Gordon Brown's New Clothes

Apologies to all our readers for the long summer break due to logistic problems for most of us.

Let's go back to business with a very interesting piece on Gordon Brown's real identity as a politician by Jonathan Freedland on the NYRB.

Gordon, after his first 100 days in power, emerges as a skillfull prime minister who has grand plans on domestic and International politics.

Personally, I have no doubt about his policy skills. The open question which is tellingly not addressed concerns the place of the UK in Europe. More to come on GB's views on Europe...

Scottish Elections: the chaos wins

Everyone expected the results of the elections, but by now it is like waiting for Godot. What characterised the Scottish elections is the lack of clarity produced by a shambolic voting system.

SNP and Labour parties are fighting to the last vote to secure the majority and lack of clarity in these circumstances is not at all positive.

In any case, my feeling as an external beholder is that the UK should engage in a wide constitutional debate as to the nature of devolution, the place of the house of lords, and the status of the human rights act.

This may be the right time to start developing a genuine constitution for the UK.

Major blow to diplomatic assurances/torture memoranda

To return to an issue that I have blogged on previously, the controversial policy of the UK Government of signing "memoranda of understanding" with states suspected of carrying out or ignoring torture of detainees has been dealt a significant blow with the decision today by the Special Immigration Appeals Commission that two terror suspects that were scheduled for deportation to Libya must not be sent back there. The judgement in the case of DD and AS v. The Secretary of State for the Home Department, available in full here, although not condemning outright such agreements in the abstract, held that the particular memorandum of understanding between the UK and Libya does not provide enough safeguards to allow the UK to fulfil its obligations under Art. 3 ECHR (the prohibition of torture). The crucial passage from the judgment reads as follows (para. 428):

Although we accept that the MOU and other assurances have been given in good faith by Libya, and that there is no probable risk of a breach of Article 3 ECHR were the Appellants to be returned, there remains a real risk that that could happen. That is because there is too much scope for changes to happen, for things to go wrong, and too little scope for a breach of Article 3 to be deterred or for acts which might lead to a breach of Article 3 to be remedied in time, essentially through effective monitoring. There is also a real risk that the trial of the Appellants would amount to a complete denial of a fair trial. We do not exclude the possibility that the SSHD’s case for their deportation could be strengthened over time.

A number of important points can be gleaned from that paragraph alone. Firstly, there need not be any mala fides on the part of the potential receiving state for a memorandum of understanding to be found insufficient to avoid responsibility under Art. 3 ECHR. Secondly, the level of risk necessary that such assurances would be violated is set commendably low: improbable, but genuine. Thirdly, factors such as political volatility, the likelihood of change, and the possibilities for effective monitoring can be essential in determining whether a risk is genuine or not, however improbable. Lastly, the SIAC makes it clear that this is a contextual, and not a general or abstract, judgment, and that changing conditions in Libya over time may mean that diplomatic assurances can be effective in allowing the UK to deport terror suspects there without violating Art. 3 ECHR.

These points, along with a number of others, are dealt with in the judgment in more detail. There is, for example, a lengthy discussion both of Qadhafi's character, and the manner in which his new rapprochement with the West has been driven by an instrumental pragmatism which could, if the situation so demanded, see it reversed, particularly in isolated cases involving the interrogation of islamist extremists (see e.g. paras. 333-372 of the judgment). The Commission concluded that "[t]here is not yet the range of contacts or years of experience of dealing with each other at many different and friendly levels, or the depth of other links between Libya and the UK which would make the diplomatic path predictable" enough for a diplomatic assurance as to the non-resort to torture to be viewed as absolutely watertight (para. 370), even if Libya's recent and continuing rapprochement with the West is a factor of genuine - and increasing - importance in this regard. The necessary chance of such a risk materialising is set out clearly in the following passage (para. 371):

We have accordingly come to the conclusion that although it is probable that [witness for the Home Department] Mr Layden’s judgment as to how the Libyans would observe the MOU in relation to the physical treatment of the Appellants is sound, and that they would not be ill-treated in a way which breached Article 3, we cannot adopt his conclusion that that would be well-nigh unthinkable. Instead we think that there is a real risk that that would happen... We do not therefore have the confidence which we need to have, for the return of the Appellants not to breach the UK’s international obligations. In short there is too much scope for something to go wrong, and too little in place to deter ill-treatment or to bring breaches of the MOU to the UK’s attention.

