Author: DAT Green

On FIFA overturning the Balogun suspension

7th July 2026

A parable of a clever lawyer and a wise lawyer

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Scene: the legal department at FIFA headquarters.

A room with two desks. At the desk nearest the door is the CLEVER LAWYER. At the desk by the window is the WISE LAWYER drinking her tea.

Suddenly a FIFA FIXER comes in.

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FIFA FIXER:

Guys, we have a problem. We need to overturn the Balogun suspension. Orders from upstairs. You need to find us a solution.

CLEVER LAWYER:

Tough one. It was a direct red card? One match automatic suspension. Look here, see what it says.

And see that word “automatically”? That is there for a reason. The provision would also make sense without it, and so it is there for a reason. it is not just that “they will be suspended” but that they “will automatically be suspended”. No hearing, no investigation, no review, no appeal. Nothing more is needed. One thing shall follow the other.

For example, look at this other provision:

Just as the USA automatically qualified as being a host, a player with a direct red card is automatically suspended. “Automatically” is a strong word. We cannot pretend it is not there.

FIFA FIXER:

There has to be a way round it?

CLEVER LAWYER:

Well, there is another provision.

FIFA FIXER:

Go on…

CLEVER LAWYER:

…it is another code, see here. It says that a suspension may itself be suspended.

FIFA FIXER:

Brilliant! Let’s suspend the suspension.

CLEVER LAWYER:

You may face a challenge. So you will need to make it water tight – evidence, a process, published reasons, that sort of thing. Especially as you are interfering with an “automatic” process. It is not a get-out-of-jail card of general application.

FIFA FIXER:

Does it actually say there needs to be a process or reasons?

CLEVER LAWYER:

Well, no…

FIFA FIXER:

…then we can just assert we invoke it, and we have a solution.

CLEVER LAWYER:

Belgium may complain.

FIFA FIXER:

We can give them something to keep them quiet, keep their silence. [Pause.] What about a peace prize?

[Long pause.]

CLEVER LAWYER:

Ahem, if a Belgian challenge is successful, then the default is that the United States may itself face sanctions for fielding an ineligible player.

FIFA FIXER:

Ha ha, we can just suspend that sanction too, and so on. All the way down. Brilliant guys – so we can suspend the suspension?

CLEVER LAWYER:

Well, technically, perhaps but…

FIFA FIXER:

And should we suspend the suspension?

WISE LAWYER [puts down her tea]:

No.

 

 

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Epilogue:

Constitutional change and a new Prime Minister

6th July 2026

Why fundamental reform is more likely than before, but still unlikely

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The United Kingdom is about to have a new Prime Minister.

As this blog has pointed out many times, changing Prime Minister mid-term is the norm in British politics. Since 1974 every Prime Minister has either entered office or left office between general elections, sometimes both. And there is nothing wrong or unusual with this, for we have a parliamentary and not a presidential system.

But the one thing a new, mid-term Prime Minister cannot point to is a fresh mandate, with a manifesto endorsed by a general election result. They are pretty much stuck with the same mandate.

Sometimes a new Prime Minister will break with the mandate they inherited. In 1990 John Major dumped the community charge (poll tax) notwithstanding it having been detailed in the 1987 Conservative manifesto. No sensible person doubted that was the right thing for him to do.

Generally, however, any proposed big change will be put off to the next election. There is often too much to do which is more urgent.

The new Prime Minister is likely to be Andrew Burnham, who has been open about supporting constitutional change and even now is expressing support for devolution and electoral reform.

But the eternal problem about constitutional reform is that it means those with power giving some of that power away.

Burnham has nice intentions about giving real power away, and maybe he will actually do something in office. And so on that basis it is more likely than before, but one suspects there is more than enough for a new Prime Minister to do, with the economy and taxation and defence and foreign affairs and so on. So constituional reform is still, on balance, unlikely before an election.

Over at Prospect a couple of weeks ago, I set out more thoughts on this.

Let’s see what happens.

