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All systems shutdown: how do governments use the “Internet kill switch” to hide violations to human rights?

Senior Lecturer in Computing & Communications Engineering Dr Mahdi Aiash describes what Internet shutdowns ordered by repressive regimes entail, and how they can be bypassed

Protesters on motorbikes and on foot in a road in Tehran during anti-government protests in September 2022. There is a major traffic jam and an object on fire in the distance
Protesters in Iran last month, where the authorities have cut off mobile internet, WhatsApp and Instagram. Credit: AFP/Getty Images

A report recently published by the UN Human Rights Office highlights the fact that Internet shutdown is increasingly becoming a tool used by governments around the world in the time of crisis to supress protest and hide deadly crackdowns or even military operations against civilians. Most recently, Iranian authorities cut off mobile Internet, WhatsApp, and Instagram amid protests against the killing of Mahsa Amini.

What are Internet Shutdowns and how they happen?

Internet shutdowns are measures taken by governments or entities on behalf of these governments, to intentionally disrupt access to and the use of information and communications systems online. Internet shutdowns exist on a spectrum and include everything from complete blackouts (where online connectivity is fully severed) or disruptions of mobile service to throttling or slowing down connections to selectively blocking certain platforms. Some internet shutdowns last a few days or weeks, while others persist for months or even years.

To explain how this might happen, we need to know that the Internet (as a network) is made up of a number of Internet exchange points (IXPs) which are physical location through which Internet infrastructure companies such as Internet Service Providers (ISPs) connect with each other.

These locations exist on the “edge” of different networks, and allow network providers to share transit outside their own network. Governments might order local internet service providers (ISPs) to fully disconnect online access for a particular geographic region or throughout a country. Unfortunately, ISPs may comply with government orders out of fear of retribution of legal action.

The good news is that if a government does not own and control the whole Internet Infrastructure, it might need to ask another party (IXP providers) to collaborate, which makes it a bit more challenging to have an entire Internet Blackout. Therefore, countries like China, Russia and Iran are also developing individual, “closed-off” internets, which would allow governments to cut off the country from the rest of the world wide web.

Can people bypass the shutdowns?

Depending on the scale of shutdown (and the country), there might be tools and ways to bypass the shutdowns:

  • Virtual private networks (VPNs): These allow users to access many blocked sites by providing internet service based outside of a censored country using a proxy server. A caveat is that because VPNs are publicly accessible, governments can block them.

    Also worth mentioning is that encryption is not enabled by default in all VPN services, and even with encryption enabled, not all your Internet traffic will be encrypted. Domain Name System (DNS) traffic, translating domain names like google.com or mdx.ac.uk to Internet Protocal addresses so browsers can load Internet resources aren’t encrypted, meaning that Internet Service providers (and the government) know what websites you are visiting even if you are using VPN.

    The good news is that there is a way to encrypt DNS traffic, by configuring the browser to use DNS over TLS (DOT) or DNS over HTTPs (DoH) protocols.

    Another concern related to the use of VPN is the element of trust, since VPN services keep your data.
  • A good alternative to VPN is serverless tunnels such as Ngrok-tunnel, which is an open source tool that does not tunnel traffic or rely upon third-party servers, meaning governments have a much harder time blocking them.
  • Deep Packet Inspection circumvention utilities such as GoodbyeDPI or Green Tunnel might be another option to bypass Deep Packet Inspection systems found in many Internet Service Providers which block access to certain websites.

Why this is important?

KeepItOn coalition, which monitors shutdown episodes across the world, documented 931 shutdowns between 2016 and 2021 in 74 countries, with some countries blocking communications repeatedly and over long periods of time. Not only do Internet shutdowns represent violations to human rights and freedom, they also inflict social and economic damage on citizens and limit their abilities to access much-needed services such as hospitals, educational institutions and public transport, which in turn deepens inequality.

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The freedom to think: stating the obvious?

MDX legal academic Beth Shiner explains how the freedom of thought, which is the foundation of all rights, has been impacted by the rise of technology ahead of an international virtual symposium

The right to freedom of thought is recognised as a distinct right in international human rights treaties and in domestic law across multiple jurisdictions. But the case law, scholarship, and commentary on the right to freedom of thought is relatively sparse. Perhaps this is because no one can stop us from thinking or even know what we are thinking. Or, because it is without practical application. Finally, as Bublitz argues, it has been neglected because it is an absolute right and courts are hesitant to make use of such a powerful tool for fear of creating undesirable precedents. But, if it so self-evident, why did the drafters of the Universal Declaration on Human Rights, and almost every human rights instrument since, both include the right and discuss what it meant? More than just symbolic, the right has been described as “sacred” and the foundation of all other rights.

During the drafting of Article 9 European Convention on Human Rights, it was stated by the French Rapporteur, Pierre-Henri Teitgen, that the purpose of the right to freedom of thought, as well as the right to freely express convictions, and freedom of conscience, religion and opinion, is to protect individuals not only from breaches by Member States, such as confessions, but also from the “abominable methods of police enquiry or judicial process which rob the suspected or accused person of control of his intellectual faculties and of his conscience”. Nevertheless, the right has been almost completely overlooked in favour of its favoured siblings: freedom of expression, conscience, religion, and privacy.

More recently, scholars and lawyers have begun to pay increasing attention to this right, especially in the context of socio-technological transformations (e.g. Blitz and Bublitz; Alegre), including neuroscience. There is also a concern about the high rate of data collection and analysis for use in algorithmic decision-making in our everyday lives that might undermine human autonomy – the basis, it may be argued, for the right to freedom of thought itself. That such concerns have particular potency in politics deserves attention although there still has not been a single case before the European Court of Human Rights, the Inter-American Court of Human Rights nor the Supreme Court of any country (that we know of) other than Spain, that engages with the question of whether, and to what extent, algorithmic decision-making might be undermining the free exercise of our political agency.

