Brexit is not a game of poker

 

29th November 2016

There are still those who nod-along with the “not showing your cards” defence of the government’s secrecy about what, if any, negotiating strategy it has for achieving Brexit.

They tweet things to those calling for transparency with comments such as “you should not play poker” or similar.

But Brexit is not poker.

The Brexit negotiation is not a game where randomised cards have been dealt, and an advantage lies with those who do not indicate how genuinely strong (or weak) their hand to other players also with a random selection of cards.

The EU players around the table know all about what cards we have.

As was said by @johnnypixels in one of the best tweets about Brexit:

 

Donald Trump and the Art of the Political Deal

9th November 2016

If you have a quick look at President-Elect Donald Trump’s approach – as a businessperson – to legal obligations, you may see something interesting about his approach to politics.

Trump sees himself as a master of the “art of the deal”.

And he certainly has an interesting and artful approach to contract law.

By way of background, classical contract law is about the sanctity of the agreement: the bargain.

All parties to a contract agree in advance what to do throughout the period of the contract regarding foreseeable risks.  This means that there is a lot of “front-end” thought put into a contract: more time working things out in advance, the fewer problems later.

The merit of this approach is that everybody knows where they stand, as and when any foreseeable problem occurs. All appropriate risks are allocated, and so on.

But this does not seem to be the approach of Trump, at least as far as his known business record can be discerned.
For Trump, the “art of the deal” – the sheer commercial excitement – is not striking the best original bargain, but the later haggling and manouvering once contract begins.

The original bargain is often just the starting point.

The original exchange of promises is a mere opening position: enough to get him over the threshold, nothing more.

The “real” deals – the “real” business – come later.

Sometimes this means “stiffing” the counterparty.  Sometimes it means being over-generous.

And sometimes, it may be said, such a cyncial approach is good business sense: you can often force a “better deal” – for yourself.

All is fair, some would say, in commercial law between businesses: after all, it is law for grown-ups.

The problem is that nobody, especially third parties, knows where they are. No reliance can be placed on the original promises.  The benefits of the artful approach are one-sided.

The extent to which this commercial approach is transferable to the fulfillment of election promises is anyone’s guess.

Perhaps there is nothing in this comparison.  
But it seems interesting: how a certain type of businessperson would do politics and get elected.

How you can support independent law and policy blogging at Jack of Kent

3rd July 2016

Some people have asked how they can support independent law and policy blogging here at Jack of Kent.

So I have set up a “Patreon” for anybody who is kind enough to contribute – it is at this page.

Detailed and reliable blogging requires a commitment of substantial time and effort in conducting research and investigations. This is in addition to the time composing clear and readable posts.

It would be wonderful if you can contribute.

Many thanks.

“Of course”

4th May 2016

Then:

Of course, Corbyn won’t win the Labour leadership.

Of course, Leicester won’t win the premiership.

Of course, Trump won’t win the Republican nomination.

Of course.

(But they did.)

And now:

Of course, Hillary will win against Trump.

Of course, UK voters will vote against Brexit.

(Of course they will.)

*

(Amended to remove flippant Aston Villa comment, 9th November 2016)

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David Bowie as a paralegal

11 January 2016
*
Before he was famous, the young David Bowie worked in the heart of legal London in what we would now call “litigation support”.
 
He did this at Legastat, which was (and still is) at 57 Carey Street, just by Lincoln’s Inn and behind the Royal Courts of Justice.
Legastat
He was, in effect, a paralegal – bundling, copying, and so on.
 
One can imagine him looking at a future laid out of a thousand High Court bundles, saying: Sod this, I am off to be Ziggy.
 
Of course, a co-worker would have then dismissed Bowie’s dream with “there is no future in dressing funny”.
 
And outside, in their robes and wigs, a judge and barrister would walk past…
 *

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George Osborne’s National Spider Plan

17th November 2015

And so inspired by Jennie Rigg’s brilliant tweet, here are extracts from George Osborne’s speech today, with “cyber” replaced with “spider”.  

And it makes just as much sense.

*

…And that’s what I want to talk to you about this morning. For government has a duty to protect the country from spider attack, and to ensure that the UK can defend itself in spiderspace.

Today I want to set out how we are fulfilling that duty. I will explain how we have invested in Britain’s spider security in the past five years, and to set out our plan for the next five.

The national spider plan I am announcing means investing in defending Britain in a spider-age. It is a key part the Spending Review I will deliver next week.

