Linking Atrocity Crimes and Economic Gain in the Democratic Republic of Congo

Nina Jørgensen, 27 October 2026       8 mins read

The 24th of October 2026 marked the 30th anniversary of the start of the First Congo War (1996-1997) which was closely followed by a Second Congo War (1998-2003), dubbed the deadliest conflict since World War Two.  This in turn merged into continuing and escalating violence involving a plethora of State and non-State armed groups, such as the notorious March 23 Movement (‘M23’), leaving in its wake hundreds of thousands of victims of international crimes committed on an unfathomable scale.  The battle for control of the DRC’s considerable natural resources – ranging from diamonds, cobalt and coltan to timber and coffee – is a connecting feature of the allegations of serious human rights violations against individuals, groups and States.

Resource extraction has come to characterise Congo’s wars dating back to colonial times (1885-1960) when mass atrocities were committed while extracting rubber and ivory, especially under the rule of King Leopold II of Belgium. Today, conflict is sustained by using profits from unlawfully extracted minerals to buy weapons which are often placed in the hands of child soldiers.  Amidst the ongoing armed scramble for Congo’s riches, a culture of impunity prevails. 

‘Genocost’ – the DRC’s rallying cry for justice

The term ‘genocost’ was coined by Congolese youth activists in 2013 to describe the phenomenon of mass atrocities motivated by economic gain.  It was formally adopted by the Congolese government in Law No. 22/065 (2022) which denominated 2 August – the date the Second Congo War began – as a day to mark genocost by paying homage to the victims of sexual violence and other crimes against peace and humanity during the many years of conflict.  The label ‘genocost’ serves as a rallying cry for justice and the urgent implementation of measures to combat impunity.  It captures the continuity of unlawful, exploitative conduct over decades.  The African Commission on Human and Peoples’ Rights has urged for a response to this history of grave violations of international law founded on the rights to truth, justice, reparations and non-recurrence. These rights also underpin the DRC’s campaign to break the silence surrounding these issues.

Genocost is not currently recognised as a legal term, but like other terms that have come to characterize patterns of atrocities – such as ‘ethnic cleansing’ – the acts it describes may fall under the banner of war crimes, crimes against humanity and genocide.  Yet, the DRC’s efforts to uncover the truth about the decades-long unlawful exploitation of natural resources, and to obtain both international acknowledgement and reparations from neighbouring countries that may be implicated in this conduct, has given increasing prominence to the idea of genocost. In June 2026, the DRC initiated proceedings against Rwanda before the International Court of Justice (ICJ) under Article IX of the Genocide Convention (1948), alleging widespread human rights violations by Rwandan State-supported armed groups operating in the DRC since 1996. The DRC also brought proceedings against Rwanda before the African Court on Human and Peoples’ Rights which was its first inter-State application (2025). Reparations had previously been won by the DRC against Uganda in the ICJ (2005) for the role of Ugandan armed forces in plundering natural resources as an occupying power in the DRC’s Ituri district.  However, the ICJ did not directly connect the exploitation of these resources with its findings as to acts of killing, torture and inhumane treatment of Congolese civilians constituting violations of international human rights law and international humanitarian law.

Meanwhile, the experts involved in the UN’s 2010 Mapping Report – still the most important record of the atrocities committed during the first two decades of conflict in the DRC – found a substantial dynamic between the occupation and exploitation of areas rich in natural resources and the likely international crimes committed by members of the internal warring factions.  In their view, responsibility for the violations could potentially be shared with foreign State-owned or private companies.  It was not the job of the experts to establish individual criminal responsibility, but they expressed confidence that numerous recorded incidents could be legally classified as war crimes or crimes against humanity, whilst reserving any conclusion as to the requisite intent for genocide. 

Two DRC referrals to the ICC – 20 years apart but with genocost continuities

The jurisdiction of the International Criminal Court (ICC) is limited to crimes committed after the Rome Statute came into effect on 1 July 2002.  Alleged crimes committed within the territory of the DRC since that date were referred to the Court by the government of the DRC in 2004, with a further referral in 2023, as it concerned alleged crimes committed in North Kivu since January 2022. 

The ICC Prosecution has taken the position that the alleged crimes covered by the two separate DRC referrals are closely connected, although a pre-trial chamber addressing the second referral declined formally to merge the investigations. It may be speculated that the Prosecution had in mind the connection between the exploitation of resources and the commission of crimes in its assessment of the continuity of actors, victims and contextual patterns throughout the period since 2002. This would be consistent with the Prosecution’s policy paper (2003) where it indicated an investigative focus on financial links with crimes.  

Such an investigative focus is not borne out by the ICC’s modest number of completed cases in the DRC situation to date. In Lubanga (2012) the former President of the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities.  The economic motivation for the violence in Ituri from 1999 to 2003 was mentioned only in the background section to the judgment.  Similarly, in Katanga (2014), only passing reference was made to the geography of Ituri and North Kivu and their immense assets in terms of forest and mineral resources. In Ntaganda (2019) it was again noted that groups acting both within and outside the DRC sought to exploit Ituri’s rich resources and that the competition for these resources was a factor in the conflict. 

Meanwhile, the case against Chui led to an acquittal, while the charges against Mbarushimana were not confirmed, and Mudacumura, the alleged Supreme Commander of the Forces Démocratiques pour la Libération du Rwanda, remains at large. 

An ongoing conflict of such a wide scope inevitably presents investigative challenges and the ICC’s own resources are finite, perhaps hampering its ability to pursue the economic aspect of alleged crimes in the DRC situation.  Moreover, the ICC faces a key constraint in that it has jurisdiction only over natural persons and is therefore unable to prosecute the corporations that finance and profit from resource extraction carried out through criminal means.  Individual perpetrators at the financial leadership and decision-making level may be difficult to identify, while economic gain is often simply a motivation for criminal conduct and irrelevant to proving the elements of the crimes.  There is a dearth of modern precedents with the trial of the former Liberian President, Charles Taylor, before the Special Court for Sierra Leone, being peripherally relevant. Taylor was convicted in 2012 for crimes linked to the trading of arms for diamonds in support of rebel groups in Sierra Leone.  Félicien Kabuga was charged before the International Criminal Tribunal for Rwanda in relation to his alleged role as a financier of the 1994 Rwandan genocide, but he was arrested only in 2020 and subsequently deemed unfit to continue his trial. 

International prosecutions to complement national prosecutions

The ICC Prosecution’s Policy paper on case selection and prioritisation (2016) indicated that it would seek to cooperate with states concerning conduct which constitutes a serious crime under national law, such as the illegal exploitation of natural resources. This is an exercise of the complementarity principle whereby domestic courts carry the main burden of holding criminal trials and the ICC serves as a court of last resort.  According to the policy paper, the ICC would itself prioritise, among other categories, crimes committed by means of, or resulting in, the illegal exploitation of natural resources.   

While the DRC has conducted a significant number of prosecutions domestically and awarded reparations to victims, and trials are possible globally under the principle of universal jurisdiction, it is unlikely that domestic courts have the capacity to uncover the true scale of criminality associated with resource exploitation. The ICC would therefore be best placed to investigate the conduct of senior political and military leaders, and the regional and international networks that provide financing and arms to groups operating in DRC’s territory.  The magnitude of the task of holding the perpetrators to account while securing the rights of victims who may participate in ICC proceedings and claim reparations should not be underestimated.  The period since January 2022 has been prioritised as part of the ICC’s renewed investigative effort in the DRC, placing emphasis on the most recent phase of the conflict. 

In awarding this year’s Nobel Peace Prize to Navi Pillay, the Norwegian Nobel Committee stressed that peace requires justice. Uncovering the connection between the exploitation of natural resources and international crimes is central to both peace and justice in the DRC.  Against the backdrop of an unending conflict, victims wait for justice and the redistribution of plundered assets in their favour, while the crimes underlying Congo’s genocost fade further into history. 

Two-State Solution x 2

Britain called Israel’s occupation unlawful. It should say the same of Western Sahara.

