How Trans Rights Have Emerged as a Keystone in the Feminist Politics on Bodily Autonomy As of this writing, an Alabama law that would have made it a felony in the state to provide a teenager with gender-affirming healthcare, punishable by up to ten years in prison, is held up in the courts.[1] If it were allowed to go into effect, it would mean that even in consultation with medical professionals, operating on globally-accepted standards of care for transgender youth, a 17-year-old transgender girl cannot get access to puberty blockers or hormonal replacement therapy. Missouri lawmakers intend to extend this ban even to adults, banning care up until the age of 25. Meanwhile, Florida’s Department of Health has issued non-binding guidance that would prohibit even ‘social transition’ for youths (i.e., a child referring to themselves by new pronouns, wearing clothes associated with a different gender, but with no medical interventions) which, if it were ever enforced, would amount to the state policing children’s gender expression at an astonishing degree of invasiveness and detail.[2] But even non-binding guidance can grant authority and permission for laypeople to execute private acts of bigotry. These are merely the marquee episodes of a nationwide assault on transgender children in the US; it is a striking culmination of years of building moral panic on both sides of the Atlantic that has finally burst into full-blown authoritarianism, entirely of a piece with the renewed assault against abortion rights and other reproductive freedoms from a far-right determined to exert ever tighter control over the bodily autonomy of the many, many groups it despises.[3] The trans rights debate has become the thin end of a wedge being used by social conservatives to reverse decades of progress on a whole range of issues—from abortion, to contraception, to sexual liberation more broadly, to the rights of queer couples and families to marry, adopt, or even exist in public. At the heart of these issues are questions of bodily autonomy, gender politics, and civil liberties. They are also a front in the ongoing attack against democracy that has gripped many countries over the last two decades, from India to Turkey to Hungary to the United States. ‘Democratic backsliding’ often buries trans and gender-variant people first; the gender anxiety at the heart of fascism brings no tolerance for difference.[4] Especially anything that might hint that the sex castes of male and female—with the patriarchal hierarchy between them taken for granted—are not, in fact, immutable. That fact alone explains the otherwise strange alliance between the far-right, religious social conservatives, and trans-exclusionary radical feminists, united in fear of what trans people represent to them. To them, we seem a hydra of threats: an affront to nature, to God, to the social order, a threat to women and girls. We are all things to all people except ourselves. Thus, I shall strive to be myself in these pages: a feminist scholar, first and foremost. It is worth taking a broad survey of what this assault on our human dignity has wrought, where it came from, and what the role of a renewed trans politics might be in the face of ongoing attacks against democracy itself. Along the way, I’ll even answer the most popular question of the silly season: ‘What is a woman?’. *** What had been, for years, a toy thought-experiment for many commentators in the British and American media—treating transgender people or ‘gender ideology’ as some kind of threat in an unending cavalcade of editorials, features, and online discourse—has now become a political programme.[5] Some centrist commentators who indulged in building this moral panic now appear surprised at how it has come to fruition, but it was always going to be impossible for discourse about the supposed ‘threat’ to children from the ‘transgender lobby’ to not, at some point, manifest as policy in a political climate so thoroughly despoiled by the so-called culture wars.[6] Florida’s ‘Don’t Say Gay’ bill, which bans primary school teachers from mentioning LGBT people in any positive context, has already led to the firing of queer teachers and started a nationwide slander campaign that casts all transgender people as ‘groomers’ of young children.[7] Indeed, the very act of suggesting it’s okay to be trans is now being cast as ‘grooming’ by conservatives, an incredibly incendiary allegation that is bound to lead to violence and has already led to abuse in the streets—the harassment of Saoirse Gowan, a transgender woman living in Washington D.C., on the city’s metro by a man filming her and calling her a groomer and paedophile is but one such incident.[8] Transgender people were bound to become the next distracting target in an age of overlapping crises that demand concerted action. Instead of blocking climate change, they would come for puberty blockers; instead of building resilience against the next pandemic, they seek to create an epidemic of terror among trans children; instead of addressing ever-widening inequality and poverty, they seek to create conditions that make the trans minority’s immiseration that much likelier. We make an appealing target because pointless cultural debates are able to flood the media with unresolvable controversies that make for barbed, duelling editorials, stinging vox pops, and a blizzard of screaming social media posts that drown out other, less welcome discourse. Particularly for conservative politicians, we provide a welcome distraction from any serious questions about material issues. It is very much worth noting that in a week where UK Prime Minister Boris Johnson struggled to respond to a journalist’s question about a pensioner whose skyrocketing energy bills meant she had to cut back on food and ride a public bus all day to save on her heating bill,[9] we had been treated to Johnson’s Health Secretary Sajid Javid promising to put trans women in government healthcare wards with men. While one woman literally starved herself to make ends meet, we were told imposing needless suffering on critically ill trans women was a great boon for feminism. In the UK, it has been depressing to watch newspapers put anti-trans attacks on their front pages on days with other, considerably more pressing major news stories, whether in Ukraine, about climate change, or even local elections.