Technology provides an interesting test case for how the right might apply and to what extent, but it does not allow us to appreciate the varying social, cultural and legal contexts in which the right may, or may not be, protected right now. For example, the Special Rapporteur on freedom of religion or belief published the first ever UN report on the right to freedom of thought and identified seven areas where the right might already be engaged – not only in futuristic technological scenarios. These areas are:

  1. torture or cruel, inhuman or degrading treatment or punishment
  2. surveillance
  3. coercive proselytism, anti-conversion and anti-blasphemy efforts
  4. intellectual freedom and education
  5. existing and emerging technologies
  6. mental health
  7. conversion practices

Furthermore, we are being to see the right take shape as its (tentative) scope looks to be four-fold: (a) freedom not to disclose one’s thoughts; (b) freedom from punishment for one’s thoughts; (c) freedom from impermissible alteration of one’s thoughts; and (d) an enabling environment for freedom of thought (UN A/76/380, 2021). However, this is just the beginning and much more needs to be examined before this right can be relied on.

International Symposium on the Right to Freedom of Thought: Call for Participants

The literature on the legal contours of the right to freedom of thought is sparse. For this reason, we will be hosting an international virtual symposium on the right to freedom of thought at 12noon UK/Irish time on Wednesday 23 November 2022. The purpose of the event is to sketch out the legal status and applicability of the right to freedom of thought across multiple jurisdictions. We are seeking expressions of interest from potential participants. We are eager to hear from lawyers in as many different jurisdictions as possible but are particularly interested in hearing from lawyers in Africa, Asia, Latin America and Oceania.

The purpose of the symposium is to sketch out the legal status and applicability of the right to freedom of thought, which might be contained in a national bill of rights or a regional human rights treaty. Our plan is that this event will be the first step in a larger research project on the right to freedom of thought, which will lead to an edited comparative study of the interpretation and protection of the right. For more information, please see the attached flyer.

Bethany Shiner is a member of faculty at the School of Law, Middlesex University, London, and a DPhil candidate at the University of Oxford, UK.

Patrick O’Callaghan is a member of faculty at the School of Law, University College Cork, Ireland.

Photo by ThisisEngineering RAEng on Unsplash

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Ideal Victimhood, Misogyny, and the Amber Heard Trial

Female Leading Interview With Journalists Outside
Female Leading Interview With Journalists Outside (Unsplash)

MDX Criminology and Sociology lecturer Dr Daniel Sailofsky fears that the Amber Heard vs Johnny Depp trial will be a turning point for all the wrong reasons. Here he takes us through his views on why:

If you live in Europe or North America and have a working internet connection, you have probably heard of the Amber Heard – Johnny Depp defamation trial. This was not an accident. The Depp legal and PR team did everything in their power to make sure this case was as public as possible, including filing the case in the state of Virginia, ensuring that it could be recorded and live streamed.

Though Depp already lost a libel case in the UK – a jurisdiction where libel cases are more often successful than in the United States – he won the Virginia defamation case last week. Heard was charged to pay over 10 million dollars in damages, though Depp is also liable to pay two million dollars for his own defamation of Heard.

It should come as no surprise that Men’s Rights ‘activists’, the online ‘manosphere’, and the American political right latched onto this case as ‘proof’ that #MeToo has ‘gone too far’ (it hasn’t) and ‘ruins men’s lives’ (it doesn’t, if they’re talented enough), and that women lie about abuse all the time (90+% do not).

To be frank, I’m not concerned about these groups. I’m concerned about the rest of Depp’s supporters – or perhaps more aptly, those who grew to detest Heard as this case proceeded.

I’m concerned about society’s regression to victim blaming, victim hierarchies, and to unrealistic expectations of how victims of abuse are supposed to act.  

Feminist sociologists, criminologists and more specifically victimologists have long been concerned with how the public and the law treat different victims, especially victims of intimate partner violence. In the 1980s, Norwegian sociologist Nils Christie introduced the concept of the ‘ideal victim’, a crime victim who’s ‘ideal’ characteristics make them more likely to garner sympathy and justice in the courtroom, and perhaps most importantly, more likely to be believed when they recount their abuse.

Even those defending Amber Heard would admit that she is far from an ideal victim. The point, however, is that she shouldn’t have to be.

Christie’s original formulation of the ideal victim (in a courtroom setting) is someone old, weak and vulnerable. They are involved in respectable activities and employment, blameless in their victimization, and victimized by a “vicious” and “unknown” offender. Other characteristics have been added to this formulation over the years, including acting ‘rationally’ to escape victimization, presenting as sincere and thoughtful in court, and being young and naïve (rather than old). Those marginalized along racial, class, and/or sexuality lines are also less likely to benefit from privileges of ideal victimhood.

Heard is not an ‘ideal victim’; almost no one is. Intimate partner violence is messy, courtrooms are stressful, and the real world of violence, abuse, and (attempts at) justice is not a True Crime podcast. Depp, his lawyers, and a deluge of social media content creators presented Heard as a liar unable to tell a coherent narrative, a gold-digger, and responsible for her own victimization due to her behaviour and her own abuse towards Depp. The fact that a judge in another jurisdiction had found substantial proof for 12 of Depp’s alleged abuses, or that he has a history of substance abuse and mistreatment of those on movie sets mattered little, because Heard was not the right victim. She wasn’t a ‘real’ victim.

As sociologist Nicole Bedera explained, Depp’s legal team used a typical DARVO (deflect, attack, reverse victim and offender) playbook in this case, and to great effect. Punching down on someone with lower structural power – in terms of wealth as well as social and cultural capital (aka popularity) – Depp and his team engaged in a takedown of Heard’s character, ignoring and deflecting from years of documented evidence.

These DARVO strategies are common, and are often used in cases of sexual violence on college campuses. Following this highly public trial, they will only become more so. This case will not only push victims to avoid seeking justice from the criminal legal system, but it will silence them from even mentioning their abuse to friends, family, and the public if they have the slightest inkling that they won’t be received as a perfect victim.

Though she is a young, conventionally attractive white woman (more likely, according to some research to be considered an ideal and believable victim), Heard admitted to fighting back against Depp. She admitted that she did not leave right away after the first time she was threatened, or when Depp first behaved in abusive ways. She didn’t have bruises at the right times; she was out to get him; she brought this into the public eye; she deserves this trial and this public execution.

This case got such media traction because Heard was not simply framed as a non-ideal victim, but as a liar, a ‘crazy woman’, and an abuser herself. TikTok ‘investigators’ and social media sleuths showed a misogynistic bloodlust for her every misstep, mistimed facial expression, and any odd courtroom behaviour. Memes were made, including those attributing guilt or blame based on courtroom behaviour and facial expressions, and social media celebrity careers were launched.