[…]

It is one of the many spider threats we are working to defeat.

Getting spider security right requires new thinking. But certain principles remain true in spiderspace as they are true about security in the physical world.

[…]

But GCHQ has a unique role. It is the point of deep expertise for the UK government. It has an unmatched understanding of the internet and of how to keep information safe.

It is a centre of capability that we cannot duplicate, which must sit at the heart of our spider security.

[…]

I can tell you today that right now GCHQ is monitoring spider threats from high end adversaries against 450 companies across the aerospace, defence, energy, water, finance, transport and telecoms sectors.

In protecting the UK from spider attack, we are not starting from zero.

In 2010, at a time when we as a new government were taking the most difficult decisions on spending in other areas, we took a deliberate decision to increase spending on spider.

We set up the National Spider Security Programme and funded it with £860 million.

And for the past five years we have been creating and enhancing the structures and capabilities that Britain needs to defend itself in spiderspace.

[…]

We have ensured that our military systems are properly secured from spider attack.

We have built the National Spider Crime Unit so spider criminals are brought to justice.

We established the Computer Emergency Response Team for the UK, and the Spider Information Sharing Partnership so companies could share what they knew.

We developed clear guidance for businesses, including the Spider Essentials scheme, which already has over a thousand companies accredited.

[…]

We built spider security into every stage of the education process. We established Spider First and spider apprentices to make sure that we got the talent we needed coming into the field.

And we undertake exercises so we know what to do when there is a serious spider incident.

[…]

We have built a world-class range of tools and capabilities that Britain needs to stay safe from spider attack.

We are widely regarded as top or near top in the world.

But nice though it would be to sit on our laurels, the truth is that we are not where we need to be. We are not winning as often as we need to against those who would hurt us in spiderspace.

The truth is that we have to run simply to stand still.

The pace of innovation of spider attack is breathtakingly fast, and defending Britain means that we have to keep up.

At the heart of spider security is a painful asymmetry between attack and defence.

[…]

A few years ago mounting a sophisticated spider attack meant having all the skills that each stage of the attack required, from gaining access to the network to designing the payload that was to go into it.

[…]

Last summer GCHQ dealt with 100 spider national security incidents per month. This summer, the figure was 200 a month. Each of these attacks damages companies, their customers, and the public’s trust in our collective ability to keep their data and privacy safe.

[…]

We will be boosting the capabilities of the National Spider Crime Unit, so that – in partnership with their counterparts around the world – they attack the assumption among too many that spider crime is risk free, and comes with little risk of consequences.

[…]

And we will build in the National Spider Centre a series of teams, expert in the spider security of their own sectors, from banking to aviation, but able to draw on the deep expertise here, and advise companies, regulators, and government departments.

Building the National Spider Centre will be a hugely ambitious and important undertaking that reflects this government’s commitment to making the UK secure in spiderspace.

[…]

If we do not act decisively, the skills gap will grow, and limit everything we want to achieve in spiderspace. 

So we will launch an ambitious programme to build the spider skills our country needs, identifying young people with spider talent, training them, and giving them a diversity of routes into spider careers.

[…]

As all of you who work in the sector know, what is needed are specific spider security skills, building on particular talents.

And we need to tackle this problem on a number of fronts including in our universities. But we need to make sure there are other routes into the spider workforce.

[…]

Of course, we need not just great skills but great British companies as well.

If Britain is to be a world leader in spider, and stay at the cutting edge of spider technology, we need the innovation and vigour that only these companies can offer.

We need to create a commercial ecosystem in which spider start-ups proliferate, get the investment and support they need, and are helped to win business around the world.

[…]

I am glad that there is already so much happening in this space; I am happy we have the founders of Spider London with us today.

And I am delighted that Paladin Capital has just announced it is establishing a dedicated spider fund in the UK; we can be proud that they have chosen London as its base.

We will build on this energy. We will help commercialise the extraordinary innovation in our universities. We will provide training and mentoring for our spider entrepreneurs.

We will be establishing two spider innovation centres – places where spider start-ups can base themselves in their crucial early months, and which can become platforms for giving those start-ups the best possible support.

I have talked before about an arc of spider excellence – stretching from this building, through Bristol and Bath to Exeter – to make the South West a world leader in Spider Security.

Today I can announce that one of the two innovation centres will be here in the South West of England, in Cheltenham, reflecting the extraordinary talent in this place, and our aspiration that this talent should help drive our spider sector.

