The median and the message

How does the man on the Clapham omnibus stay in shape? NHS Choices has an idea.

It’s fairly reasonable for NHS England to worry about lazy weekends. The British population is very inactive, worrying given the extraordinary physical benefits of regular exercise. The limited effect of the UK’s public health campaigns urging us to take more exercise despite years of messaging is also undeniable.

The above tweet does helpfully illustrate a pervasive style that characterises most British public health messaging. You could fruitfully compare it to the five-a-day campaign, guidelines setting out the number of alcohol units men and women should respectively drink, even the laughable ‘Go for Gold‘ effort to reduce the potential carcinogenic effect of overdone toast. The easiest way to describe it is as rational: clearly linking a defined behaviour with a defined problem, and offering a solution with a different activity.

What I mean by this is best illustrated with a simple thought experiment. Consider the sort of person whose weekend is largely sedentary: football on the TV, alcohol in the pub or at home, fried food, transport largely by car. Then, ask: is this person likely to be willing to undertake a ‘sofa workout’ at all? To ask the question is to answer it.

To expand: NHS Choices appears ignorant of selection problems. The traits which lead to couch potato syndrome are precisely opposite to the traits which would induce someone to undertake exercise on the sofa towards a defined health benefit. The problem is not the activity being recommended, the problem is that the people most in need of exercise are also the least likely to be responsive to the prescription they get. The same is true of five-a-day campaigns. If you like, the sort of person who is likely to carefully mediate what they eat, count portions, plan meals and so on is probably quite conscientious and has a little above average intelligence; she probably has a university degree, or would have if she came of age after the expansion of higher education in the 1990s. In other words, the only people on whom the messaging works are the people who will be fine anyway. The marginal benefit is almost nil.

This strikes me as a particularly serious problem in nations like the UK, where virtually all policy of import in both the private and public sectors is designed by university graduates – who, by definition, are selected for above-average conscientiousness and above-average IQ. The trouble is that, by definition, half of the population have below-average IQ and below-average conscientiousness.  It might be natural to assume that this messaging will work if everyone around you talks casually about getting their five-a-day or their half-hour of exercise; when it comes into contact with the average person, it will likely be less effective. As a result, we see the same problems again and again: public advice made for homo economicus, who calmly, rationally and dispassionately analyses his habits to eliminate the bad and promote the good. It should not need to be explained that most people simply do not (and cannot) think in this way. Public health, without coercion, at scale, remains an unsolved problem.

To even begin to address this, it is not enough to “speak broadsheet to graduates“, but we have fewer and fewer interpreters as the intellectual selection processes for powerful institutions become stronger and more rigid. Our politics is increasingly designed for a particular grade of intelligence and for a particular set of habits of mind, so it becomes hard to see where the imagination necessary to cross the rationality gap might come from – and how the gap can even be pointed out to those too bright to see it.


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Some book recommendations, 2017 edition

I haven’t been very hot on my reading this year – or perhaps I’ve been rather too hot (given the Unfortunate Incident in February that destroyed about half of my books, inter alia). However, from what I have read I can give you in no particular order a few recommendations and tell you one book to avoid.

Scooting around London on the Tube in the wake of the Inauspicious Thing in February, I managed to read all of Anthony King and Ivor Crewe‘s monumentally good The Blunders of Our Governments. I was introduced to this book by a friend who evangelised about it for some weeks; I borrowed a copy from another friend whom I was staying with (to replace the copy destroyed in the fire) and ate it in two days flat. London is very dull without ID, money and a door key. The book is a pretty harrowing read. It’s not something you should read if you want to be optimistic about the governance of the United Kingdom; at the same time I think it’s pretty much required reading if you’re in any way interested in how we run our society. The structure of the book is a little bit idiosyncratic and it’s a bit too long, but it benefits from its highly readable style and its encyclopaedic approach: cataloguing every single catastrophe in British policy-making in a roughly 20-year period since the poll tax and explaining why they happened doesn’t sound like a gripping read, but trust me on this.

I finally got around to reading Jane Austen‘s classic Pride and Prejudice in April, a novel I hadn’t expected to like at all. I expected a dull but worthy read, but in fact found myself cackling with laughter on public transport and close to tears at the climax. The thing Austen does particularly well is the sense of suspense, the time being built and built and built – you really notice just how long it takes for these relationships to be brought to completion, and how urgent it is for young women of this era to marry and marry early. The social commentary is all the more effective because it’s subtle, and more is said in the absences and conscious avoidances than in the fabulously witty dialogue. Again, if you haven’t read it, you’ll finish it much faster than you expected to and be a lot wiser for having given it a go. Elizabeth Bennet is also one of the most winsome protagonists I’ve ever read and I could spend days in her company. She’s great.

