Law is not magic.

Prohibitions are not spells.

When you make a law against a thing, that thing may not instantly vanish.

It is not as if one points a wand and says something in cod-Latin, and the unwanted thing is thereby extinguished.

The unwanted thing may instead continue, it is just that further instances of that unwanted thing may be attended with different legal and practical consequences.

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Of course, there should be certain prohibitions.

But it is naïve - indeed magical - thinking to believe that just because, say, murder is prohibited there will be no more murders.

What the prohibition means is that any further murder can be followed by onerous consequences that would not be present if there was not a prohibition.

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Sometimes perhaps the prohibition may deter people doing the unwanted thing.

At other times, people will still do the unwanted thing, but in a way which means they will not be detected.

Or people will still do the unwanted thing if people believe the prohibition will not be seriously enforced - or if they believe the prohibition cannot be enforced.

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A prohibition in and by itself is not a policy. It may be part of a (wider) policy, alongside the allocation of resources, administrative priority, guidance and “soft” law, publicity, and political leadership.

But to make a law against something is often just as effective as casting a spell against something.

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The prompt for this post is the government of the United Kingdom threatening to do something-or-other if the internet companies do not do something-or-other.

Apparently, according to politicians, it is possible to ban social media use for under sixteen year olds.

The politicians will enact a prohibition [and cod-Latin and a merry wave of the legislative wand], the unwanted behaviour will disappear.

But it would seem things are a little more complicated than that.

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One curse of the modern age (and no doubt of earlier ages, but in a different way) is the belief that there are (instant) solutions to social and political problems.

And because of notions of parliamentary sovereignty, politicians in the United Kingdom believe that just because it is relatively easy for legislation to be passed, then more legislation is the solution to any social or political problem.

Members of Parliament cannot do much, but they can pass laws, and so they come to believe that passing laws is the only thing to do.

But public policy is hard.

Public policy is about effecting wanted outcomes which would not occur, but for the public policy. If things would happen anyway, then there is not much of a policy.

Laws are an important, if not crucial part, of much of public policy. Not just prohibitions, but the creation of discretions and obligations, and of rights. Laws can create legal personality or deem certain states of affairs.

But rarely, if at all, is any law the entirety of a public policy.

And so if politicians genuinely want to get rid - or reduce - an unwanted to thing, they have to do more than impose a prohibition.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.

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The lucky winner was the United Kingdom, the unlucky loser was Rwanda.

The dispute was about that relocation scheme for asylum seekers which the then-government of the United Kingdom sought to put in place before it was defeated at the last general election.

Over at Prospect (click here) I have done a piece on that scheme and how this arbitration ward finally brings the scheme to an end.

That piece emphasises the costs: in essence, it cost about £250,000,000 to send just four asylum seekers to Rwanda, and they went voluntarily.

The overall amount would have been even more, had it not been for the lucky arbitration victory in respect of unpaid fees under the agreement.

The point that can be added in this post is that the very fact this even went to arbitration is a bad sign.

The negotiations which brought the scheme to an end were, in a word, messy.

Flurries of diplomatic notes and correspondence - a bit similar to the classic “battle of the forms”.

There was no clear and shared understanding set out in a discrete document.

And one can see why Rwanda felt it had an arguable case for payment.

Adopting a wince like the eminent jurist Alan Hansen, the lawyering was atrocious.

The financial position should not have been left so uncertain that the dispute had to go to arbitration. The paperwork should have been so precise that neither side had any doubt as to the legal position.

Reading the narrative in the judgments of the exchanges one could imagine the result going the other way. The United Kingdom was lucky.

And it was fitting that the scheme ended in a mess - for it was always a mess. It was always inherent and misconceived and unpleasant to contemplate.

The acting Attorney General of the United States said at Congressional meeting yesterday that:

“We are not moving forward with the fund.”

Nor indeed moving in any direction with the fund.

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But the fund was a consequence of a more fundamental abuse of power which is still in place, and until that is hacked out there will be other problems.

As set out in previous posts, a contrived and inflated legal case was brought by Trump (and his son and his company) against the United States government, which was then purportedly ‘settled’ between the parties, though without court approval or even recognition.

The settlement - that is a contract - was then used as a legal basis to create rights and obligations of an extraordinary nature.

To allude to the eminent jurist Meat Loaf, one can do many things with settlement agreements, but one cannot do that.

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One provision of the supposed ‘settlement’ was the creation of the ‘anti-weaponisation’ slush fund to benefit various supporters of Trump. This audacious move now appears to have been aborted.

But other extraordinary provisions with a basis on what only a private contract are still in place.

This is an addendum to the supposed agreement:

This is a wide immunity for the plaintiffs - and others! - from more-or-less any action the United States treasury or revenue service could take against them. If the provision had effect, it would fetter the tax authorities, preventing them from doing a whole range of actions.

Such an immunity should, if it exists at all, have a solid legal basis - and should be approved or overseen by Congress.

But to base such an immunity on the shaky-flimsy basis of a private contract without any court recognition is, well, inappropriate.

One suspect that one purpose of the litigation was to get in place a ‘settlement’ agreement, where the opportunity would be taken to place wide-ranging obligations and restrictions on the tax authorities.

As reported in yesterday’s post the court has re-opened that litigation. If the litigation is now stuck out then there will not even be nominally a dispute, and without a supposed dispute there cannot be a settlement.

That would mean the above immunities would go too - to the extent they even exist at law.

So a lot still rides on what the court does with this re-opened case.

The slush fund seems to have gone, but will the rest of the ‘settlement’ go too?

You may recall that this blog has previously covered this extraordinary case.

The story so far in essence:

• Trump (and his son and company) brought a largely contrived case against his own government for inflated damages of $10 billion;

• the court rightly doubted that this was an actual dispute between the parties, and so required further submissions on jurisdiction;

• just before the deadline for those submissions, Trump and his co-plaintiffs pulled their claim, leading the court to formally end the case;

• there was then a supposed “settlement” between the parties but without any court recognition which purported to set up a $1.776 billion slush fund and also to grant legal immunity for Trump and others;

• but this ‘settlement’ has been challenged by former Capitol police and also by a group of former federal judges.

Well, the action brought by the group of former federal judges has actually gained some traction.

The judge has re-opened the case.

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Here is the online docket, and sometimes dockets are a form of poetry.

You can see on 18 May 2026 the case was closed, and then on 27-29 there was an application and then an Order to re-open the case.

You may recall from an earlier post that the former judges are attacking the ‘settlement’ from the perspective that there was an abuse of process in pulling the case and then purporting to settle it.

The judge now has re-opened the case, and she is now asking for even more submissions from the parties.

This places the parties in a far worse position than they were on the eve of the case being pulled. And here there seems to be no way out for the parties by trying to pull and ‘settle’ the case again. They have to come up with the submissions, else presumably the the case will be struck out.

You will see that those challenging the ‘settlement’ can, in turn, make submissions in reply.

This is a huge set-back for the parties setting up this slush-fund on the back of a ‘settlement’. If the case is struck out, there is nothing to settle, and so there cannot be any kind of ‘settlement’.

The rug is being pulled.

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There is so, so much wrong with this case, from every angle. It is like an implausible exam question for law students. This is not what litigation is for and this is not what settlements are for.

But at least now there is a chance for the court to self-correct the excesses of the parties, for if the case is struck out there cannot be a ‘settlement’ - either recognised by the court or otherwise.

Let’s keep watching.

Below I set out the story with more context and more detail.