Andrea Maria Pelliconi,   2 October 2026          6 mins read

Ed Miliband’s statement to the Commons on 8 September 2026 was an act of legal and moral clarity. The Foreign Secretary announced that the Government now regards Israel’s occupation of the West Bank as unlawful, adopting the conclusion of the International Court of Justice’s 2024 advisory opinion amid Israel’s explicit intention to extend permanent sovereignty through an expansionist settlement agenda. Miliband was right to say that Britain shall not be a bystander to the destruction of the Palestinian people’s right to self-determination and insist that the law does not bend to the convenience of the powerful. But the Government’s abidance by international law should be measured by its coherence. Fourteen months before that statement, the same Labour Government – under Keir Starmer – took the opposite side on an identical question.

In June 2025 the UK abandoned five decades of neutrality on Western Sahara. In its joint communiqué with Rabat, it declared Morocco’s 2007 autonomy proposal “the most credible, viable and pragmatic basis” for resolving the dispute. The plan offers the Saharawi people autonomy within the Moroccan state and forecloses independence altogether. The UK’s endorsement of the plan is part of a broader diplomatic current, led by Washington, pushing to convert the Moroccan proposal into a settled international position. The message that the UK’s endorsement of the Moroccan plan sends to occupying powers worldwide is that occupation, once entrenched deeply enough and for long enough, will in time be rewarded with recognition. This is the opposite of what the Foreign Secretary affirms for the West Bank.

There is a clear parallel between the situations of Palestine and Western Sahara, which has been a listed Non-Self-Governing Territory since 1963. In 1975 the ICJ found that Morocco had no sovereignty over the territory and the Sahrawi people held the right to self-determination. Morocco then spent the following decades entrenching its control over roughly four-fifths of the territory through settlements, financial inducement, and large-scale infrastructures and development projects, while simultaneously displacing the Saharawi to nearby countries, until they became a minority in their own homeland. In 1991, the UN deployed MINURSO to organise a referendum on self-determination which was never held, obstructed above all by disputes over who may vote, with Morocco seeking to enrol its own settlers and to exclude displaced Saharawi. Western Sahara has faced prolonged occupation, settlement and demographic change, the establishment of irreversible facts on the ground, and the drive to turn occupation into permanent annexation – just as in the West Bank.

The two cases’ resemblance means the law that governs both is, or should be, the same. The 2024 ICJ opinion not only declared Israel’s occupation unlawful but also reaffirmed the general duty of states not to recognise a situation created by a serious breach of peremptory   norms, nor to render aid or assistance in maintaining it, and to cooperate in bringing it to an end. That duty applies to all situations of denial of self-determination, the unlawful acquisition of territory, and the entrenchment of settlement in occupied land. Morocco’s presence in Western Sahara engages each of those wrongs. A government that treats the duty of non-recognition as binding in the West Bank cannot treat it as optional in Western Sahara.

The Court of Justice of the European Union has understood this. In its Front Polisario judgments, culminating in the ruling of 4 October 2024, it held that EU-Morocco trade agreements could not lawfully extend to Western Sahara absent the consent of the Sahrawi people, including those who have been displaced, and it has been equally clear that the territory is not part of Morocco and has a separate and distinct status. Britain’s June 2025 communiqué moves in the opposite direction to the CJEU as it treats deeper economic engagement as a contribution to the dispute’s resolution rather than as an act that entrenches the very situation international law obliges third states not to recognise.

The latest communiqué on Palestine reaffirmed British support for a two-state solution between Israel and a sovereign, viable Palestinian state, and the Foreign Secretary built his entire statement a few days ago around that objective – as the “North Star” of British policy, in the words of Miliband himself. Self-determination cannot be a right Britain upholds for Palestinians and withholds from the Saharawi. If the UK advocates for a two-state solution for Israelis and Palestinians, it cannot exclude the possibility of the same outcome for Moroccans and Saharawi by endorsing a plan that only presupposes integration. Autonomy may well be one legitimate option, but it cannot be the only one on the table. The Saharawi are entitled to choose freely either integration with Morocco or independent statehood. A choice narrowed to a single permitted result is not a choice, and it is not what the 1975 opinion or the referendum mandate contemplated.

It might be objected that the two cases are not alike and comparable, because the scale of violence in Palestine is far greater than anything in Western Sahara today, and that this justifies more urgent condemnation of Israel regardless of what the law says in the abstract. The premise is largely true, as the level of ongoing violence in both Gaza and the West Bank is higher, and the ongoing armed conflict between Morocco and the Polisario Front, reignited in 2020 after the collapse of the ceasefire, goes almost entirely unremarked. The fighting takes place outside the occupied territory, around which Morocco has built a military wall to keep outside the displaced Sahrawis and the Polisario Front. This not only shows that Morocco’s occupation of Western Sahara is not less serious than the West Bank – if anything, it is more entrenched, which would require stronger responses. In the early years of the occupation Morocco drove the majority of the Saharawi population into exile, killing many in the process, in events that Saharawi describe as ethnic cleansing and genocide; today, only one quarter of Sahrawi lives in Morocco, facing continued oppression and discrimination.

In terms of legal obligations under international law, the wrongful nature of an occupation does not (only) rest on the violence it generates but in the occupation itself, as the ICJ has held in its 2024 advisory opinion. Britain and others shouldn’t have waited for such a tragic escalation in Palestine to take serious action on Israel’s occupation. And Western Sahara demonstrates that an unlawful occupation left unaddressed for fifty years never resolves itself; to the contrary, it was precisely when states such as the United States began to recognise Moroccan sovereignty over the occupied territory, in exchange for normalisation with Israel in 2020, that the armed conflict resumed, leading to more violence.

Ed Miliband correctly told the House that Britain loses credibility and influence on the world stage when it fails to uphold the values it professes. If Britain holds itself bound by the ICJ’s 2024 opinion on the West Bank, it should hold itself bound by the ICJ’s 1975 opinion on Western Sahara. It should reflect the duty of non-recognition in all the economic relationships it chooses, rather than expanding trade, finance, and infrastructure into another occupied territory. And it should withdraw its June 2025 endorsement of a plan with a foreclosed outcome, support self-determination for Africa’s oldest incomplete decolonisation, and let the Saharawi decide their own future.

From empty homes to social housing?

Mark Jordan, 11 August 2026      8 mins read

England’s housing ‘crisis’ is characterised by a striking contradiction: as housing need reaches new levels, so too does the number of empty homes. This contradiction was brought home to me in vivid detail during my 2025 secondment at Southampton City Council, when I shadowed officers tackling nearly 4,000 empty homes in the city. It was troubling that so many homes were left empty while there were over 8,000 households on the housing waiting list. Standing before an empty home overlooking the River Itchen, it seemed to me that these two figures were deeply connected but there is little in legal scholarship to suggest that the plight of those without housing is relevant – or made relevant – to the owner’s decision to leave housing empty. I was left struggling to understand exactly what role the law played in the making, and unmaking, of empty homes.  

A highly visible empty home in Southampton. 

The reasons behind empty homes

In England, there are over 1 million empty homes today and there is growing pressure on policy makers to do more to get these homes into use. Although often associated with property hotspots in major cities, empty homes are on the rise across the world in both rural and urban areas. Concern about empty homes has generated a plethora of policy interventions including those of the carrot variety (subsidies and grants) and the stick variety (taxes, controls, enforcement). 

What is driving the proliferation of empty homes? For some, it is simply the result of the forces of supply and demand in operation. Taking this logic further, it has been argued that empty homes are not inherently problematic but rather indicate that the supply of housing is outstripping demand, thereby alleviating affordability pressures. But if this were the case, why is the number of empty homes increasing in cities, such as London, Vancouver or Melbourne, where there is growing unmet need for affordable housing? 

Others attribute the phenomenon to the commodification of housing, which has converted housing into an asset class integrated into global financial markets. This distorts housing systems to overproduce housing that is at odds with local demand and need, but also subjects more housing to speculative investment practices, such as Buy-To-Leave, leading to more homes being left empty. 

