Unfair trials: justice in the dock

The law, like history, is written by the victors. It acts to protect wealth, even sometimes wealth that appears ill-gotten. It should protect the weak against the strong, but a series of recent situations suggest that the law may too often be supporting the strong and operating to the detriment of the weak. Its cheerleaders will claim that fairness is inherent in the law, but sadly it seems, that is not always true. In practice, not everyone gets a fair trial, or fair treatment under the law.

That’s become very apparent in recent days, as Russian oligarchs use legal threats to avoid being named in the media as being close to President Putin and potentially implicated in his misdeeds. It’s true too in the case of Charlotte Leslie, former Conservative MP for Bristol North West, who is being effectively muzzled and bullied through legal means because, she suggests, she questioned whether the party should be willing to work with an individual who (as revealed by the Panama papers) has an association with the agreement under which Swedish telecoms firm Telia supplied services in Uzbekistan – over which the company has admitted bribery. It may be similarly apparent in the recent decision of the Supreme Court to bar Bloomberg from disclosing the existence of a regulatory investigation that implicated an senior individual in a UK business (even if the Bloomberg headline responding to the decision does seem a little hyperbolic – UK Judges are Helping the Next Robert Maxwell).

As a law graduate who then spent nearly a decade editing legal journals, I have long had a lot of faith in the law, and in the concept of the Rule of Law. That’s the idea that all, including those with power, are subject equally to the law, and that the law should be applied fairly to all – with structures in place to ensure that fairness can indeed be delivered procedurally. The Rule of Law, put in the simplest terms, is fairness. But these situations tend to suggest that, as in other parts of our economies, the wealthy have a significant advantage over others. Money can skew this playing field just as it does others.

And sadly it seems that the wealthy and powerful using the law to overwhelm those weaker than themselves is not restricted to oligarchs. It is not just done by individuals eager to protect their personal reputations. Perhaps the most egregious recent example is now being played out in a belated public inquiry – and it is worse than the other situations mentioned above, because it subverts that very foundation of our trust in the law, the right to a fair trial in a criminal case.

The public enquiry is so belated that the Post Office Fujitsu Horizon scandal is now decades old, although most people will not have heard of it till recently. It dates back to 2000, yet only Private Eye and Computer Weekly have been covering the scandal for any period of time. Even as an avid reader of Private Eye for decades, and so hearing a steady drumbeat about the scale and nature of this scandal, I was shocked by the details revealed in the court judgements.

Soon after a new IT system was introduced to the UK Post Office (the consumer-facing mail transactions and financial services operation, which is often run at an individual business level by local shopkeepers known for these purposes as sub-postmasters), problems began to emerge. Rather than trust its workforce, or its systems for assessing their reliability, the Post Office attributed these errors to human error, or indeed fraud. This continued even as the numbers of these errors continued to build up. Between 2000 and 2014, the Post Office prosecuted (oddly, it had powers to mount private prosecutions) 736 sub-postmasters – and many more chose to remedy shortfalls in the system out of their own pockets to avoid prosecution. Even after 2014, when the Post Office stepped back from prosecuting individuals, it continued to fight calls for legal redress. Even now, though the failings of the Horizon system have been publicly exposed, only a handful of those who were wrongly prosecuted have gained legal absolution. Others who were equally wronged still have their names unfairly sullied. There is manifest injustice – unfairness – in the delay in clearing these individuals who have been so badly treated.

A failure to remedy a wrong from 2014 to the present day would be one thing. But it’s worse than that. It’s apparent from the cases that the Post Office as an organisation was aware of issues with Horizon from at least 2001, and yet it continued with prosecutions.

It’s no wonder that the crucial Court of Appeal decision last year, Hamilton v Post Office, found not just that “a fair trial was not possible” but also agreed that “it was an affront to the public conscience for the appellants to face prosecution”. Shocking, judicially enforced unfairness was allowed to persist for 20 years and more in some cases. The Court of Appeal leans on years of remarkable and detailed judgements by Fraser J in a series of cases collectively referred to as Horizon Issues (perhaps the most striking is Bates v Post Office Judgement 6).

Fraser J is not prone to overstatement, but his views of the Post Office and those individuals implicated by the scandal are coldly clear. He is transparently frustrated by the approach of the Post Office legal team, and in the documentation the Post Office provided to the claimants, saying in his very understated way: “I have gained the distinct impression that the Post Office is less committed to speedy resolution of the entire group litigation than are the claimants.” He is bluntly clear in his dismissal of some of the witnesses called by the Post Office. It is Fraser J who notes clear evidence that the organisation was aware of issues with Horizon as early as 2001, which is the date of a detailed IT error report (known internally as a PEAK) setting out the substance of the issues. And yet the prosecutions went on for more than a decade.

He does conclude that the Post Office suffered from “a simple institutional obstinacy or refusal to consider any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary.” His most direct comment is to say about this view that: “It amounts to the 21st century equivalent of maintaining that the earth is flat.”

Others who have followed this scandal and tried to expose it are more blunt and excoriating. A particularly striking headline from Computer Weekly was Post Office CEO either knew what was going on in Horizon scandal, or was ‘asleep at the wheel’ (and it certainly seems appropriate that Paula Vennels stood down from her public roles following the Court of Appeal’s judgement in Hamilton). Barrister Paul Marshall’s speech to the University of Law is if anything even less forgiving. At its simplest level, the miscarriages of justice arose because there was an unchallenged assumption that if the IT system said there was a shortfall, then there must be a shortfall. It is a remarkable failure of imagination – perhaps even a delusional confidence in technology – to fail to consider that the evidence of an IT system might be wrong. Yet both the Post Office, and the English courts, suffered from that failure, that delusion. That is the heart of this particular unfairness.

