Misconducting in public office

20th February 2026

An ancient offence is in the news – and how it usually is used only for junior officials

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If conduct is a verb, then misconducting must be a verb too.

And when a someone in public office – what we can call a public official – is misconducting in that public office then that is an offence under the common law of England and Wales.

Being a common law offence means that it is not set out in any Act of Parliament or other statutory instrument. It is instead an offence which we put together by a combination of law reports (of old judgments) and judicial reasoning: judge-made law.

(Murder is another common law offence.)

Misconduct in public office is an ancient offence. One can trace it back to early modern, even medieval times. It was an offence for those with trusted public offices when they did something to betray that trust. As such it was deliberately, helpfully vague: misconduct in a public office can take many forms and so there was no point in the law being too exact. One would know misconduct in public office when one saw it.

And then, in the 1800s and early 1900s, the law was pretty much forgotten about.

And then, at the end of the 1900s, the law began to revive, especially with police officer cases where the alleged misconduct of the police officer did not fit easily into more defined criminal categories.

The law of misconduct in public office was taken off the common law bookshelves and the dust blown away.

But the law was still vague, and so in 2004 the Court of Appeal in a reference from the Attorney General reframed the judge-made law for modern times, so as to make it a little less vague.

 

The key paragraph of the judgment says (referring to other paragraphs of the judgment):

The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the contents of the preceding paragraphs. The elements of the offence of misconduct in a public office are:

1. A public officer acting as such (paragraph 54).

2. Wilfully neglects to perform his duty and/or wilfully misconducts himself (paragraphs 28, 30, 45 and 55).

3. To such a degree as to amount to an abuse of the public’s trust in the office holder (paragraphs 46 and 56 to 59).

4. Without reasonable excuse or justification (paragraph 60).

As with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.

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With this re-statement, the law continued to be used mainly on police officers (and also now prison officers) whose misconducting did not fit neatly into other offences.

And then when the hacking and press standards scandal exploded, and evidence was revealed of unauthorised disclosures by police and prison officers and by other junior or mid-ranking officials, then the law was used to punish the disclosing officials.

This was the once famous Operation Elveden.

Significantly, it did not strictly matter if an unauthorised disclosure was in return for money: the offence was made out when there was an unauthorised disclosure which amounted to misconduct in public office.

And so again, the law was used because of facts that did not fit neatly into established criminal law categories.

The Crown Prosecution Service, however, generally came a cropper when they sought to extend the offence, via “aiding and abetting” etc – to the reporters who received the information.

(One wonders whatever happened to the then head of the Crown Prosecution Service?)

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One significant feature of the law of misconduct in public office – at least in its modern incarnation – is that is has never been successfully used against a high-profile individual.

It seems so far to be an offence for the junior officer class, and not for the senior officer class.

A couple of attempts to use it against politicians have failed.

And the politicians who went down with the expenses and other scandals were prosecuted under fraud and other offences.

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One problem with the the offence is what also makes it so useful: its vagueness.

The Law Commission who did an impressive report on the offence says that its vagueness leaves it open to challenge on human rights grounds. This is because criminal law should always be sufficiently certain so that individuals can regulate their own conduct (and misconduct).

The government accepted this and the current (stalled) Hillsborough law contains replacement laws.

But those more defined laws are not in place.

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Recent news reports indicate that the offence may be used in high-profile cases.

But, if so, nobody should assume that such prosecutions will be easy.

Though, that said: if such a law exists, then it really should not be an offence only for the junior ranks.

For the senior ranks of public officials can go about misconducting too.

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Will the Carnival ever end?

Shrove Tuesday, 2026

The Contest between Carnival and Lent

by Pieter Bruegel the Elder (source)

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Today is Shrove Tuesday, a moveable date which is reckoned as forty days before Palm Sunday.

Not long ago it was Candlemas, a fixed date – 2nd February – which is reckoned as forty days after Christmas.

(Candlemas, of course, has a special place on this blog.)

The gap between these dates is really a bridge between midwinter and the coming of spring.

It appears that the earliest possible date for Shrove Tuesday is 3rd February. The last time it was that early was in 1818. It seems the next time will be in 2285.

And so the two forty day periods reckoned respectively by Christmas and Easter can never actually overlap.

