Peter Krausz was born in Romania in 1946. He studied mural painting from 1964 to 1969 at the Bucharest Institute of Fine Arts. Since 1970, he has made Montreal his home. His diverse artistic production includes painting, drawing, installation, and photography. From 1980 to 1990, he was the curator of the Saidye Bronfman Centre Art Gallery and a teacher at Concordia University. In 1991, he joined the faculty at the University of Montreal where he is now a tenured Professor of Fine Art in the Art History and Cinema Studies Department. Since 1970, Peter Krausz has participated in numerous solo and group exhibitions in Montreal and across Quebec, Canada, and the United States, as well as in Europe. His works can be found in private and prominent public collections such as The Montreal Museum of Fine Arts, The National Museum of Fine Arts in Quebec, The Montreal Contemporary Art Museum, The Jewish Museum in New York, and many others. He is a member of the Royal Canadian Academy. Gabriella Kardos: You grew up in an artistic household in Romania, your father a renowned painter and professor, your mother an art historian, curator at the National Gallery of Art. You must have been exposed to discussions about art and art history from an early age. How did that shape your desire/choice of becoming an artist?   Peter Krausz : It was not much of a choice. Like Obélix in Goscinny and Uderzo’s Astérix le Gaulois  [ Asterix the Gaul ], one could say that I fell into the pot from an early age. I listened and later participated in the weekly discussions between painters, sculptors, art historians, and so on in our very open house and started drawing and copying Velázquez paintings from my father’s art books when I was 5 years old. As a teenager, I often accompanied my dad to the month-long summer camps for art students in different areas in Romania, where I was painting and drawing the countryside. So, it was more of a natural development, leading towards the entry exam to the Art Institute in Bucharest.

Currently Professor of Government at King’s College London, Professor Vernon Bogdanor is a leading expert in British constitutional politics and history and has received a CBE in recognition of his extensive contribution to the field. In his most recent book, titled Britain and Europe in a Troubled World , published in 2020, Professor Bogdanor traces Britain’s historical relationship with the European Union in order to understand how Brexit came to be. In this interview, Professor Bogdanor tackles the constitutional issues that the United Kingdom is likely to face in a post-Brexit era, the different lessons learnt as a result of the referendum vote in 2016, and the role that the monarchy has to play in the current British parliamentary democracy . This interview was conducted across 28 and 29 April 2022. CJLPA : What brought you to research and understand British politics? What fascinated you the most about British politics or the British political system? Professor Vernon Bogdanor : Our very strange constitution. The Queen once said that the British constitution has always been a puzzle and always will be. I have tried to elucidate that puzzle. We are in fact one of just three democracies in the world which do not have constitutions. The other two are New Zealand—whose population is half that of Greater London—and Israel, although the Israelis are working towards a constitution. Now, some people in Britain ask, ‘Should we have a constitution?’ But in a sense, that is an absurd question. The real question is: ‘What is there about the air in Britain that means we should not have a constitution, not do what every other country does?’ This problem has become more acute since we left the European Union (EU). In my view, when we were in the EU, we were in fact living under a constitution, namely the treaties of the EU, which provide for a division of power both at the centre between the Commission, the Council of Ministers, the Court of Justice, and the Parliament, but also territorially between the EU itself and the member states. Also, in recent years, the EU has yielded the protection of rights in the European Charter of Fundamental Rights which was enacted in 2009. That led to a remarkable episode in British constitutional history which has not been very much noticed. In Benkharbouche v. Secretary of State for Foreign Affairs [1] , Ms. Benkharbouche claimed against the Sudanese embassy unfair dismissal, failure to pay her the national minimum wage and holiday pay, as well as breaches of the Working Time Regulations. The Sudanese embassy claimed immunity under the provisions of the 1978 State Immunity Act. But the Supreme Court ruled that sections of the Act were incompatible with Article 6 of the European Convention providing for a fair trial. The remedy for this would be a declaration of incompatibility which is not a strictly legal remedy, since it has no legal effect. But Article 47 of the EU Charter of Fundamental Rights provides that if rights had been violated by the Convention, they have also been violated by the Charter. So, the relevant parts of the State Immunity Act were disapplied. For the first time in British history, the Court disapplied part of an Act of Parliament because it conflicted with human rights. That, I think, would have Dicey turning in his grave. It was something new and unprecedented. As we have now left the EU, the Charter no longer applies, but Benkharbouche, nevertheless, is an important precedent. The European Charter protects a far wider range of rights than the European Convention. The Convention was enacted in the early 1950s and human rights are, in my view, a dynamic phenomenon. For example, in those days there was no thought of the right to protect the environment which is in the European Charter. Few thought of the right to academic freedom which is in the European Charter. But the most important right is the right to equality in terms of gender, sexual orientation, race, religion and so on which is not in the European Convention. There is also a right to healthcare in the European Charter but not in the Convention. The Convention provides a right to education but not healthcare. Leaving the EU took us out of a constitutional system. We have incorporated almost all EU law into our own law, so that the government and parliament can decide what they want to keep, what they want to modify, and what they want to repeal. That is, of course, a huge task. Incorporation itself is nothing new. For example, our ex-colonies incorporated British law so that they could decide which British laws they wanted to keep. But when they did that, it was because they wanted to develop a constitution of their own. We have done something perhaps unique in the democratic world and instead of entrenching we have been dis-entrenching. We have moved away from a constitutional system to an unprotected constitution. This is emphasised by the fact that one part, almost the only part I think, of EU law that we have not incorporated is the European Charter of Fundamental Rights. This means we have moved from a system which protects rights, to one which does not protect rights. We do have the European Convention, but the way we have adopted it is rather different from almost every other country because judges are not given the right by the Human Rights Act to disapply legislation conflicting with the Convention. All they can do is to issue a declaration of incompatibility. That is just a statement which has no legal effect, and it is then up to Parliament to decide whether to take action. Parliament has a special fast track procedure by which it can take action if it so wishes, but courts in other European countries have much greater powers because they can disapply legislature. This raises a very interesting question because the other 27 member states of the EU do, of course, retain the European Charter. So, I would ask this question: Are our Members of Parliament (MPs) so much more sensitive to human rights than the legislators of other countries in Europe that they can be entrusted with this very important function? I will leave the answer to this question to those reading the interview! It is worth stressing that rights are not solely for nice people like ourselves, but also for very small minorities who may not necessarily be very nice, for example, prisoners, suspected terrorists, suspected paedophiles, and so on—also, asylum seekers, a very small minority not effectively represented in Parliament, also have rights. Brexit raises this issue of whether we should continue to live under an unprotected constitution which does not effectively protect human rights. And there is a further question arising from Brexit. Does the devolution settlement need further protection in Scotland, Wales, and particularly in Northern Ireland? I will discuss devolution a little later. With our strange constitution, law and politics are closely intertwined. Much more of our constitution than in other countries is based on convention. These conventions, in turn, often depend upon popular feeling. For example, we have the case now of Boris Johnson and Partygate. A Prime Minister who has deliberately misled Parliament must, so the Ministerial Code declares, resign. But this convention depends in large part on popular feeling. Are people angry enough to protest to their MPs or do they say that it does not matter too much? A great writer on the constitution, not as well-known as Bagehot, but well worth reading, Sidney Low, author of The Governance of England first published in 1904, said, ‘We live under a system of tacit understandings, but the understandings are not always understood’. That seems to me a very perceptive point about the British constitution. CJLPA : I am assuming on the basis of the points you have just mentioned, do correct me if I am wrong, you are a supporter of a codified constitution in the UK. In light of this, has this been received or acknowledged by figures in the political system? Are there supporters for a constitution at the moment? I can imagine that the current opposition might not be keen on that idea. VB : When we had a Labour government, Gordon Brown who was Prime Minister from 2007 to 2010—and I think it no accident that he came from Scotland—favoured a constitution. If he had been re-elected in 2010, he would have tried to enact one in 2015 which was the 800th anniversary of the Magna Carta—but he was not re-elected. The Liberal Democrats have long been in favour of a constitution, and I think some in the Labour Party are. Perhaps the longer Labour is in opposition, the more likely it is to support a constitution. But the Conservatives are, in general, not in favour, partly because they are the natural party of government in the sense that they tend to be in power most of the time. I mentioned that it was not an accident that Gordon Brown, being Scottish, was in favour of a constitution, for many Scots have never accepted the idea of the sovereignty of Parliament. They say that it is the Scottish people who are sovereign, and that point has been tacitly accepted by Westminster. There was a referendum in Scotland on independence in 2014. The Scots voted against it, but had they voted for it, they would have become independent. There was also a referendum before devolution was introduced. In both cases it was accepted that it was for the Scots to decide, even if their decision went against the wishes of Westminster. So, for the Scots, the central principle is perhaps less the sovereignty of the Westminster parliament than the sovereignty of the Scottish people. That is also accepted in Northern Ireland. If a majority in Northern Ireland were to decide that it wished to join with Ireland, that would be accepted by Westminster. An American once said that in politics where you stand depends upon where you sit. Perhaps that is true in Britain because it may be that the sovereignty of parliament is primarily an English concept. The Welsh government favours a quasi-federal system for the United Kingdom (UK). The Scots believe in the sovereignty of the Scottish people. In Northern Ireland there is a divided community, but there also, the principle of the sovereignty of parliament is overtaken by the principle of the sovereignty of the people. There are, however, two different views about the Northern Ireland constitution depending on whether you are a unionist or a nationalist. CJLPA : Say Gordon Brown is attempting to get re-elected again and he has the idea of codifying the constitution within his manifesto. What is the extent of the risk of the codification of the constitution becoming a politicised issue in the media? VB : I doubt if there is much risk. Enacting a constitution would be a long process because it would require popular consent. Most people in England do not think much about the constitution, although they do in Scotland and Northern Ireland. We would first have to have a body to draw up an agenda; then you would need a Royal Commission which would have to travel around the country having evidence sessions. That would be a kind of learning exercise for the public. Then the government would draw up a constitution and then there would have to be a referendum, probably with a majority needed in all parts of the UK, unlike the Brexit referendum. So, it would be a long process. I do not think it would necessarily be party political. I think, however, that it will be a long time before we get a constitution. It is not an immediate issue, and it is very low on most people’s priorities. Human rights also are very low on most people priorities, though one lawyer, former MP and former attorney general Dominic Grieve, has made the interesting suggestion that the European Convention should include a right to healthcare as the European Charter does, in addition to the right to education. The reason is that the right to healthcare would affect large numbers of people, and therefore it would be more likely that more people would feel they own the Convention, which they do not at present now because they think of it as defending disreputables such as criminals. But they would then own it and there would be more respect for human rights. Otherwise, constitutional issues are a minority concern. There are no mass meetings in Trafalgar Square with crowds clamouring for a constitution! CJLPA : If a human rights issue is quite prominent and has a lot of media following, perhaps it could grab some attention? VB : Only amongst a small group of the intelligentsia, the academics—the chattering classes if you like, not amongst the people as a whole. I do not think academics are very representative of public opinion in general or necessarily have much insight into public opinion. Opinion polls show that enacting a constitution is not a priority. CJLPA : I think you would agree with me that there have been many, but not all, British politicians who have been out of touch with the citizens that they are trying to represent: take the recent Partygate scandal that you mentioned earlier and the fact that it is currently difficult to punish a misbehaving government, or Brexit where even though the referendum was a close result, MPs were evidently not representative of the UK because a majority of them actually wanted to remain. In light of that, to what extent is the current UK political system truly a representative democracy? VB : I think your introduction of the referendum is very important. For, as you say, the majority of MPs were against Brexit, and the government was against Brexit. For the first time in British history, Parliament was enacting legislation in which it did not believe. Legally, Parliament is still sovereign, it could have ignored the referendum, it would not have been unlawful to do so. But, in practice, it was not possible to ignore the referendum. So, Brexit is a milestone in our constitutional history. Not only was Parliament no longer in practice sovereign, it was shown not to be representative of the people. As you know, many in the British political elite were fervent Remainers and did not want to accept the result. The EU does not like referendums either. In 1974, shortly before we were to have our first referendum, the ex-President of the European Commission Monsieur Jean Rey said these matters should be left to trained people. ‘You cannot’, he said, ‘have a system in which housewives should be allowed to decide the future of Britain!’. A lot of the arguments against referendums, in my opinion, are similar to the arguments used against extending the suffrage—that the people are ignorant, that they do not understand the issues, and that political decisions are best left to elites. A French reactionary, Joseph de Maistre, declared that the principle of the sovereignty of the people—which is now a part of our constitution I believe—is so dangerous that even if it were true, it would be best to conceal it! Not only is the referendum now part of our constitution, but there are, what we might call, ‘shadow referendums’, referendums which were not held because of fear of the result, but which nevertheless influenced the political agenda. For example, when Tony Blair was Prime Minister from 1997 to 2007, he very much wanted Britain to join the Euro, but he believed that this required a referendum. However, he never put the issue to referendum because there was not one single opinion poll which showed a majority in favour of the Euro. You may say looking at the experience of continental countries, particularly Mediterranean countries such as Spain, Portugal, Italy, and Greece, that we were lucky not to join the Euro! CJLPA : On the topic of democracy, I would like to ask a question specifically about the role of the British monarchy because monarchs by now are the exception, not the rule. Especially now, in Britain, it is quite difficult to support the monarchy when its role in the UK constitution might be minimal but its influence, as we have seen, has proven to be plenty. What role, if any, does the monarchy have to play in a democratic system? VB : The main role of the monarchy is not constitutional. Its constitutional powers are almost nil. But as well as being head of state, the Queen is head of the nation. She can, as it were, represent the whole country to itself. By contrast, if you have a president, you either have a president such as Macron in France or Biden in America who is head of the executive. They represent not the whole country, but just half of the country. Or you can have a constitutional president without political power which, for example, Italy and Germany have. I suspect that very few people could name the presidents of Italy and Germany, I certainly could not, and the position is usually given to a harmless retired politician who is put out to grass. Do we want that here? President Cameron or President Blair? They could not represent the whole country. This is particularly important with the devolution settlement because any elected person would be either English, Scottish, Welsh, or Northern Irish. The Queen is none of these and all of them at the same time. We are lucky in the Queen because she instinctively understands, what you might call, ‘the soul of the British people’, which it would be very difficult for a politician to do. Unlike a politician, she has no party-political history. No one knows whether she is Labour, Liberal Democrat, or Conservative, or what her views are on politically controversial matters. I think we are fortunate to have a constitutional monarchy. The constitutional monarchies in Europe are very stable, moderate countries: some Scandinavian countries, Britain, the Benelux countries, and Spain. We are lucky that we have never had a revolution because revolutions or defeat in war tend to get rid of monarchies. For example, in Italy the monarchy was removed after the defeat in the Second World War because the king was thought to be associated with fascism, in Germany after the First World War, and in France after the revolution. We are lucky, perhaps because we are an island, that we have never been involved in revolutions or upheavals. In 1945, when we had the first Labour majority government, the American president Harry Truman was visiting Britain and he said to King George VI, ‘I see you’ve had a revolution here’, and the King said ‘Oh no we don’t have things like that’. CJLPA : You say that the monarchy is the ‘soul of the British people’. I would perhaps counter that. You mentioned the Nordic countries and the role that their monarchy has to play. I would say that the level of influence is completely unparalleled. It is true that the power is minimal, but the influence and the presence is not. VB : I do not know if the Queen has much political influence. When has she exerted political influence? I do not think that is right. CJLPA : I was thinking more of the case of Prince Charles. VB : Yes, that is interesting. He has had influence, but not on party political matters. His technique is to raise an issue which he thinks has been hitherto ignored by politicians, for example, the environment and climate change. When the politicians do take up the issue, he steps back. He has also spoken on a number of other issues that he thinks important which are not party political, for example architecture, teaching Shakespeare in schools, and so on. He has said controversial things, but they are not controversial in the party-political sense. He has never spoken publicly about Brexit or whether we should have a Conservative government or Labour government. He is very careful in all his speeches not to appear partisan. He does not speak on advice like the Queen but, out of courtesy, he shows his speeches to ministers. I suspect that if ministers said, ‘Well, look, this does entrench on government policy’, he would back down. He has known since birth what his role will be, and he has been trained and brought up in the constitutional tradition. He has not been party-political, but he has influenced opinion in other ways. I agree with you on that. CJLPA : With race and identity coming up a lot, regarding the institution itself and its imperialist past, rather than the Queen more specifically or the members of the family, I think people disagree that it is representative of the British people. VB : The monarchy in Britain is unlike the other monarchies I have mentioned because it has an international dimension thanks to the existence of the British empire, now the Commonwealth. Of the 54 countries which are members—around a third of the world’s population—15 of them, now that Barbados is a Republic, are Commonwealth monarchies. The rest are republics. The Commonwealth is a voluntary organisation of equals, while the empire was based on domination. But the empire cannot have been quite as terrible as some suggest if almost all of the colonies have voluntarily agreed to join the Commonwealth. The only former countries ruled by Britain that have voluntarily left the Commonwealth are Burma, now Myanmar, and Ireland. Two counties which were not part of the empire—Mozambique and Rwanda—have joined. The Commonwealth gives the monarchy an international dimension. The majority of people in the Commonwealth are not white and not Christian. This means that the monarchy must stand and does stand for racial and religious equality. In her Diamond Jubilee in 2012, the Queen’s first visit was to Leicester which is an example of a multiracial city where integration has proved successful. And in 2004 she made a particularly interesting Christmas broadcast. She spoke of the parable of the Good Samaritan, the implication of which was clear. ‘Everyone is our neighbour, no matter what race, creed or colour. The need to look after a fellow human being is far more important than any cultural or religious differences. Most of us have learned to acknowledge and respect the ways of other cultures and religions, but what matters even more is the way in which those from different backgrounds behave towards each other in everyday life’. She then went on to say: It was for this reason that I particularly enjoyed a story I heard the other day about an overseas visitor to Britain who said the best part of his visit had been travelling from Heathrow and into central London on the tube. His British friends, as you can imagine, were somewhat surprised, particularly as the visitor had been to some of the great attractions of the country. ‘What do you mean?’, they asked. ‘Because’, he replied, ‘I boarded the train just as schools were coming out. At each stop children were getting on and off—they were of every ethnic and religious background, some with scarves or turbans, some talking quietly, others playing and occasionally misbehaving together, completely at ease and trusting one another’. ‘How lucky you are’, said the visitor, ‘to live in a country where your children can grow up in this way’. We can also see the influence of the monarchy in the Queen’s broadcasts on COVID and in broadcasts commemorating D Day and VE Day where she was able to speak for the whole country. In my opinion, the case for constitutional monarchy is unanswerable. CJLPA : To what extent did the countries in the Commonwealth remain within the Commonwealth for economic reasons? VB : That is part of the argument, but one should not exaggerate it because, after all, when countries become independent, they do not ask whether they will be better off or worse off. If you had said to the Nigerians in the 1960s, ‘You will be economically worse off outside when you are no longer a British colony, when you are no longer ruled from Westminster’, they would have said ‘That’s completely irrelevant. We want to govern ourselves’. The Indians and other newly independent countries would have said the same. So, I would not overstress that argument. The Commonwealth is in a way a sentimental organisation which does a great deal of good because one of the main problems in the world is the relationship between people of different ethnic groups and religions. It is often forgotten that the Queen’s Christmas broadcast is not delivered in her role as Queen of Britain but as Head of the Commonwealth in which a majority are neither white nor Christian. I think it must be valuable to bring together people of different countries and different ethnic groups. CJLPA : We know that the Northern Ireland protocol is a particularly precarious issue, and a very delicate part of the Brexit process. We know it has been ruled by the High Court and the Court of Appeal in Northern Ireland as legal. If it is not constitutional, on the other hand, what does that mean for Brexit as a whole, or even just the UK constitution in general? VB : What it means is that at the very least the Protocol must be radically amended. The Protocol may or may not be constitutional. But the courts were asked to pronounce on whether it is lawful—a different matter. They have said that it is lawful, but it does not follow that it is constitutional. After all, a statute that is incompatible with the Human Rights Act is lawful, but it is not constitutional. It would be lawful for the government to have ignored the Brexit referendum, which was an advisory referendum. But most of us think it would not have been constitutional. CJLPA : What is likely to happen from here on in with the Northern Ireland protocol? What are we likely to see? VB : The Northern Ireland Protocol is a consequence of Brexit. Northern Ireland is the only part of the UK with a land border with an EU country. That has become of greater importance since Brexit because Britain will probably diverge from EU rules and regulations. The question is whether the regulatory and customs border should be on the island of Ireland or in the North Sea. Wherever it is, there is going to be trouble because if it is in the island of Ireland, the Irish nationalists are going to be annoyed. If, as is the case, it is in the Irish Sea, the unionists will be annoyed. Brexit goes against the spirit of the Good Friday Agreement or Belfast Agreement—I should say that there is no agreement on what it is to be called. If you are unionist you will call it the Belfast Agreement, if you are nationalist you will call it the Good Friday Agreement. But whatever it is called, the Agreement was an attempt to resolve the Irish problem. It enabled residents of Northern Ireland to identify as British, Irish, or both, and to enjoy Irish citizenship as well as British citizenship. But, with Brexit, if someone decides on Irish citizenship, she cannot access in Northern Ireland the rights of an EU citizen. She cannot, for example, access the European Charter for Fundamental Rights. So, Brexit does complicate the Irish problem. Both John Major and Tony Blair said in Northern Ireland that this would be a consequence of Brexit. Northern Ireland, as it happens, did not vote for Brexit: 56% voted to stay in the EU. But Britain is not a federal state and so Northern Ireland was overruled by the rest of the country. The Northern Ireland courts have been considering the contention by the unionists that the Protocol is unlawful because it goes against the Act of Union of 1800 which provided that there should be no customs barriers between Britain and Ireland. The courts have said that the relevant part of the Act of Union was overridden by the Withdrawal Act which is also a constitutional statute. Parliament well knew what it was doing when it enacted the Protocol, and in so doing, it implicitly repealed the relevant part of the Act of Union. The argument against the constitutionality of the Protocol would be that the Act of Union is absolutely fundamental because it is constitutive of the UK itself. So, it cannot be implicitly repealed but has to be explicitly repealed. That issue may go to the Supreme Court, I do not know whether leave to appeal to the Supreme Court has been given but the unionists are seeking it. CJLPA : Because of the fact that it was brought by staunch unionists to the courts, is conflict almost inevitable? VB : Yes. The withdrawal agreement is a victory for the Irish nationalists. It is a zero-sum game. The Good Friday Agreement, or the Belfast Agreement, tried to avoid the zero-sum game. Both unionists and nationalists could win, one could be both British and Irish. But, in relation to the Protocol, one can understand the unionist position, since the Protocol divides the UK economically. CJLPA : Regardless of how the Northern Ireland protocol is likely to turnout, are we likely to see a chain reaction of similar, but more sovereignty-related, issues in the other devolved nations? VB : Yes, Brexit has caused renewed conflict between Westminster on the one hand and Scotland and Wales on the other, for this reason. When the devolution settlement was made in the late 1990s the assumption was that Britain would stay in the EU. The devolution of some functions, for example, agriculture and fisheries, was fairly meaningless because almost all policy in those areas was determined by Brussels, so there was no real scope for an independent policy in these areas from Edinburgh or Cardiff or, indeed, Westminster. In theory, with the incorporation of EU law back into Britain, all EU powers relating to devolved matters should go to Scotland and Wales. But this raises a problem since we cannot have, for example, four different systems of agricultural subsidies in the UK, especially when agriculture will almost certainly be the subject of trade negotiations. Suppose we seek an agreement with America. The Americans would want to ensure that they had access to the whole of the UK market, not just England. So, in the Internal Market bill, the government reserved some powers which had been devolved. There has been much annoyance in Scotland and Wales and their governments have tried to amend the law through the courts. They have, however, not succeeded since we do not have a federal system. So, Parliament can still legislate on matters devolved to Scotland and Wales. But in Scotland and Wales many say, ‘This may be lawful but it’s unconstitutional, you shouldn’t be legislating on devolved matters without our consent’. So, Brexit has raised problems in Scotland and Wales as well as in Northern Ireland. CJLPA : On a similar note, there is the looming possibility of a second independence referendum. In Scotland, Nicola Sturgeon has promised the Scottish people that in a stable post-COVID era she would propose to them the question of independence. VB : That is possible, but contrary to what many think, Brexit makes independence more of a gamble because there would then be a hard border between Scotland and the rest of the UK. The rest of the UK is Scotland’s largest trading partner: almost all its exports go to the rest of the UK, not to the Continent. So, independence could be economically catastrophic for Scotland. In addition, Scotland gets more per head in public spending than England thanks to the Barnett formula. And she would face the same problem she faced in 2014 of what her currency should be. If it were to be the pound, she would have her monetary policy controlled from London. A similar arrangement caused Greece and Italy many problems with the EU. They were restricted in their economic policy since they had no control of monetary policy which lay with the European Central Bank. If Scotland had her own currency, interest rates might rocket sky high, since the new currency would be such an uncertain quantity. If Scotland joined the Euro, she would have to reduce her budget deficit to around 3%. Her budget deficit is now at around 7 or 8%. The cuts in public expenditure or increases in taxation would need to be huge. They would make George Osborne, the austerity Chancellor, look like Santa Claus! Scotland would not get the benefit of Margaret Thatcher’s EU rebate either, I suspect. So, independence is a less viable project than when Britain was in the EU, but, as I mentioned a moment ago, it might be argued that these economic factors are not really fundamental when it comes to independence. When India and Nigeria became independent, they did not ask whether they would be better off of or worse off. Nor did Ireland when she became independent. Pressure for independence seems to be receding a little at the moment, though it is stronger amongst younger voters than older ones. The current Conservative government will not grant a second referendum but if there is a Labour government dependent on the Scottish National Party (SNP), the SNP might insist on a second referendum as a price for supporting that government. So far, we have been talking about the British problem, but I think Brexit gives rise to great EU problems as well. Donald Tusk, the President of the European Council, said it was a mistake to believe that the factors leading to Brexit are not also present in other EU countries. Brexit, he said, should be a warning signal for the EU. President Macron of France—on the Andrew Marr Show in early 2017—could not guarantee that if a referendum were held in France that it would not yield the same result as in Britain—Frexit. The EU faces problems and I think the main problem is that the original model—the Jean Monnet model, the Jacques Delors model—has reached its limit. As the EU comes to entrench upon national sensitivities, it encourages a populist reaction, particularly in areas such as immigration and control of economic policy. I think it would be better for Europe to develop along Gaullist lines, as a Europe des etats , a Europe of states (De Gaulle has often been mistakenly accused of using the phrase Europe des Patries ). The Commission remains the only body that can initiate legislation. Many find that odd since it is not elected and cannot be dismissed by the voters. Some Gaullists have said that it should become a secretariat of the Council, and that seems to me sensible. The federalists, Jean Monnet and Jacques Delors, wanted the Commission to be eventually responsible to the European Parliament and the Council of Ministers to become the upper house of member states. But Europeans do not regard the European Parliament as their primary legislature. Their primary allegiance is to their domestic legislatures and the European Parliament is seen as part of an alienated superstructure – representing them not us. There is a conflict, exacerbated by the EU, between the political class and the rest. The political class favours integration but the people are sceptical. This is particularly so in France. It was first revealed 30 years ago when the French, thought to be at the centre of European integration, only narrowly accepted the Maastricht treaty. Then, in 2005, they rejected the European constitution. Nevertheless, the elites go ahead regardless and that seems to me foolish. They need to take account of popular feeling. The EU was founded in a different age, the early 50s, when there was much greater deference, and I am not sure it works as well today when there is a demand for greater accountability. So, Brexit contains important lessons for the EU as well as for Britain. CJLPA : What lessons have the member states themselves learnt? And do they have a responsibility for how Brexit played out? VB : I think they need to look at how to combat populism and I have tried to suggest how that might be done. What is remarkable in Britain, contrary to many predictions—and I was myself a Remainer – is that Brexit, paradoxically, has liberated Britain’s liberal political culture. Survey after survey has shown that the public is more sympathetic to immigration than it was. We have developed more liberal attitudes to immigration than most EU member states, and immigrants have more of a chance of finding employment here than in many other European countries. The present government contains six members from non-white ethnic minorities. Angela Merkel’s last government in 2017 had none at all. When we left the European Parliament, we took a large percentage of ethnic minority Members of the European Parliament with us. A number of European countries have none at all. Contrary to what many predicted, we have not become a more insular racist country, we have become a more liberal country. Populist forces seem to have been weakened. The EU must itself learn how to combat populism. CJLPA : After Brexit we saw many far-right parties recoil very quickly from their own plans to exit from the EU. What has the far-right learnt with regards to Brexit? VB : The far-right benefits from general alienation from government, particularly on immigration and on the fact that the EU makes it very difficult for national governments to control economic policy. In the Mediterranean countries—not so much in Italy but in Spain and Portugal and possibly Greece—the far-left has gained more. The far-left has gained in France as well. It is the entrenching by the EU on national sensitivities that is so worrying. If you look at past federal states, many have been built after war—the American Civil War, the German wars under Bismarck, the Swiss war in 1848—and took a long time to form, even in America where everyone speaks the same language. There is not going to be any sort of federation in a Europe comprising so many different national traditions, languages, and cultures for a long time. One might have got it and might possibly still get it if an inner core of the original six got together—Germany, Italy, France, and the Benelux. But there is very unlikely to be a federation of the 27 member states. CJLPA : In light of some of the negotiations being postponed to a later date, when will we see a post-Brexit life? Will we be seeing it anytime soon? VB : Brexit is a process not an event. I think the process will continue for a long time. And it will be some time before we can judge the economic and constitutional effects of Brexit. On these matters the jury is still out on whether Brexit will prove beneficial or not. The jury is also still out on the future of the UK. Will Scotland remain part of it? Will Northern Ireland? No one knows, and I am not going to predict. It is difficult enough for the historian to find out what has happened in the past let alone what will happen in the future. This interview was conducted by Teresa Turkheimer, an MSc student in European and International Public Policy at the London School of Economics and Political Science. Her main interest lies in understanding the causes and effects of inequalities that characterise the labour market today, and is hoping to pursue a career in research in the coming years. [1] [2017] UKSC 62.

