Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

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These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

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So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

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But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

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“I’d much rather get a deal that really works for the UK than get a quick deal”

21st September 2021

Just a short post today, to note the irony – or lack of irony – of this statement by the prime minister:

“I’d much rather get a deal that really works for the UK than get a quick deal”

There is, of course, nothing to fault in this utterance – on its own terms.

It is a statement so solidly sensible that, one would think, it is a Good Thing that a prime minister has said it.

But.

This is also a prime minister who rushed through a Brexit deal that he now wants to renege on.

This is also a prime minister who heads a government that seeks to enter quick trade deals by the expedient of dropping demands and agreeing to whatever is offered.

So: the prime minister may have said “I’d much rather get a deal that really works for the UK than get a quick deal” but he is not being sincere.

The context undermines the text.

What he says here (as elsewhere) does not correspond with his or his government’s policy.

His words are instead a rhetorical trick – to explain away failure by a claim to high-mindedness.

All that the prime minister means by “I’d much rather get a deal that really works for the UK than get a quick deal” is that he cannot get a quick deal – or any deal.

Not even for soured grapes.

It sounds statesmanlike and commendable, but is just another excuse from the excuse drawer.

Imagine having a prime minister who expounded such a principle – and actually meant it – and that the principle expounded in turn corresponded to policy?

That would be quite a thing, wouldn’t it?

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Advice for new Law students: read the ******* cases

20th September 2021

From time to time lawyers in the media (including social media) are asked for advice by those about to study law.

There is lots of good advice to be had – for the study and the practice of law is hard, and is with most hard endeavours there will be useful tips from those of us who have gone before.

For what it is worth, I have one piece of advice.

(This is not, of course, the only useful advice – but it is the only advice I have to give.)

And this one piece of advice is simple: read the cases.

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Reading a case can be hard.

Working out why a case was decided in one way – and not another way – is often not easy.

Working out the extent to which anything in a case is an authoritative proposition that can apply to other cases is hard.

Working out whether the [x + y =+ z] that led to a decision in a certain case would also apply when there is only [x + y but no z] is hard.

But to really understand law – at least the law of England and Wales – there is no good substitute for the slog.

And the reward from this slog is profound.

For once you know how a case was decided (and how it was not decided) you have that knowledge for yourself.

Nobody can take it from you.

And so you will have the intellectual tools to answer any essay or examination question.

The alternative is not to read the cases – to rely on, say, lecture notes or what textbooks (or ‘nutshell’ guides) tell you what that case says.

But to rely on such secondary (sometimes tertiary) sources is like directing somebody to a destination based on overhearing someone else’s directions, rather than actually knowing the way yourself.

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Of course: this is an ideal.

Sometimes limits to time or access to resources will mean that you cannot read the cases for yourself.

Sometimes you will have to rely on what somebody else is telling you what the case means and when it will apply.

Sometimes you cannot (reasonably) be expected to have read the relevant cases.

But you should be conscious that this is not as good as reading the cases for yourself.

And if you read the cases, you will engage differently with textbooks and lecture notes.

Rather than relying on such sources for what the cases say, they become more useful for understanding how cases hang together.

You may find you do not even need some textbooks at all.

You may find that you spot possible errors or misconceptions or oversights in textbooks.

You may even find you spot possible errors or misconceptions or oversights in the judgments themselves.

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Once you have gutted a case and mastered that case you are in at least the same position as any other lawyer with a view on that case.

A lawyer who has access to a case, and has the time to understand the case, and has taken that time to do so, will be the equal of any other lawyer on that case.

Knowing the case law can thereby be a great equalising – even democratic – force.

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Other lawyers will give you advice on how to study law – advice you may find more useful than the advice in this post.

Some lawyers will even disdain my advice – often because their previous educations allow them to wing exams confidently.

And some lawyers – me included – will say that the actual practice of law requires many other attributes than the ability and willingness to read a case.

But taking all these counterpoints at their highest, my advice for anyone about to study law remains simple.

Read the ******* cases.

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Legal drafting and computer programming – a post in memory of Sir Clive Sinclair

19th September 2021

Some of the best legal drafters you will meet – those who put together formal legal documents such as contracts and acts of parliament – will have a background in computer programming.

This post sets out an explanation for this, from the perspective of an experienced legal drafter, as to why it seems (from the outside) the legal drafting process is similar to the computer programming process.