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This blog has previously noted that the political culture of the United States – and to an extent in other places including the United Kingdom – is akin to the Carnival before Lent:

There are signs of push-back in the United States: with grand juries and state governments, and even in Congress and federal courts.

But the agents of misrule still are generally in power.

Many watching are waiting for the mid-term elections this November to see whether the current chaos can be paused; some are even actively seeking to avoid such an outcome.

But even if the mid-terms bring some relief from the carnival of cruelty in the United States, it will take far more than forty days to reverse the mess that has been created.

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This is not a religious blog (I happen to be a non-militant atheist) but it is one concerned with lore as well as law, and a great deal of lore is to do with the passage of time and/or with the competing states of order and disorder.

Once the mid-terms come and go – whatever their outcome – what is happening now will be seen as having the inevitable consequence of what happens then.

Hindsight is perhaps the greatest and trickiest of hobgoblins.

As it stands, however, the outcome of what is now happening is uncertain.

We do not know who will win this contest between Carnival and Lent; we do not even know if it currently amounts to much of a contest.

But disorder, like order, is never bound to last forever.

Carnivals can and do eventually come to an end, even if not promptly forty days before an arbitrary date.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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What the Palestine Action judgment means – and what it does not mean

13th February 2026

The High Court rules against the government, but not with enthusiasm

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This morning the High Court handed down its judgment in the Palestine Action proscription challenge.

I wrote a quick commissioned piece at Prospect within a couple of hours of the judgment being handed down – and I just want to add and develop a few thoughts.

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First, the judgment shows the independence of the High Court in two ways.

A ruling against the government by definition indicates the independence of the judiciary from the executive.

(For what it is worth, I thought a decision against the government was possible when it switched from being a single judge to a three judge panel headed by the President of the King’s Bench Division – a “strong bench” – for a strong bench would be more likely to rule against the government on a matter of national security than a single judge. That said one can never “read” any High Court judge(s).)

But the judgment shows the independence of the court in another refreshing way.

For if you look at the judgment it is plain that the court is not impressed by Palestine Action.

It is always heartening to see a court side with a party with which it has little or no sympathy. It means the court has not got carried away with motivated reasoning in favour of the party it wants to win.

The court said bluntly:

“[Palestine Action’s] campaign is intended to close down the operations of a company pursuing a lawful business. The campaign has not been pursued with restraint. The wide range of targets is significant. It lays bare that Palestine Action’s campaign and pursuit of criminal damage is designed to intimidate the persons and businesses targeted so they end their commercial relationships with Elbit. Palestine Action is not engaged in any exercise of persuasion, or at least not the type of persuasion that is consistent with democratic values and the rule of law.”

Anyone coming across that passage early on in a judgment might have expected Palestine Action to have lost the case.

But no.

The court found in favour of Palestine Action anyway.

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Second, it was an impressive legal win – even if the court was not impressed by Palestine Action.

To win any judicial review against the government on a terrorism-related matter is difficult.

And to win any challenge to any statutory instrument (such as the one which proscribed Palestine Action) is difficult, as opposed to challenging a mere exercise of discretion by an official or a minister.

To do both is remarkable.

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Third, the government really only has itself to blame.

Here I mean both the government in general as well as the current administration.

In 2019 the government widened the scope of the relevant Terrorism law to include expressions of support for a proscribed organisation. (Technically this was done by parliament, but at the government’s behest.)

It must have seemed a good, illiberal idea at the time.

But it meant if an organisation was proscribed for one purpose – to target its organisation, membership and fund-raisers – it also criminalised expression of support too.

It became a one-size fits all provision which meant any proscription automatically infringed the right to free expression of those who were not organisers, members or fund-raisers.

This in turn meant that a court – like today – would look at any proscription with anxious scrutiny.

By wanting to prohibit more and more, the government made any proscription more exposed to legal challenge.

It was a very daft move by the then government.

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The government has also only got itself to blame in another way – and here it is the current administration.

It is hard to read the judgment and see the then Home Secretary and her officials as anything other than hapless.

For although legally the High Court decided against the Home Office on two pleaded grounds – in reality the reason the Home Office lost the case was because the proscription was botched.

One gets the sense from the judgment (and from the surrounding news of the time) that those at the Home Office wanted to push terrorism law to its limit – against a group which, even if not peaceful protesters, did not really fit the definition of terrorism – knowing that this would, at a stroke, criminalise not only those involved but anyone who expressed support for the group.