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By way of background - Ella Fitzgerald

Growing up in the 1970s and 1980s I spent a lot of time with my grandparents. This meant that while everyone else was listening to disco or punk or new romantics, I was listening to Deanna Durbin and Ella Fitzgerald.

When I was older I sought to listen to every available recording of Fitzgerald, from her time with Chick Webb onwards (and I also watched also every film of Durbin). For me Fitzgerald’s songbooks, produced by Norman Granz, were perhaps the greatest artistic achievement of the twentieth century. If I ever were to be on desert island discs, every track would probably be a Fitzgerald one (apart from this one by Teddy Grace).

On the other hand, I did not really give Marilyn Monroe much thought - or at least not any more thought than I gave to Judy Garland or Doris Day or Elvis Presley: an icon, yes, and part of the cultural furniture. But my interest was elsewhere.

And then I read the following story.

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Ella Fitzgerald and Marilyn Monroe

The story was told by Fitzgerald herself in 1972, ten years after Monroe died.

“I owe Marilyn Monroe a real debt. It was because of her that I played the Mocambo, a very popular nightclub in the ’50s. She personally called the owner of the Mocambo, and told him she wanted me booked immediately, and if he would do it, she would take a front table every night. She told him – and it was true, due to Marilyn’s superstar status – that the press would go wild. The owner said yes, and Marilyn was there, front table, every night. The press went overboard. After that, I never had to play a small jazz club again. She was an unusual woman – a little ahead of her times. And she didn’t know it.”

Fitzgerald can be regarded as a reliable source, and she certainly was not given to talking about herself or exaggeration. As far as one can tell, it was also not a story ever told by Monroe to promote herself.

This story did not accord with a common view of Monroe as vacuous and self-obsessed. This was someone freely using privilege and leverage to help someone else.

Reading further, one learned that Monroe had listened to Fitzgerald’s records as she learned to sing. And on a later occasion it seemed, according to a Fitzgerald biographer, that Monroe had insisted that she and Fitzgerald must enter the same door at a segregationist club.

In an interview, when asked about her favourite singer, Monroe said:

"Well, my very favorite person, and I love her as a person as well as a singer, I think she's the greatest, and that's Ella Fitzgerald."

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The films of Marilyn Monroe

Coming from the perspective of a Fitzgerald devotee, this was fascinating - and subversive of the shallow image of Monroe.

Being a completist and a hoarder, I decided to acquire and watch all of Monroe’s films in chronological order.

And then I realised something else: that she was a far more interesting actor than often suggested by her cultural profile.

In one of earlier films, 1952’s Don’t Bother to Knock (and my favourite of her films) she played a psychopathic babysitter.

Not long after, in Niagara (1953) - a film which boosted her cinematic popularity and arguable made her a movie star - she played a murderer.

Taking these together with her small but significant roles in The Asphalt Jungle and All About Eve (both 1950) - two of the greatest films of all time - one can form an impression of Monroe different to a mere fluffy actor.

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Of course, all these are before her big four films - Gentlemen Prefer Blondes, How to Marry a Millionaire (both 1953), The Seven Year Itch (1955) and Some Like It Hot (1959) - where her impeccable comic acting and timing are obvious. But she had a greater range than comedy. I formed the view that, had she lived she may well have become, like her All About Eve co-star Bette Davis or Gloria Swanson, a great cinematic anti-hero or villain.

Again, the popular image of Monroe was subverted.

There was more to it.

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Marilyn Monroe, the Hollywood system and the law of contract

I them started reading about her - which was a frustrating experience, as a great deal written about her is conspiracy theory or drenched in hindsght or derivative and unoriginal. More and more “interpretations” (and “re-interpretations”!) based on the same few sometimes unreliable facts.

But as a legal commentator with a background in media and commercial law, what struck me was when Monroe took on and defeated Twentieth Century Fox - one of the great studios of the time - in a contractual dispute.

I am not a cultural historian, and still less a cultural theorist, but this was something I did know something about.

And what was apparent in what happened was that Monroe had considerable autonomy and agency - and was certainly not the “victim” portrayed in many narratives of her life. In fact, she did something which was very difficult to pull off - and did so without being dominated by lawyers or advisors. Indeed, she discarded and disregarded advice when it did not accord with her aims. She knew her own mind and what she wanted to achieve, and she went about doing it.

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I have summarised what happened over at Prospect - click here. Here I set out what happened in more detail.

Monroe had a contract with Twentieth Century Fox. Ironically, given the title of one of her best films, it was a seven year service contract.

(Seven years was the industry standard - for legal background see the hugely significant 1943 legal case brought by Olivia de Havilland.)

Monroe entered the contract in 1950, after some previous short-term contracts with both Fox and Columbia, another major studio.

Sometimes when an unknown enters a long-term contract with a media company (like a studio or a record label), there is a sense of a trade-off. The media company invests in the unknown and when, sometimes, the unknown makes it big then what seems an imbalanced contract is really just compensation for the media company for taking the risk.

Such a view does not really apply here.

Monroe got her big chances in the 1950 films of The Asphalt Jungle and All About Eve with no studio support. Her champion was the Hollywood agent Johnny Hyde (who was to die in 1950), who supported her even when she was initially rejected by Fox and Columbia. The seven-year contract came as a result.

Her growing popularity, which pressed Fox into finding more prominent roles for her, was again from her own efforts. She also deftly dealt with adverse news developments by herself, and not with studio publicists.

And she relentlessly invested in herself. She spent so much on acting lessons - she did not graduate from an acting school, either the Copacabana School of Dramatic Arts or otherwise - that she had to borrow money from her rent. She taught herself to dance. She listened to Fitzgerald and others to help her learn to sing.

This was not someone being made by a studio, but someone making themselves.

And when she got the seven-year contract, she was worked hard on making several films a years - few of which would be known about now, but for Monroe’s involvement.

But by late 1952 it became obvious to Fox that they had not just an emerging star but a superstar, and a very bankable one too. And so they finally placed her in star vehicles, which were in turn heavily successful.

But Monroe was stuck on her seven year contract. Her weekly salary was capped at $1,500.

This meant, for example, in Gentlemen Prefer Blondes, her co-star Jane Russell had received $200,000, and Monroe just $18,000.

Monroe was also worried about typecasting and wanted to do more than comedy roles or to play a stereotype

And when, following the successes of Gentlemen Prefer Blondes and How to Marry a Millionaire, Monroe was offered something called The Girl in Pink Tights, she decided she had had enough.

She went on strike.

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By this time she was close to Joe Di Maggio - briefly her husband - who was a sporting legend and media celebrity in his own right. She learned from him more about how to use leverage in commercial negotiations.

(It was also about this time she helped Fitzgerald.)

She got a clever lawyer who averred that the seven year contract was no longer on force because of technicality. Twentieth Century Fox disputed this but - tellingly - they did not litigate the point.

She realised that if her position was that a contract was not valid, she should not affirm the contract by accepting cheques from the studio, even though this was against her own immediate self-interest.

And most of all she realised that Fox needed more Monroe films, and the cupboard was becoming bare.

Fox’s response was to treat her like a naughty and irritating dysfunctional factor of production in their film factory.

Her key demands - not only financial but about artistic control and freedom to work for other studios - were treated as bizarre and outlandish.

Twentieth Century Fox had their business model and they were not going to change it for anyone, not even Marilyn Monroe.

But the media context was changing: television was rising, and the cinema-going public were becoming more discriminating.

And so, after three years - on the very last day of 1955 (and perhaps significantly also the last day of their financial year) Twentieth Century Fox surrendered to then 29-year old Monroe

There would be a new seven-year contract, with a requirement to make only four films for Fox at a six-figure fee for each.