There is thus also significant consideration given to the matter of monitoring: where the guarantee of adherence to diplomatic assurances rests on a pragmatic ascertation of self-interest (and not, for example, on a growing commitment to human rights, or a culture of honouring one's given word), the first calculation of a regime that thought that it may stand to gain from torturing detainees would not be the threat of sanctions from, or the deteroration in relationship with, the returning state, but whether it could prevent any breach coming to light. The ability of an MOU to work where a regime could use well known ploys to prevent access to a prisoner does depend on the monitoring body having access or the willingness to report obstructions to the sending country. The very real prospect here that a breach could go undetected, or undetected for a long time, means that the potential adverse reaction from the UK would also be delayed or prevented. The downside of any breach could be markedly diminished" (para. 365).

The issue of monitoring, then, becomes vital. The Commission notes, for example, that strong civil society monitoring bodies, such as a free press or genuinely independent NGOs, or even a strong public constituency of popular support for Islamic militancy, are not present. The Commission goes on to note that the body envisaged as implementation monitor, the Qadhafi Development Foundation, although by far the best-placed "NGO" for the job, enjoying a degree of independence unique among Libyan NGOs, is not sufficient for the task. Although it does have an important track record of human rights protection and humanitarian advocacy, it's President is Saif al Islam al Qadhafi, Colonel Qadhafi's second son, who, despite his reformist opinions, is nonetheless still deeply limited in the criticisms he can level at the regime. The QDF, then, would be useful in monitoring the Memorandum in cases in which a rogue guard tortured detainees against the will of the regime; this is not, however, viewed as particularly likely. In the more probable scenario, of torture sanctioned at the highest level, it would be effectively voiceless. The Commission concludes that "[i]t [the QDF] is no more independent of the regime than is Saif himself, and he is not independent" (para. 330).

Other issues include the possibility that the length of time spent in detention either pre-trial (paras. 375-376) and on death row (paras. 377-378) could lead, indirectly, to a breach of Art. 3 ECHR, although, in terms of the latter, execution was not viewed as a real risk - even if a death sentence was a real possibility, it was unlikely to be carried out; and the possibility, gleaned from tentative ECtHR dicta, that the probable lack of a fair trial in the receiving state might act as a barrier to deportation ("[t]he ECtHR has not enunciated any general principle that a state bears an indirect responsibility for breaches of the ECHR by states which are not parties but to whose territories someone is deported", para. 397), holding that a "balancing" (at least in terms of derogable rights) between the rights of the deportee and those of individuals he put at risk, or threat to the host state, could be carried out (para. 400). The Commission even dealt with the significance of Qadhafi's strong personal relationship with the outgoing Tony Blair (para. 380). Lastly, the one of the appellants had raised the possibility that, given his family situation in the UK, deportation would amount to a violation of the right to family life contained in Art. 8 ECHR; an idea dismissed by the Commission in this case (paras. 405-414).

The other area of real interest concerns the Commission's judgment with respect to the 1951 Refugee Convention (it does not consider the Convention Against Torture at all, but we may assume that its holdings in terms of Art. 3 ECHR would also be applicable to the UK's obligations inder the CAT, and in particular its own Art. 3 provision on non-refoulement). In short, it seems unlikely that the Refugee Convention will be of particular importance in cases involving suspected terrorists within the UK in the future: one of the appellants, DD, had already been successfully through a refugee status determination in the UK; however, the Commission ruled that the Secretary of State was correct in his assertion that DD's terrorist activities meant that he was excluded from the provisions and protections of the Convention. The relvent provisions of the Convention read as follows:

1. F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

33. 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

The Commission considered the claim that, as the acts upon which the UK was relying in excluding DD from protection under the Convention had occurred after the positive refugee status determination, they could not be used to divest him of that status (paras. 110-112). This position seemed to be supported by a Canadian Supreme Court case, Pushpanathan v. Canada (MC1) [1999] INLR 36, in which the Court held that "the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status" (para 58 of that judgment). This, however, was not accepted by the SIAC, who, following a judgment of the UK Immigration Appeals Tribunal (in KK v. SSHD [2004] UKIAT 00101) noted that, given the words "prior to his admission to that country as a refugee" were inserted into Art. 1F(b) alone, meant that they could not be read into Art. 1F(a) or (c); thus DD could be stripped of refugee status if he engaged subsequently in "acts contrary to the purposes and principles of the United Nations" - of which terrorism is a generally accepted example (para. 121).