Those at the Home Office knew this was a stretch.

It must have been obvious that the information before them did not substantiate the proscription.

And the court today ruled it was a stretch too far.

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Fourth, the judgment today – in and of itself – does not change anything.

The law is the same today as it was yesterday – and at the time of the various mass arrests for those expressing support of Palestine Action.

The reason for this is that the court has not yet made an Order giving effect to its judgment.

And until and and unless an Order is made the legal positions of all involved stay the same.

This is because judgments – per se – do not normally have any legal effect until they are encapsulated by an Order.

(Orders are the sausages which come out of the judicial sausage factory, in the same way statutes are the sausages which come out of the parliamentary sausage factory.)

The court deliberately has delayed making an Order, and it would seem that the law may stand until and unless the government seeks an appeal.

And so Palestine Action remains a proscribed criminal organisation and expressing support for it remains a criminal offence.

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Finally, the government will no doubt throw everything at the appeal.

But the government threw everything at this hearing – and it still lost.

Perhaps the government will win on appeal.

The judgment today was balanced on both grounds on which the Home Office lost – it may not take much to shift those balances.

But a more sensible government would not appeal.

As I set out back in September 2025, the government is over-reaching with using terrorism law in this case.

But if the government really wants to proscribe Palestine Action it should put a two-clause bill through parliament making it that a proscription of an organisation, its members and fund-raisers does not automatically criminalise expressions of support for that organisation.

If the government keeps over-reaching, it may fall flat again.

And an adverse appeal judgment will be more damaging for the government than this judgment at first instance.

Nothing the Home Office will throw at the appeal will take away the fact that this was a botched proscription based on incomplete material.

The Home Office mucked up.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

1642’s Five Members vs 2026’s Six Members

12th February 2026

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Comparing Charles I and President Trump in their attempts to arrest and charge legislators

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Three reasons why the Mandelson disclosure exercise will be a shock for the government

10th February 2026

Ministers and officials usually are in control of disclosure exercises – but here they will not be – and why that matters

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Governments like to stay in control of what information is made public.

While from time to time some ministers (and a few officials) leak materials to journalists and others, the general ethos is that the government knows best about what information should be made public.

Manifestations of this ethos, at least in the United Kingdom, range from obstructive press offices, bland parliamentary answers, and cynical Freedom of Information non-disclosure decisions, to broadly applied categories of “commercially sensitive” and “national security” exemptions.

One of the core features of the government of the United Kingdom is secrecy – habitual, routine, casual secrecy.

Ministers and officials may be funded by the public and are supposed to act in the public interest, but the public are not to know what goes on – unless it suits ministers and officials.

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But sometimes governments lose control over what documents and other information are made public.

And when that happens it is always an interesting political and sometimes even constitutional moment.

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An experienced government lawyer once said that the art of public inquiries and public law litigations is to first control the parameters of the disclosure obligations and to then control the exemptions and sequencing of the disclosure.

This is why the government is usually so good at public inquiries and litigation where disclosure is mandated – the government has experience, skills and objectives when it comes to disclosure exercises.

Whenever you hear some demand for a judge-led public inquiry into this or that, you have to realise the government is actually quite good at dealing with managing such things.

(And this is in addition to the fact that judges and barristers heading inquiries tend not be experienced investigators – most of them spend their careers dealing with cases prepared for them by others. They can be very good at asking questions, but the questions they ask are of evidence usually compiled by someone else.)

Put simply: if you control the terms of reference and then the flow of information, you often control the outcome of most inquiries and of many court cases.

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The Mandelson disclosure exercise mandated by the House of Commons is a severe shock to this settled order of information flows – and this is for three reasons.

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First, the terms of reference are broad – it would seem that thousands of documents are caught.

These broad terms of reference came from the government panicking when faced with a parliamentary “humble address” motion. Ministers suddenly agreed to terms of reference which must have horrified officials and government lawyers.