As Marshall puts it: “The first problem that the Post Office litigation painfully exposes is that English judges and English lawyers commonly do not understand the propensity of computers to fail.” As Marshall rightly notes, the truth is that technology is as fallible as humankind, and tends to embed the same unfairnesses as exist in the human world. One hopes that our country’s lawyers will rapidly remedy their error. Otherwise our increasingly technology-beholden world will deliver many more such unfair judgements.

These situations seem strongly suggestive that the law is being used to perpetuate unfairness. It’s hard not to conclude that if the law is to live up to the fairness promised by the Rule of Law, it must do better. More on this in due course.

No one is safe from the rich elite’s abuse of British law. Just ask Charlotte Leslie, The Guardian, January 22 2022

Bloomberg v ZXC, [2022] UKSC 5, Supreme Court

UK Judges are Helping the Next Robert Maxwell, Bloomberg, February 16 2022

Bingham Centre for the Rule of Law

The Rule of Law, Tom Bingham, Penguin 2011

Hamilton v Post Office [2021] EWCA Crim 577, Court of Appeal

Bates v Post Office Judgement 6, Rev 1 [2019] EWHC 3408 QB, High Court

Post Office CEO either knew what was going on in Horizon scandal, or was ‘asleep at the wheel’, Computer Weekly, May 4 2021

Marshall spells it out: speech to University of Law, June 4 2021, Post Office trial blog

The Great Post Office Scandal, Nick Wallis, Bath Publishing 2021

The Consumer Duty II – the FCA further unpacks fairness

The Financial Conduct Authority – the UK’s financial regulator – is moving towards finalising its proposed Consumer Duty. It is welcome that the FCA is holding firm against suggestions from some (happily not all) in the industry that it is asking too much or that the proposal would over-protect consumers and remove competition. Instead, the regulator is continuing to insist that the industry must be fair to its customers.

The updated proposals are set out in a Consultation Paper, CP21/36, on which response are requested by February 15th. This is a further reflection on the FCA’s plans now it has had a chance to consider the responses to its earlier consultation, CP21/13 (discussed in FCA unpacks fairness: the Consumer Duty). The FCA reminds us of various ways in which the financial services industry has mistreated consumers by dealing with them unfairly, including:

  • Firms exploiting consumers’ behavioural biases
  • Firms selling products not appropriate for those to whom they are sold
  • Firms selling products that do not offer fair value
  • Firms providing such poor customer support that consumers are in effect hindered from taking the right decisions or rectifying the wrong ones
  • Firms exploiting customer loyalty or inertia

Sadly, in each of these cases the FCA identifies multiple real-life examples of industry misbehaviour and consumer harm.

It is welcome that the FCA has not been blown off-course and is proceeding largely as it proposed. It is particularly welcome that it is not pandering to calls from some in the financial services industry for more detailed rules, for example in relation to deciding what amounts to fair value for consumers. Instead, the FCA is insisting on the industry being willing to exercise professional judgement. Fundamentally, that professional judgement must be exercised to put the interests of consumers higher up in their considerations than many companies previously have.

In particular, arguments that the proposals might limit competition are, rightly, given short shrift. Competition is fostered by treating customers fairly, ensuring that they can understand and trust what is going on. That is a necessary condition for real competition to function. I would therefore firmly endorse the following response to the argument (in paragraph 2.20 of the latest consultation) that a Consumer Duty might be in some way anti-competitive:

“We think the Consumer Duty will create a fairer and more consumer-focused playing field on which firms can compete and innovate in pursuit of good consumer outcomes. Competition can more effectively act in the interests of consumers where firms design products and services to meet consumer needs, and consumers are put in a position to make informed decisions and act in their interests. We do not think there is good reason to think this will reduce the intensity of competition.”

However, it is with regard to the proposed Consumer Principle where some reconsideration may still be needed. The proposed Principle is left as originally drafted: ‘A firm must act to deliver good outcomes for retail clients’. That’s in spite of the suggestion – apparently made not just by this blog – that ‘fair outcomes’ might be a better aim than ‘good’ ones.

This is odd, because the FCA accepts that not all outcomes for consumers will be good (it mentions the repossession of a house or a situation of money being lost on an investment). Its reasoning (in paragraph 5.24) that this is OK because “Our focus is on firms acting reasonably to deliver good outcomes” would carry more weight if the draft principle actually included the word ‘reasonably’. This is one area where this blog might have sympathy with comments from the industry that the standard the FCA seems to be asserting seems excessively absolute. Once again, asking firms to deliver fair outcomes would seem a more appropriate standard, as well as employing this blog’s favourite word.

The fact that the Consumer Principle lies at the heart of the Consumer Duty – it is the lodestar to guide all industry judgements – means that getting its drafting right matters crucially. I would again commend ‘A firm must act to deliver fair outcomes for retail clients’ as a better option, one that insists on judgement being exercised, both by the industry and by retail customers (who crucially must of course have the necessary transparency and understanding to enable them to exercise that judgement).

See also: FCA unpacks fairness: the Consumer Duty

A new Consumer Duty: Feedback to CP21/13 and further consultation (CP21/36), Financial Conduct Authority, December 2021

A new Consumer Duty (CP21/13), Financial Conduct Authority, May 2021

Fair Play, the play – and the mistreatment of Caster Semenya

Two young women train themselves obsessively hard on the running track, barely giving themselves time to grow up in the midst of giving their all to competition. They sacrifice much in the hope that they might achieve their dream of Olympic triumph. That is, until one of them, on the threshold of international breakthrough, finds the dream stolen from her by the judgement of the sporting authorities that she is not enough of a woman, but is instead “some monster…abnormal”.