Lastly, the Commission held that, even if DD were not excluded from protection under Art. 1F, then the non-refoulement provision would not apply as a result of Art. 33(2): "It is obvious from our conclusions about national security that it is our view that there are “reasonable grounds” for regarding him as a danger to the security of the UK", and concluding moreover that neither here nor in Art. 1F was the deporting state required to balance the potential for individual rights violation against the suspects if deported against the risk to itself and its citizens. As soon as the criteria of Arts. 1F or 33(2) were fulfilled, there is no bar under the Refugee Convention to deporting the individual in question (although of course other obligations, such as the ECHR or the CAT may well still apply) (paras. 125-126).


One of the most striking things about this judgment in general is the level of acceptance that the appellants are dangerous men, deeply involved in Islamic militancy and posing genuine threats to the UK's national security. The Commission conducts a detailed review of the appellants' activites, and concludes, for example, that "We are entirely satisfied that DD is a real and direct threat to the national security of the UK... [who] is a global jihadist with links to the Taleban and Al Qa’eda" (paras. 71-72), and that "on the open evidence alone AS is a clear danger to national security. He is an Islamist extremist who has engaged actively and as a senior member with a terrorist group clearly engaged in support work for jihadist activities" (para. 104). The Commission makes, to my mind, a commendable summary of the choice facing it, which has led it to its equally commendable decision (para. 430):

We have given this decision anxious consideration in view of the risks which the Appellants could face were they returned, and those which the UK, and individuals who can legitimately look to it for the protection of their human rights, would face if they were not. We must judge that matter, at least in relation to Article 3 ECHR, by considering only the risks which the Appellants could face on return, no matter how grave and violent the risks which, having chosen to come here, they pose to the UK, its interests abroad, and its wider interests. Those interests at risk include fundamental human rights.

The effect of this passage, which to me nicely encapsulates the tragic dilemma posed by this extremely hard ethical question, is, sadly, somewhat diminished by the almost petulant tone adopted by the Commission in the very next paragraph:

The decision of the ECtHR in Chahal in 1996 provides the framework for that decision. It clearly requires us to consider matters in that way, however slight its reasoning or negligible its response to the substantial minority dissent on the problems posed by a direct threat comparable to that arising here to the interests of the country seeking removal, and on the protection to the human rights of others which the deportation of the Appellants would afford. That decision is part of its established jurisprudence, and in reality we are bound by it.

With these last words, the Commission seeks to challenge the absolute legal prohibition laid down by the ECtHR in terms of refoulement in torture cases, implicitly suggesting instead that this should be subject to the kind of legal balancing act common to many other rights dilemmas. There is no space to go into this in detail here, but many, myself included, although believing that, ethically speaking and at an abstract level, torture can and must be balanced against other possible ethical risks (that there can, philosophically, be no absolutes), it is a different matter entirely to attempt to write that necessary relativism into positive law. It is a subject on which I may blog more soon; for the moment, however, it is enough to refer any reader who have made it this far to Jeremy Waldron's excellent article on the subject, "Torture and Positive Law: Jurisprudence for the Whitehouse", 105 Columbia Law Review (2005) 1681-1750.

Bye Bye Chirac

President Jacques Chirac has announced that he will not run for a third mandate. After 12 years, and at 74, he decides to 'serve the French people in other ways.'

As a result 2007 will see the end of two heavyweight of European politics, Chirac and Blair, who have dominated the scene for the past 10 years or so.

We can only hope that after them, Europe and the world will be less polarized.

David Cameron's Europe: Old, Boring, and Flawed

David Cameron, leader of the Tories in the UK, wrote a piece on his view of Europe together with Mirek Topolanek, prime minister of the Czech Republic.

The lack of ideas and projects of Mr Cameron is staggering. He claims he started a movement for european reform. He is probably unaware of the fact that there are thousand similar movements across Europe.

He makes three points as to where Europe should go. First, it should be committed to an open market. Second, it should be committed to a nationalist perspective. Third, it should be committed to a strong Transatlantic bond.

The third point is probably where we agree. It needs no commentary, if to say that he is stating the obvious. The second point goes backward instead of going forward. Europe was and is a succesfull project because it manages to go beyond national states. To fall back to that pre-WW2 position would be a dramatic failure. The first point is at best, and again, stating the obvious problem of competition in a globalized world. Everyone is aware of that. Cameron does not offer anything interesting or different or constructive.

