The constitutional significance of what happened to the Prime Minister last week

10th February 2026

Members of parliament moved for a parliamentary committee to decide what is prejudicial to national security instead of the government

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Hurrah: now the King’s Evil Counsellor is deposed we shall be govern’d well.

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This is not really a political blog, at least not in the sense of party politics.

That [A] resigns or [B] loses support is often not of wider constitutional significance.

Not every political drama has constitutional significance.

But.

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What happened last week in parliament in respect of the Prime Minister and the disclosure of documents relating to his appointment of Lord Mandelson as Ambassador to the United States was constitutionally significant.

As I set out on Friday over at Prospect, the usual position is that everyone in our polity defers (or should defer) to the Prime Minister in respect of national security.

All a Prime Minister normally needs to do is utter this magic phrase, and the House of Commons hushes and High Court judges roll over. Even newspapers can go quiet.

The Prime Minister is normally seen as having special knowledge of, and a special insight into, what constitutes a matter of national security.

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Last week, however, the Prime Minister Keir Starmer tried to use this magic phrase – and it did not work.

He told members of parliament that the documents relating to the appointment of Mandelson would be released by the government, apart from those which the cabinet secretary deemed would prejudice national security and international relations.

He expected (perhaps) for members of parliament to nod along.

But…

…they did not.

He even resorted to saying that any mistrust amounted to an attack on the integrity of the cabinet secretary.

But members of parliament did not buy this desperate line.

The supposed magic words had been uttered, but there was no magic effect.

Members of parliament did not believe him.

Instead of casting a spell, there was a spell that had been broken.

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Members of parliament instead swiftly moved to make it that any decision to withhold materials on the basis of prejudice national security and international relations would be made by the Intelligence and Security Committee of Parliament (ISC).

The ISC is not a parliamentary committee in the same way as more familiar select committees, standing committees and all-party committees – it is a statutory creature and has a special legal nature.

But it is a parliamentary committee in the sense that it is a committee of parliamentarians.

And for members of parliament to insist that it is for a parliamentary committee, and not the cabinet, to decide on what constitutes prejudice to national security is an extraordinary development.

The government has effectively lost the confidence of the house of commons on a matter of national security.

Of course, there has not been a formal vote of confidence – but losing such a vote and losing the confidence of the house of commons are not the same thing.

For a prime minister to have lost the confidence of the house of commons means that it is (or should be) only a matter of time before he or she ceases to be prime minister.

And this is especially so for a prime minister who often boasts of his national security credentials as a former chief prosecutor of terrorists and so on.

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This significant development came about because the prime minister and the government were in a position of extreme political weakness.

This weakness was partly because of the functioning of two mechanisms of parliamentary accountability.

The first was Prime Minister’s Questions – normally irrelevant political theatre – but this time used well by the Leader of the Opposition Kemi Badenoch.

In a line of questions which was impressive both for their precise content and their sequencing, she placed Starmer in the position where he had to expressly admit that he had known at the time of the ambassadorial appointment that Mandelson had continued his relationship with Epstein after the latter’s convictions.

The second was that the opposition – and many government backbenchers – used a “humble address” motion (which if passed obliges the government to disclose documents) for the release of materials relating to the appointment.

The government could see that members of parliament were going to not support the cabinet-knows-best approach to which documents would not be released.

And so in this position of extreme weakness, the government accepted it would be the ISC to decide on what constituted prejudice to national security and international relations and not the government.

Parliamentarians would decide, though ministers would advise.

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The ISC has now published this (from a constitutional perspective) remarkable letter (which should be read in full).

The letter prescribes the process to be followed by the government in passing documents to the ISC.

It even tells the government that it should not seek to withhold entire documents when only a passage would be prejudicial.

This is heady stuff.

This is a shock to the system where ministers, officials and lawyers will leisurely withhold entire categories of documents on supposed national security grounds.

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This should not be underestimated as a constitutional event.

What is normally decided by one organ of the state has passed to another, at least for this matter.

And returning to the world of politics, we have a prime minister and government locked into a documented disclosure exercise which it cannot control.

This is a nightmare for ministers, officials and government lawyers.

Of course, a lot of this is down to the politics of the moment – the Prime Minister has long been in a weakening position and those opposed to him (inside and outside his party) exploited a particular moment of extreme weakness.