She would be able to choose her directors and for two of the films the cinematographer too.

She could work for other studios.

The Girl in Pink Tights was abandoned.

The headlines read “Battle with studio won by Marilyn.”

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This exercise in autonomy and agency does not accord with common views of Monroe as not being in control, but it does accord with the facts of 1953-56.

After her victory, Monroe went about setting up her own production company and entering into negotiations with the likes of Laurence Olivier and Terrence Rattigan.

And then the story changes direction.

After 1956, with the exception of Some Like It Hot (1959), few would regard her films as highly as her mid-1950s hits.

Like some other actors and stars, Monroe went into a lull. She was not to make the agreed quota of films for Fox.

What we now know is that she was to die in 1962 (most likely accidental death - sorry, conspiracy theorists), and so the years before look like years of decline rather than of rest. A decline and fall, a tragedy.

But there is no inherent reason that she could not have resumed and returned to active film-making in due course.

She did not, for example, decide to leave Hollywood altogether - like Durbin, or her Niagara co-star Jean Peters, or Grace Kelly, or Greta Garbo.

And of course - she could have carried on in the movie business on for a long time. For example, Mel Brooks - also born in 1926 - is still with us. She was born within a few weeks of the Queen - and David Attenborough, also still with us.

But narratives and myths and lore die hard, and so the popular view of Monroe as always a victim prevails.

But she was not always a victim, and by taking on and defeating Twentieth Century Fox in 1953-56, she showed she was very much in control.

That “settlement” purported to use a private agreement (not placed before a court) to establish a high-value fund to benefit political allies of the president - including the insurrectionists who attacked the Capitol.

It looked as if the legal side of the case was over, and it was now a matter for politics.

But the legal side is not over.

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There are (at least) two legal challenges to what has happened, from different perspectives. Both are legally interesting, as they attack the problem from different legal angles.

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One challenge is from two police officers who were at the Capitol during the attempted insurrection.

You can read their challenge here.

The police Plaintiffs are applying for orders and other court relief to quash the establishment of the fund - primarily on the basis that the federal government does not have the legal authority to do what it is purporting to do.

This appears to be essentially a public law action against the federal government. It is exactly the right sort of case to bring against public bodies exceeding their powers.

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The other case is far more legally ambitious and imaginative, and it has been brought by a posse of retired federal judges, who are “Movants” (lovely legal word) of a motion for the court itself to re-open the case.

This is also exactly the right challenge to bring - but in respect of what appears to have been the abuse of process which led to the supposed “settlement”.

If the Movants succeed then the court will re-open the case and continue with its inquiry into whether there was a real dispute.

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Some abuses of the law are straightforward, and when they occur they usually lend themselves to an obvious remedy.

But the more extraordinary the abuse, the more any remedy has to be especially fashioned.

Here the police Plaintiffs and the federal judge Movants have worked out two different ways to approach the instant situation - one by attacking the outputs (the setting up of the fund), the other attacking the inputs (the way the supposed litigation ended).

I am not an American lawyer, and so I do not know if either case has merit and/or will have traction. But both are interesting ways to get the courts to weigh back in an utter outrage that had looked as if it had escaped the courts.

Constitutional and other forms of public law are, of course also fascinating: for they set out what can and cannot be done by those charged with public power.

And when contract law and constitutional law mix, then the results are even more fascinating.

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The legal suit brought by President Trump (and his son and his corporation) against his own government is extraordinary for many reasons.

In particular two things stand out. First, there does not seem to be a dispute capable of being adjudicated by a court. Second, there does not seem to have been a settlement in any legally recognisable form.

To adapt a famous techie saying: bizarre in, bizarre out.

In reality the whole exercise is brazen corruption. Everyone knows this, though many do not seem to care. It is the sort of thing that should (but will not) lead to Trump’s immediate impeachment and removal from office.

But, this being a law and policy blog, let us go though the motions of looking at this racket from a legal perspective. If anything, it will show what an odd thing is going on.

As this blog has already set out (as well as at this Prospect piece), the law suit was a rum affair.

That is not to say there was not an underlying legal wrong: the leaking of the president’s tax returns (even if in the public interest) was an unlawful act and indeed the leaker has been prosecuted under the criminal law.

And generally (if not universally) speaking where there is a criminal offence there is usually a civil wrong - what lawyers call a tort.

The records of Trump were leaked by a government contractor and so, in principle, there is both blame and a claim.

But on this basis, Trump and his co-plaintiffs constructed a demand for an extortionate amount - far above what would be the level of damages for such a wrong - and brought the claim at a time when Trump was in effect the head of the defendants. Trump thereby would have effective control of both sides of the case.

The plaintiffs, however, encountered a problem. The court was not convinced it could hear a claim where one person controlled both sides. And if there is not an actual dispute between parties in disagreement, then the court would not have jurisdiction to hear the claim.

At this point the judge could have simply stuck out the suit for want of jurisdiction (though that probably would have been appealed). Instead, the judge invited the parties to make submissions on the jurisdiction point - and she also appointed independent lawyers as “friends of the court” to make submissions which the parties may selfishly not wish to make.

The deadline for those submissions was last week. But the plaintiffs did not make submissions. They pulled the case instead. The claim was dropped.

We will never now get to know how the court would determine the issue.

And if you looked at the court record - the online docket is publicly available here - that is the end of the story.

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But the story does not end there.

There is a supposed “settlement” - click here.

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This is not a settlement agreement which the parties put before the court to be endorsed. It is thereby not an agreement that has been recognised by the court, still less are its terms enforceable by the court before which the relevant litigation was brought.

It is instead a private agreement between parties to, among other things, bring the litigation to an end.

Such private side agreements are possible, though the parties lose any benefit of the relevant court recognising and enforcing the terms of the agreement.

The remarkable thing about the supposed settlement agreement is not that it ends the law suit - it is what the agreement purports to do as well.

In essence: a private settlement agreement is being used as a basis for legislating for a lucrative fund for the benefit of third parties and immunity from criminal prosecution for the plaintiffs.

Contracts - including settlement agreements - can be used for many complex and imaginative things, but this goes beyond the extremes for what any contract can properly be used for.

This is instead the sort of stuff that legislation is for, passed by Congress - not a settlement agreement which has not even been placed before a court for endorsement.

The settlement agreement even purports to provide for the tax status of this fund, a fund which is intended to benefit those allies of the president who have been accused of and convicted of crimes against public officials.

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We are in strange times and so nobody can say with any certainty that this slush fund will be held to be unlawful if not unconstitutional.

The scheme should, of course, be quashed on the spot.

The cynical audacity of the proposal, and the means by which it has been contrived, warrant gasps - though not of admiration.

Over at Prospect - click here - this week’s Weekly Constitutional post is about this example of sheer charlatanism.

And that post concludes by saying that if this sort of thing can be imagined by Trump and his cronies, whatever will he and his cronies try to get away with next.

This was a week when we got to consider the office of Prime Minister, again.

The current occupant has somehow, through a sequence of decisions and non-decisions, made themselves a lame duck - despite a thumping majority two years ago and three years of a parliamentary terms to go. It is quite an impressive under-achievement, given the powers and privileges a Prime Minister has at their disposal.

But for a Prime Minister to be on their way out is, as this blog has stated before, not unusual. Since 1974 every single Prime Minister has come to office or left office between general elections, and recently both. The classic model of a Prime Minister coming and leaving power at a general elections has not happened in over fifty years.

What, however, is becoming distinctive is the speed with which Prime Ministers come and go. Since 2016 the churn has been quite remarkable. The long terms of Thatcher (eleven years) and Blair (ten years) now seem form another age.