Of course, this perspective is that of a lawyer and writer – but I hope it is in general enough terms that the comparison it seeks to make is of some wider interest and validity to experienced programmers and others.

(My own coding skills are almost literally BASIC (and some HTML).)

The perspective set out below will be separated out into items, line-by-line, as-a-whole, and stress-testing, as well as a conclusion and a tribute.

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Items

By items I mean particular symbols or words – the smallest useful things to be typed.

For both the coder and the drafter each item will (or should) have a purpose.

(Even if that purpose is to be deliberately redundant –  we once caught out a copyright infringer because they had duplicated intentionally dud code that could not have been there without naughty copying.)

For the lawyer, each word in a formal legal document has (or should have) a purpose: it has been chosen instead of other words, and also instead of no words at all.

Here there is the ‘rule against surplusage’.

If a legal document says a thing then (it is presumed) that thing is there for a precise purpose.

And if it serves no purpose, then it should not be there.

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Line-by-line

Here we look at lines of code or clauses (or sections or articles) of a legal document – short sequences of items.

The intention with a line or a clause is that there is a thing meaningful enough to have meaning in and of itself – in effect: a proposition.

That one can look at it and say: that line or clause does this – but not that.

Most coders and lawyers are capable of producing such discrete things.

Certainly any competent lawyer should be able to draft a simple clause: ‘[x] shall do [y] in return for [z]’.

But – at least for lawyers – the difficult thing about drafting is not in composing a single clause but with the next two stages.

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As-a-whole

The first real difficulty with a legal document – as perhaps with a program – is getting clauses to work together as a whole.

That clause one does not contradict clause two, and that clause three is workable in view of clauses, one, two and four, and so on.

In this way, a legal document is usually complex – and not linear.

Each clause not only has to fit in with the clauses immediately before and after (like, say, a verbal jigsaw) but with every other clause in the document.

If clause sixty does not work with clause five then there is a potential problem.

And so, although some legal instruments are readable – sometimes elegant – they are not linear texts like an elementary short story.

I understand this is also the approach to coding – line 60 of a program has to match line 5.

The goal is therefore to create a thing as-a-whole that is internally coherent.

But.

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Stress-testing

And this is the second big challenge.

One can have a legal instrument – or a computer program – that is beautiful in its internal coherence, where each intricate point works with other intricate point.

And it still will be useless if it does not work in practice.

For legal instruments and computer programs are (or should be) practical things.

Instruments, not ornaments.

If a contract or an act of parliament fails any test provided by reality – then it is not reality that is ultimately at fault.

And similarly (it seems to me) a program that fails a test provided by reality – then it is also not reality that is ultimately at fault.

I have long thought, for example, that draft legislation should always be published – almost in Beta mode – for stress-testing before any actual implementation.

And that all legislation should be subject to regular testing and review, rather than just being dumped on to the statute books.

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Conclusion

Of course: as you read the above – just as I typed the above – exceptions and differences will come to mind.

And such exceptions and differences are to be expected – for I am not contending that two things are identical, only that they may be similar, and so I am identifying only points of similarity.

I could have posted a sequence of points of difference, though I do not think that would have been an especially interesting post to read or write.

And, again, I aver that although I am an experienced legal drafter, my coding skills are otherwise limited.

But there is, I think, something in the understanding that legal codes and computer codes may have similarities, and also that there is something in the understanding whether the coding processes that go into both are similar.

If there are similarities, then – in turn – there may perhaps be many things that the two disciplines can learn from each other.

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Tribute

This post is prompted by the news of the death of Sir Clive Sinclair.

In the 1980s my introduction to programming was the rubber-key BASIC shortcuts of the Sinclair Spectrum 48.

It was by learning how to code that I first developed the skills that, later, made me actually enjoy the drafting of complex legal documents.

‘IF [x] GOTO [y]’ has – at least for me – a lot to answer for.

</tribute>

END

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Three ways of looking at constitutions: institutions, functions, tensions

18th September 2021

Today’s post sets out something which has long interested me about constitutions, but I do not think I have set out in one place before.

It is about different ways one can approach thinking practically about constitutions – and why one particular approach is to be preferred.

By practically, I am making distinction with thinking theoretically or academically.

For such clever stuff other writers and texts are available.

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There seems to be three broad ways of thinking practically about constitutions.