But it is also down to the functioning of two constitutional mechanisms of accountability – PMQs and humble addresses.

And what is now a nightmare for ministers, officials and government lawyers, is a sign of a functioning constitution.

(Though, of course, the appointment of Mandelson in the first place was perhaps a sign of constitutional as well as political dysfunction.)

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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 Mandelson’s emails – how to think about disclosed documentary evidence

3rd February 2026

You probably have seen the disclosures of the emails purportedly from Lord Mandelson from when he was business secretary.

On the face of it, these emails raise serious questions which warrant further enquiry and investigation.

(And if you want speculation about legal liability this really is not the blog for you.)

There are also questions we can ask of this documentary evidence, and observations that we can perhaps make.

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First of all: no documentary evidence exists in a vacuum.

Every text has, well, a context.

(Think about the words text and context.)

The Epstein files are not a disinterested archive.

The documents were collected for a purpose and were stored for a purpose.

According to the relevant legislation, the disclosed documents comprise “all unclassified records, documents, communications, and investigative materials in DOJ’s possession that relate to the investigation and prosecution of Jeffrey Epstein”.

So one question that can be asked of the documents disclosed so far is: do they explain the prosecutorial decisions (and also the defense and any judicial decisions) in respect of the “the investigation and prosecution of Jeffrey Epstein”?

If there is a gap between what has been disclosed and what these documents need to explain, then one can get a sense of what documents have not (yet) been disclosed (whether for good reasons or bad).

Of each document one should ask: how does this document relate to “the investigation and prosecution of Jeffrey Epstein”?

For if the document does not relate to the that investigation and prosecution, then it should not have been collected, and it would not have been disclosed.

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From a cynical perspective, there is always corruption in and around government.

What seems to have been revealed with these United Kingdom disclosures emails is clumsiness and arrogance.

A less clumsy and less arrogant approach would have meant such emails never existing.

Westminster and Whitehall is full of leaks: off the record briefings and so on.

There is complex and thriving entire unofficial information economy in SW1.

The sort of state information seemingly forwarded by Mandelson to Epstein is similar to documents which are routinely forwarded or briefed to journalists and advisers and lobbyists and researchers and think tanks.

“Sources close to….”

“Friends of…”

“Whitehall insiders say…”

Such unauthorised communications and disclosure are rife in Westminster and Whitehall.

What Lord Mandelson appears to have done is an especially significant breach involving highly market sensitive information.

But if so, its significance is really of scale, and not of type.

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There appears to be many documents covered by the Epstein files disclosure legislation that, contrary to the terms of the statute, have not been disclosed.

No government discloses adverse information easily or voluntarily, or indeed often at all.

Especially if, as with the Trump administration, there is a generally casual and indeed defiant attitude towards mandatory legislation and court orders.

Maybe there will inadvertent disclosure of documents that will seriously damage the Trump presidency, if such documents actually exist.

But it is difficult to believe that the (current) federal government would knowingly disclose such documents, regardless of what the courts and Congress say.

Little or nothing, however, can stop a government disclosing documents that adversely affect others.

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Every document has a context, and every disclosure also has a context.

And so the questions to always ask are:

– what does the document relate to, and what does it not relate to?

and

– why was this document disclosed – now and by whom and for what purpose?

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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.

Thinking about what has happened in Minnesota

27th January 2026

For the last few weeks those of us outside of Minnesota have had glimpses via social media of the street violence and other thuggery of federal government agents.

As this blog has said before, it is as if we are Christopher Isherwood observing the violence and other thuggery in the streets of early 1930s Berlin. There is what we could see – but there was also what that indicated about what we could not see, and about what may happen next.

As it happens, two gross incidents were actually caught on camera and footage quickly circulated on social media: the summary executions of Renée Good and Alex Pretti.

The shared footage showed both killings to be murders, notwithstanding the lies immediately asserted by federal government figures and their supporters.

Federal government figures and their supporters wanted people to disbelieve what they could see, and to believe what they were told instead.

It was a sheer test of reality: you had to choose between the horrific obvious truth or the comforting official untruth.

And it was not obvious that many would pass this test.

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The lies told by federal government figures and their supporters about the murders of Good and Pretti had certain features.

