Category: International Agreements

Getting any quick international trade deal is easy, if you give in to the other side

15th November 2022

There is one way to get a “quick win” international trade deal.

That way is to just give in to what the other side want, but without gaining anything of equal value in return.

It really is quite easy.

All you have to do is turn up to the negotiation, ask what the other side’s negotiators want, give it to them, and – Hey Peston! – the United Kingdom has a trade agreement.

It is as easy as falling off a eucalyptus tree.

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This week in the House of Commons there was a debate on the Australian trade deal.

In that debate the former minister George Eustice said (and this should be read carefully):

“…the Australia trade deal is not actually a very good deal for the UK, which was not for lack of trying on my part.

“Indeed, as my right hon. Friend pointed out, there were things that we achieved, such as a special agricultural safeguard for years 10 to 15, staged liberalisation across the first decade and the protection of British sovereignty in sanitary and phytosanitary issues.

“It is no surprise that many of these areas were negotiated either exclusively or predominantly by the Department for Environment, Food and Rural Affairs on behalf of the UK team, but it has to be said that, overall, the truth of the matter is that the UK gave away far too much for far too little in return.”

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It gets worse:

“…we should not set arbitrary timescales for concluding negotiations.

“The UK went into this negotiation holding the strongest hand—holding all the best cards—but at some point in early summer 2021 the then Trade Secretary my right hon. Friend the Member for South West Norfolk (Elizabeth Truss) took a decision to set an arbitrary target to conclude heads of terms by the time of the G7 summit, and from that moment the UK was repeatedly on the back foot.

“In fact, at one point the then Trade Secretary asked her Australian opposite number what he would need in order to be able to conclude an agreement by the time of the G7.

“Of course, the Australian negotiator kindly set out the Australian terms, which eventually shaped the deal.”

Ooof.

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As regular readers of this blog will note, this idiotic approach to negotiations was pretty much also that adopted by the government of the United Kingdom with the withdrawal and relationship agreements with the European Union.

Instead of taking negotiations seriously, there were artificial deadlines imposed for domestic and media political consumption, regardless of the quality of the agreement.

In essence: the government of the United Kingdom did not and does not take international agreements seriously.

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Part of this lack of seriousness is down to faux-nostalgia.

The notion that because nearly two hundred years ago the United Kingdom could go around the world agreeing trade deals on its own terms.

The idea that, like some latter-day Richard Cobdens, we can pop across the channel and agree a free trade deal, and still be back for tea.

Indeed, the very phrase “international trade deals” is invoked and bandied about by supporters with Brexit with misty-eyed sentimentality.

Being able to enter into such agreements was, it was claimed, one of the advantages of Brexit.

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But.

International trade agreements are not creatures of sentiment.

International trade negotiations are perhaps the most hard-headed, unsentimental things one can imagine in the commercial world.

Indeed, international trade law is commercial law for grown-ups.

Any real benefits gained from such a deal are hard-negotiated and will come at a cost elsewhere.

And a benefit, in any case, may only have an overall marginal economic effect.

For forty-five years, the United Kingdom benefitted from the experience and expertise of the European Commission in negotiating trade deals, with the commission being able to deploy the clout of the single market and twenty-eight member states.

In this way, the commission were able to negotiate deals with mattered and were worth having.

That has now been thrown away, with the United Kingdom leaving the European Union’s common commercial policy and internal market.

What we have now have instead are bravado and bluster, and Elizabeth Truss asking what the other side want so that we simply can give it to them.

And we also have the moral hazard of Boris Johnson and David Frost agreeing to the Northern Irish Protocol and then saying we will renege on it.

We could not be in a less impressive place on the world stage.

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Yes, perhaps, Eustice should have resigned rather than go-along with what he knew to be a bad trade agreement with Australia.

Perhaps.

But it is a Good Thing that he has set out the real position now on the floor of the House of Commons.

The United Kingdom, in a post-Brexit world, is going to learn slowly and painfully that the superficial approach of Johnson and Truss to international agreements is disadvantageous.

Well, at least the limitations of this approach are becoming apparent.

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What does it mean to “take (back) control” of a border?

14th November 2022

Brexit, we are told, was about “taking back control” – of our borders, our money, and our laws.

Yet, if you read the news, it would seem the United Kingdom is less in control of its borders than it was before we departed the European Union.

It would seem that simply declaring that we were “taking back control” was not enough for us to, well, take control.

A less-than-a-moment’s thought should explain why.

It is difficult, if not almost impossible, to have absolute control of a border from one side alone, if a significant amount of people want to cross that border.

In extreme situations, of course, resorting to coercion and lethal force can give the impression of control, at least in the immediate term.

