“Russian influence in the UK is the new normal” – Did you know the Russia Report had actually been published?

9th March 2022

Another brief post today – am not well and Twitter today has used up what spare mental energy I had – and so here is another link with an explanation.

This is to the ‘Russia Report’ – a document that many did not realise had actually been published.

https://twitter.com/davidallengreen/status/1500098105936654340

And if you cannot read its fifty-five pages, you can read the four page summary here.

And, if those four pages are too many, just read the bullet-points – especially the first:

“Russian influence in the UK is the new normal.

“Successive Governments have welcomed the oligarchs and their money with open arms, providing them with a means of recycling illicit finance through the London ‘laundromat’, and connections at the highest levels with access to UK companies and political figures.”

You would think such a conclusion of a senior cross-party committee would have made the political news.

But – unless you have a particular interest – you would have never known it had been published at all.

A wise civil servant once observed that if you want to hide something, just publish it – for nobody will read it.

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A libel defeat for the Eurasian Natural Resources Corporation

8th March 2022

Today’s post will be just a short one, so as to link and draw attention to this judgment.

Paragraphs 38 and 39 are beautiful and quietly lethal.

By way of background, the corporate claimant – the Eurasian Natural Resources Corporation – sued in respect of the outstanding book Kleptopia.

(Buy it here – EDIT This is now an Amazon link, as the previous Bookseller link says they are out of stock.)

The judge held that the book did not hold the defamatory meanings pleaded:

“In short, the Book does not bear the defamatory meaning contended for by the Claimant because, read in their proper context, the allegations complained of by the Claimant do not refer to any ENRC corporation” (paragraph 36).

But.

The judge goes on and says, in effect: hang on, this book does make serious allegations about the claimant, so why is the claimant not suing on those serious allegations?

Why, asked the judge in effect, is the Eurasian Natural Resources Corporation not suing for being called “[a] corporate front – “a charade” [ ] used [ ] for criminal activities including corruption, money laundering, theft and embezzlement. “

Well, why indeed.

This, of course, is not an express admission by the Eurasian Natural Resources Corporation that it is such a front.

But one suspects these judicial comments in a legally privileged, public judgment were not those sought by the claimant in bringing this case.

Less SLAPP – and more of a slap-down.

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Disclosure and disclaimer: the journalist defendant also works for the Financial Times, where I am a freelance ‘contributing editor’ but nothing in this post refers (or is intended to refer) to any case brought by Eurasian Natural Resources Corporation against any other FT entities and/or individuals; and I also long ago happened to work for the claimant’s law firm.

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The United Kingdom government is rushing through anti-oligarch legislation without proper scrutiny

7th March 2022

Imagine a serious piece of proposed legislation, for serious times.

Imagine that legislation is substantial – a Bill of 64 pages.

Imagine that legislation is complex – 55 clauses and 5 schedules (the latter comprising 11 parts).

Imagine that legislation is coercive – creating at least 12 new criminal offences.

Imagine that legislation confers wide executive powers – with 20 “may by regulations” provisions for Secretary of State to legislate by fiat, including in respect of individual rights.

And now…

…imagine that proposed legislation being forced through all its stages in the House of Commons in a single day.

What could possibly go wrong?

Well.

We will now find out, for this is what is happening today with the Economic Crime (Transparency and Enforcement) Bill.

This significant legislation is being rushed through with almost no opportunity for adequate scrutiny by Members of Parliament – just so the government can be seen be doing something about Oligarchs.

This is not how fundamental legislation should be put in place.

 

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When both lawyers and the law are to blame

4th March 2022

Over at the Financial Times I have a piece on the extent to which lawyers are to be blamed for the abuse of English law by oligarchs.

https://twitter.com/davidallengreen/status/1499802380711387138

The article is, in turn, an elaboration of a post I did at this blog earlier this week – and it is a topic I have also tweeted about.

And one response has been to assume that my attempt to say that lawyers are not entirely to blame means that it is being suggested that lawyers are not at all to blame.

I have been careful to state – and explain – that lawyers are culpable, and that solicitors especially get to choose who they act for and in what way.

This is not good enough for some commenters – and I have been told that I am somehow making excuses.