One feature was the confidence that the lies would be adopted by others, even if not believed – that the lies would be sufficient for subservient mainstream media outlets to “both sides” the issue.

To its disgrace, the British Broadcasting Corporation even led with “analysis” slop about “sharply contradicted narratives”.

(Source)

The federal government figures and their supporters promoting these lies had every reason to believe this tactic would work, for it has worked so many times before.

But this time the lies did not work

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One reason the lies did not work was because of another feature of those lies.

The lies come from a certain type of superficial politics.

For example, federal government figures and their supporters talk about “free speech” whilst using the law in various ways to silence and punish unwanted speech; they talk about “non-intervention” but clap and cheer at casual use of lethal force abroad; they talk about “free trade” and “free enterprise” while nodding along with erratic tariff setting; and so on.

Fine-sounding words and phrases which appear to be about first principles are in fact meaningless slogans.

These people simply do not think-through what they are saying – or they don’t care about what they are saying, which is much the same.

And this is where they here came a cropper, to use a British term.

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One immediate impulse of federal government figures and their supporters in respect of the killing of Alex Pretti was to blame the fact he had a legally possessed gun.

How they must have been so happy at coming up with this line, to combat the concerns of those horrified at the murder.

But so eager were they to “own the libs” they forgot about those who own the guns.

Their snap response was a contradiction of the rights which many in the United States believe to be protected by the second amendment – often small-c conservatives and Republican party supporters.

The witless federal government figures and their supporters did not realise the import of what they were saying in the rush to defend the federal agents who murdered Alex Pretti.

Often federal government figures and their supporters get away with a superficial approach to political principles – but here they tripped up very badly in the eyes of their natural supporters.

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The lies could not hold.

News reports began to mount of Republican politicians who would not be satisfied with what they were being told to believe.

The camera footage was plain; the lies made no sense.

Something seemed to snap.

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One theme of this blog and my posts elsewhere is that policing a large population is not easy.

I was brought up in the 1970s and 1980s Birmingham of the notorious West Midlands Serious Crime Squad:

And also during the Troubles, where the Royal Ulster Constabulary and other organs of the British state had little or no legitimacy or support with a significant portion of the people of the north of Ireland/Northern Ireland.

Policing and law enforcement generally requires the consent or at least the forbearance/acquiescence of the community.

Even the hateful and cruel Gestapo and the Stasi derived part of their power from the support – even enthusiasm – of many in their respective communities.

But one thing police or law enforcement agents should avoid is actively alienating the policed.

Casual and provocative brutality at scale is not a sustainable model for any police force or law enforcement agency.

It prompts counter networks of opposition and a loss of legitimacy among neutrals and the usually deferent.

And as in the north of Ireland/Northern Ireland, policing simply breaks down for significant portions of the local population.

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There now seems to be de-escalation in Minnesota.

The local head of the border force has been demoted and moved elsewhere.

The president’s spokesperson is making conciliatory noises.

The tide seems to have turned, leaving various fools and knaves exposed on the beach.

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If there is de-escalation then that will be a significant set back for the president and his adviser Stephen Miller in seeking to contrive a pretext for invoking the Insurrection Act.

As I set out here this is their obvious objective – but they also need to have a sound enough basis to survive legal challenge.

It would seem that they thought that fomenting disorder by heavy-handed use of the National Guard and now ICE/Border Patrol would create the circumstances where they could plausibly invoke the Insurrection Act.

But the thing about disorder is that it is, well, disorderly.

By definition, disorder does not go to plan.

And the disorder fomented in Minnesota has resulted in it being now harder for Miller and others to invoke the Insurrection Act: dishonesty has been exposed, natural supporters upset.

The cause of disorder is seen widely as the government itself, and not supposed “insurrectionists”.

Wise politicians avoid instability, as it rarely works out as instigators of instability intend.

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Just as this eventful month of January has seen something seemingly snap in international affairs, with how Trump was forced to climb down over Greenland and the prime minister of Canada setting out a coherent alternative vision to being bullied by the United States, something seems to have snapped internally in the United States too.

Ruptures inside, and out.

Of course, federal government figures and their supporters are still there, and they can find new ways to misuse and abuse power.

They will still seek to swagger and to intimidate.

Indeed, things may even get worse.