Why?

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Alan Beattie of the Financial Times observes:

“If you think the UK changes PMs too often, which of the last 5 departures were mistakes? Cameron shd have stayed after losing the referendum? May after deadlock with her deal? Johnson after Partygate? Truss after meltdown? And Sunak lost an election.”

He makes a good point: circumstances and events explain each of the recent changes which, taken together, appears to be rapid churn, if not turmoil.

And Beattie links to this fine article by Robert Shrimsley which avers:

“Britain is not ungovernable. It has just been very badly governed. In particular, it has endured a decade of woefully inept leadership.”

The problem thereby is not so much with the office, but with its occupants.

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Over at his Substack Sam Freedman offers a view which mixes structural and personal points:

“Why do prime ministers keep failing?

“[One suggested reason] is that we’ve just had a really bad run of leaders who either lacked basic political skills, were temperamentally unsuited for the job, or were Liz Truss.

“[But] there are some deeper structural problems that are undoubtedly making it harder to be prime minister.

“[…] there are some uniquely British challenges with being prime minister that make it harder than necessary. The role has evolved in a typically haphazard way over the decades, without much thought as to its purpose.”

Freedman’s analysis is typically well-informed and insightful.

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My view, which I had already put together before I saw any of the above commentators, is that there is structural gap in our constitutional arrangements where the office of the Prime Minister should be.

Indeed, until the lifetimes of people still alive, the constitutional fiction was that the office of Prime Minister had no legal existence at all.

Other than with a few express statutory powers, the powers (and privileges) of the Prime Minister are still almost entirely to be inferred from the royal prerogative and from being the head of a Commons majority. Prime Ministers can remove ministers (and civil servants) from their jobs and impose whips on backbenchers, and make certain other decisions.

But unless you have an individual of exceptional charisma and/or capacity, coupled with reliable allies in other cabinet jobs and substantial backbench support, a Prime Minister is vulnerable to political downturns.

In this way, despite what pundits sometimes say otherwise, we very much have a parliamentary and not a presidential system.

And so when one faces a sequence of difficult political challenges, as the United Kingdom has had since 2016, the tendency will be for Prime Ministers to fold.

Part of it is as Beattie and Shrimsley point out: the occupants have not been up to the challenges they have faced. But the occupants also have not had firm places to stand.

The job of Prime Minister is, for the reasons detailed by Freedman, becoming more and more difficult to do. There is no particular reason to believe any successor to the current occupant will do any better job. (It is telling that many think the only viable candidate is not one of the already elected members of parliament.)

And so, as I set out, over at Prospect, there is a prime minister-shaped hole in our constitutional arrangements.

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Like Disraeli and Gladstone did in Victorian days, or Attlee did between 1945 and 1951.

But since 1974 that has not happened.

Every Prime Minister of the United Kingdom since 1974 has either taken office between general elections or lost office between general elections - and recently even both.

Some would say that 1974 is not a sound starting point, as Heath sought to stay on and do a deal after the February election, and we would have to go back to 1970.

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Those who came in between general elections since 1974: Callaghan, Major, Brown, May, Johnson, Truss, Sunak.

Those who left office between general elections since 1974: Wilson, Thatcher, Blair, Cameron, May, Johnson, Truss.

Those who did both: May, Johnson, Truss - though at least May and Johnson fought general elections during their term as Prime Minister.

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Compare and contrast that with parties losing office between elections: that rarely happens, even if we go back a long time.

In 1905 the Conservative and Liberal Unionist coalition lost office to the Liberals, months before a general election. Some of the national and wartime coalitions mid-century shifted between general elections. But straight party swaps are few.

More recently even the loss of an overall majority - in the late 1970s or the early 1990s - merely meant the minority administration staggered on.

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And so we have two cycles: the party cycle and the Prime Minister cycle.

The party cycle generally accords with general elections. Invariably the party in government who lose at a general election is the party which won the one before.

The Prime Minister cycle, however, only incidentally accords with general elections. Since 1974 general elections account for only a portion of the arrivals and departures from office.

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As we seem to be about to change (yet) another Prime Minister between general elections, it is useful to remind ourselves that we (still) have very much a parliamentary rather than presidential system of government.

Even those most presidential of Prime Ministers - Thatcher and Blair - left office mid-term.

Whilst they have office some Prime Ministers can be hubristic - think Johnson or Truss - but they quickly meet with Nemesis.

The body politic regurgitated and spat them out.

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And with Starmer, the surprise would be if he actually did lose office with a general election. If so, he would be the first Labour Prime Minister since Wilson between 1964 and 1970 to win and lose office at general elections.

But it always seems to take us by surprise when a Prime Minister loses office between general elections, as if some norm has been subverted.

The true subversion would be if a Prime Minister who won a general election was able to continue to defeat at a general election.

The Chagos Islands are an index of actual British international influence - because things keep on being decided about them without it mattering what the United Kingdom government itself wants, even though we are the nominal controlling power.

Not long ago there was a deal which suited the United States, who has a military presence on the largest island, where the islands went (back) to Mauritius. The United Kingdom had to go along with it.

And then more recently, as I set out over at Prospect, the United States changed its mind - well, President Trump did. And again, the United Kingdom had to go along with it.

The curious thing is that the islands have an immense symbolic hold on the conservative mind as a surviving remnant of British imperial power, when the reality is the repeated demonstration of just how weak British power and influence now is over its own territory.

And as the relative international power of the United Kingdom continues to decline, we will no doubt have more examples of the contest between symbolism and reality.

And in the days after the elections, those who could not predict the outcome will confidently assert that the result proved them right all along.

*

This is not really a politics blog, and it has no party-partisan preference. Indeed, the general view of the blog is that governments tend to be illiberal, regardless of which politicians take power, and that the politicians who affect to be liberal in opposition tend not to carry that liberalism over into office.

As the eminent jurists the Bonzo Dog Band aver, it can seem that no matter who you vote for the government always gets in.

*

But.

We have in popular opposition not only those parading their liberalism, but the illiberalism, and so voters have a choice between the possibility of liberalism (and likely disappointment) and the certainty of illiberalism (and likely despotism).

And so it is at times like that we should take more interest in the actual workings of government and now public administration works. We should watch how public administration is conducted with anxious scrutiny.

This is why, perhaps counter-intuitively, the whole Starmer-Mandelson-Robbins affair is important.

In respect of political drama, the matter may not be of lasting import: the media caravan has moved on, and the attention-spans of the easily bored have been exhausted. The Prime Minister is still in office and if he is to be deposed, then it will because of a further political drama and not the one which has just passed.

The importance of what happened is otherwise than of immediate political effect. It was instead in the rare insight we had into how ministers and officials actually do make decisions (or don’t make decisions). The sort of thing which is usually hidden from public view.

An excellent balanced and informed account of the matter has now been posted at the Substack of the estimable former civil servant Martin Stanley. That post is required reading for anybody with an interest in our government in action (or inaction).

What I can add from the perspective of a former central government lawyer is that the informal-formal inexact process and lack of process is not unusual in Whitehall. The only difference here is that a stone has been lifted and we get to see what was teeming underneath.

(Public administration is more about teems than teams.)

*

Sometimes one can fall into the error of thinking government and administration is about the neat, almost-Euclidean geometry of decision trees and straight lines on a grand plane of an organogram. No, it is often a mess, both at the time and when there has to be an account of it afterwards.

This is why one the purpose of processes and policies and public law is not so much to make things go well, but to help stop things being worse. For example, the law of public procurement is not really there to help public authorities to make good purchasing decisions, but to stop public authorities making worse purchasing decisions than they otherwise would do.

