Category: International Agreements

The Chagos Islands are an index of British international weakness

6th May 2026

In decision after decision, the United Kingdom simply has to accept the changing will of the United States

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As there are elections over Great Britain tomorrow, this blog goes from the local to the far-away: in particular to the Chagos Islands, otherwise known as the British Indian Ocean Territory.

The Chagos Islands are an index of actual British international influence – because things keep on being decided about them without it mattering what the United Kingdom government itself wants, even though we are the nominal controlling power.

Not long ago there was a deal which suited the United States, who has a military presence on the largest island, where the islands went (back) to Mauritius. The United Kingdom had to go along with it.

And then more recently, as I set out over at Prospect, the United States changed its mind – well, President Trump did. And again, the United Kingdom had to go along with it.

The curious thing is that the islands have an immense symbolic hold on the conservative mind as a surviving remnant of British imperial power, when the reality is the repeated demonstration of just how weak British power and influence now is over its own territory.

And as the relative international power of the United Kingdom continues to decline, we will no doubt have more examples of the contest between symbolism and reality.

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But what about international law?

6th January 2026

What happens to an international legal order when a superpower goes rogue

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The notion of international law prompts strong opinions.

(Here is meant what lawyers call “public international law” – in general, the law which governs nation states and international organisations. There is also “private international law” which is generally dull and uncontroversial – cross-border contracts and what-not.)

Some even doubt international law exists.

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I once heard a very distinguished legal academic – whose name is on the spines of volumes in every law library throughout the land – aver the following:

“In court, the laws of England and Wales are a matter of law. You just have to show the relevant legal authority or instrument and the court should accept that as what the law is.

“Foreign law – say the law of France – is different. This is a matter of evidence – expert evidence. You get an expert in that foreign law and their evidence is put before the court.

And international law, well. (Pause.)

International law is a matter of fiction.”

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There is perhaps no other branch of law which is the subject of such scepticism, if not outright denial, among even lawyers themselves.

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From one perspective, this rejection is perhaps understandable.

A great deal of what is called (public) international law will never be determined or enforced by a court of competent jurisdiction – it will never be litigated, and the nation state (and head of state) breaching that law will feel confident there will not be any consequences.

As one famous jurist once put it: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

And if there ain’t a court that will “do” international law then it is little or nothing more than a polite political fiction – a set of normative assertions with no positive existence.

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But.

There is more to law than its determination or enforcement by a court.

Even domestically, the vast majority of statutory provisions – and indeed many statutes – have never been litigated and will probably never be litigated. Yet they are still the law.

And this is because – in very general terms – they are recognised to be the law and parties regulate themselves accordingly.

As the greatest of all contract law academics G. H. Treitel put it in his classic definition of a contract (emphasis added):

“A contract is an agreement giving rise to obligations which are enforced or recognised by law.”

Enforcement – and thereby the possibility of enforcement – is not the only test of whether a thing is a law or not.

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In (public) international law, many of the obligations are created and agreed by nation states themselves. These are usually in the form of treaties.

There can be treaties between states for particular purposes – and there can be treaties of general of general application. Sometimes the latter are called conventions, as in the Geneva convention. And there can be charters to which member states subscribe – sometimes to create international organisations. There are many ways in which obligations in public international law can be created and agreed.

And then there is what is called customary international law – the international laws which are said to govern nation states regardless of whether the nation state agrees to those laws.

Taken together all these laws constitute (public) international law.

The problem is, however, very little of that law can or will ever be litigated.

But it is treated generally- that is, recognised – by many nation states as law nonetheless.

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One may have sympathy with the view, to adapt the famous aphorism attributed to Gandhi about western civilisation, that international law would be a good idea.

And generally, when nation states recognise it and regulate their conduct accordingly, it is a good thing as well as a good idea.

But what happens when a nation state – a superpower no less – goes rogue?

Where just because it can – like a dog licking itself – it breaches international law again and again, with barely a shrug?

One response is to say that such (mis)conduct discredits the notion of international law entirely – that the polite fiction of international law has been undermined by the (to say the least) impolite.

It is certainly the case that the current administration of that superpower – the United States – do not seem to care less about international law when it would restrain them.

(No doubt they would plead international law against another country if it suited them.)

But the notion of being in breach of international law is not the same as international law not existing.