Independence day

4th July 2026

A republic, if they can keep it – as Franklin said

The worst Prime Minister vs the worst mistake by a Prime Minister

25th June 2026

This is a short post occasioned by this piece in the Guardian ranking the worst Prime Ministers we have had since 2016.

The worst at being Prime Minister was, of course, Elizabeth Truss. But she is second. And that is actually, counter-intuitively, the correct placing.

As it is possible to have been the worst Prime Minister since 2016 without being the worst at being Prime Minister.

For David Cameron made the worst mistake as Prime Minister – of risking the future of the United Kingdom on one turn of pitch-and-toss, and losing. In other words, of having a needless Brexit referendum which the government did not enough to win and which the government made no preparations for if it lost.

And as such, Cameron’s one big mistake is worse than Truss’s calamitous few weeks.

That the worst politician of the six – that is, the person whose approach to politics was the most cynical – should only be the third worst on the list is indicative of just how bad the top two were.

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How a county council has obtained an injunction against those hoisting flags on the public highway

24th June 2026

A guided tour of the High Court injunction against “persons unknown”

Jun 24, 2026
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UPDATE – since the post below, the Council has now published other legal documents regarding the injunction here.

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Yesterday it was reported that Oxfordshire County Council had obtained a High Court injunction against those placing St George’s flags on the public highway.

This followed the earlier news of the council’s application.

The council itself published a helpful and detailed post on the injunction on its own site, which is worth reading in full (excerpt below).

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This blog has now obtained a copy of the Order of the High Court, and it sets out below what the Order says and what can be inferred about the case from the Order.

Although the Order is a public document, and so can by obtained by anyone reading this post, this blog does not propose to publish the Order in full as it names various natural persons, and this is not the sort of legal blog to name natural persons caught up in litigation unless necessary. This blog is more concerned with the legal issues.

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THE PARTIES

The applicant for the Order was, of course, the council.

The respondents were four named individuals, but also as a fifth respondent “persons unknown” who are

“intending to

(i) attach flags to highway structures or mark flags on the highway in the county of Oxfordshire,

(ii) harass members of Oxfordshire County Council or

(iii) obstruct or harass employees or contractors of Oxfordshire County Council involved in the removal of flags from highway structures”

The Order is thereby only against the “persons unknown” as three of the four named respondents all gave undertakings to the court on the terms of the injunction, and the fourth respondent indicated that they too would give an undertaking.

An undertaking generally has the same legal consequences for a party as an injunction, and with similar sanctions for breach. A court will often allow a respondent an opportunity to give an undertaking in lieu of an injunction, and that is what happened here. The four named respondents will be as bound legally by their undertakings, as if an injunction was made.

(And giving an undertaking has beneficial costs consequences for the respondent, rather than them refusing and requiring the court to make the respondent to be a party to an Order.)

That the Order was still required despite the undertakings was because of the “persons unknown” element.

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THE MAKING OF THE ORDER

The Order was made by Mr Justice Dexter Dias of the King’s Bench Division of the High Court, and it was sealed on 23 June 2026.

The Order does not refer to any particular legislation (for example highways legislation) under which the Order is made, and so it may be presumed that it is under the general jurisdiction of the High Court.

And although the claimant is a public body, it appears that the Order was made not by the Administrative Court, but by the (general) King’s Bench Division of the High Court which deals with (general) civil and private law matters.

It is an interim Order, and there is a further hearing listed for 9 July 2026. This means that, in theory, this Order is not the end of the matter and that the Order “holds the ring” (to use the usual phrase) until the claim of the council can be tried. In practice, however, many claims end once an interim Order has been secured.

When making such an interim Order, a court usually has to have regard to the “balance of convenience” of the parties, and here the court says expressly that it found the balance of convenience against “persons unknown”.

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WHAT IS ORDERED?

Until a trial takes place (which may or may not take place), or until the court orders differently, “persons unknown” (as defined above in a quote):

“shall not:

(a) attach any flag or cause any flag to be attached to any highway structure;

(b) paint or mark any flag on any of the highways;

(c) obstruct the Claimant’s officers or contractors from removing flags from highway structures;

(d) cause harassment, alarm or distress to the Claimant’s members or to officers or contractors of the Claimant who are or have been involved in the removal of flags from highway structures, including the decision to remove them.