And this is the significance of the Starmer-Mandelson-Robbins affair: we got to see under the rock. From that we can take the wider understanding that this is how important decisions and indecisions are made more generally. And that, in turn, helps explain why we have such an accountability gap in the government of the United Kingdom.

There is a general disconnect between how ministers and officials take decisions and how those decisions are accounted for to parliament, and to the media and public.

Certain executive-minded pundits and activists want to reduce even further the role of processes and policies and public law in government - to get rid of impediments and barriers.

They think that will make public administration better and more effective, but it is more likely to make public administration even worse than it already is.

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Posts are as cheerful as the subject matter allows, but they do take time and opportunity cost to produce.

Such principle provide the “rules of the game” and the courts deal with disputes about things the parties do not share in common, like differing views on the facts and on the applicable law in a particular situation.

This is why - at least until fairly recently - constitutional law text books both here and in the United States often did not have many recent cases as precedents or even illustrations of certain fundamental principles. An 1800s case there, a 1700s case here, some vague mention of Magna Carta, and that would be it - for paragraph after paragraph, and chapter after chapter.

But the Brexit-Trump years have changed this. Such is the jolt to the United Kingdom and United States polities that certain hitherto constitutional and legal norms in the background have to the fore. Points which one never expected to be the subject of a practical case now fall for judicial determination.

And in the United States we have a case which goes to the very heart of any litigation system, with the court having to ask “what actually is a dispute?”.

That case, of course, is the one where Donald Trump is suing the United States Treasury and the Internal Revenue Service.

I have written about this case this week over at Prospect - click here.

Although nominally Trump is doing this (with his son and company) in a personal capacity, and not formally as president, the reality is that the president is suing his own administration - for $10 billion.

And so in reality he wants to negotiate, with himself, and to agree, with himself, for a resolution where the suit is compromised for a high amount of money, in the region one suspects of $10 billion.

It is an extraordinary case, even at a time of many extraordinary cases.

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In one way, Trump has a point: he was legally wronged by the Treasury and IRS. His tax returns were unlawfully leaked. And this is the case even if he, like other presidents, should have voluntarily disclosed his tax returns to the public. There has been a prosecution and a conviction of the leaker.

A follow-on civil case is not thereby surprising, for generally (but not universally) when there is a crime there is also a tort.

(That said, there was once an over-confident law lecturer who insisted that there was a tort for every crime and challenged the class to gainsay him, to which one annoying student offered ‘blasphemy’. Sorry.)

*

So if Trump has been civilly wronged, he should in principle be able to bring a case for damages.

But what makes this case problematic is that he currently controls both sides of the litigation.

This is because of his position as head of government, and also because of an executive order which prevents any federal body or employee from putting forward a view of law distinct from the president.

All this means that not only is he effectively litigating with himself, he would also be effectively negotiating with himself for settling that litigation.

(A great deal of civil litigation ends in settlement.)

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There is a legal principle so fundamental that it is sometimes described as one of the very rules of natural justice.

This principle is that a person should not be a judge in their own cause.

Here the application of the principle would be that a person should not settle a legal dispute with themselves. Indeed, one can fairly ask if there is a dispute at all in such circumstances.

And that is what the federal judge has asked in this case.

In this fascinating four-page order judge Kathleen Williams goes back to the very first principles of law to ask whether there is actually a dispute here to be determined.

She did not dismiss the case, but she is now seeking legal argument on the point.

*

Given there has been a civil wrong to Trump, there is the question of how his private law rights could be enforced against the government while he is a sitting president.

Perhaps the case should be stayed for the duration of his presidency, without prejudice to any limitation period. Or perhaps independent attorneys should be selected to litigate the case on the parties’ behalf, with Trump blind to their litigation decisions, or there could be some binding independent third-party adjudication.

There are various ways his legal position could be reserved or protected so that he is not simply negotiating a settlement with himself.

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When litigation lawyers are trained they are warned about sham litigation cases where for money laundering or other purposes an artificial dispute is contrived and then “settled” for a huge a mount of cash changing hands.

What is happening in the United States is not a sham case: Trump has a claim.

But there are ways and means of bringing a claim, some less artificial than others, and the federal court in the United States now has to work out a way for Trump’s claim to be addressed while avoiding the spectacle of the president negotiating with his own federal employees for a cash payment of up to $10 billion.

As set out in the last post here, we have a Prime Minister making a succession of bad decisions, and blaming and sacking others for those decisions.

In particular, we have a Prime Minister who speaks often about process sacking a senior foreign office official without any process whatsoever.

And as I have described at Prospect, that sacking by a Prime Minister who demands of the civil service that things are ‘delivered’ was of an official who worked out a way of ‘delivering’ the appointment of an Ambassador which the Prime Minister, against cabinet secretary advice, had publicly announced prematurely.

This is all a fascinating political spectacle.

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But.

So what?

What is the legal or constitutional significance of what has happened - and what is happening?

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From a lega(isitc) perspective not much: the overall result of the vetting (as opposed to the personal information vetted) was probably legally open to Olly Robbins to share with the Prime Minister. But there was also no legal obligation on him to share that information either. We are dealing here with discretion and policy, not rules and obligations.

What Robbins did and did not do with the vetting assessment was probably neither lawful nor unlawful, for it was not a matter of law.

(There is, of course, an important legal point about the dismissal of Robbins - and it is difficult to imagine a stronger case for unfair dismissal in this sort of context.)

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Constitutionally, there is an interesting point here about whether it was appropriate for a senior official charged with making this decision to not share the Cabinet Office vetting assessment with the Prime Minister.

Usually, the information about ambassadorial vetting stays with the head of the foreign office civil service, and one can see the point of that with career diplomats.

But when the appointment is external and essentially political and (publicly) directed by the Prime Minister then there is a good argument that the official should place the Prime Minister in the position they should be so as to be properly accountable to Parliament (and the public) for that decision. And there is a strong argument that, by omission, the Prime Minister should not be misled as the vetting exercise.

Yet, when one has an incurious Prime Minister, not asking the appropriate questions and who demands ‘delivery’ - of solutions, not problems - one can begin to see why what happened, happened.

(A follower of this blog messaged to say that Starmer always wanting ‘delivery’ to be both without impediments but also error-free, is about Starmer’s own ‘cake-ism’.)

Add the (fair) security concerns that sensitive information not have wider circulation that necessary, you can see why Robbins did what he did (and did not do), especially as Downing Street is leaky.

Indeed, the only actual security breach in all this is that the media and the public even know about the Ambassador’s vetting failure by means of a leak. For that information to be in the public domain in this manner indicates a serious security breach somewhere.

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As the Prime Minister has now said at the despatch box both that the original decision was wrong and that his decision to sack Robbins was right, one could perhaps say that the constitutional aspect of this matter is being addressed.

He has accounted to Parliament, and he is still in office - and he has not and is not facing any vote of no confidence.

As I stated at the time at Prospect, the real constitutional importance in all this lays in the House of Commons vote earlier this year that the Prime Minister and Cabinet could not be trusted to make decisions about the the applicability of the ‘national security’ exemption to the release of the Mandelson appointment documents. Those decisions were instead to be made by a parliamentary committee.

For Parliament to decide not to trust the Prime Minister and Cabinet in this way on national security was, in any meaningful way, a vote of no confidence. For this blog, that was the point the Prime Minister ought to have resigned.

Now the Prime Minister is dealing with the direct and indirect consequences of that vote: the placing into the public domain of documents beyond his control - and the prior (perhaps tactical?) leaking of sensitive information in respect of the documents that may be disclosed.