International law is still there – it is just not being complied with.

International law is still there – it is just not capable of being enforced in these instances (at least not yet).

Other nations will recognise and abide by those laws even if the United States will not.

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An eminent professor may say international law is a matter of fiction, but unfortunately the many breaches of international law by the United States are a not a matter of fiction.

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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.

More on the comments policy is here.

 

The recognition of Palestine – a footnote to yesterday’s post

19th August 2025

More heat and a little light from a further exchange of letters

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Following the post on this blog yesterday on recognition of Palestine, a further two letters have been published on the substack of Joshua Rozenberg.

These two further letters are to and from the Attorney General.

The letters do not take the discussion much further, but it is interesting to see that the government not only states that it will comply with international law but also – expressly – that the government considers that a decision to recognise Palestine would be “entirely” in accordance with international law.

The government does not state what international law rules and obligations are relevant.

The government does not even state that it will comply with the Montevideo criteria – or even if it sees that criteria are relevant to this decision.

And the government does not really need to do so, for it is a political decision.

If the government decides to recognise Palestine there is no court of competent jurisdiction that can gainsay it, unless such recognition is in breach of an applicable rule or obligation.

And even after all these letters, no applicable legal rule or obligation has yet been identified in any of the published letters of which the United Kingdom would be in breach if it recognises Palestine.

That is not to say that the government is proposing to take the recognition decision in a politically wise way (and the current approach of the government seems irrational) – but it is a decision that should be taken within the realm of politics, and not of law.

For the recognition of one polity by another is – literally – a political question.

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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.

On the recognition of Palestine: a close look at an unconvincing letter from “distinguished” UK lawyers

18th August 2025

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Back in 1990, the late academic authority on legal statehood James Crawford wrote:

“It seems to be difficult for international lawyers to write in an impartial and balanced way about the Palestine issue. Most of the literature, some of it by respected figures, is violently partisan. It is true that this only reflects much of the political and personal debate about Palestine. Still, such a level of partisanship in legal discourse is disturbing.”

Thirty-five years later it still a subject beset by partisanship.

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A couple of weeks ago a letter was put together in response to the possibility that the United Kingdom may recoginse Palestine. It was signed by some well-known lawyers, some of whom I know and admire.

The authors of the letter were called “distinguished” by various media sources.

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The published letter was addressed to the Attorney General, and it said:

“In relation to the announcement that the Prime Minister intends to recognise Palestine on certain conditions, we call on you to advise him that this would be contrary to international law.

“As you must know, Palestine does not meet the international law criteria for recognition of a state, namely, defined territory, a permanent population, an effective government and the capacity to enter into relations with other states. This is set out in the Montevideo Convention, has become part of customary law and it would be unwise to depart from it at a time when international law is seen as fragile or, indeed, at any time.

“It is clear that there is no certainty over the borders of Palestine. Could the government continue to recognise millions of Palestinians in the West Bank and Gaza as “refugees” (and claiming the right of return to Israel) even though the effect of UK recognition would be that they are on their own territory?

“There is no functioning single government, Fatah and Hamas being enemies. The former has failed to hold elections for decades, and the latter is a terrorist organisation, neither of which could enter into relations with other states.

“You are on record as saying that a commitment to international law goes absolutely to the heart of this government and its approach to foreign policy. You have said that a selective, “pick and mix” approach to international law will lead to its disintegration, and that the criteria set out in international law should not be manipulated for reasons of political expedience.

“Accordingly we expect you to demonstrate this commitment by explaining to the public and to the government that recognition of Palestine would be contrary to the principles governing recognition of states in international law. We look forward to your response.”

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What is striking about this letter is just how weak it is as a piece of legal reasoning.

If you are partisan – either pro-Israel or pro-Palestine – you may overlook the letter’s merits or de-merits, and you can decide it is a good or bad letter because you either support recognition of Palestine or you do not.

This is the very partisanship to which Crawford was referring in the quote at the head of this post.

But for the rest of us, seeking to make sense of a difficult issue at a dangerous time, we do not need to just cheer or jeer as partisans.

We can look at the merits and the substance of a case instead.

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Over at Prospect I have set out a brief post about this letter, but on my own blog – where I have more space and can use a more discursive style, I would like to show why this letter is weak stuff – even if it is a very carefully worded letter.

