What the High Court did not do today about Tony Blair and war crimes

31st July 2017

You will read – on social media and elsewhere – that today the High Court decided to not prosecute Tony Blair (and others) for war crimes.

The High Court did not make that decision.

First, the High Court was not being asked to make a decision on whether Blair should be prosecuted.  That would be a decision for a criminal court – to permit a private prosecution.

The decision today was about whether a decision not to permit such a prosecution was lawfully open to the criminal court.  The High Court held that it was not open to a criminal court to give that permission.  So: one step away from a decision to allow any prosecution.

Second, the High Court was bound by a 2006 decision of the House of Lords (the predecessor to the current Supreme Court).  So: it was in 2006 that the decision was made that the waging of aggressive war was not a domestic crime, and not today.  All the High Court did today was follow a decision more than ten years’ old.

Today the High Court made neither a decision to not prosecute for war crimes nor new law.  The High Court instead said somebody else could not make the decision, and did so by applying old law.

Read the judgment for yourself.

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A mandate can be either democratic or irreversible, but it cannot be both – an argument

31st July 2017

Over at the FT the other day I did a post about mandates and sovereignty.  Many people seemed to find the points in it interesting, and so (outside of the paywall) I will set out here in more detail the argument I made there about mandates.

The proposition I advance is in essence:

a mandate can be either democratic or irreversible, but it cannot be both.

The argument in support of this proposition goes as follows:

1.  To say a referendum result provides a mandate for an issue once and for all is to say it is irreversible.

2.  The position in (1) contrasts with mandates from general elections.  Usually in UK politics, the result of a general election does not mandate any MP to vote for anything.  The only real constitutional effect of a mandate from a general elections is that, by convention, any mandated measure cannot be blocked or delayed by the House of Lords (the “Salisbury doctrine”).

(Something is said to be mandated from a general election if it is set out in the manifesto of a party which obtains an overall majority.)

3. Following from (2): (a) opposition MPs can vote against measures in the winning party’s manifesto, (b) no government is obliged to follow its own manifesto (and often does not), and (c) in certain circumstances, a government can abandon and reverse policies where there is a mandate without waiting for a general election.

(A classic illustration of (c) is the poll tax, for which a Conservative government had a detailed mandate from the 1987 general election. Few sensible people, if any, would have argued that the Tories were bound to keep this tax in 1990 because of “democracy” when it came to be seen widely as wrong in principle and unworkable in practice.)

4.  Following from (2) and (3), mandates in UK politics are usually reversible, if they are followed at all.

5.  In any case, anything “mandated” by a general election result will always (and logically) be reversible at another election.

(In the case of (3)(c), there would not even be the wait for a general election.  For example, nobody in 1990 was saying about the poll tax: “let’s wait for the next general election for a mandate for something else”.  The policy was rightly ditched mid-parliament.)

6.  Following from (2), (3), (4) and (5) if a policy is (a) wrong in principle and (b) unworkable in practice then it is difficult to see how any perceived mandate from a general election can override that.

7.  Mandates also can come from referendums. The questions to now ask are: What should be the position with mandates from referendums? Should such mandates have an irreversible quality which a mandate from a general election does not?  And if it has an irreversible quality, would such a mandate still be “democratic”?

8.  In respect of whether such a mandate would be democratic, one can apply the famous tests of Tony Benn.  He suggested five tests for anyone with power: What power have you got? Where did you get it from? In whose interests do you use it? To whom are you accountable? How do we get rid of you?

9.  It is the last one that is problematic about referendum results, and prompts the following questions: How do you reverse a referendum result? Can an electorate at one point in time bind all future electorates in a way that no parliament could ever do?  Why should a majority at point A have more inherent power than an electorate at point B? These questions all point to one plausible answer: to say a referendum result is mandatory for all time and not reversible in any circumstances is to rob future electorates of their power.

(As a side note, no Brexiteer – rightly – seems to believe that the UK was bound for all time by the 1975 referendum result.)

10.  If the position at (9) is valid, then for a referendum mandate to be democratic, it must be capable of being revisited (either to affirm it or reverse it), else it cannot be democratic.  One electorate would have dictated a measure to all future electorates.