Imbibing this never-ending stream of content, observers flipped back and forth from “she’s lying” to “she deserved it”. Those defending Heard were berated and mocked, with Depp supporters taking over social media channels like TikTok.

If the general public needs victims of intimate partner violence to fit a particular cookie-cutter image to be considered a ‘real’ victim, we have seemingly learned nothing about gender inequality, power, and the messy nature of interpersonal violence trials. If defamation cases and (social) media slander await victims of powerful abusers, any progress made on speaking out against this type of violence will come to a grinding halt.

I fear that we will look back at the Depp-Heard trial as a turning point, where Men’s Rights activists, misogynists, and those looking to thwart movement on gender inequality took the narrative and public opinion back. I hope I’m wrong.

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Why Russia’s invasion of Ukraine is not the end of the UN Charter system

Destroyed buildings in Kharkiv (Deposit Photos)

MDX legal expert Dr Giulia Pecorella explains why international courts and the UN Charter will still be crucial in peacefully resolving the conflict

Russia’s invasion of Ukraine is a serious violation of international law and the UN Charter. It is an act of aggression which also involves violations of international humanitarian law as civilian and protected objects have been targeted and attacked, as well as human rights law.

Some fear this is the end of the security system created by the UN Charter more than 75 years ago. This is because Russia, as a permanent member of the UN Security Council, has blatantly violated the cornerstone principle of the Charter. It prohibits the use of force and only allows such military action with the express approval of the UN Security Council on the grounds of self-defence.

In so doing Russia has inevitably damaged the legitimacy of the UN Security Council as the body that according to the UN Charter has got primary responsibility in the maintenance of international peace and security.

But still, from an international law perspective, I would be more inclined to see the bright side even in such dark times as now.

Resolving the war in courts

First, while Ukraine has been under attack and used military force on the grounds of self-defence, they are still determined to rely on peaceful means such as negotiations to solve their dispute with Russia.

The Ukrainian government has moreover initiated diverse proceedings before international courts, showing a remarkable positive attitude towards what the UN Charter considers another method of solving a dispute peacefully, that is, judicial settlement.

They are relying on different courts, including the European Court of Human Rights and the International Court of Justice in The Hague, as well as, they are showing great support to the investigation undergoing within the context of the International Criminal Court.

Scholars usually look at the limits of the system and the flaws of the international courts and tribunals, but I believe it is significant at this stage the Ukrainian government is still seeking to resolve their disputes through judicial settlement acting within the limits of the UN Charter.

Rescuers dismantle a destroyed residential building in Kharkiv (Deposit Photos)

At the same time, international courts have reacted very quickly, confirming they are effective and proactive means to resolve international disputes.

Moreover, States have decided to respond to the Russian aggression through acts adopted by different International organisations, including but not limited to, the Council of Europe, the UN General Assembly and the UN Human Rights Council.

This is a very interesting trend that contrasts to what we have witnessed in the last decade, when international organisations and courts have been criticised as useless, biased and ineffective, and several states threatened to leave or actually left them (think about, for instance, Brexit or the Trump Administration’s attitude towards the World Health Organisation during the pandemic, or the International Criminal Court).

Second, the strong condemnation of this aggression by the international community provides further evidence to confirm that under both customary international law and the UN Charter unilateral humanitarian interventions (that is, the use of force for humanitarian reasons by a state, a group of states or an international organisation, such as NATO or the African Union) are not allowed.

This image has an empty alt attribute; its file name is Depositphotos_551345446_XL.jpg
Refugees near the railway station of Lviv waiting for train to Poland (Deposit Photos)

Humanitarian intervention and self defence

In the last 20 years, because of the impact of human rights on international law, some states, including the UK, have argued in favour of using force whenever there have been claims of genocide, the use of chemical weapons against civilians, or other war crimes.

Even if a member of the UN Security Council vetoes such actions, the UK believe we should use force on the grounds of humanitarian intervention.

While the rights of the Russian minorities in Ukraine have been often cited by Putin, the reaction of the International community confirms that this won’t be a legal ground to justify the invasion.

Similar considerations could be made in relation to the grounds of so-called preventive self-defence, as it has been interpreted, for instance, within the context of the War on Terror.

In the last twenty years, the US has argued that when states are unwilling or unable to prevent attacks from terrorist groups based within their territory, the use force on the ground of self-defence is allowed, even when the threat to the security of other states is not imminent.

While the legal grounds for Russian intervention have not been clearly submitted, which is possibly another reason to condemn it, among their arguments there is also the need to prevent further threats from a militarised Ukraine. They are calling on Ukraine to demilitarise and this intervention is a way of preventing future threats.

States gets back to UN Charter

However, the way the overwhelming majority of the international community has condemned the actions by Russia shows that international law does not currently provide for a such broad exception to the prohibition to use force.

Of course, these considerations might not be sufficient to put an end to this war or the crimes committed within its context. Yet, the return of international organisations and courts for states to settle international disputes and react to violations of international law is undeniably a very positive element coming out from this hideous situation.

I am also confident that this aggression might encourage all states to reaffirm the principles of the UN Charter and reject any attempts to interpret and apply the law differently (as Russia is doing) and set dangerous precedents which could defeat a system that has survived for more than 75 years.

In this respect, international courts might also play a very significant role.

Dr Giulia Pecorella is Senior Lecturer in Law in the Department of Law and Politics, and PhD Programme Leader for Law. Her most recent work – The United States of America and the Crime of Aggression, which has been published by Routledge – is available to purchase online.

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Russian misuse of international law is final nail in coffin of post WW2 order

Dr Elvira Domínguez-Redondo, an Associate Professor of International Law, argues the global system to prevent nuclear war is no longer fit for purpose

The intensity of the global response to the Russian attack on Ukraine has been met by some with scepticism. They view it as a manifestation of Western exceptionalism when the consequences of illegal uses of force have a direct impact on their territory. However, the express Russian threat of escalating the conflict through nuclear weapons is indeed exceptional.

Since these weapons were created, their potential for mutual assured destruction has underpinned international relations  though their destructive capability has not been explicitly articulated as a threat against other States in decades (on this threat see Lewis). Beyond the weapons, the danger posed by potential attacks to nuclear plants has also taken centre stage after the Russian military attacked an administrative building linked to a nuclear power plant in Zaporizhzhia on 4 March 2022 (see Dielnet).

