symbolised the China-New Zealand relationship as one between a “dragon and taniwha”, a serpent-like creature from Maori myth.

“I see the taniwha and the dragon as symbols of the strength of our particular customs, traditions and values, that aren’t always the same, but need to be maintained and respected,” she said. “And on that virtue we have together developed the mature relationship we have today.”

Oddly, the Times report makes no mention of the Prime Minister of New Zealand, Jacinda Ardern. If only she knew of this cynical act of realpolitik by one of her ministers!

Who cares about what these old white men think in modern, progressive Scotland?

“Writing in Scottish Legal News today, Quis? – a group of senior retired lawyers who have held high office in Scotland – express concerns over the Crown Office’s behaviour during the Salmond inquiry and call for reform to prevent prosecutors from overstepping their role.”

I would imagine Scottish Legal News is usually rather a staid journal, of interest only to legal professionals and legal journalists. Give ’em the clicks, this is important.

For instance, this is a sinister development:

Contempt of court orders protecting the identity of witnesses and victims of crime were once a relatively unusual feature of our legal landscape. No more. At last count there were more than 400 such orders currently in force in Scotland alone.

and so is this:

When did Crown Office, our state prosecutors, become our state censors?

When did Crown Office get the power to tell anybody to keep their correspondence secret?

Some might reasonably ask if what has been going on has remarkable similarities to English ‘super injunctions’, where you can’t even publicise the fact that the injunction exists, and some might also reasonably ask if this is quite simply ‘bullying’ tactics in order to achieve the Crown Office objective of removal of material which Crown Office asserts is necessary for protecting identities.

That would be a perfectly legitimate objective – if it was right. It will be borne in mind, however, that in a recent high-profile prosecution for such a breach, 50 per cent of the material alleged by the Crown to amount to contempt was found by the court not to be a breach of the court order.

Kenyans challenge their allotted role

“Don’t give us $2bn loan, Kenyans tell IMF”, reports the Times.

A $2.34 billion bailout for Kenya from the International Monetary Fund (IMF) has provoked anger among its citizens rather than relief.

Since the three-year package was disclosed, the IMF’s social media sites have been peppered with complaints under the hashtag #StopGivingKenyaLoans. A petition demanding that the loan be cancelled has gathered a quarter of a million signatures in a few days.

The east African state is already struggling to pay off debts that are expected to peak next year at 73 per cent of GDP. President Kenyatta has admitted that every day $18 million is lost from state coffers to corruption.

In a post on the IMF Facebook page, Mwihaki Mwangi said that the loan would do more harm than good. “Stop lending money to the Kenyan government,” he wrote. “It ends up in a few corrupt pockets. No change in living standards to the common citizens. We are becoming poorer and poorer. Heavy taxes levied on our meagre salaries. Reverse the loans.”

A fine speech by Joe Biden

Joe Biden, addressing the Senate of the United States:

“In the summer of ’37 Roosevelt had just come off a landslide victory over Alf Landon. He had a congress made up of solid New Dealers. But the nine old men of the court were thwarting his agenda. In this environment, Roosevelt – and remember this whole adage about “power corrupts and absolute power corrupts absolutely” – corrupted by power in my view – unveiled his court-packing plan. He wanted to increase the number of justices to fifteen, allowing himself to nominate those additional judges. It took an act of courage on behalf of his own party institutionally to stand up against this power grab.”

Video: Biden: “Court packing is a power grab.” (2005)

The title of the YouTube video might have given the game away: that eloquent speech by Joe Biden took place in 2005. The Joe Biden of 2021 does not speak as well in any sense: “Biden Appoints Court-Packing Commission – Puts Conservative Supreme Court Justices In His Sights”. The link goes to an article by Mary Chastain of Legal Insurrection, via Sarah Hoyt of Instapundit.

We need to listen to Black Lives Matter

We need to listen to BLM so we know what sort of people they are.

Janet Powe of BLM UK writes:

SEWELL COMMISSION WAS WRITTEN BY HOUSE SLAVES

Note for readers from outside the UK: a report recently issued by the government Commission for Race and Ethnic Disparities said that, although racism still remains in the United Kingdom, the UK’s relative success in removing race-based disparity in education and the economy “should be regarded as a model for other white-majority countries”. The black man being called a “house slave” by Janet Powe is the Chair of the Commission, Dr Tony Sewell, an educational consultant and author.

A Cambridge professor of postcolonial studies, Dr Priyamvada Gopal, was also displeased by the report. Dr Gopal first questioned whether Dr Sewell really had a doctorate, and, when informed that he did, set a new standard for gracious acknowledgement of error by saying that “Even Dr Goebbels had a research PhD.”

A heretic speaks, the mob… cheers?

“Boris Johnson will be branded a Covid serial killer but no one will lay a glove on our bloated NHS”, writes Jeremy Clarkson in the Sunday Times.

