The Fearless Scholar – A blog to celebrate and encourage fearless scholarship. Guest contributions welcome: if you want to offer a radical, frank or unexpected take on a legal or political issue (of the day), please get in touch.

The US Supreme Court Decision on Tariffs: Bad News from a WTO Perspective

Michail Risvas, 30 March 2026 8 mins read

On 20 February 2026, the US Supreme Court held in Learning Resources Inc et al v Trump et al that the International Emergency Economic Powers Act 1977 (IEEPA) does not authorise the President to impose tariffs, as he had done on ‘Liberation Day’. Although the decision of the Supreme Court appeared to provide a check on the President’s powers, its practical consequences were bound to be limited. However, the judges’ reasoning raises much wider questions about their skeptical perspective on international trade law.

As correctly recognised by commentators as well as Justice Kavanaugh’s dissent, ‘the decision might not substantially constrain a President’s ability to order tariffs going forward’, given that numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case.’ Indeed, immediately following the ruling, the Trump Administration imposed a 10 per cent tariff under the Trade Act 1974 (s122) and initiated investigations into unfair trade practices by foreign countries under Section 301, thereby underscoring the limited practical impact of excluding IEEPA as a legal basis. Given the limited practical effect of the Supreme Court judgment on international trade, it is worth examining the symbolic significance of the decision for international trade law.

The IEEPA gives the President broad authority to regulate and block a wide range of international transactions in response to national emergencies:

‘investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.’ (emphasis added)

All six judges of the majority rejected the President’s reading of the IEEPA under ordinary principles of statutory construction that IEEPA’s grant of authority to ‘regulate… importation’ of property during a declared national emergency is broad enough to include the power to impose tariffs (that is duties on imports). Three of them, Justices Kagan, Sotomayor, and Jackson, – all appointed by democrat presidents – also relied on the ‘Major Questions Doctrine’ to bolster their conclusion. Under the doctrine, Congress must speak clearly if it wishes to assign to the Executive Branch decisions of vast economic and political significance.

The three dissenting judges, Justices Thomas, Alito, and Kavanaugh, who are amongst the most conservative members of the Supreme Court, held that the IEEPA included and delegated the power to impose tariffs.

The focus here will be on the disagreement between the majority and minority on whether IEEPA’s regulation of imports (or ‘importation’ in the Act) includes the power to impose tariffs from an international economic law perspective. However, the present analysis is not concerned with the issue of whether the Supreme Court was in fact required to consider international law. The conditions under which US courts engage with international law are limited (note, for example the Charming Betsy canon) and reflect a jurisprudence that ties the internalisation of international law to Congressional intent – in contrast the more expansive approach of the Court of Justice of the European Union (De Búrca (2015) at p. 1005).

An International Economic Law perspective on trade and tariffs in the Supreme Court decision

As a matter of international trade law, there are two important points in the majority’s reasoning. First, for the majority the concept of ‘regulation’ does not include tariffs, and this was not only a matter of statutory interpretation and Congressional practice but also a matter of common understanding. For example, Justice Kagan held that ‘the meaning of “regulate,” both in common parlance and as Congress uses the word, does not encompass taxing.’ By contrast, Justice Kavanaugh in his dissent emphasised ‘the dictionary definitions and the traditional understanding of tariffs as a tool to regulate foreign imports.’

Second and interrelated, Justice Roberts (who wrote the opinion of the Court) interprets tariffs as ‘very clear[ly]… a branch of the taxing power,’ ‘different in kind, not degree’ from regulatory tools, and thus outside the spectrum of authorities to ‘regulate’ trade. Again, Justice Kavanaugh disagreed characterising tariffs as a lesser form of trade regulation. He explains that

‘[t]he plaintiffs and the Court acknowledge that IEEPA authorizes the President to impose quotas or embargoes on foreign imports—meaning that a President could completely block some or all imports. But they say that IEEPA does not authorize the President to employ the lesser power of tariffs, which simply condition imports on a payment. As they interpret the statute, the President could, for example, block all imports from China but cannot order even a $1 tariff on goods imported from China.’

These disagreements reflect a deeper divergence between domestic constitutional law and what the imperative of the separation of powers requires. Notably, it is the majority’s reasoning that has been subject to criticism under doctrinal domestic law. For instance, Chad Squitieri has argued that ‘[t]o ignore that the power to regulate importation has traditionally included the power to impose tariffs, and to instead shift attention to whether the statute delegates a separate taxation power, is to miss the point.’ That point is that tariffs can and do regulate, quite regardless of whether they also raise revenue.

For present purposes, the focus is on how the Supreme Court majority’s understanding of tariffs sits uneasily with established WTO law and practice and, more broadly, international economic law doctrine. First, from an international economic law perspective, tariffs fall within the scope of trade ‘regulation.’ For example, Article XXIV of the General Agreement on Tariffs and Trade (GATT) (both in the 1947 and the 1994 versions) refers to ‘tariffs or other regulations of commerce” and “duties or other regulations of commerce’ (emphasis added). This language makes clear that tariffs are not conceived as external to ‘regulation’ but rather as one of its central expressions.

Second, in the context of the WTO, tariffs not only constitute the paradigmatic but also the preferred regulatory tool in matters of international trade, as opposed to more restrictive regulatory measures such as quantitative restrictions which are prohibited. A WTO Panel in Turkey – Textiles emphasized that ‘[t]he prohibition against quantitative restrictions is a reflection that tariffs are GATT’s border protection “of choice”. Quantitative restrictions impose absolute limits on imports, while tariffs do not’ [9.63].

Quoting this the Appellate Body in India – Additional Import Duties also held that ‘tariffs are legitimate instruments to accomplish certain trade policy or other objectives such as to generate fiscal revenue. Indeed, under the GATT 1994, they are the preferred trade policy instrument, whereas quantitative restrictions are in principle prohibited’ [159] (emphasis added).

Accordingly, the majority’s sharp conceptual separation between taxation and regulation does not align with the functional and doctrinal approach adopted in WTO law, where tariffs operate simultaneously as fiscal instruments and as central tools of trade regulation.

This raises the question why the progressive justices (in addition to three conservative judges), rather than the ‘conservative’ dissent, arrived at a position that is so antithetical to established WTO law and practice. One possible explanation is that the majority’s primary concern was to impose limits on the President’s powers as a matter of domestic constitutional law, even if this came at the expense of alignment with international economic law. Yet, the longstanding US opposition to the WTO Appellate Body – across the administrations of Presidents Obama, Trump, and Biden, and ultimately leading to its paralysis – also provides useful background explanation.

The judgment’s silence on contemporary international trade law and practice

In a decision that spans approximately 170 pages and examines the historical evolution of early modern English law and 18^th and 19^th century US practice, one might reasonably have expected some engagement with contemporary international trade law and practice. Even a brief acknowledgment of how tariffs are conceptualised in international trade law would have provided a more contextually grounded account of the regulatory landscape within which such measures operate.

The merits of the Supreme Court’s decision will remain contested from both constitutional and policy perspectives. However, irrespective of whether the Court was formally required to engage with international or WTO law, its complete silence on these frameworks is likely to reinforce the perception that scepticism toward international law and multilateral institutions, such as the WTO, is – within the United States – systemic rather than contingent, and not confined to any particular administration or ideological orientation.

Are there no ‘deserving poor’ anymore?

Lisa Whitehouse, 1 April 2026 7 mins read

It is nearly sixty years since Cathy Come Home first aired on the BBC. Written by Jeremy Sandford and directed by Ken Loach, this hard-hitting, documentary-style portrayal of a couple who, through no fault of their own, spiralled into homelessness and destitution, sparked national debate about the then housing crisis. The message arising out of the play was clear and unequivocal. The protagonists, Cathy and Reg were, in a manner reminiscent of the Victorian trope of the ‘deserving and undeserving poor’, worthy of our sympathy.

The changed neoliberal narrative: no rights without responsibilities

A lot has changed over the last sixty years, to the extent that we might now question whether Cathy Come Home would provoke the same response it did back in November 1966. The rise of neoliberalism post-1979, Brexit, and the growing popularity of right-wing political parties (among so many other things), have seen policy, rhetoric, and the media (print and social), cast certain categories of individual, such as single mothers, immigrants, and welfare recipients, as different, deviant and dangerous in the eyes of hard-working ‘responsible’ taxpayers.

