The three steps that mean Brexit may never happen

David Allen Green
| Jul 04 13:57 | Comments |

The established order in any society can sometimes be wrong-footed, but they are usually not wrong-footed for long. Genuine revolutionaries know this, and they act quickly to take full advantage of any temporary advantage. Soon, however, the established order will regroup and refocus, with renewed determination.

The generally pro-EU political class in the United Kingdom has certainly had a fright. They were not expecting to lose the EU referendum. British political leaders were so confident of victory they even casually said that the people’s decision would be implemented “straight away”. And now there is a crisis, but only for a while. Read more

Brexit: The facts, laws and politics of the Leave vote

David Allen Green
| Jun 28 11:23 | Comments |

Various EU politicians can demand what they want but they may as well be whistling Read more

Article 50 and the start of a political stalemate

David Allen Green
| Jun 24 14:18 | Comments |

  © Getty Images

Not all problems have solutions. And the political problem now caused by the decisive Leave vote in the UK does not lend itself to any straightforward solution in practice.

Part of this is because there was never a good objective reason for the referendum in practice, and part is because the referendum did not have any legal effect. It was always an unnecessary referendum with no legal consequences. In legal terms, it was a glorified opinion poll. Read more

David Cameron’s unnecessary EU referendum

David Allen Green
| Jun 17 15:49 | Comments |

The referendum on Britain’s EU membership is unnecessary. There is no objective reason for it to take place: no new treaty or proposed treaty amendment. It is merely a vote on whether the U.K. continues to be part of an international organisation of which it has been a member for over forty years. There is no more reason to have a referendum on this issue in June 2016 than in June 2015 or June 2017.

The referendum is also not binding as a matter of law. As set out in my earlier post, there is no legal consequence contingent on the result of the vote. The government could have legislated for an immediate legal effect but it chose not to do so. As such the referendum is advisory and not mandatory. The key decision by the government in the event of a “Leave” vote is whether to invoke the (seemingly) irreversible exit procedure in Article 50, and the government can make the relevant notification at a time of its choosing (subject perhaps to a parliamentary vote) or even not make such a notification at all. Read more

Will the Conservatives make peace with the law of human rights?

David Allen Green
| Jun 15 17:59 | Comments |

In June 2006, 10 years ago this month, David Cameron, then leader of the opposition, promised to replace the Human Rights Act of 1998 with a “British bill of rights” when he and the Conservatives obtained power.

Ten years later the Human Rights Act is still the law of the land, even if it now seems Mr Cameron — prime minister since 2010 — may not be in office much longer. The Human Rights Act is as safe (or as unsafe) as it has ever been, and it looks as though the act will survive the premiership of Mr Cameron. Read more

Can the United Kingdom government legally disregard a vote for Brexit?

David Allen Green
| Jun 14 11:26 | Comments |

What follows any referendum vote next week for the United Kingdom to leave the EU? From a legal perspective, the immediate consequence is simple: nothing will happen.

The relevant legislation did not provide for the referendum result to have any formal trigger effect. The referendum is advisory rather than mandatory. The 2011 referendum on electoral reform did have an obligation on the government to legislate in the event of a “yes” vote (the vote was “no” so this did not matter). But no such provision was included in the EU referendum legislation. Read more

The law and politics of the Conservative election expense allegations

David Allen Green
| Jun 08 14:34 | Comments |

The third painting in the series, 'The Humours of an Election' by William Hogarth, 1755. Granger, NYC/Alamy.

The UK Conservative party is facing serious allegations and extensive investigations in respect of their campaign expenses at last year’s general election. Read more

From FT.com May 26, 2016

Free expression is not the only principle at stake in the Thiel case, writes David Allen Green Read more

The PJS privacy case in perspective

David Allen Green
| May 23 13:29 | Comments |

A general view of the Supreme Court on May 19, 2016 in London, England.

Last week the Supreme Court of the United Kingdom handed down a judgment in the privacy case of PJS v News Group Newspapers. The court upheld the interim injunction preventing the publication by the news media of the identity of PJS in England and Wales. Read more

How the National Crime Agency abused the law in the Lauri Love case

David Allen Green
| May 11 15:29 | Comments |
Lauri Love

Lauri Love  © Courage Foundation'

On Tuesday, an English judge refused a request by the National Crime Agency to require an alleged hacker Lauri Love to provide his encryption keys. The decision can be read here. It was a serious and embarrassing legal defeat for the agency — a body described by some as “the UK’s FBI”.