This is an actual example of a Prime Minister who is in office, but not in power - at least in respect of the Mandelson papers.

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There may be further disclosures in this news story which does not seem to be going away.

At some point a constitutional point may be taken, and a vote of no confidence is put forward. Alternatively, the Prime Minister may lose the confidence of his own cabinet and offer his own resignation (or plan for departure). Who knows.

But what is certain is that this matter shows how a Prime Minister can be held to account for a bad decision which they made - and for a bad decision for which they are now running out of other people to blame and sack.

**

The bad decision was, of course, the appointment by the Prime Minister to appoint Lord Mandelson as Ambassador to the United States. At the time few expressly objected and some saw merit in such a sui generis appointment to deal with a sui generis President - a Trump Whisperer. (Though we had a perfectly competent Ambassador in place who was good at that too.)

The worse decision was how the Prime Minister opted to react when information was published about Mandelson’s relationship with Epstein. He blamed Mandelson for lying, he blamed the civil servants for not telling him about a vetting exercise. He was “furious”. His chief of staff was sacked. He decided it was everybody’s fault, but his own.

And then there was the worst of the decisions, at least from the perspective of his overall credibility. He sacked Oliver Robbins, the head of the foreign office civil service. This has not only poisoned the civil service against a serving premier, but also Robbins’ evidence before a select committee persuasively shows that Robbins and the Foreign Office were simply seeking to find a way to implement a decision which the Prime Minister had prematurely announced (against civil service advice) and which Number 10 staff were pressing (bullying?) the Foreign Office to approve without delay.

The Prime Minister accepts there was a process in place which Robbins followed: that is why the process has been changed. But he sacked Robbins for following that process which he accepts was in place.

And now Robbins can explain, from the outside, what happened.

Had the Prime Minister just owned the original bad decision - which as this blog has previously stated was his own decision - instead of blaming and sacking others, then the second and third mistakes would not have been made.

One can only wonder what further mistakes are to come.

Once this blog has fully digested the Robbins evidence yesterday, there may be more to come on here, at least.

Once upon a time there was a ruler who made a bad decision.

All the courtiers and servants knew it was a bad decision, but they put into effect the bad decision, for the ruler had already made and proclaimed the decision.

And when it turned out to be a very bad decision indeed, those courtiers and servants were sacked by the now “furious” ruler.

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When the current Prime Minister of the United Kingdom makes a bad decision it always seems that others must take the blame.

Of course, such shruggery is not unusual in politics: one does not usually become a Prime Minister by being the sort that resigns from jobs. That is not how one climbs what Disraeli called the greasy pole to Prime Ministerial office.

But when Keir Starmer appointed Lord Mandelson as ambassador to the United States (thereby sacking a perfectly capable ambassador), it was very much his decision.

A decision which only the Prime Minister could make.

View differ on the reason for the appointment. Perhaps the sui generis problem of President Trump needed a sui generis appointment of a “Trump-Whisperer”. Perhaps, as many political journalists aver, it was simply because it was believed by senior Labour politicians that Mandelson somehow deserved a job in return for something or other.

The reason, however, really does not matter: it was plain that the Prime Minister had made a decision, and it was a decision announced as soon as possible.

And this is the important thing: it was the decision of the Prime Minister.

*

Yet it is others who are having to resign: the ambassador, the chief of staff, and now the head official at the foreign office.

We do not have full information as to the vetting process (and it is itself a remarkable security failure that we all know as much about this vetting process as we do, if you think about it).

It may be there was some form of communication between the foreign office and Downing Street, even if deft or unspoken, or it may be that the foreign office did not pass on the results of the vetting process so to give effect to the Prime Minister had already and publicly decided.

In either case, the responsibility for the decision is with the Prime Minister.

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But the Prime Minister does not want to take responsibility for his decision.

He will keep sacking other people instead - none of whom made the decision, and none of whom are accountable to parliament for the decision that only he made.

Whether the Prime Minister misled parliament or the world at large about what he knew is now bogged-down in a depressing game of semantics.

What will not happen, it seems, is that the Prime Minister will take actual responsibility for his bad decision to appoint Mandelson as ambassador: for that would mean it was wrong of him to sack his chief of staff and the senior official at the foreign office.

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All this shows how important it was for the House of Commons to take the decisions on disclosure of papers related to Mandelson’s appointment out of the hands of the Prime Minister.

That vote by the House of Commons was of immense political and constitutional significance. Members of Parliament decided that the Prime Minister could not be trusted to apply “national security” in disclosure matters.

The consequences of that momentous vote are now becoming more and more obvious.

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Either we have Prime Ministerial accountability or we do not.

This is not a situation where a minister is being asked to take responsibility for decisions by officials - the Crichel Down situation.

That wider doctrine of ministerial accountability was always unrealistic: a minister cannot possibly know or approve of every decision in their department.

This is about a Prime Minister taking responsibility for their own decision - a high-level decision which only a Prime Minister can take.

And whatever further details is still come out about the matter, it will always have been the Prime Minister’s decision to appoint Mandelson.

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Once upon a time there was ruler who was “furious” at being expected to be a ruler.

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The late Tony Benn set out five questions about power.

In his final speech to the House of Commons he said that on meeting any powerful person, one should always ask:

What power have you got?

Where did you get it from?

In whose interests do you exercise it?

To whom are you accountable?

And how can we get rid of you?

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Of these five questions it is the last which is the ultimate question for any democracy - or indeed for any political system.

How can we get rid of you?

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In a general election yesterday, the electorate of Hungary got rid of Viktor Orbán. It was an overwhelming defeat, and an overwhelming victory for his anti-corruption opponent Péter Magyar.

And it was a significant defeat for illiberalism, possibly the most significant defeat of illiberalism in recent years.

This is not to say that Magyar is necessarily a liberal hero. He was a colleague of Orbán in the ruling party until fairly recently, and it may well be that his views on a range of issues are nearer to Orbán than to his urban voters.

It may well be that Magyar is simply a non-corrupt version of Orbán.

But.

And it is a big but.

For Magyar to defeat Orbán meant he also had to defeat an extremely powerful and successful illiberal political machine and methodology.

A political machine and methodology that seemed, again until fairly recently, relentless and invincible.

The basis of this political machine and methodology was simple: motivate an electoral bloc with grievances, fear and cruelty.

If one motivated and then exploited this bloc of support then one could gain and retain power against the fragmented centre and the left, who will be demonised and marginalised.

One then rigs the media, legal and political systems to entrench this political machine. The constitution will be made to yield - either formally or by cowardice of those who could invoke nominal checks and balances.

Elections are also rigged or, if the results are unwelcome, discredited.

With diligence, this political machine and methodology can become a formidable and irresistible political force.

And it has, of course, much in common with Faragism in the United Kingdom and Trumpism in the United States, as well as with illiberal political movements in many other countries.

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And one feature of the Orbán illiberalism was that it was open and unapologetic.

As this blog has previously described, Orbán expressly stated that democracy could and should be at odds with liberalism - undermining the cherished assumption of progressives and liberals.

Orbán - and his political machine and methodology - was a one-man rebuttal, if not refutation, of the happy notion of liberal democracy.

He showed their could be a darker illiberal version of democracy too.

And because of his success, Orbán became a poster-boy for illiberals everywhere.

What he could implement in Hungary, could be put in place by others elsewhere.

Illiberal dominance of a democratic polity was possible.

Orbán showed the way.

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But illiberalism within a democracy can only go so far, before it ceases to be a democracy. And while there is still opposition parties and politicians, and relatively free elections, there is always scope for push-back.