But the problem is with any area of law that relates to dreadful things – oligarchs, torture, slavery, police brutality – there are both systems and individual agency.

This is an area this blog has explored before.

https://twitter.com/davidallengreen/status/1424059049360994307

And the focus on either systems or individual agency does not give you a full understanding of how the law and lawyers can enable such bad things to happen.

It has not been pleasant getting the ire that some want to dump on lawyers generally – but until and unless we can see that problems can be both systemic and personal, we are unlikely to resolve those problems.

And just jeering at lawyers, while satisfying, can be a substitute for meaningful reform of bad law and bad legal practice.

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A government should not be able to deprive people of possessions and property by mere ministerial diktat

3rd March 2022

Yesterday’s short post turned out to be rather popular, with a number of informed and insightful comments.

(Perhaps that is a hint that I should keep these blogposts succinct!)

The question puzzling me today is whether those clamouring for United Kingdom sanctions against oligarchs realise that it is not a good thing for the government to have summary powers to deprive individuals of possessions and other property.

When the government uses summary powers, say, to deport members of the Windrush generation, or to remove a person’s British citizenship, then liberal rightly are concerned.

Individuals have rights, and there are things no person or group may do to them, without violating their rights.

And if all individuals have rights, and oligarchs are individuals, then it follows that oligarchs have rights.

These rights may not be absolute – and property rights especially can be subject to interferences by the state.

But such interferences need to have a lawful and reasonable basis and follow due process.

And this is the same for oligarchs, as it is for anyone else.

That the government cannot just deprive people of possessions and property by mere ministerial diktat is not a bad thing in a liberal society.

And those who clap and cheer at the prospect of possessions and property being taken by the state without any lawful and reasonable basis, and without due process, should be careful what they wish for.

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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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Oligarchs in London – what lawyers are to blame for and what they are not

1st March 2022

There is a negotiation tactic when a party wants to be robust or unreasonable but wants to appear to be nice and approachable.

The tactic is to blame the lawyers: “I would agree, you see, but I have been told by my lawyers that I cannot”.

And nobody minds – the party gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.

There is a similar move in politics and media.

The politician or pundit gets to blame the lawyers – and to get easy nods and cheers.

“It is the lawyers to blame.”

In turn the less alert of those listening will roar and demand that the lawyers be named and shamed.

And nobody minds – the politician and pundit gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.

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This political and media dance routine obscures what lawyers cannot be blamed for – and what they can be.

Individual lawyers at any one time can only work with the law as it stands.

If the law does not permit or enable a thing, then a lawyer cannot make a difference.

If you want to stop a person from having or exercising certain rights then legislative change can often make the difference wanted.

Take for example, sanctions on oligarchs.

Oligarchs will have rights and can exercise their rights.

That lawyers advise and assist so as to make those rights effective is not – ultimately – the fault of the lawyer.

If the government really wants to sanction an individual then there is little that lawyers can do to prevent it.

There are certain limited exceptions – obviously in respect of life and liberty – but almost anything else is possible if the government is determined and goes about it in the right way.

Take, for another example, defaming oligarchs.

Again, oligarchs have a right to defend their reputations.

And lawyers will be there to advise and assist so as to make that right effective.

But such lawyers can only work with the law of defamation as it stands – and it is entirely open to the government to seek to reform the law of defamation.

There are reforms that could be made – for example to make SLAPP legal cases far more difficult to threaten or to make.

Determined efforts and reforms, however, would take time and effort by the government – and so it is easier to blame the lawyers instead.

There will always be those who will clap and cheer.

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But.

The defence above does not absolve lawyers in England and Wales from personal responsibility.

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That said, barristers – those lawyers who tend to do advocacy in court – are (supposedly) bound by a cab-rank rule which means they are (supposed) to take case in their area, regardless of who are instructing them.

As such barristers can be instructed in a matter contrary to their own views.

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Solicitors, on the other hand, are not bound by a cab-rank rule.

And it is solicitors who will be sending the letters on behalf of oligarchs in respect of sanctions and defamation.

Solicitors do get to choose who they act for.

Indeed, the business models of certain solicitor practices are based on there being numerous foreign corporations and high net-worth individuals wanting to enforce rights in London.