Speaking of wisdom, I couldn’t write a post like this without mentioning Adam Tooze‘s knock-out work The Deluge: The Great War and the Remaking of Global Order 1916-1931. It is not an easy read. Tooze is a talented writer, but the content – a dense economic history of the world with a particular eye on Europe, America and the Far East in the aftermath of the First World War – is not easy to distil into a volume as slim and portable as this. Why does it work? First, its detail is intimidating but never alienating: Tooze does not shy away from complexity but he is a skilful teacher who believes the reader is as intelligent as (but less educated than) he is, and he is a patient guide to a period which seems surprisingly alien for all its sharp cultural memory. Second, and this may be subjective and very personal, but Tooze resists the trend to write in anticipation of the future. Lesser writers would signpost everything with references to the horrors of 1939-45, but here they are only briefly and rarely alluded to. Hitler and Tojo are effectively bit parts, a genuine shock when most relatively popular history likes to treat the First as mere prologue for the Second. His theory is really grounded by this tight focus and studious refusal to hit narrative clichés. It’s gold and cheap as chips, so read it.

The fourth and final book I’d like to touch on is one which I’d counsel you to avoid: the winner of the 2016 Man Booker Prize, The Sellout by Paul Beatty. A dark satire of a black man responding to American police brutality and white-flight by instigating slavery and segregation (it makes sense in context), it was highly praised when it came out. I found it intensely frustrating. It seemed to have been written largely for shock value, and lets its joyous wallowing in all the sordid details of its narrative get somewhat in the way of its message to the point of confusion and self-indulgence. Beatty’s gift for description (particularly the sequence with the orange tree towards the end, which is beautifully realised – the reader can almost smell the sweet juice soaking into the pages) is not really well-used here. It’s a righteously angry book, but anger is quite boring unless disciplined (The Handmaid’s Tale and Animal Farm spring to mind). It bears comparison with another gallows-humour Booker winner, Aravind Adiga’s excellent The White Tiger from 2006. Adiga’s novel is a blistering condemnation of the new Indian economy and the path the country took since independence in 1947 but written with brio and panache and a wicked sense of humour; Beatty’s is tiresome and wears out its welcome rapidly, and is strikingly unfunny for a book laden with blurb quotes about the quality of its comedy. Not really worth your time. It’s no stinker, but it is quite annoying.

Happy New Year to everyone. Next year might see a better-resourced list and I’m always looking for recommendations.

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Haidtening the contradictions

Among the responses to the advocacy for class, ethnic and gender diversity at top universities which received another airing last week, it is common to see conservatives argue, with quite a lot of justification, that whatever causes the differential flows of various groups in these universities is having its impact well upstream of admissions departments. Whatever’s going on, so the argument goes, it’s not Cambridge’s fault or Harvard’s fault – it’s too late by the time the UCAS application is away.

In the same breath, though, a need for political diversity (or ‘viewpoint diversity’) at universities has become something of a cause celebre among these same conservatives. These thinkers (with some exceptions) usually argue that the sharp decline in the relative number of conservatives in the academy since roughly the end of the Cold War represents instances of conscious discrimination on the part of a left-leaning faculty: discrimination against me, but not against thee.

There might in fact be a similar upstream reason why conservatives are crowded out of the academy. The critical legal theorist Mark Tushnet noted en passant[1] that “[b]ecause the opportunity costs of becoming a legal academic are higher for right-leaning potential academics, the academy is likely to continue to have a bias toward the Left”, and muses that a possible solution to this might be to favour and encourage academics to do consultancy work. Essentially, right-wingers are more likely to be drawn to profitable careers, and therefore face greater relative barriers to transitioning to the academy. Tushnet’s field, law, is a very good example of this: neoliberals or conservatives (particularly the fiscally conservative) are probably more likely than socialists or social democrats to take on highly-paid positions as law partners. We might note that this idea does not rule out the place of political discrimination, as George Yancey outlines at Patheos, but that it posits – fairly convincingly – that the main driver is economic pressure, rather than cultural discrimination.