(2) Persons unknown (as defined above) shall not encourage any other person to act in away prohibited by [the paragraph above].”

If “persons unknown” do any of these things they will be in contempt of court, which may mean imprisonment or a fine, or the seizure of assets. This is set out in the important penal notice on the front page of the Order.

The “highway” and “highway structures” are defined in the Order as follows:

“In this Order (1) references to highways are to highways in the County of Oxfordshire for which the Claimant is the highway authority; (2) “highway structures” means lampposts, lighting columns, street signs, trees, barriers, railings and other physical structures in the highways.”

As such, this Order does not cover the placing of flags on any private property.

The Order does not mention any points about freedom of expression or expressly conduct any balancing exercise under the Human Rights Act. It looks like it was treated as a straight private law claim by the council.

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HOW ARE “PERSONS UNKNOWN” TO BE BOUND BY THE ORDER?

This raises an obvious question of how are “persons unknown” to be made aware of this Order? The general rule is that a person cannot be bound by an Order unless they have notice of it. This notice can be actual notice or what is called constructive notice.

The Order deals with this as follows (hyperlink added):

“Service of the claim form and this Order on persons unknown (the Fifth Defendant)

Pursuant to CPR rr 6.15 and 6.27 the claim form, interim injunction application and this Order shall be served on the person unknown by the following means:

(1) The Claimant shall set up a dedicated webpage on its website giving access to the claim form, particulars of claim, supporting evidence, and this Order.

(2) The Claimant shall notify the groups known as Raise the Colours, Raise the Colours Oxfordshire and Oxfordshire Flying Squad of this Order by email, giving notice that the documents relating to the claim and this Order have been placed online and providing a link to the relevant webpage.

(3) The Claimant shall publish details of the claim and Order on LinkedIn, Bluesky, Facebook, Nextdoor, WhatsApp and the Claimant’s fortnightly newsletter for residents “Your Oxfordshire” and the Claimant’s news page with links to the relevant webpage.

The claim form shall be deemed served on the Fifth Defendant 3 days after steps (1) to (3) above have been completed, which shall be done by 4pm on 24 June 2026.”

(Interestingly paragraph (3) does not include X, formerly Twitter.)

The council does not appear to have set up a dedicated webpage yet, but this blog will add a link to it when it does.

A guidance note to the Order adds:

“Effect of this Order

A Defendant who is an individual (including persons unknown) who is ordered not to do something must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.

A Defendant which is not an individual (including persons unknown) which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way.

Parties other than the Claimant and Defendant

Effect of this order

It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of this Order. Any person doing so may be sent to prison, fined or have their assets seized.”

And so it is by a combination of the Order and the Council doing what it can to publicise the Order that “persons unknown” are to be bound by the Order.

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Given this appears to be an Order of the High Court in respect of its general jurisdiction in respect of a general private law claim, it would seem what Oxfordshire County Council has done here could be done, in principle, by any other local authority.

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This page will be updated as more material is available.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Getting rid of six Prime Ministers in ten years is a sign of a working political system

23rd June 2026

It is that we keep appointing poor Prime Ministers that is the problem: an input issue not an output issue

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There is an old adage that a litigator should not be “surprised” (or similar) by what their opponent does in litigation – one may be disappointed perhaps, but one should never be surprised. If a litigator is genuinely surprised by what their opponent does, they are probably in the wrong job.

A similar thing may be said about political commentators who are “baffled” (or similar) by a politician losing substantial support. A number of commentators seem bewildered by why and how the current Prime Minister Keir Starmer has lost political support so rapidly and widely that he announced his resignation yesterday, despite winning an emphatic majority at the last general election only two years ago. Again, if a pundit is genuinely baffled by a politician losing substantial amounts of political support they too are probably in the wrong job.

(The quick answer is that the current Prime Minister alienated his backbenchers and other political supporters by a sequence of decisions and indecisions, many of which were unforced errors.)