Here's the text:

Fifty years ago this month, the post-war generation of mainland Europe came together to articulate a project conceived in hope and forged by necessity: the hope was for a peaceful and prosperous future; and the necessity was economic ruin and political division. In signing the Treaty of Rome, they laid the foundations of the European Union.

In 1973 Britain, at a time of its own economic weakness, joined what was then still a small club of nations. It was not an easy start. Britain already had strong links with strategic partners around the world through the Commonwealth, family ties and trade. And public and political opinion was split over the relative merits of membership.

This ambivalence was to characterise much of Britain’s relationship with the EU ever since. This is in stark contrast to the Czech experience. When the Iron Curtain came crashing down and a politically plural culture and free trade took root, there was little ambivalence towards the EU: joining it was a priority, not an afterthought It was necessary to entrench the new found freedoms which the Czechs fought so hard to win and the prosperity which they had so longed for.

Our countries joined the European Union for different reasons and with different enthusiasms. And we have had different experiences. But today, as leaders of our respective country’s leading centre-right political parties, we are united with a common purpose: to make the EU change so it can be a force for good in the twenty-first century.

Fifty years after the Treaty of Rome, we have a new Europe, facing new challenges and with a new generation of leaders. But we have the same EU, still too attached to the tenets of centralisation and regulation and still too interested in itself, rather than worldwide challenges such as globalisation, climate change and global poverty. A new, positive agenda for Europe means reconnecting it to these urgent priorities. It means moving towards a new flexibility and dynamism. And it means looking outwards to the world.

That is why we launched the Movement for European Reform. We will be carrying out a comprehensive review of the EU’s policies, priorities, institutional capabilities and budget, it is open to all those - public servants, professionals, diplomats, business-leaders and students - who share our determination to make the EU work better. We want to pioneer a new agenda for Europe, underpinned by what we believe to be the three key commitments for a forward-looking EU.

First, the EU should be clearly and unambiguously committed to open markets. With increased and fierce competition from countries such as India and China, Europe has to take the steps that make our economies both open and dynamic. Responding to this challenge means discarding the old habits of regulation and fighting for free trade both within and without.

But free trade must also be fair. As the world’s largest trading block, the EU has a responsibility to ensure that the benefits of economic growth are shared by everyone. We should use trade liberalisation at home to provide economic opportunities, and spur development, abroad. This EU must use its collective muscle to push the World Trade Organisation to reduce the tariffs which entrench poverty in the developing world.

Second, the EU should be committed to a Europe of nation states. This means matching the growing flexibility of the globalised economy with flexibility in the political compact between Brussels and member states. At the moment, the EU’s default response to the challenges of our times is always to reach for more power- not least through a new Constitution for Europe. There is a strong tendency to do this by debating the future of 500 million people behind closed doors. This is precisely why so many people feel disenfranchised by the European project. For the EU to be relevant in the 21st century, it must respect equal status for all EU members and, while maintaining the single market as the EU’s core, give more flexibility in areas where member states may want either closer or looser control.

A more flexible EU also means one that can continue to expand. The enlargement of the European Union – from just six in 1957 to 27 members today - has helped entrench democracy and stability from the Baltic to the Mediterranean. That is a marvellous achievement. But we cannot now allow arguments over institutional structures to block further enlargement. That means holding out a real prospect of membership to the Western Balkans, to Turkey, to the Ukraine.

Third, the EU should be committed to a strong transatlantic relationship. Europe and the United States have a deep and wide history of friendship based on shared objectives. That this remains the case today can be in no doubt. Whether it is in rising to the challenge of globalisation, articulating a coherent and progressive response to climate change, confronting the imperative of energy security, or advancing wealth creation and the principles of freedom across the world, EU member states must understand that we can achieve most by working with America, rather than against it.

Today, the Movement for European Reform is holding its inaugural conference in Brussels. A vast array of thought provoking policy-makers, thinkers and members of the public will outline how best they think Europe can marry these principles with the priorities of the 21st century: globalisation, global poverty, climate change and international security. After a year of consultation, it will publish its suggestions. Most importantly, we want to hear from you- visit our website and have your say on our shared future.

Our two countries came to the European project with different histories and motivations. But today, as a new generation of Europe’s leaders, we are committed not only to establishing a new political grouping in the European parliament, but also too making the EU fit for the 21st century: one that is a force for good in the world; one that leads by example; and one that delivers. Join us in building an EU that we can all be proud of.