Some have argued that this is a tactic used by proponents of neoliberalism to maintain support for its aims, categorising the welfare state as a cause of, rather than a solution to, poverty. The use of exclusionary and ‘othering’ language to depict those who are ‘them’ and not ‘us’ deflects attention away from the failings of the state and instead recasts it as a failure of individual responsibility. This responsibilisation narrative arises out of the reconfiguring of the relationship between the state and its citizens, particularly in respect of the provision of civil entitlements.

The creation of the welfare state in the UK, initiated by the Beveridge Report of 1942, was intended to create a system that supported citizens from the ‘cradle to the grave’. Some governments have, however, since the 1970s, sought to transform the state’s role from the guarantor of a universal entitlement to social rights, to a paternalistic and supervisory one that demands that citizens earn civil entitlements by conforming to expected standards of behaviour.

This new narrative insists that there should be ‘no rights without responsibilities’, thereby bringing an end to the perceived passive receipt of welfare benefits and justifying the exclusion of some from the social safety net if they fail to act ‘responsibly’. This reconceptualization of citizenship has been criticized on several grounds including its failure to recognise the impact that structural disadvantage and inequality, such as the shortage of affordable housing that led to Cathy and Reg’s downfall, have on the ability of individuals to act responsibly.

In this new era of individualised responsibility, it is possible that Cathy and Reg might be portrayed as undeserving, feckless, architects of their own downfall, and a drain on the responsible taxpayer. This narrative is not new. Smiles’ best-selling book of 1859, for example, promoted the moralistic view that debt, destitution and dependence were due to the failure on the part of the individual to exhibit the Victorian virtues of hard work, perseverance, and temperance. Smiles advocated ‘self-help’ as the remedy for poverty, encouraging, particularly young working-class men, to elevate themselves out of poverty through hard work, thereby ensuring their own happiness and wellbeing.

And yet, of course, we know that poverty is not a choice. Rather, it is influenced by individual and structural factors, many of which are beyond the control of the individual. Insecure and low-paid employment, high housing costs, individual life events, and an ineffective and sometimes punitive welfare system are just some of the causes of poverty.

The state’s complicity in facilitating inequality

It might be assumed that the state is best placed to tackle some of these structural constraints. However, what becomes apparent from a review of some public policy initiatives post-1979, is that rather than attempting to address structural inequality, the state has been complicit in facilitating it. A cynic might even suggest that the state has engaged in performative and populist policy-making that sets some individuals up to fail.

Take the Removal of the Spare Room Subsidy (RSRS), otherwise known as the ‘bedroom tax’. This reduces the rent that can be covered by welfare payments if social tenants reside in properties considered larger than they need. As of November 2025, 12,000 Housing Benefit claimants had a reduction to their weekly award amount due to the RSRS scheme. Up to date figures on the proportion of households in receipt of the housing element of Universal Credit who received a reduction due to the RSRS are not available, but to give some idea of the scale, in November 2020 it was 240,000.

The RSRS was intended to achieve behavioural change, encouraging or forcing households to move to smaller dwellings. However, this assumes that social tenants have a meaningful choice over where they live when, in reality, social housing has been decimated by policies such as the ‘right to buy’. Described as one of the ‘largest giveaways in UK history’, the policy allowed social tenants of sufficient standing to buy their council-owned home at a significant discount. Since its introduction in the early 1980s, around two million council properties have been sold, contributing to, what is now, a chronic shortage in and long waiting lists for social housing.

Importantly, however, the state was aware at the time it introduced the RSRS that there were insufficient properties of a smaller size to accommodate households subject to the deduction. For some of these households, this will have increased their dependency on the state, with evidence suggesting that many sought discretionary housing payments to cover the shortfall in their welfare payments. It would seem, therefore, that the state’s attempt to encourage welfare recipients to move to smaller accommodation has instead led to the state subsidizing those households to remain in their current home.

The unintended consequences of well-intentioned policies?

A less cynical view might suggest that inequality outcomes are the product of ambiguity neglect, a failure by policymakers to appreciate the potential for unintended consequences arising out of policies. These outcomes can often be generated by perverse incentives whereby citizens are incentivised to act in a manner that contradicts the intended outcome of the policy.

It is argued here, however, that in relation to aspects of policymaking since the late 1970s, a more apt label might be ‘perversity neglect’, constituting a failure by policymakers to appreciate the potential for perverse outcomes arising out of policies. In turn, rather than being incentivised to disrupt policy outcomes, individuals are subject to ‘perverse disincentives’ that hinder or prevent genuine attempts to comply with the intended outcomes of policies.

To take one example from the housing context, a policy intended to encourage social tenants to take responsibility for paying their own rent (by removing the direct payment of the housing element of welfare payments to landlords) led to some being unable to pay their rent (and therefore at threat of eviction) because of the mandatory five week waiting period before receipt of the first welfare payment.

Reckless policymaking driven by populist political agendas

The question arises as to whether the state’s complicity in generating structural inequality is intentional. That would, of course, be difficult to prove, but it can be argued that, if not intentional, then the state it is at the very least neglectful, if not reckless, in failing to appreciate the potential for perverse outcomes or, once aware of such, failing to address them. The answer offered up by research into ambiguity neglect is that the state should conduct evidence-based decision making prior to implementing policies, and post-implementation, to assess the outcomes of such, to identify and if necessary address unintended or perverse outcomes.

Some might argue, however, that neoliberalism and governments that engage in populist policymaking are not concerned with the outcomes of policies, or the likely success of the measures they give rise to, but rather with the perception that those policies engender (e.g. ‘stop the boats’). The perception that the welfare state rewards idleness, for example, has been used to justify the imposition of conditions on welfare claimants in order to make welfare ‘like work’. The outcome of the conditional nature of welfare can, however, in some cases, perpetuate poverty and dependency, including discouraging some claimants from entering into work in order to avoid having their welfare benefits reduced.

It is therefore questionable whether there is any motivation or sufficient public support for (particularly neoliberal) governments to avoid or remedy perversity neglect, particularly when there appear to be no ‘deserving poor’.

Palestine Action and the Paradoxical Status of Protests in Democracies

Alun Gibbs, 19 March 2026 8 mins read

Protests are never very comfortable. They may be disruptive, awkward and costly. In a democracy they also pose difficult foundational questions as they imply that change (sometimes quite radical change) is required and that this can be achieved only by a recourse to measures and methods which lie outside the usual democratic political processes, often for a variety of complex reasons. At the same time for a democratic state the fact of protest is not necessarily an indication of the failure of the political but can be a sign of the vitality and health of the constitutional life of a state – free expression and assembly are core rights which are invoked and ought to be upheld by protest.

In legitimate protest we glimpse the foundational engagement of our political association – popular causes – that foster a sense of common ground; so many constitutional states often forge their first breath within the ferment of protest and in the UK we can come face to face with the historical contingency of our freedom (Chartism, suffrage, employment rights and equality) by reflecting on the history of protest and its milestones. Protest then is paradoxical in character – it can emerge out of the feelings of rage at the political democratic process for its failures to address a burning concern, but it is also the sign of life, health and perhaps progress within a democratic political community.

The paradox facing the state around protest finds its way into the legal architecture as the fair balance between the state as the ‘policer’ of law and order and the state as ‘guarantor’ of the civil rights of freedom of association and assembly. How do we expect the balance to be struck was one of the key issues and concerns surrounding the decision of the High Court (13 Feb 2026) in the high-profile Palestine Action case.

In the early hours of 20 June 2025 several activists of Palestine Action, a direct-action protest group founded in 2020, broke into the RAF base at Brize Norten and spray painted two aircraft causing serious damage. In response, the Home Secretary decided to proscribe the organisation under the Terrorism Act 2000 as ‘concerned in terrorism’.

A terrorist organisation is defined as one that engages in, prepares, promotes or encourages terrorism, which in turn requires (1) a serious violation against a person, serious damage to property (as in this case), or similar, or the threat thereof; (2) which is designed to influence the government or intimidate the public; (3) for the purpose of advancing a political, religious, racial or ideological cause. Most of the 84 organisations so far proscribed under the Act are extremist organisations engaged in high levels of violence, typically Islamist extremists and white supremacists, and indisputably terrorist. There was significant outcry that the activities of Palestine Action should be aligned to those of such terrorist organisations.

