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Recent Posts

  • Explaining a 31-month sentence for a tweet 27th May 2025
  • A close reading of the “AI” fake cases judgment 9th May 2025
  • How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful 22nd April 2025
  • How the United States constitutional crisis is intensifying 17th April 2025
  • A note about injunctions in the context of the Abrego Garcia case 14th April 2025
  • How Trump is misusing emergency powers in his tariffs policy 10th April 2025
  • How Trump’s tariffs can be a Force Majeure event for some contracts 7th April 2025
  • The significance of the Wisconsin court election result 2nd April 2025
  • “But what if…?” – constitutional commentary in an age of anxiety 31st March 2025
  • A significant defeat for the Trump government in the federal court of appeal 27th March 2025
  • Reckoning the legal and practical significance of the United States deportations case 25th March 2025
  • Making sense of the Trump-Roberts exchange about impeachment 19th March 2025
  • Understanding what went on in court yesterday in the US deportations case 18th March 2025
  • “Oopsie” – the word that means the United States has now tipped into a constitutional crisis 17th March 2025
  • Oh Canada 16th March 2025
  • Thinking about a revolution 5th March 2025
  • The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States 25th February 2025
  • The president who believes himself a king 23rd February 2025
  • Making sense of what is happening in the United States 18th February 2025
  • The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires 11th February 2025
  • Why Donald Trump is not really “transactional” but anti-transactional 4th February 2025
  • From constitutional drama to constitutional crisis? 1st February 2025
  • Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end 25th January 2025
  • Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said 21st January 2025
  • A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss 18th January 2025
  • Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech 17th January 2025
  • Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things 16th January 2025
  • Why did the DoJ prosecution of Trump run out of time? 14th January 2025
  • Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead 13th January 2025
  • A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter 9th January 2025
  • How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March 1st January 2025
  • Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench 31st December 2024
  • “Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending 20th December 2024
  • An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion 28th November 2024
  • The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion 18th November 2024
  • New stories for old – making sense of a political-constitutional rupture 14th November 2024
  • The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next 8th November 2024
  • A postcard from the day after an election: capturing a further political-constitutional moment 6th November 2024
  • A postcard from the day of an election – capturing a political-constitutional moment 5th November 2024
  • “…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore 31st October 2024
  • Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion 28th October 2024
  • A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties 22nd October 2024
  • What explains the timing and manner of the Chagos Islands sovereignty deal? 20th October 2024
  • Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court 1st October 2024
  • Words on the screen – the rise and (relative) fall of text-based social media: why journalists and lawyers on social media may not feel so special again 30th September 2024
  • Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy 24th September 2024
  • On writing – and not writing – about miscarriages of justice 23rd September 2024
  • Miscarriages of Justice: the Oliver Campbell case 21st September 2024
  • How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy 11th September 2024
  • Supporting Donald Trump is too much for Richard Cheney 7th September 2024
  • A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong 30th August 2024
  • Update – what is coming up. 29th August 2024
  • Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness 21st August 2024
  • Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice 19th August 2024
  • This week’s skirmish between the European Commission and X 17th August 2024
  • What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable 7th August 2024
  • How the criminal justice system deals with a riot 5th August 2024
  • The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)? 26th July 2024
  • And out the other side? The possible return of serious people doing serious things in law and policy 10th July 2024
  • What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before 9th July 2024
  • The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome 8th July 2024
  • How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases 28th June 2024
  • What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance” 25th June 2024
  • Seven changes for a better constitution? Some interesting proposals from some good people. 24th June 2024
  • The wrong gong 22nd June 2024
  • The public service of an “Enemy of the People” 22nd June 2024
  • Of majorities and “super-majorities” 21st June 2024
  • The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act? 12th June 2024
  • The predicted governing party implosion in historical and constitutional context 11th June 2024
  • Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy 1st June 2024
  • The unwelcome weaponisation of police complaints as part of ordinary politics 31st May 2024
  • Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end 29th May 2024
  • Another inquiry report, another massive public policy failure revealed 21st May 2024
  • On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed 4th May 2024
  • Trump’s case – a view from an English legal perspective 24th April 2024
  • Law and lore, and state failure – the quiet collapse of the county court system in England and Wales 22nd April 2024
  • How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive 17th April 2024
  • Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal 25th March 2024
  • The curious incident of the Afghanistan war crimes statutory inquiry being set up 21st March 2024
  • A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability? 8th March 2024
  • A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision 10th February 2024
  • How the government is seeking to change the law on Rwanda so as to disregard the facts 30th January 2024
  • How the next general election in the United Kingdom is now less than a year away 29th January 2024
  • Could the Post Office sue its own former directors and advisers regarding the Horizon scandal? 16th January 2024
  • How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice 12th January 2024
  • The coming year: how the parameters of the constitution will shape the politics of 2024 1st January 2024
  • The coming constitutional excitements in the United States 31st December 2023
  • What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers 15th December 2023
  • A role-reversal? – a footnote to yesterday’s post 1st December 2023
  • The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in 30th November 2023
  • On yesterday’s Supreme Court judgment on the Rwanda policy 16th November 2023
  • The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday 10th November 2023
  • The extraordinary newspaper column of the Home Secretary – and its implications 9th November 2023
  • Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost 1st November 2023
  • Proportionality is an incomplete legal concept 25th October 2023
  • Commissioner Breton writes a letter: a post in praise of the one-page formal document 11th October 2023
  • “Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly 30th September 2023
  • COMING UP 23rd September 2023
  • Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency 9th September 2023
  • One year on from one thing, sixteen months on from another thing… 8th September 2023
  • What is a section 114 Notice? 7th September 2023
  • Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism 24th August 2023
  • Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences 21st August 2023
  • Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process 15th August 2023
  • A note of caution for those clapping and cheering at the latest indictment of Donald Trump 8th August 2023