Government can itself provide a huge boost for British spider start-ups, if it can be smart enough to marshal its procurement in a coherent way.

This should be a win-win – our spider start-ups need endorsement, investment and first customers.

And government, from our military and GCHQ to the Government Digital Service and the NHS, need to be able to procure excellent spider security hardware and services.

So I can announce today that we will create a £165 million Defence and Spider Innovation Fund, to support innovative procurement across both defence and spider security.

It will mean that we support our spider sector at the same time as investing in solutions to the hardest spider problems that government faces.

Of course, our involvement with industry on spider goes well beyond the spider sector. We need to make sure that Britain has the regulatory framework it needs, particularly in the sectors we define as the Critical National Infrastructure.

[…]

Our vulnerability as a nation in spiderspace goes well beyond the critical national infrastructure.

[…]

We have a collective interest in the spider defences of individual companies across the British economy.

[…]

If we are to tackle the asymmetry between attack and defence, then we need to establish deterrence in spiderspace.

[…]

Part of establishing deterrence will be making ourselves a difficult target, so that doing us damage in spiderspace is neither cheap nor easy.

[…]

We need to destroy the idea that there is impunity in spiderspace.

[…]

We reserve the right to respond to a spider attack in any way that we choose.

And we are ensuring that we have at our disposal the tools and capabilities we need to respond as we need to protect this nation, in spiderspace just as in the physical realm.

We are building our own offensive spider capability – a dedicated ability to counter-attack in spiderspace.

We have built this capability through investing in a National Offensive Spider Programme.

[…]

The threats to our country in spider space come from a range of places – from individual hackers, criminal gangs, terrorist groups and hostile powers.

[…]

To those who believe that spider attack can be done with impunity I say this: that impunity no longer exists.

[…]

That means they need to be prepared for hybrid conflicts, played out in spiderspace as well as on the battlefield. A 21st Century military has to operate as effectively in spiderspace as it does on land and sea, in the air and space.

Our commitment to spending 2% GDP on defence means we can invest in a military that is spider trained, spider secure, and spider enabled, with the ability to fight in every domain of future conflicts.

[…]

We need to keep fighting to preserve a free, open, peaceful and secure spiderspace.

Agreement that international law applies in spiderspace has been an essential first step.

And we need international norms of behaviour in spiderspace, so that freedom is matched by responsibility.

[…]

We need our police forces to work together to ensure that less and less of the world is a hiding place for spider criminals.

And we need to help our partners develop their own spider-security – as we share a single spiderspace, we collectively become stronger when each country improves its own defences.

For the past five years we have been investing in the spider security of our partners as well as our own.

We have helped establish the outstanding Global Spider Security Capacity Centre in Oxford. In the coming years we will step up these efforts, mindful that we are bound together in spiderspace.

The national spider plan that I have announced today is bold, far-reaching and transformative in numerous ways.

[…]

But it will make Britain one of the best protected countries in the world; it will give our companies and citizens the tools they need to stay safe from spider attack; and it will create jobs and prosperity.

With the ability and dedication of GCHQ’s staff, our new National Spider Centre, and the ideas and skills across our country, our plan will make sure that Britain remains a world leader in spider, and give Britain an important edge in the global race.

_____________________________________

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Farewell to BorisWatch

3rd November 2015

There is dreadful news today that Tom Barry – BorisWatch – has died.

“BorisWatch” – I never really knew him as Tom and only met him once in person though I knew him online – was one of a number of bloggers and tweeters who emerged a few years ago to make political points on social media that seemed not to be being made elsewhere.  This was at a time when few mainstream journalists had twitter accounts or even blogged.

At the time social media offered a way for new political voices to be heard, and BorisWatch was one of those new voices: informed, focused, critical, often witty, and always happy to engage.

He wasn’t always right – of course, nobody is – but he was always worth reading, and he was the first tweeter to ask about any new development in London politics.

BorisWatch will be missed.

 

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Two party leaders on Saudi Arabia: Corbyn v Cameron

6th October 2015

Here are two quotes on Saudi Arabia from two party leaders at party conference time.

Jeremy Corbyn (source):

“So for my first message to David Cameron, I say to him now a little message from our conference, I hope he’s listening – you never know:

Intervene now personally with the Saudi Arabian regime to stop the beheading and crucifixion of Ali Mohammed al-Nimr, who is threatened with the death penalty, for taking part in a demonstration at the age of 17.