But both at home and abroad there has been a loss of deference to their aggression and dishonesty.

And that deference will be difficult for federal government figures and their supporters to regain easily.

Federal government figures and their supporters should remember that hubris is often followed by some nemesis or other.

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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.

My posts this week

24th January 2026

A busy week for law and policy commentators.

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The new ICE Age (Prospect)

prospectmagazine.co.uk/ideas/l

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Why Trump has not yet invoked Insurrection Act (NS)

newstatesman.com/international

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Why Hillsborough law families are right (Prospect)

prospectmagazine.co.uk/ideas/l

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Trump – neither rhyme nor reason
(Own blog)

https://theemptycity.com/2026/01/neither-rhyme-nor-reason-how-are-currently-in-a-situation-where-precedents-and-norms-and-and-laws-and-rules-and-theories-offer-no-assistance/

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When the United Kingdom annexed a north Atlantic island
(Own blog)

https://theemptycity.com/2026/01/when-the-united-kingdom-annexed-a-north-atlantic-island/

When the United Kingdom annexed a north Atlantic island

22nd January 2026

The 1955 story of what has been described as the last expansion of the British Empire.

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This is the story of how a powerful nation annexed an island in the north Atlantic.

The powerful nation was the United Kingdom, and the year was 1955.

The annexation was ordered by the Queen:

On arrival at […]  you will effect a landing and hoist the Union flag on whatever spot appears most suitable or practicable and you will then take possession of the island on our behalf.

A landing was duly effected, and a Union flag duly hoisted by a Royal Navy Lieutenant Commander.

That Lieutenant Commander declared:

In the name of Her Majesty Queen Elizabeth the Second, I hereby take possession of this Island of […]

A plaque was placed on the island:

BY AUTHORITY OF HER MAJESTY QUEEN ELIZABETH THE SECOND, BY THE GRACE OF GOD OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND OF HER OTHER REALMS AND TERRITORIES, QUEEN, HEAD OF THE COMMONWEALTH, DEFENDER OF THE FAITH, ETC. ETC. ETC. AND IN ACCORDANCE WITH HER MAJESTY’S INSTRUCTIONS DATED 14. 9. 55. A LANDING WAS EFFECTED ON THIS DAY UPON THE ISLAND OF […] FROM H.M.S. VIDAL.

THE UNION FLAG WAS HOISTED AND POSSESSION OF THE ISLAND WAS TAKEN IN THE NAME OF HER MAJESTY. [Signed] R H Connell, CAPTAIN, H.M.S. VIDAL, 18 SEPTEMBER 1955

The possession taken of this island “in the name of Her Majesty” has been described as the last territorial expansion of the British Empire.

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So what was this Atlantic island that the Queen ordered to be possessed and which was then taken with all this pomp and circumstance?

The island – more an islet really – was Rockall.

Rockall.

Rockall.

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One may think that a small uninhabitable granite island – sorry, islet – really was not worth all this elaborate ceremony.

One may think that “THE UNION FLAG WAS HOISTED AND POSSESSION OF THE ISLAND WAS TAKEN IN THE NAME OF HER MAJESTY” and so on was rather absurd.

Some at the time certainly thought so.

Here are the immortal Flanders and Swan:

The fleet set sail for Rockall,
Rockall,
Rockall,
To free the isle of Rockall,
From fear of foreign foe.
We sped across the planet,
To find this lump of granite,
One rather startled Gannet;
In fact, we found Rockall.

So, praise the brave Bell-bottoms,
Bottoms,
Bottoms,
Who saw Britannia’s Peril,
And answered to her call,
Though we’re thrown out of Malta,
Though Spain should take Gibraltar,
Why should we flinch or falter,
When England’s got Rockall.

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The story then gets even more absurd – at least from a constitutional perspective.

For the United Kingdom government then had to decide how to legally treat this acquisition.

And some clever person decided that this islet midway between Iceland and Ireland would be…

…part of Scotland.

Not only would it be treated as part of Scotland, it would be treated as if there was nothing distinctive about it at all.

Just another part of Scotland.

Here is the splendid Island of Rockall Act 1972:

The granite islet, by the legal magic of primary legislation, “shall form part of the District of Harris in the County of Inverness, and the law of Scotland shall apply accordingly.”