The question for this post is whether yet another Prime Minister going is a sign of a political system functioning or dysfunctioning. We will soon be on the seventh Prime Minister since the Brexit referendum ten years ago today, and such a turnover suggests something is not right.

Yet it is less obvious to say what is not right, as each departure can be explained and indeed justified on its own terms.

Cameron resigned because his government lost the Brexit referendum.

May resigned because she lost the confidence of her party and parliament regarding the Brexit exit deal.

Johnson resigned because the loss of support with his parliamentary party notwithstanding the huge majority (like Starmer) he had won a couple of years before.

Truss resigned because her and her Chancellor created an economic crisis.

Sunak went because he lost a general election.

And Starmer is going because he too has lost the confidence of his parliamentary majority.

Which of these particular departures can one object to or even quibble about?

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If each departure can be justified on its own terms, the suggestion must be that the departures are signs of a political system working rather than not working.

But aggregate numbers change minds – or at least perspectives.

Yes, each of the departures makes sense by themselves, but six? In ten years? Surely that cannot be right?

Not long ago we had the premierships of Thatcher (eleven years), Major (seven years), and Blair (ten years).

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If each departure was the right thing to happen, then the better question is why our political system keeps producing Prime Ministers who soon lose the confidence of their parliamentary supporters?

One could blame party members – for example, for Johnson and Truss.

But that explanation does not fit all.

Another answer is that we have had a run of prime ministers who could not or would not manage their parliamentary majority. Here May was in an impossible situation, but it is obvious Johnson, Truss and Starmer did not have happy relationships with their backbenchers.

The answer this blog will offer as to whether losing six prime ministers in ten years is a sign of our political system functioning or dtysfunctioning is that, given each departure was justified, it is a sign of a working polity.

But the constant production of prime ministers who so quickly lose their support is, in contrast, a sign of the system not working.

It is not that we keep getting rid of poor Prime Minister that is the problem, but that we keep appointing them.

It is an input issue, not an output issue.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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What is a Memorandum of Understanding?

17th June 2026

These legal-sounding documents are often not what they seem

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Every so often you will hear of parties that have signed a Memorandum of Understanding (MoU).

There may be some earnest or even solemn ceremony.

The document may look very grand, with legal-sounding phrases in a legal-looking format.

To a general onlooker the impression conveyed is that some agreement has been arrived at, which each party intends to be binding on themselves and the other parties.

“There is now a Memorandum of Understanding,” someone will say nodding, and wanting you to nod-along too.

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But.

From an English lawyer’s perspective, a Memorandum of Understanding is invariably intended to not be an agreement in any contractual sense.

A MoU can usually be described – even defined -in negative terms: it is an agreement which not intended to have any contractual effects between the parties.

(From time-to-time there will be a MoU which has contractual effect, though these are rare and come about mostly because of drafting errors, catching the parties by surprise.)

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So if we now know what a Memorandum of Understanding is not, then what is it?

A MoU will normally come about in two situations.

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The first situation is that there is actually no common understanding: for a MoU can merely assert there is an understanding rather than describe it, still less exactly particularise it.

A MoU can say the parties have reached an understanding on a thing, and then deftly not set that understanding out, and such ambiguity may well serve both parties.

And because of the lack of any exactness in what has been supposedly agreed there cannot be any enforcement, for what actually is to be enforced?

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The second situation is when there has been a meaningful agreement but, for some reason, one or more of the parties do not (or cannot) want the agreement to have contractual effect.

This second situation is more common.

It may be that the parties want to negotiate further before there is a full contract. And so a MoU – like a Non Disclosure Agreement – is a ceremonial gesture of goodwill.

For public authorities a MoU can means they can avoid going through a formal public procurement practice. Here a government body may enter into a MoU with a supplier to say any purchases of [x] will always be at price [y], but the government body will not be able to enforce that as a contract, and nor can the supplier. Here a MoU is literally a memorandum of understanding, and nothing more.

Or it may be because one or more of the parties wants wiggle room, so as vary or even renege on what is agreed.

(Like someone once described a ‘gentlemen’s agreement’ as something that a party intends will bind the other side, but not themselves.)