This raises the question of why the ratio, according to Jonathan Haidt, has got dramatically worse since the early 90s, having been fairly constant since the Second World War (Tushnet anticipates the problem in 1991). To answer this we should remind ourselves that since the 1970s the measures of income inequality in the United States and United Kingdom have rapidly increased. It seems quite rational to conclude that not only do conservatives face greater pressures to stay out of academia and in the money-making business, these pressures have ramped up in recent decades. Indeed, in most fields peak earning is around the age of 45-55 – so the potential graduate students of 1990 would have been guided by the outcomes of the potential graduate students of 1970, the first wave who might have benefited from increased income concentration in the upper ranks. It is reasonable to conclude that had these financial incentives been less acutely concentrated in the last 30 years or so, conservatives would not be an endangered species in faculties in the US and UK.

We are faced then with a pleasingly ironic conclusion: the only lasting solution to the underrepresentation of conservatives and neoliberals in the academy might, in fact, be to adopt more strongly redistributionist policies, reducing the incentives for conservatives to remove their wisdom from the public sphere and apply it to, as they say, ‘making bank’. Might we then see a conservative movement for a wage cap in the near future? Conservatives for Corbynomics has a certain ring to it.


[1] Tushnet, ‘Critical Legal Studies: A Political History’ Yale Law Journal 100.5 (March, 1991), 1515, 1534 (n. 92).

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Asking the wrong question

The Divisional Court’s judgment against the Government in R (Miller) v Secretary of State for Leaving the European Union [2016] EWHC 2768 (Admin) is being pored over as I type, but it seems to me that the Government’s defeat came out of a failure to make correct submissions.

It was common ground between the Crown and the claimants that the Article 50 notification would inevitably result in alterations to rights and obligations in UK law (paragraphs 10 and 11). This leads inexorably and inescapably to the conclusion, founded on the Case of Proclamations (1610) Co. Rep. 74, that the Crown (i.e. the Government) cannot make the Article 50 notification without the consent of Parliament expressed through an Act of Parliament. The Crown’s submission that Parliament had intended that the Crown be able to make alter those rights and obligations was rejected, probably correctly:


But this outcome was only inevitable if the Crown conceded that the Article 50 notification does indeed alter rights and obligations in domestic law – which, although it appears to be the view of the court, is not really argued over at all. This is not necessarily the case.

On an orthodox reading of the relationship between the domestic legal jurisdiction and the international legal jurisdiction, the British courts deem themselves unable to address international legal questions. This is a simplification but it will serve for the time being.

The court in Miller took the EU rights in domestic law that British citizens enjoy to rest upon membership of the European Union. It seems to me that this is not quite correct. This is true of the rights in EU and foreign law that British citizens enjoy. In domestic law, however, those rights in the domestic sphere flow entirely from the European Communities Act 1972, which confirms the principle that EU legislation is directly effective in the UK – and which would not do so without the European Communities Act. This is admitted by the court at paragraph 41 and 42 as a direct consequence of the fact that the Crown could not alter domestic law on its own:

para 41-42.PNG

Accordingly it is possible to imagine the following legal situation. The Crown activates the Article 50 notification and Britain departs from the European Union two years later. However, Parliament refuses to repeal the European Communities Act 1972. This would mean that UK citizens are still subject to the rights and obligations incurred in domestic law as a matter of EU membership, but cannot enjoy the rights and obligations incurred abroad (such as freedom of movement) as those are a matter for foreign and European courts. The differences between these rights are discussed at paragraphs 57 to 61.

This seems to me to be the critical failure of the Government’s case. Instead of admitting the losing ground that the Article 50 notification would have domestic legal effects, it ought to have denied this and argued for a strict division of the domestic and international orders, asserting that Article 50 would have no domestic legal impact whatsoever. It then should have advanced the argument that Parliament intended the Crown to have the power to so alter domestic law as a second ground of argument, if the first was lost. As it was, they conceded the only ground they might conceivably have won on, and thus doomed the Crown’s case.

I am not sure why this has happened, as it seems fairly obvious. I suspect I have gotten something quite wrong – if anyone can help me out please inform me.

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Right of refusal: Ashers in the Court of Appeal

The Northern Ireland Court of Appeal judgment in the Lee v Ashers case is out today. It corrects some rather glaring errors in the initial County Court judgment and raises rather intriguing questions about how discrimination law is to develop in the future. At issue here, really, is not free speech but what is termed associative discrimination in the case law – in other words, were Ashers in effect discriminating against gay people by not baking a cake which would carry a slogan in support of same-sex marriage?

As the judges note at paragraph 55, the leading judgment here is Lady Hale’s in Bull v Hall [2013] UKSC 73, where she quotes Advocate General Sharpston in the EU case of Bressol [2010] 3 CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.”