The distortion of arguments based on international law and the position of those making them have, in my opinion, completed the destruction of a system no longer suitable to prevent global armed conflict. This is not – or not only – an intrinsic flaw in the system’s design, but the inevitable by-product of intentional actions carried out by those who ought to have been most interested in preserving it.

Role of Rhetoric in the Russian aggression

International law has been referenced by Russia in justifying its invasion of Ukraine. Russia has advanced every possible exception to the prohibition of the use of force in different disguises including invitation, self-defence, and humanitarian intervention (Sayapin’s summary here).

The weakness of the legal claims are reflected in the general rejection they have deservedly received.[1] Still, the Russian attempt to provide legal grounds to its actions is remarkable, going as far as recognising two new ‘states’ for the purpose of presenting the invasion as a consent-based ‘peace operation’.[2] Russia also declared that sanctions used against its economy as countermeasures are akin go an act of war, reviving legal arguments that equate use of armed force to coercive means of enforcing international law. [3]

The swift engagement and prompt response of the European Court of Human Rights, the International Court of Justice and the International Criminal Court is remarkable and a revealing testimony of the centrality of international law in the means used to address the conflict [4].

Beyond repair – (another) wake up call to replace the system

The United Nations was established in 1945 with the primary objective of protecting future generations from the scourge of war. This mission relied on two pillars: stopping the use of armed force, and creating a Security Council with unique responsibility for maintaining global peace and security. Russia (then the Soviet Union), China, the United Kingdom, France and the United States have since occupied a privileged position with permanent seats and veto powers. In practice this means that outside the confines of self-defence, the use of armed force is only legal if the States most likely to provoke a third world war are in agreement. In other words, the system is based on granting extraordinary powers to a few countries that would, in exchange, act as guardians of international peace and security.

What is often referred to as ‘paralysis’ has been the cornerstone of a system designed to prevent a third world war. As I have explained elsewhere (here and here), the legitimacy of the Security Council has been irreversibly undermined by previous illegal uses of force in Kosovo, Syria and Iraq by other permanent members of the Security Council (mainly the USA and the UK, but also France). States’ attempts to address the Russia/Ukraine conflict through dispute settlement mechanisms, with an emphasis on legal arguments manifested in an exceptionally prolific use of international courts, consolidates the strength of legal rules involved in this scenario.

However, unanimous condemnations of Russia contained in emerging decisions derived from applying standard frameworks are unlikely to stop the war. This conflict will likely end at a negotiation table, potentially with a peace agreement, hopefully in the short-term, to prevent further suffering, loss of life and weapons induced accelerated planetary destruction. The strength of the rule prohibiting the use of force is likely to rise and States that have progressively broadened the scope of exceptions to legitimise their lethal enterprises may reconsider their positions. This is not the case for the system established to monitor and guarantee compliance with the rules through the United Nations Security Council.

The destruction of the pillars on which the collective security system was built in 1945 has been completed by those who benefited most from it and who were in charge of preserving its worth as an effective mechanism to prevent a global armed conflict and total annihilation.

End of the Security Council

Whatever the outcome, it is hardly conceivable that the weakened legitimacy of the Security Council can survive this final blow in neither its current nor reformed form. Those in power will seek to in articulate and enforce rules maintaining the status quo of their privileged position. Because it requires legitimacy to be acceptable to the majority away from power, law also embeds some form of public morality and fairness.

We are at a crossroad: while the prominence of the international legal order in times of crisis has been evident, it is not possible to save the system designed to prevent and/or stop a global war only by rewriting it (as suggested by Johns and Kotova). Paraphrasing Castellino, the logic leading to the obliteration of this system has highlighted how outdated its premises are. This underscores the imperative urgent need for a radically new approach to international relations, perhaps beyond the political organisation of the state and the conception of a ‘nation’ underpinning it.

“Have confidence, have certainty that the spiritual energy of the people will prevail, the non-violent spiritual energy of people against tanks, against guns, against dictatorships, against armies, against the police, will prevail.” Colin Gonsalves.

[1] Gurmendi has compiled other States’ reactions to weakness of Russia’s legal claims here

[2] For a commentary linking the current attack and annexation of Crimea, see Roscini

[3] On reviving legal arguments that equate use of armed force to coercive means of enforcing international law see Mulder in his book Economic Weapon, Yale University Press, March 2022)

[4] Pecorella summarises the role of international law here; for the ICC prosecutions see Coleman, and Wheeler; as well as Schabas  comments on genocide and war crimes)

For a list of recent short commentaries on international law implications related to the Russian invasion of Ukraine, see Odermatt here.

Photo by Ahmed Zalabany on Unsplash

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Law & politics

Has Rule of Law backsliding begun in the UK?

Image of the UK Houses of Parliament with a red double decker bus in front

Professor Laurent Pech, Head of the Law and Politics Department at Middlesex University, has been researching a worrying issue he has described as ‘Rule of Law backsliding’ for more than ten years.

Here, he claims there are signs suggesting that a process of Rule of Law backsliding which, in the EU, first began in Hungary before spreading to Poland, is getting underway in the UK.

Since the early 2010s, the EU has witnessed a startling breakdown in compliance with the rule of law, as some Member States’ governments systematically dismantle checks and balances in order, incrementally, to establish de facto one-party states.

My research has examined these systematic and coordinated efforts by some national authorities to undermine the rule of law, with my work especially concerned with the deteriorating situation in both Hungary and Poland.

In the last three years, we have witnessed a number of developments in the UK which are reminiscent of what we have seen in both Hungary and Poland.

For instance, the ‘will of the people’ appeal has often been used as a way to justify violations of the rule of law. The first signs of an unhealthy rhetoric in the UK could be seen too with judges and academics, and more recently lawyers, increasingly subject to abuse and intimidation tactics.

‘Enemies of the People’

In the wake of the Miller case, the attack on the judiciary and the ‘enemies of the people’ headline in the Daily Mail in November 2016 can be considered a hallmark of autocratic regimes as only an independent judicial system can enable individuals to vindicate their rights.

Similarly attacks on ‘pro-remain’ universities was another way to ensure that a counter, in the case of the UK anti-Brexit, discourse is muted.

No voices are thus left to proffer arguments against governmental policies which some may be tempted to justify in the name of ‘the will of the people’ regardless of whether they violate the rule of law or not.