(Below I will quote parts of the letter, and in each quotation the emphasis is added.)

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First, let us look at a couple of fillers:

“As you must know, Palestine does not meet the international law criteria for recognition of a state […]”

“It is clear that […]”

These are the sort of things lawyers say when they have not got anything stronger. As such they are indications – no more – that we need to be on our guard.

If the authors of the letter were confident they would not need to rely on such stock phrases – and if you read the letter without these fillers it would actually be stronger.

(Indeed the letter does not read like a final draft.)

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Now let us move to content.

What does the letter say – and what does it not say?

The letter is very careful to use the phrase “contrary to international law”:

“[…] we call on you to advise him that this would be contrary to international law.

“[…]

“Accordingly we expect you to demonstrate this commitment by explaining to the public and to the government that recognition of Palestine would be contrary to the principles governing recognition of states in international law. We look forward to your response.”

To those less used to reading the glorious prose of lawyers, this may seem that the authors are saying that the United Kingdom is breaching international law – that the United Kingdom is proposing to act unlawfully or even illegally.

(Sick birds aside – ill eagles, ho ho – “unlawful” tends to mean there is not a lawful basis for a thing, and “illegal” tends to mean that a thing is in breach of a rule or obligation.)

But the letter does not say the United Kingdom is proposing to act unlawfully or illegally.

The authors of the letter could have said this had they wanted to do, but they chose not to do so.

The letter does give the impression that the authors are saying that the United Kingdom would be in breach of international law – and that is certainly how it was reported:

But again, the letter does not say this.

(One can only hope this misleading impression was not deliberate.)

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What the letter does say is that a proposed recognition would be “contrary to international law” and “contrary to the principles governing recognition of states in international law”.

The second quotation here is telling: the authors of the letter do not even cite any rule or obligation of which the United Kingdom would be in breach if it were to recognise Palestine.

And the reason they do not do so, as Professor Marko Milanovic avers, in this short but devastating refutal (and not merely a rebuttal) of the published letter, is because there is no rule or obligation of which the United Kingdom would be in breach if it were to recognise Palestine.

(One of the authors of the published letter took Milanovic to task on this refutal, but as Milanovic replies in a comment “the core problem that my post identified with your letter – that you labelled the UK’s future recognition of Palestine as being ‘contrary to international law.’ This created the impression – that was the gist of the whole letter, and that’s how it was portrayed in the media – that the UK would be acting illegally if it recognized Palestine. The basic argument of my post is that there would be no such illegality, and I don’t see how you’ve addressed it. In particular, whose rights, exactly, would the UK be breaching by recognizing Palestine?”)

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So what is the difference between saying the United Kingdom would be breaching international law (which the authors of the published letter were careful not to say) and the United Kingdom acting “contrary to the principles governing recognition of states in international law” (which the authors of the letter did say) ?

Are these angels malarking on a pinhead?

Is it a distinction without a difference?

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Well.

There is certainly enough of a distinction to deter the authors of the published letter from saying that the United Kingdom would be acting unlawfully or illegally.

And here we need to look at what the authors of the published letter are emphasising.

For them, the Montevideo Convention is central. They do not provide a date – it was signed in 1933 – nor do they state that the United Kingdom was not a signatory to the instrument.

It was an agreement of states in the Americas:

Article I of the English version of the convention provides:

“The State as a person of international law should possess the following qualifications : (a) a permanent population ; (b) a defined territory ; (c) government ; and (d) capacity to enter into relations with the other States.”

These are certainly four criteria for what would constitute a state – and, to borrow a word from the provision itself, they should be four things that a state *should* have, if it is allowed to do so.

But this is not an exhaustive list: there are other qualifications and features of a state, such as there being (a right to) self-determination.

And nor is it a explicitly a compulsory list: there is nothing in the Montevideo Convention which expressly binds non-parties.

Yet it is a list and a useful one – and it was adapted and used, for example, by the Badinter committee dealing with the question of states from the former Yugoslavia.

It is handy list of possible criteria which states may use when recognising other states.

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But that these are criteria in a 1933 convention which have been usefully applied elsewhere does not mean that they bind the United Kingdom in 2025.