The final version of the address voted on by members of parliament was (broken up for sense and emphasis added):

That an humble Address be presented to His Majesty, that he will be graciously pleased to give directions to require the Government to lay before this House

all papers relating to Lord Mandelson’s appointment as His Majesty’s Ambassador to the United States of America,

including but not confined to

  • the Cabinet Office due diligence which was passed to Number 10,
  • the Conflict of Interest Form Lord Mandelson provided to the Foreign, Commonwealth and Development Office (FCDO),
  • material the FCDO and the Cabinet Office provided to UK Security Vetting about Lord Mandelson’s interests in relation to Global Counsel, including his work in relation to Russia and China, and his links to Jeffrey Epstein,
  • papers for, and minutes of, meetings relating to the decision to appoint Lord Mandelson,
  • electronic communications between the Prime Minister’s Chief of Staff and Lord Mandelson, and between ministers and Lord Mandelson, in the six months prior to his appointment,
  • minutes of meetings between Lord Mandelson and ministers in the six months prior to his appointment,
  • all information on Lord Mandelson provided to the Prime Minister prior to his assurance to this House on 10 September 2025 that ‘full due process was followed during this appointment’,
  • electronic communications and minutes of all meetings between Lord Mandelson and ministers, Government officials and special advisers during his time as Ambassador,
  • and the details of any payments made to Lord Mandelson on his departure as Ambassador and from the Civil Service

except papers prejudicial to UK national security or international relations which shall instead be referred to the Intelligence and Security Committee of Parliament.”

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Significantly the specified examples of information are non-exhaustive – that is the effect of the magic words “including but not confined to”.

One can only imagine the horror of officials and government lawyers when they saw the terms of the motion passed.

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Second, the government lost control over who would make the exemption decisions.

What the government would normally say is that it is the cabinet to decide which material was “prejudicial to UK national security or international relations”.

But this time, the decision will be made by the Intelligence and Security Committee of Parliament (ISC) – comprised of Parliamentarians.

And as this blog set out yesterday, the ISC has already prescribed a detailed process – outside of the government’s control:

Cuttingly, the ISC tells the government that is rare for whole documents needing to be withheld.

So not only is the government facing the broadest terms of reference, it has also has lost control over the exemptions.

And then it gets worse.

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The third reason why this disclosure exercise will be a shock for the government is that the disclosures are not being made to a court or an inquiry where barristers can then seek to shape what is is publicly determined about what is disclosed.

There is no judge or inquiry head that can be persuaded to gloss over what the disclosures say or don’t say.

There will be no judgment or report for ministers to point to and assert they have been “cleared”.

Instead the disclosures will be to parliament and thereby to the public at large.

There may be no contexts for the texts, no nuanced explanations, no adjudicated exonerations.

Just documents for all to see, for all to post and re-post, and for all to form and share opinions about.

Raw documents released directly into the wild.

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You can see why in the United States the federal government has kept control over the disclosure of the Epstein files, regardless of what Congress has said.

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(Disclosure – I am a former central government Freedom of Information lawyer.)

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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The constitutional significance of what happened to the Prime Minister last week

10th February 2026

Members of parliament moved for a parliamentary committee to decide what is prejudicial to national security instead of the government

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Hurrah: now the King’s Evil Counsellor is deposed we shall be govern’d well.

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This is not really a political blog, at least not in the sense of party politics.

That [A] resigns or [B] loses support is often not of wider constitutional significance.

Not every political drama has constitutional significance.

But.

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What happened last week in parliament in respect of the Prime Minister and the disclosure of documents relating to his appointment of Lord Mandelson as Ambassador to the United States was constitutionally significant.

As I set out on Friday over at Prospect, the usual position is that everyone in our polity defers (or should defer) to the Prime Minister in respect of national security.

All a Prime Minister normally needs to do is utter this magic phrase, and the House of Commons hushes and High Court judges roll over. Even newspapers can go quiet.

The Prime Minister is normally seen as having special knowledge of, and a special insight into, what constitutes a matter of national security.

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Last week, however, the Prime Minister Keir Starmer tried to use this magic phrase – and it did not work.

He told members of parliament that the documents relating to the appointment of Mandelson would be released by the government, apart from those which the cabinet secretary deemed would prejudice national security and international relations.

He expected (perhaps) for members of parliament to nod along.

But…

…they did not.

He even resorted to saying that any mistrust amounted to an attack on the integrity of the cabinet secretary.

But members of parliament did not buy this desperate line.

The supposed magic words had been uttered, but there was no magic effect.

Members of parliament did not believe him.

Instead of casting a spell, there was a spell that had been broken.

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Members of parliament instead swiftly moved to make it that any decision to withhold materials on the basis of prejudice national security and international relations would be made by the Intelligence and Security Committee of Parliament (ISC).