And while you’re about it, terminate that bid made by our Ministry of Justice’s to provide services for Saudi Arabia – which would be required to carry out the sentence that would be put down on Mohammed Ali al-Nimr.

We have to be very clear about what we stand for in human rights.

A refusal to stand up is the kind of thing that really damages Britain’s standing in the world.”

David Cameron (source):

“There was one occasion since I’ve been prime minister where a bomb that would have potentially blown up over Britain was stopped because of intelligence we got from Saudi Arabia. […]

Of course it would be easier for me to say ‘I’m not having anything to do with these people, it’s all terribly difficult etcetera etcetera […]

For me, Britain’s national security and our people’s security comes first.”

*

I am not a supporter of either leader; but this contrast in approach is interesting.

If nothing else, it shows a clear divide between the two leaders on one particular issue.

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The MoJ-Saudi Memorandum of Understanding – a timeline

1st October 2015

This is a timeline of (most of the) information in the public domain about the UK Ministry of Justice’s “Memorandum of Understanding” with the Saudi Arabian government, signed on 11 September 2014.

 

12 November 2013

The House of Commons Foreign Affairs Committee publishes a detailed report on the UK’s relations with Saudi Arabia and Bahrain.  It includes the following conclusion:

“25.  The UK is well-placed to provide legal and judicial reform assistance and we recommend that the government make this constructive contribution a focus of its human rights work with Saudi Arabia. Despite the considerable challenges, promising steps appear to have been taken toward providing constructive assistance but these must be converted into solid and reportable programmes. The UK should also encourage the development of Saudi Arabia’s consultative systems, and we particularly welcome initiatives such as parliamentary exchanges in this regard.”

It also lists the MOUs and treaties between the UK and Saudi Arabia then in force.

 

February 2014

The Ministry of Justice (MoJ) is referred to in the UKTI Security Exports Strategy of 2014 (host web page):

“Ministry of Justice (MOJ) and National Offender Management Service (NOMS) Supports capacity for design and prison build across overseas prison services. Provides justice assistance consultancy services alongside learning and development opportunities and interventions via the Prison Service training college… NOMS will work with UKTI to identify trade opportunities arising from this work… NOMS will work with UKTI to identify trade opportunities arising from this work.”

 

March 2014

According to a 2015 FCO report, the Home Office sign a Memorandum of Understanding with Saudi interior ministry:

In March, the Home Secretary, Theresa May, signed a MoU with her Saudi counterpart to help modernise the Ministry of the Interior, which draws on UK expertise in the wider security and policing arena. This will complement work going on between the College of Policing and a range of Saudi security bodies.

 

August 2014

According to the December 2014 mid-year report (see below), The MoJ’s JSi submit “a £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service”.

 

10 September 2014

Chris Grayling, the then Lord Chancellor, visits Saudi Arabia.

 

11 September 2014

The following are tweeted from the UK embassy in Saudi Arabia’s Twitter Account:

There does not appear to have been a contemporaneous press notice or media release.

 

30 September 2014 (or 21 January 2015, date unclear)

An update to the FCO’s “Country of Concern” 2013 Report for Saudi Arabia states:

“…on 10 September, the Secretary of State for Justice, Chris Grayling, visited Saudi Arabia and signed a Memorandum of Understanding (MoU) with the Saudi Arabian Minister of Justice. This MoU is a mechanism for dialogue and exchange of expertise on justice, legal and human rights matters. Mr Grayling raised human rights concerns during his visit, and met the Human Rights and Legal Committees of the Majlis al Shura, and the National Society for Human Rights.” 

 

December 2014

In the so-called “mid-year report” of the Ministry of Justice, covering April to September 2014:

“The Secretary of State visited Riyadh in September 2014 to sign a Memorandum of Understanding on Judicial Cooperation, to build upon the existing bilateral justice relationship, promote UK legal services in Saudi Arabia and raise awareness of the upcoming Global Law Summit. He also met UK lawyers with offices in Riyadh. Discussions were also held on judicial cooperation, King Abdullah’s reform programme, and human rights issues.”

There is also in that report the first express mention of JSi in any official MoJ document –

 Just Solutions international (JSi), is the commercial brand for the National Offender Management Service (NOMS) promoting products and services to international justice markets.

In August 2014, JSi submitted a £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.

 

23 January 2015

The MoJ press office provides the following answer to a question:

Q) Can I please have a copy of the MoU signed between the Secretary of State and Saudi Arabia?