At its highest it means that these are recognised as general principles that may apply – and if you read the published letter carefully, that is all the letter actually says: “principles governing recognition of states in international law”.

The word “principles” here is well-chosen. The authors of the published letter could have said here “rules” or “obligations”.

But they did not, because they could not.

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In essence, there is no rule or obligation of which the United Kingdom would be in breach if it were to recognise Palestine.

And this is not a surprise.

The recognition of a polity is, literally, a political question.

If the United Kingdom wants to recognise Palestine then it is not breaking any legal rule or obligation.

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Had the published letter merely told the Attorney General that in any recognition of Palestine by the United Kingdom, regard should be had to the Montevideo criteria of 1933, then nobody could have really objected.

But the letter then asserts that not only that these principles can apply, but their application can only mean that Palestine cannot be recognised.

Here the authors of the published letter go one or two steps too far.

There is, for example, no judicial determination or even advisory opinion they can rely on for that proposition. They have – in simple terms – no authority. It is a bare assertion.

As Milanovic notes:

“It can reasonably be argued that Palestine does not meet the Montevideo criteria, and that it does not currently exist as a state. But it can also reasonably be argued otherwise. This is not an obvious issue – this is why, for example, both the ICC and the ICJ have (so far) avoided pronouncing on Palestine’s statehood under general international law, one way or the other. Yet it is crystal clear that the Palestinian people have the right to establish their own state, by virtue of their right to self-determination, which has twice been authoritatively reaffirmed by the ICJ. Curiously, this is a right that the letter authors do not even mention.”

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Here there are three possible positions:

– the Montevideo criteria can apply to whether Palestine should be recognised as a state;

– the Montevideo criteria do apply, and no other criteria;

– the Montevideo criteria when applied mean that Palestine cannot be recognised as a state.

The published letter deftly uses the first (undeniable) position and makes it seem, by careful drafting, that it extends to the second and third positions.

It is a clever piece of legal writing: but it does not say what it seems to say.

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Stepping into the real world from the land of legal writing, over 140 countries have recognised Palestine as a state.

That is about three-quarters of the United Nations.

On a quick count, almost all of the states that actually signed the Montevideo Convention of 1933 – those formally bound by that definition of a state – recognise Palestine.

But according to the authors of the published letter, each and every one of these 140-or-so countries, the vast majority of states in the world, acted contrary to the principles of international law in recognising Palestine.

That is an extraordinary proposition.

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Nothing in the post above was written on a partisan basis.

My own liberal view is that a two-state approach, respecting the existence of both Israel and Palestine to exist, is the most likely way to address if not resolve the current dire situation.

And as I set out in Prospect, an equally unconvincing letter could be published the other way on this issue.

The intended import of the post above is instead twofold.

First, one should be wary of statements of law that rely on how “distinguished” the author/authors is/are. One of the great things about law is that it is curiously egalitarian – like many sciences and also computer coding – and so it does not really matter how eminent the pundit, it always comes down to substance.

(As a general rule, the more reliance which is placed on how “distinguished” a lawyer is making a point, the weaker the legal point being made.)

And second, one should also be wary of the trend for statements of law by lawyers to be used for publicity and campaigning.

The published letter was not an opinion or an advice for a client, and it was not a pleading or other submission for a court.

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And finally: nothing in the post above is an endorsement of the position of the United Kingdom.

The position of the United Kingdom on recognition of Palestine is confused.

This is the official statement:

“We are determined to protect the viability of the two-state solution, and so we will recognise the state of Palestine in September before UNGA; unless the Israeli government takes substantive steps to end the appalling situation in Gaza and commits to a long term sustainable peace, including through allowing the UN to restart without delay the supply of humanitarian support to the people of Gaza to end starvation, agreeing to a ceasefire, and making clear there will be no annexations in the West Bank.”

There is no logical or conceptual connection between the question about whether Palestine should be recognised and a ceasefire. It is thereby an irrelevant condition.

Either Palestine exists and should be recognised or Palestine does not exist and so cannot be recognised.

Palestine does not suddenly exist just because there is gunfire, and then suddenly not exist when the gunfire has ceased.

If the authors of the published letter put forward an unconvincing argument against recognition of Palestine, the government of the United Kingdom is hardly putting forward what can be called any argument at all.