Despite the validity of this explanation, it does not seem to capture the heterogeneity of empty homes I saw in Southampton. Some homes are left empty for economic reasons, but others are left empty for emotional or psychological reasons, including attachment to a former childhood home, grief, anxiety, and family disputes. How could the latter (non-economic) reasons for leaving housing empty be reconciled with the commodification explanation? 

The Forest of Bere: from customary forest rights to the capital offences in support of land rights

All these questions led me to the Forest of Bere in the hope that a spring walk among the bluebells might help make sense of the empty home conundrum. The Forest is a short trip from Southampton and aside from providing a pleasant place for a walk, it also has a fascinating history. The Normans made Bere a Royal Forest. Although used by monarchs to hunt deer, the local people had long-standing customary rights, including gathering wood, grazing animals, and hunting. 

During the 18th century, these rights came under attack as powerful landowners, deploying their colonial plunder, began buying up forest land. At that time, English land law – conforming to the ownership model of property – provided the owners with strong rights to control the land, exclude others, and preserve it for their hunts. 

Bluebells in the Forest of Bere.

The conflict between the foresters and the landed elite is recounted in E.P. Thompson’s Whigs and Hunters: The Origin of the Black Act (1975). Thompson describes how foresters responded to restrictions on their use rights by forming bands of men and women that would raid the forest at night, disguising their faces with wood ash. In targeting deer, fences, and symbols of authority, Thompson characterises their actions not as random crimes but as organised social protest. 

The state’s response was draconian and involved passage of the Black Act (1723) which created dozens of new capital offenses, including for hunting deer and poaching. For Thompson, the Black Act illustrates how the law is not a set of neutral rules. By defending elite property rights while oppressing and discipling the rural poor, the law functioned as a mechanism of class power. 

Law as a legitimation of power – and a constraint on power 

However, defending property rights through legal institutions, rather than arbitrary force, carried risks. Governing through law meant that elites could themselves become constrained by the legal rules and principles that gave legal authority its legitimacy. Offences had to be defined, evidence gathered and proved, and juries had to deliver verdicts. Each aspect created space for communities to resist by exposing inconsistencies, not cooperating with prosecutions, and by juries refusing to convict. While this did not transcend the underlying power imbalance animating the conflict, it shows how law cannot wholly be reduced to an instrument of class domination.

The contests also demonstrated for Thompson how law is not separate from society but is embedded in the social and economic relationships that organise everyday life. Because property, markets, and political authority all depend on legal rules, law does more than reflect power, it also shapes, maintains and constrains power. The potential for law to direct and limit power in meaningful ways was understood by the foresters who engaged with the law as a site of struggle, in which competing conceptions of property and justice could be articulated, contested, and potentially institutionalised.

Empty houses as a new site of contestation on the limits of property rights

Thompson’s analysis can help to make sense of how the law shapes the making of empty homes today. Much like it did in the 18th century, English land law continues to provide the owner with strong rights to control land. As Paddy Ireland explains in Property in Contemporary Capitalism (2024) under the ownership model of property, rights are not absolute, but they tend in that direction, manifesting in a presumptive power for the owner to leave housing empty. This is subject to no meaningful obligation to consider how the decision to leave housing empty might impact on those struggling to access housing. The law is not neutral. It privileges owners by empowering them to leave housing empty for economic reasons (luxury Buy-to-leave apartments) or personal or emotional reasons (derelict houses on the Itchen) and enables them to ignore the distributive consequences of leaving housing empty.

A less visible empty home in Southampton.

Yet during my time at the Council, I heard from Councillors how they were coming under increasing political pressure from the public to do more to tackle empty homes. Just as the law could facilitate the making of empty homes, I learned from officers about the web of legal powers that could be used to unmake empty homes and get them back into use. One such power is the Empty Dwelling Management Order (EDMOs) which enables a local authority to take control of a long-term empty home and use it as social housing. 

Empty Dwelling Management Orders: from empty homes to social housing? 

EDMOs present a challenge to the ownership model of property by defining the limits of the owner’s right to leave housing empty. They, thereby implicitly challenge the absolutist notion that the owner is free to control housing as they see fit. In doing so, they reflect an understanding that property rights in housing are conditional on fulfilling a social obligation or function. Furthermore, by empowering a local authority to take control of an empty home and use it as social housing, EDMOs draw a connection between the owner’s private decision to leave housing empty and the public plight of those struggling to access housing. In doing so, they make visible, and offer a means of confronting, the distributive implications of the owner’s decision to leave housing empty.

Despite the potential of EDMOs, they are grossly underused. While deep cuts in local authority budgets have reduced capacity for enforcement, the Localism Act 2011 made it much harder for local authorities to obtain an EDMO. This reform increased the qualifying vacancy requirement from six months to two years and required much stronger justification, such as nuisance. Announcing the reforms in January 2011, Eric Pickles the Secretary of State for Communities and Local Government, characterised EDMOs as “draconian and heavy-handed state powers” and argued that reform was necessary to “protect civil liberties” and to safeguard the “fundamental human right … to property” (p18). 

The restriction of EDMOs arguably reflects a selective concern to protect the ‘civil liberties’ of owners of empty homes over the rights of those struggling to access housing and thus overlooks how those struggles may be exacerbated the decision of the owner to leave housing empty. In many ways, it illustrates the enduring strength of the ownership model of property, which emphasises the private, absolute, and exclusive nature of the owner’s rights and downplays the notion that ownership is attended with social obligations. Perhaps most significantly, the reform has undermined public enforcement against empty homes and thus arguably helped to facilitate the proliferation of empty homes that has occurred in recent years. 

The potential which EDMOs offer in tackling empty homes is greatly limited, but just as the laws controlling the Forest of Bere were contested, the public control of empty homes has become a contemporary site of contestation. These contests involve national campaigns, organised by Action on Empty Homes, as well as grassroots social movements led by tenant unions and others which challenge empty homes and target second homes and the spread of holiday lets. Such contests are important for drawing public attention to the empty homes contradiction and help shift political debate toward the idea that housing should function primarily as homes rather than speculative assets. Much like the foresters of Bere, these campaigns offer valuable insights into how arbitrary property practices can be challenged, and how demands can be articulated for enhanced democratic control of housing and empty homes.

Another highly visible empty home in Southampton.

Rescuing the Lotus Case from its undeserved bad press

Andrew Serdy, 23 July 2026   9 mins read

The 100th anniversary of the collision on the high seas on 2 August 1926 between the French and Turkish steamships Lotus and Boz-Kourt, sinking the latter with the loss of eight lives, is imminent. It offers a suitable occasion to ponder why the judgment of the Permanent Court of International Justice (PCIJ) in the ensuing case between  France and Turkey nowadays meets near-universal disapproval.

The Court held that Turkey’s institution of criminal proceedings against Lieutenant Demons, officer of the watch on the Lotus at the time of the collision, did not conflict with the international law rules on jurisdiction. Lotus seems second in notoriety only to the South-West Africa Cases for which the received view is that the International Court of Justice (ICJ, the PCIJ’s successor) wanted to make amends by introducing the concept of obligations erga omnes in the Barcelona Traction Case only four years later, that if applied in South-West Africa would have produced the opposite result. Admittedly Lotus has not been so starkly disowned. Rather the closest the ICJ has come to that is the observation in the Arrest Warrant Case that the principle it represents has reached its high-water mark and will not be expanded further.

Even so, it often feels close to being socially unacceptable among international lawyers to support the Lotus case as correctly decided, which is nevertheless what this post will do. This is despite the fact that the international community acted to reverse the result of Lotus subsequently:

All three instruments provide that in cases of collision or any other incident of navigation on the high seas, penal jurisdiction over the acts causing the collision or incident is exercisable only by the flag State of the ship on which the accused is serving, or the accused’s own State of nationality.

