On “regulation”

18th June 2017

This post is a short essay-of-sorts about regulation.

The prompt for this post has been the tragedy at the Grenfell tower block, but this post deals with the issue of regulation in general rather than any incident in particular.  This post is an elaboration of a widely retweeted Twitter thread.

As of today, we do not know the cause of the tragedy.  We do not know (and it would be prejudicial to say) whether anyone is criminally culpable. We do not even know if any laws were broken. There is the worrying (but plausible) prospect that no laws were broken: that the disaster was allowed to happen, and that everyone was involved were in compliance with whatever (inadequate) laws there were.

This post is therefore about dergulation in general, whether or not deregulation caused the the tragedy at the Grenfell tower block.

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Regulation, like law, is inherently neither good nor bad.

Some regulations and laws can be used for bad purposes or can have unwanted effects.

But the key test for regulations and laws is a practical one: whether they work or do not work.

Each regulation should be looked at its own merits, on a case-by-case approach.

The purpose of a regulation is to affect outcomes and shape behaviour.

Some outcome should be (or would be likely to be) different *but for* the regulation.

A regulation which, for example, makes no difference to what would have happened anyway fails this test.

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A “regulate everything” approach is thereby misconceived.  Not everything can be regulated.  Or the regulations may make no difference.  Or the unwanted consequences of the regulation may outweigh the benefits.

(I have satrised this “something must be done” approach here and I have criticised the propensity to “ban” things without thinking through the consequences here.)

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At the other extreme there is the “regulate nothing” approach.

This approach sees regulation as a inherently bad thing; regulation as a thing which needs to be got rid of, as an end in itself.

So we get “crackdowns” on red tape.  Things are to be “liberated” from “shackles”. A person is to be “set free” from the “dictates” of “Whitehall”.  And so on.

Cliché follows cliché. Easy headlines and applause.

It is not hard for a politician to get a clap when calling for such deregulation in this way, just as he or she would also get a clap by saying something should be done.

(The very same nodding voter would no doubt be clapping both times.)

The bureaucrat and the official, with their invariable “lack of common sense” is the bogey here, the villain.

Health and safety has gone mad, we will say.  A return to common sense, we will demand.

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But often absent from these demands are specifics.

What regulation?

What purpose?

Does it work?

What does it make different?

What does it not make different?

What would happen if the regulation was not there?

What would be the wider consequences of a regulation not being there?

What are the costs as well as the benefits?  And the benefits as well as the costs?

These are questions for the proponents of both “something must be done” and “eliminate red tape”.  Their utterances are not enough; more is needed than virtue signalling.

Regulations (and the removal of regulations) are not ends in themselves.

A regulation is there to provide that outcomes will be (are are likely to be) different from what they would be, *but for* the regulation.

Certain bad outcomes can be avoided; certain public goods and public benefits can be achieved.  In both cases, individuals would not be able to do this for themselves without the regulation.

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And so: the next time someone says “reducing red tape” ask for specifics (just as you should with the person calling for “something to be done”).

In particular: what outcomes would be affected?

And if you do not get an equally specific answer, the demand is shallow and meritless.

And sometimes this means the demand is dangerous, and sometimes even lethal.

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Brexit and the new British Constitution

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15th March 2017

The set out of a textbook on the ‘British Constitution’ used to be straightforward.

(And yes, the British do have a constitution, it just is not codified.  There is a descriptive answer to the question: how is Britain constituted?)

After the various chapters on the executive, legislature, judiciary, local government, nationalised industries, the police, and so on, there would perhaps be a short chapter on Scotland and Northern Ireland.

Wales would have an index entry which said ‘for Wales, see Scotland and Northern Ireland‘.

In other words: the three other component states of the United Kingdom were not taken seriously in constitutional terms. They were, at least for many in England, an afterthought.

This did not stop English politicians invoking ‘British’ as it suited them.  English conservative politicians were fond in particular of calling for a ‘British Bill of Rights’ without a second thought as to the word ‘British’ (or indeed to the word ‘rights’).

This was always misconceived.  Even in the times of old textbooks, the constitution of the United Kingdom was not just that of a greater England, notwithstanding the unifying constitutional doctrines of the powers of the Crown and the sovereignty of parliament.  Scotland, for example, has its own legal system and jurisidiction.  As does Northern Ireland.

(There is no such thing as ‘British law’.  Some laws cover all the jurisdictions of the United Kingdom, but ultimately there are the laws of England and Wales, of Scotland, and of Northern Ireland.  The United Kingdom has always been a form of federation.)