A third parallel one could draw as early as 2016/17 was the attack against George Soros and his Open Society Foundations, both in Hungary as well as in the UK where Nigel Farage sought to investigate Soros funding. The anti-Semitic overtones of the anti-Soros rhetoric can be viewed as an attempt to garner the support of autocratic and nativist forces.

It would be unwise to assume that the UK legal and constitutional system will be strong enough to withstand the ongoing process of rule of law backsliding which seems to be gaining strength in the UK.

Attacking the judges and lawyers

Indeed, the election of Boris Johnson has been followed not only by worrying rhetoric but also, and more crucially, actual steps which could lead to an autocratisation by stealth of the UK.

One may refer here, for instance, to the repeated and dangerous attacks against so-called “activist lawyers” by the Home Office Secretary and the British PM himself. This kind of attacks on the legal profession not only undermine the rule of law but endangers the personal safety of lawyers.

Image of the UK Houses of Parliament with a red double decker bus in front

In this context, let me quote Sir Anthony Hooper, a retired Court of Appeal judge: “Once you’ve lost the independent legal profession, once the judges have become enemies of the people, the future health of this liberal democracy is very much at stake.”

And indeed, under the cover of this rhetoric characteristic of autocratic regimes in the making, we have also seen the unbecoming politicisation of the offices of the Attorney General and of the Lord Chancellor.

Legalising law breaking

In addition, as if this was not enough to worry you, the British government unlawfully prorogued Parliament under a false pretext and most recently, the British government, including the AG and Lord Chancellor, have defended the legalisation of lawbreaking via the UK internal market bill.

As the Select Committee on the Constitution of the House of Lords put it last month:

“Setting out explicitly to break international law in this way is without precedent. It jeopardises international obligations the UK recently ratified, undermines domestic law and is contrary to the rule of law.”

Yet more deliberate undermining of the rule of law is on the way with ongoing governmental work on judicial review and the announced review of the Human Rights Acts should be understood as further deliberate attempts to make the executive power in the UK unaccountable.

COVID-19 has changed the rules

It’s important not to overestimate the resilience of the UK’s constitutional arrangements to the authoritarian gangrene which first began in Orban’s Hungary, especially in a COVID-19 context which has made it easy for governments everywhere to bypass normal law-making procedures on a grand scale.

To avoid a process of what I have called in my research “constitutional capture” by the current political majority in the UK, it is crucial that judges, lawyers, academics but more generally all citizens, realise what the ongoing demonisation of legal professionals and dangerous legislative steps previously mentioned may lead to, that is, the progressive transformation of the UK into an electoral autocracy where authoritarian practices are hidden behind the institutional facades of representative democracy.

While multiparty elections will continue to be regularly organised, these will no longer be fair due to the systemic undermining of most democratic and rule of law minimum standards by the ruling party. 

In 2021, Professor Pech and Dr Joelle Grogan, a Senior Lecturer in UK and Public Law, will submit a REF impact case study entitled “Challenging Rule of Law Backsliding in the European Union”.

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Law & politics

Where Did The Floating Charge Come From?

A man with moustache and top hat sprinting with bag of money under his arm

Los Watkins, an MDX Law Lecturer shares a piece of ongoing research into the concept of the Floating Charge and its impact on modern banking law.

The importance of origins

I’ve always found the idea of origins to be interesting, especially in Law. Why do we need a certain law? To stop something happening, or to make something happen? Was it from the Courts or from Parliament?

The Floating Charge is part of the Banking or Company Law and is an extremely important legal concept for commerce today. Almost every business you’ll see or hear about will have had to make use of it, or is doing so presently.

It seems that the idea really came about more from the Courts with Judges sorting out what was seen as a legal problem where there was no legislation to utilise. This is known as Judicial Activism. It becomes highly important when there is a legal issue to sort out and Parliament is otherwise engaged. For instance, during the past couple of years where it was almost wholly occupied with the Brexit debate!

A man with moustache and top hat sprinting with bag of money under his arm

The history of the Floating Charge

Initially, it may help readers outside this field to have a very brief and rather simplified explanation of what the Floating Charge is and how it works.

In order to give security for borrowing, it is usual for a business to allow the lender to place a charge over some assets which they might own. This will either be over all the assets or over a class of assets; only the land, or only the machinery, for example. If this is a fixed charge (essentially a mortgage over buildings, land or other fixed assets) then the business cannot deal in that asset without the lender giving their consent.

However, if a business has its stock as an asset, then this is clearly impractical, indeed, impossible to obtain that permission for every item sold every day. Therefore, there came into existence the concept of the floating charge. This means that the charge can be over stock as a whole, and, before insolvency, it allows the charged assets to be bought and sold during the normal course of business without reference to the charge-holder (the lender). In practical terms, stock can be sold and replaced freely until the charge falls due, for whatever reason, when it ‘crystallises’, or becomes a fixed charge, and the assets can no longer be sold.

References throughout the years

The conception of a charge over stock has a long pedigree, reaching back as far as ancient Rome. It was only really used in England in a vague and rare manner, and was then disapproved of. Cases such as Ryall v Rolle in 1749, followed from legal writers such as Francis Bacon (Maxims of Law, 1630) and John Perkins (Profitable Book, 1545).

In the early 19th Century, the Courts once again considered the issue with the cases of Alexander v The Duke of Wellington in 1831 and Lyde v Mann in 1833. These cases suggested that a charge over property not presently in the ownership of the borrower may be enforced as part of an Equitable view of the case. This approach was followed by other cases in 1839 and in 1842, where Langton v Horton returned to the view that this could be legal.

Becoming a recognised entity

By 1870 there were four crucial elements of what we now know as the floating charge in place:

  1. That there could be a security over the stock in trade of the borrower
  2. That the borrower had the ability to change the nature of that stock
  3. That the charge could be self-effecting (i.e. nothing more needed to be done to make the charge)
  4. That the charge did not become fixed until a certain occurrence (usually the cessation of trading).

At first, not all Judges agreed with this new idea but it slowly became more generally accepted. In 1879, Lord Jessel, the Master of the Rolls himself, first made a specific reference to the floating charge, rather than any of the other forms of words or descriptions which had been used up to that date. This is significant because it is a recognition that a new term was required for this new concept; a thing does not need a name of its own until it is a recognisable entity in its own right.

Then, in 1897, Lord MacNaughton gave the first real comprehensive and modern definition of the constitution of the floating charge as a piece of law. This was followed by Lord Justice Buckley in the 1910 case of Evans v Rival Granite Quarries.