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The Institutional Approach

The first approach is to have regard primarily to particular institutions – say the crown (which can cover various functions and other institutions); the prime minister and the cabinet and the Whitehall departments; the Westminster parliament; the various courts the devolved administrations; local government; the security agencies; the established church; and so on.

Here an account of, for example, the constitution of the United Kingdom will set out how all these institutions work together or muddle together.

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The Functional Approach

The second approach is have regard primarily not to institutions but to functions – and the usual typology here is to separate out executive, legislative and judicial functions.

In many constitutions – especially the sort you and I are most familiar with – these functions will correspond generally with various institutions.

So the legislative function corresponds with, say, the Westminster parliament or the federal congress in the United States, and vice versa, and so on.

The advantage of this functional approach over the institutional approach is that it recognises that certain institutions can perform more than one function – and that a function may be performed by more than one institution.

Central government in the United Kingdom, for example performs an executive function (obviously); but also by issuing secondary legislation and various rules, will perform a legislative function; and in determining individual cases, will perform a judicial (or quasi-judicial) function.

By concentrating on what is being done – rather than on which institution is doing it – this functional approach is often more useful than an institutional approach.

But.

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The Limitations of the Institutional and the Functional Approaches

By setting out institutions or even functions, there is the risk of having a limited understanding about how constitutions operate (or should operate) in practice.

You can end up having that naive notion that ‘all which is needed‘ for all political ills to be remedied is for there to be a written (that is, codified) constitution.

The simplistic notion that if only one set out the institutions of the state – or the functions of the state – with sufficient elegance in a single document then everything would be fine.

I have always found that approach not to be compelling – though for a long time I was not certain why this was the case.

But I think it is because neither the institutional nor the functional approach prioritise dealing with tensions and conflicts – that is, checks and balances, that prevent one group of people with public power doing whatever they want.

The institutional and functional models, for me, appear to regard tensions and conflicts as bugs not features of a constitution.

The (unspoken) notion is that, if things are going well, and a particular institution is doing what it should do, or those performing a particular function are doing as they should do, then there will be no conflicts.

Everything would be fine and neat.

Of course: when there are tensions and conflicts they should be regulated in some way, but that would and should not the the constitutional norm.

The happy idea here seems to be that if you just put in place the right written (that is, codified) constitution then there would be no or few tensions and conflicts.

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The Tensions and Conflicts Approach

I prefer a third approach which does not see tensions and conflicts as a regrettable afterthought in constitution-mongering, but as central to any worthwhile constitutional arrangement.

This approach asks the following hard-headed questions.

How are those who make rules checked in practice, and by whom and on what basis?

How are those who make decisions checked in practice, and by whom and on what basis?

How are those who determine the disputes of others, or who decide on the rights and obligations of others, checked in practice, and by whom and on what basis?

How are those who seek to use coercive force – either in various uniforms or otherwise – checked in practice, and by whom and on what basis?

How are those who seek to invade the privacy of others – for whatever reason – checked in practice, and by whom and on what basis?

And so on.

This approach cares little for the institutional trappings of those seeking to impose power on others.

This approach is unsentimental about grand-sounding institutions such as the crown or parliament or the courts – and sees instead people, stripped of their glamours and baubles, who are seeking to impose their will on others.

This approach also does not assume that there is some perfect manner where those who perform functions – executive, legislative, judicial, or otherwise – can be entrusted to just get on with their jobs – with the rest of us just deferentially nodding along.

This approach instead makes conflict and tension central, rather than peripheral, to an understanding of any constitution.

It avoids the presumption that those who perform functions – executive, legislative, judicial, or otherwise – should get their way, unless there is an exceptional reason for them not to do so.

Of course, by recognising that there are such tensions and conflicts there is, in turn, the risk of stalemates and blockages.

But a practical constitution would set out how each of these tensions and conflicts are to be managed – rather than pretending that they do not exist, or are exceptional.

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The question of a written (that is, codified) constitution

Elsewhere I have set out why – rare for a liberal – I am dubious about written (that is, codified) constitutions.

It seems plain to me – if not others – that written (that is, codified) constitutions can be illiberal devices, that will be more likely to entrench executive power than limit it.

But if there were to be a written (that is, codified) constitution in the United Kingdom, it should not start with institutions or functions but instead with checks and balances.

It should identify the foreseeable points of conflict and tension and then set out how they should be resolved and on what basis, and then work backwards from there.