The government decision seemed to be a reaction to the Brize Norten incident, but Palestine Action had been on its radar since 2024. There had been an escalating series of incidents targeting arms manufacturers in the UK linked to Isreal, such as Thales, a French space and defence corporation, and Elbit Systems, Israel’s largest armament company, each time involving serious damage to property.

As consequence of the group’s proscription (ban), it also became a criminal offence to offer or express opinion in support of it. In the months that followed more than 2000 supporters had been arrested for holding banners in support of Palestine Action, attracting the attention of media both in this country and around the world and prompting concern as to the health of the right to protest in the UK.

Huda Ammori, one of the founders of Palestine Action, brought a challenge against the government’s decision to ban the organisation. The High Court decision constitutes the opening salvo in what is likely to attract further litigation. It decided that the Home Secretary’s determination was unlawful but declined to quash the order – meaning that Palestine Action remains banned (presumably pending the outcome of further legal action). It leaves things in legal limbo, especially for those that have already been arrested.

Taking the activities of Palestine Action as a whole and including the most violent and high-profile instances met the threshold of the statutory test for proscription. The court also noted that Palestine Action was not engaged in civil disobedience, as set out in Cuadrilla Bowland Limited v Persons Unknown (2020), given that the activities of the group were unrestrained, dangerous and criminal in nature. So, the outcome of this case is not a vindication of Palestine Action or its methods.

Even though the statutory terrorism test was met, it does not necessarily mean that Palestine Action should have been proscribed. The ‘policy’, devised by the Secretary of State, is to determine whether it is proportionate and necessary to proscribe the organisation. As the High Court explained, the core of the policy for exercising her discretion is that ‘not all organisations that meet the concerned terrorism requirement should be proscribed.’

The court found that the reason behind the proscription was to subject Palestine Action to the criminal consequences of the proscription which would be severe enough to disrupt or prevent the group from continuing. As these consequences would always and inevitably be the effect of proscription this could not, in the court’s view, be considered a relevant factor within the policy.

If this seems like rather a narrow basis to hold that the determination was unlawful, the court was somewhat more expansive in the consideration of the proportionality of proscription in relation to Article 10 and 11 rights in the Human Rights Act 1998, freedom of association and freedom of assembly. Once proscription has taken place there is obviously a considerable interference with Articles 10 and 11 rights given that it prevents any further protest, activity or support.

On this point the court considered that the activities of Palestine Action had ‘not yet reached the level, scale and persistence that would justify the application of the criminal law measures that are the consequence of proscription’ – even though the court acknowledged that Palestine Action had been involved in unrestrained and disproportionate criminal activity, and not civil disobedience. In other words, even if the Home Secretary had followed her policy on proscription, it would still fail the proportionality test when it came to the rights protected by the HRA.

Usually on national security issues, such as this, the court would adopt a more deferential attitude to the view of the executive on where the balance lies. Thus, it is important that – in terms of the wider architecture of protest and civil liberties – the court adopted an independent view regarding the fair balance, given that proscription can (as in this case) have a significant impact on the enjoyment of convention rights. How far this analysis of the balance will be upheld in subsequent litigation remains to be seen.

In this wider sense the ruling can be viewed as taking a tentative step to protect this understanding of the place of protest by recognising that the law ought to adopt a sceptical attitude to powers of proscription. It set a reasonably questioning approach for the executive to show that a fair balance is in fact attained when it comes to the limitations of rights of freedom of assembly and association. It is only right that the courts should be willing to check the powers of the executive in this way so that anti-terrorism legislation cannot be used to unlawfully suppress the conduct of political debate and the legitimate rights associated with it.

At the heart of this debate about civil disobedience and protest we see the contours of a much more deep-seated issue of constitutional life. The authority of the state is not something that exists independently of the individual’s moral perspective. Rather, it is also grounded in the willingness of the state to protect the capacity and exercise of personal moral judgment. Any claim that the State has the right to command, and that citizens have a duty to obey, ultimately rests on creating a space for moral judgements in relation to the law as part and parcel of the wider claim of the law that it rests on reason rather than simply an act of will. This principle implies that the moral autonomy of judgement is not external to law but internal to it. The very idea that a law can bind us presupposes that we are the kind of agents who can understand, interpret, and morally assess reasons for compliance. A citizen is not merely a passive recipient of commands but an active participant in determining whether those commands carry legitimate authority and is not simply an act of coercion. The place of protest and its legal protection is one such constitutional space that serves this purpose within constitutional life and as such infringements on it must be viewed critically and limitations on it examined cautiously. It is within this wider spirit that we must look at the current case regarding the proscription of Palestine Action.

Trump’s takeover of Venezuela and the long-standing hypocrisy of international law

Andrea Maria Pelliconi, 5 February 2026 7 mins read

The past months have brought back with startling clarity a pattern many international lawyers know all too well. Under the second presidency of Donald Trump, the United States (US) has returned to overt coercion to impose their interests upon the rest of the world. Realist pragmatism has always been present in international relations, but states used to couple their acts “with at least a resemblance of legal justification”. This time, however, practice is matched by words: Trump has completely dispensed with the liberal varnish that usually accompanies US extraterritorial mischiefs and openly admits that his actions are guided only by his own morality. The attack on Venezuela and the kidnap of Nicolás Maduro and his wife have been followed by repeated threats to annex Greenland by purchase or use of force, alongside renewed intimidation directed at other states such as Panama, Mexico, Colombia, and Cuba. We’re witnessing an accelerated deepening of the global crisis of multilateralism and international law and a return to Great Powers’ “spheres of influence”.

Everyone knows in legal scholarship that the unilateral kidnap of a sitting head of state is unequivocally unlawful under international law, whatever one may think about the Maduro regime and its gross and widespread human rights abuses. The prohibition of the use of force, the principles of sovereignty and non-intervention, and the personal immunity of heads of state vis-à-vis other domestic jurisdictions leave no room for ambiguity. And yet, the responses of some western states and the European Union (EU) have not been so unequivocal. Instead, they have been divided and ambivalent, cloaked in watered-down words of “concern” or “monitoring” or strategic silences. German Chancellor Merz has stated that the legal assessment of the US operation is “complex”. French President Macron has emphasised the need for a transition which is “peaceful, democratic, and respectful of the will of the Venezuelan people”. Italian Prime Minister Giorgia Meloni suggested that while the use of force is generally wrong, the US were acting in self-defence against so-called “hybrid security attacks”, referring to Maduro’s supposed weaponisation of drug-trafficking against the US. Reactions were far more decisive when it came to Trump’s threats against Greenland, where the territorial integrity and interests of an EU and NATO state were at stake. European leaders suddenly rediscovered the language of international law and the inviolability of sovereignty and territorial integrity with admirable clarity.

This should not come as a surprise. Over the past years, manifestations of double standards and selectivity have grown exponentially, with the most discussed example being the reactions to Russia’s invasion of Ukraine and Israel’s “plausible” genocide in Gaza, both framed as defensive responses to security threats and terrorism. While one may well argue that Israel’s self-defence claim was more well-founded than Russia’s, it soon became clear that the 7 October 2023 attack was being used as a mere pretext to unleash uncontrolled violence on Palestinians, while preparing the ground for territorial expansion in both Gaza and the West Bank. This expansionist plan continues to develop even now, after the supposed “ceasefire” and the UN Resolution on Gaza, and nothing concrete is being done to bring it to an end. The same double standard surfaced in reactions to the International Criminal Court’s (ICC) arrest warrants against Vladimir Putin and Benjamin Netanyahu for international crimes. The same European states that rushed to praise the ICC for its investigation of the Russian leader, later declared that Netanyahu enjoys immunity from ICC prosecution.