A defence of Lotus is somewhat less disreputable now thanks to the belated – if only implied – confirmation of the Lotus reasoning in a case with roughly parallel facts, The “Enrica Lexie” Incident (Italy v. India) decided in 2020 by an arbitral tribunal formed under UNCLOS. Here UNCLOS Article 97(1) was held inapplicable to the fatal shooting of two Indian fishermen mistaken for pirates by a security detachment of Italy’s armed forces aboard an Italian merchant ship, 20 miles off India’s coast and thus in its exclusive economic zone, assimilated to the high seas for navigational purposes by Article 58(2). This was because the fact that the detachment played no role in setting the ship’s course and speed meant that the incident was not one “of navigation”. Hence India – parallelling Turkey in Lotus – was found to have jurisdiction concurrent with Italy’s over the incident as a whole. For a more detailed exposition of the arguments, see this chapter by Vrancken in a recent volume co-edited by the author.

Much of the criticism directed at Lotus, however, is by commentators taking issue with propositions that the majority judgment does not in fact contain or endorse. The misattribution tends to happen in blogposts rather than journal articles, perhaps a positive sign that peer review is serving its intended purpose.

Five such propositions are treated below, but first it is helpful to disentangle the Lotus “principle” – that in international law anything that is not prohibited is permitted – from the narrower Lotus jurisdictional “rule”: when ships collide the flag States of both ships have jurisdiction to try any offences alleged to have been committed in causing the collision, provided at least one element needing to be proved in order to secure a conviction occurred aboard the ship flagged to the prosecuting State. The principle attracts more of the opprobrium than the rule. Yet it is not necessary to embrace it in order to say that the case – based on the narrower rule – was correctly decided. Both principle and rule have given rise to dubious propositions.

The first two propositions concern the principle and bespeak an impatience with positivism, which has rather gone out of fashion, replaced by the notion that States are dangerous entities that must be constrained as far as possible, not left to do largely as they please. The present author has no particular philosophical objection to positivism, but has no need to take a firm position on it beyond noting that, in his experience as a former government official, States themselves, who after all make the international law by which they are bound, are positivists 98% of the time. The remaining 2% represents occasions when litigating States – invariably applicants, never respondents except when counterclaiming? – try to persuade an international court or tribunal that the respondent has some obligation it is alleged to have breached despite never having expressly consented to it.

Absurd proposition 1: Taken to its logical conclusion, the Lotus reasoning makes universal jurisdiction the default rule.

Nobody actually believes that universal jurisdiction is the default rule, not even Belgium despite in effect making that argument to defend its universal jurisdiction law at issue in Arrest Warrant, there being no prohibition as such of universal jurisdiction. The source of confusion here is that, as presented in modern textbooks, the international law rules on jurisdiction solidified in the century since Lotus are framed positively, rather than as a double negative (i.e. “nothing prevents States from…”): States have jurisdiction over events and persons within their territory and over events and persons outside it in a limited number of other situations. Among the latter is universal jurisdiction, but it is a narrowly scoped exception. This is incompatible with the everything-permitted-unless-prohibited caricature, which would force a start from a position of complete freedom.   

Absurd proposition 2: Absence of a prohibition of X is a positive right to do X and shields against incurring responsibility for incidental breach of some other obligation associated with X.

Confusing positive permission with double-negative non-prohibition is also at the root of this error, into which it is all too easy to slip because the result in any given instance will be the same either way: the conduct in question can lawfully be engaged in, either because it is expressly allowed or because there is no rule against it. This can lead dangerously astray those who yield to the temptation to take an extra step: a positive right to do X elides into an absolute right to do it, rendering irrelevant all other potentially applicable law, such that a prohibition against Y can be ignored when Y happens as a result of doing X. Lotus offers no support whatever for that reasoning, and should not be blamed for it.

The other three propositions rest on the Lotus jurisdictional ruling and stem from various misreadings of the majority judgment.

Absurd proposition 3: The Lotus decision endorses the passive personality basis of jurisdiction.

This proposition was formerly commonly seen but less so recently. True, passive personality was the basis on which, under the Turkish Criminal Code, the Istanbul authorities prosecuted Lieutenant Demons. Judge Moore, dissenting, deprecated it, but Turkey itself did not advance passive personality as a defence before the PCIJ. Instead, it argued, and the Court accepted, that the fact that the loss of life occurred on board a Turkish-flagged ship gave Turkey concurrent quasi-territorial jurisdiction over the offence of manslaughter, which would not have been completed had nobody died. For jurisdiction is rarely exclusive. Turkey had no need to, and did not, maintain that France lacked jurisdiction, only that Turkey too was entitled to exercise it. This leads to

Absurd proposition 4: Ships are floating territories of their flag States.

It is true that Judge Nyholm, dissenting, stated as much, and Judge Loder too by implication appeared to agree, but this is not the approach taken by the majority judgment. What the Court actually said was more subtle: it merely assimilated ships to territory for jurisdictional purposes, so avoiding a legal vacuum on the high seas. UNCLOS Article 92 comports with this. Under it, a ship on the high seas is a place where the flag State’s law applies, but that falls short of asserting the ship is its territory. Thus a collision between ships of different flags brings two such quasi-territories into momentary adjacency, akin to neighbouring States on land where an act in one produces effects in the other and concurrent jurisdiction is not controversial, and an on-water shooting is little different. (Imagine the body of water over which fatal gunshots were fired in Enrica Lexie not as the ocean but as a border river.)

Absurd proposition 5: By endorsing Turkey’s jurisdiction over an event occurring on the high seas, the Lotus decision promotes extraterritoriality, a legal evil.

This overdramatises the problem of extraterritoriality. Though sometimes undesirable, it is no evil, just an unavoidable consequence of the way territorial sovereignty over the dry parts of the Earth’s surface is divided among States. There is no intrinsic problem with concurrent jurisdiction, even if for commercial certainty it is common to eliminate one or more possibilities by virtue, for example, of a choice of law and choice of forum clause in cross-border sales contracts. The issue is a practical one, of keeping extraterritoriality within reasonable bounds, so that, merely by acting quickly, a State with a weak nexus with the events in question cannot too easily impose and enforce its own law in relation to them, displacing the law and courts of a State with a stronger connection that appears disadvantageous to the party seeking to circumvent it. Unilateral sanctions, if applied in this controversial way, are rightly faulted.

So, concluding, the passage of 100 years has changed the context in which we should think of the Lotus case. International law has become significantly more sophisticated and complex and the Lotus principle no longer gives, if it ever did, carte blanche to States to have their head. There are, in other words, far more prohibitions to which they are subject, indirectly as well as directly, than there were in 1927. While double negatives are commonly criticised on stylistic grounds, let us thank the Lotus case, both principle and rule, for its salutary reminder that in law it is often a mistake to substitute them with a positive.

Adapted from the slides accompanying a presentation entitled “Rescuing the Lotus Case from its undeserved bad press: Absurd propositions attributed to the case for which it does not stand” delivered at the 8th online seminar of the Lotus 100 Project, 1 December 2025.

Free Elections and “Turning Down the Noise” on Online Platforms

Michael John-Hopkins, 17 July 2026      11 mins read

In July 2025 in Bradshaw and Others v United Kingdom, the European Court of Human Rights confronted the unexpected tension between freedom of expression and free elections. Democratic societies must preserve the broad freedom of political expression on which open electoral debate depends, but that freedom may also be exploited through coordinated foreign influence operations designed to undermine free elections.

The applicants argued that the United Kingdom had failed to adequately investigate, and protect against, Russian interference in its democratic processes. The Court did not find a violation. It emphasised the difficulty of measuring the effects of disinformation and influence campaigns and allowed the United Kingdom a wide margin of appreciation, particularly because no clear European consensus has yet emerged on the specific protective measures States must adopt. The judgment was nevertheless significant. It accepted that Article 3 of Protocol No 1 of the European Convention on Human Rights (right to free elections) may impose positive obligations where hostile-State interference creates a real risk of impairing the very essence of the right to free elections.

Before the judgment, the UK Parliament Intelligence and Security Committee’s Russia report (2020) had already described the United Kingdom as a target for Russian disinformation and political influence operations. Importantly, it distinguished disinformation from the broader playbook of malign interference, which may combine manipulated narratives with illicit funding, cyber operations, interference with electoral machinery, covert amplification and “hack-and-leak” activity. Such operations frequently seek less to secure agreement with a single message than to intensify division, confuse attribution, discredit reliable sources and erode trust in democratic institutions.