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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 explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

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Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

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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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A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision

10th February 2024
This week Prospect posted something by me on the issue of a potential border poll in Northern Ireland.

Please click (and read!) here.

This post unpacks that Prospect post – a sort of “behind the scenes” perambulation of how that post came together – and a further discussion of the issues.

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The starting point is that a potential referendum in Northern Ireland has been in the news.

On one hand:

On the other hand:

The Sinn Fein quote was:

“What I firmly believe is – in this decade – we will have those referendums, and it’s my job and the job of people like me who believe in reunification to convince, to win hearts and minds and to convince people of that opportunity – part of which, by the way, will be really consolidating our relationship with Britain as our next door neighbour and good friend.”

Asked if she meant before 2030, Ms McDonald said “yes”.

The Prime Minister’s quote was:

Rishi Sunak has told Sinn Fein to focus on the “day to day” concerns of people in Northern Ireland rather than a referendum on Irish reunification.

The PM said “constitutional change” should not be a priority for the Irish nationalist party, after newly appointed first minister

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Now we will look at the relevant legislation – the Northern Ireland Act 1998.

There are two key provisions.

First, there is section 1, which should be read carefully:

(And legislative and literary purists will react pleasingly to that “But” at the start of the second sub-section.)

That section 1 needs to be seen in the context of, well, other sections 1s.

Here is section 1 of the Ireland Act 1949 – and look especially at sub-section1(2):

You will see at sub-section 1(2) what can be called the “consent” principle – though it would be for the then parliament of Northern Ireland to give that consent (which at the time would seem very unlikely).

By 1973 that parliament was suspended, and so the Northern Ireland Act 1973 switched the giving of consent to a majority of the people of Northern Ireland:

And as my Substack has set out at length before there had been such a border poll, just before the 1973 Act was passed.

The 1973 poll was heavily in favour of the union – and the nationalists largely boycotted the vote.

At the time the poll seemed pointless from a nationalist perspective, and it was also seen as a sop from the London government to the unionist majority.

However, sometimes, things change – and demographics change.

Those seeking the unification of the island of Ireland no longer see border polls as a necessarily unionist device.

Indeed, the roles are somewhat reversed: it is now the unionists that are wary of a border poll.

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Having set out that context, let us go back to the text of section 1 of the 1998 Act:

Here there is a declaration – and you will note similar wording was used in the 1949 and 1973 Acts. The use of a declaration is not new. And it really has to be a declaration (or affirmation) as it describes something as it stands, rather than providing for something new. Section 1 does not make Northern Ireland part of the United Kingdom – that status rests on other legal instruments.

The sub-section also repeats the requirement that consent is required for this declared status to change – and like the 1973 Act it then refers to a schedule to the Act.

But.

There is that second sub-section, beginning with a “But”.

And this is where it becomes interesting and departs substantially from previous legislation:

The word “shall” in that provision is highly significant.

For sub-section 2 creates an obligation. If the majority in such a poll supports unification, then the government of the United Kingdom has to bring forward the legislation that would make this so.

If you read carefully, however, you will note that the obligation only goes to putting legislation before parliament. It does not actually place an obligation on the government of the United Kingdom to ensure such legislation is passed. In this technical way, the supremacy of the Westminster parliament is maintained.

But if there was such a poll majority, it is difficult to see how the Westminster parliament would reject such legislation – though presumably some unionist and conservative MPs would oppose it, regardless of the “will of the people” on this one inconvenient occasion.

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So much for section 1 of the 1998 Act – for it is in the first schedule that the real excitement begins.

(Oh, for what it is worth, lawyers tend to call them sh-edules, not sk-edules when they are in legal documents, I do not know why.)

Here are the first two paragraphs of the schedule:

The two paragraphs are doing different things.

The first paragraph confers a discretion on the government of the United Kingdom (acting through the Secretary of State for Northern Ireland). The key word is “may”.

The Secretary of State may direct there to be a vote; or, then again, the Secretary of State may not do so. It is a choice.

On the face of it, it is an absolute discretion – the Secretary of State may direct as many such border polls as he or she would like. One poll a day, every day even.

But in invisible ink, so to speak, there are limits to be discretion that are implied by law.