Or it may well be that the negotiators know they cannot get approval from their masters to enter into a contract, and an MoU is the best they can show for their efforts.

Or it may be because the parties need to announce something, anything – and announcing a MoU will do.

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In essence, when there has been a negotiation and a Memorandum of Understanding is an output, then there has been a deliberate decision by one or more parties for there not to have anything more binding. That decision can be for a good reason or a bad reason, or both. But there would have been a decision.

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You may have noted that above there has been mention of there being no ‘contractual’ effect of a Memorandum of Understanding, rather than no ‘legal’ effect.

This is because a MoU can have (often unintended) legal effects – they can matter in a tort claim (such as showing there was notice or knowledge) and they can matter in an equitable action (meaning a party may be prevented from then doing something unconscionable).

And a MoU can have evidential value in any dispute over fact.

A thing not having contractual effect is not the same as it having no more general legal effect or evidential value.

And that is why a party entering into a MoU should always have legal advice: it may be a neat way of avoiding a binding contract, but it is not always a neat way of avoiding needing lawyers.

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The above sets out the general position under English law, but of course Memoranda of Understanding can be used in other contexts such as international matters.

At the moment there is speculation that the United States and Iran may enter into a MoU in respect of the war that the United States recently lost against Iran.

If so, many of the above points hold true.

There will be a reason why the parties do not (or cannot) make this into a treaty.

And as set out above, this reason will usually be either that there is not actual agreement or that one or more parties do not actually want to be bound by what was agreed.

Or a bit of both.

If there is a MoU, and it is published, let us see what it says – and what it does not say.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Some preliminary thoughts on the Court of Appeal decision on Palestine Action

16th June 2026

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Why it is important to understand how (bad) law is structured

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Yesterday the Court of Appeal handed Palestine Action a heavy defeat, reversing a favourable High Court decision.

The Court of Appeal decision is here.

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This blog does not support Palestine Action or any other proscribed organisation, but this blog often looks at the use and misuse of terrorism and other coercive laws. And on the face of it, it does look like terrorism law is being misused, at least in respect of the mass arrests of people for merely holding signs expressing support for Palestine Action.

For hundreds, if not thousands, of people are facing criminal sanctions for a speech act: according to the judgment 2,000 have been arrested and “there are currently over 700 cases pending in the criminal courts of England and Wales, and many more at the pre-charge stage”. This would appear to be a ludicrous situation and not a use to which one would expect terrorism law to be put.

(Terrorism law is a special body of law, in addition to the general civil and criminal law of the land, which provides the state with powers, rights, and obligations for the particular purpose of dealing with terrorist threats.)

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On a preliminary reading of the judgment, and having watched (in a boon for the public understanding of law) the Court of Appeal’s decision on YouTube (watch here), these are some preliminary thoughts which this blog may develop further in another post.

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First, this decision is more in accordance with the deferent general policy of the courts on national security than the somewhat surprising High Court decision. In essence, Palestine Action were lucky at first instance and it was perhaps unrealistic to expect that luck to hold before the Court of Appeal.

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Second, the fundamental issue is that the restrictions on free expression (for expressing support for a proscribed organisation) is just one of many aspects of proscription. Proscription of an organisation confers on the state a whole range of powers, of which prohibiting expressions of support is just one. So if a proscription is quashed, then the state loses all these other powers.

This means that if a court holds that a proscription has a disproportionate impact on the free expression rights of individuals there is perhaps nothing a court can really do but quash the proscription for other purposes too. A court will be hesitant to do this.

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Third, if a court can somehow decide that free expression rights are not being disproportionately interfered with, it can avoid quashing the proscription. Here the Court of Appeal stated: “That said, however, as a matter of law, the Proscription Decision will not prevent public expressions of support for the Palestinian cause or opposition to Israel and to the Israeli Defence Force, or demonstrations targeted at Elbit.”

And so the Court of Appeal found that the impact on free expression of the proscription was not disproportionate. The problem was avoided.

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And this leads to the fourth point.