In Bradshaw, the Court accepted that there was evidence of interference in the United Kingdom’s democratic processes of sufficient intensity to be capable of impairing the very essence of the right to benefit from free elections. Its conclusion was not that the threat was unreal, but that the United Kingdom’s response remained within its wide margin of appreciation.

That tension captures one of the central problems now facing democratic legal systems. Electoral rights can no longer solely be guaranteed at the ballot box but must also be protected in the communicative environment in which electoral preferences are formed. That environment is increasingly structured by platforms, recommender systems, political advertising, synthetic media, data profiling, covert funding and the speed with which false or manipulated material can outrun scrutiny and correction.

The legal challenge is therefore not simply to ensure that voters can physically cast a ballot. It is to protect an information environment that remains sufficiently open, plural, intelligible and contestable to ensure deliberative democracy – without converting the protection of elections into a general power to police political truth.

“Turning down the noise” in the digital environment

This is where the new radical idea of “turning down the noise” or “protection from noise” is useful. The phrase should be handled carefully. It does not describe a right to truth, silence, comfort or protection from disagreement or offence. Democratic politics is “noisy” by design. It includes exaggeration, error, satire, anger, mobilisation and sharp contestation.

The concern is narrower, namely organised, synthetic and amplified noise. That means engineered saturation, impersonation, microtargeting, synthetic deception, covert amplification, harassment or suppression of correction in ways that materially impair the practical ability to receive, test and contest political information autonomously.

In his separate concurring opinion in Bradshaw, Judge Jakab gives this idea one of its first significant judicial formulations within the Strasbourg system. He suggests that digital disinformation can reach a point where the “noise” level is so high that the right to receive information under Article 10 may itself be impaired. His concurring opinion fuses and balances human rights, platform governance, and national security considerations, at both high and granular levels of analysis.

One of the strengths of liberal democracies when compared to autocracies is that liberal democracies’ political decisions and democratic accountability mechanisms (such as elections) tend to be relatively more strongly influenced by fact-based discourses weighing arguments. If we allow the digital disinformation noise levels to ravage as high as they currently are in our public debates, then we are endangering liberal democracies’ structural superiority.

This may become an important line of jurisprudential development because it sits precisely where law, politics and technology now meet. There is also a historical reversal here. The post-1989 European human-rights order was significantly concerned with supporting transitions towards democracy and the rule of law. It must now consider how established democracies should be protected when revanchist authoritarian states and resurgent anti-democratic movements exploit democratic openness, sometimes in mutually reinforcing ways, to destabilise political institutions and corrode public trust from within. It must also confront the reflexive danger that the language of democratic protection may itself be exploited. Real, exaggerated, fabricated or unverified claims of malign interference may be weaponised to delegitimise elections, discredit political opponents and independent institutions, justify coercive or exclusionary measures, and consolidate power.

Giving citizens more control over the noise

The point is not that Strasbourg should prescribe a single model of platform regulation. Bradshaw itself points the other way in that in an area of technical complexity, national-security sensitivity and limited European consensus, States retain a wide margin of appreciation. But subsidiarity does not mean that human-rights law has nothing to say. As Robert Spano has argued in a different context, the contemporary Convention system increasingly works through process-based supervisory review whereby national authorities are given space where they act in good faith, reason carefully and balance competing interests, but law still helps sustain the democratic character of political decision-making. The question for future cases is whether emerging regulatory practices concerning provenance, amplification, synthetic content, political advertising and platform risk assessment will give courts firmer ground on which to assess the informational conditions of democratic choice, particularly where those conditions are deliberately manipulated to undermine the orientation towards “effective political democracy” identified in the Preamble to the European Convention of Human Rights.  

In practical terms, protection from noise would not mean that States or platforms decide political truth for citizens. It would mean giving citizens more meaningful control over the conditions in which political information reaches them. Users should be able to know whether they are dealing with a real person, a pseudonymous account, a bot, a political advertiser, an influencer, a campaign organisation or a verified media source. They should be able to reduce the volume of automated, recommended or paid-for material; choose non-personalised or following-only feeds; see when political content is synthetic or AI-generated; and understand why they are being targeted. The aim is not to remove disagreement from democratic life, but to make the architecture of online political communication more transparent, adjustable and contestable.

2025 Romanian presidential election – noise control or authoritarian regression?

The Romanian election litigation shows the stakes. In Călin Georgescu v Romania, the Strasbourg Court rejected the application concerning the annulment of Romania’s 2024 presidential electoral process, principally because Article 3 of Protocol No 1 does not normally apply to presidential elections unless the office has sufficient legislative functions. That means Georgescu should not be treated as a Strasbourg merits ruling approving the annulment. Its importance is different. It records the kind of factual scenario now pressing against electoral law, namely algorithmic amplification, digital technologies and artificial intelligence, unlabelled electoral promotion, campaign-finance opacity and unequal campaign visibility.

The Romanian Constitutional Court’s Ruling No 32 of 6 December 2024 treated the electoral process as vitiated by non-transparent digital promotion, misuse of social-media algorithms, artificial intelligence, and undeclared campaign funding. Whether one sees that decision as necessary constitutional safeguarding or a dangerous authoritarian regression, it illustrates the outer edge of protection from noise. At some point, information-environment manipulation may be argued to affect not merely campaign fairness, but the free formation and expression of democratic choice.

That is why the Venice Commission’s urgent report on the cancellation of election results is so important. It recognises that online campaigning, disinformation, artificial intelligence and external influence create new electoral risks. But it also insists on constitutional discipline. Generally, annulment must be exceptional, it must rest on clear legal competence, fair procedure, adequate evidence, and a reasoned assessment that irregularities may have affected the result. In other words, democratic systems must be able to recognise information-environment harm without making election cancellation too easy.

The emerging regulatory picture is therefore fragmented but significant. Bradshaw gives the human-rights law ‘seeding’ that electoral rights may require positive protection against hostile interference. The Romanian litigation gives the factual pressure point, namely platform amplification and digital opacity can put electoral legitimacy under severe strain. The Venice Commission supplies the rule-of-law brake in policy terms that serious remedies require legality, evidence, procedure and proportionality.

Retreat from platform self-governance in the EU and UK

Platform governance is the next part of the picture. The EU Digital Services Act moves beyond a purely passive view of platforms. It treats very large online platforms and search engines as potential sources of systemic risk, including risks to fundamental rights, civic discourse, public security and electoral processes. The Commission’s electoral-process guidelines under the DSA translate that idea into election-specific concerns including recommender systems, generative AI, political advertising, coordinated manipulation, crisis-response mechanisms and cooperation with electoral authorities.

The EU Regulation on the transparency and targeting of political advertising adds another layer. Political advertising becomes democratically dangerous when voters cannot tell who paid for a message, why they are seeing it, which audience was targeted, or whether different voters are receiving incompatible versions of a campaign. Transparency does not solve manipulation, but it helps restore the public character of political contestation.

Privacy and data protection also matter. Profiling and political microtargeting can transform democratic communication into the behavioural sorting of citizens and the tailored manipulation of their choices. The issue is not merely privacy in the narrow sense. It is whether voters are placed into opaque political environments selected according to inferred fear, resentment, identity or susceptibility. In that respect, the GDPR is also part of the democratic-resilience architecture of mitigating manipulation and coercion.

The EU AI Act is especially relevant because it recognises that harm may arise from system design, not only unlawful content. Its rules on manipulative or deceptive techniques, vulnerability exploitation, synthetic-content transparency and AI systems used to influence elections or voting behaviour do not create a general law of malign influence. But they identify risk indicators that map closely onto protection from noise, namely opacity, synthetic realism, behavioural steering, vulnerability targeting and loss of provenance.

In contrast, the UK relies on a dispersed framework comprising the Online Safety Act 2023, data-protection law, electoral law, including campaign-source transparency requirements under the Elections Act 2022, and the National Security Act 2023. The latter criminalises certain coercive, deceptive or otherwise unlawful foreign interference with political processes, public functions and UK interests, while the Foreign Influence Registration Scheme requires greater transparency concerning political influence conducted at the direction of foreign powers.