[10] It crowds out both the reality of trans existence and the many other urgent issues of our time in a way that, even leaving aside its animating prejudice, verges on journalistic malpractice. As a simple heuristic, one can assume any attack on trans people from a member of the political class is an attempt to avoid spending time on an issue of material substance. But we are not simply an abstract culture; we, too, are real people harmed by the climate that is being created by unending headlines questioning our very right to exist in public space. When it comes to the new laws in the US, the risk to some of our most vulnerable is immense. Families are considering whether and how to leave states where they’d built their lives, to flee somewhere their children are not literally being criminalised. Youth suicides are at risk of rising again, as they did when the state of Arkansas mooted a similar bill in 2019 that was later blocked by a federal court.[11] The litigation is ongoing.[12] Meanwhile, an already dangerous climate for trans sex workers threatens to become deadlier still. The harms of such legislation in the US are myriad and material. Texas’ own bills literally make it a crime to raise a trans child, seeking to investigate parents of trans children as ‘abusers’. Such realities make the anti-trans screeds of the British press—replete with silly tirades masquerading as thought exercises, like Rod Liddle’s infamous Times column where he announced he was ‘identifying as a young, black, trans chihuahua, and the truth can go whistle’—seem even crueller than they already are, kicking a much-maligned group while they’re down.[13] As Jules Gill-Peterson put it in her recent essay about the legislative assault on trans people in the US, these are not simply cute word games to be played by the privileged: ‘Collectively, these bills are not just attacks on what you can or can’t "say" in school. They are an existential threat to your life’.[14] Gill-Peterson’s perspective is useful to us for another reason, however. Throughout this essay I’ve listed a litany of recent attacks, recent harms, and implicitly engaged in a plea to recognise our humanity. Gill-Peterson demands we go further than simple moral appeals, however, as she draws on a tradition of trans activism dating back to the women of colour-led movements of the late 60s and early 70s: Allyship doesn’t rely on evaluating trans people as morally deserving, but rather on recognizing everyone’s right to the resources and public goods that raise our quality of life. Being an ally is about the common struggle for better living conditions. The trans politics of Black and brown women have been about mutual aid and abolition since the 1970s for a reason. They have proven to be the only people unafraid to consistently care for and love trans kids without using them as moral props. This is the foundation of an intersectional perspective that understands ‘trans issues’ as intimately connected to a broader politics of equality and justice, from equal access to public education, to the availability and affordability of healthcare, to the reproductive rights required to have and raise your own children, access to social welfare and services, to equal access to public accommodations and public space. These issues implicate all of our democratic rights, resting as they do on our shared vulnerability to their erosion. What starts with trans people will not end there. To better understand why, we need to turn to the concern-trolling question that has come to dominate recent debates about trans people’s right to exist: ‘What is a woman?’ *** From the recent nomination hearings of Justice Ketanji Brown Jackson in America to an Australian leaders’ debate amid the country’s general election, the seemingly simple question of ‘what is a woman?’ has been used in bad faith to antagonise or belittle trans rights, or to cast any ally of trans people as delusional. Jackson’s response was certainly effective: ‘I know I am one’, while the Australian Labor Party’s leader Anthony Albanese simply said ‘an adult female’, a bland dictionary definition that was meant to avoid the trap set by the debate moderator’s question. The question should be treated with scepticism, if not outright contempt, because it is almost always asked in bad faith and never arises except in discussions about trans people’s rights. This is partly because the category is coherent only through classic Wittgensteinian ‘family resemblances’, where no particular definition can meaningfully exhaust the concept—try to define a ‘game’, for instance. No single feature is common or essential to the whole. Republican politicians, when reporters turned the question around on them, stumbled; Senator Josh Hawley said he ‘didn’t know’ if a woman who’d had a hysterectomy was still a woman, for instance[15]—an answer that is either silly or chilling depending on his intent. But there is a way of answering the question honestly and accurately that also reminds us of the vast political and philosophical space offered by both the linguistic idea of family resemblances and the legal-political concept of intersectionality. Historian Susan Stryker, in an explanation of the relationship of performativity to gender, offered this summation: ‘A woman, performatively speaking, is one who says she is—and who then does what woman means’.[16] Some will find this answer circular. ‘Woman means what woman means’, is what she’s seemingly saying. But this is necessary in order for the definition to be both accurate and brief: it is meant to cover a wide range of possible gender expressions in every culture and subculture where ‘woman’ is a meaningful concept. Gender is ‘an attempt to communicate…and is accomplished by ‘doing’ something rather than ‘being’ something’.