The effect of modern devolution has made the old textbook approach redundant compeletely.

Chapters on Scotland, on Northern Ireland, and even on Wales, need to be towards the start of any constitutional textbook, and not towards the end.

The fact there was never a ‘British Bill of Rights’ (despite ten years of Tory trying) was in large part because it was impossible to repeal the Human Rights Act and enact a replacement in the face of opposition of the devolved powers.  (And because in Northern Ireland, the enforceabilty of the ECHR was written into the Good Friday Agreement.)

A fogey may contend that the sovereignty of parliament still prevails, and that the Westminster parliament may legislate as it wishes.  But that is constitutional theory and not practice.  Such an approach now would not only be arrogant but (as with the aborted ‘British Bill of Rights’) also futile.

Brexit takes place in the constitutional context of modern devolution.  This means that there will be checks and balances in effect even if not in neat constitutional principle.  I have set out over at the Financial Times how the Scottish First Minister has crafted a check and balance out of constitutional thin air: and it has had areal effect in causing a postponement of the Article 50 announcement which was supposed to have been made yesterday.

A constitution regulates what any government can get away with.

In this way, whether the cause of the disappointment is the legislature, the judiciary, or the devolved administrations, the noise of a ‘disappointed’ minister is the sound of a working constitution.

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Are MPs now delegates rather than representatives?


13th March 2017

One of the stock answers which a new Member of Parliament learns is that they are representatives not delegates.

Certain MPs will go further and invoke solemnly the words of Edmund Burke in his famous speech to the electors of Bristol (1774):

Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

There is sense in this approach.

Electors can get rid of MPs at elections.  MPs can in the meantime vote as they wish.  There is thereby a pressure valve between the voters and the matters before a legislature.

If a MP goes against what his or her voters want then a new MP can be elected at the next election.

This valve is a feature of the UK’s “parliamentary democracy”.

And, in turn, “parliamentary democracy” is a principle of the (uncodified) British constitution.

Against this principle is now this relentless and alien doctrine of the referendum mandate.

The 2016 referendum on EU membership was not legally binding: MPs could have legislated for this but chose not to do so.  MPs instead chose for the Brexit referendum to have advisory power.

But it is now being treated by many MPs as having total power: things are being done in the name of the “mandate”.

Today in the House of Commons there were two votes on sensible amendments to the Article 50 notification bill.  These amendments had been inserted by the House of Lords.  But they were voted down by the majority for no good reason.

Perhaps there was a good reason which was not easy to detect.  Perhaps.

But it seems to me that many MPs who vote on Brexit are betraying – instead of serving – their constituents, when they sacrifice their judgment to their constituents.

Maybe this is a good thing.  Maybe “parliamentary democracy” is better circumvented than observed.

That is a matter of opinion.

But is also a matter of principle: either “parliamentary democracy” is taken seriously as a principle or it is not.

And when a MP next reaches in his or her mind for the stock Burkean response to being asked about why they are not voting as their constituents would prefer on a particular issue, they will find the words are empty.

On Brexit, many MPs are voting as – and behaving like – delegates not representatives.

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Why the Article 50 case may be the most important constitutional case for a generation

13th October 2016

Today at the High Court in London the hearing begins of the challenge to the government about whether it can trigger Article 50 instead of Parliament.

The case is not about whether Article 50 is triggered or not.  The case is instead about who makes the decision.  Is the decision to be made by the government or by Parliament?

As a matter of law, the answer is not clear.

There are outstanding lawyers who in good faith disagree.

Because there is no exact precedent, the arguments on both sides draw on first principles.

Nobody can predict with certainty which way the court will go.

And whichever way the court goes, there will (no doubt) be a “leap-frog” appeal to the Supreme Court, where the case will probably be joined to the similar Northern Irish case (which also covers the Good Friday Agreement).  I understand the Scottish government may also intervene at the appeal stage.

The Supreme Court hearing may take place as early as December, and so this may be over by Christmas.  We may know before the end of the year whether, as a matter of domestic law, it is for the government or Parliament to decide.

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My view is that the case may well be the most important constitutional case for a generation.

What is meant by a constitutional case? For me, it means a case which deals with relationships between the various parts of  a polity: the executive, the legislature, the judiciary, devolved and local governments, and (of course) citizens.

The constitution of any state is the description given in answer to the question: “how is this state constituted?”

This answer may focus on a single codified document called a “constitution”, or on any various legal documents (Acts of Parliament, leading cases, authoritative books) and conventions, as with the United Kingdom.