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Category: International law

Oh Canada

16th March 2025

Canada is unlikely to really want to join the European Union, but here is a thought-experiment anyway

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These are strange times for law and policy commentary. On one hand, there is some new thing to write about every day – almost every hour. On the other hand, most of what is being is written in response to those new things is the same. There is only so many ways of saying things are bad, and they are getting worse.

And so it came as a light relief when the media reported that an opinion poll showed substantial support among Canadians for joining the European Union.

And any comics fan knows the fun to be had with a good What If team-up.

(Source.)

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So I did a post over at Prospect on What If…Canada wanted to join the European Union?

(Click and read here.)

Sadly, we could not commission Marvel cover art, and so we got a stock photo of President Macron and Prime Minister Trudeau instead.

But the sentiment behind the article was the same: What If?

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Pretty soon in putting together the post it became obvious that it would have to be about what is meant by a country being a “European state”.

This was because the formal legal gateway to EU membership – Article 49, the sister provision to the exit provision Article 50, of which you have no doubt heard – is limited to European states.

Of course, this is no absolute barrier: what is done by a treaty can in general be undone by a treaty. If all the parties to a treaty agree to a change then a provision can be amended.

But as Professor Steve Peers – a one-person boon to the public understanding of EU and other international law – avers, the EU treaties generally are framed about the ever closer union of European peoples etc.

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And so the question becomes: what actually is a European state?

Here there are at least two complicating factors.

First, the European Union already extends far beyond any meaningful definition of the continent of Europe. Indeed, it goes as far as the Indian Ocean.

Second, an actual full member state of the European Union – Cyprus – is, according to many geographers, part of West Asia and not Europe.

And if so, if there is an absolute binary that a member state itself (notwithstanding any overseas extensions) has to be part physically part of Europe, it is perhaps difficult to make a categorical argument why Cyprus can be a member, and Canada cannot be.

At least, that is, without advancing an argument that being European is ultimately just a state of mind.

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Another thing that came up when putting together the post was about the curious position of Morocco.

What “everybody knows” – that is anybody who has followed such things – is that Morocco was once turned down for membership of the European Economic Community (the predecessor of the EU) for not being European.

But this story was curiously difficult to pin down with any official documentary evidence – which is curious, given how much sheer documentation the EU does publish.