European regulatory leadership of noise control in the digital sphere

This is where a limited ‘Brussels effect’ may matter. The point is not that the EU model will become global law, nor that it is beyond criticism. But large platforms, AI providers and advertising intermediaries may find it easier to build systems around demanding expectations of transparency, provenance, audit, risk assessment and researcher access. If so, EU regulation may indirectly raise the baseline for democratic information governance elsewhere, including within the broader European legal space. That hope depends on enforcement, judicial oversight, platform incentives and whether other jurisdictions view systemic-risk regulation as democratic infrastructure rather than censorship.

The importance of Bradshaw is therefore not that Strasbourg has created a settled right to protection from disinformation. The Court recognised the possible relevance of positive obligations but, rather than prescribing particular safeguards or applying strict review, left States considerable discretion within a wide margin of appreciation. That caution reflects the absence of a clear European consensus on the measures required to protect elections from hostile information operations. It also makes it more important to identify where regulatory convergence, and potentially such a consensus, is beginning to emerge. Across human-rights law, electoral law, platform regulation, data protection, AI governance and Venice Commission standards, recurring principles include provenance, transparency, recommender accountability, limits on microtargeting, synthetic-media labelling, campaign-finance visibility, platform-data access, fair procedure and evidence-based remedies.

None of this means that technology can solve social, political, economic and diplomatic problems. Democracies cannot outsource electoral integrity to labels, dashboards, audits or content-moderation tools. But the opposite error is equally dangerous, namely leaving platforms, AI systems and advertising infrastructures without legal guidance, free to operate in a manufactured aterritorial space, immune from accountability for the destabilizing effects occurring through their digital architectures while expecting voters, journalists, candidates and electoral bodies to absorb the forced choices and consequences.

An emerging consensus on noise control?

The emerging consensus, if there is one, is not a consensus on truth control. Nor is it yet a fully settled Convention-law consensus on exactly what every State must do. There remains regulatory divergence, and much will depend on domestic implementation, enforcement capacity and institutional design. But the legal and policy conditions for convergence are now visible. Across platform regulation, electoral law, data protection, AI governance, political-advertising transparency and Venice Commission standards, recurring concerns can be identified, namely provenance, transparency, recommender accountability, microtargeting limits, synthetic-media labelling, campaign-finance visibility, platform data access, fair procedure and evidence-based remedies.

Protection from noise is best understood in that restrained sense. It is not protection from disagreement, nor a licence for State truth control. It is protection of the practical conditions that allow disagreement to remain visible, intelligible, contestable and democratic. Citizens should be able to know who is speaking, who is paying, whether content is synthetic, why they are being targeted, how platforms amplify political material, and what remedies exist when those systems are abused. The deeper danger is not only that citizens may encounter false claims, but that digital architectures may increasingly shape attention, visibility and behaviour in ways that are difficult for citizens to perceive, contest or resist. In that respect, Shoshana Zuboff’s account of “instrumentarian power” is useful. Malign actors, foreign, domestic, may exploit these  aterritorial architectures not by physically silencing or controlling citizens through totalitarian force, but by steering the conditions under which they see, feel, rank, trust and act in a way that is detrimental at individual and societal levels. It is to preserve enough autonomy, transparency and contestability for us to be more confident that what we take ourselves to think is genuinely our own.

Is a Social Media Ban for Under 16s a Panacea for Online Child Safety?

Stephanie Law, 3 July 2026       8 mins read

On Monday the 15th of June 2026, a week before announcing his resignation as Prime Minister and leader of the Labour Party, Keir Starmer confirmed that the Government would introduce legislation to implement a social media ban for children and young people in the UK.

The under-16s social media ban reflects a significant step in the UK’s attempts to regulate the online environment, and more specifically, to provide for “a safer digital childhood”. Indeed, for the supporters of a blanket age-based ban, the Labour Government’s commitment constitutes a necessary intervention to protect children’s safety and wellbeing, amongst growing public concern about social media use and the risks arising from children’s access to social media content that may exacerbate mental health concerns and existing vulnerabilities, expanded opportunities for engagement amounting to cyberbullying or exploitation, exposure to material relating to self-harm, suicide and eating disorders, as well as hate speech and misinformation.

While the background of the broader discussions on children’s online safety encompass many tragic incidents, it is necessary to consider whether young people’s exposure to risk in their increasingly intertwined offline and digital lives will effectively be reduced by an age-based ban. Until now, the UK has stopped short of introducing a blanket ban on young people accessing social media platforms. Instead, the Online Safety Act 2023 establishes obligations on platforms to remove illegal content, and content which is harmful to children.

The popularity of social media bans 

The UK’s proposal follows a similar ban implemented in Australia at the end of 2025 while proposals have also been advanced in France, Portugal and Spain. At the EU level, the European Parliament adopted a resolution in November 2025 proposing that the EU adopt a minimum age requirement of 16 for access to social media and video sharing platforms, as well as AI companions. Young people between the ages of 13 and 16 would be able to access such platforms only with parental consent. This age-based ban is envisaged to operate alongside and strengthen the enforcement of the EU’s Digital Services Act (similar to the UK’s proposed ban).

The UK proposes to ban under 16s from accessing user-to-user social media platforms, that is to say, platforms that allow for social interactions between users and on which content can be posted; this would include platforms like Facebook, Instagram, X, Snapchat and TikTok. Moreover, the Government intends to implement a requirement that access to certain harmful features on platforms, such as livestreaming, stranger communication (including in gaming) and “romantic companion” chatbots, is restricted to over 18s.

The ban will not apply to direct messaging platforms, like WhatsApp. With these measures, the Government hopes to adopt a model for protecting children online, which goes beyond a simple blanket ban, and instead responds to both the risks children face and their broader experiences online. These risks, the Government argues, are exacerbated by the real-time accessibility of potentially harmful content and tech companies’ use of algorithmic recommender systems, which undermine the scope for effective content moderation.

The decision to introduce a ban follows a short consultation, undertaken between the months of March and May of 2026, in which the Government sought the views of the general public, including parents, guardians and young people, children’s charities and civil society organisations, as well as other stakeholders, including teachers, academics and industry partners. The consultation received over 115,000 responses, with the Government concluding that 9 out of 10 parents and two-thirds of children support restrictions on under-16s accessing certain social media platforms.

The timeframe set out by Keir Starmer and Liz Kendall, the Secretary of State for Science, Innovation and Technology, reflects the Government’s prioritisation of the social media ban. Starmer indicated that the Government would “move at speed” to drive secondary legislation through Parliament using the Children’s Wellbeing and Schools Act 2026, with the intention of putting the ban into place in the Spring of 2027.

The Government has indicated that Ofcom will be responsible for establishing “accurate, robust, reliable and fair” age assurance mechanisms which protect privacy rights, with the aim of ensuring that children cannot work around these restrictions. Platforms will be responsible for implementing these mechanisms, meaning that the platforms and not children themselves will be penalised for non-compliance. Ofcom is designated as the independent regulatory body for online safety in the Online Safety Act 2023; it is competent to identify – through the adoption of guidance and codes of practice – the practices that online platforms should follow to ensure compliance with their obligations, monitor, investigate and assess compliance and take enforcement measures.

The problems with a blanket age-based ban and its alternatives

The decision to restrict under-16s access to social media platforms is by no means uncontroversial. While there is broad consensus across law and policy-makers, public health researchers and child protection advocates that children and young people face a number of risks from accessing specific types of content and from various forms of online engagement, the nature and severity of the risk of those harms is not homogenous. This necessarily gives rise to questions as to the appropriateness of a blanket age-based restriction, relative to alternative interventions that would still allow children and young people to benefit from the opportunities that digital technologies provide. These include – amongst others – access to educational resources (indeed, the UK Government has indicated education platforms are not targeted by the ban), the development of socialisation skills, social inclusion and integration into supportive communities, and exposure to diverse cultures and viewpoints.