Jeremy Clarkson that Jeremy Clarkson – is rich and famous and has a well-established persona as an opinionated loudmouth. He can get away with saying things that the ordinary man or woman could not get away with. Nonetheless, I wonder if he did not take a swig of liquid courage before typing this heresy:

All those things contributed to our high death toll, but none to quite the extent of the biggest problem. And this certainly won’t be raised in the inquiry. That the NHS is useless.

Oh I know you’re all flying those rainbow flags and that every night last year you went out and banged your saucepans together. So you don’t want to hear it. But you were clapping a big, stupid, expensive monster.

I’m not talking about the doctors and the nurses, of course. Many of them are far from useless. But the organisation they work for? Dear God in heaven, it’s so far past its sell-by date, you’d die from taking a single whiff of it.

The problem is simple. Unlike every successful entity, it does not exist to make money. It exists to spend it.

If he did, he didn’t have to. The Times commenters loved it. Here are the first sentences of the most recommended comments:

“Bullseye Mr Clarkson, and whilst the vast majority of care staff are acceptable, good or excellent, there is a significant minority who shouldn’t be in the job. Laziness being the main problem.”

“You are omitting the elephant in the room – hospital hygiene.”

“Clarkson is spot on. Abolish the NHS, it’s useless.”

“Nailed it. My heart sank the other day when I saw a survey which suggested that the NHS was the thing which made most Britons most proud.”

“JC is spot on. The NHS is a sacred cow and no politician would dare to challenge its behemoth incompetence as they’d be unelectable.”

“As a doctor of over 25 years I can sadly recognise this theme. The are a whole raft of people I work with that I can’t help but think “if their job didn’t exist it wouldn’t make a blind bit of difference”.”

As ever, remember that Times commenters are not representative of the nation. They are not even representative of Times readers. But I do not think you would have seen that response from Times commenters to the opinion that the National Health Service is a “big, stupid, expensive monster” before the pandemic.

By the way, many of the comments go out of their way to express gratitude to NHS staff, and several of them say that the vaccine rollout has shown the NHS at its best. But in all the praise there is something reminiscent of the way Britons spoke of the British Empire in 1945. The Empire’s extent was never greater than in the year of victory. But they knew in their hearts it had to go.

Safely under supervision every minute of the day

“School almost ‘eliminates bullying’ with break-time ban on games”, the BBC reports.

A school claims to have almost eliminated bullying by banning games like football at break times.

Instead, students at Hackney New School participate in supervised quizzes, poetry recitals and other activities, including chess and choir clubs.

The school says there have been only five reports of bullying, including cyber bullying, in the last year.

Head teacher Charlotte Whelan said: “A school without bullying sounds like a utopia but it is achievable.”

I do not doubt that it is achievable. Greater safety from ever having a bad experience is always achievable – at the cost of being cut off from experiencing anything much at all.

The students, aged 11 to 16, are still taking exercise during breaks and PE lessons, but sports are “more structured” and supervised.

“The school has been completely transformed and the students are really thriving,” Ms Whelan said.

Rather than kicking a football around or jumping skipping ropes in the playground unsupervised, students practise sonnets by classic poets like Shelley and Tennyson or quiz each other on capital cities, reports the Local Democracy Reporting Service.

At certain times when I was a schoolgirl I would have been glad to escape the cruelty and cold of the playground. It was nice when I got to the Lower Sixth and we were allowed to spend the lunch hour in a common room. Unprompted, we literally did have a phase when our favourite activity was to quiz each other on capital cities (Mongolia – Ulaan Bator, Botswana – Gaborone), and I would have welcomed a little more Shelley and Tennyson and a little less depressing modern poetry in my English lessons.

To give children the choice to engage in indoor and/or structured activities in their free time, whether because such activities are a safe harbour from bullies or just because these are the things they enjoy, is good. To deny them the chance to ever kick a ball and skip and play tag and scream and quarrel and make up without being under the eye of authority is inhuman.

It is not just unplanned social activities between groups of children that Ms Whelan wants to put a stop to; she also says she wants to be “doing more for pupils” in terms of preventing them from “aimlessly wandering the playground”. Heaven forbid that they have time to walk and think.

Edit: Several commenters have rightly said that to suffer bullying in childhood is a terrible thing that can have lifelong effects on the victims. But surely that is best answered by giving children as far as possible the chance to follow their own judgement as to where they are safest and happiest. The lunchtime club ceases to be a haven from bullies if the bullies are forced to be there too.

Back in 2003 Brian Micklethwait wrote about how well the children behaved in a voluntary karate class he observed.

What struck me, so to speak, about these “martial arts” classes was that although the children present may have supposed that all there were learning was how to be more violent, what they were really learning was no less than civilisation itself.

The children were all told to get changed into their Karate kit in an orderly fashion, and to put their regular clothes in sensible little heaps. They all lined up the way he said. They all turned up on time. They left the place impeccably clean when they’d finished, all helping to make sure that all was ship-shape and properly closed-up when they left.

Were these children being “coerced”? Certainly not. They didn’t have to be there, any more than The Man had to teach them Karate if he didn’t want to. If they wanted out, then out they could go, with no blots on their copybooks or markings-down on their CVs.