(At one point it seemed as if the story existed entirely as lore, and not law and policy.)

This is not the place to explore what happened when Morocco made enquiries about joining the EEC – that fascinating story warrants a separate post.

But whatever did happen would not, in any case, bind the EU now as a precedent.

It would come down to politics.

In essence: if both Canada and the EU really wanted to come together, no mere legal formalism would stop them.

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What would be more sensible, however, would be for the sensible liberal members of the EU – that is the current ones minus the illiberal headbangers of Hungary and Slovakia – to join with non-EU members such as Canada, the United Kingdom, Norway, Iceland, and perhaps Greenland and Ukraine – and form a new grouping.

Other non-European states may also like to join in: Mexico and Panama may have common interests.

This grouping could complement and fit with the EU, but not be beholden to the vetos of illiberal EU (and NATO) states.

This grouping may adopt the trappings of a formal identity – with its own acronym and permanent staff – or it may be simply a coalition of states working together.

And this may achieve what the 44% of Canadians in that poll presumably want: a closer connection with those who can counterbalance its erratic southern neighbour, which is currently experiencing a spectacular political and diplomatic breakdown.

Joining (or leaving!) the EU is never to be done lightly: it can (and should) take years to reconfigure a state’s laws and policies so as to align and then fuse with those of the EU.

And that is before a candidate member state has to work out how to deal with the institutional framework of this complex supranational organisation, where the council, the commission, the court of justice, and other bodies can (and will) clash with domestic institutions.

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All this, of course, is merely a thought-experiment.

But such exercises can be useful in separating out the plausible from the implausible, and the compelling from the unnecessary.

Any sensible person will sympathise with the predicament of Canada – and of other countries being bullied by the United States.

But.

What if…

…all other countries now adjusted their affairs so as to eliminate or minimise the power and influence of the United States?

Now, there is a thought-experiment.

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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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 16th March 202516th March 2025Categories European Union Law and Policy, International law, United States Law and Policy11 Comments on Oh Canada

What explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

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Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

***

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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 20th October 202421st October 2024Categories Citizenship and Nationality, Constitutional Law, Imperialism and colonialism, International Agreements, International law, United Kingdom Law and Policy, Whitehall13 Comments on What explains the timing and manner of the Chagos Islands sovereignty deal?

This week’s skirmish between the European Commission and X

17th August 2024
Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

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These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

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When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

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Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 17th August 2024Categories Blogging and bloggers, Constitutional and Legal History, Constitutional Law, Constitutionalism, European Union Law and Policy, International law, Media law, Regulatory law, social media, United Kingdom Law and Policy8 Comments on This week’s skirmish between the European Commission and X

What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

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Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

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You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

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Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

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Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

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Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 15th December 2023Categories Human Rights and Civil Liberties, International Agreements, International law, Torture and War Crimes, UK Supreme Court, United Kingdom Law and Policy21 Comments on What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

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I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate.  It would not have been relied upon had the government been actually serious about this policy.

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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 16th November 2023Categories Constitutional Law, Constitutionalism, Courts and Politics, Courts and the administration of justice, Home Office, Human Rights and Civil Liberties, International Agreements, International law, Rwanda policy, UK Supreme Court, United Kingdom Law and Policy44 Comments on On yesterday’s Supreme Court judgment on the Rwanda policy

Proportionality is an incomplete legal concept

25th October 2023
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The legal(isitic) concept of proportionality does not exist in a vacuum, for it is a term for the relationship between means and objectives
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There is an old line shared by English lawyers that, for the High Court, domestic law is a matter of law, foreign law is a matter of fact (on which the court may take expert evidence), and international law is a matter of fiction.

And for those who take the (not entirely unreasonable) view that law needs to be capable of enforcement so as to be termed “law”, the nature of international law is problematic.

(Here we mean what is called “public international law” – the law which in general applies to state and international actors, rather than “private international law” which is about cross-border transactions and other private law relationships.)

One can say [A] or [B] is in breach of international law, but unless there is a court or tribunal of competent jurisdiction available and capable of determining the question, statements about international law can just seem like many assertions and expressions of opinion.