But for there to be effective and sustainable control of a border usually requires those on both sides to cooperate.

As such, the simplistic unilateralism of “taking back control” will not work in practice.

And it is thereby not surprising that the current home secretary has had to agree with France a form of cooperation about the channel crossings.

Though, as Zoe Gardner points out on Twitter, this is not the first time such a thing has been announced:

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Another misconception is that deterring those crossing the channel will work.

That one can remove the “demand”.

That by threatening people with flights to Rwanda or keeping people in horrible conditions the United Kingdom will somehow reduce the number of those seeking asylum here.

The demand seems, to further use economics jargon, “inelastic”.

All that appears to be happening is that, by using various hostile, inhumane and illiberal measures, is that the same number of people are still coming – but we are treating them less well.

The “push factor” does not seem to care about our unpleasant ways.

And there is little that the United Kingdom can do to directly address the “push factor”.

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So what we have are high significant numbers of asylum seekers.

[Word ‘high’ replaced, as some commenters complained it was misleading.]

What should be done?

Well, as Gardner further says, the dealing with the actual claims themselves should be the priority:

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What we can take control of is not our border – but our internal processes, and how well those processes are resourced.

That is what is within our control.

Anything else either requires sincere international cooperation or is outside of our or any other receiving country’s direct control.

And that is control we cannot take – either “back” or otherwise.

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The European Political Community – then and now

5th October 2022

You would not think that that Europe wants more political organisations: there is the European Union and the Council of Europe and the European Free Trade Association and the Organization for Security and Co-operation in Europe and so on.

But there is now to be a new one: the European Political Community, which is to meet in Prague later this month.

When I heard this name, it seemed familiar.

This is because there was once another proposal for a European Political Community at the same time as the European Coal and Steel Community (which preceded the European Economic Community) and the aborted European Defence Community (which was rejected by the French).

You will see the European Political Community of 1952 was a grand and ambitious federalist proposal, but it never got off the planning desk after the failure of the European Defence Community.

The ideas which were behind it however became part of the European Economic Community and then the European Union.

Seventy years later the same name is now being used for what appears to be a purely intergovernmental exercise, with no shared institutions.

This is a good thing: one forum for all European countries is a talking-shop which is well worth having, without courts and commissions and treaty obligations.

And, rather wonderfully, it is going to be covered by Eurovision – showing that entity has a role beyond song contests.

The European Union should never be equated with “Europe”.

They are not the same.

The European Union comprises 27 of (about) 50 European countries – just over half.

This new organisation is a boon for genuine Europeanism.

Let us hope that it is more successful than its 1952 incarnation.

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That Chinese embassy tweet – on international obligations and moral hazard

4th July 2022

Here is a tweet from the Chinese Embassy in Ireland:

Well.

What did the government of the United Kingdom expect?

This is not to say there is equivalence between the two situations – and many may say that a false equivalence is being made.

And this is not to say that the government of China – with its often horrific record on human rights, including in respect of the Uyghurs – are somehow the ‘good guys’ for tweeting in this way.

Certainly not.

But.

Again: what did the government of the United Kingdom expect?

The government’s reckless determination to legislate so that it can unilaterally breach the Northern Irish protocol was always going to provoke responses like this.

A government that openly and expressly wants to breach international law – especially its own recently negotiated agreements – cannot credibly insist on other nations complying with their international agreements.

Similarly, the sustained attack on ‘European’ human rights law by this government also makes it difficult for the United Kingdom to insist on international human rights standards by others.

(This is a point I make today in more detail over at Al Jazeera – where I post regularly putting forward a liberal constitutionalist perspective.)

The United Kingdom now also appears to be considering breaking World Trade Organisation rules on steel subsidies.

The United Kingdom government is showing the same lack of respect to international rules-based regimes as it does to domestic rules.

But the more we denounce or deride or disregard international agreements and instruments, the more we are creating a needless moral hazard.

It is all so daft – and so dangerous.

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In another universe, where the United Kingdom has also departed the European Union, a far more prudent government than the one we have currently would have spent the last few years building up its credibility as a party to international agreements and instruments.

After all, new international agreements are what the United Kingdom will need to rely on, now that it all alone on the world stage.

(Of course, such a prudent government may not have left the European Union in the first place.)

But instead of doing everything we can to build up our credibility as a potential partner to international agreements, we seem to have done everything we can to trash our international reputation as a serious party to international agreements.

And this was the worst possible time for us to convey such an insolent – almost infantile – attitude.

This is why we are now being trolled by the Chinese on social media.

And the United Kingdom government only has itself to blame.

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Why the current government may not have a mandate for repealing the Human Rights Act – and why this may matter

24th June 2022

In yesterday’s post on this blog, the successive manifesto commitments of the current governing party since 2010 on the Human Rights Act were set out.