The three broad categories of the title express overlapping perspectives of human difference. Read together they comprise the topic of Human Rights which is the focus of this volume. It exemplifies Lady Arden’s appreciation that The Cambridge Journal of Law, Politics, and Art is likely to expand our horizons by bringing together subjects which often sit in splendid isolation from each other. The premature loss of Michael Taggart leaves to others his insight that Norman Birkett’s judgment in the case of the slave’s grandson and peer Leary Constantine against Imperial Hotels in 1944[1] for not accommodating him because of his colour,[2] could and should have evolved into an overarching human rights principle of entitlement to equal treatment. The point was taken up by Lord Bingham in A(FC) v Secretary of State for the Home Department  (2004),[3] where he held disproportionate and unlawful the detention of non-UK suspected terrorists, when UK terrorist suspects were exempt from such arrest. In the first Oxford Essays in Jurisprudence ,   Professor Donald Harris QC (Hon) endorsed the opinions of Jeremy Bentham and Herbert (HLA) Hart that there is no concept of law beyond what is humanly created, to which in a New Zealand Privy Council appeal Lord Hoffmann added Kant’s similar conclusion: there is no law an sich . Harris responded to my initial Oxford tutorial essay about a political philosopher, reproducing what had been written about him by others, with the real point—‘yes, but what do you  think?’ That for me gave Law’s answer to its own question of source, which in physics is ‘where does the universe come from?’—namely, by simply creating it. In numerous contexts,[4] the Court’s law-making role is described as ‘incremental’, which mathematicians define as ‘denoting a small positive or negative change’. But while using that term, dissenting, in JD (FC) v East Berkshire Community Health NHS Trust ,[5] the next year in, Barclays Bank , Lord Bingham wrote: I incline to agree with the view…that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test of principle which identifies the legally significant feature of a situation.[6] In the same case Lord Mance, reviewing prior authority, considered: ‘Incrementalism’ was…viewed as a corollary of the rejection, now uncontroversial, of any generalised liability for negligently caused economic loss, rather than as necessarily inconsistent with the development of novel categories of negligence. Having said that, caution and analogical reasoning are generally valuable accompaniments to judicial activity, and that is particularly to in the present area. Lord Mance’s ‘caution’, read with Lord Bingham’s rejection of ‘incremental’ as a definitive limit to judicial law-making, recalls Chief Justice Corstens’ criteria, using French in his final speech in The Netherlands: ‘la prudence et l’audace’. The Corstens / Bingham / Mance policy, of adopting an approach sensitive and appropriate to context, promotes optimum law, with legislative and judicial contributions forming a seamless whole, the judges discharging their duty to ‘do right’ by developing the common law ‘after the laws and usages of the realm’, especially when those are evidenced by recent legislation. Anthea Roberts’ best-seller Is International Law International? ,   sees the Australian scholar, experienced also in England and the USA, describe the range of senses in which ‘international law’ is employed; as is sharply evidenced by the law of England, which in some spheres regards international law as binding, in others as optional.[7] In Keyu v Secretary of State for Foreign and Commonwealth Affairs , Lord Mance wrote: Speaking generally, in my opinion, the presumption when considering any such policy issue is that [Customary International Law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.[8] He later added: The role of domestic courts in developing (or…even establishing) a rule of customary international law should not be undervalued. [T]he intermeshing of domestic and international law issues and law has been increasingly evident in recent years…The underlying thinking is that domestic courts have a certain competence and role in identifying, developing and expressing principles of customary international law. [9] In summary, Law concerns the rules needed to manage human difference; Politics their creation and change; and Art connotes the cultures that contribute to and illuminate each. The categories are not discrete. The first category—decent Law—reflects the elements of the judges’ treble undertaking under the Promissory Oaths Act 1868: [1] I will do right to all manner of people; [2] after the laws and usages of this realm; [3] without fear or favour, affection or ill will. In the United Kingdom, as to the second category—Politics including rule-making—Parliament has and executes plenary authority. Yet the judges’ role of making, applying, and where necessary updating the common law is a major feature. Its functions include the assertion of Parliament’s role, and adjudication of disputes in accordance with the values of the rule of law. These include principles of international law which in practice largely requires enforcement by the domestic laws of individual states. Fundamental to both first and second categories is the third—the Art of understanding the evolving cultures of society, which is also essential to political success. This special edition of the Journal  addresses current profoundly troubling situations of human difference, each engaging Law, Politics, and relevant Art. Overarching all of them is the crucial need to achieve Reconciliation of difference, the capital denoting its importance. Each of the situations discussed entails competing claims for inconsistent rights, which may be procedural or substantive. Lord Mansfield’s celebrated procedural conclusion in Somerset v Stewart  (1772),[10] that alien status was no bar to habeas corpus for a slave held in custody on the Thames, was endorsed by the US Supreme Court in the Guantanamo Bay case Boumediene v Bush .[11]   There has been procedural delay of international Law and Politics since the end of WWI in finding Art to protect former Palestinian residents of the Ottoman Empire   There is then the substantive inability of the law to date to respond to aggression—allegedly committed in Ukraine by the then chair of the Security Council—which, though in Nuremberg singled out for response, awaits answer.   That our generation has been slow to respond to the ultimate challenge of global warming is of a piece with the appalling human rights statistics, including 108.4 million people around the world who are forcibly displaced; failures since 1937 to implement the Terrorism Report for the League of Nations, and more generally to grip the death toll in international migration; the disgrace of modern slavery; the division in the General Assembly between North (or West) and South; and the continued abuse of civil rights of women and children.   The tragedies of Ukraine, Israel, and Palestine recall, in the case of the Russian Federation, its obligations, as Permanent Member and in February 2002 Chair of the Security Council with primary responsibility under Article 24 of the UN Charter, to use Chapter VII powers to enforce Article 2’s prohibition of the use of force against any state; in the case of Israel the country readings from whose Old Testament inspire decency throughout the world; and, in the case of Palestine, the Prophet whose advocacy of non-violent means to resolve disputes exemplified the rule of law. The Swiss theologian Hans Küng’s writings on the close relationships among the three monotheistic religions point to the Art of Reconciliation among them. Each society, and the other members of the world community, well know that the promotion of peace by human creativity and achievement is essential to answering the greatest challenges their peoples face.   That is the context of the following essays identifying urgent problems of Human Rights, and potential responses by Law, Politics, and Art, which contribute to the classic University function as critic and conscience of society. Sir David William Baragwanath KNZM KC Sir David William Baragwanath KNZM KC is a retired New Zealand judge. He was a member of the Appeals Chamber of the Special Tribunal for Lebanon at the Hague, serving for a term as President. [1] [1944] KB 693. [2] In New Zealand, a deserved response to description by a pompous speaker as being among ‘coloured brethren’ was ‘I reply to my colourless brother’. [3] [2004] UKHL 56, [2005] 2 AC 68. [4] As by Lord Steyn in his much-cited opinion in Marc Rich & Co. A.G.   v Bishop Rock Marine Co. Ltd [1996] AC 211, 234 B-C. [5] [2005] UKHL 23, [2005] 2 AC 273 para 50. [6]  Her Majesty’s Commissioner of Customs and Excise v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181. [7] Anthea Roberts, Is International Law International?  (OUP 2017). [8] [2015] UKSC 69, [2016] 1355. [9]  Al-Waheed v Ministry of Defence [2017] UKSC 2, [2017] AC 821 . [10] Lofft 1. [11] 553 US 723 (2008).

Oleg Tistol is one of Ukraine’s leading contemporary artists, who works with stereotypes associated with Ukrainian everyday life and current affairs. His artwork cleverly juxtaposes Ukraine’s historical past with current issues through day-to-day imagery. The results are alluring and provocative, yet playful. However, since the beginning of the Russian invasion into Ukraine, Tistol has sought safety from the bombs by living in his basement art studio with his wife, daughter, and a friend. His art production has been greatly affected by this war and his unique perspective on ‘freedom’ and the release of the oppressive shackles of the Russian imperialistic narrative has had a profound effect on the work he now creates. This interview was conducted on 14 April 2022. Fig 1. March-22. Self-Portrait (Tistol 2022, acrylic on canvas, 200 x 140cm). © Tistol. Oleg Tistol : My apologies, the air raid sirens are howling now. There is noise from the street. Constance Uzwyshyn, for CJLPA : Tell us about the painting for the Journal ’s back cover (fig. 1). OT : The shadow was a very important theme for me before the war. Actually, we have lived with this feeling…the war has now lasted eight years [a reference to the initial invasion by the Russians in Donbas and annexation of Crimea in 2014]. That is why somehow this shadow is from the distant past, so I created a big exhibition from it (figs. 2, 3 & 4). This was a premonition, a photo document, a painting more important and striking than a photo. If I was going to do a portrait now of Peter, for example, I would make a shadow, and this would be more of a document than some other vision. Fig 2. Mariana (Tistol 2021, acrylic on canvas, 200 x 140cm). from Exhibition Oleg Tistol; Europe. 14 September – 14 December 2021, UkrEXIM Bank, Kyiv. © Tistol. Fig 3. Constance (Tistol 2021, acrylic on canvas, 200 x 140cm). from Exhibition Oleg Tistol; Europe. 14 September – 14 December 2021, UkrEXIM Bank, Kyiv. © Tistol. Fig 4. EN (Tistol 2021, acrylic on canvas, 200 x 140cm). from Exhibition Oleg Tistol; Europe. 14 September – 14 December 2021, UkrEXIM Bank, Kyiv. © Tistol. Now, about this painting (fig. 1). To think about art was very difficult during this last month. I asked my daughter Nadiya to draw my portrait because self-portraits are a problem (fig. 5). Someone must draw the shadow. This was a difficult period, but it was positive in a sense as we had not spent much time together earlier. Nadiya and I were in one studio together all month and I understood that my shadows are not superfluous or arbitrary. This is something very important and serious to me; it is sort of a document. It was a very cold-blooded documentation and is the way I am today…it is how I stand. It’s very important this shadow was done by Nadiya because throughout the month it was about survival and saving your life and those of your dear ones. This was the problem that had to be resolved and this is what the painting is about. What kind of war? You either feel it or you don’t. I don’t want to say anything about the war to the viewer. Either it’s there or it isn’t. Right now, I don’t want to say anything about the ‘katsaps’ [a traditional Ukrainian derogatory term for Russians].[1] I don’t want to say anything about the war. This is an issue for writers, journalists, and most of all, for the military. Fig 5. Nadiya Drawing the Shadow of Tistol for the painting, (March-22. Self-Portrait). © Tistol. CU: How would you translate ‘katsap’ into English? Is its very specific terminology impossible to translate? OT : ‘Katsap’ is in reality a Turkic word that has the meaning of ‘butcher’. This is an ancient term. Even Solzhenitsyn[2] called them this. In this context, it is the most appropriate term. I know this word from birth. Ukrainian villagers know this term. We thought this term stems from ‘tsap’. That is, an animal, sheep. But no. It means a killer. It means butcher. In Turkey, the butcher shops are called ‘kasap’.[3] This is not slang, and this is not an insult. I like very accurate cultural designations. And if I call a person by what they truly are, then you better understand the cultural context. CU: I see in this painting you are standing on a crate, could you explain this? OT : This is a very old Soviet crate. Perhaps it was some military item. I have had this in my studio for a very long time. There are instruments inside. Tools for work. Why this crate? I intuitively felt that I needed this crate. On one hand this could be a pediment for a monument. This is ironic. I understand that I can’t be a monument. But on the other hand, it provides an unevenness, an unpredictability. I am small, standing on this big crate. This does not even reflect fear, but an attempt to find our place. You understand that you are very small, that you are not confident in your place in any context. This was very important for me. CU : This painting is evocative, so strong! Your palette presents the colours of the Ukrainian flag and your blue self-portrait, your shadow of Tistol, stands proud as you gaze into the golden horizon calmly holding a cigarette. I am very moved by the piece and for me it represents the spirit of Ukrainians. Peter Bejger, for CJLPA : How should one work today in light of present conditions? You have had a very long and successful career. How do you continue to work, or perhaps not work, during this time of war? OT : I have made the paintings we were discussing (Shadow Paintings) as also nine small canvases (figs. 6 & 7). Today I was in the studio, and I understood that on some of these canvases I will do something completely different. In the next month I want to redo them. My career, my life, has transpired over 31 years in the Soviet Union and now, this summer, will mark 31 years in an independent Ukraine. The 24 August, the Independence Day for Ukraine, is almost my 62nd birthday. I had an exhibition in Lutsk and Lviv in 2020 and it was called Sixty Years of Independence . I was born on 25 August. The Lutsk Museum staged a large exhibit for me, opening on my birthday, and I decided to call it that. My entire life has been a struggle for my own personal independence and an observation of the history of Ukrainian independence. This has always been a part of my art. My first known paintings were based on ‘unification’, Khmelnytsky, and the Battle of Poltava.[4] It is called Reunion (fig. 8), which is my first well known painting.[5] Fig 6. Ai – Petri 2022, No.1 (Tistol April, May 2022, oil, acrylic on canvas, 45 x 100cm). © Tistol. Fig 7. April 2022 (Tistol April, May 2022, oil, acrylic on canvas, 25 x 25cm). © Tistol. Fig 8. Reunion (Tistol 1988, oil on canvas, 270 x 240cm). © PinchukArtCentre, Kyiv. After this painting, my artwork changed and was reactive to current affairs. Perhaps it would be shadows, or palms, or mountains, or perhaps God willing I will paint Peter with a Cat .[6] (figs. 9, 10 & 11). Now, my paintings will be something different and I delight in this. I like cultural attributes! That is, thirty years ago when I was explaining the meaning of Reunion , and Ukraine’s independence, very few understood the history of Ukraine. Even twenty years ago only a few understood, or knew, the history of Ukraine. I like the current discussion about Ukraine because of the war. I like the international context because everyone understands what is happening. The word katsap[7] is not an insult. No emotions here. It is an enemy. This is an attempt to delineate major cultural positions. Now everyone understands that Ukraine is very close to Western Civilisation, though I think there is only one civilisation. The war is cultural. A war between culture and anti-culture. What we have in this context from Russia is really a great error on the part of the global community. That is, the error has been committed during the last 200 years on what they see is ‘the great Russian culture’. It is really a cargo cult culture process.[8] It imitates cultural processes, but it is done from completely different motivations. Fig 9.Peter with Erik (Tistol 1997, oil on canvas, 90 x 75cm). © Peter Bejger. Fig 10. Roma Kusznir with Nestor (Tistol 1997, oil on canvas, 140 x 55cm). © Roma Kusznir Hunter. Fig 11. Konstanzia Yu with Sushi: A Fragment from the Project for Money (Tistol 1995, oil on canvas, 80 x 60cm). Private Collection. PB: I would like to ask you about identity. Ukrainian identity, and Russian identity. Perhaps you can explain your views on identity and the growth of Ukrainian identity since Ukraine’s independence. OT : This is my personal interpretation: Ukrainian identity is not ethnic. It is about territory and cultural identity. On the Maidan in 2014,[9] there was a huge banner that proclaimed, ‘Freedom is our Religion’. Everybody immediately understood that the first trait for Ukrainians is the striving for individual freedom. And thus, I am now against Ukraine joining the EU. I don’t want to end up in a union with the French, Hungarians, and Germans. I want to be in one union with the British, the Canadians, and Americans. We have one mentality. I name these countries as those of personal freedom and individualism, the weight of the individual is very important. I don’t like these bureaucratic countries. I am from Kozak[10] roots. This is an identity, striving for personal freedom, and that is why I speak sternly about civilization. As for Ukrainian identity, this was understood very clearly during the war. There were very few people in Kyiv during the first month of the war and we all became very cognizant of one another, just like we did during the Maidan. People immediately asked each other, ‘How can I help you?’. People were very solicitous to one another. All these volunteer services were very well organised, and we all looked after each other. This is the behaviour of free people. These are very straightforward values, and we have a union of people for whom these values are common. Somebody who has different values becomes a collaborator or leaves. This is an ancient village culture. And what is Ukrainian culture? A pursuit for more interaction and a beautiful, joyful life. I now identify myself as a folkloric artist. Not by coincidence, we chatted earlier about the group DakhaBrakha.[11] This is folk music, ethno. Nadiya began her career as an ethno singer. I now feel that I am a very straightforward, let us say, ethno folkloric artist. What I do is folk, which has a relationship to European civilisation, to American. I am interested in these cultures, these cultural processes. Why do we need art? So, life would be beautiful. Fig 12. Wine, from Series of Food (Tistol 1988, mixed medium, 55 x 53cm). Private Collection. PB: In the future, after this war, what is to be done with Russia? Russia is a neighbour. How do you live with this? OT : Seriously, over the last 100 years, there were four names for Russia. First there was the Russian Empire to 1917. Then it was called the RSFR, then SSSR, then the RF. Four names in just over 100 years. Geographic boundaries changed. Doctrines changed. But all in all, it remained the same. In the future, we can’t talk about a country called ‘Russia’. We don’t know how many countries will emerge from it. What their relations will be. I am certain of this, because I am a very big specialist on katsaps. From 1984 to 1986, I was in the Soviet Army in a special unit in the nuclear forces. Yes, a specialised nuclear unit. It didn’t even have a name, just a number: 31600. This number was on my military document. Nothing else was noted, and there were no references to aviation or rocket forces, only the number. They only took people from the deepest and middle part of Russia. I ended up there because I was an artist with higher education. They needed a specialist. All the other thousands of personnel were from the Urals, or Siberia, the same people who recently did what they did in Bucha.[12] I lived with them for two years in one barrack. I left from there a conscious Ukrainian. This did not happen after art school in Kyiv, nor after the art academy in Lviv, but after the Soviet army. I lived with them in close quarters, these katsaps, for two years in one setting, I understood we were aliens from different planets and two completely different cultural worlds. This is why I easily prognosticate their behaviour and their future. They will have many problems and will battle among each other. And for us geographically in Ukraine, we will have to control all this. They will be killing each other for quite a long time. Someone will call himself a chief or a leader and they will be battling each other. They will be battling for resources, food, or anything, and we will have to control this. I don’t see any other variant. This can’t be considered bad or frightening. God gave us this kind of neighbour. This is how it will end. There is no other variant. What is most important is to drive them away from us and not interfere. I think our war will end in Chechnya. It all started in Chechnya[13] and will end there. They [the Russians] strongly dislike Ukrainians, but they hate the Chechens more. Whether they want it or not, it will end there. They will have to resolve their internal problems and I am absolutely sure of that. There are already the first signs of this. After Ukraine, the weakest link is the Caucasus. This is why for many years I painted the canvas Kazbek (fig. 13), and why I gave explanatory texts to that from the Kobzar by [Taras] Shevchenko[14], from the poem ‘Kavkaz’ (The Caucasus).[15] Fig 13. Caucasus-12 (Tistol 2001, oil on canvas, 100 x 100cm). © Zenko Foundation. Everything is written there. Now Shevchenko is better understood in a broader sense. I was reading Shevchenko every day in the army. This book was like a Bible to me, and I read the entire library of his work. Every day a little Shevchenko was psychotherapy for me. This is why I consider myself an autochthone, not considering my complex ethnic background. I am a typical Ukrainian because culturally this is the most important book for me and now everybody understands this. CU: In your opinion, what is the identity of a Ukrainian? OT : To be Ukrainian is a conscious choice. If you want to live on this territory, with the rules we live by and with, you quickly become a Ukrainian. For example, the first guy who died on the Maidan was Serhiy Nigoyan,[16] an Armenian. He read Shevchenko. He was born into an Armenian family in Ukraine. He simply was Ukrainian: by mentality, behaviour, and the cultural code. You see this in 2014 in the Revolution of Dignity, known as the Maidan. This is dignity. This is not honour. Every Ukrainian has this feeling of dignity because otherwise you couldn’t live with yourself among your own. Dignity unites us. This is reflected in behaviour by me and Nadiya. I very much like to engage with my equals, that is people who have similar values. This is a characteristic trait, something that is passed from one person to another, and you find this very much in Shevchenko. There is everything there about human dignity. This is a key Ukrainian term. This Revolution of Dignity, this is very important to study. We now have to carry it forward. PB: We talked about Ukraine and Russia, now I would like to discuss the international community. You know that in the West now there are assertions we are in a post-national phase. We also search for identity, but it is often not built on national principles. This is a question about the role of nationalism and international relations. How can the international community support your struggle in Ukraine? There are very complex processes happening now in the West regarding nationalism and identity. I would like to hear your thoughts on what you see in the West and the international community. OT : First of all, there is not one fascist in the Ukrainian parliament. Not one communist. So, the problem of nationalism: we don’t have ethnic problems here. What can you say about a country whose president is Jewish? Our Ukrainian nationalism is geographically cultural. There is a problem here in terminology. This word ‘nationalism’ in the Western world is very negative and I understand this. If this is about racism, then this is frightening but we don’t have this problem. I mean this is a very minor problem that is almost not discernible. Now after 30 years when someone calls themselves a nationalist, this refers to a battle with a foreign enemy. One enemy. There is one enemy. You have to be very clear here with terminology. Ukrainian nationalism is not ethnic. It is absolutely not ethnic. I understand that American problem. I understand French historical problems. Here it is completely different. We are forming a cultural nation, and what other term can we choose but nation? I like the American project, an artificial nation. A group of wise people gathered together to create a nation of the future. This is the project of the United States. This is not a technical dream, but a cultural dream. This is the same for Ukraine’s battle for national identity. This has an American sense in the national. When the national anthem is played, people of all colours stand. They are united for a way of life. This is the American dream. The Ukrainian dream is freedom and dignity. Period. Fig 14. Vita Brevis (Tistol 2021, oil, acrylic on canvas, 260 x 200cm). © Tistol. CU: How would you define who Ukrainians are? OT : Exotic! We are all exotic. I accept this. I know who I am, and from where I originate, and this is interesting for me and informs my creativity. However, this exoticism is very important within the civilizational process. That is, the rules of behaviour among people and cultural exchanges. Culture is simply the exchange of beauty. For what? For peaceful and fortunate co-existence. How does the so-called Russian culture differ? It is an instrument of expansion. In the beginning they bring you Dostoyevsky, and later a tank will arrive. Absolutely! Look at the map of this war. Look at where the katsaps have fathered and then where they are fighting. This is in the Russian-language territories. They are there where they thought they would be greeted. The Russians are not being greeted; they are being killed. But they came to where Russian is spoken. As for the Ukrainian cultural process, Ukrainians dissolve into the world and know themselves from the inside that they are Ukrainian. This is for the children, the family, the parents. This is very important. When you are on the street you should be like everyone else, you respect those among who you live. This is a very important cultural trait, for a true culture. This is when you offer people some sort of beauty and you accept their beauty. Something very important happened during this war. I have long felt this and so have many others also. Perhaps this doesn’t sound very polite, but many Ukrainians absolutely don’t care what the world thinks of them. Thirty years ago, when I was in Switzerland, I was addressed, ‘Oh you’re Russian’. I quietly listened and then said, ‘Oh, you are German’. They were offended. I asked why you are offended. ‘You write in German, speak in German. You are German’. It is different now. If, after thirty years of Ukrainian existence, and the war, somebody in Switzerland doesn’t know about Ukraine, I wouldn’t bother to explain. I will not speak. I am not interested. Now about the world context of Ukrainian culture, for example, for me, my favourite writers are Hemingway and Shakespeare, and my favourite music from my youth was by the Rolling Stones, Genesis, and Led Zeppelin. I was formed by all this. Well, I may be considered ‘exotic’, but for me all people are exotic. The more exotic the persona, the more interesting they are. If there is a trait in a person that I do not have, that is interesting for me (fig. 15). Fig 15. Alien-25 (Tistol 20, acrylic on canvas, 140 x 120cm). © Zenko Foundation. PB: I have a last question…a question on trauma. Ukraine is experiencing a tremendous trauma now with the war. Every nation has their own trauma. How does art deal with trauma? How can Ukrainian artists deal with this trauma? OT : It’s actually the reverse. We have had 300 years of frightening trauma living one way or another within Russia. What is happening now: this trauma is like cutting off diseased parts. We are removing the trauma. The issue is sin. For example, I served in the Soviet army. If someone asks me about this time, I say I was a collaborator. Forty years ago, I was a collaborator and there was no other alternative. The issue is that these ‘Russian’ ‘victories’ from the past were done by the hands of Ukrainians and they were the best components of the ‘Russian’ army. Now, this trauma, meaning Russification…I am delighted is no more. A year ago, I got into a taxi and Russian ‘chanson’ music would have been playing.