Just like a well-drafted commercial contract starts from where there would be obvious disputes and works backwards to allocating rights, obligations and risks accordingly.

The problem with any worthwhile written (that is, codified) constitution for the United Kingdom – that sets out the practical ways in which those with any power can be limited – is that those with power would never allow it to be put in place.

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Why the Tensions and Conflicts Approach should be used to evaluate any constitutional reform

But even without a worthwhile written (that is, codified) constitution that starts with tensions and conflicts and works backwards, there is (I aver) merit in approaching any proposed constitutional reform or political change not by asking about institutions or functions but by asking how will abuse and misuse of the reform or change be managed?

That is to assume, as a given, that any proposed constitutional reform or political change will be abused and misused by those with power.

For it is by expecting the worst, and acting accordingly, that one can accomplish any sustainable constitutional improvement.

And it is this dismal, hard-headed, realistic approach that (I aver) should be the basis of any practical consideration of constitutional questions.

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Raab’s choice: repealing the Human Rights Act or a being a genuinely reforming Lord Chancellor ?

17th September 2021

Over at Joshua Rozenberg’s blog there is further discussion of the appointment of Dominic Raab as lord chancellor – following my (well-received) post yesterday.

Rozenberg makes two solid, good points.

The first – which I did not cover, but is obvious – is the paucity of junior ministers in the house of commons to support Raab.

Either by design or by accident, this at a stroke undermines the position of the new lord chancellor and deputy prime minister.

It may even indicate that Raab neglected to make insistence on this point before his appointment – and that for him the form and style of ‘deputy prime minister’ was a higher priority than the ‘boots on the ground’ of actual junior ministers in the commons.

A good spot by Rozenberg.

The second – which I refer to but Rozenberg spells out in more detail – is about the future of the human rights act.

Raab now has a decision – perhaps a huge decision.

Will he choose to spend his (perhaps) limited time as lord chancellor in his eternal quest to repeal the human rights act – a task which will be complicated and time-consuming and maybe ultimately futile.

Or will he choose to spend his limited ministerial time dealing with more immediate and everyday issues facing the ministry of justice – from prisons to effective criminal justice.

What will be Raab’s priority?

Does Raab want to be known as the politician who repealed the human rights act?

Or does he want to be a genuinely reforming lord chancellor, addressing a justice system in crisis and near-collapse?

For he is unlikely to have the time and resources to do both.

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The significance of the appointment of Dominic Raab as Lord Chancellor and Secretary of State for Justice

16th September 2021

Yesterday one politician replaced another as lord chancellor and secretary of state for justice – one of a number of ministerial changes in a reshuffle.

So what?

What, if anything, does this change signify?

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The outgoing lord chancellor was Robert Buckland, a conservative member of parliament, former solicitor general, and experienced criminal barrister and former ‘recorder’ (a part-time judge) in the crown court.

He had been in office for just over two years – and there are good, bad and ugly aspects to his term.

The good was that, in large part, the justice system was not dragged into the government’s infantile ‘culture wars’.

A fundamental political assault on judicial review fizzled down to almost nothing (see here).

To the extent to which this was down to his political interventions and tactics, all sensible people should be grateful.

The bad was that the wider justice system is in a bad state, with some parts – especially criminal justice – almost in chaos, with delays of years for basic matters.

This predicament was admitted by Buckland in his resignation letter:

You will see he expressly says that there have been ‘years of underfunding’ – and here it should be remembered that the conservatives have been in office for eleven years.

The ugly is his failure to check the explicit attempt by the government to break the law with the internal markets bill.

Others resigned: the advocate general Lord Keen resigned, as did the treasury solicitor Jonathan Jones.

It was an issue on which a lord chancellor of any integrity should have resigned too.

This is because the lord chancellor has an obligation, reflected in statute, to uphold the rule of law.

The moment the bill was published, the lord chancellor should have resigned.

There was no good reason not to do so.

But Buckland chose to stay on, in breach of his constitutional duty, and – in effect – gave cover to a government explicitly committed to breaking the law.

And his reward for this misplaced political loyalty?

He was casually sacked just to create a vacancy for a minister who had failed in another department.

Buckland will now spend the rest of his political and legal career justifying why he did not resign on the spot.

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Buckland’s replacement is Dominic Raab, another conservative member of parliament.

Raab has already served as a minister at the ministry of justice and has a legal background.