These commitments were as follows :-

The 2010 Conservative manifesto (twelve years ago):

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the  Human Rights Act with a UK Bill of Rights.”

The 2015 Conservative manifesto (seven years ago):

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The 2017 Conservative manifesto (five years ago) placed a foot on the ball:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”

And then most recently, in the 2019 Conservative manifesto:

“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

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This post looks at what the implications of that last 2019 commitment may be – though, in doing so, it is accepted that manifesto commitments are not legally binding obligations, and so there is leeway in how they are to be interpreted.

The 2010 and 2015 manifesto commitments do not need much interpretation in respect of the Human Rights Act – they are as plain as any pikestaff.

The Human Rights Act was to go – replaced, scrapped.

The 2017 commitment is also not ambiguous – the Human Rights Act was to stay, for now.

But.

The 2019 commitment was not that the Act would be replaced or scrapped, or that it was to safe for now.

The 2019 commitment was only to ‘update‘ the Act.

The 2019 commitment could have been to ‘scrap’ or ‘replace’ the Act – but the governing party decided against making that commitment.

The governing party opted for ‘update’ instead.

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The governing party thereby has an election mandate for ‘updating’ the Human Rights Act.

And so if this is what they do, then that cannot be gainsaid – at least not constitutionally,

But the government is not now proposing merely to update the Act – but to repeal it and replace it with another statute.

To do, in effect, what the 2010 and 2015 manifestos promised.

But do the governing party have a mandate for repealing the Human Rights Act outright?

In other words: is repeal within the scope of an ‘update’?

Again, it is important not to be legalistic about this – no legal claim can be brought for a government breaking its manifesto promises, and so no manifesto should read as it is a formal legal document.

But what is stated in a manifesto is not without constitutional consequences.

This is because of the so-called ‘Salisbury doctrine’ – a constitutional convention.

This doctrine provides – quite rightly – that it is not open to the House of Lords to block or delay legislation for which a government has obtained a mandate at a general election.

The question thereby becomes whether this proposed ‘Bill of Rights’  is protected by the Salisbury doctrine or not.

If it is protected by the Salisbury doctrine, then the House of Lords cannot and should not block or delay the bill – though, of course, it may seek to make amendments.

If the bill is not protected by the Salisbury doctrine, however, then there could be such delays – including forcing the government to resort to the Parliament Acts to force the law onto the statute book after a year without the support of the House of Lords.

As the new bill substantially reduces rights and freedoms of individuals, there may be those in the House of Lords that will want to amend the bill beyond what the current government would want to accept – and to insist on those amendments.

Their view may be that “updates” – whatever that means – may be fine, but not outright repeal –  because the government cannot point to any mandate for repeal.

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If a bill is protected by the Salisbury doctrine, then the House of Lords will (usually) back down before the government has to invoke the Parliament Acts.

Of course, the only reason any of the above may be an issue is, no doubt, that the governing party did not want to say expressly in its manifesto that it would repeal the Human Rights Act outright, as that might have scared the voters, if not the horses.

A promise to ‘update’ was a lot less alarming to middle-ground voters.

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One suspects the House of Lords will be wary about opposing the government in respect of such a populist piece of legislation.

And the government – and its media and political supporters – will clap and cheer at the prospect of a ‘peers vs people’ narrative.

But because of the mild wording of the 2019 manifesto commitment, the government cannot be certain of the House of Lords will back down on outright repeal.

And, what is more, this government in particular is not in any strong position to insist that other elements of our constitutional order comply with mere conventions.

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A first glance at the Bill of Rights Bill

22nd June 2022

The new Bill of Rights Bill 2022 has been published.

On the face of it, this is a very significant move.

The Bill even tells us that when enacted it will be known as the “Bill of Rights 2022”.

Note this means it will now be one of a small group of statutes which will not be known as Blah Blah Act Date.

No, this legislation demands comparison with the (actual) Bill of Rights of 1688.

Portentous stuff.

But.

In broad terms, this new legislation makes no real difference to the Human Rights Act 1998.

For example, schedule one to the Human Rights Act 1998 sets out the articles of the European Convention of Human Rights:

And Schedule 1 to the new legislation also sets out the articles of the European Convention of Human Rights:

The proposed Bill of Rights does not create any new ‘British’ rights instead of the European Convention.

The fundamental purpose of the 1998 Act and the new bill are the same: to provide a basis in domestic law for giving effect to the convention rights in the European Convention.

And the key operative provision is the same.

Here is section 6 of the 1998 Act:

And here is clause 12 of the proposed bill:

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So.