[17] I no longer hear that. The trauma will not be with Ukrainians, it will be with the Russians. Those who call themselves Russian, will have a horrible trauma. It will be similar to what the Germans experienced in 1945. For Ukrainians, we will be exiting a trauma. It will never be necessary to explain why it’s not worth reading Tolstoy or Dostoyevsky. We no longer have to participate in the propagandistic lie of the ‘Great Russian Narrative’. Now everything has become clear. This problem of trauma: I no longer want to paint canvases of ‘unification’ or Russians. I am no longer interested. There are very many people from my circle, and my family, who now have to decide what to do with all those books of katsap classical literature. What should we do with these books? It is not necessary to just carry them out to the garbage. We need to tear off the covers so children will no longer read them. This is escaping the trauma. No matter how horrible this may sound…for eight years we couldn’t throw out the books, because books are a treasure. But you have to understand that this is a horrible thing. It traumatises the mind. You can’t give children Mein Kampf to read. You can’t do that. It’s the same here. This cultural cleansing is already being felt. There will be no need to pass legislation on language. Speak any language you want. It’s just important you don’t carry these ideas of slavery. So, this would no longer be the case. We have transcended the trauma. You can see this in people on the streets. You see this in social media, everywhere. Done! No more trauma. No more doubts. Nobody will no longer wonder if we are Europe, or not Europe. It’s obvious we are Europe. This is geography. I would like to add a summary. This is very important. You may think this sounds horrible and cynical, but this war is very useful. This war had to happen. You don’t want war, you absolutely don’t want it, but it had to happen. We have to await the end, and there may be more frightening events, but this addresses the issue of cleansing. We have to win in this cleansing. And we will win, definitely. Fig 16. Europe (Tistol 2012, oil, acrylic on canvas, 200 x 200cm). © Tistol. In an informal discussion after the interview Tistol described the current mood in Kyiv. OT : Well, it is more intensive now…there is a curfew and I have to still get to my mother. As for life here now, every day it’s getting better and more peaceful. Cafes are reopening. People are coming out. There are still fewer people or children on the streets. But it is somehow better. The first month (after the start of the war) was very scary. But I understand how much we all love Kyiv. It was an absolutely empty Kyiv then, with the anti-tank barricades. I was very happy we didn’t leave. There was a very important feeling that we had to live through all this here. I am now almost a Kyivite. I never before felt I was a Kyivite. I was from Vradievka. From Mykolaiv. I always felt I was a Southerner, now I feel that I am a Kyivan artist. Fig 17. Europe - 2 (Tistol 2020, oil, acrylic on canvas, 200 x 200cm). © Tistol. This interview was conducted by Constance Uzwyshyn and Peter Bejger. Constance Uzwyshyn is an expert on Ukrainian contemporary art. She founded Ukraine’s first foreign-owned professional art gallery, the ARTEast Gallery, in Kyiv. Having written a masters dissertation entitled The Emergence of the Ukrainian Contemporary Art Market , she is currently a PhD candidate at the University of Cambridge researching Ukrainian contemporary art. She is also CJLPA 2’s Executive Editor and the Ukrainian Institute of London’s Creative Industries Advisor. Peter Bejger is an editor, filmmaker, and writer based in San Francisco. He was a Fulbright Research Scholar in Ukraine, where he wrote and produced a documentary film on Secession-era architecture of the city of Lviv. Previously, he lived in Kyiv for several years, where he worked as a journalist, media consultant, and cultural critic. [1] Regarding issues of Ukrainian versus Russian identity, the reign of Russian Tsar Peter I is considered by historians a crucial phase in the development of Russian imperial narratives and the appropriation of Ukrainian history, heritage, and culture by a centralising colonial power. See < http://www.encyclopediaofukraine.com/display.asp?linkpath=pages%5CP%5CE%5CPeterI.htm > accessed 22 May 2022; Orest Subtelny, Ukraine: A History , (2nd ed, University of Toronto Press 1994) 160-7. [2] Aleksandr Solzhenitsyn was a notable Soviet dissident and spoke out against communism. He raised awareness of the brutality of the repressive Soviet Union, particularly the Gulag system. He was imprisoned in the Lubyanka prison and then was sentenced to an eight-year term in a hard labour camp. [3] Turkish word ‘Kasap’ noun means killer, slaughterer, meatman. [4] Cf. Serhii Plokhy (ed), Poltava 1709: The Battle and the Myth (Harvard University Press 2012). [5] Cf. Kristian Gerner, ‘The Battle of Poltava as a Realm of Memory and a Bone of Contention’ (2009) 31(1/4) 679-693. [6] In the mid-1990s, Tistol created Ukrainian Money Project . This project coincided with Ukraine producing its own currency: a reference to Ukraine’s independence and the step away from Russian domination. Tistol’s money project embodies Ukrainian contemporary stereotypes and historical references. He specifically plays with intaglio printing to achieve a subtle offset print and cleverly adds vignettes, numerals, and lettering to create his own version of money art. [7] This is a play on the terms Fascism and Russia. Cf. Timothy Snyder, ‘The War in Ukraine has Unleashed a New Word: Ruscism’ The New York Times Magazine (New York, 22 April 2022) < https://www.nytimes.com/2022/04/22/magazine/ruscism-ukraine-russia-war.html > accessed 6 May 2022. [8] In another interview, Tistol elaborates on the cargo cult cultural process, stating that ‘I think the majority of people now sadly realised that one is a culture and a cultural process and the other a cargo cult operation to abolish Mariupol in truth. All people finally understood this’. See ‘КИЇВ. МАЙСТЕРНЯ ОЛЕГА ТІСТОЛА, БЕРЕЗЕНЬ, 2022’ ( YouTube , 30 March 2022) < https://www.youtube.com/watch?v=H3RfiIRUxmI > accessed 30 March 2022. [9] The Maidan, also known as the ‘Revolution of Dignity’, was a mass political protest in late 2013 and into 2014 in Kyiv that overturned a pro-Russian government and set Ukraine on a pro-European course. [10] Alternative spelling of Cossack. [11] DakhaBrakha is a world-music quartet from Kyiv that tours extensively and has a achieved a global audience with their unique ‘ethno-chaos’ style.. [12] Flora Drury, ‘Ukraine launches hunt for Russian soldiers accused of Bucha war Crimes’ ( BBC News ,29 April 2022) < https://www.bbc.co.uk/news/world-europe-61269480 > accessed 2 May 2022. [13] See Andrew Higgins, ‘the War that Continues to Shape Russia, 25 Years Later’ New York Times (New York, 10 December 2009) < https://www.nytimes.com/2019/12/10/world/europe/photos-chechen-war-russia.html > accessed 6 May 2022; Anna Politkovskaya, A Small Corner of Hell: Dispatches from Chechnya (University of Chicago Press 2007). [14] Taras Shevchenko is Ukraine’s national poet, an artist, and a seminal figure in the development of Ukrainian national consciousness. Kobzar is Shevchenko’s first collection of poems and a powerful expression of Ukrainian cultural rebirth.. [15] Rory Finnin. ‘Mountains, Masks, Metre, Meaning: Taras Shevchenko’s ‘Kavkaz’’ (2005) 83(3) The Slavonic and East European Review 396-439. [16] See ‘Remembering Heroes of Euromaidan: Serhiy Nigoyan’ ( YouTube , 25 January 2019) < https://www.youtube.com/watch?v=dYUIB0s1YJI > accessed 1 May 2022. [17] Russian chanson music derives its ballad-like music by using prison slang and references to criminal life and hardship; it appeals to emotional sentiment to a loved one.

International law faces two profound issues. Each involves Article 2 of the Charter of the United Nations prohibiting the use of force by one Member State against another. Both concern the roles of the Security Council and the International Court of Justice (ICJ).   One—Ukraine and the Russian Federation (Russia)—is whether the armed entry into Ukraine on 24 April 2022 and since of Russia as a great power is immune from the rule of law.   The other—Gaza/Palestine and Israel—concerns the relations between another state, Israel, and its immediate neighbour Palestine, including the small Gaza strip. There is currently awaited on the topic of Israel’s treatment of Palestine an advisory opinion of the International Court of Justice of major importance on which judgment was reserved on 26 February 2024.

The purpose of the Human Rights Act 1998 (HRA) was to ‘bring rights home’, allowing people to protect their fundamental human rights under the European Convention on Human Rights (ECHR) in domestic courts.[1] For present purposes, the relevant rights are the right to autonomy and dignity, and their control over their body and future (based on Articles 2, 3, and 8). However, the idea that people are able to protect these rights is anathema to the tenor of the salient and contentious judgments in the NI Abortion Case [2] and Nicklinson [3]—cases which restrict these rights—as well as subsequent case law. Such a conclusion can only be reached by a fundamental misconstruction of what the cases stand for. Instead, excessive and overzealous judicial conservatism has failed to demonstrate and realise the potential of the HRA. The damage done to the rights in question by this conservative approach conflicts with the very mandate provided in the HRA. For this potential to be realised, a more ‘radical’ (yet legally and constitutionally sound) approach is necessary, and the apparent fear of issuing an s 4 Declaration of Incompatibility (DOI)—a declaration by the Court that the relevant legislation is incompatible with ECHR rights—must be dispensed with. Such action is not inappropriate, nor radical, but merely performance of the proper constitutional role of the court.   The Northern Ireland Abortion Case   Ducking the issue?   The NI Abortion Case  cannot be posited as a reinforcement of either the autonomy and dignity of citizens, nor the protection of their control over their body and future. The court refuses, by a majority, to even substantively engage with these issues in any consequential way. Instead, Lords Mance, Reed, and Lloyd-Jones and Lady Black duck the issue by judging that the Northern Ireland Human Rights Commission (NIHRC) did not have standing under HRA s 7 to bring s 4 proceedings, thus allowing them to dispense with any meaningful discussion surrounding Articles 2, 3, 8, and 14. The reasoning used to arrive at this conclusion is self-contradictory and illogical because, as Lords Kerr and Wilson and Lady Hale highlight, the English Equality Commission (the NIHRC’s equivalent) is able to bring proceedings of the same nature. Such is the reticence to engage with fundamental human rights, the majority would rather raise antecedent issues of unfair devolution arrangements and the differing treatment of the UK’s four nations.   The Court dodges a politically contentious, yet still fundamentally legal, question for fear of it being ‘institutionally inappropriate’ (as Lord Sumption describes it in Nicklinson ). One cannot assert, therefore, that the case demonstrates the protective potential of the HRA, as the Court only hypothetically engages with the rights in question on the terms of the HRA. In fact, the opposite result is achieved—the rights under the HRA lose their efficacy as they are rendered unenforceable by a frankly cowardly interpretation of human rights standing. More damning still, the majority decision in this case regarding standing has been superseded by the European Union (Withdrawal) Act 2018 (EUWA), which explicitly established that the NIHRC has standing to bring such cases, proving the minority right. Following this judgment, it seems even more apparent that ducking the issue on the grounds of standing was a conscious choice.   Engaging (superficially) the substantive rights   Nonetheless, the judges do engage in some discussion around the Article 3 and 8 rights engaged by the NI abortion laws, though this discussion is all obiter dicta.[4] This discussion largely fails to properly protect these rights, and instead offers a confined scope of application that pales in comparison to the comparative application of those rights within other nations of the UK. While the majority (5:2) judge that the law is incompatible, on the basis that it is disproportionate in aiming to protect morals and excessively fetters the autonomy and self-determination of individuals, this is still true in a very qualified sense, with division amongst the majority. Only four of the judges rule that there is a violation of Article 8 regarding abortion in cases of rape, incest, and fatal foetal abnormalities (FFAs). Only Lady Black rules that there is a violation in regard to FFAs but not rape or incest. This does very little to protect a Northern Irish woman’s right to autonomy, dignity, and control over her body and future. As far as Lady Black is concerned, her human rights only allow her to seek abortion where she is carrying a child with an FFA, and she should be made to carry the child to birth if it is the product of rape or incest. Lords Reed and Lloyd-Jones in the minority share this position but extend it to FFAs also. Lady Black’s proposition is frankly astonishing, especially when compared to the rights she would have if she lived in a different region of the same country!   The position of the five judges regarding FFAs was cited in Ewart [5]  and subsequently approved in the High Court, which would have issued a s 4 DOI in relation to Article 8 had it not been rendered nugatory by a previous change in legislation. This validated the view of the five judges. However, it still cannot be said that the NI Abortion Case shows the potential of the HRA to protect the rights in   question. Instead, it is Ewart that did so, though in a highly confined and qualified sense.   Even the position of the four majority judges in the NI Abortion Case  is insufficient. The NIHRC itself only sought validation on these terms, but it is not out of the remit for the Court in such a case to issue a general s 4 DOI on anti-abortion laws in relation to relevant rights. As Lady Hale and Lord Kerr highlight in Nicklinson , and Horner J highlights in the NIHC decision of this case (citing Lord Bingham in A v Secretary of State for the Home Department (Belmarsh) ),[6] the idea that this is institutionally inappropriate is anathema to the powers granted by Parliament to the judiciary in s 4 of the HRA itself. The issuing of a DOI does not in itself force a change in the law. It instead forces Parliament to consider the issue, at which point it is an issue of Parliamentary sovereignty as to whether Parliament chooses to amend the law. The notion that citizens living in the same country, but in different nations, should enjoy substantially different rights offends the supposedly universal nature of those rights.     As far as dignity is concerned, only Lords Kerr and Wilson were prepared to say that forcing a woman to travel from NI to England, Wales, or Scotland to obtain an abortion was a violation of Article 3. They also held, more broadly, that forcing a person to carry to term a foetus that has an FFA, or was conceived through rape or incest, constitutes inhuman or degrading treatment. While Lady Hale expresses sympathy with this view, she does not reach the same conclusion in relation to Article 3. She uses this factor to demonstrate the law’s disproportionality in regards to Article 8. However, this should not be a reason why it cannot also constitute an Article 3 violation too. This case fails to respect the dignity of the women concerned by failing to properly enforce their human rights and provide parity with the rights enjoyed by the women of England, Wales, and Scotland.   Though the NI law has been changed since the case to a position that is more acceptable, the position following the NI Abortion Case  did not sufficiently provide for this in respect to either their right to autonomy (Article 8), dignity (Article 3), or choice as to their body and future (Article 8).   Nicklinson  (as developed in Conway  and Newby )   Nicklinson , taken with Conway  and Newby , also cannot properly be said to demonstrate the potential of the HRA in protecting the rights in question, given that all of these cases flatly refuse the applications made.   Ducking the issue (again)?   The European Court of Human Rights (ECtHR) in Pretty says that the Suicide Act 1961 (SA) s 2 ban on assisted suicide (AS) engages Article 8. Nicklinson, however, sought to argue that the SA violated his Article 8 right to avoid an undignified and distressing death and his right to choose the manner and timing of his death. Once again, the Court ducks the issue in question and thus does not provide any demonstration that the HRA is a useful mechanism to protect a person’s rights. Seven of the nine judges ruled that it would be ‘institutionally inappropriate’ to make a consideration as to the compatibility of the SA with Article 8, though there is a 4:3 split in reasoning.   The most conservative approach is taken by Lords Clarke, Sumption, Reed, and Hughes, who refuse to engage in any meaningful discussion of whether the SA was incompatible with Article 8. They refuse on the basis that, while the court has jurisdiction to do so, such an analysis turns on issues that Parliament was better suited to decide, meaning it would be ‘institutionally inappropriate’ to make a decision. Once again, the reasoning of Lady Hale and Lord Kerr in the present case, and Lord Bingham in Belmarsh , is prescient. HRA s 4 explicitly invites courts to decide on these issues. It is paradoxical and oxymoronic for the court to say that they cannot use the power that Parliament has given them to declare Parliament’s legislation incompatible, on the grounds of it being ‘institutionally inappropriate’. This is a total abdication of responsibility and is a misguided, cowardly retreat from a contentious issue which has still not been decided on by Parliament over six years later. By not even engaging with the issue of compatibility, the judges neuter the HRA’s ability to protect these rights. It is more inappropriate for them to abstain from this consideration than it is for them to engage in it. The justification given is insufficient and debases the HRA significantly.   A less conservative approach is taken by Lords Neuberger, Mance, and Wilson. They instead judge that it is not institutionally inappropriate, per se, to make a decision on incompatibility. However, they decide that it was in this case because Parliament was currently discussing the issue, essentially giving Parliament one last chance to try and sort  the issue. This is also an insufficient analysis, as it relies on another case making it to the Supreme Court. As we can see, with Conway  and Newby , this has not yet happened. Conway ’s permission to appeal was refused, thus rejecting the opportunity to make an authoritative ruling on the matter. Once again, there is a misplaced and illogical deference to Parliament, which ignores the powers bestowed by  Parliament.   The better approach by far is that of Lady Hale and Lord Kerr, who do not deem it to be institutionally inappropriate to make a consideration on the compatibility of the SA with Article 8. They are the only justices who claim this. This is the only way that the HRA can be used to protect these rights. The court must actually engage in a compatibility analysis for the HRA to even have a chance  of protecting rights. As Lady Hale says in Paragraph 300:   I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Parliament is then free to cure that incompatibility, either by a remedial order under section 10 of the Act or (more probably in a case of this importance and sensitivity) by Act of Parliament, or to do nothing. It may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative.[7]   This is exactly the point. A declaration of incompatibility is just that—a declaration. It has no binding force and does not compel Parliament to do anything if it does not want to. It has no effect on the law other than to highlight its incompatibility with the relevant Convention Rights. Therefore, pontifications on institutional propriety serve no purpose other than to dilute the rights afforded under the Convention.   Engaging the rights   Lady Hale and Lord Kerr judge the SA to be incompatible with Article 8, and state that they would have issued a s 4 DOI. They consider that the blanket ban imposed is disproportionate under Huang . While accepting that protecting the rights of the vulnerable   is a legitimate aim, they consider that the blanket ban was more than what was necessary to achieve that objective and did not strike a fair balance. They also reject Lord Sumption’s obiter proposition that protecting morals may be another objective (manifested in the sanctity of life), on the basis that morals are not universally shared in this context and are too complex, with respect being needed for autonomy and dignity too. Hence, on the construction of Lady Hale and Lord Kerr, the HRA could well serve to protect these rights. However, the majority, and therefore binding, view in Nicklinson  fails to achieve this.   Post- Nicklinson : Conway  (Article 8) and Newby  (Article 2)   After Nicklinson , Conway  reflects Lady Hale and Lord Kerr’s observation on the lack of strength in the objective of protecting the vulnerable regarding Article 8 infringement. More objectives are imported to the ban such as protecting morals and protecting the doctor–patient relationship. These too are weak. The protection of morals is easily dismissible on the same grounds as Lady Hale and Lord Kerr provide in tackling Lord Sumption on this in Nicklinson , as well as the fact that it simply does not reflect a uniform public consensus, nor reflect the approach taken to other end-of-life contexts such as the capacitous refusal of treatment. Lord Kerr in Nicklinson  also questions whether the sanctity of life can really be   preserved where terrible suffering is being forced on the claimant.   It is not wholly clear that the doctor–patient relationship is a strong objective either. Doctors can already withdraw treatment, even where the patient is incapacitated (see Bland  and Re Y ), and often administer palliative sedation knowing that double effect is certain. This puts the law in a rather perverse situation where, under Bland , a person in a persistent vegetative state (PVS) who may well wish to continue living, but cannot express that, can be subjected to what is essentially involuntary euthanasia. By contrast, where a person gives their fully informed, unvitiated consent, they are unable to access assisted dying. As for palliative sedation, Re B  is authoritative on the fact that where a capacitous person, on the basis of informed consent, wishes to end their life-sustaining treatment, that wish is to be respected, even where death is inevitable. Therefore, the distinction between that and AS seems superficial. Is it really, then, such a Rubicon to cross? Furthermore, polling among the Royal College of Physicians and British Medical Association shows a majority opinion which is at least neutral towards AS. Even the profession does not see a threat to the patient–doctor relationship. The homogeneity that the Court in Conway  implies simply does not exist. Permissive jurisdictions have shown that the discussions involved in arranging AS are actually conducive to building good relationships, and empower patients in the decision-making process.   Therefore, it is not entirely clear that the additional objectives posited in Conway  are valid and legitimate objectives rationally connected with such aims, or fairly balanced where cases such as Conway , Nicklinson , Pretty , and Newby  are concerned. More egregious still is   the fact that Conway  disposes of the analysis in the Canadian case, Carter , on the basis of false distinctions. Supporting this is the fact   that in Pretty , the ECtHR says that Carter  s 7 concerned autonomy, which is parallel to Article 8. Yet again, Conway  fails to allow the HRA to be used to protect the right to autonomy and dignity and control over the body.   Newby  argues that the SA and subsequent jurisprudence was a breach of the positive obligation to protect life under Article 2, on the basis that there was not an effective legal system that protects life. The SA did not deter threats and was in itself a threat. The argument relies on the evidence that the blanket ban on AS resulted in the premature suicide of people before they become incapacitated to avoid the implications of the SA. This is a point illuminated by:  Carter ; the first-hand account in Omid T ; and perhaps put best by Lord Neuberger in Paragraphs 96 of his judgment, saying ‘Section 2 therefore not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives’.   The High Court is dismissive of this argument, dealing with it in one paragraph, which is questionable at best. No material consideration is given to the argument, and the conservative Nicklinson -type approach is taken to avoid discussion of the sanctity of life etc. While they do say that Article 2 engagements in this context would deal with the same considerations as Article 8, they consider these Article 8 issues heavily reliant on Conway, which itself was heavily reliant on Lord Sumption’s reasoning in Nicklinson . Therefore, this Article 2 argument is yet to be properly examined in a court and judged. However, the current line of jurisprudence suggests that an unfavourable approach would be taken to this argument. Therefore, Newby , as with every other case, fails to demonstrate the HRA’s potential to protect the rights of the individual to autonomy and dignity, and control over their body and future.   Conclusion   The overly conservative approach of the courts in relation to assisted dying and abortion results in a failure to properly uphold the rights of claimants under the ECHR. Therefore, one cannot assert that the current state of the law protects a person’s right to autonomy and dignity, and their control over their body and future. Nothing binding in the Northern Ireland Abortion Case , Nicklinson , or any of the subsequent litigation supports the assertion. The only saving graces of these cases, that may possibly be relied on to try and support this proposition, are the minority judgments.   Time and time again, claimants have sought to rely on the HRA to protect their rights to autonomy and dignity under Articles 8 and 3, and their control over their body and future under Articles 2 and 8. However, time and time again, courts have failed to give effect to this. Instead, cowardly and overly conservative judicial approaches have given way to an over-reliance on a de facto decriminalisation based on Crown Prosecution Service discretion that is by no means a watertight guarantee of immunity, and still forces families to endure police investigation.   Courts should embrace the powers they have been conferred by Parliament in the HRA and make s 4 DOIs where that would be appropriate, as it is in the cases considered above. The considerations of the cases above clearly show that where courts duck this on grounds of ‘institutional inappropriateness’, rights are not vindicated, and people are left to suffer. Engagement with these issues would not be an improper judicial power grab but merely a fulfilment of the role and responsibilities given by Parliament in the HRA to declare legislation incompatible where it is. By not fulfilling this role, the checks and balances inherent in our constitution are jeopardised. For as long as the judiciary adopts this unnecessarily conservative jurisdictional approach, the cases that come before them will never demonstrate the true potential of the HRA to protect a person’s right to autonomy and dignity, and control over their body and future. Jack Bailey Jack Bailey is a third-year undergraduate in Law at Fitzwilliam College, Cambridge, interested in the intersection of law and politics. In autumn 2022 he will begin a training contract with Freshfields Bruckhaus Deringer. He has just stepped down from his role as Pro Bono Coordinator on the Cambridge University Law Society, with the Pro Bono Department having been nominated for the ‘Access to Justice Foundation Award’ at the LawWorks and Attorney General Student Pro Bono Awards 2021. [1] I would like to thank Dr Stevie Martin for her helpful advice in writing this article and reading over my drafts. The considerations and viewpoints she raised were greatly helpful. [2]  Re an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  [2018] UKSC 27. [3]  R v Nicklinson  [2014] UKSC 38. [4] A comment in obiter dicta is a non-binding part of the judgment. [5]  Re Ewart  [2019] NIQB 88. [6]  A v Secretary of State for the Home Department  [2004] UKHL 56. [7] 7 Nicklinson  [300] Lady Hale.