(The UK does not have an “unwritten” constitution, it is just not written down in one place.)

An “important” constitutional case is one which deals with relationships between state organs (and between state organs and citizens) where (a) the relationships are not clear and (b) the issue at stake is significant and needs resolving.

In the Article 50 litigation, these constitutional issues are:

– the scope of the “Royal Prerogative” ( a legal fiction which means the government can do important things in the name of the Queen which have legal effects without any statutory basis) as opposed to the scope of “Parliamentary sovereignty”;

– the relationship of both to the result of a national referendum (which is not legally binding but cannot politically be denied);

– the role of the courts in adjudicating tensions between the above;

– the extent to which an executive act can lead to individuals losing rights they otherwise would have under UK and/or EU law; and

– how all of this balances with the rights and interests of the devolved governments.

The government maintain that it has a general power to make and break international treaties under the Royal Prerogative (and/or a general power to invoke Article 50 as an executive action), and to the extent a mandate is needed, that is provided by the referendum result.

The challengers insist that any such decision is so momentous that it has to be done by Parliament, not least because of the way Article 50 could lead to individuals losing rights they otherwise would have.

My view, for what it is worth, is that in normative terms, it should be Parliament that makes the decision.

I believe plebicites and prerogatives to be illiberal devices, and I prefer representative democracy.

But this is a “should” not an “is”.

In positive terms, I do not know how this challenge will be decided.  I initially was on the side of it being a Prerogative act (and I did a thought-experiment along those lines here), but the potential impact on individual rights seems to be a powerful counter-argument.

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There are not many important constitutional cases.  One sign of a stable polity is that they are few in number, as the relationships between parts of the state (and between the state and the citizen) are settled.

Cases of similar importance which come to mind are Factortame I (1990, on the courts vs Acts of Parliament under EU law) and M v Home Office (1994, on the executive vs the courts).  Other lawyers and legal commentators will suggest others.

In my view, the case starting today has the potential to match such cases in importance.

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The 2016 Abolition Act

28th June 2018

This is a modest proposal for legislation:

The 2016 Abolition Act

1. Other than for the purpose of giving effect to this Act, all events in 2016 shall be deemed to not have happened.

2. The year 2016 is abolished.

This will have a number of beneficial effects, not least:

By operation of law, the Act will mean that everything will revert to 31 December 2015, meaning David Bowie, Prince, and others, will still be alive.

There is even precedent.

For example, there is no year zero- 1 BC went straight to 1 AD. We have managed 2000 years with a “missing” year – indeed a leap year, and nobody cared (apart from that fanatical cult who insist centuries always start in [x]001 – they will always be careful to tell you there was no year zero, with a gleam in their staring eyes).

And in 1752 there was another precedent:

The rest of the world would have to follow our initiative:

We can be sure many Americans and others will not mind.

And if this seems too ambitious, we could do a quick fix and switch back to the Julian calendar, taking us back days before *that* referendum:

I think it is time for parliamentary democracy to re-establish itself, and this legislation will be just the thing to bring sense back to British politics.

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The problems with referendums in general, and the Brexit one in particular

17th June 2016

 

There are two problems with the current EU referendum.

 

Why this referendum was a bad idea

The first problem comes from there never having been a need – in an objective sense – for this EU referendum.

By “objective” I mean that there was no external reason – such as a new EU treaty or similar proposal – for a referendum to take place in June 2016.

As such, it can be described an objectively pointless referendum.

(The practical reason for this objective was, of course, political: it was a quick fix by the prime minister to a political problem caused by his own party and the (then) rise of UKIP.  And in launching this needless and divisive referendum campaign as a quick political fix, David Cameron showed all the political judgement of Cersei Lannister.)

This referendum is also not legally binding.  It is advisory.  There is no legal obligation on the government to do anything in response.  The all-important notification under Article 50 is in the gift of the government, and the government can make that notification at a time of its choosing, or never at all.

It is therefore an objectively pointless referendum with no direct legal consequences.  Twice as pointless, in a way, if a thing can logically be as twice as pointless.

And so, as the referendum was about no proposal in particular, the campaigns became about everything and nothing.   There was never any real focus.   And without focus, the campaigns became strident and unpleasant.

This leads us, like Prufrock, to an overwhelming question.

This is a referendum without any objective reason or focus, such as a new EU treaty or other proposal.

It is not legally binding.

So: why?

 

Why referendums are generally a bad idea

The second problem is about referendums in general.