What this means is that, in law, even if one doesn’t discriminate against (for instance) gay people explicitly, if the action you take only impacts gay people then that is still direct discrimination and ipso facto unlawful. This is clearly right – for instance, if people who have purchased sanitary products for personal use are barred from doing something, that is directly discriminatory against women even if one doesn’t expressly refuse to serve women.

The judge at the County Court got rather muddled in her judgment. She held that refusing to print a cake saying “Support Gay Marriage” was a case of direct discrimination because support for same-sex marriage was “indissociable from sexual orientation” – in layman’s terms, she was arguing that only gays and lesbians support same-sex marriage. “That was clearly wrong,” said Morgan LCJ rather flatly in paragraph 24 of today’s appeal judgment.

But the Court of Appeal did something much more ingenious. It looked, not at the cake or even the slogan as the benefit denied to Gareth Lee, the claimant, but at the benefit that accrued from the slogan (i.e. “Support Gay Marriage”). The reasoning of the Court at paragraph 58 seems to be that since only LGB people would benefit from the potential introduction of same-sex marriage in Northern Ireland, then refusing to print a message in support of that counts as directly discriminating against a protected group (and nobody else).

Morgan LCJ doesn’t go into great detail about what constitutes a benefit for these purposes. Courts are unsentimental places; it makes some sense that the Court of Appeal would not consider whether the emotional benefits to heterosexual friends and family of LGB people who might be able to marry would count as a benefit to people other than a protected class. But it’s worth working out what this might mean.

For example, a cake which carried the message “Support Affirmative Action” would most likely be protected in the same way; after all, only BME people will benefit (at least legally and financially) from quotas or positive discrimination. Likewise, a cake exhorting the eater to “Stand Up For the Gender Recognition Act” can only provide a legal and financial benefit to trans people, another protected class under the Equality Act. However, a message such as “Abortion Rights Now” might not, because it is not just women who might benefit from women being able to control their number of offspring. The distinction is not an easy one to draw, but it does appear to be the only (rather vague) principle which comes out of the case.

Had I been the judge here, I suspect I would have ignored the sexual orientation discrimination point and constrained the operation of the case to the bar on political discrimination. It is worth noting that political discrimination is not illegal in England, Scotland or Wales – it is illegal in Northern Ireland to try to stamp out sectarianism (i.e. so that nationalists cannot deny services to unionists and vice versa). On these grounds, as District Judge Brownlie held at paragraph 66 of her judgment in the County Court, this would have been a straightforward case of political and religious discrimination. This angle was avoided by the Court of Appeal, as it isn’t necessary to reach a finding, but I think it makes more sense and requires fewer logical leaps than the above. It is worth noting that in Northern Ireland, at least, Ashers would probably have to bake the aforementioned “Abortion Rights Now” cake.

This points to an interesting conclusion to be drawn from this case. The Court dismissed the operation of various defences to discrimination proceedings, which will undoubtedly be picked over by those more expert than me in these matters. At one point, Morgan LCJ said (para. 67) rather memorably that “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.”

This seems a statement which will be hard to generalise past the instance of a bakery, but Morgan LCJ was making an important point. At para. 100 he noted that the “answer” to anti-discrimination legislation which hurts a business or offends certain beliefs is “for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. … In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflect their own political or religious belief …”

If, as seems likely, the implication from Ashers is that certain political statements are protected under discrimination law since their benefits would only accrue to a protected class, it follows that political opponents of those statements will have to issue a general prohibition on political statements. Morgan LCJ drew the comparison, at para. 47, to a printers’ firm providing election posters. It seems likely that a printer could refuse to print all political statements, but would not be permitted to refuse to print only statements on behalf of a same-sex marriage advocacy group or (to take my example) a campaign against the so-called ‘spousal veto’ in the Gender Recognition Act. In effect, the essence of the judgment is to make the publishing of certain political opinions compulsory by everyone who wishes to publish any political opinions whatsoever. This seems a somewhat adventurous interpretation of equality law, but it makes more sense than the messy first instance judgment.

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Common sampling policy

I have the Wikipedia page which collates polling data on the EU referendum bookmarked, as all nerds do, and I was taking my daily cursory look at it this morning when something struck me about it. I fed the data into Excel to check I wasn’t overinterpreting, and there it was again.

The following graph shows sample size (on the X axis) plotted against Remain’s lead in the polls (on the Y axis).

graph 1

In general, the smaller the sample size, the larger the Remain lead is. This is largely because of the telephone polls: ORB’s phone polls always have a sample size of 800 exactly, and all the sub-1,000 sample polls are conducted by phone.