Introduction COVID-19 should not have struck us so unawares: similar viruses, SARS and MERS, had emerged within the last 20 years, and global pandemics had been widely discussed. So why were even rich countries so unprepared? It’s because politicians and the public have a local focus. They downplay the long-term and the global. They ignore Nate Silver’s maxim: ‘The unfamiliar is not the same as the improbable.’   Indeed, we’re in denial about a whole raft of newly emergent threats to our interconnected world, that could be devastating. Pandemics and massive cyberattacks, for instance, are immediately destructive. Their probability may seem low, but they could happen at any time. The worst of them could be so devastating that one occurrence would be too many. And their probability and potential severity is increasing. Indeed, I fear we are guaranteed a bumpy ride through this century. COVID-19 must be a wake-up call, reminding us—and our governments—that we’re vulnerable.   Humans are now so numerous, and have now such a heavy collective ‘footprint’, that they can transform, or even ravage, the entire biosphere. The world is growing, and a more demanding population puts the natural environment under strain. Our collective actions could trigger dangerous climate change and mass extinctions if ‘tipping points’ are crossed—outcomes that would bequeath a depleted and impoverished world to future generations. We’re familiar with these threats, but fail to prioritise countermeasures, because their worst impact stretches beyond the time horizon of political and investment decisions. It’s like the proverbial boiling frog—contented in a warming tank until it’s too late to save itself. We have endured a ‘plague year’, and it remains unclear when, or indeed if, the world will revert to anything close to its ‘old normal’. The ‘global spasm’ that we have collectively experienced—a spasm that is, at the time of this writing, far from over—shows clearly that the ability to make wise decisions based on science has a direct impact on survival—not just personally, but collectively. Because our entire world is so interconnected, a catastrophe in any region can cascade globally, making our society vulnerable to breakdowns. But well-directed, internationally deployed science and technology can offer salvation.   The potentials of biotech and the cyberworld are exhilarating—but they’re frightening too. We are already, individually and collectively, so greatly empowered by rapidly changing technology that we can— by design, or as unintended consequences—engender global changes that will resonate for centuries.   Climate and environment   There are some things we can confidently predict. For instance, there’s firm evidence for climate change. Even within the next 20 years, regional shifts in climatic patterns, and more extreme weather, will aggravate pressures on food and water, and enhance migration pressure. Moreover, under ‘business as usual’ scenarios we can’t rule out, later in the century, really catastrophic global warming, and tipping points triggering long-term trends like the melting of Greenland’s ice sheet. But even those who accept these statements have diverse views on the best policy response. These divergences stem from differences in economics and ethics—in particular, in how much obligation we should feel towards future generations.   The Danish campaigner Bjørn Lomborg has bogeyman status among environmentalists—somewhat unfairly, as he doesn’t contest the science. But his ‘Copenhagen Consensus’ of economists downplays the priority of addressing climate change in comparison with shorter-term efforts to help the world’s poor. That’s because he applies a ‘standard’ discount rate—and in effect writes off what happens beyond 2050. But if you care about those who’ll live into the twenty-second century and beyond, then, as economists like Lord Stern and Professor Martin Weitzman argue, it is worth paying an insurance premium now, to protect those generations against the worst-case longer-term scenarios.[1]   So, even those who agree that there’s a significant risk of climate catastrophe a century hence, will differ in how urgently they advocate action today. Their assessment will depend on expectations of future growth, and optimism about technological fixes. But, above all, it depends on an ethical issue—in optimising people’s life-chances, should we discriminate on grounds of date of birth?   That the world will get warmer is a confident prediction. And with similar confidence we expect that it will get more crowded during this century. 50 years ago, world population was about 3.5 billion. It’s now about 7.7 billion. The growth has been mainly in Asia and Africa. The number of births per year, worldwide, peaked a few years ago and is going down. Nonetheless, world population is forecast to rise to around nine billion by 2050. That’s partly because most people in the developing world are young. They are yet to have children, and they will live longer. The age histogram in the developing world will become more like it is in Europe. By mid-century, Africa will have five times Europe’s population. Lagos and other megacities could have populations of around 40 million.   Population growth seems under-discussed. That’s partly, perhaps, because doom-laden forecasts in the late 1960s—for instance, by the Club of Rome and by Paul Ehrlich—proved off the mark. Also, some deem population growth to be a taboo subject—tainted by association with eugenics in the 1920s and 1930s, with Indian policies under Indira Gandhi, and more recently with China’s hard-line one-child policy. As it’s turned out, food production and resource extraction have kept pace with the rising population. Famines still occur, but they’re due to conflict or maldistribution, not overall scarcity.   To feed nine billion in 2050 will require further-improved agriculture—low-till, water-conserving, and GM crops. It may also require dietary innovations—converting insects, highly nutritious and rich in proteins, into palatable food; and making artificial meat. To quote Gandhi—enough for everyone’s need but not for everyone’s greed.   Demographics beyond 2050 are uncertain. It’s not even clear whether there’ll be a continuing global rise, or a fall. Urbanisation, declining infant mortality, and women’s education trigger the transition towards lower birthrates—but there could be countervailing cultural influences.   If, for whatever reason, families in Africa remain large, then according to the UN that continent’s population could double again by 2100, to four billion, thereby raising the global population to 11 billion. Nigeria alone would by then have as big a population as Europe and North America combined.   Optimists may note that each extra mouth brings two hands and a brain. But the potential geopolitical stresses of runaway population growth are deeply worrying. As compared to the fatalism of earlier generations, those in poor countries now know, via the Internet etc, what they’re missing. And migration is easier. Moreover, the advent of robots, and ‘reshoring’ of manufacturing, mean that still-poor countries won’t be able to grow their economies by offering cheap skilled labour, as the Asian tiger economies did. It’s a portent for disaffection and instability—multiple megaversions of the tragic loads of boat people crossing the Mediterranean today. Wealthy nations, especially those in Europe, should urgently promote prosperity in Africa, and not just for altruistic reasons.   And another thing: if humanity’s collective impact on land use and climate is too deep, the resultant ‘ecological shock’ could cause mass extinctions. We’d be destroying the book of life before we’d read it. Already, there’s more biomass in chickens and turkeys than in all the world’s wild birds. And the biomass in humans, cows, and domestic animals is 20 times that in wild mammals.   Biodiversity is a crucial component of human wellbeing. We’re clearly harmed if fish stocks dwindle to extinction. There are plants in the rain forest whose gene pool might be useful to us. And insects are crucial for the food chain and fertilisation. But for many environmentalists, preserving the richness of our biosphere has value in its own right, over and above what it means to us humans. To quote the great ecologist EO Wilson, ‘mass extinction is the sin that future generations will least forgive us for’.   Prospects for technology   It would be hard to think of a more inspiring challenge for young scientists and engineers than devising clean and economical energy systems—and sustainable, humane agriculture—for the entire world. Nations should accelerate R&D into all forms of low-carbon energy generation, and into other technologies where parallel progress is crucial—especially storage (batteries, compressed air, pumped storage, flywheels, etc) and smart grids. If carbon-free energy gets cheap enough, then India, for instance, can leapfrog to it. The health of the poor is jeopardised by smoky stoves burning wood or dung, and there would otherwise be pressure to build coal-fired power stations. Likewise, public health should be a global priority.   But we need wisely directed technology. Indeed, many are anxious that innovation is proceeding so fast that we may not properly cope with it—and that we’ll have a bumpy ride through this century. We’re ever more dependent on elaborate networks: electric power grids, air traffic control, international finance, just-in-time delivery, globally dispersed manufacturing, and so forth. Unless these networks are highly resilient, their manifest benefits could be outweighed by catastrophic (albeit rare) breakdowns that cascade globally—real-world analogues of what happened in 2008 to the financial system. Air travel can spread a pandemic worldwide within days.[2] And social media can spread panic and rumour, and psychic and economic contagion, literally at the speed of light.   Biotech offers huge prospects for enhancing health and food production. But there are downsides, from both ethical and prudential perspectives. It offers, for instance, the ability to modify viruses. In 2012, experiments done in Wisconsin and in Holland showed that it was surprisingly easy to make the influenza virus more virulent and more transmissible. This seemed a portent, and in 2014 the US federal government ceased funding these ‘gain of function’ experiments. Similar manipulations can be carried out on coronaviruses. There is of course no suggestion that COVID-19 was malevolently engineered, though there is an ongoing debate about the possibility that it could have been an accidental release from the Wuhan Institute of Virology, where it is known that gain of function experiments were being done.   The new CRISPR-Cas9 technique for gene editing is hugely promising, but there are already ethical concerns—for instance, about Chinese experiments modifying embryos—and anxiety about possible runaway ecological consequences of ‘gene drive’ programmes to wipe out species as diverse as mosquitos or grey squirrels.   Governments will surely adopt a stringent and precautionary attitude to the applications of biotech—and even to the kinds of experiment that can be legally pursued. But I’d worry that whatever regulations are imposed can’t be enforced worldwide, any more than the drug laws or tax laws. Whatever can be done will be done by someone, somewhere.   An atomic bomb can’t be built without large-scale special-purpose facilities. But biotech involves small-scale dual-use equipment. Indeed, biohacking is burgeoning even as a hobby. The rising empowerment of tech-savvy groups (or even individuals), by bio-as well as cyber-technology, will pose an intractable challenge to governments and aggravate the tension between freedom, privacy, and security. The global village will have its village idiots, and they’ll have global range. These concerns are relatively near-term—within ten or 15 years.   By mid-century we might expect two things: a better understanding of the combinations of genes that determine key characteristics of humans and animals; and the ability to synthesise genomes that match these features. If it becomes possible to ‘play God on a kitchen table’, our ecology (and even our species) may not long survive unscathed.   And what about another transformative technology: robotics and artificial intelligence (AI)? DeepMind’s ‘AlphaGo Zero’ computer famously achieved world championship level in the games of Go and chess in just a few hours—it was given just the rules, and learnt by playing against itself over and over again. Its processing speed allowed it to complete several games every second.   Already AI can cope better than humans with complex fast-changing networks—traffic flow, or electric grids. It could let the Chinese gather and process all the information needed to run an efficient planned economy that Marx could only dream of. And in science, its capacity to explore millions of options could allow it to discover recipes for better drugs, or a material that conducts electricity with zero resistance at room temperature. Computers learn to identify dogs, cats, and human faces by ‘crunching’ through millions of images—not the way babies learn. They learn to translate by reading millions of pages of multilingual text—EU documents, for instance (their boredom threshold is infinite!).   The implications for our society are already ambivalent. If there is a ‘bug’ in the software of an AI system, it is not always possible to track it down. This is likely to create public concern if the system’s ‘decisions’ have potentially grave consequences for individuals. If we are sentenced to a term in prison, recommended for surgery, or even given a poor credit rating, we would expect the reasons to be accessible to us, and contestable by us. If such decisions were delegated to an algorithm, we would be entitled to feel uneasy, even if presented with compelling evidence that, on average, the machines make better decisions than the humans they have usurped.   AI systems will become more intrusive and pervasive. Records of all our movements, our health, and our financial transactions, will be in the ‘cloud’, managed by a multinational quasi-monopoly. The data may be used for benign reasons (for instance, for medical research, or to warn us of incipient health risks), but its availability to internet companies is already shifting the balance of power from governments to globe-spanning conglomerates.   There will be other privacy concerns. Are you happy if a random stranger sitting near you in a restaurant or on public transportation can, via facial recognition, identify you and invade your privacy? Or if fake videos of you become so convincing that visual evidence can no longer be trusted? Or if a machine knows enough about you to compose emails that seem to come from you? The ‘arms race’ between cybercriminals and those trying to defend against them will become still more expensive and vexatious when drones, driverless cars, etc proliferate.   Many experts think that AI, like synthetic biotech, already needs guidelines for ‘responsible innovation’. But others, like the roboticist Rodney Brooks (creator of the Baxter robot and the Roomba vacuum cleaner), think that for many decades artificial intelligence will be less of a concern than real stupidity. And machines are still clumsy compared to children in sensing and interacting with the real world.   The incipient shifts in the nature of work have been addressed in several excellent books by economists and social scientists. Clearly, machines will take over much of the work of manufacturing and retail distribution. They can supplement, if not replace, many white-collar jobs: routine legal work, accountancy, computer coding, medical diagnostics, and even surgery. Many ‘professionals’ will find their hard-earned skills in less demand. In contrast, some skilled service-sector jobs—plumbing and gardening, for instance—require non-routine interactions with the external world and will be among the hardest jobs to automate.   The digital revolution generates enormous wealth for innovators and global companies, but preserving a healthy society will surely require redistribution of that wealth. There is talk of using it to provide a universal income. It is better when all who are capable of doing so can perform socially useful work rather than receive a handout.   Indeed, to create a humane society, governments will need to vastly enhance the number and status of those who care for the old, the young, and the sick. There are currently far too few, and they’re poorly paid, inadequately esteemed, and insecure in their positions. Such work is more fulfilling than a job in a call centre or Amazon warehouse. I can foresee this benign redeployment happening in Scandinavia, though there might be ideological barriers in some other nations. We surely hope, when old, to be cared for by someone with real, not synthetic, empathy. We want young children to be told stories by real people who can share and understand their emotions. It is likely that society will be transformed by autonomous robots, even though the jury is out on whether they will be idiots savants  or display superhuman capabilities.   If robots become less clumsy in interacting with the world, would they truly be perceived as intelligent beings? Would we then have obligations towards them? Should we feel guilty if they are underemployed or bored? Ray Kurzweil, author of The Age of Spiritual Machines , even foresees that humans could transcend biology by merging with computers. In old-style spiritualist parlance, they would ‘go over to the other side’. We then confront the classic philosophical problem of personal identity. If your brain were downloaded into a machine, in what sense would it still be ‘you’? Or are the input into our sense organs, and our physical interactions with the real external world, so essential to our being that this transition would be not only abhorrent but also impossible? These are ancient conundrums for philosophers, but practical ethicists may soon need to address them.   Not even Kurzweil thinks this will happen in his lifetime, so he wants his body frozen until immortality’s on offer, and he can be resurrected into some posthuman world.[3] But of course research on ageing is being seriously prioritised. Some think it’s a ‘disease’ that can be cured. Dramatic life extension would plainly have huge ramifications, for society and population projections.   It’s certainly credible that human beings—in their mentality and their physique—may become malleable through genetic and cybernetic technologies. Moreover, this future evolution—a kind of secular ‘intelligent design’—would take only centuries, in contrast to the thousands of centuries needed for Darwinian evolution. This is a game changer. When we admire the literature and artefacts that have survived from antiquity, we feel an affinity, across a time gulf of thousands of years, with those ancient artists and their civilisations. But we can have zero confidence that the dominant intelligences a few centuries hence will have any emotional resonance with us, even though they may have an algorithmic understanding of how we behaved.   Prospects in space   And now I turn briefly to another technology: space. This is where robots surely have a future, and where I‘d argue that these changes will happen fastest and should worry us less.   We depend every day on space for satnav, environmental monitoring, communication, and so forth. These are in large part now commercially funded, though projects with a focus on scientific research and planetary exploration are bankrolled by national or international agencies.   During this century the whole solar system will be explored by swarms of miniature probes, far more advanced than the probes that have beamed back pictures of Saturn’s moons, of Pluto, and beyond—20,000 times further away than the Moon. Think back to the computers and phones of the 1990s, when these probes were designed, and realise how much better we can do today. The next step will be deployment in space of robotic fabricators, which can build large structures under zero gravity—for instance, solar energy collectors, or giant telescopes with huge gossamer-thin mirrors   What about manned spaceflight? The practical case gets weaker with each advance in robots and miniaturisation. Were I an American, I would only support NASA’s un manned programme. And I certainly wouldn’t support a manned programme done by the European Space Agency. I would argue that private ventures like Elon Musk’s SpaceX or Jeff Bezos’ Blue Origin—bringing a Silicon Valley culture into a domain long dominated by NASA and a few aerospace conglomerates—should ‘front’ all manned missions. They can impose higher risks than can a Western country on publicly funded civilian astronauts, and thereby slash costs. There would still be many volunteers—some willing to accept the risk of ‘one-way tickets’—driven by the same motives as early explorers, mountaineers, and the like.   By 2100, courageous thrill-seekers may have established ‘bases’ independent from the Earth—on Mars, or maybe on asteroids. Elon Musk says he wants to die on Mars (though not on impact). But don’t ever expect mass emigration from Earth. Nowhere in our solar system offers an environment as clement as even the Antarctic or the top of Everest. Here I disagree with Musk and my late colleague Stephen Hawking. It’s a dangerous delusion to think that space offers an escape from Earth’s problems. Dealing with climate change on Earth is a doddle compared to terraforming Mars. There’s no ‘planet B’ for ordinary risk-averse people.   But those pioneer adventurers who escape the Earth could be cosmically important. This is why. They’ll be ill-adapted to their new environment, and beyond the clutches of our terrestrial regulators. They will use all the resources of genetics and cybernetics to adapt. They will change faster and could within a few centuries become a new species. Moreover, if they make the transition to fully inorganic intelligences, they won’t need an atmosphere. They may prefer zero-G. They’ll also be nearly immortal. So it’s in deep space—not on Earth, nor even on Mars—that non-biological ‘brains’ may develop powers that humans can’t even imagine.   This raises the question that astronomers are asked most often: is there life out there already? Or is a sterile cosmos awaiting our progeny? We know too little about how life began on Earth to lay confident odds. We don’t know what triggered the transition from complex molecules to entities that can metabolise and reproduce. Moreover, even if simple life is common, it is not clear whether it’s likely to evolve into anything intelligent or complex.   Maybe we’ll one day find ET. On the other hand, Earth’s intricate biosphere could be unique. But it’s important that this wouldn’t render life a cosmic sideshow. That’s because there’s abundant time ahead for posthuman life seeded from Earth to pervade the Galaxy. We’re the outcome of four billion years of Darwinian evolution, but the Sun is less than half way through its life. And the universe may continue for ever. To quote Woody Allen, eternity is very long, especially towards the end.   But even in this ‘concertina’ed’ timeline, extending billions of years into the future as well as into the past, we’re living in a special century. The century when humans could jump-start the transition to entities that far transcend our limitations, and eventually spread their influence far beyond the Earth. Or—to take a darker view— the century where our follies could foreclose the immense future potential and leave an anarchic and depleted planet.   On our future, this century   Zooming back closer to the here and now, one can offer some tentative hopes, fears, and recipes.   Technologies offer huge promise. But our society is brittle, interconnected, and vulnerable. We fret unduly about small risks— air crashes, carcinogens in food, low radiation doses, etc. But we’re in denial about some newly emergent threats that could be globally devastating. Some of these are environmental—the pressures of a growing and more demanding population. Others are the potential downsides of novel technologies.   And, of course, most of the challenges are global. Coping with potential shortage of food, water, and resources—and transitioning to low-carbon energy—can’t be achieved by each nation separately. Nor can regulation of potentially threatening innovations. Indeed, a key issue is whether nations need to give up more sovereignty to new organisations along the lines of the International Atomic Energy Agency, the World Health Organization, etc.   Scientists have an obligation to promote beneficial applications of their work and warn against the downsides. Universities and academies need to assess which scary scenarios—eco-threats, or risks from misapplied technology—can be dismissed as science fiction, and how best to avoid the hazards that cannot be so dismissed.   The trouble is that even the best politicians focus mainly on the urgent and parochial. They do not focus on long-term global issues, or on averting possible catastrophes that haven’t yet happened, unless such policies feature sufficiently prominently in the press and in their inboxes that they are confident they won’t lose votes by endorsing them.   So concerned scientists must enhance their leverage—by involvement with NGOs, via blogging and journalism, and by enlisting charismatic individuals and the media to amplify their voices. Here are two recent instances:   The Papal encyclical Laudato Si’  had a worldwide influence in the lead-up to the Paris climate conference in 2015. There’s no gainsaying the Catholic Church’s global reach, long-term vision, and concern for the world’s poor.   And I doubt that we in the UK would have legislated against non-biodegradable plastic waste had it not been for the BBC’s Blue Planet II  television programmes fronted by our secular pope, David   Attenborough. The images of albatrosses returning to their nests and regurgitating plastic debris are as iconic as the polar bear on the melting ice floe was in the climate debate.   It’s encouraging to witness more activists among the young, who can hope to live to the end of the century. Their vocal commitment is welcome. It gives grounds for hope.   I’ll end with a flashback, right back to the Middle Ages. For medieval people, the entire cosmology—from creation to apocalypse—spanned only a few thousand years. They were bewildered and helpless in the face of floods and pestilences, and prone to irrational dread. Large parts of the Earth were terra incognita .   But they built cathedrals, constructed with primitive technology by masons who knew they wouldn’t live to see them finished—vast and glorious buildings, that still inspire us centuries later.   In contrast, our horizons in space and time are now vastly extended, as are our resources and knowledge. But we don’t plan centuries ahead. This seems a paradox. But there is a reason. Medieval lives played out against a ‘backdrop’ that changed little from one generation to the next. They were confident that they’d have grandchildren who would appreciate the finished cathedral. But for us, unlike for them, the next century will be drastically different from the present. We can’t foresee it, so it’s harder to plan for it. There is now a huge disjunction between the ever-shortening timescales of social and technological change and the billion-year time spans of biology, geology, and cosmology.   ‘Spaceship Earth’ is hurtling through the void. Its passengers are anxious and fractious. Their life-support system is vulnerable to disruption and breakdowns. But there is too little planning—too little horizon-scanning. This ‘pale blue dot’ in the cosmos is a special place. It may be a unique place. And we’re its stewards at a specially crucial era. That’s an important message for us all, whether or not we’re astronomers.   We need to think globally, we need to think rationally, we need to think long-term. We need to be ’good ancestors’, empowered by twenty-first-century technology but guided by values that science alone can’t provide. Professor Lord Rees Professor Martin Rees, Lord Rees of Ludlow OM FRS, is the UK’s Astronomer Royal. He is based at Cambridge University where he is a Fellow (and former Master) of Trinity College. He is a former President of the Royal Society and a member of many foreign academies. His research interests include space exploration, high energy astrophysics, and cosmology. He is co-founder of the Centre for the Study of Existential Risk at Cambridge University (CSER), and has served on many bodies connected with education, space research, arms control, and international collaboration in science. In addition to his research publications he has written many general articles and ten books, including most recently  On the Future: Prospects for Humanity (paperback version due in October 2021). [1] I’d note that there’s one policy context when an essentially zero discount rate is applied: radioactive waste disposal, where the depositories are required to prevent leakage for at least 10,000 years. This is somewhat ironic, since we can’t plan the rest of energy policy even 30 years ahead. [2] Pandemics also cause far more societal breakdown than in earlier centuries. English villages in the fourteenth century continued to function even when the black death halved their populations. In contrast, our societies would be vulnerable to serious unrest as soon as hospitals were overwhelmed– which would occur before the fatality rate was even one percent. (And there’s likewise huge societal risk from cyberattacks on infrastructure, etc.) [3] I was surprised to find that three academics back in England had gone in for these ‘cryonics’. Two had paid the full whack; the third had taken the cut-price option of wanting just his head frozen. I was glad they were from Oxford, not from my university. For my part, I’d rather end my days in an English churchyard than an American refrigerator.