When you have a parliamentary system, you either take the parliamentary system seriously or you don’t.

And having referendums means you are not taking a parliamentary system seriously.

And if the supposed reason for the referendum is to protect parliamentary democracy, this does not even make any sense.  You cannot sensibly protect parliamentary democracy by the extra-parliamentary means of a referendum.  It is an absurdity, if you think about it.

Referendums are rare in UK political history. Before 1975, there had been none at all.

Issues as fundamental as making war and peace, decolonisation, the welfare state, the abolition of capital punishment, the legalization of homosexuality – huge issues, time after time – were all dealt with without a referendum.

Even fundamental constitutional issues before 1975 were dealt with without referendums – such as royal abdications, measures limiting the powers of the Crown and the Lords, and all the extensions of the franchise.

There is, of course, one good counter-argument: see Scotland and devolution, and the Good Friday Agreement.  The referendums on these certainly dealt with fundamental constitutional issues – but, unlike this EU referendum – there were concrete, discrete proposals put before the voters to vote on.

 

Not again?

Let’s not have a referendum again, on anything, unless (a) it is a fundamental constitutional issue and (b) there is an actual proposal for fundamental change for people to consider and to vote on.

Ongoing UK membership after 40-odd years of one international organization when there is not any proposed significant change in the offing does not meet these criteria. (A vote on the Maastricht or Lisbon treaties may have done, but certainly not this June 2016 one.)

A referendum should never be a casual fix to a party political problem.

So here’s a radical suggestion: let’s return to being a parliamentary democracy.

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Lauri Love and the potential civil law “backdoor” for obtaining encryption keys

10th May 2016

This is an “explainer” post about a potentially significant court decision being handed down today on whether the UK State can use civil law as a legal “backdoor” for obtaining encryption keys.

The case:  Lauri Love v National Crime Agency

The venue: Westminster Magistrates’ Court, from 1000 hrs today

The claim: An application under section 1 of the Police (Property) Act 1897 for recovery of computer equipment seized by the National Crime Agency – note this is an example of a civil matter being dealt with by a Magistrates’ Court.

The procedural stage: The application is still pre-trial, and the overall application is set down for a trial hearing on 28 July 2016.

Today’s decision: Today the presiding judge District Judge Tempia will make a decision on whether Lauri Love be “directed” at this stage to provide an encryption key as part of the civil claim, and before the trial.

This is because the National Crime Agency, the “defendant” in this claim, is insisting that the key be handed over before the application be tried and a decision made to return the equipment.

Why this matters: The statutory regime for requests for encryption keys (and encrypted data) is under Part III of the Regulation of Investigatory Powers Act 2000 (RIPA).

The state agency – in this case the National Crime Agency – would serve a “section 49” notice, and if a valid section 49 notice is not complied with, then the recipient of the notice can face prosecution under section 53.

The recipient, however, has the protections of the safeguards of section 55 and the protections of the detailed (fifty-odd page) Code of Practice.

By requesting a direction as part of the civil application, the National Crime Agency is seeking to sidestep the RIPA scheme and effectively circumvent the section 55 safeguards and the protections of the Code of Practice.

The extradition context: Lauri Love is facing extradition to the United States.  The United States indictments are at Lauri Love’s website.  The extradition application is also being heard by Westminster Magistrates’ Court, but those are separate and distinct legal proceedings.

This civil claim is self-contained and is not directly relevant to the extradition.

The earlier section 49 notice: Lauri Love has also been already served with a section 49 notice, in February 2014, and did not provide the requested information.   The National Crime Agency did not continue with the RIPA process.

Comment:

Many of the coercive and intrusive powers given to the state under RIPA are balanced by safeguards and protections against abuse of those powers.

The powers and the checks on them should be seen as a package.

By seeking to use directions in a civil claim to achieve the same aim, where the safeguards and protections against abuse will not apply (and which would be decided on a lower standard of proof – section 53 has the criminal standard, whilst a direction in a civil case would (of course) have the civil standard) then the National Crime Agency are departing from what RIPA intended.

If the National Crime Agency want the encryption key then they should follow the RIPA statutory scheme and not try to get round it.

Instead, the National Crime Agency are asking the courts to construct an civil law “backdoor” for obtaining encryption keys (and encrypted data) outside the statutory scheme of RIPA.

Further reading:

The Intercept

The Register

BBC

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Press regulation: what you need to know about “Section 40”

29th April 2016

The “section 40” is a provision in the Crime and Courts Act 2013.  It will be put into effect when John Whittingdale, the Secretary of State, decides.