11.  If the position at (10) is valid, this is not to suggest a second referendum (see my post here – my view is that any such decision in a parliamentary democracy should be made, well, by parliament).  Instead, if the position at (10) is valid then it means that referendum results (or anything else) should not be given the status of an absolute mandate in a democracy, for to do so would thereafter render that polity as undemocratic.  This is because something will have been done that cannot be undone, whether by voters directly or through parliament.

12.  And so on the basis of the positions above, a mandate – whether by means of a general election or a referendum – can be either democratic or irreversible, but it cannot be both.

**

 

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The act of vandalism to take place at Inner Temple library: Part One

 

17th July 2017

This is first of three posts about an act of vandalism.  (The second post will be posted shortly.)

The act of vandalism has not happened yet, though it is expected to happen. Nothing, it seems, can stop it.

The target of the vandalism is a law library: the library of the Inner Temple, one of the four Inns of Court.

You may not care about law libraries.  But whatever your view, please take a moment to read about this act of impending vandalism.  It has, as I set out below, wider significance.

*

A library is not just an accumulation of books and book-like things.  Books and bookshelves are crucial, of course.  But a library is more than a depository.

The library of the Inner Temple happens to be a purpose-built law library.

This means that regard was made not only to bookshelves and tables.

The lighting, the acoustics, the use of space are all perfect.

Just as a  great theatre is not just a stage in a room, a great library is not just some books in a bookcase.

The library of the Inner Temple is as good a law library as it is possible for a law library to be.

Here are some pictures.

ITL1

 

 

ITL2

 

 

ITL3

 

It is an extraordinary and wonderful place for any lawyer, from a student to a QC, to work.

There is no better place in England to research a legal point.

In my next post I will set out what is going to happen to it, and why it is wrong.

**

I have an interest in this: I practice as a lawyer in Inner Temple (I work as a lawyer as well as a writer) though this post represents only my own personal view and not that of the firm where I am a consultant.

Parts of this post were previously at my post here on law libraries.

The Cummings exchange – which news sites credited it, and which did not

4th July 2017

Just as an exercise in how these things work, it is interesting to see how my Twitter exchange with Domininc Cummings was picked up by news sites.

Both the BBC and the Evening Standard sites provided credit for the Twitter exchange.

The Huffington Post embedded the reply tweets but without any further credit.

Disappointingly, both the Independent and the Mirror reported the exchange without providing any credit at all.

That is a poor show.

There is no problem reporting tweets, of course – they are public domain – but to take an exchange which was instigated and followed-through by a commentator without crediting them cannot be right.

For what it is worth, I always go out of my way to credit other media sites (and tweeters and commenters generally) when I can.  News and comment is largely collaborative exercise after all.

UPDATE

Mirror has amended its copy.  3000+ shares later of the piece later, but still appreciated.

FURTHER UPDATE

The Independent has finally updated its story to include credit – 13k+ shares later, but it is the thought…

“In some possible branches of the future leaving will be an error” – an exchange about Brexit with Dominic Cummings

4th July 2017

Yesterday evening, I had a tweet exchange with Dominic Cummings, the architect of the (official) Leave campaign.

His candour and openness was striking.

Many regard him as a controversial and negative figure.  But there is none of the platitudes and evasions of the politicians of both sides on Brexit.  It is worth, therefore, reading what he has to say.

The tweet exchange was prompted by his tweets from June, linking to a blogpost.  (I happened upon these while researching something.)

That was last month.  I wondered if he still held this view.

He must get a lot of queries and I did not assume he would respond.  But it was a sincere question.

(My own view is that (a) Brexit is complex, (b) the UK government is not equal to the task, and (c) the UK government is somehow making it worse for itself.)

He did respond.

He then added.

Brexit was necessary, though obviously not sufficient.

This is an interesting view, and I RTd the conversation above as it seemed worthy of wider discussion.

I then asked him about the referendum vote itself.

(Most Brexiteers will defend the Leave vote absolutely; many Remainers will be as equally disdainful.)

His reply was swift, and commendably frank.

“In some possible branches of the future leaving will be an error.”

In other words: Brexit was not bound to be a success – Brexit could be a mistake.

(Note my question had been about the referendum result, but the second sentence of the replt went to Leave more generally.)

He added:

In the meantime, I had RTd the “Lots!” tweet- again as I thought it would be of wider interest.