[17] In other words, gender is the sum of one’s actions, an achievement—it contains both the assertion of the identity and the enactment of a socially legible instance of that identity. When you bear in mind that there are lots of ways to be a woman, or a man, or any other gender, across numerous cultures and communities, it encompasses a wide range of possibilities—rather than the stifling stereotypes that ‘gender critical’ activists accuse transgender people of perpetuating. But that issue of ‘social legibility’ is the key here. It’s part of what makes declarations of ‘I identify as an attack helicopter’—one of approximately three jokes known to transphobes—so tedious and ridiculous. There is no collectively acknowledged and constructed social role or identity of ‘attack helicopter’, nor any meaningful attempt by the speaker to enact it. It’s little more than an empty attempt at satire. Still, it’s not simply a matter of what clothes one wears, say. It’s how you’re treated by others as well. For all the cruel debates about whether or not I should be allowed to exist, or whether my existence is some kind of parodic affrontery to all other women, patriarchy has made very few mistakes about me—from street harassment to online harassment, my experiences have much more in common with my cisgender woman friends than with my male friends. It is that shared social location, and a shared experience of abuse and oppression, that creates a site for political action; a standard around which to rally. Women are divided by many vastly different experiences, shaped by geography, social class, race, religion, culture, and more; but we can come together on some shared terrain—the familial resemblance of our common gender—to address discrimination, inequality, and oppression. Understanding womanhood with an expansive, contingent definition affords us liberatory possibilities. It’s worth remembering that in all the recent debates about whether trans people should be able to use the bathrooms of their choice, many of these arguments are recycled versions of those that justified racially segregated bathrooms in the American South, where the options were ‘Men’, ‘Women’, and ‘Colored’. Black women and other women of colour were excluded from the category of ‘woman’ when it suited the imperatives of the state. An inclusive definition of any gender category would refuse these imperial edicts, dissolving the use of such categories as weapons with which to oppress particular groups of people. An inclusive definition recognises that attacks on any minority’s right to claim membership in a gender, therefore, has stark implications for other rights as well: rights to public accommodation, to public space, to public education, to voting (particularly if voter ID laws are implemented), to be gainfully employed. Fixation on trans people’s genders makes such public participation difficult if not impossible for them. When one sees the reactionary consequences of transphobia and how it connects to other forms of oppression—the similarity to the logics of racial segregation, for instance—it becomes clearer why this position is feminist in name only. This is why the ‘gender critical’ position makes so little sense: its adherents claim to seek gender’s abolition on the grounds that it is a harmful idea, but they depend on gender for the very existence and intelligibility of their philosophy. Its arbitrary lines of identity make no sense without the thing they claim to be abolishing. Their certainty about who is and isn’t ‘really’ a man or a woman depends on the very patriarchal norms and gender stereotypes they claim to oppose. In particular, they take for granted the idea that sex is an unchanging caste that you may never leave, an idea that is profoundly patriarchal as it undergirds the stability of men as a privileged class with a birthright to that very privilege. ‘Gender critical’ means little beyond transgender critical. Equally, ‘sex-based rights’ are meaningless as a concept except as a way of drawing segregationist lines around trans people’s access to public space. Gender equity, as it has been advanced by legislation[18], and interpreted by courts in the US,[19] actually depends on a broad understanding of gender, rather than a narrow parcelling out of rights on that basis. Indeed, the term ‘sex-based’ was historically used to classify discriminatory practises, a nod to the obvious reality that prejudice is the thing ‘based’ on one’s sex (or perceived sex) and our rights are meant to secure freedom from such discrimination.[20] Liberty from rape or sexual harassment is not a ‘sex-based right’, but something people of all genders would share in, just as the right to vote is not ‘sex based’, but a shared human right to which women were denied access. It is profoundly reactionary to think of equity legislation as granting ‘race-based rights’, say, or ‘sexuality-based rights’. Indeed, such wilful misunderstanding is at the heart of the common conservative charge that minorities seek ‘special rights’—a deliberately inflammatory allegation—when in truth they seek access to the same liberty enjoyed by all their neighbours. So too is it the case with transgender people. The entire concept of a ‘sex-based right’ only emerged in opposition to trans people’s claims to human rights, and represents an attempt at drawing a narrow and limiting definition of womanhood that has much more in common with regimes of the pre-democratic past.