(And for what it is worth, I choose not to act for oligarchs or foreign states, and do not act against newspapers, even though I am a media and commercial lawyer.)

But.

If one a solicitor does not want to act for such clients in such cases, then there will be other solicitors who will.

Solicitors may be able to choose who they act for, but they cannot choose to change the law.

And so here – even without denying the personal responsibility of lawyers who choose to act for such clients – we again have the ultimate problem being the law, rather than lawyers.

The hard truth is that, although it is satisfying to blame – and name and shame – lawyers, it is the law that is at fault.

What lawyers do is a function of that law.

But that would require difficult questions of how the law came to be in the state that it is.

And that is why law-makers and their political and media supporters choose to blame lawyers instead.

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But… But… Russia has a written constitution with liberal provisions

28th February 2022

As the Russian imperialist invasion of Ukraine unfolds, and as it becomes plain the autocratic hold which Putin has over the Russian state and people, it may not be a good time to point out that – on paper – Russia has a written, liberal constitution.

But let us consider this point any way.

You can look at an English translation of the Russian constitution here (though there have been amendments since this version).

Scroll down – and you will find all the old favourites of liberals and greatest hits of progressives.

You can see almost every provision that would gladden your heart to see written in a codified constitution.

And all…

…completely useless.

For perhaps the least important constitutional thing in any liberal state are the words written down on paper.

More important are checks and balances, by which provisions can be practically enforced against those with political power.

And most important of all is a sense of constitutionalism – the notion that there are political rules that are to be followed, even against the partisan and personal interests of those with power.

Sometimes codification can make a marginal difference in the liberal direction – that because there is a portable instrument certain checks and balances are easier to point to and rely on.

But the difference is only marginal.

A written – that is, codified – constitution is never, by itself, a liberal and progressive panacea.

Just scroll down that Russian constitution, with its nice and attractive ideal provisions, and compare and contrast with reality.

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The Chelsea FC statement that is not what it seems

27th February 2022

Last night – at 6.45pm on Saturday – Chelsea Football Club unexpectedly published this statement:

In terms of media coverage, the statement could not have been timed better.

It was early enough to be just about picked by the Sunday newspapers, but late enough to avoid lengthy scrutiny.

And it was at that time on a Saturday that those on Twitter are expecting ‘breaking’ stories.

Accordingly, the statement was quickly taken (and shared) by many in news and sports media as being significant.

This apparent significance also seemed warranted by the content of the statement, which I publish below (with sentences split out):

“Statement from Club Owner Roman Abramovich

“During my nearly 20-year ownership of Chelsea FC, I have always viewed my role as a custodian of the Club, whose job it is ensuring that we are as successful as we can be today, as well as build for the future, while also playing a positive role in our communities.

“I have always taken decisions with the Club’s best interest at heart.

“I remain committed to these values.

“That is why I am today giving trustees of Chelsea’s charitable Foundation the stewardship and care of Chelsea FC.

“I believe that currently they are in the best position to look after the interests of the Club, players, staff, and fans.”

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Let us look at what this actually says.

One phrase which stands out is “stewardship and care” – which Abramovich is “giving” to the “trustees of Chelsea’s charitable Foundation”.

Two sentences before that phrase – deftly – this is framed as a “decision”.

This looks solemn and legally meaningful.

But.

The statement has no legal meaning at all.

Indeed, it would seem that the statement was crafted deliberately so as to give the impression that something legally significant was happening – a “decision” to transfer a thing to “trustees” – when nothing legally significant was happening at all.

This is PR – and this is what you get when you can afford expensive and wily PRs.

And it had the desired effect:

And there were many excited tweets from those in news media who should have known better suggesting the statement said something important.

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The phrase “stewardship and care” looks like it should be a legal phrase.

It is similar to, say, “duty of care” (which is a legal term of art) – and “stewardship” has a nice legal-ish comforting ring to it.

But it is flapdoodle.

What one transfers to trustees is not “stewardship and care” but ownership of property.

The trustees then – literally – hold that property on trust on behalf of beneficiaries.

But if you look at the Chelsea FC statement there is no property been passed to trustees.