And yet, once again, this selectivity is not new at all. It follows decades of US (and broader Western) unlawful attacks and interventions in Iraq, Afghanistan, Iran – to the extent that exceptionalism is not exceptional anymore. Each time, international law norms were stretched, re-interpreted, or reinvented through securitisation doctrines such as preventive self-defence and the “unable or unwilling” test, or hidden behind ostensible “benevolent motives” such as humanitarian intervention, regime change, and the “exportation of democracy”. In fact, the US has even committed the exact same type of head-of-state kidnapping before in the region, most notably with the capture of Manuel Noriega from Panama. This is the so called “rules-based international order”, meaning the rules that the US and its allies imposed upon the rest of the world (“the West and the rest”), as opposed to what international law actually required. Every time, other western states have been weak in condemning the illegality of these actions, and even weaker in doing anything concrete to prevent, stop, or redress them.

Now, at what feels like the climax of the collapse of the international legal order and multilateralism, everyone has awakened, shouting that this is not a drill. UN experts warn that such actions normalise lawlessness in international relations, and commentators caution that Venezuela sets a dangerous precedent: if powerful states may unilaterally decide when international law applies and when it does not, the legal order collapses into selective enforcement and strategic convenience. Even leading US academics now talk about the catastrophic collapse of jus ad bellum norms and the dangers we all face when “might unmakes right”. They highlight the risk that the Venezuela incident “opens the door to other similar actions by powerful nations in the future”. This fails to appreciate that the door has long been wide open.

A prevalent position now is to acknowledge the flaws of international law but vehemently opposing the abandoning of its normative constraints because they’re the only thing that will save us from debacle. International law can still be mobilised to place constraints on power and if it’s consistently disregarded it’s because of contingent political factors militating against full compliance. A recurring metaphor that I’ve heard a few times lately, including among critical thinkers, is the Sisyphus’ myth: the futility of the task should not deter the discipline. But this, at least in part, obscures how this system was intentionally built to shield the actions of the West and has laid the foundations for the situation we now find ourselves in. International law and the indeterminacy of its content provide a “professional vocabulary” to build plausible arguments. For decades, mainstream scholars were complicit in the legal legitimisation of these actions, coming up with doctrines that served the interests of the moment under a façade of international legal jargon.

The inherent defect of the international legal infrastructure has simply become more visible now. As Rajagopal has put it, “The revival of overt colonial and imperial designs under the Trump regime in Washington is notable not because it has invented new forms of domination, but because it has dispensed with the traditional liberal rhetoric that once accompanied them.” From its colonial origins to its modern doctrines of sovereignty, intervention, and trade, international law has consistently operated in the interests of dominant states and classes, while insulating them from the equal application of its norms. What we are witnessing today are colonial revivals as the logical outcome of a system that never truly decolonised. It seems scarier to European eyes now because it has eventually turned against them.

Of course, legal scholarship is not monolithic. Critical voices, including TWAIL scholars, have raised these concerns all along. Yet they have been unable to bring material change, partly because of the structural hierarchies of international law, and partly because of fragmentation of their own views. Some tried to change the system from within; others were content to critique from the margins; others advocated radical transformation or the complete dismantling of the legal order, often without a clear project – and always with different opinions – for what should come after.

Now, as we stand on the verge of a concrete dismantling of the system, with Trump’s plan to replace the United Nations with his own personal “Board of Peace” and international relations reaching the peak of personalisation and corporatisation, everyone – even critics – seem unsure what to do. If there is a moment to seize, it is now. But seizing it requires more than lamenting Trump’s excesses or the fragility of the system: it demands an honest reckoning with the errors of the past, Western exceptionalism, legal complicity, resource-hungry capitalism, and a system ostensibly built on sovereign equality but consistently seized by vetoes and unilateral reprisals. What is needed are visionary ideas for radical change and possible futures – and I am not sure we – myself in primis – are up for the task.

The Sense and Nonsense of AI Ethics: a Whistle Stop Tour

Kieron O’Hara, 29 January 2026 – 8 mins read

Emeritus fellow, University of Southampton, kmoh@soton.ac.uk

AI research has been energised since the unveiling of AlphaGo in 2016 and ChatGPT in 2022, demonstrating capabilities well beyond public and even expert expectations. It also has acquired a chaperone, a growing cottage industry of AI ethics to describe, diagnose, and ultimately remedy its perceived potential harms.

The Silicon Valley credo ‘move fast and break things’ is obviously ethically flawed (especially when the ‘things’ are people), but potential problems don’t usually spawn sub-disciplines; there are no ethics of differential equations, printing or hammers. There is no legal demand to be ethical, and no-one can force you to be ethical, so there is a limit to the number of harms it can prevent. That is not to say that AI development has no ethical dimension; of course it does, and I shall sketch it at the end of this blog.

The cottage industry has emerged from two sets of incentives. Ethicists like advisory committees (upon which they might expect to sit). A lovely example is Henry Kissinger, Eric Schmidt and Daniel Huttenlocher, who prescribe “the leadership of a small group of respected figures from the highest levels of government, business, and academia” to ensure the US “remains intellectually and strategically competitive in AI” and “raise awareness of the cultural implications AI produces”. I wonder who the former Secretary of State, the former CEO of Google and the MIT computer scientist have in mind? Meanwhile, tech developers relish applying Silicon Valley methods to moral philosophy, preferring doomster sci-fi to the hard yards of solving genuine problems (and if ethical codes raise compliance costs for startup competitors, what’s not to like?).

The result is a crowded field with a confusion of non-problems, non-serious problems, non-specific problems and the real deal. Apologies for my necessarily cursory treatment in this survey.

Non-problems

Some perceived AI ethics problems require little action beyond an eyeroll. One non-problem is Artificial General Intelligence, the singularity, and sentience, which together supposedly pose an existential threat. It is assumed without proof that superintelligent agents will have the power (and inclination) to pursue harmful goals autonomously. Barring thought experiments, game theory and the plot of 2001, no evidence is produced for this, although one expert declared, with spurious precision, that AI will take over in December 2027. Both Hinton and Bengio claim the risk is 20% or more. Is it really more serious than climate change, another pandemic or nuclear war?

A second type of non-problem uses critical theory to depict AI as complicit in capitalism, whiteness, racism, sexism, data colonialism, and so on. Maybe, maybe not, but it is not obvious what the conscientious AI developer is to do, other than indulge in the Foucault-worshipping armchair revolutionary groupthink that has thus far proved remarkably unsuccessful in derailing capitalism.

Non-serious problems

Some genuine problems may be poorly framed, not necessarily trivial or easily solved, but not an ethical priority either.

One such is bias. Because algorithms uncover existing patterns in data, they need either unbiased or synthetic data. If unbiased data is unavailable or insufficient, anticipate potential problems and biasing the algorithm against unwanted results. This may not be easy, but it’s a practical problem. Undesigned biases of algorithms are of less ethical import, being statistically anomalous rather than socially significant. Bias is additionally misleadingly framed by the disparate impact doctrine. This ignores that unintentionally discriminating decision procedures often discriminate for desired behaviour, such as being creditworthy or law-abiding. AI’s potential depends on positive discrimination; focusing only on negative discrimination is itself biased.

A second problem is that neural nets are black boxes; difficult if we demand that the machine explains its own output. But any AI ‘decision’ is implemented by an organisation, with responsibility to justify its actions. The required explanation is less the derivation of the output, than its congruence with the organisation’s goals, and the legitimacy of pursuing them.

Third is the persistent yet so far unproven claim that AI will replace jobs, leading to a shortage of work. This accepts the lump of labour fallacy, denies that greater productivity will raise wages and employment, and assumes an elusive business model for generative AI. And just because a job could be taken does not mean it will be; train drivers could have been eliminated 50 years ago, but they still chug along.

Fourth, privacy: but if training uses personal data without data subjects’ consent or other data protection grounds, then it is illegal. If it uses personal data legally, then its being unethical is not a strong ground upon which to act. Either way, data protection law outweighs ethical considerations.

Non-specific problems

Problems not unique to AI are not best addressed through AI regulation or governance. A recent paper listed the likely harms of AI as biodiversity loss, carbon emissions, chemical waste, exploitation of gig workers, exploitation of marginalised and indigenous groups, widening inequalities, eroding trust, and injuries to animals. All serious, but AI-specific guidelines are neither necessary nor sufficient to deal with these far wider issues.

Misinformation is also a problem, but a war against fake news will be as problematic as the war on drugs for the same reason: the issue is not supply, but rather excess demand. This is a social problem, requiring societal adaptation.