[21] It demands we imagine the continued existence of a women’s restroom as the limited horizon of feminist politics, an ideological surrender to the myriad horrors that confront the democratic world. To acknowledge that womanhood ‘means’ something broader, in the sense of Stryker’s definition, is to acknowledge greater political possibility that can rejoin feminist politics to the material politics of equity in all areas. As a rallying standard, it can provide a united front on issues like reproductive justice, healthcare access, and the meeting of basic needs: food, shelter, and the dignity of work, combined with ample leisure in which to enjoy its fruits. *** As the United States confronts a gathering storm on reproductive healthcare, it is very much worth concluding by drawing what should be the obvious connection between abortion rights and everything discussed hitherto: bodily autonomy. What many generations of feminists have fought for is control over our own bodies, liberty from the dictates of powerful men about what our bodies are for, or what they mean. It’s a cruel irony that a minority of people now calling themselves ‘feminists’ are insisting that the only way to define ‘woman’ is as a reproductive instrument—a perspective that is a neat fit with the far-right pro-lifers now on the march in America. Those same reactionaries also seek to erase transgender people from public life. The reasons are the same: emancipated women, cis and trans, as well as the mere existence of trans and nonbinary people, are an affront to their deeply conservative ideology of gender. We prove that alternatives to their sex castes are possible. To ban abortion and to ban contraception—as some Republican politicians are continuing to do—is to seek to control women, to chain us to biology; similar goals are at work in their anti-trans crusade, to exile queer and trans people from public life and positions of public trust, to break up our families, and criminalise us. Beyond providing reproductive care, it’s not a coincidence that many Planned Parenthood clinics are also places where trans people receive gender-affirming care, and where trans men and nonbinary people can go for sensitive treatment of their own pregnancies or uterine health. It is precisely that dignity and equality that is the target of so many right-wing extremists at this delicate moment in time. Bodily autonomy is a core capability that is at the foundation of so many other rights, all of which are under threat. These shared threats are fertile ground on which to build movements, and expand on existing ones. If hope lies anywhere, it is there, in the blessedly vast country of the meaning of ‘woman’. Katherine Cross Katherine Cross is a PhD candidate in information science at the University of Washington School of Information. She has extensively studied online harassment, social media culture, content moderation, and the ethics of big data. She is also a sought-after commentator on these issues, as well as on video gaming, virtual reality, transgender politics, and media criticism. [1] The Associated Press, ‘A judge blocks part of an Alabama law that criminalizes gender-affirming medication’ (NPR, Montgomery USA, 14 May 2022) accessed 19 May 2022; Zoe Richards, ‘Justice Department challenges Alabama law criminalizing transgender health care for minors’ (NBC News, 30 April 2022) accessed 19 May 2022. [2] Romy Ellenbogen and Christopher O’Donnell, ‘Florida advises no social, hormonal treatment of transgender children’ Tampa Bay Times (St. Petersburg, Florida, 20 April 2022) accessed 19 May 2022. [3] Schuyler Mitchell, ‘The Right’s Creeping Pro-Natalist Rhetoric on Abortion and Trans Health Care’ (The Intercept, 17 May 2022) accessed 19 May 2022; Josh Gerstein and Alexander Ward, ‘Supreme Court has voted to overturn abortion rights, draft opinion shows’ (Politico, 5 February 2022) accessed 19 May 2022. [4] Sarah Repucci and Amy Slipowitz, ‘The Global Expansion of Authoritarian Rule’ (Freedom House, February 2022) accessed 19 May 2022. Of note is the United States, which has slipped in Freedom House’s Democracy Index from a score of 89 in 2017 to a score of 83 in 2022. [5] The UK’s Telegraph has a particular obsession with the spectre of ‘gender ideology’. Cf. amongst many others Camilla Tominey, ‘‘Niche’ transgender ideology ‘corrosive’ to society, says report’ The Telegraph (London, 30 June 2020) accessed 24 June 2022; Debbie Hayton, ‘Why the Government must exempt gender-critical views from hate crime laws’ The Telegraph (London, 7 December 2021) accessed 24 June 2022; Telegraph View, ‘Reason should guide the gender identity debate’ The Telegraph (London, 2 April 2022) accessed 24 June 2022. [6] See, for example, Anglo-American writer Andrew Sullivan, who expressed dismay that the moral panic he had helped to foment was spilling over to antagonise cisgender gay people like himself. Cf. Andrew Sullivan, ‘This is a perfectly sane teacher responding to kids’ questions. It seems increasingly clear that this campaign is now driven by vicious homophobia. Moderates take note’, (Twitter, 4 April 2022) accessed 19 May 2022. [7] Ian Millhiser, ‘The constitutional problem with Florida’s ‘Don’t Say Gay’ bill’ (Vox, 15 March 2022) accessed 19 May 2022. [8] Amanda Michelle Gomez, ‘Trans Woman’s Harassment on Metro Is Latest in Growing Number of Incidents Targeting LGBTQ+ People’ (DCist, 14 April 2022) accessed 19 May 2022. [9] Jon Stone, ‘Boris Johnson takes credit for free bus pass after being told cash-strapped pensioners make trips to keep warm’ The Independent (3 May 2022) accessed 19 May 2022. [10] Ella Braidwood, ‘Daily Telegraph criticised for anti-trans NHS women’s wards article’ (Pink News, 11 January 2019) accessed 19 May 2022; Emily Craig, ‘NHS accused of prioritising trans people for breast surgery over women with medical needs’ Daily Mail (London, 2 May 2022) accessed 19 May 2022; Katie Feehan, ‘NHS equality chiefs mutiny AGAINST ‘transphobic’ watchdog ruling that allows trans patients to be barred from single-sex wards if there is a legitimate reason’ Daily Mail (London, 6 April 2022) accessed 19 May 2022. Indeed, the Daily Mail has an entire subsection devoted to coverage of trans people, nearly all of it negative and sensationalist (see ). Other newspapers in the UK are not far behind. [11] Trudy Ring, ‘Rash of Teen Suicide Attempts After Arkansas Adopts Trans Care Ban’ (The Advocate, 19 April 2021) accessed 19 May 2022. [12] Sabrina Imbler, ‘In Arkansas, Trans Teens Await an Uncertain Future’ The New York Times (New York, 18 January 2022) accessed 19 May 2022. [13] Rod Liddle, ‘I’m identifying as a young, black, trans chihuahua, and the truth can go whistle’ The Times (London, 11 November 2018) accessed 19 May 2022. [14] Jules Gill-Peterson, ‘Anti-Trans Laws Aren’t