Blair's Battle for Global Values

Tony Blair has decided what to do when he quits his post as Prime Minister:
He will be Philosopher! Here's a lengthy analysis of his political thought on global war and Justice.

This is the abstract: The war on terrorism is not just about security or military tactics. It is a battle of values, and one that can only be won by the triumph of tolerance and liberty. Afghanistan and Iraq have been the necessary starting points of this battle. Success there, however, must be coupled with a bolder, more consistent, and more thorough application of global values, with Washington leading the way.

Feel free to assess Blair's consistency. Words and Deeds do not always match...

More on Scottish Independence

Things have been a little quiet on here of late, Lorenzo's efforts notwithstanding. To get the ball rolling again, I thought I'd share this interesting and insightful comment on, and expansion of, my post below that I received via email from my father Angus MacDonald, a lifelong resident in and observer of the Scottish political scene...

It is interesting to note that recent polls on Scottish independence show considerable support for this idea on both sides of the Scotland - England border. The polls seem also to show that the support for this in England is based substantially on the view that the Scots are 'subsidy junkies', reliant on an unequal distribution of government financial support through a funding mechanism known as the Barnett formula. Joel Barnett was Chief Secretary to the Treasury during the years 1974 to 1979. The first North Sea oil was piped in to Teesside in 1975. In 1974 Professor Gavin McCrone, who was Economic Adviser to the Secretary of State for Scotland, wrote his report entitled 'The Economics of Nationalism Re-examined'. This report concluded that an independent Scotland “could now expect to have massive surpluses on its budget and on its balance of payments and with the proper husbanding of resources this situation could last for a very long time into the future”. It also concluded that “for the first time since the Act of Union was passed, it can now be credibly argued that Scotland's economic advantage lies in its repeal”. This report was suppressed and only recently released under freedom of information regulations.

At that time, when the oil had just begun to flow, the slogan ' It's Scotland's Oil' had much appeal, but there was also, understandably, some doubt about the true value of the oil, how long it would last, and what would happen to a separate Scotland once it was finished. But there was also some unease about the situation that could develop in the best case scenario - that the oil truly was a massive and long-term windfall; these islands are probably too small, comfortably to contain massive differences in wealth between neighbouring states. That the balance of advantage would lie very clearly with the very much smaller state could only heighten the potential for tension. Perhaps this thought partly underpinned Professor McCrone's qualified comment - repeal of the Union could arguably be in Scotland's economic ( as opposed to political?) interest. The suppression of this paper meant that the debate was uninformed by the authoritative assessment of the potential of oil for Scotland that Professor McCrone had made, but in my view it is by no means certain that Scotland would have opted for independence then, even if the views expressed in this report had been widely known. Whether from fear of going it alone, from a sense of solidarity with and affection for England and the other parts of the UK, from an unwillingness to create major inequalities of wealth and the tensions that this could cause, or from a mixture of all these things, Scotland may well not have opted for independence at that time.

This background makes the view that independence would be good for Scotland, because Scots would then realise that, as Simon Jenkins wrote recently in the Guardian in an otherwise reasonable and balanced piece, 'that public money does not grow on English trees', deeply ironic. Deprived of the conclusions of an authoritative analysis, perhaps even motivated to some extent by a degree of altruism, Scotland continued with the Union, a situation sweetened a little by the Barnett Formula. The high political visibility of this formula, coupled with anunquestioned assumption that the wealth provided by North Sea oil could not possibly have been bestowed anywhere other than on Westminster, have been major factors in producing the view in England of Scotland as a land supported by subsidy; this in turn has fuelled the growth of the view in England as well as Scotland that independence for Scotland would be good for both - the very thing that the suppression of the McCrone report was designed to avoid. Had a fully informed debate been allowed to happen at the time, the Union would not now be threatened by the combination of smug condescension on the one hand, and resentment on the other.

GRAND CHAMBER HEARING: EVANS v. THE UNITED KINGDOM

Today the Grand Chamber of the ECHR is hearing Evans v UK, a very important case (I believe). More on its importance coming soon.

Here's a press release

Summary of the facts

On 12 July Ms Evans and her partner J started fertility treatment at the Bath Assisted Conception Clinic. On 10 October 2000, during an appointment at the clinic, Ms Evans was diagnosed with a pre-cancerous condition of her ovaries and was offered one cycle of in vitro fertilization (IVF) treatment prior to the surgical removal of her ovaries. During the consultation held that day with medical staff, Ms Evans and her partner J were informed that they would each need to sign a form consenting to the treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus.