A) This is a shared document with the Saudi government so we are not in a position to publish it at present.

 

25 January 2015

Someone sends to the MoJ a Freedom of Information request as follows:

“Please provide an electronic copy of the September Memorandum of
Understanding on Judicial Cooperation between the United Kingdom
and the Kingdom of Saudi Arabia, which the Lord Chancellor and
Secretary of State signed in Riyadh on behalf of the United
Kingdom, including any appendix and all schedules, annexes and
enclosures.”

 

19 February 2015

The MoJ initially responds to the FoI request as follows:

“I can confirm that the department holds the information you have asked for, and it may be subject to a qualified exemption.

In this case, the information you are seeking may be exempt under Sections 27(1) and 27(2) of the Act as it relates to the conduct of international relations.

In line with the terms of this exemption in the Freedom of Information Act, I have to consider whether it would be in the public interest for us to provide you with the information requested. However, I have not yet reached a decision on the balance of the public interest in this case.

Under Section 10(3) of the Act, I am able to extend the statutory time limit of 20 working days where the information held may be exempt under a qualified exemption, and I require more time to consider the balance of the public interest when deciding whether to disclose the information or not.”

 

12 March 2015

The FCO’s “Country of Concern” Report 2014 for Saudi Arabia notes the following:

“There were significant changes in the justice sector. On 10 September, the Secretary of State for Justice, Chris Grayling, visited Saudi Arabia and signed a Memorandum of Understanding (MoU) with the Saudi Arabian Minister of Justice, Dr Muhammed Abdul-Kareem al-Issa. This should act as a mechanism for dialogue on human rights issues and an exchange of expertise on justice and legal matters. It follows up on the work undertaken by Dr al-Issa to implement a largescale reform programme aimed at judicial modernisation in Saudi Arabia.”

The same report mentions the JSI contract bid:

“To assist in the justice sector, the UK National Offender Management Service, through their commercial arm, Just Solutions international, submitted a bid for a contract to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.”

 

18 March 2015

The MoJ releases its decision to not disclose the MoU in response to the FoI request.  The MoJ’s reasoning is as follows:

“I wrote to you on 19 February, indicating that I needed further time to consider the terms of your request. I have now completed my considerations.

I can confirm that the department holds the information you have asked for, and I consider it is subject to a qualified exemption.

In this case, in my view the information you are seeking is exempt under Sections 27(1) and 27(2) of the Act as it relates to the conduct of international relations.

A UK Government Department is not obliged to provide information requested if its release would prejudice international relations. Specifically, the document which you have requested is one that is confidential between the UK Government and the Government of the Kingdom of Saudi Arabia. This type of document is covered by the provisions of Section 27(2) of the Act, which deal with confidential information obtained from another State. In addition, as the disclosure of confidential material obtained from another State would be likely to prejudice future relations between the UK Government and the Government of the Kingdom of Saudi Arabia, Section 27(1) of the Act is also engaged.

In line with the terms of these exemptions in the Act, I have nevertheless to consider whether it would be in the public interest for me to provide you with the information requested, despite the exemptions being applicable. In this case, I have concluded that the public interest favours withholding the information you have requested.

When assessing whether or not it is in the public interest to disclose the information you have requested, I have taken into account the following factors:

Public Interest considerations favouring disclosure

• Disclosure would support the wider Government commitment to transparency and may encourage greater understanding of the general public about the Ministry’s policies, activities and agreements with foreign nations.

• The information in question relates to how UK Government Departments interact with foreign Governments to share knowledge and best practice. The UK’s agreement with the Kingdom of Saudi Arabia has been subject to debate in the media and a level of public interest, to which disclosure of the information could assist in a wider public understanding of the nature of the agreement.

Public Interest considerations favouring withholding the information

• The document was agreed to be confidential between the two Governments. As the UK Government engaged in the preparation and signing of this document on a confidential basis, I judge it reasonable for the Government of the Kingdom of Saudi Arabia to expect that the UK Government would not share its contents with a third party. My judgment is that to do so unilaterally might harm future relations with the Kingdom of Saudi Arabia, and may discourage them from entering into agreements or sharing information with the Department in future. In my view this risk extends across all areas of Government.