What to make of this? Here’s another chart: this time, assessing the the general election polls and the Conservative lead:

graph 2

It’s perhaps a little hard to make out, but if I’m not mistaken, the general election polls don’t show such a sharp disparity. Small sample sizes show exaggerated leads in one direction or another, but there’s almost as many figures below the X axis as above it. At the general election, the polls all clustered around a tie, which turned out to be very wrong indeed. Contrast that to the EU referendum polls, where there’s a much more marked profusion of big Remain leads in the little polls and a much more close picture in the big ones.

I’d hazard a guess that the bigger sample sizes are probably more accurate, but that depends on the polling companies having sorted out their methodologies. As it is, we’re flying blind.

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Some thoughts on status quo bias

Peter Kellner observed in the New Statesman yesterday that the last few referendums in the UK have all seen a late shift to the status quo, with the somewhat sui generis exception of the 1997 Scottish devolution referendum. He concludes from this assessment that history favours Remain this month, arguing that six of the seven referendums he discusses show support for the status quo.

Mr Kellner’s article has superficial appeal, but he’s guilty of leaving out almost half of the eleven referendums which have been held in the UK since 1975, which might undermine his thesis somewhat. In the below table I have listed all the referendums in the UK since 1975 (deliberately excluding the 1973 Northern Ireland border poll, which was boycotted by the nationalist community); the rows in red were excluded from Mr Kellner’s article.


*The 1979 Scottish devolution referendum resulted in a narrow (51.6-48.3) win for the pro-devolution side, but turnout failed to reach the 40% threshold imposed by Parliament in order for the referendum to have effect.
†The 1997 Scottish devolution referendum was made up of two questions, the first on the establishment of a Scottish Assembly and the second on whether it should have tax-varying powers. Both proposals passed.

By my reckoning, far from the status quo being the dominant response of the British electorates to a referendum question, it is actually slightly less likely than a vote for change – five questions asked were answered with the status quo response, while seven were endorsements of the proposed reform. Even excluding the 1979 Scottish referendum because of its turnout threshold and the 1998 referendum on the Good Friday Agreement because of its unique context brings us to an even total of five for five, with the status quo only taking a narrow lead if the 1997 Scotland referendum is collapsed into one. Mr Kellner has – perhaps deliberately – massaged his figures to portray votes in favour of change as significantly less common than they are.

Even his rather specious argument that the changes which succeed are those which endorse a ‘national consensus’  has virtually no value whatsoever. Perhaps the Scottish Assembly (as it then was) was indeed established as part of a national consensus. The same could not be said of the Welsh assembly powers referendum in 2011, nor even the 1979 referendum in Scotland which he explains away due to the insertion of a wrecking amendment by a Labour MP. It should be noted further that those two referendums exhibited the narrow margins which seem increasingly likely in the referendum this month, which should give both sides this time pause.

Ultimately, talk about bias towards the status quo misses something which may be quite important. In almost all previous referendums, the status quo is something which has existed for a very long time – since time immemorial, even. The Union between Scotland and England dates to 1707, and the Union of Crowns is a century older than that. Parliament has been sovereign in the North East, London, Northern Ireland, Wales and Scotland since the concept was first described. The first-past-the-post system has been the process for all British general elections since the expansion of the franchise, and predates even that for a much more limited electorate.

The exception, of course, is the 1975 European Communities referendum, where a relatively new ‘status quo’ – more or less a government policy – was endorsed merely two years after it was enacted. In 2016, the idea that the EU benefits from status quo bias and incumbency is dependent upon the idea that the EU has weaved into national consciousness as much as first-past-the-post, the sovereign Parliament or the very Unitedness of the Kingdom.

I’m not sure that’s so. Stronger In has been trying to run this sort of campaign, but it’s stuttering somewhat. My suspicion is that this is because the EU is almost a victim of its own success: so effective at inveigling itself into national economies that nobody even notices it’s there any more. Even whinging about Europe in tabloid newspapers has a detached quality, a sense of newness and alienness – consider the Metric Martyrs case for an example of this in action. It seems that the pro-EU side, which planned to run a simple defence of the status quo with the expected 2-1 walloping, is having to make the case for the EU afresh, as if we were being asked to join it rather than remain in it. Whether this affects the result remains to be seen, but it seems implausible to suggest the British electorate is on autopilot this time around.

‡Sort of. See MacCormick v Lord Advocate [1953] SC 396.

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