The real problems

Real problems require ethical insight, and AI developers need some control. One such is information pollution. LLMs have a tendency to ‘hallucinate’, and can be ‘trained’ to produce racist or other offensive output. This is particularly problematic because output will be used to train the next generation of bots, with the danger of a vicious circle of ‘pollucination’. Conscientious developers, under pressure to produce ever more compelling models, may be urged to put power before rigour.

Other serious issues include intellectual property, cybersecurity, defence (using autonomous learning systems), and diversity (progressive young males tend to be overrepresented in development teams). With these, the question is how to make AI safer without compromising quality, e.g. by insisting on ‘humans in the loop’.

Approaches to avoid

Simplistic views translate complex ethical positions into simple calculi. Framed like this, AI can solve the problems itself! Examples include:

Accelerationism: AI is superior to human thought, and development should be escalated to eliminate ‘residual anthropolitical signature’.
Effective altruism: a combination of the naïve utilitarianism of Derek Parfit, Peter Singer, and William MacAskill, with the debatable assumption that the tech bros’ chatbots are to benefit humankind, not their bank balances.
Ethical AI: AI systems themselves compute the ethical consequences of proposed actions.
Rationalism: extreme technocratic and hyper-rational consequentialism, ignoring convention and taking ideas to their logical conclusions.

Others assume that as humanity is transformed, AI systems and cyborgs will have divergent interests from humans, and yet comparable ethical status.

Transhumanism: humanity should be improved by applying technology to cognition, well-being and longevity.
Posthumanism: humanity should be eliminated by applying technology to genetics and neural capabilities to integrate it with wider sentient networks.
Environmental ethics and other anti-anthropocentric views: humans should not be central to ethical inquiry.

We should reject these too: anthropocentricity is central to ethical inquiry. Even views taking technologies, other species of animal, or entire ecosystems into account do so for anthropocentric reasons.

The third class of simplistic views argues for inclusive democratic participation (often phrased in complicity with the reader, suggesting that ‘we’ should take charge). Quite how citizens’ juries and civic dialogues will avoid being dominated by the exam-passing classes, or could constrain AI development is left unsaid – and good luck if you want to try it in China or Russia.

Finally, AI is neither intrinsically good nor bad. Technology to support the development of innovative software, drugs or defences could equally produce new malware, poisons or weapons. This dilemma can’t be offset by programmes of ‘AI for good’. These, while demonstrating benefits (‘beneficial’ defined by developers), can’t eliminate harmful or criminal uses.

The literature on ensuring that the ‘values’ of AI systems align with those of wider society is similarly flawed. Autonomous AI systems operate on reinforcement functions, not values or internal motivations, which they don’t have. They may behave unpredictably, and against human interests, but that can’t be programmed out of them. Testing and modelling methods will be far more use.

Virtue and responsible AI

Where exactly should ethics feature in AI? Let us begin with an observation: if someone sincerely wants to avoid doing the wrong thing, and is thoughtful and conscientious about it, then more often than not they will succeed. The result of the inquiry is less important than its existence.

The ethical actor is not a corporation or an in-role manager (they need back-covering standardised tick-box templates), but individuals involved in the development of AI within a corporate or organisational context. What matters is their conscientiousness and sincerity – their character, their virtuousness.

Virtue ethics has the usual enforcement problem – no-one is forced to be virtuous, and sometimes virtuousness may be punished (cf. the Trump administration passim). However, it is normative for the ethically-minded, and credits the developer with trustworthiness and maturity.

There is a connection between virtue ethics and responsible AI, the movement to ensure ethical development through the life cycle of design, coding, training, and deployment. This literature, such as Vallor on virtues and Dignum on responsible AI, despite familiar Western and progressive biases, is the most valuable starting point for AI ethics.

Trump’s EU foreign policy, implicated scholarship and the ‘Brussels Effect’

Uta Kohl, 16 January 2026 —- 8 mins read

For Europe, the fierceness of the Trump administration’s hostility to the EU has come as a shock. It is unprecedented in scale and kind, and manifests itself in words (Vance’s speech in Munich attacking the EU over free speech and migration or Trump describing Europe as ‘decaying’ and its leaders as ‘weak’) and actions ( halting military aid to Ukraine, announcing 30% tariffs on the EU, or threatening to take Greenland by force). Yet, these hostilities do not come out of nowhere and build on a rise of transatlantic tensions over many US policy choices between 2000 -2024 and acceleration of those tensions over the last decade. Legal and international relations scholars have decried these developments as a breach of trust or, in some cases, a of international law. However, there appears to be little soul-searching about how we, as scholars, may be implicated in them. Whilst academia generally remains on the outskirts of day-to-day politics, we produce knowledge and narratives that create and shape discourses that have an impact on politics.

The Brussels Effect

One such popular academic narrative that has fed into the transatlantic hostilities is the ‘Brussels Effect’. The Brussels Effect was first coined by the Finnish-American scholar, Anu Bradford, in her article (2012) and book (2020) in which she purports to describe ‘how the European Union rules the world’. Her thesis is simple, namely that the EU can set – and has set – global regulatory standards by virtue of being a large and attractive market for many importers from outside the EU and, then, by setting (strict) standards for these importers who often have an incentive to adopt them as their global baseline. This de facto global harmonisation by corporate fiat is complemented by de jure global harmonisation as the home states of these corporations decide to follow the EU regulatory lead and enact like laws in their jurisdictions. Thus there is a global convergence towards EU standards without the political difficulties and cost associated with harmonisation efforts following formal processes. Effectively, the EU gets harmonisation on the cheap. European data protection law is widely seen as an example par excellence of the Brussels Effect as it has led to a widespread adoption of data protection laws around the globe.

Bradford’s Brussels Effect has been hugely successful as a seemingly objective and neutral synthesis of facts describing EU regulatory hyperactivity with extraterritorial effect. For the digital world, this seems particularly true considering the recent raft of EU legal instruments dealing with online platforms, such as Digital Services Act, the Digital Markets Act and the AI Act. There are many more (including corporate sustainability measures), and all of them have exterritorial reach as they apply to foreign providers that operate in the EU. The Brussels Effect has been referenced by thousands of scholars and taken up by EU policy makers and politicians with gusto, often as a badge of pride and honour.

And yet, there is more to the Brussels Effect than meets the eye. For a start, it is not simply a description of facts about EU regulation but a meta-narrative that puts a particular perspective or spin on facts. Meta-narratives are stories about stories, which explain, tie together, and legitimise or delegitimise smaller facts and events, and appeal as much to the emotions as they do to the intellect. Bradford’s article starts off by appealing to the sensitivities of the average American: ‘EU regulations have a tangible impact on the everyday lives of citizens around the world. Few Americans are aware that EU regulations determine the makeup they apply in the morning, the cereal they eat for breakfast, the software they use on their computer, and the privacy settings they adjust on their Facebook page. And that’s just before 8:30 AM.’(3)

The particular perspective of the Brussels Effect narrative is one of EU regulatory overreach. This charge is already implicit in the title of Bradford’s book: How the European Union Rules the World. Implicit in her argument is the question: Why should Europe rule the world? Centuries of European imperialism, including legal imperialism, are bygone and, if not, should be. Brussels should be ashamed of itself. By the same token, if the Brussels Effect narrative offers a legitimate critique of excessive EU law, then the Trump administration’s opposition to EU regulation of US platforms also strikes a legitimate chord. In that case, the large platforms may also be right in characterising the fines by the Commission under EU platforms regulations as ‘protectionist’, ‘discriminatory’ or ‘disguised tariffs’ or as ‘censorship’. Yet, does the EU really rule the world? Unlikely.

There are indeed good reasons why the Brussels Effect narrative is not plausible. Here are three. First, EU (digital) regulation seeks to regulate the European single market and must necessarily apply to foreign providers who do business in Europe. This is a standard jurisdictional approach adopted across the globe as it rightly protects local standards from being undermined by foreign providers. Second, when foreign corporations, like the US digital platforms, adopt European standards as their global baseline, this is a commercial decision driven by market forces. The EU cannot ‘choose’ this as a route to global harmonisation, but as a form of bottom-up harmonisation it can lend support and legitimacy to political harmonisation. Such market forces come and go, wholly outside the EU’s power. Third, whilst according to Bradford’s Brussels Effect the EU imposes its preference for ‘strict rules’ on ‘the rest of world’ (citing almost exclusively US examples), arguably the US and not the EU is the outlier in its preference for laissez-faire law, especially in respect of the tech platforms. Already in 2005, Frederick Schauer observed that the absolutist speech protection of the First Amendment was the odd one out internationally: ‘On a large number of other issues in which the preferences of individuals may be in tension with the needs of the collective, the United States, increasingly alone.’ Thus, it is far more plausible that EU regulations are simply more aligned with the public policies and interests of other jurisdictions than US laissez-faire law is.