The real problem here is that section 12(1A) of the Terrorism Act 2000 (which was only added in 2019) should not be in the Terrorism Act at all.

Section 12(1A) of the Terrorism Act prohibiting support for proscribed organisations.

This prohibition on simply expressing an opinion is, of course, problematic generally.

But if a court quashes a proscription because the effects of the section 12(1A) prohibition is disproportionate then all the proscription powers go too.

A court will then strain, as it seems the Court of Appeal did here, to find that the proscription does not have a disproportionate effect.

From time to time a court, such as the High Court at first instance in this case, will quash such a proscription decision for its disproportionate effects on free expression, but such a quashing order is unlikely to survive appeal.

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Fifth, this appeal decision looks balanced in form (with lots of consideration of opposing factors) but in substance it seems fairly appeal-proof.

(And the current Supreme Court is also not likely to go against the government on national security.)

The Court of Appeal had what was a ‘strong’ bench, with the Chief Justice, the Master of the Rolls, the Vice President of the Court of Appeal Criminal Division, and two other senior appeal judges. Usually an appeal bench is of three judges, but here it is of five, and they were unanimous.

Unless this case goes to Strasbourg then this decision looks like the end of the road.

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And finally, the Court of Appeal in this case made, in passing, some ill-advised historical generalisations about the Suffragettes and other groups.

This historical dabbling will rile anyone with the relevant knowledge of history, and it should have been avoided by the judges, unless it was relevant to a question they had to decide. But to make such points for the purpose of illustration simply made the judges seem historically illiterate. The judges may well come to regret making those points.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Law is not magic, and prohibitions are not spells

9th June 2026

Again, politicians think that “banning” something is an end to a problem.

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This is a topic this blog has addressed before, but the issue never goes away and so the same old points bear repeating.

Law is not magic.

Prohibitions are not spells.

When you make a law against a thing, that thing may not instantly vanish.

It is not as if one points a wand and says something in cod-Latin, and the unwanted thing is thereby extinguished.

The unwanted thing may instead continue, it is just that further instances of that unwanted thing may be attended with different legal and practical consequences.

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Of course, there should be certain prohibitions.

But it is naïve – indeed magical – thinking to believe that just because, say, murder is prohibited there will be no more murders.

What the prohibition means is that any further murder can be followed by onerous consequences that would not be present if there was not a prohibition.

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Sometimes perhaps the prohibition may deter people doing the unwanted thing.

At other times, people will still do the unwanted thing, but in a way which means they will not be detected.

Or people will still do the unwanted thing if people believe the prohibition will not be seriously enforced – or if they believe the prohibition cannot be enforced.

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A prohibition in and by itself is not a policy. It may be part of a (wider) policy, alongside the allocation of resources, administrative priority, guidance and “soft” law, publicity, and political leadership.

But to make a law against something is often just as effective as casting a spell against something.

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The prompt for this post is the government of the United Kingdom threatening to do something-or-other if the internet companies do not do something-or-other.

Apparently, according to politicians, it is possible to ban social media use for under sixteen year olds.

The politicians will enact a prohibition [and cod-Latin and a merry wave of the legislative wand], the unwanted behaviour will disappear.

But it would seem things are a little more complicated than that.

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One curse of the modern age (and no doubt of earlier ages, but in a different way) is the belief that there are (instant) solutions to social and political problems.

And because of notions of parliamentary sovereignty, politicians in the United Kingdom believe that just because it is relatively easy for legislation to be passed, then more legislation is the solution to any social or political problem.

Members of Parliament cannot do much, but they can pass laws, and so they come to believe that passing laws is the only thing to do.

But public policy is hard.

Public policy is about effecting wanted outcomes which would not occur, but for the public policy. If things would happen anyway, then there is not much of a policy.

Laws are an important, if not crucial part, of much of public policy. Not just prohibitions, but the creation of discretions and obligations, and of rights. Laws can create legal personality or deem certain states of affairs.

But rarely, if at all, is any law the entirety of a public policy.

And so if politicians genuinely want to get rid – or reduce – an unwanted to thing, they have to do more than impose a prohibition.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.