What we now recognise as the floating charge really had arrived.

Courts vs Parliament

This, then, was the view of the Courts. Parliament made no mention of the concept until 1845 in the Companies Clauses Consolidation Act. However, this legislation only applied to a very specific type of Company and the clause was somewhat vaguely drafted.

However, by 1854, Parliament was addressing the situation of charges and how they might work in business. The current legislation now concerned with the Floating Charge is codified in the Companies Act 2006, Part 25, Schedule A1, s.859A.

In conclusion

Taking all this into account, I would say that the need for what became the floating charge was recognised by the Judiciary long before the Legislature. The run of the cases through the early 19th Century clearly show the various elements of the modern concept being brought into being by the pragmatic actions of the Courts.

I believe that in order for companies, for whole industries to grow, it was, and still is, an absolute requirement for them to have access to capital, and for that, there must have been a requirement for security on borrowing.

The use of stock in trade as security gave a flexibility and an access to growth capital that allowed business to grow fast and to utilise all the opportunities given by the Industrial Revolution. Today, that same flexibility and access to borrowing is used by businesses all over the UK who perhaps rent their premises, lease their vehicles and would otherwise have no fixed assets as security for their business loans.

It is, I suggest, not too much of an exaggeration to say that without the Floating Charge, UK business would be in a far different position today.

Categories
Law & politics

How to succeed with a policing degree apprenticeship

A back shot of two female police officers with high vis jackets on

Middlesex University is lead partner in the Police Education Consortium of four universities, which is delivering the Police Constable Degree Apprenticeship programme with three forces: Surrey and Sussex Police and Hampshire Constabulary.

The Chief Constable of Sussex Police, Giles York, gives a personal view about the role of apprenticeships in transforming the police, encouraging new groups of people to consider a career in policing.

A career is more than a job

Policing has been a career of choice for many people for so many years. And for the majority of us, it’s more than just a career; it’s a vocation which makes us excited to come to work day after day.  

Policing isn’t for everyone though. Or is it? So often we hear of the challenges, the workloads and the trauma that can be experienced; a consequence of when we choose to do our duty and sometimes put ourselves in the way of harm. However, in one-to-one conversations with my officers, more often than not they will admit: “It is the best job in the world, I love what I do.” And that is the degree of personal satisfaction you get when you set out to make a difference for the better and see the results in front of your eyes. 

I really believe that there is a role in policing for far more people than they might think. The challenge is getting them to recognise that and getting the recruitment processes right so it’s attractive and relevant to join. 

Recruiting people who don’t think policing is for them is the answer.

Fortunately, the changing nature of policing means that we need new skill sets that we must either develop in our existing staff or recruit into our organisations. We are not alone in this – The Open University recently reported that 91% of organisations have struggled to find people who hold the right skills. HMICFRS have also recognised how this skills gap could grow to a stage where police forces are unsustainable for the future. 

Alongside skills, we have the challenge, as a profession, to increase diversity within our workforce further, so that we are truly reflective of the communities we serve and protect. With just 7% of officers across England and Wales coming from BAME communities, however, there is still much work to do in this area. 

To enact real change, we need to do something different. As the old adage goes, if you always do what you’ve always done, then you’ll always get what you’ve always got. Which is why, as the NPCC workforce lead, I have supported the work of the College of Policing in building new routes into policing, including the introduction of apprenticeships and professional qualifications.  

The value of apprenticeships 

Each day our officers and staff deal with challenging situations that cannot be clearly mapped out in a textbook or solved with an algorithm. Our teams deal with unique incidents which makes developing the officers of the future more challenging; especially as crime and technology evolves.  

The introduction of new entry routes, such as the Police Constable Degree Apprenticeship (PCDA) – delivered at Sussex Police by police trainers and academics from a consortium of universities – not only recognises the complexity which our officers face daily but also provides real opportunity to bring difference into our organisations and help address both an ageing workforce and the skills shortage. 

In other professions, apprenticeships have allowed this to happen. In 2018/19, the Department for Education saw a 16% increase in the number of apprenticeship starts of those from a BAME community and a 7% rise in starts among females. 

Within Sussex Police, we’re seeing similar increased applications to our apprenticeships from under-represented groups. In June 2018, applications for police officers increased 61% in just two weeks. Of these we saw a 114% increase in applications from females and 118% increase in those who identifying as BAME. Just this month (January 2020), over 400 people applied for degree-holder entry to be a detective, attracting 67% female, 8% BAME (against a local population profile of 6%) and those identifying with a disability at nearly 9%. 

While we can’t put all of this down to the introduction of the new entry routes, what it has shown is that by offering the opportunity and ability for an individual to join policing and gain a professional qualification, we are ensuring that policing remains an attractive career choice. 

A cultural transformation 

Apprenticeships also offer us the opportunity to evolve our culture. Many of us aspire to have a culture of learning. Apprenticeships embody this principle completely. They enable us to transform the way we support and develop our people by placing a focus on self-driven learning, real-time development and alignment between the classroom and the front-line. This combination ensures that we’re adopting innovative, and evidence based approaches, to prepare our student officers to be independent, problem solve effectively and resolve situations using a combination of their own knowledge, experiences and structured learning. 

It also offers a vocational learning approach which places the onus on the individual to drive their development. And by partnering with universities who are world-leaders in areas such as criminology, we are able to draw on their expertise and ensure we are building a sustainable pipeline of great officers who are recognised for the skills that they possess. 

Keeping great staff

Once we have recruited successfully, we also need to retain those staff and that is why challenging and changing our internal process remains critical, creating an inclusive environment where people feel they belong. 

Sussex Police is working hard to create that sense of inclusivity for everyone in the organisation. This hard work is recognised by our role as the United Nations global law enforcement thematic champions for HeForShe and being the highest public sector organisation in the South East, as well as the highest police force nationally in the Stonewall Top 100 employers. 

I’m genuinely excited by the opportunities apprenticeships, and other entry routes into policing offer. We have a real chance to change the make-up of our workforce and attract new skills, people and experience into our organisations who will help us make a greater difference to the communities we serve and the victims we protect.

Read more about degree apprenticeships at MDX

Categories
Law & politics Social commentary

Reparations for Slavery – A Contemporary Debate

Dr Angus Nurse, Associate Professor in Criminology and Sociology, examines the current debate over reparations for slavery in both the UK and US.

