September 29 2019

It is generally a good idea, when losing a case before a court or regulatory tribunal, to concede with as much good grace as possible and to keep your immediate thoughts about the idiocy of the judges to yourself.  No good will come of it and you will look like a sore loser.  No-one sensible will pay any attention to what you say, your complaints falling into the “Well they would say that, wouldn’t they” category.  Even worse than being thought a sore loser is being thought of as your case’s Mandy Rice-Davies.

You may think that the tribunal or court may well have erred in law or fact or failed to take coherent and well-argued arguments into account or not given them the weight they deserved.  But it will be for others to make the considered analysis that any decision, particularly any important or controversial decision, needs.

There has recently been such a decision in relation to Britain’s constitutional arrangements, an area of law which does not normally make it to the front pages of anything.  Despite this, the Supreme Court’s decision on what prorogation of Parliament means and how such a power should be used by the executive is very well worth reading.

Reflections on it, those missing documents relating to how the government reached its decision – still to be provided to Parliament, despite its request – and the legal advice the Government received can be found here.

A companion piece to the Supreme Court’s judgment is this year’s Reith Lectures, a series of five lectures by a former Supreme Court judge, Lord Sumption, on the relationship between law and politics.  For all the fuss raised by over-excitable commentators (and even some apparently parti pris lawyers-turned-politicians) about the former straying into the latter, this is an argument which is as old as time itself. Those in power have always chafed when any sort of restraint is placed on their power, whether it came from the Church or law or Parliament or even the pesky people. And now those troublesome – and independent – judges are the latest to remind rulers that they too are subject to the law.

Judicial independence is there to protect the judges from over-mighty politicians. But much more importantly  – and this is usually forgotten, it – and the rule of law – are there to protect us.

Let the last word go to a former Lord Chancellor, Thomas More (as imagined by the playwright Robert Bolt in A Man For All Seasons):-

“And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”  

December 31 2018

2018 has been a year for anniversaries, September bringing forth a slew of articles about the financial crash 10 years on and a number of books by learned professors (to add to the ones already written about the fall of individual institutions) seeking to make sense of it all.  See, for instance, Adam Tooze’s “Crashed: How a Decade of Financial Crises Changed the World”.

But despite the colourful characters, scandalous activities and stories aplenty, it is curious that in the last decade novelists and playwrights have largely shied away from writing about the world of finance.  It is an odd omission.  19th century writers were much less shy: see William Thackeray’s Vanity Fair with its wonderfully sardonic and cynical and oh so apposite to our times take on a world where “everyone is striving for what is not worth having“.  Or Balzac with his tales of how money – having it, not having it, wanting more of it – corrodes personal relationships.  And not forgetting our very own Dickens, whose every novel is stuffed with characters for whom debt was an ever-present – and often malign – reality.  Mr Micawber stands as an object lesson to those who think that living beyond your means indefinitely is sustainable.

There have been a few attempts to make a drama out of a crisis: Caryl Churchill’s expletive-ridden “Serious Money”, written in 1987, just after an earlier stock market crash (and featuring the International Tin Council litigation, the very first case I was involved in as a junior solicitor) was one of the earliest.   Not a play likely to feature in the repertoire of amateur dramatic societies, given its colourful language.

A few years later “Capital City” was a TV series based on the lives and loves of City traders in the late 1980’s when Britain learnt to fall in love with making Loadsamoney, as much and as fast as possible and with precious few scruples about how it was done.  This was the era of the Guinness affair and Robert Maxwell and BCCI.  Enough larger than life characters and juicy stories and morality tales there for even the most mathematically challenged writer.  But even that great State of the Nation playwright, David Hare, whose plays in the 1990’s: “Pravda” (journalism), “Racing Demon” (the Church of England), “Murmuring Judges” (the law) and “The Absence of War” (the Labour Party) sought to take the moral temperature of contemporary Britain and its institutions, ignored the tumultuous changes in the world of finance and how they were changing British society more radically than even the most provocative newspaper or campaigning politician.

Lucy Prebble’s “Enron” in 2009 succeeded in London but failed in NY.  More recently, the BBC’s McMafia series focused on Russian money laundering.  John Lanchester’s 2012 novel, “Capital”, was set around the time of the 2008 crash but mainly showed the mysterious alchemy whereby ordinary London homes turned into money-making machines for those lucky enough to acquire them when they were, well, just houses. Sebastian Faulks’s “A Week in December” from 2009 had as one of its main characters someone rumoured to have been based on a well-known – and once successful – trader and featured a naive junior FSA regulator (the resemblance being purely coincidental in the latter case, one assumes).  But whatever the books’ other merits, the characterisation of the bankers, traders and regulators was cartoonish and one-dimensional.

Lanchester’s “Whoops: Why Everyone Owes Everyone and No One Can Pay” was a better attempt to understand the mysterious world of finance.  As was the US documentary “Inside Job”.  Maybe only Michael Lewis has been able to present the human stories present in the financial world in a way which feels like fiction.  Perhaps the dramatisation of real life events (“The Big Short” and Massini’s “The Lehman Trilogy”) is the only way to make sense of this world.  Perhaps.

It is too easy to think that no-one will understand – or care – about the technicalities and complexities and arcane language of modern finance, let alone about the people whose lives revolve around it.  A pity if so.  It is not the numbers which matter but the instincts, proclivities and emotions – what Keynes called “animal spirits” – which determine what people do.  There is little that is more emotional than people’s behaviour around money.

If the range of human behaviour on show in the run up to, during and after any financial scandal is not a subject for writers, it is hard to know what is.  All human life is there, after all.

Photo by Aaron Burden on Unsplash