This is the story told affectingly in the excellent new play Fair Play, produced at the wonderful Bush Theatre in London. It’s a story told in small vignettes, snapshots of the pain of training and occasional glory of success as the women develop over years. We knit these scenes together and find ourselves deeply invested in the individuals and in their relationship (challenged as it is). That’s helped by a pair of highly engaging performances from NicK King as Ann and Charlotte Beaumont as Sophie.

The play takes obvious inspiration, as well as from author Ella Road’s own experiences as a junior athlete, from the case of South Africa’s Caster Semenya. Semenya stormed the world of women’s middle distance running until cruelly public steps to disqualify her from competitions for perceived ‘excess’ levels of testosterone, due to her hyperandrogenism.

Ann’s suffering at facing a similar ban is clear: “I found myself removed from the one category I thought I was part of, the one party I was pretty sure I was invited to.” And she challenges Sophie – and the audience – to consider whether this particular line is drawn fairly. She points out that elite athletes benefit variously from specific genetic advantages, such as their height, the efficiency of their muscles, and their ability to deal with lactic acid. These advantages are deemed on the fair side of the competitive line while others are not.

These decisions are particularly hard on women of colour, Ann asserts. She notes that none of the female athletes excluded for conditions similar to Semenya’s are white, that sport’s definitions of femininity are set mostly by men. “The Empire might have died but they’re still doing a pretty good job of colonising our bodies,” she rages.

And unfairness of other forms is also wholly accepted. Ann notices the comfortable middle class upbringing that Sophie has enjoyed, the safe foundations on which her life and her running has been built. This helped Ann understand how Sophie always acted “as if there weren’t any cracks to fall through, as if everything would turn out all right”. Ann complains that after her disqualification, in spite of those unfair benefits it was Sophie who got to talk to the media about fairness.

It is right that we feel uncomfortable watching this. For many, it challenges pre-conceptions. As Jesse Wall of the Auckland Faculty of Law points out, none of the people who compete in elite sport can really be considered ‘normal’. They have trained their bodies to deliver performances beyond what could be considered an ordinary range. And in most (perhaps all) cases they had a starting point of talent and genetic advantage that gave them a personal step-up, and attracted them to their sport in the first place. It is seeing the extraordinary achievements of these extraordinary people that creates much of the joy of watching elite athletics. The sporting playing field is never entirely level. When we accept so many advantaged positions and choose to exclude some individuals on the basis of their particular starting advantages, we definitely are making a choice. That choice may or may not add to the sum of the world’s fairness.

It is particularly striking that this choice has been made given that there is some debate as to whether testosterone gives an athlete any advantage at all. It may be that the issue only arose for the sport because heightened testing gradually pushed cheats towards using natural hormones instead of the prior drugs, such as steroids. That was a different world: I recall feeling cheated having watched the victories of the doped athletes of East Germany, and the performances of others where doping was later proved. I do not feel the same in thinking back to Semenya’s performances; her running was clearly her very natural gift. Ironically, two of Semenya’s gold medals (for the 2011 World Championships and 2012 London Olympics) were only awarded after the athlete who crossed the line ahead of her – Mariya Savinova – was shown to have been part of Russia’s systematic drug cheating regime. Semenya then was robbed and it’s hard not to think she was robbed again by her ban from the sporting authorities. In seeking to be fair to her female competitors, those authorities were not fair to Semenya, and nor were they in Fair Play to Ann.

For self-isolation reasons I only got to see the play late in its run, which has now ended. But it is to be streamed online between February 7th and 12th. I would highly recommend it.

Apologies if the quotes I have captured are not wholly accurate. I caught them to the best of my ability.

See also: Playing fair: the oddly inequitable world of team sport

Caster Semenya: ‘Once I thought she was cheat. Now I’m sure she belongs in women’s athletics’, Fernando Duarte, BBC, 11 September 2020

Caster Semenya and a level playing field, Jesse Wall, Journal of Medical Ethics Vol 46 No 9, September 2020

Online stream of Fair Play, 7-12 February 2022

Unfairness fosters conspiracy thinking

Surely it can be no coincidence that Novak Djokovic, one of the world’s leading tennis players, was – temporarily – banned from Australia because of his unvaccinated status (and apparent vaccine scepticism) on the first anniversary of the Capitol Insurrection in the US, which was founded on dual conspiracy theories about a supposedly stolen Presidential election and a dominant cabal in the nation? According to some theories, both events also happened to occur the day after the point at which control was to be asserted over all vaccinated people, turning them into zombies. This too is surely no coincidence?

The world is flooded with conspiracy theories. So much so that it is not hard to believe that some might imagine a conspiratorial connection behind these random coincidences. Though many will blame social media, where the algorithm is the echo chamber, there are other foundations for this confusion. A crucial basis for conspiracy theories turns out to be that they thrive because of the extent of our current unfairness. That’s the clear conclusion of a recent paper in the Journal of Experimental Social Psychology. In the context of a global pandemic, some of those conspiracy theories are proving lethal.

The academic paper reports a series of studies that identify a strong coincidence between heightened levels of inequality – unfairness – and higher propensities to believe conspiracy theories. It then goes on to demonstrate causation as well as correlation. The researchers’ initial study reveals a reasonably strong correlation between inequality in countries, as measured by the Gini coefficient, and the population of that nation’s propensity to believe conspiracy theories. In a study of more than 500 Australians, the researchers furthermore identify a heightened tendency to believe conspiracy theories among those who perceive their country to be more unequal than among those who see greater fairness, concluding: “the perception of economic inequality … is positively associated with conspiracy beliefs”. This finding is reinforced by further studies on perceived inequality and its impact on conspiracy beliefs.