Yesterday, political sources told the political editor of the BBC that Raab was ‘a senior lawyer’, which the political editor then repeated as a fact without checking.

Raab is, in no meaningful sense, ‘a senior lawyer’.

This is not to make a political or partisan point, just a statement of fact.

He left the legal profession after a handful of years to go into politics.

There is certainly nothing wrong with that – and ceasing to be a practising solicitor can be a wise thing to do.

And Raab does have good legal credentials – prizes, a higher degree, and experience at a well-regarded city law firm and at the foreign office.

But he was only ever a junior lawyer.

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A case can be made for Raab’s appointment being a good thing.

He is a qualified lawyer – and many have complained when the lord chancellor has not been a qualified lawyer – with a good academic and professional background.

He is also deputy prime minister – which means that he will perhaps be in a stronger position in negotiations with the treasury so as to correct the historic underfunding described by his predecessor.

And he has a sincere (if haphazard) belief in rights, as shown by his 2010 book and his emphasis as foreign secretary on human rights for those under other regimes.

Sudan:

Syria:

Sri Lanka:

Belarus:

China:

And Russia:

There are many others.

Raab has tweeted about human rights dozens of times as foreign secretary.

And only, it seems, three times about Brexit – even though he was a strong Brexit campaigner and former Brexit secretary.

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So what can possibly be wrong about this appointment?

Legal background, qualified lawyer, influential within cabinet, genuine interest in human rights (at least for foreigners).

Why was a legal journalist able to (correctly) tweet this?

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Part of the answer is that – notwithstanding his interest in human rights abroad – Raab has a fixation with repealing the human rights act in the United Kingdom.

And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.

Raab may also be tempted to re-open the judicial review question, disregarding Buckland’s more conciliatory approach.

*

The real opposition to Raab’s, however, is more political than legal – his brash and confrontational political approach tied to a sense that there is little substance.

And so on.

*

But.

Every new lord chancellor and justice secretary should be given a fair chance.

For example Michael Gove was a surprisingly good lord chancellor and justice secretary – and not just because he was not Chris Grayling.

Perhaps Raab will also turn out to be a surprisingly good lord chancellor and justice secretary.

Perhaps.

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But.

The real significance of the appointment is not about personalities.

It is about the office of lord chancellor.

This office used to be occupied usually by a senior lawyer-politician, with no further political ambitions.

But since the creation of the ministry of justice under Tony Blair and Charles Falconer – which combined the old lord chancellor’s department with parts of the home office – the department has generally been under politicians on the rise.

And now it is being given to politicians on their fall.

Here, a consolation prize for being sacked as foreign secretary.

Just another spending department with just another politician in charge.

Yet: the lord chancellorship is special – or should be.

The lord chancellor has a duty to protect the rule of law in government and the independence of the judiciary.

And here there will be a tension with Raab’s appointment.

For as deputy prime minister, Raab will be answerable in parliament for the government as a whole (in the prime minister’s absence).

He will also, if he wishes, have a dominant position on any cabinet committees he choses to attend.

He will, in essence, be part of the thing that that lord chancellor is there, in part, to protect against.

No other deputy prime minister has also been lord chancellor.

This tension means potential problems ahead.

*

After the creation of the ministry of justice it was perhaps only a matter of time before it became just another political department.

And to this extent, the appointment of a politician such as Raab to the office in these circumstances was also just a matter of time.

But this does not take away from some of the tensions – perhaps contradictions – set out above.

The appointment is certainly good for law and policy commentators.

There will be a lot to commentate on.

It may not turn out so well for law and policy.

**

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Some refreshing comments against the glamourisation of serial killers and the woo-woo of criminal profiling

15th September 2021

One of the ugliest aspects of modern culture is the glamourisation – and monetisation – of serial killers.

*

In From Hell by Alan Moore and Eddie Campbell, about the Whitechapel murders, an opportunistic salesman sets up stall after the body of Catherine Eddowes is found in Mitre Square:

We then go to the reaction of the investigator Detective Abberline:

And then, in Moore’s footnotes to the story:

Quite.

*

The best thing, of course, to read on those killings is Hallie Rubenhold’s The Five.

Here Rubenhold pulls together the extant information about the lives of each of the victims for a sequence of compelling social histories.

Rubenhold explains how the victim’s social and economic predicaments – especially the then-common outdoor sleeping of the Victorian poor – made them easy to kill.