The problematics of the ban are significant. There is a danger that the implementation of a blanket ban merely gives the appearance of a Government being proactive, creating a false sense of security as to being in control of a significant problem, in a way that may undermine scope for further regulatory intervention. Regulating a rapidly evolving and complex digital environment driven by a small number of powerful tech companies necessitates informed and critical discussions about the role of technology in society.

While the UK Government indicates that online platforms will be required to implement effective age assurance mechanisms, there is a possibility that parents, guardians and educators will bear the burden of “policing” children’s access and use of technologies that are constantly developing.

As research on the Australian experience illustrates, 85% of under 16s continue to use social media platforms, either by bypassing “simple” age verification mechanisms (i.e. being asked to enter their age), using fake profiles or (a challenge identified by the UK Government), on more rare occasions, using a VPN. Six months after its implementation, the effectiveness of the ban is not yet clear, however the Australian Government has since enacted new legislation to empower its regulator to monitor, enforce and punish non-compliance with the ban.

The UK’s under-16s social media ban must be executed with a view to also implementing alternative interventions that would target the effective enforcement of content moderation obligations by Ofcom. At the same time, a safe digital environment requires safer platform design, and access to resources that aim at improving digital literacy (with enhanced provisional support for the most vulnerable of young people).

Platforms as the real culprits?

On the one hand, the way in which online platforms are designed enhances the risk of harm to children by maximising user engagement. Such design choices include the use of addictive design features and recommender systems, weak default privacy settings and limited transparency, behavioural profiling and targeted and personalised advertising.

Research suggests that digital markets are characterised by substantial power, control and knowledge asymmetries between individuals and tech companies, which leads to an erosion of autonomy, manipulation, exploitation, and addiction as well as broader societal harms to fundamental rights and democratic participation. Digital environments are characterised by digital asymmetry, which describes the structural and systematic conditions of these systems, and leads to digital vulnerability, which is dynamic, contextual and structural; every individual is potentially vulnerable, a condition which may shift depending on the digital environment with which they are faced.

Children and young people may be particularly vulnerable (and are treated as such, for example, in consumer law), with social media exacerbating existing vulnerabilities (through for example, the use of recommender systems which direct vulnerable individuals to increasingly extreme content).

Digital literacy to prepare children for their digital adulthoods

On the other hand, greater digital literacy is required; young people under 16 will, within a few short years, be faced with digital environments which will very likely be vastly different, more complex and more dangerous than those currently in existence. In order to be able to navigate these regimes safely, young people must be equipped with the knowledge and critical analytical skills to – inter alia – recognise misinformation and malicious communication, assess algorithmic recommender systems and manipulative design features, make informed decisions and respond effectively to the risks arising from harmful online content. Under the Online Safety Act 2023, Ofcom has a key role to play in promoting media literacy.

However, what is clear is that the question as to whether the UK’s proposed social media ban for under 16s is appropriate and proportionate cannot be framed as giving rise to a binary choice; restrictions on children and young people’s access to social media must be implemented hand-in-hand with effective content moderation, the regulation of platform design and digital literacy endeavours.

Corporate deregulation – time for investors to play their voting cards?

Brenda Hannigan, 1 June 2026       7 mins read

In an ill-advised move, the board of BP recently rejected a shareholder resolution so preventing its circulation to shareholders ahead of the company’s annual general meeting (AGM). As the FT reported (11 March 2026), the resolution addressed strategies to maintain shareholder value in the not unlikely event of a decline in demand for fossil fuels. It was filed by a group of 16 institutional investors and some retail investors brought together by a Dutch green investor group, Follow This. 

The board’s rejection of the resolution made the news because we are accustomed to corporate boards maintaining at least a semblance of co-existence alongside shareholder engagement, empowerment and stewardship. Not in this case. In all probability, the resolution would have gone almost unnoticed by the media, had it not been rejected by the board. 

The episode seemed to reflect in many ways the current position. There is a business clamour for capital, flexible markets and a wider pool of investors. The Government has responded with deregulation initiatives aimed at driving ‘growth’ and ‘competitiveness’. The consequence, whether or not intended, is an increase in board autonomy and a consequential diminishing of the role of shareholders. The cumulative effect of recent changes should be a wakeup call for shareholders who need to find their voice and show a greater willingness to challenge boards.

Regulatory retreat by the Financial Conduct Authority

The deregulation agenda is driven, in part, by the collapse in London listings over the past decades (for many reasons including the growth of private capital and the perceived regulatory burden of being listed). In March 2009, there were 1130 UK listed companies, by March 2026, there are 764. It is a similar picture on AIM, the Alternative Investment Market. Hence there have been numerous reviews of listing and capital raising (Hill (2021), Kalifa (2021), Austin (2022)) , followed by a new UK listing regime (UKLR) . It was devised by the Financial Conduct Authority (FCA) with the intention of attracting listings and investors to a deregulated market and came into effect in July 2024. 

A significant element of the new listings regime is the removal – despite robust investor objections – of shareholder approval of substantial transactions and related-party transactions (i.e. with directors, substantial shareholders and associated companies so potentially rife with conflicts of interest). The requirement for approval was long regarded as a defining component of the gold standard, London premium, listing. Following consultations, the FCA was persuaded by strong support for abolition (unsurprisingly) from the companies themselves, their legal advisers and UK market operators [paras 6.16, 6.19, 6.29]. 

The FCA noted that companies would not proceed in any event with such transactions without the support of their largest shareholders – in effect, acknowledging that only shareholders in the inner circle matter [para 6.50 to 6.57]. It considered that shareholders have other tools such as statutory shareholder meetings (invariably post hoc) and the ability to requisition meetings (only if they hold more than 5%, and unlikely in practice). Of course, the FCA also noted, shareholders can remove directors, but this nuclear option is rarely publicly exercised, or they can disinvest. The latter option seems a strange suggestion given part of the policy background here is precisely to stop disinvestment and attract investors to London listings. 

Legislative retreat by the Department for Business and Trade

If the FCA is the inner ring of this deregulation, the outer ring is the Department for Business and Trade (DBT) which has taken an increasingly deregulatory stance.

In January 2026, the DBT, under a Labour Government, abandoned the long-promised and much-anticipated Audit Reform and Corporate Governance Bill — legislation that had its origins in the Brydon Review (2019) and which was intended to increase oversight and accountability, not just of corporate auditors, but also of directors. Investors would have benefitted potentially from these reforms, given they struggle with oversight of the directors. The ‘difficult decision’ (in the words of the DBT Minister), after six years of work, was hidden in a lengthy DBT press release.

In this regard, the DBT was following in the footsteps of the previous Conservative Government which, in October 2023, reneged on a commitment, again reflecting Brydon, to introduce requirements for a variety of board statements on matters such as distributable profits, distributions, risk management and resilience, including the risk of material fraud. Such statements would have forced boards to verify and stand by this information. In this case, the withdrawal came even though the draft regulations were already before Parliament. 

These U-turns would suggest effective lobbying from big business and their lawyers, under cover of the many economic and political crises of current times, to reduce transparency and block any measures which might expose directors to any individual accountability. The result, if not the declared aim, of these changes is to reinforce the power of corporate boards and weaken shareholder democracy. 

The withdrawal of the ‘public register’ of shareholder dissent 

A further example of successful lobbying is the DBT’s announcement, in November 2025, that the Government had asked the Investment Association to cease to maintain the public register. This public register was set up in 2017 and recorded significant shareholder dissent, categorised for this purpose, in accordance with the UK Corporate Governance Code (2024), Provision 4, as votes against the board recommendation on a resolution of 20% or more. 

The request is inexplicable: why ask the Investment Association to discontinue a mechanism which usefully collected the relevant information in one place? The information is publicly available in any event but would require a searcher to have the patience to trawl through the National Storage Mechanism, company by company. There is no cost to the companies or to the Government. The only explanation is that the DBT bowed to business pressure: boards disliked being featured on a register which alerted investors and other interested stakeholders to shareholder discontent, especially if the company appeared (as some did) year after year. 