The ISC is not a parliamentary committee in the same way as more familiar select committees, standing committees and all-party committees – it is a statutory creature and has a special legal nature.

But it is a parliamentary committee in the sense that it is a committee of parliamentarians.

And for members of parliament to insist that it is for a parliamentary committee, and not the cabinet, to decide on what constitutes prejudice to national security is an extraordinary development.

The government has effectively lost the confidence of the house of commons on a matter of national security.

Of course, there has not been a formal vote of confidence – but losing such a vote and losing the confidence of the house of commons are not the same thing.

For a prime minister to have lost the confidence of the house of commons means that it is (or should be) only a matter of time before he or she ceases to be prime minister.

And this is especially so for a prime minister who often boasts of his national security credentials as a former chief prosecutor of terrorists and so on.

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This significant development came about because the prime minister and the government were in a position of extreme political weakness.

This weakness was partly because of the functioning of two mechanisms of parliamentary accountability.

The first was Prime Minister’s Questions – normally irrelevant political theatre – but this time used well by the Leader of the Opposition Kemi Badenoch.

In a line of questions which was impressive both for their precise content and their sequencing, she placed Starmer in the position where he had to expressly admit that he had known at the time of the ambassadorial appointment that Mandelson had continued his relationship with Epstein after the latter’s convictions.

The second was that the opposition – and many government backbenchers – used a “humble address” motion (which if passed obliges the government to disclose documents) for the release of materials relating to the appointment.

The government could see that members of parliament were going to not support the cabinet-knows-best approach to which documents would not be released.

And so in this position of extreme weakness, the government accepted it would be the ISC to decide on what constituted prejudice to national security and international relations and not the government.

Parliamentarians would decide, though ministers would advise.

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The ISC has now published this (from a constitutional perspective) remarkable letter (which should be read in full).

The letter prescribes the process to be followed by the government in passing documents to the ISC.

It even tells the government that it should not seek to withhold entire documents when only a passage would be prejudicial.

This is heady stuff.

This is a shock to the system where ministers, officials and lawyers will leisurely withhold entire categories of documents on supposed national security grounds.

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This should not be underestimated as a constitutional event.

What is normally decided by one organ of the state has passed to another, at least for this matter.

And returning to the world of politics, we have a prime minister and government locked into a documented disclosure exercise which it cannot control.

This is a nightmare for ministers, officials and government lawyers.

Of course, a lot of this is down to the politics of the moment – the Prime Minister has long been in a weakening position and those opposed to him (inside and outside his party) exploited a particular moment of extreme weakness.

But it is also down to the functioning of two constitutional mechanisms of accountability – PMQs and humble addresses.

And what is now a nightmare for ministers, officials and government lawyers, is a sign of a functioning constitution.

(Though, of course, the appointment of Mandelson in the first place was perhaps a sign of constitutional as well as political dysfunction.)

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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On Mandelson’s emails – how to think about disclosed documentary evidence

3rd February 2026

You probably have seen the disclosures of the emails purportedly from Lord Mandelson from when he was business secretary.

On the face of it, these emails raise serious questions which warrant further enquiry and investigation.

(And if you want speculation about legal liability this really is not the blog for you.)

There are also questions we can ask of this documentary evidence, and observations that we can perhaps make.

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First of all: no documentary evidence exists in a vacuum.

Every text has, well, a context.

(Think about the words text and context.)

The Epstein files are not a disinterested archive.

The documents were collected for a purpose and were stored for a purpose.

According to the relevant legislation, the disclosed documents comprise “all unclassified records, documents, communications, and investigative materials in DOJ’s possession that relate to the investigation and prosecution of Jeffrey Epstein”.

So one question that can be asked of the documents disclosed so far is: do they explain the prosecutorial decisions (and also the defense and any judicial decisions) in respect of the “the investigation and prosecution of Jeffrey Epstein”?

If there is a gap between what has been disclosed and what these documents need to explain, then one can get a sense of what documents have not (yet) been disclosed (whether for good reasons or bad).

Of each document one should ask: how does this document relate to “the investigation and prosecution of Jeffrey Epstein”?

For if the document does not relate to the that investigation and prosecution, then it should not have been collected, and it would not have been disclosed.

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From a cynical perspective, there is always corruption in and around government.