As election campaigns kick-off on both sides of the Atlantic, attitudes towards and the treatment of black citizens have become a topic of debate. Evidence on both sides of the pond consistently indicates that black citizens are disadvantaged in their treatment at the hands of the state and state agencies, particularly criminal justice ones.

In the US, the Black Lives Matter movement has shed light on the killing of unarmed black men and alleged disproportionate use of force by policing agencies against the black community.

In the UK, research continues to suggest disproportionate use of police stop and search powers against black and minority ethnic people. 

In both the US and UK, black people are disproportionately represented in  prison populations and evidence suggests they receive harsher prison sentences compared to their white counterparts.

Discrimination continues

Underlying these issues are social attitudes towards black people arguably situated in cultural perceptions of inferiority and of black communities as being predisposed towards crime. However social inequalities between black and white communities are visible in a range of areas including income disparity, access to professions and discrimination in the workplace and provision of services.

The racial disparity in US society is arguably more pronounced and visible to the extent that race based dialogue such as recent debates about whether calls to send elected (non-white) politicians ‘home’ is racist. However, the Windrush Scandal also draws into sharp focus the extent to which UK authorities have discriminated against black citizens and shown at best poor judgment in the creation of a hostile environment towards black people. At worst, Windrush gives the impression that racist attitudes towards black people permeate aspects of Government thinking and policy.

Against the backdrop of poor attitudes towards black people and concerns about differential treatment for black citizens and communities, a campaign for slavery reparations has been gathering momentum. At the heart of this campaign is a growing call for recognition of the impact of slavery on current communities. There are also calls for UK and US Governments to acknowledge a debt is owed to those who suffered and lost their lives as a result of slavery, while governments and other institutions benefited.

For those who believe that a long history of forced, unpaid labour, ownership and servitude and persistent social attitudes of black people as second class citizens has caused difficulties for current communities, reparations for the harm caused by slavery make sense. However, assigning responsibility at the level of the state and identifying who should make reparations and what form any reparations should take can be difficult.

The US movement

In the US, the slavery reparations movement is fairly advanced. In July 2019, Chuck Shumer leader of the Democrats in the US Senate backed a campaign for reparation. US Presidential hopeful Cory Booker and Congresswoman Sheila Jackson Lee have also called for a commission to study and develop reparation proposals for African-Americans. 

A range of court action has also taken place in the US in recent decades with the aim of having the courts rule that reparations should be paid and drawing some conclusions on who should pay them.  Legal cases have included action against major financial institutions that benefited from slavery as well as claims against the government itself.  So far, none of these cases has fully succeeded with the reasons for failure varying.

In rejecting these claims, reasons given by courts include arguments that present day institutions cannot be held responsible for the actions of their long-dead predecessors. It has also been argued that whether the state should compensate for something that was legal at the time is a political question rather than one that should be decided by the courts.

Claims have also been rejected because there is nobody alive today who has directly suffered from slavery and so in one sense there is no surviving victim who should be compensated. This argument distinguishes the ‘legacy’ of transatlantic slavery as an institution against black people who are still feeling its effects, from more recent harms like the persecution of the Jews in the Holocaust. Reparations have been paid for the Holocaust in part because not only is the Holocaust a more recent memory, but a number of its survivors and their children are still alive. As a result, there were living victims whose harm could be addressed when Holocaust reparations were initially agreed in the 1950s with later payments agreed decades later.

The same can not be said of the victims of black slavery which technically ended in 1865 in the US with the emancipation proclamation and 1834 in the UK following the passing of the Slavery Abolition Act 1833. That said, an argument can be made that reparations could be given for the descendants of slaves, many of whom continued to suffer the effects of slavery through segregation in the US until the civil rights reforms of the 1960s and 1970s.  US civil rights and Black Lives Matter activists might well argue that they are still suffering today.

The legacy of UK slavery

The legal arguments for reparations are complex and different arguments can potentially be made in the US and the UK and against private and public bodies or the Government. The US slave trade has arguably resulted in marginalised black and ethnic minority communities and poor treatment of black citizens when compared to their white counterparts.

The UK’s slave trade has resulted in Caribbean communities who may have achieved (legal) independence from the British colonial power but who are still slightly dominated by colonial influences, legal systems and British forms of governance. Caribbean communities still also suffer from general imbalance between the status and wealth of black and white communities. So a general argument can be made that slaves were denied the economic value of their labour (wages) and so at least some money is owed from those institutions that benefited from a free work force. 

Some universities and other institutions have admitted that they profited from slavery and so a simple form of reparation here might be to provide scholarships or other benefits that can be accessed by Afro-Caribbean or African-American students and other service users, as US Bank JP Morgan Chase and Company has already agreed to do.

Reparations should address not just the immediate harm caused to victims of an atrocity like slavery, but also its enduring legacy.  So while it is true that nobody currently alive directly suffered from slavery, giving this general type of reparation at least recognises that as a consequence of slavery, black people still experience difficulties in accessing some institutions that historically refused entry to these alleged second class citizens.

State reparations

Reparations by the state are a little more challenging but reflect the Government’s support for the institution of slavery and its impact on black communities.  Slavery existed partly because US and UK governments made money from the slave trade and the ‘free’ labour it provided and so allowed it to continue long after there were calls for it to end.

Caricom, the Caribbean Reparations Committee,  continues to call for slavery reparations to address the harm caused to Caribbean communities and the crimes against humanity endemic to the slave trade. However, on a visit to Jamaica in 2015, former Prime Minister David Cameron responded to calls from Jamaica’s Parliament for reparations by asking them to ‘move on’ and ‘continue to build for the future’. Yet inequality continues to be felt across the Caribbean and access to the wealth available to white Caribbeans as well as the luxury of the islands’ tourism industry and produce resources continue to be denied to large portions of the black and indigenous population who are arguably segregated from the benefits of island economies that have been made possible by slavery and the wealth made for Britain by its slave plantations.

The moral argument

Besides the legal arguments a moral argument for reparations also exists. Slavery represents a wrong inflicted on people due to a belief in their inferiority and a perception that they are fit only to exist within certain areas of society. Reparations provide a tangible means of acknowledging the wrong and harm of such thinking and clearly stating that it has no place in contemporary society.