Overall, these results reflect and reinforce an earlier finding by a UK academic, Hugo Drochon (now at the University of Nottingham), based on a series of YouGov surveys:

“So countries in which inequality is higher and democracy is considered not to be functioning as well as it should – that is, where citizens feel excluded politically and economically – will exhibit higher levels of conspiracy thinking.”

This perhaps should not be surprising. As the world does not conform to our fundamental understandings of how it should work – among other things, our basic assumptions that fairness should prevail, that hard work should pay off, and that merit should be recognised and rewarded – people seek to find reasons for that disconcerting, upsetting reality. These are ideas that have been baked into the human psyche for millennia, so setting them aside is confusing and difficult to resolve. The researchers call this anomie, a sense that the world does not make sense.

Using conspiracy theories as a way of navigating this confusion has real world consequences. The proliferation of conspiracies around vaccines are particularly damaging to health outcomes, both communal and individual. In many ways, the whole pandemic has proven a massive experiment in social norms – the waning and waxing of mask use on the London underground being one insight into how people’s actions clearly influence each other. But the erosion of a willingness to respond to such social pressures, for example through the increasing willingness to challenge others who do wear masks, is a strong sign of growing frustration with others’ views, and growing inflexibility. In the context of a pandemic, the consequences of certain conspiracy theories can be lethal. It is another deadly consequence of unfairness.

The scale of that lethality is potentially indicated in this chart. This is from the vigorous team at Inequality.org (part of the US’s Institute for Policy Studies) and it deliberately tells a powerful story, expressed in its blunt headline. It is clearly a dated snapshot, and is rather selective in its tendency to focus on North America and Europe, but the story it tells seems unlikely to be undermined by any update of the numbers, or cumulative deaths analysis, nor by the inclusion of some of the more obvious omissions (for example, China, India, Japan, South Africa and the UK).


But to try to address the question of vaccine hesitancy and inequality more directly, I have created the following chart based on publicly available numbers. It maps aggregated unwillingness and uncertainty to take vaccines (from Our World in Data, latest available for each country) against the Gini coefficient (from World Bank, again latest, where available). By eye it is certainly suggestive that there is some association between greater inequality and higher vaccine hesitancy, but to be fair that is largely down to the single outlier – the US, with a Gini over 0.4 and with more than 30% of its population hesitant about vaccination.

The simple fact is that there are too few countries where the World in Data is able to calculate vaccine hesitancy (given the unfairness of vaccine distribution globally, it really only makes sense to calculate hesitancy in developed economies and this dataset includes only 15 countries), and given these have clustered Gini coefficients, there is little that can be clearly concluded from the data. That is, other than it is notable that none of these nations – even the most equal and fair – has succeeded in convincing more than 85% of their populations that vaccination in the face of a dangerous virus is a good thing.

While unfairness fosters them, conspiracy theories are not attractive only for those disadvantaged by society. Djokavic’s vaccine scepticism shows that even the most successful can find them seductive – and I’m sure many of us know extremely smart people who are attracted to at least some of these theories.

It’s not helped by a culture that fuels this thinking. Not least, the tendency to conspiracy thinking is seen by some politicians as an opportunity. Populists seek to foster hatred and anger as a political tool. Rather than seeking to address the underlying causes of that anger, the populist believes that he or she can win greater support by fanning its flames. Often these days, that means encouraging conspiratorial thought. The alternative approach – and the one that this blogger would favour – would be to seek to address the underlying unfairness that helps fuel the conspiracy thinking and sparks the anger.

If only we could use the frustrations evident in among the conspiracy theorists and use it to address and change unfairness, rather than see this energy being dissipated in what seem daft ideas on such things as zombie-causing vaccines and cannibalistic cabals. Unfortunately, the Journal of Experimental Social Psychology study showed that a greater belief in conspiracy theories only leads to a narrow encouragement towards actions to address inequality, as if conspiracy thinking ensures that the energy arising from unfairness is dissipated in other ways.

The world does need change. It needs to be more fair. But being drawn into conspiracy theories saps the energy from addressing this core issue. In contrast, addressing unfairness could free people from the unhappiness that leads them into some very peculiar conspiracy beliefs – and in the context of the global pandemic has the direct opportunity to save lives through encouraging more pro-social behaviour.

“Our results suggest that the building of more equal societies is one way in which we can tackle the spread of misinformation and conspiracy theories,” the researchers conclude, and so will this blogpost.

See also: The missing actions on vaccine fairness

The impact of economic inequality on conspiracy beliefs, Bruno Gabriel Salvador Casara, Caterina Suitner, Jolanda Jetten, January 2022, Journal of Experimental Social Psychology 98(4)

Who believes in conspiracy theories in Great Britain and Europe? Hugo Drochon in Joseph Uscinski (ed), Conspiracy Theories and the People Who Believe them, 2018, Oxford University Press


Willingness to get vaccinated against COVID-19, Dec 15 2021, Our World in Data

World Bank Gini coefficient estimates

To combat conspiracy theories, fight social decay and inequality, Edward Knudsen, 26 October 2020, Dahrendorf Forum

Disinformation, Misinformation and Inequality-Driven Mistrust in the Time of COVID-19: Lessons Unlearned from AIDS Denialism, J. Jaiswal, C. LoSchiavo, D. C. Perlman, AIDS Behav. May 2020

Shelter in place? Depends on the place: Corruption and social distancing in American states, Oguzhan Dincer, Robert Gillanders, Social Science & Medicine, January 2021

Mother Nature’s recipes

An interesting organisation called the Fairness Foundation was recently launched, to promote the centrality of fairness to the world we need to be building, for ourselves and for our children. Actually, the Foundation’s focus – for the time-being at least – is the UK rather than international, so that ‘world’ doesn’t quite (yet) have its usual geographical reach.

