Educating future lawyers...

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Let me introduce you to Dr Ian Grigg-Spall:

Dr. Ian Grigg-Spall is Director of Studies of all undergraduate law courses at the University of Kent, and solicitor of the Senior Courts of England and Wales. He also acts as the liaison officer with the English Law Society and Bar. He taught previously at the University of Cambridge, and at the Boalt Hall School of Law, Berkeley, California.

And - courtesy of Samizdata:

The Left needs to defend the riots; not to valourise the burning of grannies’ cars, but to make clear that we reject the whole bourgeois construction of events, that we stand in solidarity with the oppressed and that, when it comes to it, we will, without hesitation, join the “rioters” to overthrow the legitimised exploitation, state-sanctioned violence and sham “democracy” that oppress us all.

Hey, I might be wrong but I bet he went to public school!

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The attack on private education – introducing the Education Review Group

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Many readers will be aware of the Charity Commission’s review of how – or whether – private schools with charitable status apply that status in terms of providing “public benefit”. You will also appreciate that the review was motivated primarily by political objectives rather than by any suggestion that these schools lacked charitable purpose.

There is to be a Charity Tribunal to address this matter – essentially removing decisions from the Charity Commission itself – prompted by Dominic Grieve, the Attorney General:

The Attorney General, Dominic Grieve, has asked the charity tribunal to clarify how charity law should operate in relation to fee-charging independent schools.

The move has been prompted by the long-standing dissatisfaction of the Independent Schools Council about the Charity Commission's guidance on public benefit, which it says is a misinterpretation of the law.

This Tribunal will consider the narrow questions raised by Mr Grieve as well as the judicial review requested by the ISC. The hearing is scheduled for May.

The latest turn in this story has been the addition of the Education Review Group (ERG) as a party to the hearing on private schools and public benefit. The ERG is described as:

“...a body set up to advise the Charity Commission on public benefit in the education sector.”

So, one would assume, a carefully balanced group of experts drawn from academia, the law and education. And on the face of it this is the case – until you see who is involved:

Fiona Millar, Writer and former Special Advisor, School Governor

Melissa Benn, writer on education issues

Plus this person:

From school meals to school selection policies, Margaret Tulloch has been a tireless campaigner for state education for half a lifetime.

The ERG consists of a name check for opponents of private education and supported of comprehensive schools. It is not – despite the presence of a raft of academics – remotely balanced. So it will come as no surprise that its evidence to the tribunal is highly critical of private schools:

"Private schools have significant ‘disbenefits’ to society: for example, by removing able and committed pupils from the state sector and by being one of the most significant barriers to social mobility," it says.

"For this reason, they cannot show public benefit by pointing to debatable or nebulous wider benefits, such as saving money for the state or providing well-educated pupils."

The ERG presents these – and a range of other misleading and sweeping statements – as “facts” to be considered by the Tribunal.  However, what really concerns me here is the clear evidence that the Charity Commission did set out to remove charitable status from private schools and, through the ERG, created a ‘front organisation’ to advise it made up entirely from opponents of private education, selection, grammar schools and adequate school discipline. The very people whose influence condemned – and continues to condemn – tens of thousands of children to a life of semi-literacy and menial jobs.

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Fuzzy boundaries, rational behaviour, rule-breaking and Laws

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As the newspapers and airwaves are dominated by another example of a politician interpreting expenses rules rather creatively, I thought I would join in with the Great David Laws furore. Not to make a judgment as to whether he should resign, should abase himself before the public or have fifty lashes with the cat o’ nine tails, but to ask a broader question about rules and why we break them.

In doing this I am minded of the fact that we all break rules – sometimes because we don’t like them or agree with them but mostly because either we believe we will get away with our transgression or else the likely punishment is too minor to be a real concern to us. I recall being told of how, outside a certain school, a particular car was ticketed (for parking right outside the gates, on double yellow lines, on a corner within a set of traffic lights) time and time again. In the end, a policeman spoke to the woman as she parked and was told ‘oh, just give me a ticket, my husband will pay it.’