I have not read all the tributes that have been made to John Hume since his death in 2020, but I doubt if many—perhaps any—of them have got to the heart of his real achievement, which was twofold. On the one hand, he prevented a settlement of Northern Ireland’s constitutional status that seemed to be a real possibility in the late seventies and early eighties on what might have been called ‘Unionist’ principles (though it could have resulted in the end, or radical decline, of ‘Unionism’ as a force in Northern Ireland politics). On the other hand, along with Gerry Adams, Charles Haughey, and Father Alec Reid of the Clonard monastery in Belfast, he found a means by which the IRA could lay down its arms without the appearance of having been defeated—an appearance of defeat that would have had very damaging consequences for the cultural and political coherence of the Catholic community in Northern Ireland.   It needs to be said straightaway that the IRA were not defeated. Their achievement in maintaining the war and driving their enemies— the British army, with all the resources, both overt and covert, it possessed, together with the array of Ulster Protestant paramilitary forces—to a stalemate is very impressive. Pat Walsh, in Resurgence , his remarkable study of the resurgence of the Catholic community starting in the 1960s, suggests that, even as early as the late 1970s, elements in the IRA leadership had recognised that they could not ‘win’, if ‘winning’ meant ‘securing a united Ireland’.[1] But by that time so much energy, skill, and determination had been invested in the campaign that it had become the emblem of Catholic—especially Catholic working-class—resolve never to return to the near-50 years of humiliation they had suffered since the Westminster government imposed a separate, necessarily Protestant-dominated, government on them. An appearance of defeat would have had a severely demoralising effect on the community as a whole, the more so because so many young people were joining (with all the dangers—and excitement—that that implied), not because of any great longing for a united Ireland, but simply out of outrage at the presence of army soldiers in their streets and army helicopters in their skies.   A disruptive system of government   In the early 1980s, it was possible to believe (I certainly believed) that Northern Ireland was headed, on autopilot so to speak, towards what could have been a stable and permanent settlement. In principle, the political problem had been solved in 1972, with the ‘suspension’ of Stormont. Precisely because of the Catholic/Protestant division, Northern Ireland was the part of the United Kingdom least suitable for the establishment of a devolved government. In Northern Ireland, devolved government could only mean a permanent Unionist (Protestant) majority lording it over a permanent Nationalist (Catholic) minority. This was obviously not what the Catholic minority wanted. But the Catholic position wasn’t a simple matter of Republican sentiment. Catholic Ulster had been a redoubt of the old Home Rule movement against the new, determinedly separatist, Sinn Fein. The leading Ulster Catholic politician, Joseph Devlin, was well connected in Westminster and particularly well placed with regard to the emergence after the First World War of the Labour Party. He had been very much looking forward to continuing his Westminster career under the new circumstances that would have been created by Home Rule (a relatively minor devolution of power analogous to the present arrangements for Scotland and Wales). Even after partition, if Northern Ireland had continued to be governed directly by Westminster he would have made a formidable tribune for the Ulster Catholics. As it was, with effective power in the hands of his lifelong enemies, and all the political parties in Westminster washing their hands of responsibility for the place, it was as if he had the legs cut out from under him.   But nor did the Ulster Unionists want a devolved government for their part of Ireland. When, in May 1920, the Government of Ireland Act came to the House of Lords, the Unionist leader, Sir Edward Carson, abstained and protested powerfully, saying:   It has been said over and over again, ‘you want to oppress the Catholic minority, you want to get a Protestant Ascendancy over there’. We have never asked to govern any Catholic. We are perfectly satisfied that all of them, Protestant and Catholic, should be governed from this Parliament and we have always said that it was the fact that this Parliament was aloof entirely from these racial distinctions and religious distinctions, which was the strongest foundation for the Government of Ulster.[2]   Alas, though, it is one of the properties of power that once one has possessed it one is very reluctant to renounce it. The Unionists were outraged at the suspension of Stormont and desperately anxious to get it back again. In fact, had they possessed rather more political intelligence than they did, they might have noticed that, as a result of the suspension of Stormont (and the conviction that it would never be restored on a simple majority rule basis) something was happening that was very much in their interests—or at least in the interest of the ‘Union’ they claimed they wanted to preserve.   So long as Northern Ireland continued under the domination of the Stormont government, Catholics were largely (not entirely) absent from its administrative structures. The extent to which this was a product of Protestant discrimination or of Catholic boycott might be a matter of controversy but the fact was certain. Catholics found it very difficult, if not impossible, to work under the direction of people they had long experienced as being deeply anti-Catholic. It is enough in this context to mention the power of the Orange Order. Even if they were opposed in principle to rule by Westminster, however, their feelings about it were very different. It wasn’t by definition an anti-Catholic government. Catholics began in large numbers to enter the civil service and other administrative structures. In the nature of things they began in the lower ranks but as time progressed they began increasingly to assume positions of responsibility. They were developing an interest in the wellbeing of Northern Ireland as a political entity. The Protestants, lacking political wisdom, looked on this development with bitterness. But they should have welcomed it.   A stable system of government?   So the Catholic ‘resurgence’ took two apparently contradictory forms. On the one hand they were advancing in positions of power and responsibility within Northern Ireland. On the other hand they were successfully defying a professional army that boasted (justifiably or not, that is another matter) of being among the most capable military forces in the world. One could see in this a division of class—middle-class ‘careerism’, working-class militancy. And one could see it reflected in the two main political parties— middle-class SDLP, more working-class Sinn Fein. But it is more accurate and useful to see it as two sides of a single movement, a single resurgence.   It may have been the genius of John Hume that, despite being the leader of the SDLP, whose political representatives for the most part genuinely hated the IRA, he knew that the two sides of the resurgence were complementary, not contradictory. But he was faced with a problem. Left to its own devices the Northern Ireland problem risked finding a resolution that would certainly suit the ‘careerist’ side of the equation but would not solve the problem posed by the military side.   I must stress that I am not using the word ‘careerist’ in a derogatory sense. It was a merit of direct rule that career paths were opening for Catholics which had previously been closed. And this raised the question as to whether or not there was any need for a devolved legislature in Northern Ireland. A poll conducted in 1978 (the ‘Northern Ireland attitude survey’ by EP Moxon Browne and B Boyle) found that 96.6% of Protestants and 92.2% of Catholics felt that ‘Northern Ireland should have the same laws as the rest of the United Kingdom.’ A series of National Opinion Poll surveys conducted between 1974 and 1982 had posed the question of whether ‘integration’—direct rule from Westminster as a stable and permanent constitutional settlement—was an acceptable option. Large majorities of Protestants, fluctuating between 78% (1974) and 91% (1981) found it acceptable. That might seem unsurprising given that this was obviously the most ‘Unionist’ option, but we should bear in mind that it would have meant renouncing for good all the power and patronage that went with their most favoured option: majority rule devolution.   The figure among Catholics fluctuated between the lowest at 35% (1981) to the highest, 55% (1976). The figure in 1982 was 45%. Although of course much lower than the Protestant percentages, these figures are still remarkable given that this was the most ‘Unionist’ option and that all sections of the Catholic political establishment regarded it with the deepest hostility. Had equivalent percentages among the Protestant population regarded a united Ireland as an acceptable option the figures would have been recognised as significant.   What would have been necessary to bring it about? When Stormont was suspended, Northern Ireland was in the middle of a radical reorganisation of local government. According to an obituary for Sir Patrick Macrory, the architect of this reorganisation:   Under the report, urban district, rural district and county councils were all abolished, their responsibilities for health care, education and planning transferred to Stormont and their remaining powers over things like dustbins and burial of the dead vested in 26 district councils. The removal of Stormont, never envisaged under the report, produced the famous Macrory Gap, eventually filled with largely nominated quangos to handle those important local government functions administered by councils in the rest of the UK.[3]   In the early 1980s, the Unionist Party, under the leadership of James Molyneaux, argued for the reestablishment of Stormont, without legislative powers, as a top tier of local government that would fill the ‘Macrory gap’. To satisfy the natural devolutionist desires of almost all professional politicians in Northern Ireland the policy was called ‘administrative devolution’, but it would have provided Northern Ireland with a perfectly adequate and democratic system of government. Arrangements could have been made for a division of responsibilities among the different parties, Catholic and Protestant and, given the engagement of all parties, including Sinn Fein, in the still available lower level of local government, it would have been difficult to refuse engagement in the exercise of the more substantial powers (over education, health, and planning) that would have been available in the upper tier. This could easily have evolved into a legislature at some future date if that was thought to be desirable.   Interestingly, such a closing of the Macrory gap had been envisaged in the Conservative Party’s 1979 manifesto, which read: ‘In the absence of devolved government, we will seek to establish one or more elected regional councils with a wide range of powers over local services.’ It was widely believed that this apparently modest suggestion had been included on the initiative of Airey Neave, the Tory Shadow Secretary of State for Northern Ireland and a close friend and associate of Margaret Thatcher’s. He had been killed by a bomb fixed under his car only a couple of days after the vote of no confidence that brought down the Labour government and brought Margaret Thatcher into power. His Northern Ireland policy was almost immediately abandoned. When, in 1982, James Prior, as Secretary of State for Northern Ireland, established yet another powerless Northern Ireland assembly as part of a process he called ‘rolling devolution’, the possibility of it becoming an upper tier of local government was deliberately excluded. The devolution to be rolled out could only be legislative devolution, granted when suitable agreement could be found (it never was) department by department.   Two sovereign governments   I have elaborated on this possibility of ‘administrative devolution’ at some length because I think it helps us to understand the enormity of John Hume’s achievement in bringing about the ‘Anglo-Irish Agreement’ of 1985. It would be difficult to argue that this did anything to improve the conditions of life for Catholics or to bring the war to an end. In driving the Unionists into a state of near madness it had the opposite effect. The level of violence, which had been on the decline prior to the Agreement, rose again. But in effectively giving the Republic’s government a veto over legislative proposals for Northern Ireland it put an end to the possibility of establishing constitutional stability on the basis of direct rule.   For John Hume, the advance or otherwise of Catholic interests in Northern Ireland was not the primary issue. The primary issue was sovereignty. The partition of 1920 had been a wrong done to the Irish people as a whole. The only eventual solution was Irish unity. But this could not be achieved straightaway. What was required therefore was an interim arrangement that would contain within it an impetus towards Irish unity. That impetus would be provided in the first instance by ‘an immediate declaration by Britain that she believes that it would be in the best interest of all sections of the Communities in both Islands, if Ireland were to become united on terms which would be acceptable to all the people of Ireland and that she will positively encourage the prosecution of this view point.’   The interim arrangement would have to reflect the two national allegiances existing in Northern Ireland, giving them each an equal value:   In the absence of a settlement which they will regard as better than their present position Protestant loyalty in general will remain partly to Britain, partly to themselves as a people, to their way of life and to a British link as a safeguard of that way of life. On the other hand Catholics in general will continue to give their loyalty to Ireland. Immediate unity therefore means defeat of Protestants and victory for Catholics, and the continuation of the present constitutional relationship with Britain means victory for Protestants and defeat for Catholics. Either would mean the continued existence of political violence by dissident minorities.   These quotations are from Towards a New Ireland , the proposals submitted by the SDLP in 1972 to the negotiations that eventually produced the Sunningdale Agreement of 1974.[4] The practical proposals were for a legislative assembly in which the position of minority parties would be enhanced through proportional representation, both in the elections to the assembly and in the election by the assembly of an executive committee. Any legislation passed in the assembly would require the signature of two ‘commissioners’, one appointed by the British sovereign government, the other by the Irish sovereign government. The sovereign governments between themselves would have responsibility for security. Flags of both sovereign states would have equal status. The people of Northern Ireland would not send representatives either to Westminster or to the Dail.   This was broadly the framework that determined Hume’s whole political career, at least prior to his involvement in the ‘peace process’ which, I shall argue, had quite different roots. The power-sharing devolved government established through the Sunningdale agreement fell, as we know, through a massive strike by the Protestant working class which, among much else, had control of the country’s electricity supply. But this strike was not, at least at first, directed against the principle of power sharing. It was a protest against the ‘Council of Ireland’ which was to be set up as part of the Sunningdale arrangements. The success of the agreement depended massively on the personal popularity of Brian Faulkner, leader of the Unionist Party at the time of the negotiations. But Faulkner had lost the leadership of the Unionist Party. His position as head of the executive was extremely fragile. The Council of Ireland gave the Republic’s government a consultative role in the government of Northern Ireland. Faulkner had agreed to this on the understanding that the Republic’s government had renounced its claim to rightful sovereignty over Northern Ireland. But that claim was built into the Republic’s constitution. When the renunciation of sovereignty was challenged in the courts the government said in its defence that its recognition of Northern Ireland was a mere acknowledgement of existing political realities and in no way binding on future Irish governments. In those circumstances the strikers demanded that the Council of Ireland be abandoned. Faulkner and many others appealed to the SDLP to renounce the Council of Ireland at least temporarily but they refused. For them the involvement of the Republic in the government of Northern Ireland was an essential principle. Indeed, in the few months of the executive’s existence they had made it clear that they regarded Dublin, not Westminster, as their own sovereign government. As a result of this—and of the insistence of both the SDLP and the Westminster government on treating the strikers as if they were engaged in a Fascist putsch—support for the strike grew massively and the whole promising power sharing experiment came to an end.   It was of course very fragile and might have come to an end anyway but that cannot be known for certain. What is certain is that, in that moment of truth, the SDLP regarded the principle of Irish government involvement in the governance of Northern Ireland as more important than the maintenance of power sharing.   Charles Haughey and the dangers for the Southern government   Looked at from the point of view of the Southern government, however, this was a very dangerous principle. Towards a New Ireland  had recognised the right of the Ulster Protestants to maintain the link with Britain ‘in the absence of a settlement which they will regard as better than their present position.’ It had argued that the Catholic sectarian nature of the Republic was a product of the fact that the Protestant element had been abstracted from it by partition. The Republic of Ireland would have been a very different country, culturally and economically, had the Ulster Protestants been a part of it. This was putting a responsibility on the Republic to change in such a way as to satisfy the desires of a people—the Ulster Protestants—traditionally hostile to its Catholic and Gaelic culture. It implied a considerable infringement of the right of the people of the Republic to order their own affairs. It would also—had the full SDLP programme been implemented—have implicated their government in the messy business of maintaining order in Northern Ireland—‘the provision of a firm basis for concerted governmental and community action against terrorist organisations’, to quote the document prepared by the British government to introduce the Sunningdale principles.[5]   The person who seems to have understood this most clearly was Charles Haughey. Haughey could hardly be accused of indifference to the wellbeing of the Northern Catholics. At the time when the IRA had lost its military capacity, having committed itself fully to the civil rights struggle as the way forward, Haughey was instrumental in the then-Irish government policy of helping the Catholic community arm itself against the intense and murderous assault it was enduring at the hands of the Protestants. His political career was nearly ruined when the government of Jack Lynch backtracked and tried to pretend that this was an individual and illegal initiative on the part of the ministers and army personnel involved.[6] But Haughey never supported Hume’s idea that the Irish government should share responsibility with the British government for running Northern Ireland. Nor that the Republic, having fought hard to secure its independence, should bend its own culture and mores into a shape designed to attract the population of Northern Ireland that considered itself to be British.   Haughey’s disagreement with Hume was evident in the 1980s when Hume persuaded the government of Garret FitzGerald (who had been Irish Foreign Secretary at the time of the Sunningdale Agreement) to launch the ‘New Ireland Forum’. The Forum’s report published in May 1984 bears a marked resemblance to the SDLP’s document of 1972, Towards a New Ireland . It amounts to an argument for what it calls ‘joint authority’, joint rule by the two sovereign governments in which the role of a devolved assembly is more marginal than it is in Towards a New Ireland : ‘Joint authority would involve shared rule by   the British and Irish governments. Although this could be exercised directly, there would be enabling provision for the exercise of major powers by a locally-elected Assembly and Executive.’ In other words, it could operate quite happily in the absence of any locally elected assembly, given the apparent impossibility at the time of bringing one into existence. Nothing was said about the Macrory gap and the simple objective need for a reform of local government structures. Nor was anything said for or against Northern Ireland sending representatives to Westminster or the Dail.   ‘Joint authority’, however, is only one of three options put forward in the Forum report. There was also a ‘unitary state’ and—apparently on the principle that all good things come in threes—a federal/confederal state—essentially Northern Ireland remaining as a separate state within an Irish confederation, a proposal I think from the Irish Labour Party that was never pursued with any vigour. Effectively there were two proposals: unitary state or joint authority. John Hume had clearly hoped to secure the support of parties representing ‘over 90% of the nationalist population and almost three quarters of the entire population of Ireland’ for joint authority. He was willing to concede unanimous support for any of the three options, including joint authority. But in the event Haughey, as leader of Fianna Fail, then in opposition, insisted that the only proposal that had secured unanimous support was ‘unitary state.’   Although he had initiated discussions with the British government when he was Taoiseach, Haughey was also very reticent with regard to the Anglo-Irish Agreement. To take up Pat Walsh’s account in Resurgence :   Haughey opposed the Hillsborough Treaty, despite considerable pressure even from within his own party, on the basis that it was a purely inter-Governmental arrangement that excluded the internal political forces of the North. He pointed out to the Irish negotiators of the Hillsborough Treaty that any recognition made of British sovereignty in the North would be unconstitutional. The Agreement they signed could not override the Constitution. [In the event, in 1998, as part of the Good Friday Agreement, Articles 2 and 3 of the Constitution which claimed sovereignty over Northern Ireland, were changed through a referendum.] He described the North as a ‘failed entity’ that should not be meddled with. In this way he made a grand Republican gesture against the Treaty that helped him disengage from the North on the basis that to do so [ie to engage with the North] would be futile and simply create antagonism ... Haughey’s view of the Hillsborough Treaty, and his refusal to fish in troubled waters was proved to be fully justified by the extent of Unionist opposition to the Treaty. Later, taking it to be an established fact, he moved towards lukewarm support of it. And, when he returned as Taoiseach, he kept its apparatus in being, but operated it in the most minimal forms possible in co-operation with Tom King, the new British Secretary of State, who also saw it as an antagonising influence on the North.[7]     The ‘peace process’   Following Walsh’s account, the ‘peace process’ began with discussions between Gerry Adams on behalf of the Republican movement, and the Redemptorist priest Father Alec Reid. Beginning in 1985, Fr Reid began discussions with Haughey. Walsh quotes Kevin Rafter’s biography of Martin Mansergh, Haughey’s go-between for discussions with Adams, describing a meeting with Reid:   The Fianna Fail leader listened to Reid outline a scenario detailing how the IRA could be persuaded to call a ceasefire ... Reid argued that the Adams-led Republican leadership could be convinced to lay down their arms, but that this could only come about through face-to-face discussion. Talk had to be aimed, in the first instance, at ending the isolation of the Republican movement. Adams and his supporters had to be shown that a broad constitutional and nationalist family existed which they could join to pursue the objective of a united Ireland. But this would only come about when the IRA no longer felt that it was out on its own.[8]   Hume joined the process when he met Adams   […] in January 1988, when hostility toward Republicanism in the aftermath of Enniskillen was at a very high level.[9] When this was revealed, Haughey made a point of publicly backing the ‘integrity and judgement’ of Hume in engaging in talks with Sinn Fein, against the SDLP leader’s critics, without saying anything about his own earlier initiative. Hume then informed and instructed the SDLP to hold a series of talks with Sinn Fein at Clonard monastery in March 1988.   In 1989, my namesake, Peter Brooke, arrived in Northern Ireland as Secretary of State. I myself had left for France in 1987. Without wishing to follow the course of the ‘peace process’ in detail, Hume’s principal intellectual contribution was his argument that any settlement had to take account of the ‘totality of the relationships’— again, a matter of good things coming in threes. There were the relations between Catholics and Protestants in Northern Ireland, between Northern Ireland and the Irish Republic, and between the Irish Republic and Britain as a whole. This provided the basis for the ‘three strands’ of the final Good Friday Agreement. ‘Strand One’ covered Democratic institutions in Northern Ireland (relations between Catholics and Protestants); ‘Strand Two’ covered North/ South ministerial council (relations between Northern Ireland and the Irish Republic); and ‘Strand Three’ covered the British–Irish Council/British–Irish intergovernmental conference (relations between the Irish Republic and Britain as a whole).   There was, however, one relationship that was missing from this analysis—the relationship between Northern Ireland and Great Britain, meaning the relationship between the people of Northern Ireland and what, despite everything, is still their sovereign government in Westminster. It was not much to the credit of the Unionists that they somehow failed to notice this. But whether they noticed it or not, it remains much more crucial to any understanding of the present condition of Northern Ireland than the arrangements for either North/South or British/Irish Republic cooperation.   Although on paper the Good Friday Agreement was a triumph for John Hume, looked at from his original perspective of ‘joint sovereignty’ it could indeed be seen as a failure. Hume saw the Irish government as the legitimate sovereign government of Catholics in Northern Ireland, and the British government as the perhaps somewhat less legitimate sovereign government of the Protestants in Northern Ireland. In fact it is doubtful if either side felt any particular confidence in their respective sovereign governments.[10] The normal process by which legitimacy is established in a democratic society is through elections. Owing to the refusal of the British and Irish political parties to organise and contest elections in Northern Ireland neither Protestant nor Catholic could actually vote for a party capable of forming their sovereign government. It is extremely doubtful if many Catholics ever felt any great sense of national solidarity with the government in Dublin. It is only recently that Sinn Fein, the principal beneficiary of the Good Friday Agreement, have recognised the Dail even as the legitimate government of the Republic, never mind the North. The principal achievement of the Good Friday Agreement has probably been to reconcile Sinn Fein to the continued existence of Northern Ireland, which was most certainly not John Hume’s original project.   I earlier outlined two sides to the Catholic ‘resurgence’ in Northern Ireland since the end of Unionist majority rule in 1972—a side I called, with no derogatory intention, ‘careerist’, and a military side, an assertion of the dignity of a people who had suffered 50 years of systematic humiliation on account of the system of government imposed on Northern Ireland since 1920. I have seen devolution, not partition as such, as the root of the problem. It may be that had James Molyneaux succeeded in his project of establishing an upper tier of local government, closing the Macrory gap, Northern Ireland would have acquired a perfectly adequate system of government that would not have had the effect any devolved legislature (including the present one) would have had, of exacerbating Catholic/ Protestant tensions. This may well have suited the careerist side of the equation, but it would have left the military side unsatisfied. To that extent perhaps the skill that John Hume showed in preventing such a settlement served a useful purpose in enabling the Catholic community as a whole to rejoice in the achievement of its military wing and enabling Sinn Fein, with all the political energy it had mobilised, to assume the role of guardian and promoter of the advance of the Catholic community within the Northern Ireland framework. But Northern Ireland still lacks a stable, democratic system of government. Given the difficulties of maintaining a devolved legislature in which the roles are divided between Sinn Fein and the DUP, Stormont is continually going into suspension. If this does not produce chaos it is because the functions of government continue to be exercised—by Westminster. Sinn Fein in Northern Ireland, while continually winning seats and refusing to take them up in Westminster, do not seem to be unduly upset by this. But it leaves one feeling that the problem—the basic problem of finding a stable system of governance—is still very far from having been solved. Peter Brooke Peter Brooke has a Cambridge PhD for his thesis on ‘Controversies in Ulster Presbyterianism, 1790-1832’, and is the author of Ulster Presbyterianism: The Historical Perspective, 1610-1970 (Gill & Macmillan 1987, Athol Books 1994). In the 1970s and 1980s he was a member of the Campaign for Labour Representation in Northern Ireland, trying to persuade the Labour Party to take members and contest elections there, and he was a frequent contributor to the paper Workers Weekly , which kept up a regular weekly commentary on Northern Ireland affairs from 1972 to 1988. He is not to be confused with the former Secretary of State for Northern Ireland of the same name. [1] Pat Walsh, Catastrophe and Resurgence: The Catholic Predicament in ‘Northern Ireland’ , vol 2 ( Resurgence, 1969-2016 , Belfast Historical and   Educational Society 2016) 287. ‘In 1977 Jimmy Drumm dropped a bombshell at Bodenstown when he gave formal recognition that the war was not being won by the Provos […] There was little doubt that the Army Council had countenanced the Bodenstown Address and it had fundamental consequences for the War. From then on the problem was how to end the war in a functional settlement. If the British Government did not facilitate an ending of the War on reasonable terms, it would undoubtedly have to be prolonged until it did, and it would have to be enhanced with politics to make up for the declining military position.’ [2] Quoted in ibid 126-27. [3]  The Independent  (London, 13 May 1993). [4] The submissions of all the parties are given in Northern Ireland Office, The Future of Northern Ireland: A Paper for Discussion  (HMSO 1972) 72–82. [5] Northern Ireland Office, Northern Ireland constitutional proposals  (Cmnd 5259, 1973) 30. [6] For this understanding of the ‘arms crisis’ see: Angela Clifford, The Arms   Conspiracy Trial, Ireland 1970: The Prosecution of Charles Haughey, Captain Kelly and Others  (A Belfast Magazine 3, Arms Crisis Series 3, 2009); Michael Heney, The Arms Crisis of 1970: The Plot that Never Was  (Apollo 2020); David Burke, Deception and Lies: The Hidden History of the Arms   Crisis  (Mercier Press 2020). [7] Walsh (n 1) 338. [8] Kevin Rafter, Martin Mansergh: A Biography (New Island Books 2002) 182 (as cited in Walsh (n 1) 339–40). Walsh incorrectly gives Mansergh’s first name as ‘Nicholas’. [9] A bomb set off by the IRA at a Remembrance Day event in Enniskillen in 1987 killed 11 people. [10] This statement must be modified since the Conservative Party does now take members and contest elections though without putting into it the effort one would expect of a party that believed it had something radically important to contribute to a resolution of our problems. Sinn Fein of course is organised on an all-Ireland basis, though with the interesting twist that it is capable of forming a government in Northern Ireland but not yet in the Republic.