The Foundation has at the centre of its messaging 5 core elements, which it calls the Fair Necessities. These are powerful and simple concepts, which chime well with people’s thinking but which would lead to dramatic shifts in politics and behaviour:

“We propose a definition of fairness in terms of five ‘fair necessities’ that could form the basis of an organising philosophy that most people in Britain would support. This in turn could underpin a platform for root and-branch reform of the way that our society and economy is organised, which could draw support from a wide range of political traditions and parties,” it explains.

The Foundation goes on to say: “Most people recognise that the society we live in is increasingly unfair. The majority of people believe that everyone should have the same opportunities to succeed, and that social and economic inequalities have become so stark that this is often no longer possible.” It notes current UK failings of fairness across democracy, education, environment, health, housing, justice, social security, taxation, wealth and work, and starts to set out ways forward on these. It also emphasises how universal is the sense of fairness, and the need to reflect it in political platforms. Clearly, this blogger would agree on the scale of the problem of unfairness – that’s why I have long been focusing on fairness as a way through our current challenges, addressing many of these same issues. It’s very welcome to see others so forcibly joining in making these arguments.

The Fair Necessities are a powerful and simple set of messages, and a strong beginning for the new organisation. I for one look forward to seeing how the Fairness Foundation develops. It is eager to use the political moment created by the coronavirus pandemic, when we are all more conscious of the unfairness around us, to press for change:

“We need to change the terms of the debate, as well as changing policies. Building a fairer society will not only generate significant social and economic returns; more fundamentally, it is a moral duty of the state to ensure that everyone has equal life chances…Fairness is the key organising logic that underpins how we can (and must) build a positive future for humanity.”

I’m told there’s no plan to write the lyrics to a full version of a Fair Necessities song, based on Baloo’s Bare Necessities in the Disney version of Rudyard Kipling’s Jungle Book. That seems a shame; as the title of this blog suggests, not every word of the original would need to be changed. Further, we could all do with rather fewer worries and strife; greater fairness must be one way towards achieving that.

The Fairness Foundation

The Fair Necessities discussion paper, November 2021, The Fairness Foundation

Fairer futures

“Every board needs to be exposed to things that make them uncomfortable, and make them realise how disproportionately comfortable we are.”

These are the words of my friend Mark Goyder, who was consistently challenging when he led think tank Tomorrow’s Company, and who remains challenging now. The words are quoted in a recent remarkably accessible report, What is the role of business in creating a fairer future?, from Board Intelligence, a tech business that provides a portal for board papers and reporting.

Based on more than a dozen roundtable discussions including over 100 business leaders from a full range of scales and natures of organisations (most of them much more senior than me), the report is deeply engaging and challenging. Perhaps it is invigorated by the fact that the discussions included not just established individuals but also 60 future leaders. In my experience, the very way in which Board Intelligence sought to have the conversations ensured that they were rich and inclusive rather than narrow in focus.

“Not only are most businesses not doing enough to tackle unfairness, in many cases — such as climate change — they’re exacerbating it,” the report reads. It challenges us all to do better in terms of opportunity, environment and technology, recognising the need to address the constraints imposed by the current way we assess what is valued, and the way in which leaders are insulated from many people’s ordinary lives, and the consequences of their decision-making.

There is much that is highly thought-provoking in what is a short report. I particularly liked this simple comment from the ever-thoughtful Baroness Patience Wheatcroft, now a non-executive director at St James’s Place: “I’d like to make the mission of every company: people working for them didn’t need government handouts to survive.” The discussion of opportunity and how to unpick barriers to opportunity, and to stop them developing once again, is especially powerful.

And I really like one of the very simplest ideas in the paper, of adding an empty chair at the board table. It reflects the beautiful old tradition, typical in remote rural communities where mutual assistance is provided without being asked, of always being ready to welcome an unexpected guest. But in this case the guest is an implicitly excluded one: the stakeholders who are not represented within the board room. The chair is a reminder that there are other voices that are not heard and need at the very least to be considered.

This feels like an interesting beginning, though it is only that. It’s welcome that the Board Intelligence bunch are committed to pursuing these discussions further and trying to uncover ways that companies can practically deliver more fairness. They invite us all to get involved.

What is the Role of Business in Creating a Fairer Future?, December 2021, Board Intelligence

Report launch webinar

The missing actions on vaccine fairness (II)

The emergence of the Omicron strain of the coronavirus not only teaches many of us a further letter of the Greek alphabet but also provides a further education on both the politics of the pandemic, and its simple geography. As UNICEF points out, a pandemic cannot be solved one country at a time: “The pandemic will not be over anywhere until it is over everywhere.”

Many South Africans feel that they are being punished for their unusually strong approach to genomic sequencing. Their leading scientific position has enabled the early identification of this new strain, as it also did of the so-called Beta variant from the earlier stages of the pandemic (and of the Greek alphabet). It’s unlikely that South Africa is a particular hotspot for the development of new strains of the virus – though it is possible that the presence of a relatively higher population of immuno-compromised individuals because of the HIV/Aids challenge in that nation may provide some driver and scope for evolution of the virus. Much more significant is that the country is better than almost any at genomic sequencing of the virus and so is quicker to pick up issues than others.