In this case the woman opted to take the consequences of parking closer to the school gates. She saw it as worthwhile – an affordable risk – and behaved accordingly. In a similar manner we (or most of us) routinely break speed limits and trim the edges of a host of other regulatory constraints (tell me you’ve never driven the short hop from the corner shop to home without putting on your seatbelt). The chances of getting caught are very small and – in most cases – the consequences that follow being caught are also small.

Apply this to other circumstances in life – have you ever been given a blank receipt by a taxi driver? What about that insurance claim – how creative were you? And what about sneaking an unwanted letter back into the bag while playing scrabble? I could go on listing examples – petty and not so petty – of how we are surrounded by the temptation of rule-breaking. Indeed some folk take the view that it is perfectly OK to be entirely selective as to which rules to abide by and which rules to ignore.

Partly, all this is a plea to take heed of Christ’s advice in Matt 7:5 (remove the log from your own eye and you’ll see more clearly to remove the mote from your brother’s) but mostly it’s to understand that like everything else, our attitude to rules is entirely rational. Rule-breaking is perfectly normal, rational behaviour – it must be because we all break rules and many of us do so every day. At the same time, our irritation, annoyance or even anger at the rule-breaking of others is also rational behaviour. Plus of course our insistence that rules are tightened, punishments lifted and transgressors exposed.

Rules serve one of two purposes – they enforce equality (by which I don’t mean modern “equalities” but rather that rules ensure we all play the same game – that our engagement with society is ‘fair’) or they allow control. In recent times we have seen a significant sub-set of laws for control – the use of regulation to ‘change behaviour’. In general we place greater importance on laws of equality since these are the laws that protect us and our property. These laws enjoy overwhelming support and their breach is seen as a very serious matter.

Rules of control, however, are less likely to enjoy overwhelming support as they are about governing our behaviour rather than regulating the game. We also (and this is reflected in punishments) see the boundaries of these laws in very fuzzy terms being willing to forgive less significant transgression under some circumstances. This brings with it the risk of arbitrariness – on the agency charged with enforcement acting inconsistently. While there’s no evidence of police bias against red cars, you are more likely to be stopped by the police if you are black and many enforcement decisions are based on value judgments made by officers – all this is evidence of inconsistency. And, as rational actors in this game, we do not like inconsistency since it means we cannot know if the rules of equality apply. Yet we acquiesce in fuzzy applications – we see it as OK for the copper to let the woman off a speeding fine but to slap the full fine on the boy racer who commits the same offence.

And, of course, where there is expectation of leniency there is a greater incentive to break the rules. Look, for example, at the relatively benign world of fines for overstaying in a car park. Even where the risk is considerable (a substantial charge to remove a wheel clamp) people routinely believe that the “I was only a couple of minutes late” argument will work. But look at it from the operator’s perspective and such fuzziness is not rational – enforcing the time is entirely sensible as the alternative is to have space that is occupied but not income-generating.

For public enforcement agencies, on the other hand, fuzziness gives power. The ability of the copper to stop or not stop, charge or not charge is central to their authority – these choices are exercises of arbitrary power. If officers simply enforced the letter of the law, their power would be constrained entirely by what is says in that law. Whereas we allow fuzzy edges to decision-making – call it discretion - you move the power away from the law and onto the individual officer.

Which brings us back to David Laws – because the administration of MPs expenses was deliberately vague, we have a system where fuzzy boundaries allowed for arbitrary and contradictory decisions. And now, with a new regime, it’s become like the attractive woman stopped by the gay cop – all the usual eyelash fluttering and cleavage revelation has no effect. She gets the ticket. Under the regime that existed before, Mr Laws’ behaviour was entirely rational – today with clear boundaries of permission, such behaviour is not rational.

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Update: It seems that David Laws has resigned - which shows he has a little bit of class in my judgment. In doing this we see once again the triumph of the prurient and of those who merely seek political advantage from others mistakes. I ask whether those baying loudest for his head on a platter are so very innocent - or are they just the same but so far fortunate enough not to get caught.

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