The word “trustees” is, in effect, a misdirection.

They may as well be assistant referees or physiotherapists, for their title is – strictly speaking – irrelevant to what is being described

It is very skilfully put-together statement for journalists and others in a hurry.

And only those with a background in commercial and trusts law would realise immediately that the statement did not actually say what it seemed to say.

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This does not mean that the fact of such a statement is not without its own significance.

There would be a purpose to such a statement at such a time: statements like this are not randomly put out at 6.45pm on a Saturday when Russia is invading Ukraine.

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Of course: there is nothing wrong about retaining ownership of Chelsea FC – even from my perspective as an Aston Villa supporter.

It is certainly not defamatory to say that Abramovich remains as much the owner of Chelsea FC after this statement as he was before.

(And we would especially like to welcome all the representatives of London’s defamation law enforcement community who have chosen to join us here on the law and policy blog at this time.)

Nothing on this blog should be taken to mean that one should think any worse of anyone involved – indeed, this post registers admiration at a such a perfectly deft exercise in PR.

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The invasion of Ukraine – autocracy, democracy, constitutionalism and rationalism

25th February 2022

There are two common errors in politics and human conflict.

One is to believe your opponents are caricatures – to assume that they are not rational.

The other is to believe there must be some reason in what your opponents do – to assume that they are actioning rationally.

The problem is knowing when you are making these errors in any given situation.

Take Putin, for example.

Some think he is currently being rational:

While others think he is unhinged:

At an early stage of this conflict, I saw some merit in the view that Putin was rationally acting to set up a ‘frozen conflict’ – as he had done in Georgia and Moldova:

But while that may have explained the initial parts of the current conflict, it does not explain the escalation to a full invasion.

And so we do not know whether (and, if so, how) what Putin is doing is rational – and whether there is any way to comprehend why Putin is acting in this way.

But what we do know is that this conduct – rational or otherwise – flows from Putin as an autocrat.

This is evidently his policy – and not one that is being pushed on him by others – and there is nobody in the Russian polity with any formal power to check him.

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Over at the outstanding Comment is Freed blog, the doyen of war and strategic studies Lawrence Freedman sets out what we know and do not know so far about the invasion.

It is exemplary commentary on an unfolding (and, for us, confusing) event and it is worth reading for its own sake.

But there is one passage that is worth considering on this here law and policy blog:

“At times in democracies we lament the flabbiness, incoherence, short-sightedness and inertia of our decision-making, compared with autocrats who can outsmart us by thinking long-term and then taking bold steps without any need to convince a sceptical public, listen to critics, or be held back by such awkward constraints as the rule of law.

“Putin reminds us that that autocracy can lead to great errors, and while democracy by no means precludes us making our own mistakes, it at least allows us opportunities to move swiftly to new leaders and new policies when that happens.

“Would that this now happens to Russia.”

The great thing about checks and balances (when they work) is that, well, they check and they balance.

In the United Kingdom, for example, prime ministers as different as Asquith, Chamberlain, Churchill and Thatcher have all been removed from office at a time of international tension or war.

Effective checks and balances mean that those with political power can always be prevented from exercising their power – and even removed from power.

And this accountability tends to improve the quality of policy and decision making.

As Freedman avers, in a democracy there are the means by which leaders can be replaced and policies changed.

In Russia – whether Putin is rational or not, and whether his policy is rational or not – there are no formal mechanisms by which Putin can feasibly be replaced or his policy halted.

So it does not matter much whether he and his policy are rational – whether there is some grand plan.

He is going to (try to) do what he wants anyway.

And so we come to the ultimate check and balance that all tyrants risk encountering, regardless of any constitutional arrangements.

The check and balance on Hubris that is often (but not always) provided by Nemesis.

Putin will not be the first (or last) dictator to overreach himself in trying to spread their power westwards or eastwards on the land mass of Eurasia.

The problem is that waiting for Nemesis can be like waiting for Godot – and sometimes it does not come in time, or at all.

And that is why, as Freedman implicitly suggests, conflicts are not a time to release leaders and their polices from any scrutiny – but a time where leaders and policies should be most scrutinised.

Would that this now happens to the United Kingdom.

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