But, even if there is no likelihood of any case ever reaching a court, states often say they have regard to international law in what they do.

*

The current news from Israel and Gaza raises the question of compliance with international law.

Many have strong views on what is happening in Israel and Gaza.

The best explainer I have come across (via David Anderson on X/Twitter) on the application of international law to what is happening in Israel and Gaza is this one.

And you will see that the key concept here is one of that most tricky of all legal notions, proportionality.

*

The only point this general legal blog can add is that the legal(istic) concept of proportionality does not exist in a vacuum – a thing is not, at law, proportionate or disproportionate in and of itself, for the concept describes a relationship between things.

The concept of proportionality makes legal sense (if it makes any legal sense at all) when it is applied to the relationship between means and an objective.

The legal concept of proportionality will then provide a way of assessing whether particular means go further than necessary in meeting particular objectives.

Of course, this tells you nothing about the merits of a proposed action and of the legitimacy of an objective.

And so it is a legal concept, in public international law and other areas of law, which can raise questions rather than answer them.

But if one has a view on whether what any state actor is doing is proportionate or disproportionate under international law then one also has to be as precise as possible as to the actual means and to the specific objectives to which the concept is being applied.

And some will say that some means may never be proportionate to any legitimate objective.

**

Only on-point (and sensible and constructive) comments will be published below – there are other places on the internet for other comments.

Posted on 25th October 202325th October 2023Categories International law18 Comments on Proportionality is an incomplete legal concept

An Arrest Warrant for Vladimir Putin

17th March 2023

Today an arrest warrant was issued for the arrest of Vladimir Putin.

This warrant was issued by the International Criminal Court.

On the face of it, the jurisdiction of that court in this matter is not obvious.

Neither Russia nor Ukraine are signatories to the Rome Statute, which established the International Criminal Court and provides for the jurisdiction of the court.

(And nor are, for example, the United States and Israel.)

But it seems that not being a signatory is not a barrier.

According to the court’s site, “Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, pursuant to article 12(3) of the Statute”.

It would appear that a mere declaration – as distinct from signing, let alone ratifying, the Rome Statute – is enough to confer jurisdiction.

Article 12 of the Rome Statute provides:

One can see how this joins the legal dots so that there is jurisdiction for a warrant to be issued.

Somewhere there is, no doubt, a paper copy of Article 12(3) with a big tick next to it.

But this, of course, will not be enough for the Russians to cooperate.

There is currently zero chance of Putin being arrested.

This should not surprise us.

For, unlike equity, international law often acts in vain.

In large part, that is the point of international law – to provide international standards even if those standards are not met

And the politics in Russia can change.

*

By coincidence, the last week also saw the 103rd birthday of the last surviving Nuremberg prosecutor, Ben Ferencz.

Ben Ferencz (@BenFerencz), the last surviving prosecutor from the Nuremberg trials, is 103 today: https://t.co/5o06m4tges

— Mr Memory (@AmIRightSir) March 11, 2023

One of the convictions secured by Ferencz was for an SS officer responsible for mass murders in Ukraine.

That mass murderer was hanged.

All Putin would face is imprisonment.

*

The basis for the warrant for Putin is the forced deportation of Ukraine children.

This is a serious matter – but it is, of course, not the only war crime for which Putin is responsible.

It is, however, one of the easiest to evidence – and, indeed, it would appear the facts of the deportations are not disputed.

As such it has a flavour of Al Capone and tax evasion – a prosecution that is evidence-led and thereby more likely to reach a more advanced stage procedurally.

Presumably an arrest warrant needs a sound evidential base, and the forced deportation of Ukraine children provides the requisite evidence.

This certainly not to underplay the importance of the child deportation issue – it is more of an illustration that any practical prosecution will always be a balance between law and evidence.

Perhaps further grounds can be added in due course.

But if this prosecution has any chance of success, then at this early stage doing-it-by-the-evidence as well as doing-it-by-the book is prudent and admirable.

This prosecution may not get any further – but, if it does, it will be in part because the prosecution was properly thought-through at its early stages.