The discretion has to be exercised in the public interest and for the purpose of section 1. And given it is part of a statutory scheme implementing the Good Friday Agreement, it would also be necessarily implicit that the discretion should be not be exercised in the selfish interests of the United Kingdom government in maintaining the union.

But those are very wide parameters, and the courts would not intervene if the paragraph 1 discretion is never exercised in favour of holding a border poll.

(If such a poll is held, however, and a majority is in favour of unification, that would mean section 1(2) applies and legislation would have to be brought forward.)

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Now let us look at the fascinating and significant second paragraph:

This is distinct to and separate from the discretion conferred in the first paragraph, for this paragraph imposes an obligation.

The government of the United Kingdom has to hold a border poll if the condition in that paragraph is met: the government of the United Kingdom cannot choose not to do so.

The condition is framed in wide terms and contains two elements, which I will call (A) and (B): the Secretary of State shall exercise the power under paragraph 1 if (A) at any time it appears likely to him [or her] that (B) a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

The first element (A) is about as wide as you can have as a ministerial discretion under public law (the law governing public bodies). This means a court will not intervene readily to gainsay what the Secretary of State considers to be the position.

But.

Element (B) limits that subjective discretion.

Consider the following: that there is, over a period of time, an accumulation of evidence that the nationalist parties are securing majorities both of the popular vote and of the seats on representative bodies, in successive elections, and especially for seats in the Assembly and the Westminster parliament. And that such support is not a blip but a sustained trend.

There will come a point – a tipping point – where it will be come impossible for a Secretary of State to plausibly maintain that it is unlikely that a majority would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

It would become literally incredible.

At that point, the so-called Wednesbury doctrine (named after this case which my Substack has examined before) will apply.

The Wednesbury rule is that, as a matter of law, it is not open for a public law decision-maker to make a decision so unreasonable that no reasonable public law decision-maker would make it.

A refusal by a Secretary of State to direct that a border poll take place in certain circumstances would be Wednesbury unreasonable.

And that would then make it potentially a matter for the courts.

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The courts will not want to deal with it.

The courts will view this as a political question.

And the two judgments in the McCord litigation (here and here), where an application was made to make the government of the United Kingdom publish (and thereby abide by) a policy on when it would call a border poll, show that judges really REALLY do not want to get involved.

But.

The judges may not get to duck out of it, as much as they would like to do so.

For that second paragraph was placed on a statutory basis deliberately, so that it could have effect in a certain situation.

Here we need to look at the Good Friday Agreement.

The parties to that agreement, including the governments of the United Kingdom and Ireland, agreed the following:

Section 1 and Schedule 1 of the 1998 Act are both express parts of the Good Friday Agreement.

And the United Kingdom undertook to place the provisions on the statute book as part of their obligations under the agreement.

The sentiments behind the provisions could have been put in a mere political declaration, or a recital, or something else without any (real) legal effect – but no. The other parties to the Good Friday Agreement required the United Kingdom to place these provisions into law, and the United Kingdom freely accepted that requirement.

The other parties were wise to do so.

For by placing the obligation into legislation, a legal backstop was created where, if – if – the point was eventually reached where there was simply an abundance of evidence that a majority supported the unification of the island of Ireland, the United Kingdom could not maintain an unreasonable refusal to hold a border poll.

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Of course, in that extreme scenario, the judges may still wish not to get involved – and it is unlikely that the courts would grant a so-called mandatory order requiring the Secretary of State to direct a border poll.

But there would be no reason why the court could not grant a declaration saying instead that a refusal would be Wednesbury unreasonable.

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Another ground on which the courts may intervene is if the second paragraph was used by the government of the United Kingdom to cynically hold a snap border poll hoping that they would win, so as to gain the protection of the stipulation that another such poll could not be held within seven years.

Such a ploy would be in bad faith, and for a collateral purpose, and this would mean that a court could quash such an order.

Wednesbury and bad faith are among the very widest parameters in the public law of the United Kingdom – and they only apply in exceptional cases. But they are there, and this means that paragraph 2 of the schedule is not a law-free zone – as much as politicians (and judges) may want it to be.

There will be circumstances where nationalists can and will apply to the courts to enforce a provision freely agreed to and legislated by the British state. And so the government of the United Kingdom cannot just refuse a border poll forever, regardless of what happens in Northern Ireland.