It is very likely that Omicron has been active in a number of countries for some time but remained undetected until it came to the attention of the greater sequencing in South Africa.

Whatever its origin, the key lesson of Omicron is as a reminder that we need to share vaccines more fairly. We will not be able to prevent the development of new strains of virus and their spread unless there is much greater vaccination globally. Even if the rich North continues greedily to vaccinate its populations, the under-vaccinated nations of the global South are likely to prove pools of further and future infection – by strains that may not prove as mild in their health impacts as Omicron currently appears to be.

This is also why the pills now being offered cheaply in developing economies are not the answer. That’s not only because Merck’s pill now appears to be only 30% effective, not the 50% previously reported (note, this is the US, not the German, Merck). It is also that these pills – the Pfizer one will also be made available cheaply in these countries – are a treatment to alleviate the worst symptoms of Covid. It is great that they save lives, but they do not stop people getting (or, very likely, passing on) Covid, they just render the virus less lethal.

This means that the disease persists, and potentially mutates further and more lethally. Meanwhile, the pharmaceutical companies can continue to sell their vaccines at high prices in developed economies. In effect, booster jabs become a rich world (double) annuity for them. The pandemic persists, the fear persists – and the profits persist.

See also: The missing actions on vaccine fairness

An open letter on vaccine dose donations, UNICEF to G7, June 7 2021

Merck and Ridgeback Biotherapeutics Provide Update on Results from MOVe-OUT Study of Molnupiravir, an Investigational Oral Antiviral Medicine, in At Risk Adults With Mild-to-Moderate COVID-19, Merck, November 26 2021

The missing actions on vaccine fairness

The G20 has let the world down. This is not – yet – a comment about the ongoing climate talks in Glasgow, but about the undertakings made at the recent Rome summit relating to Covid-19 and vaccinations. Perhaps companies and investors are letting the world down too.

The G20 Rome Leaders’ Declaration recognises that global vaccination is a global public good, and undertakes to “advance our efforts to ensure timely, equitable and universal access to safe, affordable, quality and effective vaccines, therapeutics and diagnostics, with particular regard to the needs of low- and middle-income countries”. Yet while recognising the World Health Organisation’s vaccine equity goals – already somewhat limited and not fully fair – of vaccinating 40% of the population of all countries by the end of 2020 and 70% by mid-2021, the Declaration is aspirational about aims rather than solid in providing genuine commitments.

The comments of Amnesty International were fairly typical of the excoriating response of civil society organisations to the statement. “These vague promises are an affront to those who have died, and to everyone still living in fear of Covid-19,” said Tamaryn Nelson, Amnesty’s Advisor on Right to Health. It suggests 500 million doses of vaccine are potentially available for redistribution to poorer countries but remain in the stockpiles of richer nations. “With just two months left of this year, only a radical change in approach will close the shameful vaccine gap. If we continue down our current path, the end of the pandemic will remain a glimmer on the horizon.”

We have a long way to go, according to figures provided by the campaigning coalition the People’s Vaccine Alliance:

Amnesty, in its 100 Day Countdown launched in September, quotes numbers as of late October that tell a similar story:

  • About half the global population yet to receive a single dose
  • Just 1.4% of people in low-income countries, and 17.5% in lower-middle income countries, are fully vaccinated
  • Only 2.8% of people in low-income countries have received at least one dose, and 35.6% in lower-middle income countries. This compares to 70% in high-income countries.

Amnesty’s comments highlight the core of the stupidity of the Covid vaccine inequality. It is not just that restricting the distribution of vaccines to poorer nations is unfair. It is also foolhardy because of the scope for new variants to arise in unvaccinated populations, or those with low vaccination levels. As we used to say early in the pandemic, but seem to have forgotten, ‘none of us is safe until everyone is safe’. That’s true globally, not just within individual countries. Any single country might be a source of fresh infection for the rest of the world; at the moment that remains likely to be significant a risk for more than a further year:

While the numbers now look a little better than these from early this year, we are still a very long way from delivering on the WHO targets.

The G20 has failed us. But perhaps also companies, and investors, have failed us. The pharmaceutical industry does not have a great record on sharing its output fairly around the world, preferring to oversupply the rich economies that pay generously and undersupply poorer markets that cannot afford similar prices. This remains too often the case despite the efforts of the wonderful Access to Medicine Foundation, which produces an index of the pharma businesses and how well (or badly) they share their output fairly around the world – and which inspires investors to challenge companies to do better and fairer.

But much more clearly needs to be done with regard to vaccines. The backdrop isn’t great: according to Access to Medicine (admittedly in a report that is now a few years old), the major vaccine businesses generally are simply not investing in new products that would address the challenges of much of the world:

That seems a very unfair sentence to write given how swiftly the industry did respond to the challenge of Covid and how efficiently it has produced remarkably effective vaccines against the pandemic. I personally am grateful for my AstraZeneca jabs, and grateful too for the Pfizer jabs that are protecting a number of my loved ones.

But the industry must bear some blame for the remarkable unfairness in the distribution of these wonderful products. It is clear that most of the vaccine producers are prioritising making money from their products, monetising the pandemic, ahead of delivering to developed markets. Indeed, a cynic might suggest that they have an interest in prolonging the pandemic risk, not least given that the rich economies are now happily paying for the first round of booster shots as the initial immunity from the first vaccinations begins to fade.