Later, by the mundane paragraph 202 of schedule 27 to the Local Government (Scotland) Act 1973 Rockall was shunted from Harris to form part the Western Isles.

It was as if it were an utterly normal local government boundary reorganisation.

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The effect of this legal conjuring is that, from a legal perspective, Rockall is supposedly as much of the United Kingdom as any other Scottish island.

When Greenpeace landed there for a protest in 1997, a Foreign Office spokesperson is quoted as saying:

Rockall is British territory. It is part of Scotland and anyone is free to go there and can stay as long as they please.

And a spokesperson for the Western Isles council said:

There is no obvious reason why we would feel obliged to interfere in what is happening. We have no powers to forcibly remove them and they do have rights to be there

Glorious stuff.

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Behind all this legal and constitutional silliness, however, was some hard policy seriousness.

In 2012 the Foreign Office said:

The UK claims a 12 nautical mile territorial sea around Rockall, which merges with a 200 nautical mile Extended Fishery Zone, 200 nm continental shelf and other zones, draw from baselines on the west coast of the Western Islands, off the mainland coast of Scotland.

And so the United Kingdom insists on licences for Irish fishers and blocks those without a licence:

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And of course, it is not just fish.

There is the question of oil:

In 2009 the United Kingdom put in a submission to the United Nations for what one news report described as “thousands of square miles of the seabed around the Atlantic outcrop of Rockall”.

This claim is not accepted by Ireland or Iceland.

And against the United Kingdom on this is the 1982 United Nations Convention on the Law of the Sea, which provides (emphasis added):

Article 121

Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

As it stands, the UN Commission on the Limits of the Continental Shelf still has not made a final determination on the United Kingdom’s submission.

Like Rockall itself, the United Kingdom’s formal claim to oil rights seems to be in the middle of nowhere.

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Another north Atlantic island, and the claim of a powerful nation, has been in the news recently.

Perhaps one way of resolving President Trump’s claim to Greenland would be to give him Rockall instead.

And he can take possession of it in, say, the same way Napoleon took possession of St Helena.

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Why should we flinch or falter,
When Trump has got Rockall.

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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.

“…neither rhyme nor reason” – how we are currently in a situation where precedents and norms and laws and rules and theories offer no assistance.

20th January 2026

 

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“…neither rhyme nor reason.”

– Comedy of Errors, William Shakespeare

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What, if anything, is Trumpism?

There is not really any rhyme: there is no consistency or predictability in what he does. His actions in situation [A] will tell you little or nothing about what he may do in situation [B].

There are, at a general level, certain themes: he is indifferent to norms, he is cunning, he likes leverage, he will renege on deals, he has a sense for ratings, he will often back down. But these are tactics and improvisations: they say little or nothing about which subjects he will engage with next.

And nor is there is much reason: little or nothing he does makes sense, at least for the reasons he gives – or for the reasons his partisan supporters come up with to justify his actions and inactions.

It would be fair to say there is neither rhyme nor reason.

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From time to time, some opponents come up with a grand theory.

“Watch the money!” and “his billionaire pals!” for example – but often Trump and the super-wealthy would financially benefit more from other courses of action. His erratic antics with tariffs make no sense from the perspective of capitalistic self interest.

“Distraction from the Epstein Files!” is now falling flat while Trump and his circle are confident that they can simply ignore explicit legislation. Those documents are not easily going to be released against the will of Trump, whatever the huffing and puffing.

Perhaps his desire to keep out of courts and prison may be his primal motivating factor, but when he was out of office between his presidencies he was deftly able to avoid any incarceration even when he was found criminally liable.

The only thing really which he wants is that most basic of all political objects: power.

But other than that fundamental political desire, there is no underlying theory, still less an ideology.

As Anne Applebaum wrote yesterday (broken up into smaller paragraphs):

For the past year, American allies around the world have tried very hard to find a theory that explains Trump’s behavior.

Isolationism, neo-imperialism, and patrimonialism are all words that have been thrown around.

But in the end, the president himself defeats all attempts to describe a “Trump doctrine.”

He is locked into a world of his own, determined to “win” every encounter, whether in an imaginary competition for the Nobel Peace Prize or a protest from the mother of small children objecting to his masked, armed paramilitary in Minneapolis.