What seems to have been revealed with these United Kingdom disclosures emails is clumsiness and arrogance.

A less clumsy and less arrogant approach would have meant such emails never existing.

Westminster and Whitehall is full of leaks: off the record briefings and so on.

There is complex and thriving entire unofficial information economy in SW1.

The sort of state information seemingly forwarded by Mandelson to Epstein is similar to documents which are routinely forwarded or briefed to journalists and advisers and lobbyists and researchers and think tanks.

“Sources close to….”

“Friends of…”

“Whitehall insiders say…”

Such unauthorised communications and disclosure are rife in Westminster and Whitehall.

What Lord Mandelson appears to have done is an especially significant breach involving highly market sensitive information.

But if so, its significance is really of scale, and not of type.

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There appears to be many documents covered by the Epstein files disclosure legislation that, contrary to the terms of the statute, have not been disclosed.

No government discloses adverse information easily or voluntarily, or indeed often at all.

Especially if, as with the Trump administration, there is a generally casual and indeed defiant attitude towards mandatory legislation and court orders.

Maybe there will inadvertent disclosure of documents that will seriously damage the Trump presidency, if such documents actually exist.

But it is difficult to believe that the (current) federal government would knowingly disclose such documents, regardless of what the courts and Congress say.

Little or nothing, however, can stop a government disclosing documents that adversely affect others.

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Every document has a context, and every disclosure also has a context.

And so the questions to always ask are:

– what does the document relate to, and what does it not relate to?

and

– why was this document disclosed – now and by whom and for what purpose?

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Thinking about what has happened in Minnesota

27th January 2026

For the last few weeks those of us outside of Minnesota have had glimpses via social media of the street violence and other thuggery of federal government agents.

As this blog has said before, it is as if we are Christopher Isherwood observing the violence and other thuggery in the streets of early 1930s Berlin. There is what we could see – but there was also what that indicated about what we could not see, and about what may happen next.

As it happens, two gross incidents were actually caught on camera and footage quickly circulated on social media: the summary executions of Renée Good and Alex Pretti.

The shared footage showed both killings to be murders, notwithstanding the lies immediately asserted by federal government figures and their supporters.

Federal government figures and their supporters wanted people to disbelieve what they could see, and to believe what they were told instead.

It was a sheer test of reality: you had to choose between the horrific obvious truth or the comforting official untruth.

And it was not obvious that many would pass this test.

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The lies told by federal government figures and their supporters about the murders of Good and Pretti had certain features.

One feature was the confidence that the lies would be adopted by others, even if not believed – that the lies would be sufficient for subservient mainstream media outlets to “both sides” the issue.

To its disgrace, the British Broadcasting Corporation even led with “analysis” slop about “sharply contradicted narratives”.

(Source)

The federal government figures and their supporters promoting these lies had every reason to believe this tactic would work, for it has worked so many times before.

But this time the lies did not work

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One reason the lies did not work was because of another feature of those lies.

The lies come from a certain type of superficial politics.

For example, federal government figures and their supporters talk about “free speech” whilst using the law in various ways to silence and punish unwanted speech; they talk about “non-intervention” but clap and cheer at casual use of lethal force abroad; they talk about “free trade” and “free enterprise” while nodding along with erratic tariff setting; and so on.

Fine-sounding words and phrases which appear to be about first principles are in fact meaningless slogans.

These people simply do not think-through what they are saying – or they don’t care about what they are saying, which is much the same.

And this is where they here came a cropper, to use a British term.

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One immediate impulse of federal government figures and their supporters in respect of the killing of Alex Pretti was to blame the fact he had a legally possessed gun.

How they must have been so happy at coming up with this line, to combat the concerns of those horrified at the murder.

But so eager were they to “own the libs” they forgot about those who own the guns.

Their snap response was a contradiction of the rights which many in the United States believe to be protected by the second amendment – often small-c conservatives and Republican party supporters.

The witless federal government figures and their supporters did not realise the import of what they were saying in the rush to defend the federal agents who murdered Alex Pretti.

Often federal government figures and their supporters get away with a superficial approach to political principles – but here they tripped up very badly in the eyes of their natural supporters.

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The lies could not hold.

News reports began to mount of Republican politicians who would not be satisfied with what they were being told to believe.

The camera footage was plain; the lies made no sense.

Something seemed to snap.