***

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Posted on 17th March 202318th March 2023Categories International law, Uncategorized4 Comments on An Arrest Warrant for Vladimir Putin

The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

The vote on Wednesday is specifically “on a motion to approve a statutory instrument relating to the Stormont Brake in the Windsor Framework".

But No10 said it will be treated as the moment that MPs deliver their verdict on the overall deal.

— Jack Maidment (@jrmaidment) March 16, 2023

Here is No10 confirming Wednesday's vote is the vote on the overall Brexit deal.

PM's spox: "We said Parliament would have its say on the framework. This vote honours the Prime Minister’s commitment to provide MPs with the opportunity to vote on the new arrangements."

— Jack Maidment (@jrmaidment) March 16, 2023

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

**

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, or if they risk derailing the discussion.

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Posted on 16th March 202316th March 2023Categories Brexit, International Agreements, International law, Legislation and Law-Making, Policy and Policy-Making, United Kingdom Law and Policy13 Comments on The failure of Brexit to return real power to Westminster: a worked example

What is going to now happen with the Bill of Rights?

9th December 2022

You really would need a heart of stone not to laugh like a drain:

Robert Buckland tells me he is confident that "wise heads in No 10" will decide not to push ahead with the bill of rights.

Ex-justice sec says the "worrying" legislation will get an "absolute mauling" unless it is "withdrawn and recast"https://t.co/YUEV1tLWIM

— Aubrey Allegretti (@breeallegretti) December 8, 2022

This blog has previously compared Dominic Raab’s quest to repeal the Human Rights Act with Captain Ahab’s quest to get Moby Dick.

And it would appear that Raab is going to fail, again.

It looks likely that his “Bill of Rights” – which was to repeal the Human Rights Act and to make it more practically difficult to rely on the European Convention on Human Rights  – will be dropped.

As it is, there has been no legislative movement on the Bill since 22 June 2022, which is now almost six months ago:

The Human Rights Act 1998 will still be there, and Dominic Raab may soon not be.

*

But.

Those generally supportive of the Human Rights Act and the European Convention on Human Rights should not be tempted into complacency by the apparent dropping of the Bill.

There are many ways a canny government can subvert human rights protections – subtle, hidden ways.

All that has failed here is a loud and clumsy frontal attack.

In a way, such performative proposals are the easiest to deal with, as they often collapse from their own absurdity.

The Home Secretary Suella Braverman is also no friend of the European Convention on Human Rights, but she and her Home Office of lawyers will come up with less obvious proposals in upcoming legislation.

The convention itself is fairly safe as part of our domestic law, as the Good Friday Agreement expressly requires convention rights to be directly enforceable in the courts of Northern Ireland.

There is thereby little-to-no chance that the convention will be taken out of our domestic law.

And there now seems little chance that the Human Rights Act, which gives effect to the convention in our domestic law, will itself be repealed.

But in the two or so years before the latest date for the next general election – January 2025 – there is a great deal ambitious ministers can do try to do with more focused legislation.

So while we can afford a moment at this festive time of merriment to have a hearty cheer at the apparent failure of the Bill of Rights, we must stop the cheering when the Christmas decorations come down.

And be braced, braced for the new year.

***

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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.

Posted on 9th December 20229th December 2022Categories Bill of Rights, International law, Island of Ireland, Legislation and Law-Making, The Union, Northern Ireland, Scotland, Wales, United Kingdom Law and Policy6 Comments on What is going to now happen with the Bill of Rights?

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:

Oh I see it’s time to bring back out this thread of Tory Home Secretaries signing THE deal with France that is going to end unauthorised journeys to the UK… #r4today https://t.co/NgWMhO0ewv

— Zoe Gardner (@ZoeJardiniere) November 14, 2022

*

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”.

*

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:

And to reiterate: no, there’s no need to process asylum claims in France or anywhere else. Let people travel here safely. Process their claims here fast and fairly. That’s it. #r4today

— Zoe Gardner (@ZoeJardiniere) November 14, 2022

*

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.

***

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.

The comments policy is here.

 

 

Posted on 14th November 202215th November 2022Categories Brexit, Home Office, International Agreements, International law33 Comments on What does it mean to “take (back) control” of a border?

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