These contests matter more to him than any long-term strategy.

And of course, the need to appear victorious matters much more than Americans’ prosperity and well-being.

We maybe need to look elsewhere than political theory to understand what is going on here: perhaps psychology or anthropology, perhaps proverbs and fables, perhaps cautionary fairy tales.

We maybe need to look at the various ways our species have dealt with understanding those situations where a ruler is mad and bad.

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“There are more things in Heaven and Earth, Horatio, than are dreamt of in your philosophy.”

– Hamlet, William Shakespeare

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Law and constitutionalism has little chance in the face of this ongoing irrationalism.

Pointing to the articles of the constitution of the United States, or of the charter of the United Nations, is nothing more other than quaint.

One may as well hold up a blank piece of paper and announce that this will stop him.

There is no formal solution to this problem: no text, codified or otherwise.

This will only stop if – if – those individuals who have any residual power step in and impose their wills against his.

And that still seems unlikely.

Those around him appear to be in a trance that has affected the whole of his “court” – a spell as deadly as any devised by any fairy tale witch upon any group of courtiers.

A spell which seems to be absolutely unbreakable.

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And now Trump has destroyed – or at least seems to have destroyed – Atlanticism and the NATO alliance.

Perhaps both will recover: that this is only some severe but not permanent jolt.

But when overnight Trump posts things like the following:

Or sends official diplomatic letters such as:

…we are not in situation from which we can speedily recover.

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“We are indeed drifting into the arena of the unwell.

Making an enemy of our own future.”

– Withnail and I

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One day, perhaps, all this will be in the past.

One day we may know how this story ends.

Indeed, what happens next will be deemed by a certain type of historian as somehow inevitable – even though nobody at this moment can predict it with any certainty.

But as it stands: we are currently in a situation where there is neither rhyme nor reason – where precedents and norms and laws and rules and theories offer no assistance.

We are trapped in a story where there is nothing to tell us how this story ends.

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“I have supped full with horrors.”

– Macbeth, William Shakespeare.

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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.

 

Trump v BBC – a guide to the case

13th January 2026

This resource page sets out the key developments in the case, with links, and it will be updated from time-to-time

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This post sets out the key developments in the case of President Donald Trump vs the British Broadcasting Corporation. It is a copy of the post on Substack.

The intention is to update it from time-to-time. New additions will be marked **.

Please note that I am not an American lawyer and I am thereby open to corrections of terminology and substance about the United States litigation.

 

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Other pages to keep an eye on are:

The online court docket

A Wikipedia page on the original BBC bias allegations

The United Kingdom parliament Culture Media and Sport select committee (CMS Committee) news page

 

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November 2024 – the original broadcast **

The relevant Panorama programme was broadcast on 7 November 2024 **, a week before the presidential election.

The BBC page for the programme is here.

The page shows the following information about the broadcasts:

There is no direct evidence that anyone in the United States saw the programme when broadcast and BBC iPlayer is not formally available to United States viewers. (Yes, we all know about VPNs etc.)

The full programme is not (properly) currently available, but the following shows the spliced footage at the centre of the case:

 

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November 2025 – the leaked Prescott memorandum

The next development is one year later **, with a Telegraph newspaper report about the leak/disclosure of a memorandum written by Michael Prescott, a former external advisor to the BBC’s Editorial Guidelines and Standards Committee (EGSC).

The memorandum appears undated, but it was considered at a meeting of the BBC EGSC on 17 October 2025, and it appears Prescott raised his concerns on the programme internally within the BBC in or before May 2025.

A copy of the memorandum can be found as an appendix to this later BBC letter to the CMS select committee.

In respect of the Panorama footage, the memorandum stated:

 

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November 2025 – the UK parliament takes an interest

Things then move quickly.

The UK parliament’s CMS Committee write to the BBC chair on 4 November 2025.

The letter is here.

It states:

The following day the CMS Committee also announces it will take evidence.

On 10 November 2025 the chair of the BBC responds, setting out the BBC position and appending the Prescott memorandum.

 

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November 2025 – the Trump legal letter

On 9 November 2025 – the day before the BBC respond to the CMS Committee – the BBC receive a letter before action from Trump’s lawyer.