And some criticism is particularly pointed and specific. The remarkable podcast Pfizer’s War from the excellent journalists at Tortoise Media suggests that Pfizer in particular has chosen not just to promote its own vaccine offering but also to denigrate others’ – notably the AstraZeneca one. Public comments by the purportedly independent non-executive director Scott Gottlieb certainly seem surprising. According to the podcast, Gottlieb’s CNBC interview on February 14 (quoted extensively at around minute 15) was pointed enough to spur the AstraZeneca general counsel to write a blunt letter to his equivalent at Pfizer calling the comments misleading and worse.

For me, though, the most shocking element of that interview was the reference to AstraZeneca’s vaccine as being based on a chimpanzee virus. At the very least this seems to play up to the unscientific fears about vaccines in some way risking a crossing of the barrier between species. Such fears date back to the very first vaccination, Edward Jenner’s use of cowpox to immunise people against smallpox (the very word vaccine is sourced from the Latin for cow because of this use of cowpox). Cartoons of the vaccine turning people into cattle were rife, and similar false nonsenses are being spread as part of the antivax movement now. For someone medically trained with scientific authority because of his past role at the FDA and current role on a vaccine producer’s board to risk fuelling such fears seems – to say the very least – badly misjudged.

If I were still wielding the votes of an institutional investor, having listened to the Pfizer’s War podcast I would have no hesitation in voting against Scott Gottlieb’s re-election to the Pfizer board. His comments sound much more like those of a cheerleader for Pfizer than showing the independence and challenge that we expect and require from independent non-executive directors.

And I would feel obliged to ask some very tough questions of Pfizer, and indeed all the vaccine producers. Not enough vaccines are getting to the world’s poorest. That isn’t fair because it leaves them exposed to great risk, but it also leaves us all open to additional unnecessary risk because it means the pandemic persists. Too many of the pharmaceutical companies seem content with that – super-profits persist for as long as the pandemic does, a cynic would note.

But while investors may be making enjoying the benefits of those super-profits in the pharma sector, we are all harmed by the economic damage that the pandemic is causing in our wider portfolios – harm that goes on in spite of the current bounce back to growth. For investors that are universal owners there is a strong interest in seeing an end to the pandemic and a fuller return to normal. Even from a purely financial perspective, this ought to lead to much more pressure on all the pharmaceutical companies to address the unfairness of current vaccine distribution.

As investors consider social issues more actively, and think about systemic risks beyond climate change, these issues deserve their attention. I’m aware of various shareholder resolutions on these issues being filed (or prepared for filing) at some of the pharmaceutical businesses. They deserve strong investor support but not as stand-alone actions; instead this should be a reflection of ongoing active engagement, including strong support for Access to Medicine on this crucial area.

None of us is safe until we are all safe. We all need greater vaccine fairness, and that will need more action from governments, from companies, and from investors.

See also: The missing actions on vaccine fairness (II)

I am grateful to Raj, the investment industry’s favourite Jiminy Cricket conscience, for pressing me to write about this issue (sorry it’s taken a while, Raj!)

G20 Rome Leaders’ Declaration, October 31 2021

Vaccine Equity, World Health Organisation

G20’s vague vaccine promises ‘an affront’ to five million dead, Amnesty International, October 31 2021

Dose of Reality: How rich countries and pharmaceutical corporations are breaking their vaccine promises, The People’s Vaccine, September 21 2021

100 Day Countdown, Amnesty International

Access to Vaccines Index 2017, Access to Medicine Foundation

Pfizer’s War, The Slow Newscast podcast, Tortoise Media (also available on your usual podcast provider), September 27 2021

A ‘little PRIC’ that we all need: Pharma Responsible Investor Coalition, Ishwar Gilada, Lieve Fransen, Mamphela Ramphele, Raj Thamotheram, Preventable Surprises, September 22 2021

Squid Game ‘fairness’

Fairness matters to the organisers of the games in Squid Game – Netflix’s breakout foreign language show from South Korea. But it is a peculiar and unconvincing form of fairness.

Everything is peculiar about Squid Game. Though there is a sense of positive determination around the key character, overall its worldview is darkly dystopian, reflecting the darkly dystopian view of those organisers, that no one is to be trusted and everyone is banally evil, by omission at least, if not commission.

It is episode 5 that is called A Fair World, but it is the start of episode 6, Gganbu, where their peculiar version of fairness is made clear. There is typically brutal treatment meted out to those handful of guards and player who had sought to take advantage of the situation for their own benefit. It is explained and reinforced by a public announcement to all those remaining:

“You are witnessing the fates of those who broke the rules of this world for their own benefit and furthermore tainted the pure ideology of this world. Here you are all equal, with equal opportunity and no discrimination. We promise to prevent such misfortunes from happening again. We truly apologise for this tragedy.”

This nearly sacred treatment of the concepts of fairness and equality struck me as odd, not least because the term had not seemed to feature up to that point – though I am now highly alert to the words fair and fairness, I hadn’t noticed them prior to then.

The peculiar form of fairness that the organisers have in mind is that the players are obliged to take decisions prior to games behind a veil of ignorance about what those games are. They need to decide their teams before knowing what skill or ability will be favoured – or whether they will be competing with other teams or with the other members of their own. They need to decide who goes first in a game without knowing whether the first or last will be favoured.

Of course, the organisers do not really believe in fairness. There isn’t much scope for real fairness in their dystopian world. After all, they are not above unfairly changing the rules of the game partway through to drive particular results (think of the turning off of lights in the middle of one game). Rather than fairness, they want randomness, driven in part by the chance choices made behind that veil of ignorance.