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One theme of this blog and my posts elsewhere is that policing a large population is not easy.

I was brought up in the 1970s and 1980s Birmingham of the notorious West Midlands Serious Crime Squad:

And also during the Troubles, where the Royal Ulster Constabulary and other organs of the British state had little or no legitimacy or support with a significant portion of the people of the north of Ireland/Northern Ireland.

Policing and law enforcement generally requires the consent or at least the forbearance/acquiescence of the community.

Even the hateful and cruel Gestapo and the Stasi derived part of their power from the support – even enthusiasm – of many in their respective communities.

But one thing police or law enforcement agents should avoid is actively alienating the policed.

Casual and provocative brutality at scale is not a sustainable model for any police force or law enforcement agency.

It prompts counter networks of opposition and a loss of legitimacy among neutrals and the usually deferent.

And as in the north of Ireland/Northern Ireland, policing simply breaks down for significant portions of the local population.

*

There now seems to be de-escalation in Minnesota.

The local head of the border force has been demoted and moved elsewhere.

The president’s spokesperson is making conciliatory noises.

The tide seems to have turned, leaving various fools and knaves exposed on the beach.

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If there is de-escalation then that will be a significant set back for the president and his adviser Stephen Miller in seeking to contrive a pretext for invoking the Insurrection Act.

As I set out here this is their obvious objective – but they also need to have a sound enough basis to survive legal challenge.

It would seem that they thought that fomenting disorder by heavy-handed use of the National Guard and now ICE/Border Patrol would create the circumstances where they could plausibly invoke the Insurrection Act.

But the thing about disorder is that it is, well, disorderly.

By definition, disorder does not go to plan.

And the disorder fomented in Minnesota has resulted in it being now harder for Miller and others to invoke the Insurrection Act: dishonesty has been exposed, natural supporters upset.

The cause of disorder is seen widely as the government itself, and not supposed “insurrectionists”.

Wise politicians avoid instability, as it rarely works out as instigators of instability intend.

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Just as this eventful month of January has seen something seemingly snap in international affairs, with how Trump was forced to climb down over Greenland and the prime minister of Canada setting out a coherent alternative vision to being bullied by the United States, something seems to have snapped internally in the United States too.

Ruptures inside, and out.

Of course, federal government figures and their supporters are still there, and they can find new ways to misuse and abuse power.

They will still seek to swagger and to intimidate.

Indeed, things may even get worse.

But both at home and abroad there has been a loss of deference to their aggression and dishonesty.

And that deference will be difficult for federal government figures and their supporters to regain easily.

Federal government figures and their supporters should remember that hubris is often followed by some nemesis or other.

***

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

My posts this week

24th January 2026

A busy week for law and policy commentators.

*

The new ICE Age (Prospect)

prospectmagazine.co.uk/ideas/l

*

Why Trump has not yet invoked Insurrection Act (NS)

newstatesman.com/international

*

Why Hillsborough law families are right (Prospect)

prospectmagazine.co.uk/ideas/l

*

Trump – neither rhyme nor reason
(Own blog)

“…neither rhyme nor reason” – how we are currently in a situation where precedents and norms and laws and rules and theories offer no assistance.

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When the United Kingdom annexed a north Atlantic island
(Own blog)

When the United Kingdom annexed a north Atlantic island

When the United Kingdom annexed a north Atlantic island

22nd January 2026

The 1955 story of what has been described as the last expansion of the British Empire.

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This is the story of how a powerful nation annexed an island in the north Atlantic.

The powerful nation was the United Kingdom, and the year was 1955.

The annexation was ordered by the Queen:

On arrival at […]  you will effect a landing and hoist the Union flag on whatever spot appears most suitable or practicable and you will then take possession of the island on our behalf.

A landing was duly effected, and a Union flag duly hoisted by a Royal Navy Lieutenant Commander.

That Lieutenant Commander declared:

In the name of Her Majesty Queen Elizabeth the Second, I hereby take possession of this Island of […]

A plaque was placed on the island:

BY AUTHORITY OF HER MAJESTY QUEEN ELIZABETH THE SECOND, BY THE GRACE OF GOD OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND OF HER OTHER REALMS AND TERRITORIES, QUEEN, HEAD OF THE COMMONWEALTH, DEFENDER OF THE FAITH, ETC. ETC. ETC. AND IN ACCORDANCE WITH HER MAJESTY’S INSTRUCTIONS DATED 14. 9. 55. A LANDING WAS EFFECTED ON THIS DAY UPON THE ISLAND OF […] FROM H.M.S. VIDAL.