Ms Evans considered whether she should explore other means of having her remaining eggs fertilised, to guard against the possibility of her relationship with J ending. J reassured her that that would not happen.

On 12 November 2001 the couple attended the clinic for treatment, resulting in the creation of six embryos which were placed in storage and, on 26 November 2001, Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for two years before the implantation of the embryos in her uterus.

In May 2002 the relationship between the applicant and J ended and subsequently, in accordance with the 1990 Act, he withdrew his consent to the continued storage of the embryos or use of them by the applicant.

The applicant brought proceedings before the High Court seeking, among other things, an injunction to require J. to restore his consent. Her claim was refused on 1 October 2003, J having been found to have acted in good faith, as he had embarked on the treatment on the basis that his relationship with Ms Evans would continue. On 1 October 2004, the Court of Appeal upheld the High Court’s judgment. Leave to appeal was refused.

On 26 January 2005 the clinic informed the applicant that it was under a legal obligation to destroy the embryos, and intended to do so on 23 February 2005.

On 27 February 2005 the European Court of Human Rights, to whom the applicant had applied, requested, under Rule 39 (interim measures) of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed.

The applicant, for whom the embryos represent her only chance of bearing a child to which she is genetically related, has undergone successful treatment for her pre-cancerous condition and is medically fit to continue with implantation of the embryos. It was understood that the Bath clinic was willing to treat her, subject to J’s consent.

Complaints

The applicant complains that requiring the father’s consent for the continued storage and implantation of the fertilised eggs is in breach of her rights under Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights and the rights of the embryos, under Article 2 (right to life) .

Procedure

The application was lodged with the Court on 11 February 2005. A Chamber hearing on the admissibility and merits took place in public in the Human Rights Building, Strasbourg, on 27 September 2005.

In its Chamber judgment of 7 March 2006 (press release No. 125, 2006), the Court held unanimously, that there had been no violation of Article 2 concerning the applicant’s embryos; by five votes to two, that there had been no violation of Article 8 concerning the applicant; and, unanimously, that there had been no violation of Article 14 concerning the applicant.

The Court also decided to continue to indicate to the United Kingdom Government under Rule 39 that it take appropriate measures to ensure the preservation of the applicant’s embryos until the Court’s judgment became final or pending any further order.

The case was referred to the Grand Chamber at the applicant’s request.

And the results...

Voting has literally just finished on the proposal that I posted about earlier today, for a sweeping inquiry into all elements of the decision to go to war in Iraq, and the manner in which the occupation has been conducted since. The results were as follows: in favour of the Plaid Cymru/ SNP proposal to set up the inquiry - 273; against - 298; a majority for the Government of 25.

Not quite the photo-finish that some had predicted, but equally far from a resounding success for the Government, who saw significantly more than half of its majority removed. It seems clear that this will not be enough to put the issue entirely to bed, but nor is it the bloody nose for Blair that many for which many had hoped. A bit unsatisfactory for all concerned, I should have thought. Still, the issue is firmly back on the agenda and, as the handover of power in Iraq begins and troops start withdrawing, the calls for an inquiry can be expected to gain in intensity, as the "undermining our boys in the field" argument loses weight. It remains difficult to see how, in the slightly longer term, the Government will be able to avoid an inquiry.

Disagreement over Europe in the Conservative Party

Ken Clarke is not happy with Cameron's position on Europe. Clarke fears that Cameron could become the most euro-sceptic of all the previous candidate.

Clarke argues that such a position would not sell well internationally.

No need to worry, anyhow. Even if the British public welcomes Cameron as a new Tony Blair, as soon as he will outline his political ideas, he will collapse as many predecessors, as already stated in a previous post.

Beckett backs compulsory targets for climate change

I noted in a post a while back that the UK Environment Secretary, Margaret Beckett, had suggested that, given the apparent failure of Kyoto - in particular as regards the US - to deliver the necessary cuts in carbon dioxide emissions to tackle global warming, the UK was prepared to support a deal that would propose voluntary, rather than legally binding, targets for such cuts. Tony Blair had also been making noises in this regard. They seem, however, to have rethought this strategy, judging from Beckett's comments in Montreal this week:

Without mechanisms in the form of compulsory action, such as targets to cut emissions, existing and new technologies will never be rolled out on the scale we need. Voluntary measures can be helpful, but compulsory action is a surer way of delivering results.