Symbolic. They Seek to Erase Us from Public Life’ (Them, 18 April 2022) accessed 19 May 2022. [15] Monica Hesse, ‘Republicans thought defining a ‘woman’ is easy. Then they tried’ The Washington Post (6 April 2022) accessed 19 May 2022 [16] Susan Stryker, ‘(De)Subjugated knowledges: An introduction to transgender studies’ in Susan Stryker and Stephen Whittle (eds) The Transgender Studies Reader (Routledge 2013) 10. [17] ibid. [18] Title VII of the Civil Rights Act of 1964 (USA). Note that the legislation does not attempt to define sex, only to include pregnancy and pregnancy-related discrimination (and, notably, to exclude most protection for abortion). [19] Price Waterhouse v. Hopkins (1989) 490 U.S. 228, US Supreme Court. Among other things, this landmark U.S. Supreme Court case held that discrimination on the basis of gender presentation (i.e., a woman wearing masculine clothing and refusing to wear makeup) was indistinguishable from discrimination on the basis of sex because it required the discriminating party to make judgments based on their perception of the target’s sex. You cannot antagonise a trans woman for wearing high heels, say, without taking into account your belief that she is ‘really’ a man. The reality of this belief is irrelevant to the motivation for discrimination, and the Hopkins case has, therefore, been essential in providing a legal basis for transgender rights in the U.S. [20] U.S. Equal Employment Opportunities Commission, ‘Sex-Based Discrimination’ accessed 19 May 2022. [21]Kath Murray, Lucy Hunter Blackburn, and Lisa Mackenzie, ‘Reform ‘under the radar’? Lessons for Scotland from the Development of Gender Self-Declaration Laws in Europe’ (2020) 24(2) The Edinburgh Law Review 281–289; Callie H. Burt, ‘Scrutinizing the U.S. Equality Act 2019: A Feminist Examination of Definitional Changes and Sociolegal Ramifications’ (2020) 15(4) Feminist Criminology 363–409. These papers are among the first to turn up in academic database searches for ‘sex-based rights’. Each of them offers an intervention against laws that would specifically protect trans people. Both pit the idea of ‘sex-based rights’ against transgender rights and represent novel constructions of women’s rights that would have been unthinkable a generation ago. As I note in the main body of this essay, the awkwardness and counterproductive nature of ‘sex-based rights’ as a phrase is easy to see when one attempts to use a similar phrase about race or any other protected category.

Mariya Ionova wears many hats. She is a Member of the Parliament of Ukraine, holds a bachelor’s degree in Finance and Credit and a master’s in Global Business and International Economy, is a wife and mother of two children – and above all, is a fierce Ukrainian patriot. Over her eight-year tenure in Parliament, she has collaborated with others in government to secure Ukraine’s integration with Europe and to assist Ukrainians impacted by the ongoing Russian war. Since 2014, when Russia annexed the Crimean Peninsula and launched a hybrid campaign in the Donetsk and Luhansk regions of Eastern Ukraine, she has regularly visited the contact line to deliver aid and support to internally displaced Ukrainians. In addition, she is advancing legislation to promote women’s rights, to prevent and combat domestic violence and the protection of children. On 15 April 2022—52 days after Russia’s invasion of Ukraine on 24 February 2022—we spoke to Ionova about her priorities as an elected official in wartime, her view of the West’s response to Russia’s war on Ukraine, and her predictions for how the war will end. This interview was lightly edited for length and clarity. CJLPA: When you were elected to be a member of Ukraine’s Parliament, the Verkhovna Rada, did you ever imagine you would be serving your country during a time of war? Mariya Ionova: Yes and no. I was first elected in 2012, and I was very active in questions of European integration during the Revolution of Dignity and Euromaidan].[1] The war for us started in March 2014 when Russia annexed Crimea and occupied Luhansk and Donetsk. The West did not want to escalate the war by putting boots on the ground. We had been fighting for six months and we were asking for sanctions. Russians were killing our people; I remember when President Petro Poroshenko [elected after Viktor Yanukovych’s removal] was working 24/7 on creating an international coalition and asked for a UN peacekeeping mission. He also worked on strengthening our Armed Forces together with our partners, and signed association agreements: legislative agreements to put the European Union and NATO integration into our constitution. This was a strategic course in his presidency. Because of this, when Russia invaded Ukraine again on 24 February of this year, we did not falter. Our armed forces, Ukrainian people, government, and Parliament work in solidarity, and we are brave. After that, we visited the front lines in Eastern Ukraine and meet regularly with IDPs [internally displaced persons] to provide humanitarian assistance. On 24 February, we were expecting war. But we did not expect such horror, such inhumanity, such cruelty, that there would be such crimes against women and children, girls and boys. Pure brutality. You can’t find the words when you see a seven-year-old boy watching his mother get raped and dying. Today, my colleagues and I are not only Members of Parliament, but we’re also volunteers in our communities. We are people who love our nation, our country, we love our people. And we are full of rage at the same time. We will not be OK until this settles in the courts. We need justice. We are working on the diplomatic front, on humanitarian aid and securing weapons for our military. CJLPA: Without sharing any details that might put you or your loved ones at risk, what steps have you taken to protect your safety and the safety of your family? MI: On 23 February I was in Parliament, and I felt it was wrong that my family was at home in Kyiv. I really couldn’t function at work from worry. So, in the evening, I called Myron [husband Myron Wasylyk, a Ukrainian-American