For example, while Hungary remained in the European Union, Hungary had at least the form of a democracy.

Magyar was not arrested, his party not prohibited.

And so outside-of-the-machine something came along that would meet the task of taking on and defeating that machine.

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It seems that Magyar may be more liberal in policy than his predecessor, and it looks like that he will embrace rather than hinder the European Union.

That would be a welcome policy shift.

But the significance of his victory is not so much in policy terms than that it happened at all.

He showed that an entrenched and diligent illiberal political machine and methodology can be defeated - and in the glare of international interest and in the faces of those like Trump and Putin who supported Orbán.

The international significance of this defeat of illiberalism is immeasurable.

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“How can we get rid of you?”

Like this.

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These close readings take time and opportunity cost, and so please do become a paid subscriber so I can justify doing more of them.

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Yesterday Melania Trump made an unexpected public statement.

The statement in its circumstances was odd. There was no formal requirement for her to make the statement, and there also seemed no particular reason for her to make the statement. The statement was not, for example, a response to any known media or legal development.

For viewers - and for many in Washington, it seems - the statement was out of the blue.

It was, in a word, odd.

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This blog has no particular focus on Epstein and so on. There are many other online resources for anyone taking a close interest in the release (and non-release) of the Epstein files. This blog also is not concerned with the various documents and supposed documents and other material that may or may not connect Melania Trump with Jeffrey Epstein.

But this blog does like a good close reading.

And so what can we say (and not say) about this particular text in performance?

Let us explore.

*

We shall start with the text.

It was a prepared text.

It was also as text which, at least in part, was very carefully drafted to deal with certain potential issues of legal liability and to explain (and explain away) certain pieces of evidence. The text indicates that it was put together, at least in part, by someone skilled and experienced in drafting.

One should not under-estimate Melania Trump (or indeed anyone in public life) and, but for her performance of the text, one could readily assume that she may have drafted the text herself.

As the text engages with issues of potential legal liability not expressly stated in the text, one can perhaps discount that it was written by ChatGPT or some other generative AI. Some generative AI can be very plausible indeed - including for formal and legal texts - but usually not about things which are not also stated in the text.

The impression conveyed by the text is that it was authored by someone skilled in drafting sensitive statements.

*

So if it was a prepared text then when was it prepared and for what purpose.

The immediate assumption of many (including in the media) is that the statement was prepared for the purpose of this performance.

That may well be the case.

But it may also be the case that the statement (or an earlier version of it) was prepared earlier for another purpose and perhaps for publication or for reading to an inquiry, rather than to be read to camera.

It reads as a statement to be circulated. It was not a statement well suited to be read out to camera.

*

Melania Trump, as anyone who saw the footage saw, seemed unfamiliar with the text.

She stumbles over certain words, some of which were significant and, if anything, required emphasis.

This stumbling indicates (but does not prove) that she was not the author of the text.

(That English is not her first language is not a relevant point here: there are many for whom English is not a first language who would not stumble in these circumstances.)

Of course, the stumbling may just be nerves - and who would not be nervous in such circumstances - but it is more likely to indicate a lack of familiarity with she was reading.

*

The stumbling also indicates (but does not prove) that the performance was not prepared for or rehearsed.

If so, such a lack of preparation or rehearsal contrasts with the careful composition of the text.

If a carefully drafted text is intended for performance then one can presume that similar effort is put into the performance as the text. (Unless the performer is (over-)confident in not need preparation or rehearsal.)

This therefore indicates (but does not prove) that the text was not intended for this particular performance.

The impression is that the performance to camera was a late decision and a pre-existing text was used for the performance.

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But, if it is correct that the text was drafted by a legal or other adviser then we come to a tension, if not a contradiction.

For it is hard to see what competent and prudent legal or other adviser would have advised her to volunteer this statement, out of the blue.

A competent and prudent legal or other adviser would presumably say that unless there is a formal requirement or other pressing reason to make such a statement, then it would be wiser not to make a statement.

And so we have what looks like a statement put together (at least in part) by an adviser performed in circumstances which no sensible adviser would advise that it be performed.

Odd.

Perhaps the statement is to to (p)rebut an impending legal or media development and if so, all will become clear.

But on the basis of this text in its performance, it was a curious thing.

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Overall, the impression conveyed is that this is an exercise in crisis management (hence the well-prepared text) broken-off mid-flow in an unexpected way.

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Like this:

Well, it seems, from the perspectives of constitutional law and international law, that nothing happens.

Things could happen, of course.

There are two constitutional mechanism within the United States constitution for removing Donald Trump from office. Neither has been used or seem likely to be used.

There are sorts of sanctions that the international community could place on Trump. None have been used or seem likely to be used.

And so, as I set out in Prospect today (click kere):

we have a situation where perhaps the most serious threat imaginable is made and there is nothing which will be done or can be done.

One can legitimately ask what the purpose is of either constitutional law or international law if not to deal with situations like this.

Law is intended to deal with big things as well as little things.

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Some things are significant when they happen.

And some things are significant when they do not happen.

And what is perhaps far more significant than the unpleasant and extreme post of Trump is that nothing happened, at least in respect of constitutional law or international law.

**

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It is extraordinary that it even exists, for such statutory public inquiries are rare, especially in respect of concerns about military matters.

As this blog set out when the inquiry was set up (here and here), something serious was afoot and the government believed an inquiry was the best way to address what had come to light.

The inquiry is also extraordinary in how it is going about its work. It is far more transparent than one would have expected, with a packed website. The inquiry has even ruled against the government on many transparency matters. One gets the sense that the inquiry seriously wants whatever happened (and did not happen) out in the open.

And the inquiry is extraordinary in the documents and other evidence it has uncovered and promptly published, even before the inquiry finally reports. For example, in March 2024 we had the remarkable witness statement of then minister Johnny Mercer (see posts by me at Prospect and on here).

At Prospect earlier this week I looked at another remarkable document published by the inquiry - a preliminary report into the eventual military police investigation into the allegations of war crimes by UK special forces in Afghanistan.

But here it may be useful to take a step back, and to ask why the concerns of military officers were not referred to the military police at the time for an immediate investigation when memories would still be fresh and certain evidence still available.

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The key - crucial - feature of the allegations of war crimes by UK special forces in Afghanistan is that there were concerns expressed and recorded at the time by senior officers.

This is thereby not an example of allegations originating from pesky lefty ambulance-chasing claimant lawyers and their compensation-seeking clients.

Instead these are concerns by serious senior officers - at the time.

That the concerns were expressed and recorded by serious senior officers at the time explains (in my view) why the government rushed to set up this inquiry when various documents came to light in litigation. As this blog has previously averred, setting up such an independent inquiry with full statutory powers, chaired by a senior judge willing to use those powers, would not have been a light and easy decision by ministers.

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Now let us look at the key statutory provision - section 113 of the Armed Forces Act 2006.

The provision is headed “CO [commanding officer] to ensure service police aware of possibility serious offence committed” and it says (as far as is relevant):

(1) If an officer becomes aware of an allegation or circumstances within subsection (2), he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a Schedule 2 offence has or may have been committed by a relevant person.

(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

Note the effect of section 113(3) is that the obligation is not on any officer, but on an officer in command of the relevant person. This means an officer in, say, another unit would not have the direct obligation under section 113.

(That said, there seems nothing in section 113 to limit such reporting to a commanding officer.)

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Now let us look at the documentary evidence disclosed by the inquiry.

Here is a typed note made by an officer dated March 2011.

(We know the author is of officer rank because of the next document after this one below.)