The letter is here and it states:

My initial commentary on the letter is here – and the letter I suggested the BBC could send back is here.

 

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November 2025 – resignations at the BBC

The same day as the legal letter, the BBC director general and CEO of news both resign.

Their resignation letters are here. The Panorama programme is mentioned only once, in the CEO of news’s letter.

The departing director general does not mention the Panorama programme at all in his letter and he attributes his departure to other things.

Two days later the CMS Committee widen the scope of the evidence they are seeking.

 

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December 2025 – the BBC apologise – but do not offer damages

On 13 December 2025 the BBC do two things.

First, they issue a statement:

Second, treating it any other complaint with validity, this is published on their corrections and clarifications page:

The BBC itself reports these developments under this headline:

We do not have access to the copies of the letters sent by the BBC directly to President Trump and to his lawyers.

But the BBC itself reported the following:

My posts on these developments:

Why the BBC is right not to pay damages to Trump

The BBC is right not to pay damages to Trump (New Statesman)

 

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November 2025 – the FCC’s odd intervention

Next, on 19 November 2025, is an odd intervention by the United States Federal Communications Commission (FCC) requesting information from the BBC on the extent of any broadcast or publication of the programme in the United States. The letter is here.

My post on this eccentric intervention, suggesting that it indicated evidential problems for Trump and his lawyers, is here.

There seems to be no trace of a formal response by the BBC.

 

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November 2025 – A parliamentary witness session

On 24 November 2025 the CMS Select Committee interview various witnesses including the chair of the BBC and Prescott. The transcript is here.

Follow-on correspondence between the committee and the BBC is here and here.

 

*

 

December 2025 – Trump suggests AI is to blame

On 15 December 2025 President Donald Trump says: “I’m suing the BBC for putting words in my mouth… I guess they used AI or something.”

AI however seems to be not part of the case brought by his lawyers.

 

*

December 2025 – Trump files his complaint

Also on 15 December 2025 Trump and his lawyers file their 33-page legal complaint.

My posts on this filing:

A guided tour of President Trump’s 33-page, $5 billion lawsuit against the British Broadcasting Corporation 

Donald Trump v the British Broadcasting Corporation: the battle begins The president filed a claim this week more about exerting leverage than legal niceties (Prospect)

 

*

 

December 2025 – the UK parliament seem to wrap up their investigation

A few days later on 19 December 2025 the CMS Committee appears to being its investigation to an end, welcoming proposed reforms:

The BBC, in turn, publish those proposals and other documents on the Prescott memorandum.

 

*

 

January 2026 – The BBC file their first motion, for a stay

On 12 January 2026 the BBC file a motion to stay discovery of evidence pending a forthcoming motion to dismiss.

 

[To be updated.]

 

** UPDATES

13 January 2026 – date of Panorama programme corrected and consequential changes

 

Notes on gangster states: why legitimacy matters when the state has a monopoly on coercive and lethal force.

12th January 2026

One priority for a modern state – perhaps the highest priority – is for it to keep its citizens safe from harm.

And within that priority is the need for the state to to keep its citizens safe from harm inflicted by the state itself.

A modern state has – or should have – a monopoly on legitimate coercive and indeed lethal force.

By “legitimate” is meant that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

So what happens when this breaks down?

What happens when the it is the state that is inflicting injury and death on its own citizens – or on people in its care?

And what happens when that coercive and lethal force does not appear to have a legal basis and/or is not in accordance with legal rules and/or is sanctioned by those with no accountability and/or is not capable of independent judicial review?

That is: what happens, for any or all these reasons, the use of coercive and lethal use of force does not seem to have any legitimacy?

What happens when the only justification for the use of coercive and lethal use of force – or excuse or pretext – is that might is right?

Well, among other things, you have a fundamental failure in the functioning of a modern state.

For the key word here is “legitimacy”.

Anybody can (seek to) use coercive and lethal force – and many will get away with it.

And if that is possible, then you have a gangster state, an outlaw state, a pirate state – where anything goes by those who can use coercive and lethal force and be protected from any legal or political consequences.

Some may like the idea of such a state – some may read science fiction or fantasy fiction where there are cities or entire societies where might is right.

Or when may look at various places – now and throughout history – where any sense of a legitimate central order has broken down. And what one will often see are massacres and gangsterism.