The Washington Effect

If the Brussels Effect narrative paints a skewed picture of EU regulatory activism, it may be more compelling to understand EU regulations through the counter-narrative of the ‘Washington Effect’. A counter-narrative uses the same facts but tells a different story. In this case the story is that EU platform regulation is not an offensive extraterritorial strategy for Europe to attain global ‘superpower’ status, but rather a defensive territorial one that seeks to counter, in Europe, the hegemony of US platforms and US laissez-faire law. In other words, the EU is in pursuit of reclaiming digital sovereignty and perhaps even leads the global resistance to US legal imperialism.

The counter-narrative of the Washington Effect builds on the idea that deregulation is not nothing or neutral, but a form of regulation whereby existing legal standards are abandoned or watered down. It may occur within a jurisdiction through explicit deregulatory measures or across jurisdictions when the more permissive laws of one State undermine the more restrictive laws of another. Although deregulation appears to facilitate the ‘free’ market – free from state interference – even a free market is enabled by the general law of the land, such as contract and property law, corporation law, basic rules on fair competition, product liability or negligence law. Thus deregulation that meddles with these fundamental enabling market rules constitutes a significant regulatory intervention with the market, rather than a non-intervention. Such deregulatory interventions reconstitute the market and its distribution of rights, privileges, powers and authorities. In other words, deregulation also regulates.

There is plenty of evidence of the de facto or de jure imposition of US deregulation on ‘the rest of the world’. Most notably, section 230 Communications Decency Act (1996) which immunises platforms from liability (under the ordinary law of the land) for wrongful publications by third parties on their domains, is one such piece of deregulation that the US has successfully exported to more than 60 jurisdictions worldwide with an enormous effect on global networked space. Equally, a de facto Washington Effect occurred when US digital platforms – ‘socialised’ through US permissive laws, most notably US First Amendment jurisprudence – started to offer their services in Europe and elsewhere with minimal legal restraints built into their content distribution and ad revenue systems and when this starting position went unchallenged in Europe for decades. So perhaps it is the Washington Effect, not the Brussel Effect, that really shows who rules the world.

The moral of the story

Academic scholarship matters. It tells stories. The Brussels Effect is a story that has mattered. Its effects have been significant. It has lent credence to the Trump administration’s opposition to EU tech regulation. It has then put the EU on a regulatory backfoot and, at the same time, disguised quite how successfully Washington has exported its deregulatory regulation to the rest of the world. The Brussels Effect demonstrates that just because a narrative has intuitive appeal and in fact appeals to many, does not mean it’s a good story. This is a dangerous one.

For a more in-depth analysis of the topic, see Uta Kohl, ‘The Politics of the ‘Brussels Effect’ Narrative’, forthcoming in ACROSS THE GREAT DIVIDE: PLATFORM REGULATION IN THE UNITED STATES AND EUROPE (A. Koltay, R. Krotoszynski, B. Török, E. Laidlaw (eds), OUP, 2026)

The Pains of Imprisonment for Public Protection (IPP) for Family Members

This post provides a brief summary of emerging findings from the research project ‘‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ and is a shortened version of a piece for the August edition of Inside Time (https://www.insidetime.org/):

The indeterminate Imprisonment for Public Protection (IPP) sentence has rightly been described as one of the least carefully planned and implemented pieces of legislation in the history of British sentencing. Readers of Inside Time will know that there continues to be a large number of people imprisoned on IPP sentences despite its abolition in 2012, either still serving their original sentence or having been recalled to prison. There have been a number of important reports examining the problems caused by the sentence, but the experiences of families of IPP prisoners has so far not been explored.

Our research ‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ has begun to fill this gap. We wanted to understand how families were affected by the IPP sentence; the support they may have received; and involvement in campaigns relating to the IPP sentence. In order to do this, we conducted in-depth interviews with 15 family members of IPP prisoners and received 119 responses to an online survey.

Our detailed findings will be published later in the year, but we can share some of the most important themes here. Overarching themes were injustice, uncertainty and hope. With the sentence having been abolished but no legislative action taken to address the existing IPP population, families understandably felt that this was an unjust situation. One respondent told us, “I feel bitter towards the justice system knowing worse crimes are committed with much lesser sentences”. Families also emphasised the difficulties created by the uncertainty of the open-ended sentence: this raised substantial emotional challenges, with many families feeling as if they were serving the sentence with their relative. As one family member put it, ‘The not knowing is the hardest part, we have no end date, no light at the end of the tunnel’. Unfortunately, but perhaps unsurprisingly, families reported that release brought its own difficulties. Some spoke of the constant fear of recall, of ‘living on the edge’.

The influential Farmer Review has recently made clear that the positive role to be played by families should be taken much more seriously by the criminal justice system. It is certainly the case that families can often give valuable support to an IPP prisoner’s progression. Unfortunately our research highlighted numerous practical challenges faced by families of IPP prisoners. These ranged from poor communication and inconsistencies in policies between prisons to a lack of contact due to distance. For example one respondent said that ‘The whole process of dealing with the prison service has been very inefficient and frustrating.’ Many families felt that probation should be doing a lot more to ensure progression towards release. Others spoke of long delays in the parole process, deferred hearings, and this all making a ‘really, really hard emotional journey’ even more difficult.

Many families put in a great deal of work to support their relative. While many family members are pleased that they can take action to help their relative, this does present challenges and put pressures on them. Some families told us that just having some recognition by relevant organisations (for example probation and parole) of their actions and how important they are would make a big difference to them. In addition to the work required of family members, the IPP sentence also often puts strain on family relationships. Many family members also reported serious health problems relating to the stresses and strains of the situation described above.

This research will provide further evidence to support arguments for additional legislative action to be taken in relation to IPP sentences. The majority of IPP prisoners are over tariff, and many have now served 3-4 times their tariff period. Proposals such as a ‘sunset clause’, where IPP prisoners cannot be imprisoned for longer than the maximum available sentence length for the offence committed, remain attractive. There are also steps that can, and should, be taken in relation to the licence period. Most obviously shortening its default length (from life); reducing the time from which a prisoner can apply for it to be lifted (from 10 years); and changing what happens when an IPP prisoner is recalled to prison (for example not returning them onto the original IPP sentence, or changing the release test for their subsequent parole hearing). Thankfully organisations like the Parole Board and the National Probation Service are increasingly aware of the important role played by families, and their need for advice and support. We hope that our research will help to move this agenda forwards and in particular ensure that the specific issues relating to IPP prisoners are addressed.

Dr Harry Annison, Dr Rachel Condry and Anna Leathem

Exploring the internal dynamics of the Ministry of Justice

Exploring the Ministry of Justice, Explaining Penal Policy

Dr Harry Annison

Southampton Law School

Much of my research, and my teaching, explores issues of penal policy and in particular the political and policymaking processes that are involved in criminal justice policy. Issues relating to prisons, punishment, policing and so on are often highly emotive, technically complex and subject to fierce political debate.

As part of this ongoing work, in a recent paper I considered the history of the UK Ministry of Justice and what it “is”: what are the traditions (the collections of beliefs) that underpin the ongoing activities of those within the department’s concrete obelisk home? I suggest that understanding what the department “is” in this way, is an important consideration when trying to understand particular policy developments such as those highlighted above. (Note that while the Ministry of Justice is part of the UK government, responsibility for criminal justice in Scotland is a devolved matter: the MoJ is therefore responsible for policy in England and Wales).