This defeat was not — or should not have been — surprising. The agency had attempted to circumvent the relevant law regarding the disclosure of encryption keys, and the district judge at Westminster magistrates’ court ruled that this tactic was not open to it. As the judge notes:

“The case management powers of the court are not to be used to circumvent specific legislation that has been passed in order to deal with the disclosure sought.”

This case, however, is more significant than a junior judge simply putting a law enforcement body back in its box. Read more

The devastating Lords report on the British Bill of Rights

David Allen Green
| May 09 12:26 | Comments |
After signing the Good Friday Agreement in 1998, British prime minister Tony Blair (right), US senator George Mitchell and Irish prime minister Bertie Ahern (left)

In 1998 the Good Friday Agreement was signed by Tony Blair (right), George Mitchell and Bertie Ahern (left)  © Getty Images

A significant parliamentary report is published today. It is a report about something that has not happened yet, and does not look like happening soon. If the report is read carefully, it explains why the thing may never happen at all. Read more

The fragility of parliamentary sovereignty

David Allen Green
| May 03 13:03 | Comments |
Sir Edward Coke

Sir Edward Coke  © Getty Images

This post is the first of a series on law and legislation. Read more

Press regulation: why ‘section 40′ on litigation costs should not be implemented

David Allen Green
| Apr 29 07:00 | Comments |
John Whittingdale, secretary of state for culture, media and sport

John Whittingdale, secretary of state for culture, media and sport  © Getty Images

During the recent controversy about John Whittingdale, his private life and his relationship with the press, one statutory provision was often mentioned.

This is “section 40″ and the contention was that the secretary of state for culture, media and sport was acting wrongly in not bringing it into force.

It was further argued that the reason for this failure could be attributed to the hold that the tabloid media had over him. Section 40 of the Courts and Crime Act 2013 is, it would appear, to be of fundamental importance in the debate about press regulation.

Some assert that it would be lethal to press freedom in general and to investigative journalism in particular. Others say it would be a valuable cornerstone in a regulatory system for a free and vibrant but accountable press.

Never has a statutory provision, which is yet to be implemented, had so much riding on it.

On the narrow issue of this provision, as on the wider one of press regulation, good and experienced people — who worked alongside each other on libel reform, for example — disagree starkly. There is anger and derision in their debates on social media. One gets the sense that wise individuals should never discuss the regulation of the press, and that they should talk of less controversial topics such as religion or politics instead.

So what exactly is this section 40 about? Why does it matter to so many people who are concerned with press freedom and media standards? And what would it mean in practice, if and when it is finally put into effect?

 Read more

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

David Allen Green
| Apr 27 11:49 | Comments |
Relatives of the victims of the Hillsborough disaster celebrate the inquest verdict of unlawful killing

Relatives of the victims of the Hillsborough disaster celebrate the inquest verdict of unlawful killing  © Getty Images

On Monday, Theresa May gave a speech where, contrary to the policy of the UK government, she called for the country to leave the European Convention on Human Rights.

It was a curious speech for the Home Secretary to make — indeed for any UK Home Secretary to make. This is for many reasons, not least that the Good Friday agreement explicitly requires that the ECHR have ongoing legal effect in Northern Ireland. For this requirement to change would require the UK to try to rewrite and renegotiate the peace settlement, and even then the amendment would have to be approved by referendums in both Northern Ireland and the Republic of Ireland. And, as the ECHR requirement was included so to give comfort to nationalists concerned about the Police Service of Northern Ireland, Ms May’s demand would risk causing upset and alienation.