This is, I think, to be welcomed. As I argued previously, even if there is only very little hope for the sucess of compulsory targets, there seem to be even fewer grounds for optimism in terms of voluntary ones. Most important, however, may be what this change of heart implies: that the UK has given up on attempting to bring the US on board at Montreal by watering down any agreement, and is instead pushing to commit willing countries to a more ambitious project. If so, this is again to be applauded: too many promising international initiatives have been weakened in ultimately futile attempts to bring the reticent superpower on board. We need look no further than the ICC for an example of this.

Cameron wins Tory leadership

David Cameron has just been elected new leader of the Conservative Party, with a comfortable 68%-32% margin over his competitor, and one-time favourite, David Davies. Cameron may seem surprisingly young at the age of 39 (and contrasts of that sort have already been drawn with the man viewed as his real opponent, Gordon Brown); however, since Blair's victory in 1997 - indeed, since John Major took over from Margaret Thatcher in 1990, the Conservative Party has suffered from a succession of fairly bland, unremarkable, and mostly old-school right-wingers at its head. John Major was unable to keep his government together in the face of Blair's onslaught; and subsequent leaders such as William Hague, Ian Duncan Smith and Michael Howard have spectacularly failed to make any real impression (even Blairs much reduced majority is more down to his actions in Iraq than any real resurgence in the Tories). At the same time, there have been contenders who many felt could make the Tories a force again, and who had the necessary charisma to make the party appealing beyond its core vote - Heseltine, Clarke and (the later) Portillo fall under this category. Often, it has been the Conservative's odd policy of allowing grass-roots volunteers the final say in a run-off between two candidates that has led to these results, and has meant that the party has remained confined to its aging, right-wing base. It is interesting to note that the party attempted, and failed, to change this system this time around.

No matter. This time, the Party has made the more courageous choice. Davies was far more in the Hague/Duncan Smith/Howard mould than his competitor. The Tory volunteers have seen the success that Blair has had, and have gone for someone more obviously in his image. Cameron's first speech ended a few minutes ago with a plea for compassionate and inclusive conservatism; and an invitation for all those who believe in honest, dynamic politics, individual choice and social justice to join him and his party.

We have, of course, heard all of this before. About four times since 1990. Cameron does, however, feel a bit different. He might just manage to revitalise the party, and broaden its core support. On the other hand, he is a significant risk; he has rocketed to power almost from nowhere (he has only been an MP since 2001), and he has now to face some formidable, and experienced, politicians in Blair and, presumably, Brown. It remains to be seen whether he will be able to hold his own in these circumstance, or whether he has just been handed the classic hospital pass. And will he seek to minimise this by surrounding himself with the Tory "old guard", or will he begin his reformation of the Party immediately, from the top down?

The next major point of interest, then, will be to see who he appoints to his shadow cabinet, and where...

...But Cameron Will Not win the Elections

David Cameron has been elected as the Head of the conservatives in the UK.

David, who's only 39, will have to face a very big hurdle: winning against labour, one of the most succesfull parties of UK history.

The election was organised through postal ballot: more or less 200.000 Tory members voted. So the first consideration is: only 200.000? It must not be true, is it?
It is and this tells a lot about the 'health' of british politics. (To have a term of comparison, Romano Prodi in Italy has been elected by 6 million voters; participation is still an important element of modern politics).

The second question is: can he win? The answer is simple: NO!
The reason is that David Cameron does not have a genuine political vision for the UK. Moreover, he doesn't have a clue about the concrete policy-implications of his view.

His manifesto is simple: he wants a modern compassionate conservative Britain. Basically, nothing new under the sun. Cameron borrows a familiar American outlook. It is unclear whether british people will be persuaded by this outlook. Especially now that the Compassionate Conservative in the US are facing troubles due to the change of public opinion on the war of Iraq.

As far as policies are concerned, Cameron has taken since long the pragmatic stance. He does not want to detail them now. He will do so in the future. But if he does not have a sound, genuine, vision of where the UK should be and why, then policies will only reflect short term concerns that are not going to carry him very far away.

Euan suggest in the post above that Cameron was the more corageous choice. Maybe. But it is the conservative party as a whole which has a long way to go. And it is unlikely that Cameron will lead the party far enough to convince British people that the moment has come to switch to conservativism.

Gay Marriage in the UK

From Today, December 5 2005, gay marriages are allowed in the UK. Thus, the labour party follows the spanish example.