The veil of ignorance is a key concept in thinking about fairness. Philosopher John Rawls, perhaps the main thinker about the concept, used the veil as a way to understand what a fair world might look like. In his ideas (set out originally in A Theory of Justice, but perhaps more accessibly in Justice as Fairness), societies must develop structures and frameworks to deliver fairness – not least protections and support for those most vulnerable and needy – without any of the individuals involved in that development knowing the nature of their own circumstances. In the Rawlsian world, this ignorance about individual starting positions removes the natural prejudice that tends to favour the winners, and ensures instead that there are genuine protections and support for all. The veil should ensure that no one is disadvantaged unfairly by the chosen system.

It’s the opposite of the Squid Game world. There, each game is biased against all players, though a few will have some natural advantages. The weakest are rapidly abandoned – it is a dystopia after all. The only benefit of the ignorance is to maintain randomness, not any meaningful fairness. That’s why I don’t believe the organisers and their statements about the fairness of the world they have created. It is a very peculiar world, and a very peculiar form of fairness.

A Theory of Justice, John Rawls, 1971

Justice as Fairness: A Restatement, John Rawls, 2004

What’s the purpose of purpose? (III)

It is two years on from the Business Roundtable’s supposedly historic ‘restatement’ of the role of the corporation in the US. In a further excoriating article, my friend Harvard law professor Lucian Bebchuk and his colleague Roberto Tallarita have again shown the lie of this restatement, demonstrating that it is no more than a cover for business as usual.

A year ago, Bebchuk and Tallarita had already suggested this might be the case (see also What’s the Purpose of Purpose? (II)). Now they bring forward further evidence.

The BRT’s Statement on the Purpose of a Corporation was signed by 181 corporate CEOs. Bebchuk and Tallarita study the 136 US public companies that were involved, assessing their public documents and statements to see if anything had changed because of the Statement, in particular if there had been any switch from a shareholder-centric approach to one that more fairly accommodated the interests of stakeholders. They studied the companies’ governance guidelines (whether or not updated since the Statement was published), their bylaws, their proxy statements, and also the assertions of companies in opposition to the more than 40 shareholder proposals asking for implementation of the Statement. Bebchuk and Tallarita’s findings contrast strongly with the BRT’s own recent assertion that “Two years later, CEOs have powerfully demonstrated their commitment to work for the benefit of all stakeholders.”

In short, the evidence shows that these companies see the Statement as meaningless and as not making any difference to their ongoing shareholder focus:

  • Of the 99 companies (73%) that have amended their corporate governance guidelines since the Statement was published, 92 have left their corporate purpose unaltered, and 57 left shareholder primacy intact as the core driver for director decision-making; this does not include a large group of companies still employing a traditional US formulation of directors’ duties as acting “in the best interests of the company”, which (in the US at least) is not generally understood to encompass stakeholder interests.
  • Companies whose CEOs were directly involved in drafting the Statement are if anything less likely to have adopted stakeholder-friendly language in their governance guidelines.
  • Of the 136 companies, their bylaws emphasise the primacy of shareholders; only five mention social or environmental issues at all, though even then not to an extent that implies a stakeholder approach. Mentions of employees are restricted to discussions of senior executives and governance practicalities. The sole exception identified is consumer goods company Procter & Gamble which states that the interests of company and employees are “inseparable”, giving rise to an expectation of some form of profit sharing and voice for employees in the conduct of the business. This more stakeholder viewpoint (at least with regard to a single stakeholder group) is apparently unique among this group of US corporations.
  • Fully 117 of the 136 companies included no reference to the Statement in their proxy statements (the formal US annual disclosures to shareholders on governance matters) – though note that the academics excluded from consideration mentions forced on companies by the presence of shareholder proposals on these issues. Of the 19 that did reference the Statement, fully 10 asserted that it made no difference as it simply reflected their longstanding approach to business.
  • Perhaps most striking is the corporate reaction to the 43 shareholder proposals that were submitted to 27 signatory companies of the Statement in either 2020 or 2021, calling for an implementation of the Statement’s aims. 15 companies sought SEC permission not to put these proposals before their shareholders, 11 of them saying that the Statement made no difference to them as that was how they already ran their businesses (among them, pharma business Johnson & Johnson, pointing to its Credo). In total, 28 proposals went forward onto the AGM agendas of 21 companies over the two-year period. All companies opposed the proposals, 12 of them explicitly saying that they already applied the Statement’s expectations prior to signing it.

The academics accompanied their formal article with a Wall Street Journal op-ed published on the second anniversary of the publication of the BRT’s Statement. This op-ed easily lives up to the bluntness of its headline, Stakeholder Talk Proves Empty Again. As Bebchuk and Tallarita say: “If CEOs weren’t intending to deliver value to all stakeholders, what were they trying to do with their statement? One potential motivation is to make corporate leaders less accountable to shareholders…Another potential motivation is to release pressure for stakeholder-protecting regulation.” Neither represents an edifying conclusion, nor one that moves companies towards fairness.

See also: The living dead: rise of the zombie company

What’s the purpose of purpose? Will the focus on corporate purpose deliver real change in the way companies behave?

What’s the purpose of purpose? (II)

Will Corporations Deliver Value to all Stakeholders? Bebchuk, Tallarita, forthcoming, Vanderbilt Law Review Vol 75 (May 2022)

The Illusory Promise of Stakeholder Governance, Bebchuk, Tallarita, 106 Cornell Law Review 91 (2020)

Statement on the Purpose of a Corporation, Business Roundtable, August 2019

‘Stakeholder’ Talk Proves Empty Again, Bebchuk, Tallarita, Wall Street Journal, August 19 2021