Both the 1998 Act and the new legislation place the rights under the European Convention of Human Rights into English law by means of a schedule.

And the 1998 Act and the new legislation provide – in identical language – that public bodies must comply with those rights.

Even the defintion of “Convention rights” are the same.

The 1998 Act:

The new Bill:

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You may wonder what is the point of an entirely new enactment that does, at the fundamental level, exactly the same as the legislation it is supposed to replace?

And the answer to that is there is no real point.

The new legislation does make a difference in respect of how the convention rights can be enforced in certain situations.

The overall effect – odd for legislation which will be called ‘The Bill of Rights”, if you think about it – is to make it harder practically for convention rights to be enforced.

But that is done by the means of various processes and other tinkering – but nothing which warrants such a legislative overhaul.

Those new provisions can be looked in detail at as the bill proceeds.

But in respect of the fundamentals this new bill gives effect to the same Convention rights with the same key obligation and with the same defintion of convention rights.

The rest is detail and symbolism.

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Compliance not confrontation: a possibly significant rhetorical shift in the Foreign Secretary’s statement today on the Northern Irish Protocol

17th May 2022

As any good regulatory lawyer will tell you, ‘compliance’ is better than contravention or challenge.

The question is what can constitute compliance.

From time to time a regulatory lawyer will get a new or inexperienced regulated client who want to challenge or contravene a regulatory rule or policy.

‘Let’s go to court’,’ the novice will say, or ‘let’s tell them that we will see them in court’.

The regulatory lawyer will shake their wise head and say: ‘well, if you do this instead, then you will be complying, and then all the bother will go away’.

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Compliance is usually a better overall legal strategy than confrontation.

And with that view in mind, let us now look at the statement by the Foreign Secretary today to the House of Commons about the Northern Irish Protocol.

Instead of the statement once (notoriously) made by a cabinet minister that the United Kingdom would only break international law “in a very specific and limited way”, the Foreign Secretary said that the government would comply with international law in its new legislation:

“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.

“Our preference remains a negotiated solution with the EU.

“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement.  […]

“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”

In other words, the government is to ‘comply’ with international law – though no doubt in a very specific and limited way.

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So much for rhetoric – on information currently available, it seems the government is threatening what it has threatened before.

The significant difference is that the government is now to threaten this while maintaining it is complying with international law rather than candidly admitting that it is seeking to break it.

It seems that the basis for this intellectual exercise in gymnastics is that the Good Friday Agreement takes priority over the protocol.

That this is the tactic is supported by the references to the Good Friday Agreement at the beginning of the statement and from statements from government supporters:

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As one Northern Irish writer put the notion of such priority in a fantasy context, there can sometimes be “deeper magic”.

What the government appears to be developing is a contention that any unilateral amendment of the Norther Irish Protocol cannot really be a breach of international law if that amendment is by reason of the Good Friday Agreement.

Of course: this is all sophistry and illusion.

The policy substance has not changed, and the proposed breach has not changed, all that has changed is that the proposal will not now be described as breaking international law.

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Yet such a rhetorical shift is possibly significant.

For it may signify that although the United Kingdom government has no fresh ideas about how to resolve the issue with the Northern Ireland Protocol, ministers may now realise that the rhetoric of challenges and outlawry is not necessarily helpful.

And, if this is the case, this could become a useful habit – for the government may find other things that can be brought under the label of ‘compliance’ that may allow it to shift its position in substance.

Smudgery and fudgery, perhaps.

And somewhere in Whitehall, a foreign office lawyer nods their head wisely.

It is all about what ‘compliance’ means, you see.

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

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The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

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So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

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To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

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Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

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The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

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So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

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For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

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Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

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Two reasons why today’s ‘Reclaim these Streets’ high court decision is significant

11th March 2022

The ‘Reclaim these Streets’ decision was handed down by the High Court today.

In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.

The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.

First, the court placed the police decision-making under anxious scrutiny.

This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.

This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.

Second, and just as refreshing, the court took the legal right to freedom of expression  – under Article 10 of the ECHR – seriously.

This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.

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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.

Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.

Well done to all who were involved.

https://twitter.com/davidallengreen/status/1502252517631135752

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Realpolitik v universal war crimes jurisdiction?

2nd March 2022

Just a quick post tonight to ask a question to which I do not know the answer.

If – as a matter of Realpolitik – the invasion of Ukraine could be brought to an end by an amnesty for Putin, would that be a price worth paying?

Would it be worth excusing him from any war crimes prosecution just so as to bring the invasion to an end?

Or should there be an absolute insistence that, whatever happens, Putin must face a war crimes prosecution?

What do you think?

Realpolitik or universal war crimes jurisdiction?

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.