Since the detection of massive Russian interference in the 2016 American presidential election, there has been a morass of studies analysing the manipulation, fakes, and distortions, particularly on the Internet, which seem to assault the very notion of truth.   In the US, we have been horrified and perplexed by the huge numbers of people who believed, without much evidence, that there had been massive fraud in the 2020 presidential election, of whom hundreds attacked the building housing Congress in Washington.   Still others are convinced by conspiracy theories about the nation’s elite being satanic paedophiles and cannibals swigging babies’ blood.   The world’s ability to achieve ‘herd immunity’ against the coronavirus pandemic is threatened, because millions of people across the planet believe vaccinations are a cunning cover to, among other nefarious goals, inject microchips into humans, or cause heterosexuals to become gay.   Numerous articles in publications ranging from the popular to the academic have discussed information manipulation, fake news, hybrid war—both classic black techniques used throughout history, and modern variants adapted for the new technologies which yielded ‘social media’.   That a significant proportion of the new range of technologies and media has been exploited to transmit downright lies—in the way every previous form of communication has also been subject to abuse—should not have been a surprise.   Most of us—some sooner than others—became aware of the previously secret techniques, such as sophisticated algorithms, working like Avatar predators, luring or prodding us into informational zones filled with traps.   These mechanisms were designed to influence our perceptions and shape our ideas, about everything from the shoes and cars we want to buy to the belief systems or political leaders we like to think we have chosen for ourselves.   Most of us have known for some time now that the very choice of what we clicked on in our Internet searches was guided by a mechanism whose overriding principle was that the longer we carried on clicking, the bigger the advertising revenue for the platforms delivering the websites.   They guided us to places that we cared to linger in because they reinforced our existing beliefs, and prejudices resulted in bigger profits.   Therefore, what troubles me is why, even when the deceptions and machinations are revealed, so many people continue as before.   I am not talking about people who are mentally ill or suffer other clinical handicaps. Or those we smilingly dismiss as eccentrics—the flat-Earthers, or people who insist American astronauts never reached the Moon.   What puzzles me is why millions of people who would previously have been described as holding ‘conventional’, ‘objective’, ‘rational’, ‘traditional’, ‘reasonable’ (etc) beliefs have embraced views that, at some level, prompt questions.   Perhaps young people who have throughout their lives acquired and trusted knowledge via the Internet have fewer of the reference points that previously led to commonly held truths, and are therefore more susceptible to contrived, semi-fictional, ‘alt-reality’ interpretations of their world.   But why are so many people whose formative years at least straddled pre-Internet Earth life also buying into outlandish narratives? Why   are they ignoring the signs that previously would have warned them something was amiss?   Bizarre conspiracy theories have nourished gossip and cults for at least as long as humans have been able to record their own histories.   It was easier in the past to rationally explain acceptance of lies or misconceptions.   After all, until relatively recently means of mass communication— several centuries of printed publications for a tiny minority who could read, and the initial decades of radio and television—reached relatively few, and were controlled by even fewer.   Mass susceptibility to propaganda was also easily explainable in, say, the previous decades of Soviet and Chinese totalitarianism, because populations could be almost totally isolated from the outside world.   In those circumstances, where all ‘news’ and information was filtered, invented, and packaged by the government, it was simply impossible for most inhabitants to independently check it.   Publications, radio and television programmes, phone calls, and letters—any information from beyond the state’s borders—could be completely blocked.   And if people persisted in trying to get forbidden information, they could be jailed or killed.   But in today’s biggest authoritarian regimes, China and Russia, there are vastly more connections to the outside world, and complete isolation is impractical.   Despite the efforts of authoritarian regimes to obstruct it, the Internet continues to function even in curbed, semi-controlled form, and provides a means of communication with, and access to information from, everyone on the planet.   And the citizens of those countries, who once could only dream of travel beyond their own borders, now visit by the thousands the countries vilified by Moscow and Beijing, and can see for themselves the conditions there.   Scores of Russian President Vladimir Putin’s closest cronies own luxury properties in the US. They have educated their children in British and American schools, and they take their wives and mistresses for shopping expeditions to London, New York, Paris, and Rome.   Yet they parrot Putin’s propaganda about Western amorality, decadence, dishonesty, and overall rottenness. Some perhaps do so merely in order to preserve their favour with Putin, but others do so with relish and enthusiasm.   More perplexing, perhaps, is the willingness of people in Western countries to buy into accusations, fake news, and conspiracy theories generated abroad, or into the more insidious ones concocted and sown by individuals or groups in their own countries.   Some of the most potent and harmful lies are produced by the myriad US and other Western outfits and individuals bent on fostering vicious divisions in their own societies.   In some parts of the US, the divisions are so deeply pronounced that wearing or not wearing a pandemic face mask has become a provocative political declaration which can lead to violent altercations or actual violence.   The capacity of Internet users in Western countries to check the facts is almost limitless, and restricted only by themselves. Mostly they need not fear that a secret policeman, monitoring what they click on or post, will visit them in the middle of the night.   Yet in the West millions of people have embraced, with unnerving passion, some of the most spectacular and absurd conspiracies that previously seemed to dwell in the eccentric or troubled minds of a tiny proportion of the population.   They believe the countless mendacious narratives that have generated entire ‘alt-reality’ universes, unmoored from truth and logic yet spreading no less fiercely than the coronavirus.   The lies range from the totally unhinged to the more plausible— from baby-eating paedophiles running Washington DC, to untested drugs or bleaches that can vanquish COVID-19.   For every one of these big lies infecting the Internet, there are scores of smaller lies, carefully manufactured in the Kremlin-financed troll farms of St Petersburg, by Chinese, North Korean, Iranian, and other malevolent actors, for political aims or for money. They are also manufactured by Western players.   The hundreds of pages of analysis I have read about fake information explain how the ubiquity of computers, iPhones, and other personal electronic communications devices has let the Internet vastly extend its reach.   I may have been reading the wrong things—they too have mostly come via the Internet—but this would not explain why people abandon guidelines learned previously for navigating the truth, in favour of ‘alt-reality’ and fantastical conspiracy theories.   One of the hallmarks of effective disinformation is a clever sprinkling of some truth amidst the lies.   New twentieth-century technologies of film and television widened the scope for blending truth and lies.   The Internet has greatly extended the reach of propaganda and increased the ability to produce boutique lies skilfully tailored for specific, sometimes niche, markets.   I had previously seen propaganda vilifying the enemy in conflict zones in Afghanistan, the Middle East, and former Yugoslavia.   While reporting on Ukraine’s 2004 ‘Orange Revolution’, I saw the Internet used effectively by young pro-democracy demonstrators. They used it to communicate truthful news mocking and countering the lies permeating the government-controlled media.   There were mass demonstrations, beginning in autumn 2013, that culminated in bloody revolution in February 2014 and ousted Ukraine’s pro-Kremlin and spectacularly corrupt president. During these, the government and the protesters used the Internet to spread ‘conventional’ lies and truths.   During the confusion of the days following the revolution, Russian dictator Vladimir Putin set in motion plans for an invasion of Ukraine’s Crimean peninsula.   I flew to Crimea to report on growing unrest there for the UK’s The Sunday Times  newspaper, unaware I had arrived on the eve of   Russia’s invasion of the peninsula.   Crimea is the only area of Ukraine where members of a Russian ethnic population outnumber the local Ukrainian (and Crimean) inhabitants.   The local authorities for years had been overwhelmingly Russian-ethnic and sympathetic to Moscow. Except for a tiny number of schools, far smaller than the proportion of ethnic populations should have dictated, education was conducted in Russian.   The Russian language was omnipresent in Crimea, as it was in much of southern and eastern Ukraine, where the majority of the population identified as ethnically Ukrainian.   Putin accused Ukrainian governments since the country’s 1991 independence of forbidding or obstructing the use of the Russian language, and otherwise persecuting ethnic Russians living in Ukraine.   This was despite the fact that most of Ukraine’s presidents and prime ministers primarily spoke Russian, with some only feebly learning Ukrainian after they got their top jobs.   I met many Russian-ethnic inhabitants of Crimea who wanted nothing to do with Putin’s Russia and joined pro-Ukrainian demonstrations.   But many told me and other journalists that they had felt persecuted because of using the Russian language.   When Hitler invaded the Soviet Union during World War Two, Crimea was the last part of the area that is now Ukraine that the Nazi forces captured.   The Soviet military held out on the peninsula in a prolonged, vicious battle. It claimed tens of thousands of casualties and was mythologised in scores of films, aired countless times every year, even after the disintegration of the USSR.   These films were frequently shown in Crimea by pro-Moscow authorities controlling TV channels after the pro-western and pro-democracy revolution had kicked out Putin’s puppets in the Ukrainian capital Kyiv, and in the run-up to the peninsula’s invasion by Russian soldiers.   Stories in the Russian media and on the Internet warned—without any basis in truth—that Ukrainians from the mass demonstrations in mainland Ukraine, branded ‘fascists’, were preparing to march into Crimea and slaughter ethnic Russians.   The narratives drummed in comparisons between the evolving contemporary situation and the 1941 Nazi invasion of the USSR. They blurred the borders between reality and fake in a way I had not seen before.   People, especially older ones brought up on a diet of those Soviet movies and myths, began to believe they were in imminent danger from hostile forces advancing toward them.   There was real fear, verging on hysteria. People put up barricades and tore sheets into strips as bandages for the battle they were convinced was coming.   One man at a pro-Moscow demonstration in the centre of the city of Simferopol explained that he and his friends had just seen Ukrainian nationalists with Nazi flags in their midst.   He was a taxi business owner, and was perfectly sober as he told me they were preparing to fight against the invading German army. I asked, ‘Surely you mean a fascist Ukrainian army?’ But he was emphatic it was a Nazi German army.   I also told him it was difficult to believe that any Ukrainians, however fanatical, would walk into a fervently pro-Russian demonstration waving Nazi flags. He was insistent that he had witnessed the scene, though he and his friends could not explain what had subsequently happened to the apparently suicidal Ukrainian nationalists.   The businessman and his friends had not been intentionally lying. They accepted the blend of lies, fiction, history, and myths that had been woven for them.   Under Putin, an aggressive, resurgent Russia worked to reimpose itself on the former Soviet empire. In the subsequent years, Ukrainians and others living in them experienced increasing amounts of this new type of propaganda. It not only spread lies, but contrived to construct an intricate fictional version of events and the world.   The Internet was used not only to sow confusion about truth and reality, but also to direct disruptive and potentially dangerous cyberattacks on features of the ‘real world’ such as electricity grids, nuclear power stations, and air traffic control towers.   Ukrainians had become accustomed to this new style of manipulating truth, and learned that it was part of Russia’s formula for ‘hybrid warfare’.   Those familiar with Russian hybrid warfare experienced a sense of déjà vu when increasing volumes of ‘alternative facts’ and ‘alt-reality’ narratives surfaced during the 2016 US presidential election campaign, and then during Donald Trump’s term as President.   Numerous US intelligence investigations concluded that the Kremlin had used hybrid warfare disinformation techniques on a massive scale to try to skew the election in Trump’s favour.   Although US agencies found that the Russians again tried to manipulate information to benefit Trump in the election of November 2020, domestic individuals and groups were held responsible for the mushrooming of ‘alt-reality’.   The process was, of course, massively aided and magnified by President Trump. Trump had never been averse to lying, and eagerly embraced (or did not deny) the fake narratives that played into the web of fake news and ‘alt-reality’ that he and his accomplices spun.   Trump asserted for months before and after the November ballot that he could only lose the election if his opponents stole it from him. This led to the violent assault on the Capitol on 6 January 2021. There is some evidence that time spent on computers affects which parts of the brain become active or dormant.   But new technologies and their accompanying media, although far more varied and widespread than in previous decades, have not by themselves erased our ability to distinguish truth from falsehood, or reality from fiction.     The overpowering reason may be that millions accept unfounded, untrue, even extremely bizarre beliefs, not because they are forced to but because such beliefs are more comfortable and pleasant than reality.   If you live in a country governed by a dictator—like Putin—whom you are helpless to remove by election, and who is responsible for a whole range of evils, then perhaps it is more comforting to accept the state-manufactured version of reality.   The admission that you live in a society where your vote is meaningless and where you are powerless to change anything must lead to frustration and an unbearable misery.   But if you enthusiastically convince yourself of a narrative that portrays your country as a beacon of noble values, perpetually threatened by a decadent, corrupt Western enemy, then a lot of the depression and feeling of powerlessness is lifted.   In the US, many from the European-origin population, which used to be dominant, see others as competing for a greater share of political and economic power. They fear that their traditions and beliefs are threatened.   Some undoubtedly have good reason to feel they have been neglected by successive governments, as their traditional industries and livelihoods wither away and the gap between the poorest and richest grows remorselessly.   Rather than address these complex problems, which require difficult compromises, it is perhaps easier to blame for their misery a secret, evil ‘deep state’ bent on global domination.   It is especially easy if it isn’t one random nutcase rambling about a sinister secret society running the world, but authority figures such as politicians, academics, journalists, pastors, and even the president of the United States, in the person of Donald Trump.   Pervasive new technologies, Internet-dominated media weaponised with lies, provide innovative and powerful ways to project illusions offering seductively simple solutions.   But in essence they do not differ markedly from the old techniques used by authoritarian regimes, whether communist or fascist, for providing simple explanations to still fears and focus hatreds.   Some of social media’s algorithms, shunting us to sites reinforcing our beliefs and prejudices, indeed have a whiff of a sinister, secret society about them.   Once loosed on the Internet, any idea, however bizarre, can gain a traction that propels it from what previously would have been a short life in a tiny community to digital immortality within a potentially huge audience.   But I do not believe, as some suggest, that the Internet has irreversibly rewired humans to make them stupider or nastier.   Many malignant forces have used new technologies and immense effort to persuade people that a comfortable perception of the truth is as valid as the real thing.   But our main struggle is not against a Terminator-like, inexorable technology. It is to stand our ground in the old battle between truth and falsehood, which is, ultimately, a contest between life and death. Askold Krushelnycky Askold Krushelnycky is an author and journalist who has lived in Washington, DC since 2011. Born in London to Ukrainian refugee parents, he gained a BSc in Industrial Chemistry and a postgraduate diploma in journalism. He began as a reporter on the  South London Press and went on to work as a staff foreign correspondent for several British national newspapers, including  The Sunday Times and  The European , and has contributed to many British and American publications. He reported in Crimea during the Russian invasion and has covered the subsequent conflict in Eastern Ukraine. In 2006 his book An Orange Revolution was published by Harvill Secker/Random House. He is planning a book about Ukraine and events since the 2014 revolution there and the start of the ongoing military conflict after Russia invaded.