• It is important for non-UK Governments or bodies to know that they can discuss and agree issues with the UK Government in an atmosphere of confidentiality. Releasing information provided in confidence without agreement may damage the wider public interest beyond the information in the scope of this request, by making it less likely that other Governments or bodies would share confidential information in the future. As such, it is of prime importance for the UK Government to maintain consistency in this area. The potential impact of disclosure has, as I intimated earlier, wider implications than the relationship between the UK Government and the Government of the Kingdom of Saudi Arabia in this particular context.

I have therefore reached the view that, on balance, the public interest is better served by withholding this information under Section 27(1) and 27(2) of the Act.”

 

By way of background, Section 27 of the Freedom of Information Act 2000 provides:

“27 International relations.

(1)  Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(a)  relations between the United Kingdom and any other State,
(b)  relations between the United Kingdom and any international organisation or international court,
(c)  the interests of the United Kingdom abroad, or
(d)  the promotion or protection by the United Kingdom of its interests abroad.

(2)  Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court.

(3)  For the purposes of this section, any information obtained from a State, organisation or court is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State, organisation or court to expect that it will be so held.  […]”

 

17 April 2015

The refused FoI request is referred to the Information Commissioner’s Office.

At some point between this reference and 10 August 2015, the MoJ in correspondence with the ICO shifts its position from disclosure being “likely” to have a prejudicial effect to that it would have a prejudicial effect on the relationship between the two Governments …. to the detriment of the United Kingdom” [emphasis in original].

 

Also in April 2015, the MoJ submit their final bid for the Saudi prisons contract (see here).

 

21 July 2015

The MoU is mentioned a number of times by opposition MPs (including Jeremy Corbyn) in the Westminster Hall debate on Saudi Arabia.

 

29 July 2015

The MoU is referred to in paragraph 10 of the MoJs’ defence document in a judicial review application before the High Court.

MoUDefence

 

10 August 2015

The ICO decides against ordering the MoJ to disclose the MoU.  The full decision is here, but it is too long to quote in full in this timeline.

The key paragraphs of the decision are:

“27. Having duly considered the arguments put forward by MoJ, and having viewed the withheld information, the Commissioner is satisfied that there would be a real and significant risk of prejudice if the withheld information were to be disclosed. Acknowledging that prejudice to the relationship between the UK and the Kingdom of Saudi Arabia – in the way predicted by MoJ – would occur, the Commissioner accepts that, in the circumstances of this case, the higher threshold of likelihood is met.

28. He therefore finds the exemption engaged in relation to the information withheld by virtue of section 27(1)(a) and has carried this higher level of likelihood through to the public interest test.

[…]

41. However, in the circumstances of this case, the public interest against disclosure is that in avoiding prejudice to international relations, specifically UK/Kingdom of Saudi Arabia relations. The relevant considerations in reaching a judgement on the balance of the public interest therefore extend beyond the actual content of the withheld information itself.

42. In the Commissioner’s view it is strongly in the public interest that the UK maintains good international relations. He considers that it would not be in the public interest if there were to be a negative impact on the effective conduct of international relations as a result of the release of the information at issue in this case.

43. From the evidence he has seen, the Commissioner is satisfied that disclosure of the withheld information represents a significant and real risk to the UK’s relations with the Kingdom of Saudi Arabia. In his view, it is clear that disclosure in this case would not only damage the UK’s relationship with the Kingdom of Saudi Arabia on this issue, but has the potential to harm the relationship between the two Governments across a range of issues. The Commissioner is satisfied that such a broad prejudicial outcome is firmly against the public interest and he has therefore concluded that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

44. In light of that conclusion, the Commissioner has not gone on to consider the FCO’s application of section 27(2) to the same information. He accepts, however, that the issue of any breach of confidentiality in this case is very closely related to the damage which would be caused to relations between the UK and the Kingdom of Saudi Arabia.”

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“I put my faith in the honourable” – a guest post by Michael Auty QC

The post below was originally in the “Save UK Justice” group on Facebook, where it prompted considerable attention and received a lot of praise.  Its author is Michael Auty QC, and he has kindly agreed for it to be cross-posted here.  

The post is in support of the “yes” camp of barristers supporting “no returns” direct action against the government’s criminal legal aid policy.

I have added a few explanations in [brackets].

By way of background, Simon Myerson QC is a barrister who has been critical of the decision of the Criminal Bar Association to adopt the current “no returns” policy.  Michael Auty defends this policy, starting off with politely addressing the difference between them.

