The Unaccountability Machine
The epic judicial processes of 2024 have been Tom Hayes’ appeal against LIBOR rigging, about which we have had much to say elsewhere, and the Post Office Horizon IT scandal. Both are resolving to the question: to what extent can we put this absolute shower down to the nefarious, or just bone-headed, interventions of individual operators?
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’Tis neither malice, spite, nor virtue
Whose ledger swells, or plucks, the seedy fruits of progress —
But mainly accident.
Lest thee with surety know aught else —
Withhold thy assignations.
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- —Anon.
On a lack of barking dogs
For much modern of modern business management — you hardly need an advanced degree in operations research to know that, these days, there’s a lot of it — exists specifically to prevent bad apples, or stupid apples, subverting our complex modern systems. Its record catalogues a singular failure to achieve that basic end. Our roll of honour refers. LIBOR rigging and the sub-postmasters débâcle are but pinnacle examples.
With all that infrastructure, superstructure and supervision how were a band of relatively lowly trading staff able to run riot?
With all its infrastructure, internal and external legal advice, consultancy, and, er, second sight, how did no-one stop to think something must be wildly, catastrophically, wrong with the Post Office’s basic theory of the situation? How did no-one, even once, apply Otto’s razor?
Where were all the barking dogs?
Rogue apples, middle England and the grace of God
Either these are peculiar, localised problems — rogue gangs of bad apples plaguing the innocent houses of commerce — or the prevailing paradigm is in crisis and we need a new theory of the game. “Bad apples” are always the preferred diagnosis. They relieve earnest executives of responsibility, leaving at most a deniable residue of blame for hiring the bad apples in the first place. Sidney Dekker is compelling on this.[1]
LIBOR submitters fit the “rogues gallery” identikit nicely: with microscopic adjustments inside an arcane process to which few paid attention and fewer understood, they (allegedly) enriched themselves to the tune of millions of pounds while no-one else noticed. It was almost a victimless crime.
Post office middle managers do not. Few stood to gain from vilifying innocent sub-postmasters, and the emoluments on offer for those who did paled in comparison to the LIBOR submitters’ city bonuses. These people did not seem psychopathic — unreflective, sure; narcissistic, in a few cases; illustrations of the Dunning-Kruger effect, all — but their motivations were not base. They do not resemble “bad apples”. Their offence, and it is not a crime, weakness and credulity. Lack of spine.
These people are unremarkable, familiar, mediocre middle managers.
Watching their excruciating evidence, three things occur:
First — The weave of life’s tapestry wouldn’t have needed to be that different for these witnesses themselves to have been sub-postmasters on the other end of this outrage. None more so than CEO Paula Vennells, a middle-English lay Methodist, who even looks like a sub-postmaster.
Second — A montage of every utterance, by every witness, of their manifold variations of “I don’t remember” would go for hours.
Third — There but for the grace of God go I. Post Office in-house legal head Rodric Williams is a fifty-something expat New Zealander. His career trajectory, in vector if not altitude, has been strikingly similar to JC’s. In the halogen glare of cross-examined hindsight, his ineffectual interventions in an epic miscarriage of justice over an extended period were regrettable, but none of them resonate as odd. Williams was adept at the sort of pencil-pushing, risk-averse buttocracy that is drilled by bitter experience into every in-house lawyer in the land. This is what in-house counsel do. This is how we behave. We should ask ourselves: knowing what he knew then, would we have done any differently? We should not kid ourselves here.
Modern corporation as an unaccountability machine
Which brings us, finally, to Dan Davies’ new book. There is, he reports, a crisis of accountability in the modern commercial world: the relationship between “we” the general public and “we” the representatives and managers of the corporations which intermediate much of public life — many are on both sides of this equation, of course — has broken. This is because modern corporations are designed to diffuse individual accountability for the actions a corporate legal entity takes, using what Davies calls “accountability sinks”. This is Davies’s example:
Someone — an airline gate attendant, for example — tells you some bad news; perhaps you’ve been bumped from the flight in favour of someone with more frequent flyer points. You start to complain and point out how much you paid for your ticket, but you’re brought up short by the undeniable fact that the gate attendant can’t do anything about it. You ask to speak to someone who can do something about it, but you’re told that’s not company policy.
The unsettling thing about this conversation is that you progressively realise that the human being you are speaking to is only allowed to follow a set of processes and rules that pass on decisions made at a higher level of the corporate hierarchy. It’s often a frustrating experience; you want to get angry, but you can’t really blame the person you’re talking to. Somehow, the airline has constructed a state of affairs where it can speak to you with the anonymous voice of an amorphous corporation, but you have to talk back to it as if it were a person like yourself.
One creates an accountability sink by delegating the administration of a human process to a rulebook and then not giving anyone direct power to override it. Airlines, banks, ticketing agencies and online retailers of course give the public no access to anyone anymore: we are peremptorily notified by email from an unmonitored account. By design, we can’t talk back.
The crushing organisational stasis in financial services — and plainly the Post Office — is a variety of the same thing.
