Michael Howard is right, Gibraltar is ours and PM should do anything to defend it!

Maggie Thatcher went to war with Argentina when British sovereign land was under threat, so why shouldn’t Theresa May be prepared to do anything to defend Gibraltar? Former Tory leader Michael Howard said at the weekend that the PM would show the same resolve that Thatcher showed 35 years ago over the Falklands, and I say good on her! I have been to Gibraltar many times, and the people are more patriotic about the UK than most people in Britain! I got the views of locals on the diplomatic row that’s erupted between us and Spain. I spoke to Chris Peach, a listener who lives in the territory, and Andy Hunter, owner of The Lord Nelson pub as well as several other businesses in Gibraltar.

What is it that gives the Spanish the right to think that they can bully us over Gibraltar? I’m guessing they’re not planning on giving up the Canary Islands any time soon! Maybe it’s because we don’t have enough politicians who are prepared to talk tough about this. Politicians like William Dartmouth MEP, UKIP MEP for South-West England, which includes Gibraltar. He’s been in Gibraltar over the weekend, so I spoke to him live from Spain to get his thoughts. William was clear: no matter what Madrid thinks, Gibraltar is, and must remain, British!


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Reunifying Ireland: An EU law perspective

On 23 June 2016, Northern Ireland was one of the two UK constituent nations that voted to remain in the EU. Following that, Sinn Féin has called for a referendum for the unification of Ireland and thus for Northern Ireland to remain in the EU. This discussion has intensified after the most recent Northern Ireland Assembly election where the Unionist vote was significantly reduced.

Independently of whether such development is politically prudent and/or feasible, one has to note that, legally speaking, ‘Westminster has formally conceded that Northern Ireland can secede from the United Kingdom to join a united Ireland, if its people, and the people of the Irish Republic, voting separately, agree to this.’ Section 1 of the Northern Ireland Act 1998 is a rare example of a provision of a constitutional statute that explicitly recognises the right of secession of a region (see also the Good Friday Agreement). According to Schedule 1 of the Northern Ireland Act, however, such a referendum can only be organised if ‘it appears likely to [the UK Secretary of State] that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.’ Theresa Villiers, the former Northern Ireland Secretary has made clear that, according to her, ‘there is nothing to indicate that there is majority support for a poll.’

Still, if in the future, the majority of the people in Northern Ireland democratically decide to secede from the UK and join the Republic of Ireland, the EU legal order is able to accommodate such political development. The secession of Northern Ireland will not mean the creation of a new (Member-)State. Instead, it will trigger the territorial expansion of an EU Member State to which EU law already applies in accordance with Article 52 TEU. In a way, the reunification of Ireland could follow the precedent of the German reunification where the application of the acquis was extended to East Germany without an amendment of the primary legislation. The difference is that, in the case of Germany, the EU acquis did not apply at all in the East before the reunification, something that is very different with the situation in Northern Ireland.

However, Taoiseach Enda Kenny has asked recently for a special provision in any Brexit deal to allow Northern Ireland to rejoin the EU should it be united with the Republic. He did so, notwithstanding the fact that a special deal for Northern Ireland is the declared goal of the UK government.

So, the question is how could such a provision look like?

Obviously, there are not many EU law provisions that regulate the (re)unification of (Member-)States. The closest example is Article 4 of Protocol No 10 on Cyprus of the Act of Accession 2003. Protocol No 10 provides the terms for the application of EU law in Cyprus given that the island had not been unified at the moment it joined the EU. In particular, it provides for the suspension of the application of the acquis in northern Cyprus, a suspension which shall be lifted in the event of a solution.

If such solution occurs in the future, Article 4 provides for a simplified procedure that enables the Union to accommodate the terms of the reunification plan. In particular, Article 4 allows the EU, by a unanimous Council Decision at a future date and in the event of reunification, to alter the terms of Cyprus’ EU accession that are contained in the Act of Accession 2003. In other words, it allows the Council to amend primary law (ie Act of Accession 2003) with a unanimous decision.