advisor to the CEO of Naftogaz of Ukraine] and said ‘please be ready in one hour, we’re leaving for Western Ukraine’. When we arrived at five in the morning in Lviv the day after, the bombing started in Kyiv. My mom and aunt also arrived two days later, and then I went back to Kyiv while my family stayed in Lviv, and then to the Ukrainian/Hungarian border. I am worried about my mother; she has cancer and now must look after my children while my husband and I fight for Ukraine. Since then, I’ve been travelling to Zaporizhzhia, Dnipro, Ivano-Frankivsk. We are donating humanitarian aid from the USA and Canada. In our party [European Solidarity], we have a network of women that I work with closely: Jana Zinkevych, Sophia Fedyna, Nina Yuzhanina, Tac, Viktoriya Sumar, Iryna Gerashchenko, Ivanna Klympush-Tsintsadze, and Iryna Friz. They are all strong, intelligent, and brave women. I’m so proud of these women, but it’s also heart-breaking what they’re doing. Iryna Friz, the first Minister of Veterans in Ukraine, in the past 53 days of the war, has sourced 328+ tonnes of humanitarian aid for Ukraine, including bulletproof vests. I don’t think about my security. I have my responsibilities and I must do them. There is no safe place in Ukraine. Today in Lviv, seven people including a small child were already killed and 15 badly wounded. My father and my brothers are in Kyiv, they are volunteers in different places. The men are trying to do what they can. CJLPA: As a Parliamentarian, in a time of war, with the country under martial law, what are the most important actions the Parliament is and should be taking right now? MI: Now our priorities are hostages and civilian hostages. There are more than 1,000 civilian hostages, and 500 of those are women, including local representatives, journalists, and civil activists. The conditions for them are not, shall we say, according to the Geneva Convention. They need medical attention. On this list of hostages is paramedic Yulia “Tayra” Payevska—her daughter Anna-Sofia Puzanova won a bronze medal at the Invictus Games. Yulia was working as a paramedic in Mariupol from the first days, and the Russians kidnapped her. We must highlight her name. They’ve made up stories about her. It’s just terrible. We also have a list of 40 children who were kidnapped and taken to Russia, most of them from Mariupol. We know the exact address of where they are in Russia. But these children have relatives in Ukraine. One boy, Ilya, his mother was killed in Mariupol, but his grandmother is in Uzhhorod. Another boy, Maksym, 15, is an orphan who was studying in college in Mariupol and was wounded. He also has relatives in Ukraine. Another girl, 12-year-old Kira Obedinksy, her father Yevhen Obedinksy was the former captain of the Ukrainian men’s water polo team, and he was killed in Mariupol. She’s been taken to Donetsk, and they want to give her to a Russian family, but Kira has a grandfather in Ukraine. Each has a personal story. As mothers we all can imagine our own children in these stories. This problem has to be named: Russia is a country that is kidnapping children. CJLPA: We have heard reports from Ukraine’s government and the media about atrocities being committed against Ukraine’s people—executions, rape, abductions. What can you tell us about the situation on the ground that Ukraine’s allies may not be aware of? MI: The list of 40 children represents those where we have the exact address where they are being held, where we have a complete history and detailed information. But there are many, many more cases where we don’t yet have all the details. Especially in occupied territories, to which of course we don’t have access. All we have on those cases is information that the Ministry of Defence is collecting, and that which the Ombudswoman on Human Rights gets on their phone hotline [about missing or kidnapped individuals]. There are over 4,000 criminal cases that are open but, unfortunately, we don’t have the volume of legal professionals to prosecute them all. There are still bodies that have still not been identified after 50 days of war. Where there is rape of women and children, 99 percent of these victims are not ready to speak to law enforcement institutions, they are afraid to speak now. And that’s also a problem. But we are asking our international partners for assistance. There has also been evidence that people are dying of starvation and dehydration. In Mariupol, in Bucha, there are elderly people who have been blocked in their houses for weeks. In Bucha, they were finding that [Russian troops] killed families, five bodies in a yard. In all, thousands killed. We have to get all this documented and get this to the International Court, and it has to be punished. That’s why we are calling this a genocide. CJLPA: How would you rate the response from the international community so far to these atrocities? MI: All the European countries and America were teaching us about democratic values [before Russia’s latest invasion]. Now it’s their turn to show us how they defend those values. It is the responsibility of the free world. If they will not help us, he [Putin] will not stop. He has 150 million people. He doesn’t care how many Russian people will be killed. And he will go further. There are no red lines for him. The free world was not ready to defend their values. They didn’t have a strategy. Our strategy is that Russia must be defeated, Putin must be punished. He is a war criminal. The Western community is not ready for this. For us, there is no grey, only black and white. We are paying with our lives. That is why we are demanding weapons to defend ourselves. So, we say, ok, if you won’t give us a no-fly zone, at least give us military equipment. The problem is all these countries waited to give us assistance. They were sure we would fail. That is why they didn’t have a strategy of support for us. When we showed the whole world that we fight, when we showed our resistance, we understood that they don’t have a strategy on Russia. They would like to trade with Russia as business as usual. And we also heard realpolitik. Now