Russia annexed the Crimea and started a war in the Donbas region of eastern Ukraine, but that wasn’t enough; now the Kremlin intends to steal borscht from Ukraine.   I didn’t intend to start an Eastern European culinary clash. My mission was to get borscht recognised as an aspect of Ukrainian national culture by UNESCO, the United Nations cultural heritage agency. Why? I was just fed up with restaurants around the world calling borscht a Russian soup. The last straw was when the Russian Foreign Ministry described borscht in a four-line tweet as one of the ‘most famous and popular dishes in Russia’.                                                        Borscht is one of the most popular dishes of Ukrainian cuisine, but it is more than just a dish. It’s not just about food, it’s about the nation’s cultural identity. The world-famous Ukrainian poet Taras Shevchenko ate borscht with dried carp. Also, there were Cossacks in a special Cossack register with the second name Borscht and it is rude not to refer to the villages Borschi, Borschiv, Borschivka that are situated in Ukraine. What is more interesting, some people believe in God and some don’t, but I’ve never seen a person that regrets tasting Borscht. Most likely every Ukrainian had Borscht this week. Almost 500 million litres of borscht are eaten in Ukraine every year.   During my ‘borscht expedition’, I’ve made a genuinely notable discovery. There is no canonical recipe of borscht, nor is there regional borscht. However, there are as many recipes for this dish as many families are living here. When two people meet each other and start a family, they give birth to a new Borscht recipe. These recipes vary from region to region, from family to family, from house to house, from apartment to apartment. As I told you before, there are literally as many recipes as families. No doubt, borscht is in our DNA.   Perhaps that is the reason why borscht is an essential element of Ukrainian identity. That is why it has become a key object of Russian propaganda. The pro-Kremlin media uses terms such as ‘borscht war’ and ‘battle of borscht’, while most Russians consider borscht Ukrainian. Once I talked to a German journalist based in Moscow who didn’t understand the fuss around borscht. He asked people on the streets which country borscht is from, and they answered that it is Ukrainian. ‘Then I went to a cafe’, he told me. ‘I asked cooks there: whose is borscht? I was also told that I was Ukrainian. And what is the problem?’ And here is the problem: people understand that borscht is Ukrainian while propaganda claims it is not.   Borscht is Ukrainian, and this historical fact is indisputable. Awkward fact: if you open an article about borscht on Ukrainian Wikipedia and then on the Russian site, you will decide that these are two different dishes. Russian propaganda tries to get its hands on borscht, claiming that this dish comes from the name of the plant borschivnik  (Heracleum), which is supposed to be the main ingredient in their variant. This version is absurdly awkward and doesn’t withstand any criticism because borschivnik is a poisonous plant, which is unacceptable for cooking.   Most likely, the name ‘borscht’ came from the Old Slavic ‘ brsch ’—beet or beet kvass. The first mention of the dish ‘borscht’ dates back to 1584. German trader Martin Gruneweg, who was traveling from Lviv to Moscow via Kyiv, wrote that he had stopped for the night over the Borshchavka river—now the Borshchahivka, which gave its name to Kyiv’s modern western outskirts. When Martin Gruneweg inquired about the history of the river’s name, Kyiv citizens explained that there was once a borscht bazaar in that area. But he didn’t believe it, because according to him, it didn’t make sense for Kyiv people to get so far from the city center for the sake of borscht. ‘Besides, Ruthenians rarely or never buy borscht, because everyone cooks it at home, it is their daily food and drink’, he wrote in his diary.   There are other mentions of borscht. In 1598, the famous Orthodox polemicist Ivan Vyshensky wrote about the peasants who ‘sipwater or borschik ’ from one bowl. There are seven Borshchivs and Borshchenkos in the register of the Zaporozhian Army of 1649 among the Cossacks. Moreover, in the history of the Razumovsky family, researcher Kazimir Valishevsky mentions that the Russian Tsarina Elizabeth fell in love with Alexei Razumovsky, ‘and after she fell in love with Ukrainian borscht.’   Besides, we want to single out one more fact—the researcher of USSR cuisines and the ‘father’ of Soviet cuisines William Pokhlobkin wrote in his book National Cuisines of our Peoples  that borscht is a Ukrainian dish that has gained wide popularity in the world.   There are not only historical arguments when it comes to questions of the origin and affiliation of borscht—there are also the depth of its roots in folk culture, regional distribution, and variety of recipes. In particular, proverbs and sayings are of great importance. For example, a children’s saying: ‘Go, go to the rain, I’ll cook you a borscht.’ In the dictionary of the Ukrainian language of Borys Hrinchenko from 1907, we find more than a dozen words derived from the word ‘borscht’. There are various names of borscht among them— borschik , borschichok , borschishche , borshchisko —and borschuvati  (to eat borscht) and borschivnitsa  (trade in borscht).   So there are no facts that would deny the nationality of borscht to Ukraine. But then how to explain the intensification of the Russian propaganda machine?   Russia seeks to take away our values so that we don’t form a nation. National identity consists of language, food, religion, and life. If you take away all elements, the nation will be vulnerable to aggressive manipulation. The Soviet Union ‘took’ the food from other nations. When it collapsed, as an offspring of the Soviet Union, Russia attributed all the food to themselves. They used the statement, ‘if it was in the Soviet Union, then the borscht is ours.’ As Taras Shevchenko wrote, Russians with their imperialistic thinking are sincerely convinced that ‘you are ours, and your things are ours.’   This propaganda was a crucial thing that forced me to legally consolidate borscht’s status as a Ukrainian national dish. As it turned out, borscht was never officially considered Ukrainian. The first mention of borscht is recorded in Ukraine. It is prepared and eaten by every Ukrainian, but borscht is not Ukrainian at the legislative level. We just didn’t think it had to be documented.   Our team worked hard for a year. I created a public organization—the Institute of Culture of Ukraine—with the support of the Сhumak Company and sent my team on a ‘borscht expedition’ throughout Ukraine. At the same time, we conducted a 12-stage preparation task to collect and approve all documents. It was a complicated process, but we managed to cope with it. Borscht is now on the National List of Intangible Cultural Heritage of Ukraine. In March, we are applying for the inclusion of the Ukrainian national dish in the UNESCO list of intangible heritage, and I believe that we will be successful.   For Ukrainians, borscht is more than just a dish. Borscht is a part of Ukrainian identity and our national value. An influential cultural phenomenon and the answer to the question: ‘What unites Ukrainians?’ If it is not worth fighting for, then what is? Yevhen Klopotenko Yevhen Klopotenko is a Ukrainian chef, television presenter, and culinary expert. He has been recognized as one of the most promising leaders in the world of gastronomy and entered 50 Next, a global list of 50 people under 35 who are shaping the future of gastronomy. He also founded a non-profit organization to advance borscht as the national food of Ukraine worldwide. He is working on recognition of borscht as part of Ukraine’s cultural heritage by UNESCO.

On 11 September 2001, as I walked to the Rome bureau of  The New York Times , I stopped in a café on the Campo di Fiori to see why a crowd had gathered to watch CNN. Just as I edged towards the bar, the second plane crashed into the World Trade Center.   In the silence that engulfed the room, everyone understood that the world had suddenly become a different place. A torrent of thoughts rushed through my head as I imagined seismic geopolitical upheaval, but mostly I stood there, overwhelmed by the enormous and symbolic violence of the attack. Certainly, I did not understand how this moment would, in tandem with the digital charge of the internet, be the catalyst that would change my life as a photojournalist.   Shaking me from numbness, an editor called a few hours later and asked me to depart to Gaza as soon as possible. And so, I duly left for the Middle East the next morning. I saw daily violence between Palestinian youths and Israeli forces, but nothing out of the ordinary happened. After two weeks yo-yoing between Gaza and Jerusalem, the paper called again and asked if I would be prepared to head to Afghanistan. To convince me, they dangled a carrot: a digital camera. I had never seen a physical digital camera, even though there had been models available for over a year. When I had been in Kosovo in 1999, The New York Times had sent one with a photographer who had arrived from the United States, but the day before he was supposed to hand it over to me, he somehow managed to drop it into a river. The editors were almost as unhappy as I was—the camera had cost them $12,000.   Unpacking the box, I looked with equal wonder at the small screen on the back of the camera and the sizeable instruction manual that came with it. I took a plane the next morning to Moscow, and another the day after to Tajikistan. This was the jump-off point for reporters heading into northern Afghanistan, where the base of the Northern Alliance was located. I remember still trying to decipher the manual when I arrived in Dushanbe.   Taking the camera in my hands, I was surprised by two things. Firstly, that the operation was almost the same as using a film camera—though why I had been expecting something different, I am not sure—and secondly, that the camera was so big, and heavy. It felt robust, which was a relief, since I had to take it to Afghanistan.   We have become so accustomed to digital cameras and photographs, that it is hard to imagine what a change this signified for photographers like myself working under deadlines in the field. Starting work as a photographer in 1991 in the Soviet Union, I had left the UK with a couple of cameras and a few boxes of film given to me by The Times . Most of the work that I shot in the early years of my career was for slow-burning feature stories or projects—it was also not particularly good, but that is another story—and the few times that I photographed news events were usually when I had been hired by the Reuters Moscow bureau. Travelling on assignment for them was a technologically complicated business. In addition to my camera equipment, I would depart with a big suitcase that contained a Hasselblad film scanner as well as chemicals and canisters for processing film. Since colour film needed to be developed at 38 degrees Celsius, usually in some cramped Soviet-style hotel bathroom, I also had to take a hand-sized electrical heating coil which, happily, also served for making cups of tea. At the time, it all felt like a perfectly normal way to go about sending photographs from the road but, looking back, it seems nothing other than a huge palaver. So when I could see this image appear immediately on the back of the camera, it was naturally an enormous revelation. I ended up spending three months in Afghanistan in late 2001, starting from the town of Khwaja Bahauddin in the north-east, where Ahmad Shah Massoud, the Northern Alliance commander had been killed, before moving through Kunduz, Mazar-i-Sharif, Herat, and finally flying to Kabul. Without that digital camera, it would have been all but impossible to have worked there for a daily newspaper.   Of course, every war is covered in a different way, depending on access to the battlefield and the country where it is taking place. A close friend of mine and neighbour from London, Horst Faas, was the legendary head of the Associated Press photo operation during the Vietnam War, and both a great photographer and a great editor. He recounted how photographers like himself could head to the military airport in Saigon and hitch a ride to the front on almost any helicopter. Because the roads outside of the city were under constant attack, it was the safest as well as the fastest way to travel. This was a time when the US military was still very open with the press—a legacy of goodwill that remained from positive coverage during World War II and the Korean War—and not at all comparable to the controlled access of today’s embedded journalists. Generally, after a day or two outside of Saigon, he would come back to the city, have his films processed, edited and the photographs sent on the wire.   Afghanistan was a very different proposition, and being digitally connected was not always so simple. At that time most villages in Afghanistan were off the grid, meaning that the only way to have electricity was to possess a generator. But to have a generator work for six hours or more a day required good petrol that wasn’t watered down with water (as it often was to make an easy profit). Not only did one need to power up the camera batteries and computer, one also needed to maintain a constant charge to a satellite modem and telephone in order to transmit the digital images. To complicate matters, the speed with which it was possible to send images depended enormously on the specifications of your satellite phone. I had one rated at 2,400 baud per minute, which was slow even by 2001 standards and laughable by today’s. On average it took 20 minutes to send a 300-kilobyte image—one that is only a fraction of the size of those taken on a modern mobile phone. To the frustration of my editors in New York, on any given day I was rarely able to send more than five photographs.   Then there were the unexpected technical problems that arrived with a digital camera. Specks of fine dust would constantly and infuriatingly find their way onto the receptors of the camera’s matrix, causing the photographs to appear as though they had drops of water on their surface. I remember looking at the instruction manual to figure out how to lift up the shutter to access the matrix, attempting to remove the particles with a soft brush and the delicacy of a Renaissance painter. I had to repeat the process every couple of days, knowing that one false move could damage the matrix and effectively mark the end of my assignment.   On a far deeper and more fundamental level, there came all the ethical issues that evolved from the digital source itself, in particular the temptations that Photoshop, the primary software tool used by photographers to edit images, could offer. Mercifully or not, I have never been very adept at the post-production of images. In my student days ,when I used to print photographs in a darkroom, the results were always very simple, without much toning or dodging and burning. I never had the patience to learn the delicate techniques that the darkroom demanded, but I also understood that whenever I gave a negative to a printer the photograph was transformed. The style might have been darker or lighter, or simply more sophisticated, but it nonetheless appeared, to my eye, to have a different feeling. In most cases this was probably little more than a question of nuance and taste, and a far cry from the intentional manipulation that had existed in places like the Soviet Union, where commissars and generals, who had fallen out of favour or worse with the Kremlin, would be airbrushed out of official images. Those kinds of change required serious know-how and technique. The troubling brilliance of Photoshop lay in the fact that adjustments, such as cloning pixels, could be done with ease.   These concerns weighed on me from the very beginning. Previously, I had worked with digital images that had been scanned from negatives, but when I started dealing with ones created by a digital camera in Afghanistan, I set myself a limit of not spending more than a minute on a single photograph. I would make sure that the image was correctly exposed and the colour precisely rendered if the camera’s white balance had gone haywire, as often happened with the early digital cameras. My discipline was aided by the fact that I was, and still am, digitally incapable of moving heads from one person to another. Nonetheless, I understood that even dedicated and experienced photojournalists could, in the heat of the moment, yield to the temptation. Two years later, when I was travelling to Baghdad with the Allied invasion force, I heard of a photographer from the Los Angeles Times , Brian Walski, who combined two images showing British troops directing Iraqi civilians outside of Basra in order to make a stronger picture. As soon as the photograph was recognised as being manipulated, he was unceremoniously fired. Today, it is rare that a serious newspaper will encounter such a blatant attempt to change a journalistic image, but the prevalence of minor manipulation remains a problem within the photographic community. When my former Director of Photography at The New York Times , Michelle McNally, was chairwoman of the jury for the 2015 World Press Photo contest, the most important competition for photojournalists worldwide, she stated that ‘20 percent of the photographers entering the penultimate round—where images are considered for the top three awards—were disqualified after technicians compared the entries against the unprocessed RAW files.’   This debate arising at the core of photojournalism stems, in many ways, from the lack of a formal code of conduct and ethics. The manner in which a photojournalist behaves both in the field and afterwards during the editorial process remains, very much, a question of personal choice. On the ground, photojournalists have always had to carefully weigh the issues of proximity to a subject and bearing witness to them against being intrusive. Robert Capa’s mantra, that if a photograph wasn’t good enough one wasn’t close enough, has remained a constant whisper in every war photographer’s ear. The intrinsic choices of how to frame a scene demand rigourous visual, journalistic, and ethical judgments. While for most photojournalists it is a process that is generally instinctive, it is nonetheless one that needs to be permanently engaged.   The move to digital cameras also altered traditional photojournalistic practices in other ways, and one significant change was the way in which the editorial process shifted and became increasingly a role for the photographer. Previously, nearly all the important work I had done for The New York Times  and other news magazines had been sent unseen to the photo-editor in charge of the shoot. I remember being based in Kiev and then Moscow, and constantly searching for friends to carry bags of unprocessed films to Paris, London, or New York, which were then picked up by couriers at the airport. Both the initial selection of images and those intended for publication were left entirely in the hands of the editors. In the digital age, it became up to the photographer to edit his or her own work, leaving only the final choice of images for publication to the photo-editor. It was an empowering but weighty responsibility. Editing images is a far more complex process than might be imagined. Not only does one need to judge the journalistic and artistic merits of a photograph, but the process requires enough emotional distance to let one be sure of one’s decisions. Often, at the end of a long, hard day on the frontline, I was very far from being in the right frame of mind to be balanced and dispassionate about the photographs I had just taken and the scenes that I had witnessed.   The digital camera also changed the manner of the creative process. Using films, it was self-evident that there were only 36 frames for a 35mm camera or 12 for a medium format one, but that was, nonetheless, a natural brake on the way that I photographed. This gave a more measured manner to shooting, and one could almost visualise the images taking their place on the contact sheet. Each frame had to show a noticeable, if incremental, difference, rather than the imperceptible ones that occur with the endless space that a digital camera offers. Of course, in the early days, the first versions of digital cameras did have some technical limitations: the cameras themselves were less powerful, the writing speed of the images to the compact flash cards was slow, and the files were small and of poor quality. A little less than ten years later, I would photograph the royal marriage of William and Kate, and in the 15 minutes or so that they stood alongside the Royal Family on the balcony of Buckingham Palace I took over 1,000 frames. The idea of shooting 25 rolls of film during that length of time seems absurd, but the arrival of the digital camera fundamentally changed the way in which photojournalists looked at and captured what was in front of them.   Above all—and the revolution that I had not foreseen that day in Rome—was the freedom that a digital camera gave me to work in the most remote places imaginable. Once the Northern Alliance began their attack on the Taliban and the front began to move, often on a daily basis, my colleague Dexter Filkins—now a journalist with The   New Yorker —and I had to move with it. Creating a mobile bureau was not so much a choice as a necessity. So we hired a driver with a Toyota pick-up truck, and bought a set of mattresses, a generator, and jerry cans to carry petrol. Whenever we arrived in a new village or town, we would rent a hut in someone’s yard to work from and sleep in. To have used analogue cameras and met a daily news deadline would have been unimaginable, so the Nikon D1H camera in my hands was nothing less than a liberation.   In the 20 years since, digital technology has continued its visual revolution for the public at large. As the cost of cameras has gone down, and the quality of photographs taken on mobile phones has continued to improve, so every one of us has effectively become a photographer. The manner in which we document our daily lives has rarely been so incessant and ubiquitous. We live in a world increasingly saturated with images and so, perhaps, we question their place and value. As the power and capabilities of digital photography become ever greater, so with them grow the boundaries of its possibilities both for creation and manipulation. Soon, wars will be photographed by drone cameras, with deepfake images impossible to distinguish from real ones. Just as, 20 years ago, I sat unwittingly on the cusp of a change that would bring a new era for war reporting in particular and for photojournalism in general, so today the incessant march of technology has brought us to the edge again. More than ever, it will be dependent on the desire of each individual photographer to capture the truth with honesty and courage to show and explain the world that we live in. James Hill   James Hill is a contract photographer for The New York Times . After studying History at Oriel College, Oxford, and Photojournalism at the London College of Printing, he began his career in the Soviet Union in 1991. His work, much of it spent in conflict zones across the Middle East and the former Soviet Union, has garnered multiple awards, including the Pulitzer Prize, the World Press Photo, and the Visa d’Or. He is currently based in Paris.

Shakespeare understood much about the role of law in society, possibly thanks to his direct links with London’s Inns of Court. The Inns were primarily places of learning, but between All Saints’ Day and February they regularly had revels. The students enjoyed these, and they were probably as thespian as young barristers today. They cut their teeth on the great speeches in drama.   Up to 1587, the plays performed were written by members of the Inns, but after that date professional players were hired and one of the groups engaged was a company of players known first as the Lord Chamberlain’s men and then as the King’s’ Men, for whom Shakespeare wrote plays. Twelfth Night  was famously first performed in the Middle Temple and The Comedy of Errors  was probably premiered in Gray’s Inn. Some of the lines that Shakespeare wrote might have been intended to provoke reactions from those he knew in his audience. There are famous scenes set in the Inns, such as the Temple Gardens scene in Henry V , which set the scene for the commencement of the Wars of the Roses.   Despite his considerable understanding of the law, Shakespeare’s knowledge was not perfect. Nor was his knowledge of history. For instance, he wrote a play about King John which does not mention Magna Carta. But Shakespeare was certainly worldly-wise and, however he gained his knowledge, he certainly knew a thing or two about the law.   *   We know little about Shakespeare’s life in general. He lived from 1564 to 1616, was brought up in Stratford-upon-Avon, and spent much of his working life in London. He never travelled outside England and yet his works are surprisingly European. Venice had a particular fascination for the English because of its trading reputation and multicultural community, and it is there that Shakespeare develops themes based on religious and racial identity and the status of immigrants and strangers. As we shall see, all these issues have legal overtones.   Shakespeare was a person of genius. He wrote some 37 plays, many of which are regularly read and performed 450 years after the playwright’s birth, not just in the land of his birth but in many countries across the globe, in English and in translation.   Shakespeare had experience of the plagues that beset London between 1560 and 1603. Romeo and Juliet is one of the plays where he writes about searching for plague victims and in it he introduces into the English language the expression ‘a plague on both your houses’.[1] He must have known what a real threat that was, because his landlady in London, Miss Mountjoy, is thought to have died of the plague, and he had to leave quickly if only to avoid the fleas and the quarantine.   The year 2020 was a surreal experience for many of us, and anyone who has missed the theatre during the pandemic might enjoy knowing more about the law during Shakespeare’s day, and discovering that his plays raise numerous legal issues that remain relevant today.   What was the legal system like in Shakespeare’s day?   By modern standards, the legal system in Shakespeare’s day left much to be desired. The concept of justice had become secondary in a system preoccupied by form rather than substance.   Civil wrongs were often denied justice and criminal offenders frequently received punishments wholly out of proportion to the offence committed. Claimants who were unable to fit their complaint within one of the established writs simply went without a remedy. Still others obtained unenforceable judgments because of the jurisdictional disputes between the courts. For example, the Court of the King’s Bench originally could only hear cases between the King and his subjects, leaving many without recourse. Sometimes claimants failed to get any remedy because they filed their complaint in the wrong court.   To combat this evil, the Courts of Exchequer and Chancery sought to extend their jurisdiction, but many used the courts as a place to participate in an elaborate intellectual game. Court proceedings were not a means to an end but an end in themselves. Legal procedure was often pedantic and inflexible, and pleadings used an impenetrable mix of Latin, French, and English expressions.   Criminal law was pretty uncompromising too. It was an offence to live with someone as husband and wife without having obtained the sanction of the church. That is a point to remember when we come to Measure for Measure . In the case of some serious offences, such as treason and murder, the penalty was always death. London had record numbers of hangings. The Star Chamber used torture to extract confessions.   The Court of Chancery, which was in full swing by Shakespeare’s time, was very influential among lawyers. It set the pace in producing documents in a legal form of English, rather than Norman French. In due course, the legal terminology developed by the Court of Chancery became standard.   Even non-lawyers would have been conscious of the disputes at this time between the Chancery Court and the Courts of the King’s Bench. In particular, Lord Ellesmere, the Lord Chancellor, strove to maintain Chancery’s ability to override the common law courts. The common law judges took the view that Chancery did not have the power to override their decisions. But litigants continued to flock to the Court of Chancery. Sir Edward Coke, Chief Justice of the King’s Bench from 1613 to 1616, tried to stop the Chancery Court from overruling his decisions, but Lord Ellesmere did not agree. In 1614 he heard the case of Courtney v Glanvil .[2] Ellesmere ordered Glanvil to be imprisoned for contempt of court for failing to perform a decree granting relief to Courtney on the ground of Glanvil’s deceit. Sir Edward Coke overruled him in the Court of King’s Bench by issuing a writ of habeas corpus. Lord Ellesmere tried to intervene again in the Earl of Oxford ’s case two years later, but Sir Edward Coke was able to reverse him once more. Ellesmere then appealed to the King, who upheld him.   Sir Edward Coke was one of the great figures of English legal history. He raised the importance of the common law and held that it controlled the other sources of law, a view that was in due course eclipsed by the doctrine of Parliamentary sovereignty. Coke developed the concept of judicial independence and Professor Maitland[3] called him the ‘dividing line’ between the mediaeval and the modern.[4]   To get a sense of what Shakespeare was saying from a legal point of view and what resonance it has for today’s Britain, it is worth looking at a selection of his great plays, four of which are featured here: The Merchant of Venice  (1596-98), Measure for Measure  (1603), Coriolanus (1607-08), and Henry VI Part 2  (1591-92). In these plays, Shakespeare dealt with a range of legal topics, from relatively specific ones such as penalties for the non-payment of debt, to the obligations of those who administer justice, and wider constitutional issues such as the power and responsibility of government to the people.   Recovery of debt: The Merchant of Venice   One theme in The Merchant of Venice  is how contracts should be interpreted, in particular contracts related to lending and debt. This was the subject of much jurisprudential debate in Shakespeare’s day, and the contract of a loan in The Merchant of Venice  is a parody on that debate.   The action takes place in sixteenth-century Venice. A merchant called Bassanio hopes to marry Portia, a rich heiress. But to have a chance at winning her hand in marriage, he needs to have money. Bassanio’s rich friend, Antonio, is unable to help. His wealth is tied up in ships, and the ships either have been lost or are far from Venice. So, out of friendship with Bassanio, Antonio makes a deal with a moneylender, Shylock, and it is material to the plot that Shylock was not himself a Venetian and moreover was Jewish, and not a Christian. Antonio will get his money and will not have to pay interest. But if he does not repay the loan on time, he will owe Shylock a pound of his flesh, to be taken near the heart.   Antonio is not able to repay on time, and Shylock sues Antonio to enforce the obligation to allow Shylock a pound of flesh. Bassanio, funded by Portia, offers late payment on Antonio’s behalf of an increased sum. Shylock refuses that too.   