THE UNION FLAG WAS HOISTED AND POSSESSION OF THE ISLAND WAS TAKEN IN THE NAME OF HER MAJESTY. [Signed] R H Connell, CAPTAIN, H.M.S. VIDAL, 18 SEPTEMBER 1955

The possession taken of this island “in the name of Her Majesty” has been described as the last territorial expansion of the British Empire.

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So what was this Atlantic island that the Queen ordered to be possessed and which was then taken with all this pomp and circumstance?

The island – more an islet really – was Rockall.

Rockall.

Rockall.

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One may think that a small uninhabitable granite island – sorry, islet – really was not worth all this elaborate ceremony.

One may think that “THE UNION FLAG WAS HOISTED AND POSSESSION OF THE ISLAND WAS TAKEN IN THE NAME OF HER MAJESTY” and so on was rather absurd.

Some at the time certainly thought so.

Here are the immortal Flanders and Swan:

The fleet set sail for Rockall,
Rockall,
Rockall,
To free the isle of Rockall,
From fear of foreign foe.
We sped across the planet,
To find this lump of granite,
One rather startled Gannet;
In fact, we found Rockall.

So, praise the brave Bell-bottoms,
Bottoms,
Bottoms,
Who saw Britannia’s Peril,
And answered to her call,
Though we’re thrown out of Malta,
Though Spain should take Gibraltar,
Why should we flinch or falter,
When England’s got Rockall.

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The story then gets even more absurd – at least from a constitutional perspective.

For the United Kingdom government then had to decide how to legally treat this acquisition.

And some clever person decided that this islet midway between Iceland and Ireland would be…

…part of Scotland.

Not only would it be treated as part of Scotland, it would be treated as if there was nothing distinctive about it at all.

Just another part of Scotland.

Here is the splendid Island of Rockall Act 1972:

The granite islet, by the legal magic of primary legislation, “shall form part of the District of Harris in the County of Inverness, and the law of Scotland shall apply accordingly.”

Later, by the mundane paragraph 202 of schedule 27 to the Local Government (Scotland) Act 1973 Rockall was shunted from Harris to form part the Western Isles.

It was as if it were an utterly normal local government boundary reorganisation.

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The effect of this legal conjuring is that, from a legal perspective, Rockall is supposedly as much of the United Kingdom as any other Scottish island.

When Greenpeace landed there for a protest in 1997, a Foreign Office spokesperson is quoted as saying:

Rockall is British territory. It is part of Scotland and anyone is free to go there and can stay as long as they please.

And a spokesperson for the Western Isles council said:

There is no obvious reason why we would feel obliged to interfere in what is happening. We have no powers to forcibly remove them and they do have rights to be there

Glorious stuff.

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Behind all this legal and constitutional silliness, however, was some hard policy seriousness.

In 2012 the Foreign Office said:

The UK claims a 12 nautical mile territorial sea around Rockall, which merges with a 200 nautical mile Extended Fishery Zone, 200 nm continental shelf and other zones, draw from baselines on the west coast of the Western Islands, off the mainland coast of Scotland.

And so the United Kingdom insists on licences for Irish fishers and blocks those without a licence:

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And of course, it is not just fish.

There is the question of oil:

In 2009 the United Kingdom put in a submission to the United Nations for what one news report described as “thousands of square miles of the seabed around the Atlantic outcrop of Rockall”.

This claim is not accepted by Ireland or Iceland.

And against the United Kingdom on this is the 1982 United Nations Convention on the Law of the Sea, which provides (emphasis added):

Article 121

Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

As it stands, the UN Commission on the Limits of the Continental Shelf still has not made a final determination on the United Kingdom’s submission.

Like Rockall itself, the United Kingdom’s formal claim to oil rights seems to be in the middle of nowhere.

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Another north Atlantic island, and the claim of a powerful nation, has been in the news recently.

Perhaps one way of resolving President Trump’s claim to Greenland would be to give him Rockall instead.

And he can take possession of it in, say, the same way Napoleon took possession of St Helena.

*

Why should we flinch or falter,
When Trump has got Rockall.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.