realpolitik is the whole world watching online how we have been raped and tortured and killed. CJLPA: How should the world be supporting Ukraine? MI: Our humanitarian request is weapons. We don’t need masks, soap, food when we are under shelling, under bombardment. We need weapons. And sanctions. There are 330 Russian banks. Do you know how many were turned off from SWIFT? Six. Now after Bucha they increased, but not 330. They find loopholes. Why didn’t they sanction sooner? What about Russian information sources? Why are we not expelling Russian diplomats? At least half of them? And we still have discussions in the United Nations, to be or not to be. He [Putin] uses this weakness. He’s inspired by this weakness. I understand democratic procedures, but he is going crazy. He’s killing and attacking every day. Where is international order? Where are international rules? Why are we five steps behind? Why is he making the rules, setting the agenda? Why not strong democratic countries? What are you waiting for? CJLPA: Do you believe Ukraine will win this war against Russia? MI: We have already won. By spirit, by unity in our country. By being a brave nation. We will not fail. The alternative is we will be killed. We will not give up. This is why we’ve already won. We hear [Russia’s] is the second biggest army in the world, and our army has shown that when you have spirit and love and value freedom, you will fight. It’s a historical chance for all the world. We have repeated this historical circle for centuries. We need to get other nations to help prevent this and this criminal Putin, and that’s why we’re asking other countries that he needs to be completely isolated from the free world. And if the free world wants to do this, it’s their choice. But we will not give up. There is no alternative for us. What he’s doing to Mariupol, he will do with the whole of Ukraine. He wants to erase us from the whole world—our genes, our language, our land, our history. World—are you ready to respond? CJLPA: What else do you think Western audiences need to know about Ukraine? MI: The whole set of war crimes that are being committed in Ukraine now. We are not blaming the world. We are not making accusations. Everyone makes their choice. But if we all together share the same values and principles, then all together we need not only words, but also actions. We must be united and fight. We are committed to this fight because we don’t see another way. To be under the Russian Federation? No way! In Donetsk and Luhansk, Putin thought those were his people, but people were saying, no, we want to be here in Ukraine. You see, in Kherson, Putin failed. Ukraine is in favour of being our own country. We are a European, Atlantic country, in the European family. But if European countries share such values, they need to step up. We will do it ourselves if we need to, but the casualties will be huge. It’s a question of security for the whole world. We are protecting the European Eastern border with our lives. We appreciate that all the world is standing with Ukrainians. But words are not enough. We appreciate words, but we need action. We are fighting for the world. Russia’s war is against NATO also, it is against democracy. The best security guarantee is NATO membership. In this regard, I would like to take this opportunity and wholeheartedly thank the British people and the British government for their clear position on supporting Ukraine…and this position is becoming strong and stronger. Together we will prevail and of course Ukraine will win! This interview was conducted by Yevdokia Sokil and Constance Uzwyshyn. Constance 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. [1] Protests over then-President Volodymyr Yanukovich’s decision not to proceed with European Union integration in favour of closer ties with Russia, that resulted in his removal in 2014.

1. Introduction The criminal law continues to grapple with the concept of ‘deceptive sex’ and struggles to draw the appropriate parameters around the provisions on consent contained within the Sexual Offences Act 2003 (henceforth, ‘the SOA’). Particularly notable in this regard have been cases involving ‘gender fraud’, wherein the defendant (D) is alleged to have deceived the complainant (V) as to their gender in order to procure sexual relations. This was found to be the case in R v McNally[1], where the Court of Appeal held that the sexual nature of the acts was different where the complainant was deliberately deceived by the defendant as to her biological sex; V’s freedom to exercise preference over the gender of their sexual partner was removed.[2] V’s consent was therefore vitiated. The language used in this case effectively characterises D’s failure to disclose gender history as a deliberate deception (writing, inter alia, that D ‘had lied to [V] for four years’[3]), and acutely raises this issue of consent: in what circumstances will D’s inaction be elevated to a finding of deception? As a corollary to this, in what circumstances are deceptions are sufficient to vitiate consent for the purposes of sexual offences? These are the questions with which this article seeks to contend. They will be addressed in several parts. First, it will be found that the conceptual framework deployed by the courts in these cases, namely the distinction between active deception versus non-disclosure, cannot bear the analytical weight imposed upon it by the factual intricacies of the cases that have arisen thus far, and of those that will invariably arise in the future. The inadequacy of this binary is brought to the fore by McNally: the gaps in the court’s reasoning are haphazardly filled with cis-normative prejudices that cannot stand against conceptual scrutiny. It will be argued that the term ‘deception’ (that is, the act of deliberately causing (someone) to believe something that is not true, especially for personal gain) is not only inappropriate when applied to transgender defendants for ontological reasons, but also risks legitimising discrimination towards transgender individuals through the forum of the criminal law. The court’s prejudices are often clouded in repeated references to the need to protect the right to sexual autonomy. It is not disputed that this protection is a valid pursuit, however, the over-prioritisation of V’s sexual autonomy has led to a conflation of two analytically distinct questions, namely: (1) did V consent? and (2) did D possess a reasonable belief in V’s consent? These questions must remain separate such that due weight is given to the competing interests of D in privacy and self-preservation (particularly in cases involving transgender defendants). Having exposed the inadequacies of the current model, Section 3 investigates a new conceptual framework upon which the law on sexual offences may be built. In this regard, the distinctions made by Matthew Gibson when he distinguishes between ‘principal sexual offences’ and ‘deceptive sexual relations’ prove highly instructive.