And also how social prejudices about (supposed) prostitution meant the murders were not taken seriously.

*

In The Collectors episode of The Sandman, Neil Gaiman and Mike Dringenberg depict a convention of serial killers, with all their braggy self-importance.

But at the end of the convention these proud killers are stripped of their glamours:

And they disperse as pathetic losers.

*

It is not just comics.

The serial killer as a figure whose ‘mind’ we are supposed to ‘enter’ is a staple of modern fiction – and modern non-fiction.

Take the pseudo-science of ‘profiling’.

It certainly makes great film and television:

But profiling is mainly woo-woo – at least to the extent to which it is based on individual subjective assessments rather than broad statistical analysis.

(See here and here – but also here.)

And the glamourisation – and monetisation – of serial killers continues.

*

So it was against this background when I stumbled on the following YouTube video.

I was expecting more of the same Cracker and Mindhunter tish-tosh.

How wrong I was.

Instead of the usual pseudo-science, Professor David Wilson takes us on a refreshingly sensible and unimpressed guided tour of well-known and less well-known depictions of serial killers.

This is Wilson on Lecter:

“I have encountered serial killers who have tried to scare me, but I wouldn’t be scared by Anthony Hopkins.

“I’d have laughed, frankly, if you’d told me about fava beans and a nice Chianti.”

The video is worth watching from beginning to end – and the end is brilliant (here is the video at 27:54):

Wilson refers to the “trope that we see in a lot of Hollywood movies, that people like me would try and enter the mind of a serial killer.”

He then concludes the video:

“I am not interested in what motivates a serial killer.

“I am much more interested in who it is the serial killer is able to kill.

“If we concentrated our attention on the groups that serial killers constantly target, we would do a lot more to reduce the incidence of serial murder in our cultures, as opposed to any number of offender profilers who claim that they can ‘enter the mind of a serial killer’.

“If you really want to do something to reduce the incidence of serial murder in our culture, let’s challenge homophobia, let’s have a grownup debate about how we police those young men and young women who sell sexual services, and above all, let’s try and work out why the elderly are so vulnerable in our culture because they don’t have a voice and have no power.”

Quite.

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What is this “Article 16” that the United Kingdom is threatening to trigger?

14th September 2021

The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.

 

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This sounds all very portentous.

But what does it actually mean?

What is article 16?

The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).

*

Let’s begin with what is an ‘article’.

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.

Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.

And article 16 – together with a dedicated annex – is such a micro legal instrument.

*

Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

Article 16 provides in its entirety (and you should read every word, as they will matter): In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.

*

The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.

First.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

Second.

It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

Third.

And ‘priority’ shall be given to what measures that cause the least disturbance.

One, two, three.

So: triggering article 16 does not mean anything goes.

Anything Frost proposes will have to meet these three substantive tests.

*

And there is more.

In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.

If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.

Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.

Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.

The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

Article 16 ain’t no weapon – it is a remedial tool.

It really is not something to ‘threaten’.

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In summary: invoking article 16 is not to be done casually or by mere oversight.

There are many substantive and procedural conditions to be fulfilled before it can be invoked.

And unless those conditions are met, then article 16 measures are not available.

Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.

All this is – or should be – obvious from the title of the article: ‘Safeguards’.

And not Reprisals.

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High slogans and low reality: the point and counterpoint of Brexit

13th September 2021

Like a bouncing ball we go from the high slogans to the low mundane – or grim – reality of Brexit.

Take, for example, this from businessman and former politician Archie Norman:

In translation:

– taking back control was and is ‘pointless’, and

– leaving the single market was and is ‘pointless’.

For what Norman here describes as “pointless” is the direct, natural and necessary consequence of both taking back control and leaving the single market.

What he describes is Brexit in its everyday reality.

This is what the slogans really meant when converted to actual practice.

*

Here is another example, for the great immigration law expert Colin Yeo:

In essence: if the French don’t cooperate, then the home secretary’s’s ‘turn around’ migrant boat policy is not only vile and inhumane – it cannot actually work.

Again, this is the reality of taking back control.

*

Both the examples above are crash-courses in the value of multilateralism in a complex world – and of the banality of autarchy.

By taking back control the United Kingdom has lost the means of exercising control – whether it is the terms of trade, or its borders, and so on.

And this is not a surprise.

For taking back control exists on the plane of slogans and not on the messy plane of reality of the world in which we live.

**

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If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

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