While an apology for the harm caused by the slave trade is welcome, the gesture of reparations provides a means of giving something back to communities and nations who most felt its effects. With the rise of racist rhetoric in the US and of hate crimes in Brexit-fuelled Britain, concerns about racism are once again on the agenda. It’s time the reparations debate was as well.

Categories
Law & politics

Political integrity instead of deceit

We do not know how the electorate has been influenced by new political campaigning techniques. However, the central issue is not how we are influenced but that political campaigns are characterised by attempts to manipulate the electorate to increase votes and profits. Bethany Shiner argues that focusing on whether, how or why the electorate is influenced distracts from the question of how to make political communication more transparent, more honest and more respectful of the electorate.

To explain the unexpected UK-EU referendum outcome, rhetoric gravitates to how some parts of the electorate decided their vote on the basis of lies, manipulation and ignorance. That may well be true but such an explanation is problematic, not only because it is pejorative, but because it misplaces the central issue. The primary focus should not be the influence of campaigns; it must be the intention of campaigns.

Ideally, in an age of emerging and hard to detect online campaign techniques, effective regulation will partly rely upon an understanding of how people are influenced and therefore what the best method of protecting the democratic process from manipulation, corruption or interference (including foreign interference) is. This would be the most responsible and appropriate approach but it requires consultation with emerging research to update our understanding of human behaviour and influence. It is, however, not a necessary approach if our concern is that the democratic process can be all too easily “hijacked”. Instead of saying ‘if only people were better educated and less susceptible to manipulation’ we should firstly say ‘if only political campaigns were characterised by integrity instead of deceit to increase power and profit’. Re-directing the concern away from whether or not people vote on the basis of disinformation and emotional manipulation will allow us to focus energies upon establishing integrity and trust in the democratic process.

The impact of social media

This shift is all the more important when we do not know how we are influenced and cannot coherently account for how we respond to digitally delivered material on social media and therefore the extent of that influence on our decision-making. This was most recently demonstrated by research into public perceptions of political finance regulations and online political campaign tactics commissioned by the Electoral Commission. Participants said that online material “stuck” in their mind more than a flyer through the door and that social media had a particular impact because on Facebook you casually scrolling through the material at a time when you are not politically tuned in. Participants also reported that they viewed digitally delivered material as being less trustworthy. Can we reconcile, on one hand, a much more persuasive medium that influences us at times when we are not in our political mindset when, on the other hand, we also self-report being more cynical of online material? The researchers concluded that people “are unlikely to be aware of the extent to which they may be influenced by digital campaigning material”.

Although the research was deliberative it cannot provide a complete explanation as we are all limited in being able to offer accurate insights into our own decision-making because of the process of rationalisation. Of course, the primary problem with saying that although people vote, they do not know why they vote the way they do and cannot explain it, is that it demolishes the concept of autonomy. The point being that electorate behaviour is much more nuanced than rational or irrational decision-making. Much more sophisticated research is needed to get ‘inside the mind of the voter’.

Of course, the only problem with gaining more insight into how we are influenced is that another profit-driven political consultancy firm will be able to take advantage of it, just as Cambridge Analytica et al did with research into behavioural science. That is as long as the legal and regulatory regime remains behind emerging technology and for as long as we remain unable to hold our politicians effectively politically accountable for attempting to deceive, mislead and lie to the public for the purpose of their own power gains. And, that is precisely why the emphasis should not be upon the concern that people are apparently gullible, uninformed and easily influenced – it should be upon the prevalence of political campaigning practices that take advantage of new technologies, as well as old, to deliver knowingly dishonest campaign messages in a bid to win the most votes. Taking a principle-based approach to establishing more trust in the democratic system better helps us future-proof against the effects of emerging technologies that have the capacity to be even more harmful.

Image by Jwslubbock, (Wikipedia), licenced under Attribution-Share Alike 4.0 International.

A flawed regulatory regime

The current regulatory regime that applies to data use, campaign spending and political advertising is flawed in several ways and continues to rest upon unsatisfactory explanations of influence. The law assumes that as long as there is a level playing field when it comes to campaign spending and as long as the electorate is not bombarded with broadcasted political campaign advertisements, then that creates enough space for the electorate to make up its mind without undue pressure or influence. This approach is out-of-date in three regards. Firstly, social media is the most significant source of information now, not the television or radio. Secondly, this approach assumes an element of electorate rationality that is too simplistic. Thirdly, this does not speak to the issue of content.

Expanding on the third point, in 1997 it was decided that political campaign adverts would no longer be regulated by the Advertising Standards Authority because political adverts are too subjective and it was unclear how the incoming Human Rights Act 1998, which protects freedom of expression, would apply. However, it was suggested in 1998 by the Neill Committee on Standards in Public Life that as an alternative to regulation there should be a Code of Best Practice for political advertising in the non-broadcast media. This was not acted upon but the idea of a Code of Conduct has recently re-emerged in the Committee on Standards in Public Life review of intimidation in public life and the Constitution Society report on data and democracy.

A lack of political accountability

Whether a Code of Conduct will contribute to resolving the problem of diminishing trust in the democratic process is hard to tell because the idea has not been fleshed out but it could address the fact there is no political consequence for knowingly deceiving, lying and misinforming the public during election campaigns (recall Remainer scaremongering). Participants in the commissioned research spoke of being “desensitised” and “immune” to political campaigning and of feeling “disillusioned” by UK politics.

The resentment created by the false promises of the EU-UK referendum campaign that were immediately dropped after the result (remember the £350 million for the NHS) is not specific to Brexit – it is a response not only to new campaigning practices that include micro-targeting but also to the lack of political accountability for knowingly peddling lies. Indeed, participants suggested that political candidates found to have breached laws applicable to campaigns should be disqualified.

It seems that the scandal around data misuse for political purposes and deceitful practices during campaigns has served as an illustration of the huge distance between those elected to represent and those being represented – with companies exploiting that gulf for profit. Tweaking the regulatory system will not fix this problem. Focusing on whether, how or why the electorate is influenced misses the opportunity to think about how to make political communication more transparent, more honest, and more respectful of the electorate. Until we tackle this fundamental issue – whether through codes, regulations, or civil or criminal sanctions – the same campaign practices are likely to continue dominating the relationship the electorate has with its representatives. If a snap election or second referendum was to be called, the same would probably happen again.

This article was originally published on the LSE Brexit blog.

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