The human flesh condition surely ought to have meant that the contract was invalid and unenforceable. The reason why Shakespeare thought of a bond of this nature is not known, but it is possible he had in mind an unpopular practice of moneylenders at that time to exact conditional bonds which provided for penalties in the event of late repayment. There was no relief for late payment and, if the borrower failed to repay the loan on time, whether in whole or in part, the common law could not offer relief. There were no regulated banks engaged in the business of lending money, so moneylenders could seek to impose the terms they wished.   The common law courts tended to enforce conditional bonds blindly, but in civil cases a party could petition the King to intervene. By the sixteenth century, this meant that a person could apply to the Court of Chancery presided over by the Lord Chancellor. The Court of Chancery developed rules for intervening in cases where in the judgment of the Lord Chancellor the outcome in the common law courts was unconscionable.   Back in Shakespeare’s Venice, however, there was no Court of Chancery, and Shakespeare has to find another means to produce a result whereby this horrendous contract is rendered unenforceable. The scene shifts to the trial of Shylock’s suit, which takes place before the Duke of Venice. Shylock makes his argument that Venice would suffer if contracts were not strictly enforced. He submits to the Duke: ‘If you deny me, fie upon your law! / There is no force in the decrees of Venice.’[5] Strict adherence to the law allowed for the routine consummation of commercial transactions, and Shakespeare highlighted the dilemma Shylock’s bond presented to Venetian law. Commercial lawyers down the ages would recognise the force of the argument that commercial law has to be certain and predictable. It must be remembered, however, that the law that Shylock was trying to enforce was deeply objectionable, mirroring the deeply objectionable law which in turn treated Shylock as unequal because he was an alien in Venice.   Bassanio’s betrothed, Portia, dressed up as a man, pretends to be a lawyer representing Antonio. She urges Shylock to show mercy:   The quality of mercy is not strained. It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blest; It blesseth him that gives, and him that takes. ‘Tis mightiest in the mightiest. It becomes The thronèd monarch better than his crown… It is enthroned in the hearts of kings…[6]   Shylock, who nurses a long-standing grudge against Antonio, who has made a habit of berating Jews for their usury, declines to be merciful. But Portia then points out that the contract does not provide for him to take any blood, only flesh. Shylock changes his mind and offers to take the amount of his loan, but Portia makes it clear that he can only have what is due to him under the bond. Shylock then decides to withdraw from the courtroom.   Before Shylock can leave, his position is completely upended by Portia, who relies on another Venetian law, one that makes it illegal for a foreigner such as Shylock to attempt to kill a Venetian who follows the Christian religion. One penalty for the offence, if the Duke so orders, is execution of the offender, but the Duke immediately pardons Shylock. The other penalty is confiscation of the offender’s goods, with half going to the victim, in this case Antonio, and the other half to the state. Antonio agrees to give up his share of Shylock’s goods on two conditions, to which Shylock agrees. On his death, Shylock must give his property to his daughter Jessica, who has eloped with Lorenzo, a friend of Antonio and Bassanio. Shylock must also become a Christian. Shylock feels ill but agrees to sign the necessary deed. Antonio’s ships eventually arrive in port laden with precious cargo but there is no suggestion that he is going to repay Shylock what is due to him. The trial ends happily for everyone but Shylock.   There are many great lines in The Merchant of Venice . One is especially worth mentioning because it speaks to lawyers: the Prince of Morocco, another suitor for Portia’s hand in marriage, says: ‘A golden mind stoops not to shows of dross’[7] (or, great minds are not distracted by things of little worth). This is a phrase which comes to mind when advocates indulge in flowery language to say little of relevance or consequence (dross).   Modern resonance of The Merchant of Venice   1. The pound of flesh issue   The debate as to how contracts should be interpreted has flourished until quite recently in the Supreme Court of the United Kingdom. Should they be interpreted liberally so as to produce a just solution? Or should they be interpreted strictly to enable parties to be certain in advance about their rights and obligations, so that people bear responsibility for what they have agreed, whether knowingly or not? This question has always been particularly important in commercial law: pacta sunt servanda (agreements must be kept), and views about how to interpret contracts have varied over time.[8]   2. Mitigating the effect of conditional bonds   In The Merchant of Venice , Shakespeare exposed shortcomings in the law, particularly with respect to penalties and the lack of protection for the lender, in this case Shylock. In the fullness of time the common law addressed the problems of penalties in its own characteristic way. The courts refused to enforce penalties, and only enforced clauses which provided for an amount that was a genuine pre-estimate of the loss which the lender suffered through late payment. The common law settled on this distinction between penalties and contract terms which the courts were prepared to enforce.   In due course that rule also proved unsatisfactory, and it has now been seamlessly replaced by proportionality. The present position is that a term of a contract which imposes a detriment on a party if that party breaches a term of the contract, is a penalty if the detriment is out of all proportion to any legitimate interest that the other party might have in that term being performed.[9] This is a more nuanced test than the distinction that used to be drawn between genuine pre-estimates of damage and penalties. Many more factors are now considered.   Proportionality has been introduced into English law over the last 50 years under the influence of European Union law and human rights, which probably adopted the concept from German law. All the developments in the law of penalties were brought about by the courts. The courts were left to develop the law as they thought appropriate and incorporated it into various aspects of the common law. There was no need for a code or legislation. The adoption of the concept of proportionality in the context of contractual penalties is a good example of how EU law, if applicable, may continue to influence English law even though the UK has left the EU. 3. The Shylock dilemma   By leaving Shylock in the position where he is deprived of his religion and his wealth, Shakespeare exposes a legal void in the then law: first the lack of any judicial protection against the arbitrary actions of the state in relation to an obnoxious banking transaction, and then the lack of any proportionate response to the events in contention. Shakespeare did not portray any solution to this. He simply points out that such voids exist. In a well-organised legal system, such voids should clearly not be present, and there is nothing to suggest Shakespeare approved of these voids. It was simply part of the role of the playwright to point them out.   Party-based requests for mercy may be rejected for personal motive   Portia’s timeless lines about the quality of mercy are directed not to the Duke (the judge), who plays a nominal role. They are aimed at Shylock, and they fall on stony ground. He wants his revenge on all those people who have belittled him in the Rialto.   The point to note is that when it comes to showing mercy Shakespeare did not invoke the common law. In this play, it was not his expectation of the law that it would show mercy. In the Elizabethan age, the law was seen as having a relatively formal role and rules were inflexible. To save Antonio, Portia relies on statute law, which she pulls out of her papers like a rabbit out of a hat. Despite Portia’s great lines, mercy has no impact on the result whatever.   Judicial independence and integrity: Measure for Measure   In Measure for Measure , the story starts when Duke Vincentio, the Duke of Vienna, decides to take leave of the city for a period of time. For several years, he has neglected to enforce the laws of Vienna. This has led to the city’s becoming a lawless place, and he has fallen down on his duty to adjudicate on offences. The Duke makes arrangements for his deputy, Angelo, to enforce the laws in his absence. He confers on Angelo his ‘scope ... to enforce or qualify the laws As to your soul seems good’.[10]   One of the citizens of Vienna, Claudio, is then found to have committed an offence by making his fiancée, Juliet, pregnant. It is apparently no defence that Juliet is his fiancée and that they will be married as soon as her dowry arrives. The only punishment provided for this offence is execution. Claudio is sentenced to be executed and Angelo refuses to mitigate the penalty. It may be that Shakespeare was here parodying the law I mentioned earlier which made it an offence in Elizabethan England to live with someone as husband and wife without having obtained the sanction of the church.   Claudio then asks his sister, Isabella, who is about to enter a nunnery, to plead with Angelo on his behalf. She does this but Angelo rejects her plea: ‘It is the law, not I, condemn your brother’.[11] Angelo explains that the law has not been enforced recently but this was only because it ‘hath slept’.[12] Isabella continues to plead for her brother, saying ‘O, it is excellent / To have a giant’s strength, but it is tyrannous / To use it like a giant’.[13]   Eventually Angelo offers Isabella a bargain. If she agrees to have sex with him in his garden at night, he will release and pardon Claudio. (Angelo clearly did not live in an age of the free press and kiss and tell!) Angelo gives Isabella overnight to make her decision. Isabella is dismayed because that would be contrary to her principles and prevent her from entering the nunnery. (What, one wonders, would she have said to the Mother Superior if she had become pregnant?)   Isabella meets a Friar (the Duke in disguise), who explains that Angelo was himself formerly engaged to be married to a woman called Mariana but that the engagement was broken off when the ship bearing Mariana’s dowry was lost. Mariana is assured by the Duke that, while it may be a crime under the laws of Vienna to have sex while unmarried, it is not a sin to do so in the circumstances:   Nor, gentle daughter, fear you not at all, He is your husband on a pre-contract. To bring you thus together ‘tis no sin …[14]   Mariana agrees to take Isabella’s place, with the result that Angelo has sex not with Isabella but with Mariana, although rather surprisingly he does not realise it. But he still refuses to stop the execution of Claudio. Meanwhile, however, the Friar/Duke prevents it from taking place and arranges instead for the similar head of another person in the prison—someone who has died from a fever—to be sent to Angelo. The Duke changes his plans, makes an early return to Vienna, discovers what Angelo has done, and requires him to marry Mariana and then return to his presence. After the marriage, Angelo returns with his new wife, and the Duke then condemns him to death for having ordered the death of Claudio:   The very mercy of the law cries out Most audible, even from his proper tongue, ‘An Angelo for Claudio, death for death’. Haste still pays haste, and leisure answers leisure; Like doth quit like, and measure still for measure. Then, Angelo, thy fault’s thus manifested, Which, though thou wouldst deny, denies thee vantage.[15]   In these famous lines, the Duke as judge says that Angelo must be treated like anyone else—a person in authority is not above the law. Quite so. That is a very important aspect of the Rule of Law, and Shakespeare here reflected its importance. Angelo acted with haste, and without deliberation. And ‘Like doth quit like’, so there must be the like penalty for the like actions. In the phrase ‘measure still for measure’, the word ‘measure’ is being used in its sense of treatment meted out to someone. So, Angelo should receive the same punishment as he imposed on Claudio. The law, as the Duke sees it at this point and perhaps as many contemporaries of Shakespeare saw it, is about retaliation.   The newly wed Mariana is horrified at this turn of events and is not consoled by the fact that she will as Angelo’s widow inherit his assets. She and Isabella seek mercy for Angelo.   But then the keeper of the jail where Claudio was held reveals that Claudio was not executed after all. He is alive and is brought before the Duke with Juliet. So, at the end of the play Angelo is not executed but is disgraced. The Duke offers to marry Isabella.   The story can be summed up in this way. The play starts with the problems caused by the Duke who had neglected to enforce the laws so that people broke them. But Angelo enforces them without exercising judgment and does so corruptly. He must be punished, but when it turns out that Claudio was not executed, the Duke exercises his judgment. It is no longer a case, as in the old code of Hammurabi of Babylon, of an eye for an eye, or a tooth for a tooth, or measure still for measure.   Modern resonance of Measure for Measure   The power to grant mercy is not party-based but an aspect of the judicial function   We saw that, in The Merchant of Venice , Portia’s plea of mercy was directed to Shylock and it was he who rejected it. Shakespeare gave him the right to refuse to give mercy. The judge stood on the side-lines.   In Measure for Measure , we see Shakespeare returning to this issue and picking up where he left off in his earlier play. How does he resolve the issue? He gives the power to grant mercy not to any party but to the judge, the Duke, and he gives him discretion as to how to administer the law. The Duke is able to grant mercy on the particular facts of the case because Claudio comes to no harm.   It follows that there are dangers when judges do not respect the obligations of their office, for example because they are corrupt or act for personal motive. Judges must not act in this way. The obligations of judges performing a judicial role constitute their responsibility when they are asked to adjudicate on disputes. They must enforce the law appropriately and disinterestedly and not allow society to become lawless. They are the servants of the law. In that capacity, their function includes dispensing mercy in appropriate cases. Shakespeare rightly showed that the role of judges was important in all these respects.   There are lessons here for every modern judge. The message is about what has become known as judicial independence. Judges must be completely independent and objective. This doctrine was starting to emerge in the writings and judgments of Coke when Shakespeare was writing his plays.   So we find that the resolution in Measure for Measure  comes in the final scene, when the Duke uses his judicial discretion to produce a solution. It is by no means a perfect solution. I for one have some sympathy with Isabella, faced with the proposal of marriage which she would not have sought. But the resolution of the play is probably as good as the Elizabethan age could hope to produce. It is the judge who pronounces the sanctions and he does so on his own authority and good judgment, not the supernatural power of Prospero in The Tempest  or the powers of darkness in Macbeth .   The idea that the legal system should produce solutions that were moderated to the individuals involved was relatively revolutionary for Elizabethan times. Shakespeare’s thinking had evolved from mercy to statute law and then to judges and the law they create in individual cases. The end objective for Shakespeare was thus that the law should produce a just solution.   2. The problem of the dysfunctional legal system   The play starts with the problems caused by the Duke, who has neglected to enforce the laws. No wonder the citizens of Vienna were caught out when Angelo started enforcing them to the letter. He stands at the opposite extreme to the Duke. He enforces the laws without exercising judgment and does so corruptly.   Shakespeare compares unenforced law with headstrong horses who had shaken off their bridles, and overgrown lions in caves. Such law is unruly, arbitrary, and unpredictable. The problem is resolved by restoring a properly working legal system, in which judges perform the essential and independent role of dispensing mercy.   3. The role of lawyers in a properly functioning legal system   You cannot have a system of justice that functions well unless you have lawyers who are well trained and mindful of their obligations and judges who have independent judgement and the freedom to produce just solutions. The late Justice Ruth Bader Ginsburg of the United States Supreme Court beautifully described the vocation of lawyers in a passage that I recently cited in a tribute in memory of her:   To me the highest obligation of someone in the legal profession is to recognise that you have training and talent […] that equips you to make things a little better in your local community, your nation and your world, that is, to devote your talent not just to being the counterpart of an artisan or bricklayer who does a day’s work for a day’s pay but with someone who sees himself or herself as a true citizen of the community.[16]   Angelo was not such a lawyer, but we saw in The Merchant of Venice  the role that Portia played in bringing the Venetian law that saved Antonio’s life to the judge’s attention.   Sovereign power: Coriolanus   Here we find that an idea that animated Shakespeare was how the ordinary people curbed sovereign power. Coriolanus is one of the plays which Shakespeare wrote about classical times.[17] The plot revolves around a Roman general called Caius Martius, who has defeated a Latin tribe called the Volsces at Corioli and earned the new name Coriolanus.   The question arises of how the state is going to reward him. The usual method was for the general to be taken back in honour to Rome and then to be placed in front of the people, to explain how he had won the battle and how he would look after them. The people of Rome would then elect him a consul. The whole process was started by the patricians—that is, the existing senators.   In the play, the patricians initiate the process on Coriolanus’ behalf, but he is reluctant to waste any time on talking to the people. He is after all a great doer of battles. In the play, he speaks to the citizens in scornful terms and threatens to sell or to kill them. Not surprisingly, the people then turn against Coriolanus, deciding they do not want him as a consul after all. The situation is unprecedented. But Coriolanus is proud, and he simply cannot see the problem.   The Tribune says, ‘What is the city but the people?’,[18] and the citizens shout, ‘True, / The people are the city.’[19] Coriolanus’ mother, the strong-minded Volumnia, tries to persuade him to apologise to the people and to seek their forgiveness, but he absolutely refuses. He is angry at the charges the people have made against him and he declines to apologise. In the end, the people change their mind about his being a consul and banish him from Rome. He is banished as ‘enemy to the people’.[20] Coriolanus calls back: ‘You common cry of curs’[21] and goes into exile.   The tale then takes a remarkable twist. Coriolanus goes to find his old enemy, Aufidius. Together they start on a succession of acts hostile to Rome and they end up besieging the city. The inhabitants try to get Coriolanus to change his mind about this, but even Coriolanus’ father cannot persuade him otherwise. In the end it is his wife, mother, and young son who come to visit him in the camp and win him over. They persuade him to go to Rome to negotiate a peaceful conclusion to the war.   There is then yet another twist in the story. Aufidius does not accept this chain of events and he arranges for Coriolanus to be lynched and killed. Thus ends the story of someone who tried to ignore and reject the peoples’ wishes.   Modern resonance of Coriolanus   1. The rights of the people against sovereign power Shakespeare had far-sighted views about the rights of the people. In the sixteenth century, absolutism was the general theory. Sir John Fortescue, one of the early legal writers, wrote that whatever the Prince wished was lex , or law. In England, this theory changed shortly after Shakespeare’s time. The seventeenth century saw a rapid growth of parliamentary powers, and the Glorious Revolution of 1688, when King James II, having suspended Parliament, was forced to flee from the country, and his protestant daughter Mary and her husband William of Orange became the King and Queen of England.   2. The role of the ordinary citizen   Coriolanus is particularly revealing on the role of the ordinary citizen in the governance of society. Considering that the British constitution had not yet really developed, Shakespeare was before his time in his attitudes. He felt that power should be responsive to people and not that the Prince’s word was law. Shakespeare had a touching faith in the people.   In all his plays, Shakespeare wrote about common people who enter on to the scene and provide enormous enlightenment against all the odds. Thus, in A Midsummer Night’s Dream , King Theseus is to be married to Queen Hippolyta and local people decide to put on a play for them as part of the celebrations. The Queen considers that as the play has been arranged by working men from Athens it will probably not be much good.[22] But when the play starts it becomes clear that the actors are literate. They have learnt their lines and they know about classical mythology (the play tells a love story from Ovid’s Metamorphoses ). They also know how a theatre should operate. Here, as with the gravediggers in Hamlet , Shakespeare was holding up the wisdom of the common person.   Autocracy: Henry VI Part 2   Henry VI Part 2 is another example of Shakespeare working out the theme of the relationship between the ordinary person and the sovereign in the state. In the play, there are rival claims to the throne. The Earl of Suffolk organises a rebellion in England against the King. The leader of the rebellion is a man called Jack Cade. Shakespeare portrays Cade, when he gets power, as an absolute and arbitrary ruler. As soon as he becomes the leader, he sees to it that he is appointed as a Lord. This is a somewhat strange thing for someone who is an ordinary citizen to demand. Besides, the real grievance motivating the common citizens to get together is that they distrust the ruling class.   Jack Cade is full of his own importance. He states: ‘My mouth shall be the Parliament of England.’[23] He fully expects his rebellion to be successful and, when it is, to be anointed King. And he intends to be an autocratic king.   Cade has to set out the list of things that will change when he gets to power. One of his supporters, Dick the Butcher, says: ‘The first thing we do, let’s kill all the lawyers.’[24] This is a well-known passage that always causes a wry smile when it is quoted to lawyers, but its meaning is far from clear. No doubt lawyers were linked with the nobility and caught up with grievances against the nobility. It is also possible that all Shakespeare was trying to do was to get some reaction from his audience. As mentioned, his plays were performed in the Inns of Court, of which the members were barristers, and where legal education was provided.   Not surprisingly, Jack Cade does not come to a happy end. He is ultimately deprived of all his supporters when one of the members of the nobility urges the people to support the King.   Several references are made to Parliament. The Earl of Warwick states that: ‘The commons, like an angry hive of bees that want their leader, scatter up and down and care not who they sting in his revenge.’[25] Anyone who has seen or heard UK Parliamentary debates may think that this was particularly insightful of Shakespeare.   Jack Cade was a historical figure. His rebellion in 1450 against Henry VI did not last long, and England returned to a feudal society in which the power was vested in the nobles and the poor had to obey. In Shakespeare’s eyes, that was the natural order of things. The poor accepted that the nobility should rule. What they expected, however, as appears in Coriolanus , was that the rulers would respond to their requests and seek to uphold their wishes.   Modern resonance of Coriolanus  and Henry VI Part 2   Shakespeare examined sovereign power in both these plays. He lived under an absolute monarch and foresaw that this had to change, and in these plays he suggested the direction in which it had to evolve.   Coriolanus seeks to become a consul of Rome, and the people turn him down because he refuses to acknowledge that he has to look after them and attend to their needs. In Henry VI Part 2 , the rebel Jack Cade seeks to challenge the nobility on the grounds that they have done nothing for the common man. But his plans for taking power include making himself a Lord and making arbitrary decisions about executing people and so on. Both Coriolanus and Jack Cade come to grief. Shakespeare lived in a time of absolute monarchs, but his insight was to recognise that there was a bargain made between the citizens and the sovereign as to how the sovereign’s power should be used. It is this bargain that drives the evolution of the constitution from absolute monarchy to the present-day Parliamentary democracy.   Shakespeare saw the corrupting effect of power politics—what happens when those in power seek to serve themselves rather than the community from which they are appointed. The citizenry loses out and the legal system is endangered. When Dick the Butcher says that the first thing to do is to kill all the lawyers, Shakespeare is underlining the point that, for an autocrat to have control of the state, the rule of law must be set aside, and that this places judicial independence and the role of judges and lawyers in jeopardy. The words of Dick the Butcher are not said just for theatrical effect.   Shakespeare knew that society needs a properly working system of justice, with judges and lawyers performing their special roles. Those who exercise power have to accept that the law is above them, and that sometimes the decision will go against them. They then have the power to alter the law if it is right to do so.   Conclusion: A legal system that evolves   The matters of law addressed in the four plays discussed here all remain worthy of consideration today—repayment of debt, the obligations of those who administer justice, and the wider constitutional issue of the power and responsibility of the government to the people.   What shines out most from the legal issues that intrigued Shakespeare in his plays is the ability of our system to continue evolving. By relying on precedent, the courts can modify the law gradually in a way that avoids abrupt or ideological change. The common law is not like a civil code imposed on the people. We all own it and it belongs to us all.   Similarly, with our constitution, its unwritten nature means that it has the capacity to continue and yet change in the light of experience. Since Shakespeare’s day, the country has evolved organically from absolute monarchy to constitutional monarchy with Parliamentary sovereignty. It has also been able to embrace international law and (during membership) the laws of the EU, and to draw on the European Convention on Human Rights. It has progressed from the legalistic system that Shakespeare knew to one that is more focussed on justice.   It was part of Shakespeare’s genius that through the dramatic medium he could capture the depth and diversity of humankind. But his genius was far greater than that. As I have sought to show in this article, he could also provide thoughtful insights into the evolution of the law of England and its constitution. The Rt Hon Lady Arden Mary Arden, The Rt Hon Lady Arden of Heswall, is a UK Supreme Court Justice. She was the first female High Court judge assigned to the Chancery Division, and is also President of the Trinity Hall Law Society, Cambridge. Lady Arden gave the Denning Lecture at an event organized by the Honourable Society of Lincoln’s Inn in London on 25 November 2020 and this article is based on the text of that lecture. Lady Arden thanks the Denning Trustees for their generous invitation to her to give the lecture. Lady Arden retains the copyright to this article. [1] See William Shakespeare, Romeo and Juliet  Act 3, scene 1, line 91. [2] [1614] Cro Jac 343. [3] Professor Frederick William Maitland was Downing Professor of the Laws of England from 1888 to 1906, and he is widely regarded as one of the ablest legal historians of modern times. [4] See William Holdsworth, Some Lessons from Our Legal History  (Macmillan 1928) 31, citing a letter he had received from Maitland. ‘Of Coke perhaps the truest thing ever said was said by Maitland in a letter which he wrote to me: “Coke’s books are the great dividing line, and we are hardly out of the Middle Ages till he has dogmatized its results.” … [He] assured the continuity of the development of the common law in this century of change—the century of Renaissance, Reformation, and Reception of Roman Law. He was the founder of the modern common law …’ [5] Act 4, scene 1, lines 105-06. The quotations and citations in this article are taken from William Shakespeare, The Complete Works  (Stanley Wells and Gary Taylor eds, Oxford University Press 1986). [6] Act 4, scene 1, lines 181-86. [7] Act 2, scene 7, line 20. [8] There is a similar debate about whether equitable obligations should be implied into contracts. I referred to this in in the context of quasi-partnership companies in Lau v Chu  [2020] 1 WLR 4656 [4630-31] (PC): ‘92. In short, in quasi-partnership companies, deadlock often covers some of the same territory as failure to observe the equitable obligations which are not written into the articles but which are owed by one quasi-partner to another. A quasi-partnership is not a commercial transaction in which, to borrow the words of Judge Learned Hand, “it does not in the end promote justice to seek strained interpretations in aid of those who do not protect themselves”’ ( James Baird and Co v Gimbel Bros Inc  [1933] 64 F 2d [344] and [346]). The implication of equitable obligations in a quasi-partnership is the way in which the courts secure that justice is done between quasi-partners who have not taken every contractual protection that they might have done to prevent the misuse of corporate powers. The contest between law and equity in this type of situation has been fought over many years and is graphically illustrated by the contest between Shylock and Portia in Shakespeare’s The Merchant of Venice . [9] See Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis  [2016] AC 1162. [10] Act 1, scene 1, lines 64-65. [11] Act 2, scene 2, line 83. [12] Act 2, scene 2, line 92. [13] Act 2, scene 2, lines 109-11. [14] Act 4, scene 1, lines 69-71. [15] Act 5, scene 4, lines 404-09. [16] Lady Arden, ‘Remembering Justice Ginsburg’ ( Counsel Magazine , 30 November 2020) < https://www.counselmagazine.co.uk/articles/remembering-justice-ginsburg > accessed 15 February 2021. [17] Others included Titus Andronicus , Pericles , and Timon of Athens . Shakespeare’s classical knowledge was limited. Nonetheless there is plenty of detail in Coriolanus . [18] Act 3, scene 1, line 197. [19] Act 3, scene 1, line 199. [20] Act 3, scene 3, lines 121-22. [21] Act 3, scene 3, line 124. [22] William Shakespeare, A Midsummer Night’s Dream Act 5, scene 1, lines 85-88. [23] Act 4, scene 7, lines 13-14. [24] Act 4, scene 2, line 78. [25] Act 3, scene 2, lines 125-27.