Drawing on ‘elite’ research interviews conducted with nearly 100 policy participants (including ministers, senior civil servants, MPs, and many more), I argued that there exist four ‘Ministries’:

A liberal department centred upon justice and fairness;
One determined to achieve the rehabilitation of offenders;
One obsessed with public protection;
One steeped in new managerialism

For some the Ministry of Justice is (or was) the ‘balancing department’, ‘the ones who did the checks and balances’ (research quotes from civil servants). For others, public protection is the dominant paradigm: avoiding high profile, serious incidents in the community, and ensuring ‘security of the [prison] estate’ (research quote from special adviser) is the overriding concern.

For others still, rehabilitation was the raison d’etre of the department (those parts tasked with prisons and probation policy, in particular). While often operating more at the level of rhetoric than reality, it was a ‘noble aim’ that sustained the department (civil servant), and indeed recurs in public debate with striking frequency.

Finally, for some managerialism had come to dominate, with aspirations for ‘an end-to-end criminal justice system’ (Lord Falconer, evidence to Constitutional Affairs Committee, 2007) flowing into benchmarking of prison services against the private sector, and talk of ‘capability gaps’, ‘business critical requirements’ and ‘doing better for less’.

These traditions – ideas about what the department is, and what it is for, collide and combine; they compete. In turn the department has been buffeted by a series of dilemmas – questions that raise profound questions about its nature and role. These include:

Is its political head a judicial representative (in his role as Lord Chancellor) or a government minister (as Justice Secretary)? Can he or she be both?
Is the Ministry of Justice a centralised department, or an assortment of largely discreet parts?
Are the ‘policy’ and ‘operational’ aspects (of prisons, probation, legal aid, and so on) to be fused, or kept separate?
Is the goal of the department patient implementation of policy, or political responsiveness to immediate events?

These concerns, and developing such ‘internal’ narratives of a government department, may seem inward-looking, self-regarding, and to pale into insignificance compared to the serious concerns identified at the beginning of this blog post.But as I have argued in a recent paper for the
British Journal of Criminology, the activity in any department is characterized by a complex interplay between perceived conditions ‘out there’ (austerity, election cycles, and so on), ‘internal’ considerations (informed by the traditions and dilemmas identified above) and work on specific policy areas.

Therefore, if one seeks to understand developments in a particular policy area – and as importantly, to consider how to achieve positive change in that field – a crucial part of this enterprise requires understanding this ‘internal’ aspect of policymakers’ concerns.

The working paper ‘Decentring the UK Ministry/s of Justice’ is available here

The finalized paper is published as a chapter entitled ‘What is Penal Policy? Traditions and practices in the UK Ministry of Justice’, in Narrative Policy Analysis: Cases in decentred policy, edited by RAW Rhodes and published by Palgrave Macmillan in May 2018.

The paper ‘The Policymakers’ Dilemma: Change, continuity and enduring rationalities of penal policy’ is published in the British Journal of Criminology and available here

A longer version of this blog post is available at the BSC (British Society of Criminology) Blog site: https://thebscblog.wordpress.com/2018/06/13/exploring-the-uk-ministry-of-justice-explaining-penal-policy/

Rape Myths and Medusa’s Gaze: a story of windows and mirrors

It is a little while now since the media storm surrounding the Ched Evans rape case died down following the footballer’s acquittal at retrial. Since that time, attention has moved on to a much larger story about alleged sexual wrongdoing in Hollywood, and the prosecution of Harvey Weinstein may well also turn on the issue of consent and the relevance or otherwise of complainants’ sexual histories. Such cases force us to confront difficult and important questions about what the interests of justice require to be made visible and must be kept hidden from view. In an article published just now in the International Journal of Law and Context (‘Ched Evans, Rape Myths and Medusa’s Gaze: a story of windows and mirrors’), I discuss some ways in which the legal debate about defendants seeking to discredit a complainant using details of the latter’s sexual life is itself part of a larger voyeuristic culture. The article considers the decisive second Evans Court of Appeal judgment, and this post offers some reflections that draw on that article.

Appeal judgments often offer up narrative details that seem irrelevant to the legal point at issue, but in fact tell of a deeper significance. Hallet LJ described two men who, on the night in question, sought to watch and film the defendant, his friend, and the complainant (‘X’) through the window of the ground floor hotel room where the incident was taking place. Their efforts were thwarted at a certain point when the curtains were closed. Does this scene not perfectly capture the essence of the case as a whole: the complainant’s identity concealed on one level by curtains as if in a private theatre, and on another by her designation in the legal judgment euphemistically by the letter ‘X’ – that signifier of censored content that simultaneously veils and draws attention? If the vignette of two men peering through a window mirrors a broader cultural voyeurism that surrounded the case, then so too did the Court’s own framing of the legal issue in terms of the justifiability of ‘indulg[ing] in a forensic examination of [X’s] sexual behaviour with others’ [para 74]. As we know, the Court did indeed decide that such ‘indulgence’ was justifiable, on the basis that the testimony of X’s purported acts of consensual drunken, rough and loud sex [paras. 12, 13, 24, 33, 35, 39, 52, 56, 58, 71] – constituted relevant and admissible evidence that a jury could well regard as corroborating Evans’s own testimony that X consented.

What the Evans judgment seems to affirm is something long argued by commentators of variously feminist positions: that there is a certain relationship between the power of visual spectacle and the imperatives of justice that, placed in the context of our existing gendered norms about ‘proper’ sexual behaviour, may disadvantage women. In this case, the evidence in question indicated that X was a violator of traditional feminine norms: that far from a sexual ‘gatekeeper’ of men’s morals X was an aggressive initiator of casual sex, and thus more masculine than feminine in terms of traditional gendered sex roles. Much was written at the time of retrial on how this fact engages the myth referred to by Hallet LJ herself, that ‘unchaste women are more likely to consent to intercourse and in any case, are less worthy of belief’ [para. 44]. Indeed, beliefs of this kind – well exploited by Evans’s defence team in soliciting the fresh evidence – are reinforced by a ‘just world’ philosophy: that ‘bad girls’ like X have no cause to complain about the consequences of their own risky and disapproved-of sexual behaviours.

If it is the case that the Court’s judgment may have reinforced such myths then this is of course a serious matter. However, the judgment is instructive furthermore about what criminal justice ‘sees’ when it turns its gaze on a case like Evans’s. It is to this issue that I want to get, which takes us some way beyond the usual debates about rape culture and what a ‘not guilty’ verdict really means. In finding its way to legitimising ‘indulgence’ in the sexual details of X’s private life, the Court reminds us of that image with which we started: of those tawdry observers peering through the hotel window, hoping to catch a glimpse of X and who understand her only in terms of an object for view. The Court, like those gawping men, thus serves as a mirror of cultural prejudices rather than a means by which to dispel them. This affords an explanation for lingering dissatisfaction (at least among ‘elite opinion’) with the retrial verdict: not on account of the factual question of whether Evans really did rape X after all, but rather the confirmation that the criminal justice gaze is ally to the voyeuristic and objectifying male gaze.

If the Evans judgment represents any sort of failure on the part of the judiciary then, it is a failure of the imagination: to imagine a view from the standpoint of the supposed ‘object’. Finding ways towards accommodating alternative perspectives is one of the key contributions of ‘law and humanities’ approaches to legal studies. What we need is criminal justice that has the imaginative capacity to countenance the object of its gaze ‘looking back’ – that is cognisant of the dangers of objectification and that makes room for something of the spirit of the mythic Medusa. In that myth, the hero Perseus knew that while he looked at Medusa only in the reflection of his polished shield, he was invulnerable to her monstrous feminine gaze. If rape myths are a kind of ‘shield’ that reinforces the male gaze, then the story of how Perseus killed Medusa seems perfectly to literalise that. The aims of feminist critiques of rape myths have tended to rehearse that struggle: to, so to speak, render Perseus’ shield transparent somehow and thereby to force dominant masculinity to reckon with another perspective on the question of what it means to do justice for both defendants and complainants.

David Gurnham, Professor of Criminal Law and Interdisciplinary Legal Studies, Southampton Law School

Data Protection and data analytics: what is Art. 29 WP really saying to businesses wanting to innovate with data?