 

I have not yet had the pleasure of meeting Simon Myerson QC but I know I’m going to like him; a lot. We have different views about the action presently being taken but that, for me, is simply part of life’s rich tapestry. I always read what he writes and I consider it with the care it deserves. You see I know that, in any situation, I can rely on every word he says. I don’t need to verify or corroborate what he says; I can take it as if it were Holy Writ brought down from Mount Sinaii. How is it that I am able to do this? I simply know he’s a man of tremendous principle and unvarnished integrity.

He’s not unique in that regard but it has been, and continues to be, the abiding joy of my professional career that I meet and deal with society’s best usually as we battle about what we do with some of society’s worst.

The fundamental reason I was, and remain, in the “yes” camp is that I simply do not trust politicians.

I have nothing against Michael Gove as a person. I’ve met him and he’s very charming and hugely bright. He’s a very good and lifetime friend of Gary Bell QC, an old mate, and, in his days in education, worked closely with John Tomasevic, another mate, who, like Simon, I would trust implicitly in all things.

Not long after I came to the Bar Lord Mackay was made Lord Chancellor. He thought the Bar should be highly paid but we should be fewer in number. We didn’t prosper one iota under him.

In due course we had Derry Irvine, with his gold-plated “dine with me and schmooze your way to the top” dinners. Then we had Charlie Falconer about whom nothing polite can possibly be said.

Willie Bach was among the most disappointing politicians for me. I know him and I liked him at the Bar. Yet he promised us £11,000,000 on prosecution fees if we surrendered them from defending. He lied.

Geoff Hoon, famously christened “Buff” by His Honour Judge John Hopkin (deceased) was even worse.

Don’t even get me started on Grayling because Katrina Harris-Byrne [moderator of the Facebook group] tells me she won’t tolerate profanity.

At every turn I have seen my profession sold down the river by one sorry dishonest, lying politician after another, usually aided by the Chairman of the Bar who, shortly thereafter, crops up as a High Court Judge, the modern day equivalent of 30 pieces of silver.

Divide and rule; divide and conquer has been so successful a tactic at the MoJ, I’m astonished it’s not on their letterhead.

We are not dealing with Michael Gove. He is simply the smiling assassin sent to convince the next High Court Judge that his master, George Osborne, cares.

The photographs of George in the company of ladies of the night and a veritable mountain of Cocaine have been doing the rounds again lately I see. No one bats an eyelid. We expect such behaviour; it no longer has the power to shock. It may explain old George’s disliking of lawyers though. George no doubt fell over laughing when Igor Judge suggested Justice should be ring fenced just as the NHS and Education is. “Over my dead body,” I am virtually certain he will have said.

And yet I am invited to trust Gove. But where is the 40% cut to the MoJ budget coming from; the elephant in the room, as the modern idiom has it?

I was once a solicitor. I was booed on my call night when I was introduced as such. I wondered why I wanted to join a profession that seemed to hate me from the outset. Yet the Bar has changed; I have never known the Criminal Bar more skilled and capable than it is right now. In contrast the JAC seems to have turned most of the Circuit Bench into a monumental laughing stock.

I’ve never met Jonathan Black [‎President of the London Criminal Courts Solicitors’ Association and leader of the solicitors in the current crisis] either but I like him too and for many of the same reasons I so admire Simon. He never descends into petulant name calling or abuse; he is a professional. The thought of losing someone like him fills me with dread.

My fear is this. If Two Tier [the new legal aid contractual regime] comes in, what remains in September will be unrecognisable. The Bar will have no purchase, no bargaining chip; the MoJ will declare open season on us and it will be a massacre. Thus, even if I didn’t care a damn about all my solicitor mates, and I do, very much indeed, I’ll have been lulled into a trap waiting to be picked off.

In Nottingham the solicitors are using the income stream from Magistrates’ Court work to keep the more vulnerable firms and the most junior members of the Bar afloat. We work in glorious symbiosis; we help one another rather than kick each other to death the moment the opportunity arises, which is precisely what awaits all of us when Osbourne’s next 40% cut arrives.

Ironically the letter from Richard Atkins QC, someone else I admire enormously, anticipates the MoJ not honouring any promise they might make. What possible basis is that for honourable negotiation?

My position is thus a simple one; I put my faith in the honourable; those of integrity. When Simon Myerson QC is Lord Chancellor I will know I can take every word to the bank. Until then, given what I’ve learnt about politicians during my 52 years (as of next Thursday) of life, I wouldn’t trust one of them so much as an inch.