The note says:

STATEMENT OF CONVERSATION RELATING TO [special forces unit]

During loose conversation with a member of [a special forces unit] a number of topics were discussed relating to the conduct of kinetic operations in Afghanistan by [a special forces unit].

During conversation with a [redacted] from [special forces unit] he stated that it was standard procedure to deploy regularly hit Low and Medium value targets in the Helmand area. During these operations it was said ‘all fighting age males are killed’ on target regardless of the threat they posed, this included those not holding weapons. It was also indicated that ‘fighting age males’ were being executed on target, inside compounds, using the variety of methods after they had been restrained. In one case it was mentioned, but the pillow was put over the head of an individual before being killed with a pistol. It was implied that photos would be taken of the deceased alongside weapons that the ‘fighting age male’ may not have had in their position [possession?] when they were killed.

The conversation implied that the intention of regular operations was pacify areas in parliament by destroying all the medium and low level Taliban Command chain and facilitators, using any means possible.

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Every document comes into existence for some reason(s) or purpose(s).

Why was this March 2011 note created?

It would appear that it was created at the request of a more senior officer to whom the author of the note had conveyed the content of that conversation.

That more senior officer, in turn, typed out a month later the following as a communication to the director of special forces (and thereby an officer commanding the relevant special forces unit for the purposes of section 113):

The communications says:

SECRET UK EYES ONLY - LIMDIS [limited distribution]

05 Apr[il] [20]11

DSF* [director of special forces]

ALLEGATIONS OF EJK [extrajudicial killing] BY UKSF [UK special forces]

1. My apologies for not raising this with you during my leaving call, but I was still formulating my thoughts and our truncated meeting didn’t seem the right moment.

2. I have for some time been aware of rumours within the [UK special forces] that [special forces units] have been conducting some of the executions of supposed Taliban affiliates on target in AFG [Afghanistan]. Until very recently, I have not reported this any further and cautioned my team against peddling malicious speculation. However, I have now been given more information of the nature which makes me seriously concerned over reputation of UKSF. One of my team, an officer, has been told by an individual from [a special forces unit] that there is in effect an unofficial policy among the [special forces unit] to kill wherever possible, fighting age males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained [by the special forces unit] and the subsequent fabrication of evidence to suggest a lawful killing in self defence.

3. What I’ve been told is not amount to anything as substantial as evidence. But to my sense it is more than just what had been, until recently, vacuous rumour. But if UKSF individuals are conducting EJK’s then the implications are clearly stark. Notwithstanding this, I feel most strongly that thorough appropriate investigation is warranted. To be frank, I do not know to do next and to that end I’d welcome your assessment on what to do next.

4. I am sorry to bring this to you at what is already a busy time. Rest assured I have only been aware of this issue for several days, not longer, and that I feel I needed to pass on my concerns before I leave post as commanding officer [of another special forces unit] and before I assume [a special forces headquarters position].

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There are many things that can be said about this document.

It is perhaps unfortunate that the concern is framed in terms of the reputation of the special forces rather than, well, war crimes were bing committed - but the further reference to “stark” implications is probably an implicit reference to the seriousness of what is being communicated.

And as the senior officer says, it does not amount to (direct) evidence - at least of any war crime.

But, as the senior officer sets out, it appears to provide the basis for a “thorough appropriate investigation”.

And the senior officer also requires the director of special forces to make an “assessment”.

And unlike the senior officer making this communication (who commands a different unit), the director of special forces is a commanding officer for the purposes of section 113.

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Separate to the above, but at the same time, there is another senior officer in special forces with concerns.

The Assistant Chief of Staff Operations within the directorate of special forces noticed something was not right.

In a later witness statement (now published by the inquiry) he says the following:

During Feb[ruary] [20]11 (01/02/2011 - 28/02/2011), the exact date I cannot recall, my concern over the disproportionate number of Enemy Killed in Action (EKIA) versus the number of weapons recovered on such operations was such that I had a conversation with [the director of special forces]. I can’t recall the exact detail of the conversation but I remember that he directed me to contact [redacted] to establish what was going on.

I subsequently telephoned [reacted] […], when I expressed my concerns to him about the reported figures: number of deaths against the number of weapons recovered.

I can’t recall what [his] reaction was but both the call and the immediately earlier conversation with [him] had been in relation to one incident which appeared in keeping with the concerning trend I have discussed; I can’t recall the specifics of this incident but it followed the same outcome as the others in respect of ratios.

In the following months I maintained case observance of the post incident reporting in Afghanistan and in particular the numbers of EKIA [enemies killed in action] compared to the number of weapons recovered. The numbers continued, in my mind, to be disproportionate which just increased my concern that perhaps things were out of control.

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“…perhaps things were out of control”.

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Unlike the note and communication above, this would constitute direct evidence - not of extrajudicial killings, but of discrepancies between “the numbers of EKIA [enemies killed in action] compared to the number of weapons recovered”.

This was not hearsay evidence, but “numbers” and “case observance” - data and observations based on that data.

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It would therefore appear that in or aboutApril 2011 the director of special forces had (at least):

(1) the April 2011 communication from a senior officer reporting a conversation and recommending that there be a thorough investigation (and also possibly the March 2011 note); and

(2) the data-based observations of another senior officer, the Assistant Chief of Staff Operations.

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And what did the director of special forces do?

He did not make a referral to the military police for an investigation under section 113 or otherwise.

Instead, it seems from the recent preliminary report published by the inquiry on the eventual “failed” military police investigation, the director of special forces simply signed a document (seemingly pre-prepared by a lawyer) stating that the use of force was lawful.

Tick, box.

Maybe that was the right decision, maybe not.

But it is a decision on which the inquiry is likely to receive further evidence and may form a view.

And it is part of the terms of reference of the inquiry to see whether there was any cover-up of what happened when these Afghans were killed and of the concerns expressed at the time.

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We do not know if there was a cover-up.

We do not know if there were war crimes.

But we do have documents and witness evidence that require an explanation, and it appears that the inquiry is genuinely seeking to provide this.

A clever person can get themselves out of situations that a wise person would not have got into.

(There are other answers, but this is the best.)

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Political history provides many examples of leaders who, on the way up, are savvy and cautious but when corrupted by power become over-confident and reckless.

In this way, hubris often tends to be visited by Nemesis.

Not always: there will be those like Tito or Stalin or Franco who remain careful with absolute power so as not to expose themselves to the risk of downfall: the price of tyranny, like of liberty, is eternal vigilance.

But with President Trump, who has so often created uncertain situations for others to deal with while he invariably moves on, his usual streetwise cunning seems to have departed him with the attack on Iran.

And so he has created a situation out of which he cannot get.

Iran now has nothing to lose with choking the Strait of Hormuz. There is nothing currently which Trump can do with with either bluster or bullying to get the strait re-opened as before.

And - as this is a blog about polities - the state in Iran has reconfigured. There has been regime change, but not to the United States’s advantage.

As this outstanding piece in the Economist explains, the military-political leadership in Iran has fragmented and decentralised. There is thereby nobody with overall control, just disconnected and local forces with only loose central direction.

As such, there is also effectively nobody for Trump to bluster or bully.

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The United States attack on Iran is almost a perfect model of stupidity, to place alongside the Pyrrhic victory or the marches on Moscow.

And even if Trump tries now to move on, the Strait of Hormuz will still be choked and there will be deep, lasting instability in the region.

So we have a contradiction between what Trump wants to do and what he cannot do. He wants to walk away, but this is one mess he cannot escape.

A wise person would not have got into this situation, and it is now a situation a clever (or at least cunning) person cannot get out of.