In three-month time, the General Data Protection Regulation (GDPR), will become applicable to many, if not all, data processing activities to which living individuals can be associated. Businesses operating in Europe have had about two years to prepare for this change. As readers know, even if the GDPR is a lengthy piece of legislation, additional interpretative guidance is very much welcome to create and aid understanding about the ‘links’ between key concepts arising across the different pieces of the legislative ‘jigsaw’. The influential EU Article 29 Data Protection Working Party (Art. 29 WP) has therefore been working hard these past few months to give context to some of the most important GDPR requirements: e.g. by publishing guidelines on issues such as data protection impact assessment, data protection officers, the right to data portability, automated individual decision-making and profiling, personal data breach notification, consent, and transparency.

For new comers to the field, excited about working with data (including personal data) to build and develop smart algorithmic systems, getting simple answers to key questions about how to comply with the GDPR is not always easy. [The same is often probably true for avid readers of the GDPR…]

What if one had only 1000 words to explain to businesses wanting to innovate with data relating to people what the GDPR is about? What would the message be?

For the sake of this thought exercise attempted here, we should probably assume that data innovation, in the main, implies the repurposing of data. The data is first collected for a specific or specified purpose and is then processed for a different purpose, one that most likely was not anticipated at the initial stage of collection by the data controller.

One of the first questions to pose in that context is whether a new legal (‘lawful’) basis is needed to comply with EU data protection law for this change of purpose. Under GDPR Article 6, the principle of lawfulness demands that at least one legal basis (chosen from a limited list of options) be identified to justify a personal data processing activity, either: consent; performance of a contract or steps necessary to entering into a contract; protection of the vital interests of the data subject; performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or, necessary to achieve legitimate interests pursued by the data controller, or by a third party, as long as the interests are not overridden by the interests or fundamental rights and freedoms of the data subjects.

Reading both Article 6(4) GDPR and the last version of Art. 29 WP guidelines on consent (‘WP259’) in conjunction, it appears that if the initial legal basis relied upon to justify personal data processing is consent, the only way to comply with the principle of lawfulness at the second stage (the data analytics stage) is to seek consent again.

This is what Art. 29 WP writes at p. 12 of WP259: “If a controller processes data based on consent and wishes to process the data for a new purpose, the controller needs to seek a new consent from the data subject for the new processing purpose.”

Nevertheless, Art. 29 WP is mindful of the fact that the law is changing and the GDPR introduces stricter conditions for obtaining informed consent where it is being relied upon by a data controller. It therefore adds (p. 30): “If a controller finds that the consent previously obtained under the old legislation will not meet the standard of GDPR consent, then controllers must assess whether the processing may be based on a different lawful basis, taking into account the conditions set by the GDPR. However, this is a one off situation as controllers are moving from applying the Directive to applying the GDPR. Under the GDPR, it is not possible to swap between one lawful basis and another.”

GDPR Art. 6(4) and Recital 50 seem to confirm that – following the GDPR coming into force – if the initial legal basis to be relied upon to justify processing personal data is consent, the doctrine of (in)compatibility of purposes (to ensure compliance with the so-called principle of ‘purpose limitation’) is not applicable. [Note that there has not always been consensus on the exact effects of the doctrine of (in)compatibility of purposes, see my previous post here, but Recital 50 now clarifies that “[t]he processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required.”].

But then, even if one is ready to seek consent again at the data analytics stage, could data subjects really be said to be capable of providing meaningful consent to such secondary practices? Article 6(4) provides that consent can only be given in relation to specific purposes.

Recital 33 GDPR suggests that, for scientific research purposes, the principle of purpose limitation should be relaxed. This is because, “It is often not possible to fully identify the purpose of personal data processing for scientific research purposes at the time of data collection. Therefore, data subjects should be allowed to give their consent to certain areas of scientific research when in keeping with recognised ethical standards for scientific research. Data subjects should have the opportunity to give their consent only to certain areas of research or parts of research projects to the extent allowed by the intended purpose.”

Although the GDPR seems to adopt a broad definition of scientific research, which covers “technological development and demonstration, fundamental research, applied research and privately funded research” (Recital 159), this relaxation per definition only applies to scientific research. Data analytics practices are not necessarily tantamount to scientific research activities. In fact, in most cases they do not involve researchers at all.

This explains why the GDPR uses a different term to describe data analytics: that of ‘general analysis.’ In Recital 29, one reads as follows:

“In order to create incentives to apply pseudonymisation when processing personal data, measures of pseudonymisation should, whilst allowing general analysis, be possible within the same controller when that controller has taken technical and organisational measures necessary to ensure, for the processing concerned, that this Regulation is implemented, and that additional information for attributing the personal data to a specific data subject is kept separately.”

What could Recital 29 mean?

It seems to suggests that, assuming the initial data controller also performs the secondary ‘general analysis’, the new purpose pursued at this later stage should be deemed compatible with the initial purpose at least where a process of pseudonymisation (see Article 4(5) for the GDPR definition of ‘pseudonymisation’ matching the description in Recital 29) is applied to the personal data post-collection. Therefore, could we also surmise – logically – that, assuming consent was not the initial legal basis relied upon to justify the collection of the personal data originally, no new legal basis would be needed to justify its secondary usage?

On the other hand, by contrast, what if the secondary ‘general analysis’ of that same personal data was actually to be undertaken by a third party, which implies that the data controller would transfer the data set to a recipient [e.g. a start-up] to carry out the innovatory analytics job? Would the old and new purposes be necessarily incompatible? If the answer is yes, a new legal basis would then be needed to justify the secondary processing at the data analytics stage.

What should a start-up receiving personal data from a data provider, to develop a solution and sell it back to the data provider, really do then?

At a minimum, the start-up should probably check what the legal basis for the repurposing of the data is likely to be, BUT ALSO whether the initial legal basis relied upon by the data provider in collecting/creating the personal data was consent obtained from the data subject, or not.

Taking this analysis one step further, assuming there is an argument [which is not straightforward as explained above] that the processing of personal data for general analysis (secondary analytics) purposes was compatible with the initial purpose justifying the original collection –even if the general analysis is to be undertaken by a third party on behalf of the data controller – that third party should in principle receive the data after a pseudonymisation process has been applied to the personal data.

Start-ups should therefore specifically ask for pseudonymised data from the provider of the data they will be experimenting with, whenever possible.

This makes particular sense in the light of Article 11 GDPR, which expressly states in alluding to a state of personal data very similar to the state of personal data that has undergone the process of GDPR pseudonymisation, that if “the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.” [As a reminder, Article 15-20 GDPR refers to the data subject’s rights of: access by the data subject; to rectification; to erasure; to restriction of processing; and, to data portability].

Surprisingly the right to object is not exempted under Article 11 as it is governed by Article 21, whereas Article 12(2) expressly states: “In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.” [How do we explain this?]

But that is probably not all that we can infer from the above logic being suggested.

Under GDPR Art. 4(4) ‘profiling’ means “any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.”

Whereas, reading Art. 29 WP guidelines on automated individual decision-making and profiling (‘WP251’, recently adopted in final form here), it appears clear that the Art.29 WP envisages that the secondary data analytics stage, i.e. analysis to identify correlations in personal datasets at a later time period, is covered by this GDPR definition of profiling. Specifically, it alludes to the fact that analysis to identify correlations would/should fall underwould/should fall under the GDPR definition of profiling. (p.7).

As a result, if the data shared retains individual level data points [a fact that is consistent with the process of pseudonymisation being applied to personal data precisely to minimise the risk of harm arising to data subjects consequential to later processing activities], there is an argument that the recipient responsible for the data analytics effort may yet be determined to be engaging in profiling activities whenever it looks for patterns of commonalities. [The way the ultimate purpose of the set of processing activities is described could make the difference. E.g. “I am analysing data generated by driverless cars to identify where the most accidents take place and adapt road signs”].

As profiling activities require special care under the GDPR, in particular if such activities are followed by individual decisions taken as a result of profiles created (see GDPR Art.22 and Art. 35, for example), start-ups could find it useful to check with their data providers whether a data protection impact assessment has been undertaken to make sure the future risks for the individual data subjects – those at the very centre of the data analytics ‘story’ – have been taken into account and mitigated at an early stage.

What is the moral of the story? Data providers and start-ups should probably work closely together when doing people-centric data innovation or…. 1000 words is never enough to tell a data protection story!

Sophie Stalla-Bourdillon

This article was first published on Peep Beep!, a blog dedicated to information law.