He was unimpressed with some of the responses.

I said I thought this response was good.

He responded.

He also made wider this observation about the responses.

*

Postscript.

I disagree with Dominic Cummings on many things to do with Brexit.

A couple of polite questions had elicited some frank, informative and interesting replies. And this dialogue in turn led to wider discussion.

One may dismiss what he has to say (and what he did at the Leave campaign) but it is important to know what his position actually is, and not what it is alleged to be.

But one respondent (ironically, an academic), however, saw this exercise as me being “part of the problem”.

This view is misconceived.

One problem with Brexit has been the partisanship and the heat of the two sides.

The more open and frank we can be the better.

**

 

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Three things about Brexit

2nd July 2017

Since the referendum vote last summer for the United Kingdom to leave the European Union, three things have become apparent.

First, Brexit will be complex, not simple.

Second, the UK government is not (or is not currently) equal to the task of Brexit.

Third, regardless of the difficulties, the UK government is in any case making it worse for itself, to the extent it seems almost that it is self-sabotaging the whole process.

I do not claim any originality for these three insights; I just wanted to jot them down here, in one place.

 

Brexit: Whatever happened to the “row of the summer”?

19th June 2017

On Friday this blog asked whether there had been a UK government u-turn on “sequencing” in the Brexit negotiations, which started today.

Sequencing is (or at least was) important for the UK.

Article 50 envisages two agreements: an exit (or divorce) agreement, dealing with issues related to the departure, and an agreement on future relations, which for the UK essentially means trade.

The UK want(ed) both to be negotiated together, in parallel.

The EU wanted a number of preliminary issues discussed before the parties moved on to discussing future trade relations.

In crude terms, the UK has (had) more leverage over the trade deal the more it was tied to the exit deal.  In the latter, the UK has things the EU wants regarding cash and citizenship.  Once those issues are settled, the weaker the UK’s negotiating position on trade.

So important was sequencing to the UK that two months ago the relevant minister threatened that it would be the “row of the summer“.

On Friday (as set out at Friday’s post) there were reports that this position had changed – that, in effect, there had been a U-turn.

What made these reports plausible was that they were not splashed as exclusives but seem to have been mentioned by diplomatic sources almost without realising the significance.

When asked, the Department for Exiting the European Union provided a non-denial denial, just plausible enough to kill the story with the mainstream media.

It looked like a denial, so it must have been one.

But it was not, if you read it carefully.  And when asked directly, the department side-stepped the question. (All this is set out at Friday’s post.)

*

And so what happened today, on the first formal day of the negotiations?

Michel Barnier , the chief EU negotiator, stated:

In a first step, we will deal with the most pressing issues. We must lift the uncertainty caused by Brexit. We want to make sure that the withdrawal of the UK happens in an orderly manner.

Then, in a second step, we will scope our future relationship.

And this is affirmed by the agreed agenda published on the UK government site.

*

So the UK government has capitulated on day one, on an issue which was to be the “row of the summer”.  it did not even get to midsummer’s day.

But what is the significance?

First, it has shown the futility of the UK boasting and blustering with red lines. This may not be the first one to be crossed.

Second, it shows the stronger negotiating position of the EU, and the benefits of long and detailed preparation.

Third, it may show that the UK (unlike in May) is less able to negotiate the UK’s future trade relationship with the EU, as the the UK government since the election does not have an agreed position.

And fourth, never rely on a government press office, especially DExEU.

But overall: this capitulation should be welcomed.  It was a silly and weak position.  It is better that the UK drop it now, and use the valuable time to get a sensible discussion rather than have a row over the summer.

It was, as some have said on Twitter, the row-back and not the row of the summer.

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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.

*

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.

*

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.)

*

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.

*

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.

*

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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Has the UK made a U-Turn over the Brexit timetable?

16th June 2017

Back on 14th May 2017, the Secretary of State for Exiting the European Union David Davis was bullish: the Brexit timetable will be the ‘row of the summer’.

The EU wanted a phased approach, with certain issues dealt with before any trade agreement is discussed.  The latter would only happen once there was sufficient progress on the former.

The EU guidelines setting out this approach are here and they provide:

the first phase of negotiations will aim to:

– provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union;
– settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as Member State.