It explains exactly why no-one saw, or appreciated the significance of or stopped to consider the implications of, the potentially incendiary advice they were receiving. It was not their job to second guess a process that had been set on rails well before they were involved.
In-house lawyers are the sweepers to the curling stones of a firm’s policies and business initiatives. Once a stone is set and launched, their job is to facilitate its progress, feverishly working away at the ice in front of it to preserve the momentum it already has. It is no part of their role to impede its progress.
In organisations over a certain size there is a presumption, not lightly rebuttable, that others in the organisation know what they are doing. This is its own accountability sink. When a decision appears to have been made elsewhere, whether by application of policy or exercise of someone’s discretion — questioning that decision is to sell a personal put option whose benefit, if there is one, accrues to the organisation, but whose loss allocates solely to you. If you turn out to be right, someone else carries the can. If you’re not, you do. Either way, you have lost a friend.
True, you may head off an exceedingly remote tail risk if some day, years from now, the entire shabby affair is exposed and all participants held to public account before the nation’s watching eyes, but even then if you will be lucky to end up at even money.
In-house counsel is not a moral compass
There is an argument, unstated in much commentary on the case, that the primary role of in-house counsel — of not just the GC when preparing briefings to the board, but all lawyers in the organisation — is to act as the organisation’s moral compass. They, even more than their compliance colleagues, are ideally positioned to sit above the fray, from where they can interrogate the organisation’s baser commercial instincts, at least insofar as they manifest in legal work product.
That’s a plausible theory of the game, but it hardly reflects current practice. For one thing, in-house legal is not in the operational stack, so doesn’t see the great pitch and yaw of BAU activity that animates the firm’s mortal sinews. You wouldn’t situate your moral compass behind the fire extinguishers in the drawer with old chequebooks, broken torches and dead batteries if you intended to ever use it. At most it would be an exceptional function at times of crisis. But it is not even that.
JC has a tongue in cheek history of in-house legal which charts the growth of the in-house legal function from a gray fellow in a cardigan behind a desk next to the photocopiers who, wordlessly managed the firm’s powers of attorney, to the weaponised, operationally supported 1,000 strong battle unit we know today.
No part of that transformation grew out of the yen for a stronger corporate conscience. It was all about business facilitation, cost management (legal eagles were meant to be able to call bullshit on their external advisors) and the commodification of legal services. Precisely, the urge to codify processes, set operating rules and take away any need for anecdotal reflection about what the firm was doing or where it was headed. In-house legal is, in this way, an anti moral compass. Legal is an accountability sink machine.
Nor should legal , or compliance, or any discrete disk function be the firm’s corporate conscience: it should be imbued in its every representative, in every thing she does. An operating model that supposes legal and compliance to be a crack morality squad, fighting a multi-front war to quell the incipient infamy that would otherwise burst from every servant’s breast is as ridiculous as it is unhinged.
Lawyers aren’t even expected to prioritise the law. Doubters are invited to peruse the wide range of legal thought-leadership in its natural home: LinkedIn. There is any amount halfwittery about legal service delivery, DEI, legal process excellence, demand management and the transformational potential of AI. But good luck finding a think-piece that even mentions the law, let alone anything as nebulous as an in-house lawyer’s obligation to make ethical judgments about it.
A confederacy of stupid apples
It is easy, and tempting, to put the Horizon débâcle down to an unusual confederacy of stupid apples — this suits our personal self-esteem because if that is right, such a thing should not happen to us.
We should not be so sure.
“It would be nice,” says a valued correspondent, “if counsel were free to have a working moral compass inside their heads to help take open and ethically sustainable courses of action.”
It would. But — thanks to the unaccountability machine — it is hardly likely. No–one got ahead by calling management out for incompetence.
Bear in mind, too, that servants, including in-house lawyers, are paid partisans. Advocates for the firm. Litigation, in the common law world, is an adversarial process, not a fact-finding enquiry.
Yes, there are standards of disclosure and honesty required of witnesses but, upon finding weakness in a witness, the litigant’s instinct is not instantly to concede defeat but to find a better witness.
We are at danger of imputing to these individuals knowledge we now have — courtesy of the ITV drama, and months of cross-examined evidence — but they plainly did not. Not that the Horizon system was flimsy, biddable or prone to errors; they knew that — but that there was no fraud.
It seems absurd. It would be absurd were it not the plain facts of the matter. These people were told, by people they trusted and had no reason to doubt, that the sub-postmasters were fraudsters. That is their operating theory of the game. The fact that the horizon system was a dog was an irritating fact getting in the way of a nobler
A special mention of the ultimate flimsiness of legal professional privilege here. Some people who really ought to know better put in writing some extraordinary things. The misjudgment seemed so total until you realise that, normally , this class of communications would never see the light of day, barred from view by the deep magic of litigation privilege.
Individuals are, therefore positively disincentivised couraged from raising their hands.
We should not underestimate the overwhelming power of plausible deniability.