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Of course, the condition in paragraph 2 may never be met. It may well be that the evidence never becomes that overwhelming and stark, and that support for unification (like support for independence in Scotland) never solidifies into an ongoing, sustained majority.

But that a condition is not (easily) met does not make it any less of a condition at law. The government of the United Kingdom knows it is there, and the nationalist community knows it is there.

It is no longer an absolutely free choice by the government of the United Kingdom whether there is a border poll or not.

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Holding a border poll for Northern Ireland is essentially a political matter.

And in the real world, it is a matter that will undoubtedly be decided by politics, and not by courts.

Yet it is not a situation where the law is entirely absent. The 1998 Act sets a longstop where, if a certain condition is ever met, a border poll has to be held – even if the United Kingdom does not want to do so – and that a majority in that poll for unification has to be respected.

And this is a key and express part of the Good Friday Agreement, that carefully crafted (and extraordinary) document which has had so many long-term effects on our polity.

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Going back to the quotes at the top of this post:

The suggestion is that Sinn Fein believes they will be able to show a sustained majority for unification within ten years; while the British government wants the political majorities in Northern Ireland to signify other day-to-day things, unconnected with the unification question.

You can see why, for both, these are the lines-to-take.

An objective of the nationalists is to create a “majority” situation where it would be unreasonable for a border poll not to be held; while an objective of the British government is to have a situation where a Secretary of State in good faith can reasonably believe that no such majority (yet) exists.

But if and when a political decision is made for the poll to take place, there will be some regard to the ultimate legal position under the first schedule to the 1998 Act.

As always: law shapes policy and politics; and politics and policy shape law.

And the policy and politics that shaped the extraordinary and consequential Good Friday Agreement (and the 1998 Act) in turn continue to shape the policy and politics of the United Kingdom.

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What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

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Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

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You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

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Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

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Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

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Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

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I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate.  It would not have been relied upon had the government been actually serious about this policy.

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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

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Sovereignty, again

9th March 2023

In law and policy commentary – especially since 2016 – we go from the general to the particular, and from the particular to the general.

We swing constantly between the grandest constitutional concepts – the separation of powers, the rule of law, sovereignty – to the exact wording of particular clauses and other texts.

It really should not be this exciting, but it is.

Today we will look at sovereignty again.

And some of you will complain about who I am about to quote, but it is an example of a frame of mind which still has not gone away.

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Sovereignty is generally about the ability of states to decide things as they wish and to do things (or attempt to do things) as they want.

More exactly, it is about the autonomy, capacity and legal personality of states.

One general feature of sovereignty is therefore about the ability of states to enter into agreements with other states, or not.

Just as it is a general feature of adulthood to enter into various legal relationships, or not.

(And please note, the uses of “general[ly]” means, yes, there are exceptions, so no need to scroll down to list them in a comment.)

It is thereby an exercise of sovereignty to enter into treaties and to become a member of various international organisations.

That is what sovereign states do.

And they do it, in part, because they can.

As such, to say that a state being party to an international agreement is a negation of sovereignty is to fundamentally misunderstand what sovereignty means.

The very fact that the United Kingdom is a party to the United Nations shows that it is a sovereign state.

Indeed, one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations.

And membership of an organisation will generally confer rights and impose obligations.

If a state does not want to have those rights and obligations then it can leave, either by an agreed exit process (such as the once-famous Article 50 of the Treaty on European Union) or by treaty or even by denunciation.

One of the most telling passages in the story of Brexit was in a government white paper before departure:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

Membership of the European Union has “not always felt like” we had sovereignty.

This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.

But we had sovereignty all along.

We could have left the European Economic Community and then European Union at any point – though before the treaty of Lisbon (which introduced Article 50), it would have had to have been by treaty (as happened when Greenland left) or by denunciation.

And we could have, at any time, repealed the European Communities Act 1972 without asking any one’s permission.

What Farage and others mean by “sovereignty” is isolationism.

Their ideal is for the United Kingdom not to be bound by any unwanted international obligations, or indeed by any international obligations at all.

But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.

For that is the nature of international agreements.

Yes, we can – ultimately – always walk away.

And we should be careful which obligations we accept when we enter such agreements.

But such obligations are the essence of the dealings of a sovereign state.

And that sovereignty is always there, even when it does not feel like it.

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