Some have contended that the delay in implementing the provision is for no good reason. A few go further and suggest the delay can be attributed to the alleged hold the London press have over Whittingdale by reason of not publishing information about his private life.

As I set out over at the Financial Times website today, I believe the better explanation is that the legislation is a dreadful dogs dinner, and that no responsible Secretary of State would implement it – at lest in present circumstances.

Section 40 is controversial. Hacked Off and its allies demand that it be implemented without delay – see here and here.  Alternatively, the media campaigners at 89UP warn that it will have a profound chilling effect.

Section 40 has now become a totem in the debate about press freedom.

In my view, section 40’s problems come down to what it actually says.

Section 40(1) tells you what it covers – in effect it means claims for media torts (mainly libel or privacy) against “relevant publishers” (mainly news organisations).

Sections 40(2) and (3) then deal with who pays for the costs of such cases.  Both seek to alter the usual position that “costs follow the event” – ie the loser in a claim pays the winner’s costs.

Section 40(2) tells you that the news publishers should not generally have to pay legal costs in respect of those claims as long as they are members of an “approved regulator” with an arbitration scheme.  This provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

This provision is a “carrot” – it is to provide an incentive for publishers to join an “approved regulator”.

The real problem is with section 40(3). This is the “stick”.

Section 40(3) tells you that the news publishers should generally have to pay legal costs – including those of the claimant – in respect of those media tort claims if they are not members of an “approved regulator” with an arbitration scheme.  In effect, as long a claim is arguable, the publisher will have to pay both side’s costs, even if the publisher wins at court.

As with section 40(2), this provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

And again, this provision is to provide an incentive for publishers to join an “approved regulator”.

One key issue with this is that (a) there is no approved regulator yet and (b) the one regulator which is likely to get approval – IMPRESS – has hardly any members.  Most publishers are members or IPSO – which does not want recognition – or (like the Financial Times, Guardian, and Private Eye) do not want to be members of any external scheme at all.

This means the vast majority of the UK news media will be under section 40(3) costs risks once IMPRESS becomes approved.

For me the worry is not that section 40(3) will have a certain impact but that it will be uncertain. It is a dire piece of drafting.

As I set out over at the Financial Times:

To take four examples:

– What is “a relevant publisher”? (The schedule to the Act on exceptions to this definition is not clear.)

– When would it “have been reasonable in the circumstances for the defendant to have been a member [of a scheme] at that time”?

– What does it mean that “the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator”?

– And, most importantly, when will it be “just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs”?

On the last point alone, one can imagine judges routinely disregarding the general rule and awarding costs as they do now, as that would be “just and equitable in all the circumstances”.

If section 40(3) takes effect, there would be immediate and expensive uncertainty. So hedged is it with qualifications and exceptions that litigation is inevitable. The Leveson report called for a system that was “fair, quick and inexpensive”. What this provides is anything but.

In other words – section 40(3) will create far more problems that it solves, with the real prospect of expensive and lengthy litigation as each loophole and technicality is explored.

If section 40 is be implemented at all – and when it was enacted, the failure of an approved regulator to have almost no members was not envisaged – then it should only be once an approved regulator with an arbitration scheme is up and running.

As I conclude at the Financial Times:

Looking at the detail, rather than just the totemic significance, reveals it as a worrying and unstable provision. The secretary of state is quite right to delay bringing section 40 into effect, at least until there is a recognised regulatory scheme with a functioning arbitration service. To bring it in earlier, would be so irresponsible that no responsible politician should do it.

One does not need to look for lurid explanations for the hold the media supposedly have over a cabinet minister to explain why section 40 should not be implemented lightly. It is not a dominatrix in a relationship but the devil in the detail which provides the explanation for why it should be delayed, if not repealed altogether. It is simply a bad provision.

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FT post on Theresa May, Hillsborough, human rights law and the politics of superficiality

27th April 2016

I have a new post at the Financial Times on how the superficial politics of Theresa May – especially her statements about human rights law – do not match with things such as the new Hillsborough Inquest.

In brief: the new Hillsborough Inquest could not have ranged as widely without Article 2 of the ECHR having effect in domestic law – the same ECHR which May wants the UK to leave.

A couple of excerpts are below:

MayHumanRights

MayHumanRights2

The post was received well on Twitter.

Lawyer and Rugby legend Brian Moore:

The UK’s leading legal commentator Joshua Rozenberg:

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Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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