Ironically, BP is one of the beneficiaries of this deregulatory change. Proving that shareholders can resist board demands, BP shareholders did vote down two resolutions supported by the board including refusing to accept a new set of articles (52.88% against) which, inter alia, would have allowed the directors to hold only virtual (electronic) AGMs. They also voted heavily (74.15%) for a shareholder resolution calling for disclosures on exploration capital expenditure and the creation of shareholder value which had been opposed by the board. Had the public register of dissent still been in use, BP would have been an entry on it. 

More deregulation to come – what shareholders must do  

There are other deregulation initiatives in the pipeline. DBT plans to allow virtual AGMs (vigorously opposed by institutional shareholders as a lesser form of public accountability, giving boards greater control of shareholder engagement than a physical meeting) and intends to streamline (i.e. reduce) corporate reporting, primarily for the largest companies. Of course, a switch to virtual meetings will need shareholder approval since commonly it will require an alteration of the company’s articles of association. Shareholders will want to think about whether they are willing to support such a change and the implications for their engagements with the company. 

The DBT also intends to deregulate (reduce) disclosure by the largest companies so investors need to reflect on what information they are willing to do without and be prepared to stand their ground on reduced disclosures if they are unhappy. Let the largest institutional shareholders vocally oppose related-party transactions, even if they no longer have a vote on the matter. 

Contrary to initial expectations, it may be that the result of the deregulatory measures favouring boards is to force a level of engagement and voting from shareholders which has not previously been the case. Shareholders need to realise that they do have a weapon – their votes – and they should make considered use of them.

The Killing of a Murderer – a Rebalancing of the Order of Things?

David Gurnham, 15 April 2026     7 mins read

On 7 March 2026, I caught a BBC television news headline reporting that the murderer and former school caretaker Ian Huntley had died in prison following severe head trauma inflicted by a fellow prisoner at HMP Frankland, Country Durham, in an attack a week or so previously. The newsreader having given this much of the story, I expected the report thus introduced to offer more about the incident itself: at the very least some details about the man suspected of killing Huntley and facts so far established about the circumstances and conditions at the prison.

But the report (by the BBC’s Senior UK Correspondent Seema Kotecha) was not like that at all. Her full story, taking precisely two minutes of airtime, ran thus:

Soham in Cambridgeshire, an ordinary Sunday in August. Jessica Chapman and Holly Wells were best friends. Mad about Manchester United, this photo was taken by Holly’s Mum that afternoon. At around six, they left Holly’s home, it’s thought to buy sweets. The search lasted 13 days; more than 400 officers took part. Amid huge public concern, it became one of the biggest operations of its kind. A school caretaker, Ian Huntley, said he had seen the girls before they disappeared.

His girlfriend Maxine Carr was Holly and Jessica’s teaching assistant. The girls’ bodies were finally found by a gamekeeper, dumped in a ditch around 10 miles from Soham. Huntley was arrested the same day. He’d lured Holly and Jessica into his home, claiming his girlfriend was inside. He was sentenced to life with a minimum of 40 years, the judge said his continuing lies and manipulation had deepened the family’s suffering.

Maxine Carr, who’d given him a false alibi, was sentenced to three and a half years for conspiring to pervert the course of justice. Huntley, as one of Britain’s most notorious prisoners, was always a target. He was slashed across the throat in 2010, needing 21 stiches. The man who senselessly stole the futures of two happy, carefree girls enjoying their summer holidays.

I found it odd that the BBC report seemed to be so reluctant to talk about Huntley’s own death, a reluctance apparently reflected the general attitude of people of Soham as reported in another BBC story from the same day: that ‘he’s not worth their breath or time’.

Having listened to the report, my attention must have been taken away to something else, because it was only when coming back to it a month later that I found that it had been followed up with an interview with Danny Shaw (former BBC journalist and crime and policing commentator) who had elaborated on some of the facts of the instant case that I had expected to hear in the initial report.

Shaw also mentioned certain contextual matters: that the same prison had seen a serious attack on prison staff by Hashem Abedi in April 2025, and that there had been a sharp rise in the number of prisoner deaths by homicide in the UK in 2025 and 2024 (as reported by the Ministry of Justice). He also noted that the principle of rehabilitation is undermined in the case of prisoners serving a whole life term (as Huntley’s alleged killer was) since they have ‘nothing to lose’ by further offending.

But the first minutes of his contribution, too, continued in the same vein as Kotecha’s, reminding viewers of the ‘shocking’, ‘brutal’ and ‘evil’ nature of Huntley’s own crimes and his attempts to ‘manipulate’ both the girls, and afterwards, the media as well. Like Kotecha, Shaw framed death of Huntley through the truism that the latter was, after all, ‘always going to be a target because of the crimes he committed’.

I wonder how many viewers of the BBC news on 7 March watched this item to the end and thus heard the discussion at the end of what happened to Huntley at HMP Frankland, and how many, like me, caught or noticed only the first part in which nothing at all was said about it. The programme editors may rightly believe that making Huntley’s crimes in Soham in 2002 the first and central focus was a necessary reminder of why his death is newsworthy now, and to ensure due respect is paid to the memory of the child victims, their families, and members of the community affected.

I believe the BBC’s presentation of the item, and especially the text of initial report, throws some troubling light on our ‘cultural imaginary’ of crime and punishment.

The first is the way it speaks to a ‘displacement’ of justice into informal channels which, while often frighteningly uncontrolled and brutally violent, may not be entirely unpredictable or even necessarily intolerable. The presentation of Huntley’s case, for example, conveys an implicit expectation that   vengeful emotions will from time to time escape from their official (legal) constraints, and that this is itself part of what is popularly understood as ‘justice’ for society’s most reviled characters.

The release of Huntley’s girlfriend Maxine Carr with a new and secret identity, for example, precipitated several incidents of other women being mistaken for her and being relentlessly harassed, threatened, and abused by people who believed that ‘justice’ in her case too required much more than a few years in prison.

As for Huntley: ‘He was slashed across the throat in 2010, needing 21 stiches. The man who senselessly stole the futures of two happy, carefree girls…’ The juxtaposition of those sentences may not quite amount to tacit approval of the murder of a child-murderer. But they do seem to affirm a natural causal relation, and insinuate that the two crimes so separated in time represent a rebalancing of the order of things in a way not antithetical to justice’s values of desert and retribution. After all, the ‘retributive’ justification for punishment is retrospective, and the report – in its determination to focus only on that ‘ordinary Sunday in August’ of 2002 – implicitly participates in that punitive orientation back to the original crime.

The second point, which flows from this retrospective quality of the report, is the theme of genre and how genre tropes and conventions are used in ways that tell us something about the imagined role and responsibility of law and criminal justice. When I reflect on my own surprise at the lack of focus on Huntley’s death in the initial BBC report, I realise that this was the result of certain generic assumptions that I had made – mistakenly, as it turned out – upon hearing the initial headline.

I had imagined that the piece would follow the genre conventions of crime reporting, hence my expectation to hear details about the crime that had just been discovered taking precedence over the crimes committed 24 years previously by its victim. Instead, the report invokes a trope from an entirely different genre and thus a wholly different set of conventions, namely the retrospective: a staple of genres such as the memoir, biography (or in this case ‘geography’), and obituary. There may be various reasons for this, but I suggest that it allows the report to reflect a view about the ‘proper’ role of law with respect to ‘doing justice’ and its limits in respect of the ‘underserving’.

Notice that the vast bulk of detail given in the report concerns law’s positive and energetic involvement action in service of the ‘real’ victims of the ‘happy, carefree girls’, their families, and the local community of Soham, some of which Shaw then repeated in his interview:

‘The search lasted 13 days … it became one of the biggest operations of its kind … Huntley was arrested the same day … sentenced to life with a minimum of 40 years … Maxine Carr, who’d given him a false alibi, was sentenced to three and a half years …’.

By comparison, law’s involvement in Huntley’s death is not only minimised, but almost entirely set apart from it.

He was ‘always (going to be) a target’ on account of his own ‘senseless’ crimes, and an object of such understandable and widely shared hatred that his own violent end at the hand of a determined executioner could hardly be delayed forever.

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 deeper divergences on 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 18th and 19th 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’.