The European Council will monitor progress closely and determine when sufficient progress has been achieved to allow negotiations to proceed to the next phase.

The rejection by Davis of this approach was to be the ‘row of the summer’.

Earlier today the following was tweeted by a BBC journalist:

This was elaborated on the BBC site:

“…the source told the BBC that it was understood the talks would broadly follow the EU’s preferred sequence, dealing with issues of citizens’ rights and a framework for calculating outstanding financial liabilities before moving on, possibly later in the year, to deal with the UK’s future relationship with the EU.”

If this was correct, the UK government has capitulated on the timetable.  Instead of the ‘row of the summer’ the government’s position had not lasted until midsummer’s day.

By way of background, Article 50(2) includes the following:

“In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.” 

And the Article 50 letter of 29 March 2017 included the following:

“We therefore believe it is necessary to agree the terms of our future partnership alongside those of our withdrawal from the European Union.”

[…]

“Agreeing a high-level approach to the issues arising from our withdrawal will of course be an early priority. But we also propose a bold and ambitious Free Trade Agreement between the United Kingdom and the European Union.” 

I asked the Department for Exiting the European Union for a statement.

The statement given to me (and I understand also to the BBC, see here) said as follows:

A spokesman for the Department for Exiting the European said:

“We have been crystal clear about our approach to these negotiations.

“As we set out in the Article 50 letter, our view is that withdrawal agreement and terms of the future relationship must be agreed alongside each other. We are clear this is what is set out in Article 50.

“We believe that the withdrawal process cannot be concluded without the future relationship also being taken into account.

“As the EU has itself said, ‘nothing is agreed, until everything is agreed’.

“As we also said in our Article 50 letter, ‘agreeing a high-level approach to the issues arising from our withdrawal will of course be an early priority’. But the withdrawal and future are intimately linked.

“In particular, we want to move ahead on securing the rights of EU citizens in the UK and UK citizens living in the EU. We want to end the anxiety facing 4 million citizens.

“That has always been our first aim and that is what we will do. That is why we are pushing ahead with negotiations on Monday.”

(ends)

This seemed rather wordy and did not seem like a straight denial of the BBC claim.  Read carefully, there seemed to me to be wiggle-room.  (As a rule, any statement described as “crystal clear” or similar will tend not to be clear.)

So I asked the Department for a straight response to the statement.

Was what Damian Grammaticas said in the tweet correct or was it incorrect?

The press officer told me that they they would need to get back to me on this, and that they would send an on-the-record answer.

I will publish that answer when it arrives.

*

ADD: POLITICO Europe now sourcing this to two EU diplomats, see here:

The U.K. government has agreed to the EU’s demand to start Brexit negotiations with the divorce settlement before moving on to trade issues, two EU diplomats told POLITICO.

Still no word back from DExEU.

ADD: One hour later

A press officer emails me: “We have nothing further to add to our statement.” 

 

 

 

The real and worrying significance of the Downing Street dinner leaks

2nd May 2017

The real significance of the leaks from the Downing Street dinner between Theresa May and Jean-Claude Juncker is what the detail reveals about the UK’s lack of grasp about the process and issues of Brexit, and about how weak the arguments are which UK ministers are seeking to deploy.

These details are telling, even taking due account of spin and bias.  These details are also such that they cannot have been invented (or even exaggerated) by the leakers.  (On these details see my thread on Twitter here, republished at my FT blog here.)

And so these details are worrying, and should be worrying – regardless of one’s views on Brexit.

In the UK, however, there will be pearl-clutching at the fact of the leaks, and attacks on the leakers.  Such responses are easier, one supposes, than dealing with the troubling detail.

There is one obvious way in which the UK government could avoid leaks about how badly prepared they are and about their poor grasp of the process and details.

But they would prefer official secrecy instead.

And so UK voters will only find out about the strengths and weaknesses of the UK government on Brexit, based on what was said in Downing Street, by EU leaks to a German newspaper (published in full in the print edition and not online).

If Brexit is to be a success then the UK government needs to improve its grasp of process and the issues, and put forward arguments which are realistic.  That the government is evidently not (yet) doing so is the significance of the leaks.

But the messengers, and the message, will be criticised or waved away instead.

**

My book “Brexit What Everyone Needs to Know” is forthcoming from Oxford University Press.