That is why there is a quid pro quo – the state gets to have a monopoly on the use of coercive and lethal force, in return for that coercive and lethal force being used legitimately.

That is that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

*

Now looking at the United States, there appears to be the free use of coercive and lethal force by the federal agency ICE (Immigration and Customs Enforcement).

Last week Renee Nicole Good was killed by ICE in circumstances that seem to have been murder: a state execution of an innocent person on the streets for no good reason.

At the start of that day three children had a mother and at the end of that day they did not, just because an ICE agent decided to shoot their mother three times in the face.

I have written about this over at Prospect in an article entitled Death in Minnesota – please click here to read it.

Fatalities happen, police shootings of innocent people happen – but what was especially striking about this killing was the response of the federal government and its supporters.

For want of a better word: they celebrated the killing.

The woman somehow deserved it because she was dubbed “domestic terrorist”.

*

Now turning back to the general issue of legitimacy, we can see that this use of lethal (and not only coercive) force appears from from any of those elements which can (in limited circumstances) render it legitimate.

The extra-judicial execution of Renee Nicole Good seems not to have a legal basis, it was not in accordance with legal rules, was sanctioned (even implicitly) by those who seek to evade accountability, and it may not be capable of review by an independent court.

The federal state is resisting working with the local police.

It looks as if the state is confident it can get away with it.

*

But.

The cost of the state getting away with it will be further diminution of the legitimacy of the state having a monopoly of coercive and legal power.

Yes, as a matter of realpolitik, the state can seemingly do as it wishes.

Yet in the medium term, legitimacy matters.

A society is not easy to govern unless there is at least acceptance of the powers of the police and the military: sheer repression is expensive and often unsustainable.

That is why the wise tyrant hides behind a veneer of legalism and constitutionality.

And that is also why gangster states rarely last very long.

***

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We are Christopher Isherwood, watching the scenes in the Berlin street below from our apartment window above.

8th January 2026

Watching from afar further shifts in a worsening polity

The Berlin novels and notebooks of Christopher Isherwood from the early 1930s contain fascinating characters – even though the apparent real-life inspirations for the likes of Sally Bowles (Jean Ross) and Arthur Norris (Gerald Hamilton) were somewhat different from their fictional counterparts.

But the most fascinating – and complex – creations in those works were the narrators – sometimes “Christopher Isherwood” (in inverted commas), sometimes William Bradshaw.

Do not be taken in by the deft misdirections of the narrator:

“I am a camera with its shutter open, quite passive, recording, not thinking.”

The narrator is not any passive camera, though he wants you to think so.

(For, as always, Isherwood is very charming.)

He is instead skilfully writing about difficult subjects – including the visible slide to Nazism and barbarity all around him – while making you feel you are working these things out for yourself from the details he provides.

He says he is recording, not thinking – but he is very much making you think.

*

Like Isherwood – or “Isherwood” – walking the Berlin streets or looking down from his apartment window, we all – via social media and mobile phone footage – can now have glimpses of an ever-worsening situation in the United States (and also elsewhere).

And again like those reading his narrative, we can put two and two together and realise what is going on in what we don’t glimpse – which is not reported on social (or mainstream) media or recorded on mobile devices.

What happened yesterday to a woman in Minnesota was horrific – and yet we know that it cannot be unique. One can tell that the distinctive quality of this incident is that it was caught on camera when many others are not. There is no reason to believe it was a one-off.

As such anyone watching can tell what is happening off-camera – but, as with Isherwood and others in the early 1930s, there is very little which we can do (especially from the other side of the Atlantic).

(And, which is a fair point, the well-documented record of the United Kingdom state in killing and torturing people in Northern Ireland, Kenya, Iraq and Afghanistan confers on us no moral superiority.)

*

No slide towards barbarity and Fascism is inevitable: even in the 1930s some countries were able to steer their polities in a different direction. Little or nothing is bound to happen in human affairs. Things can change for better, and sometimes do.

But nonetheless the sense of dread and doom that must have been a feature of the early 1930s is sometimes inescapable.

The evidence from our virtual apartment window does not point in an encouraging direction.

***

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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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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.

*

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.”

*

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

*

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.

*

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.

*

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.

*

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.

*

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.

***

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.