This might sound like a heresy. However, the Treaties foresee special procedures for their amendment in some cases. The best example, for the purposes of this post, is the Council decision on the basis of Article 2(2) of the 1994 Accession Treaty which adjusted the instruments of accession after Norway’s failure to ratify. Several Articles of this Accession Treaty and of the Act of Accession were amended by a Council decision while other provisions were declared to have lapsed. Thus, in that case, the Council, itself, amended primary law in a simplified procedure without any ratification of the Member States.

To the extent that the ‘Brexit’ Agreement will be considered as part of primary law, a similar provision regulating the reunification of Ireland could be included and could assist the smooth transitioning of Northern Ireland back to the EU. Of course, the question of the reunification of Ireland –as many other questions related to Brexit- is first and foremost political. It is important to point out, however, that EU law is flexible enough to accommodate such political developments.

Barnard & Peers: chapter 27


A National Surveillance Camera Strategy for England and Wales Surveillance Strategy

Tony Porter, the Surveillance Camera Commissioner launches a national surveillance camera strategy for England and Wales, to help keep people safe in public places and respect their right to privacy.

This strategy aims to provide direction and leadership in the surveillance camera community to enable system operators to understand good and best practice and their legal obligations (such as those contained within the Protection of Freedoms Act, Data Protection Act and Private Security Industry Act).

A National Surveillance Camera Strategy for England and Wales Surveillance Strategy (pdf)

Britain’s politicians just don’t get the net

Back in 2008, the financial crisis was at its height. The Government was in the process of taking the historic and humiliating decision to nationalise some of the country’s biggest banks in order to save them from destruction. And direct.gov.uk, the closest thing the British state had to a homepage, was leading with an informative briefing about National Bee Week.

It’s not exactly news that Britain’s governing elite aren’t the most tech-savvy of souls. Tony Blair only sent his first text message after leaving office. Alastair Campbell never typed an email while in power. And Gordon Brown apparently had the auto-complete function disabled across the Downing Street network after drafting an expletive-fuelled email to Wendy Alexander which accidentally ended up being sent to Wendi Deng, aka Mrs Rupert Murdoch.

But still, there are moments which bring you up short. And one such came on The Andrew Marr Show on Sunday when Amber Rudd, the Home Secretary, said (among other things) that the tech companies had a duty to take action against extremism because they “understand the necessary hashtags to stop this stuff even being put up”.

In terms of Rudd’s actual argument about WhatsApp, this is one of those cases where there is justice on both sides. From a security perspective, the Government is petrified by the idea of a communications platform (or rather multiple platforms) which are effectively black boxes. Why, it asks, should the appropriate warrant (with appropriate safeguards) enable it to tap phones and read mail, but not to see WhatsApp messages – such as the one sent by Khalid Massood minutes before he began to murder?

Set against that, however, are a variety of equally powerful – and for me ultimately more compelling – points.

First, as Paul Goodman says, cracking encryption is an all-or-nothing affair. And whatever tools are devised to break open these services are likely to end up in the hands of the bad guys as well as the good guys – as seen by WikiLeaks’ recent mass dumping of CIA hacking exploits (quite probably obtained via their friends at the Kremlin).

Second, it sets a precedent. If WhatsApp opens up its services for the British government, it will be in a weaker position when the Chinese or Iranians or Russians ask (or order) it to do the same.

And third, there is a long and inglorious history of administrative overreach, whereas tools that are meant to be used only in exceptional circumstances become routine both within the security services and beyond them. Just look at the widespread official abuse of the Regulation of Investigatory Powers Act, which was meant to catch terrorists and ended up being used to persecute dog-walkers and pigeon-feeders.

But beyond the specifics of the argument about WhatsApp, Rudd’s remarks about “necessary hashtags” reveal something more fundamental, and more alarming: the basic technological illiteracy of much of Westminster.

Continue reading “Britain’s politicians just don’t get the net”