Here is the Civil Partnership Act 2004.

More on this later on.

Blair backtracks (a bit) on EU budget rebate

Tony Blair, currently on a tour of new EU member states in an attempt to resolve the deadlock over the EU budget - for which many feel he has primary responsibility, both as the UK is the current president of the union, and as its budget rebate is one of the major sticking points - has indicated his willingness to either accept a cut in the rebate, or contribute more to EU funds.

These might seem essentially the same thing. Not so, however; the issue of the budget rebate, won by Margaret Thatcher, is something of a hot potato in British domestic policies; and Blair has repeatedly stated that he will not give it up without reform to the Common Agricultural Policy. He has not, of course, offered to give it up entirely, but it will be difficult to prevent opponents from portraying this as a u-turn.

The offer comes as part of a proposed deal which would also see aid to the 10 accession countries cut by something like 10%; small wonder, then, that Blair has had to make a significant concession. The cuts are not, perhaps, as draconian as first appears - the conditions attached to this funding are so strict that, in practice, significant amounts of the money is never spent (Poland, for example, has thus far been able to spend only 4.3% of its allocated funds for 2004-2006). Blair is proposing to loosen up the criteria for accessing the money at the same time as reducing the amount available; nonetheless, this does not seem to have impressed many of the new member states. Even a spokesman for Barroso, the Commission President, has said that "he has made it very clear that he does not expect the British presidency to take the role of the Sheriff of Nottingham, taking from the poor to give to the rich".

I find it difficult not to feel a little sorry for Blair on this one; that both the rebate and the CAP need serious rethinking seems to be generally accepted (almost everywhere but France); his argument, however, that they are "inextricably linked" seems to have considerably less adherents. The rebate seems an easier target at the moment than does the CAP; this, coupled with the fact that the UK currently holds the presidency and thus the responsibility for finding agreement on the budget, has forced his hand. It'll be interesting to see just how far he is prepared to go; and how what he has already conceded will go down domestically.

Blair and Europe: a disappointment

Tony Blair is a Janus faced politician. His capacity to warm audiences with his speeches hardly matches with his incapacity to deliver on his promises.

Europe is a good illustration of Tony's gap. In June, we welcomed Blair's speech to the European Parlaiment for his vision and apparent leadership.

Today, we can only take note, along with other observers, that Tony Blair will not be able to achieve half of what he has promised.

A Republican Constitution?

One way of reading yesterday's success of the British parliament is to claim, as Adam Tomkins does, that the British Constitution is fundamentally Republican. Three elements characterise Tomkins' Republicanism: Anti-monarchism and Popular Sovereignty; freedom as non-domination (following P. Pettit account of this concept); and the institutional design of accountability.

Probably, the last element, the institutional design of accountability, is the most important for Tomkins account. In his book, he spends a lot of time explaining why the notion of political accountability of the executive vis-a-vis the parliament is so central in British Republicanism.

Indeed, yesterday success of the parliament, and defeat of the executive, could be explained in Tomkins' terms. From that perspective, the Parliament would be the best institution to protect the freedom of the polity from the domination of its very government.

Any other views on this?

... and Big Victory for the British Parliament!

Following Euan's post on Blair's Big Loss:

The point I want to make is that the big winner is the House of Commons. And this is a good and refreshing news. Possibly, this is the important point. Democratic and Representative politics is not dead, is well and alive and lives in Westminster.

Yesterday, there were no party games. British politicians are rightly concerned about the security of the country. All of them. This does not mean, however, that the whole country has to abyde by what Tony says. Of course, Blair thought that 90 days of detention without trial for terrorist suspects was the RIGHT thing to do. I am sure he's god damn persuaded about that. But, he did not manage to persuade anybody else. His only strategy was to say: this is the OBJECTIVELY RIGHT thing to do, so let's follow me and do it.

That message failed to convince fellow members of the labour party. Needless to say, it also failed to convince lib-dems and tories. And the good news is that is politics at its best. Either you have a compelling political reason to enact a policy or you risk to lose confidence.

I am not quite sure that this is a big blow for Tony, though. He felt compelled to do what he thought was right. A good politician must have a strong vision and must try to realize it. The Parliament, on the other hand, had the duty to review the reasons for that policy. After careful consideration, the Parliament thought that 28 days of detention without trial was enough. They struck a compromise, and they will be liable in case this compromise proves ineffective.

Yesterday was a great day of constitutional politics in action. The rest is irrelevant.