Perhaps the Home Secretary did not realise this; perhaps she did not care. It would seem that the political imperative was for her to send a signal to Conservative politicians and the media — she is opposed to Britain leaving the EU so no doubt wanted to placate her pro-Brexit supporters. Whatever the explanation, it showed a certain superficiality in her approach to human rights: the assertion of a populist view without regard to the relevant facts or to its practicality. And this is not the first time: in 2011 she told her party conference that an illegal immigrant could not be deported because they had a pet cat. “I am not making this up,” she assured her audience. Read more

The Privacy Dances

David Allen Green
| Apr 18 10:52 |
John Whittingdale arrives at No 10 for a cabinet meeting

John Whittingdale arrives at No 10 for a cabinet meeting  © Getty Images

Two news stories about privacy have dominated the London-based media for the last week or so. The first is about the private lives of an (as yet) anonymous celebrity couple and the second is about the private life of a cabinet minister.

In neither case are the material facts of any great importance: the politician is single and had a relationship with another single person, and the celebrity couple have an open marriage and one of them had a relationship with another married couple. The allegations are entirely about consensual relationships between consenting adults. But in both cases there is serious — and sometimes heated — debate about the public interest and the extent to which the press can or should intrude into the private lives of others.

The preoccupation about these two stories is telling about the priorities and concerns of the London media. Even though the ultimate details in each case are trivial, both cases are discussed as if they engage first principles.

 Read more

Leaks and liberty: policy and legal consequences of unauthorised big data releases

David Allen Green
| Apr 12 11:06 | Comments |

People demonstrate against Iceland's Prime Minister Sigmundur Gunnlaugsson in Reykjavik, Iceland on April 4.

Large scale unauthorised data releases are becoming both more frequent and more politically significant. Read more

The Panama Papers: public interest disclosure v the right to private legal advice

David Allen Green
| Apr 06 12:42 | Comments |

Protestors gather outside Iceland's parliament after Prime Minister Sigmundur David Gunnlaugsson stepped down in the wake of the Panama Papers leaks  © Getty Images

There have been two main responses to the leak of the Panama Papers.

The first has been a great shrug of indifference: so what? The rich and powerful do things that only the rich and powerful can do. The second is a warm, indeed enthusiastic, welcome to this dramatic exercise in transparency: we can now see how the rich and powerful do the things that only the rich and powerful can do. The political consequences of the leak, for example in Iceland and the UK, indicate that the transparency in turn is leading to greater accountability.

Are these the only valid responses? Is there any issue here about privacy and the right to confidential legal advice? Or are such concerns mere fusspottery and point-missing? Read more

England’s illiberal moment

David Allen Green
| Jan 25 10:44 | Comments |
BRITAIN-ECONOMY-BUDGET-POLITICS

The Houses of Parliament  © Getty Images

Public policy in England seems to have a rather illiberal tone at the moment. (And this post deliberately refers to England as, since devolution, it is increasingly hard to generalise about all the national governments in the UK.) Almost every day comes some new announcement about how the government wants to have more power at the expense of its citizens. Is England getting more illiberal? If so, how has this come about? And will any such illiberal trend continue?

First, the evidence of illiberalism. At its most stark, it is about life and death. In the last few weeks alone the prime minister has called for the army to be put above the law and for the law to be changed so as to make it easier for the police to shoot people. It would appear that David Cameron sees no role for the law in restraining those who can exercise lethal force on behalf of the state.

 Read more

Home Office, Saudi Arabia and the need for a ‘safe space’

David Allen Green
| Jan 13 05:30 | Comments |

  © Getty Images

Last October, I revealed the existence of a Memorandum of Understanding between the UK’s Home Office and its counterpart in Saudi Arabia. Read more

The Investigatory Powers bill: will it work in practice?

David Allen Green
| Nov 05 2015 12:06 | Comments |
David Cameron Addresses The 2015 Conservative Party Autumn Conference

UK home secretary Theresa May  © Getty Images

The UK government on Wednesday published a draft Investigatory Powers Bill for public and parliamentary consideration. It was a significant move in many ways.

The intention is that the draft Bill will be the basis of consultation, with a revised Bill being published in 2016. This revised Bill will need to be enacted by the end of next year, as the current Data Retention and Investigatory Powers Act expires on 31 December 2016 and one section of it has been quashed by the High Court as from March 2016.

Publication is therefore the start of what may be a year-long legislative process. On the face of it, the government intends to take the legislative process seriously. The Bill has been published with extensive explanatory materials, fact sheets and impact assessments. The page count of those documents is higher than that of the bill itself — the government wishes to give the impression this process is to be done properly and thoroughly. Read more

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