Uta Kohl – The Fearless Scholar

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 18^th and 19^th century US practice, one might reasonably have expected some engagement with contemporary international trade law and practice. Even a brief acknowledgment of how tariffs are conceptualised in international trade law would have provided a more contextually grounded account of the regulatory landscape within which such measures operate.

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

Are there no ‘deserving poor’ anymore?

Lisa Whitehouse, 1 April 2026 7 mins read

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

The changed neoliberal narrative: no rights without responsibilities

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

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

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

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

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

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

The state’s complicity in facilitating inequality

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

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

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

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

The unintended consequences of well-intentioned policies?

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

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

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

Reckless policymaking driven by populist political agendas

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

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

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

Palestine Action and the Paradoxical Status of Protests in Democracies

Alun Gibbs, 19 March 2026 8 mins read

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Andrea Maria Pelliconi, 5 February 2026 7 mins read

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Non-problems

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

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

Non-serious problems

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

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

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

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

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

Non-specific problems

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

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

The real problems

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

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

Approaches to avoid

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

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

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

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

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

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

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

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

Virtue and responsible AI

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

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

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

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

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

Uta Kohl, 16 January 2026 —- 8 mins read

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

The Brussels Effect

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

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

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

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

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

The Washington Effect

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

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

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

The moral of the story

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

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