[4] He observes that the latter are often criminalised under ‘principal sexual offences’, namely rape, sexual or indecent assault etc.[5] In his view, however, this poses a problem for fair labelling as, while deceptive sexual relations are equally harmful to a victim’s right to sexual autonomy as the relations proscribed by the principal sexual offences, they represent a different wrong.[6]He therefore advocates for the creation of separate deceptive sexual offences targeting penetrative and non-penetrative sexual relations.[7] Adopting this bifurcation, the model proposed in this article variegates deceptive sexual relations further into a tripartite taxonomy: relations resulting from an active deception, a passive deception, and a unilateral mistake by V. The courts, having already established that the first of these is sufficient to vitiate consent[8], have left the following task for the present enquiry: distinguishing between a passive deception and a unilateral mistake. It is argued that only the former can vitiate consent, arising either when D knowingly exploits a unilateral mistake by V to procure sexual relations, or when D is under an obligation to disclose certain information but fails to do so. As to the former, D’s knowledge and opportunism elevates V’s unilateral mistake to a passive deception. As to the latter, regarding the circumstances in which such an obligation may be generated, several possibilities are canvassed with a brief discussion about how the law may develop in the future. It is suggested that the materiality of certain facts to V’s consent should remain subjectively determined by V, but any obligation to make V aware of facts that may conflict with this materiality is contingent upon D’s actual knowledge, or a reasonable expectation that D have knowledge, of such materiality. This model departs from the court’s current approach in that it ensures that the expectation of D’s knowledge is conditioned not by cis-normative biases, but instead by an objective assessment of the facts and an introduction of the concept of ‘justifiability’. 2. Deceptive Sexual Relations 2.1. The current law Section 76 of the SOA makes reference to deceptive sexual relations by outlining a conclusive presumption according to which consent will be vitiated when D intentionally deceives V as to the nature or the purpose of the relevant act, or intentionally induces consent by impersonating a person known personally to V. Conclusive presumptions operate analogously to a rule of law—that is, they cannot be changed or displaced by reference to additional evidence or argument. Through its judicial treatment, it has been interpreted narrowly with the courts opting to determine the question of consent through the route under section 74, according to which ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.[9] The way this provision has been interpreted in subsequent cases has developed a practice in the courts of criminalising deceptive sexual relations. It has long been rejected that a consent-vitiating deception can be implied out of D’s non-disclosure, even if that non-disclosure was as to D’s HIV status;[10] V’s consent here is deemed relevant only to the act (that is, to sexual intercourse) but not its consequences (that is, any sexually transmissible diseases that D may have passed to V).[11] The courts have been careful, however, to delineate cases of mere non-disclosure from those in which a certain set of facts or a particular state of affairs is material to V’s consent with D knowing of this materiality but failing, or indeed refusing, to correct V’s mistaken belief in the existence of such facts or to ensure that those state of affairs are maintained. In Assange v Swedish Prosecution Authority[12], V made clear that her consent was only forthcoming if D used a condom. The materiality of the use of the condom, coupled with D’s knowledge of this materiality and subsequent engagement in sexual relations without heeding this condition, was sufficient to ground a finding of active deception that vitiated V’s consent. In R(F) v DPP[13], V’s consent was only forthcoming on the basis that D would ejaculate outside her body. There was ‘evidence that he deliberately ignored the basis of her consent’,[14] and as such, V’s consent was vitiated. These cases have also been explained as instances of ‘conditional consent’; V consented on the basis of a premise that, at the time of the consent, was false. When expounding upon this model, the court in R(F) v DPP, somewhat unhelpfully, opined that ‘evidence relating to ‘choice’ and ‘freedom’ to make any particular choice must be approached in a broad common sense way’ (emphasis added).[15] Precisely how this ‘common sense’ approach is to be realised in substance was not clarified by the court, regrettably creating a lacuna that has invited more confusion into the question of criminality for deceptive relations. The issue was raised in an acute form in R v McNally. 2.2. R v McNally As a preliminary, this article takes as axiomatic that D at the time was living as a transgender boy. However, gender references to D will use ‘she’ and ‘her’ pronouns in order to respect D’s identification at trial as a female. D, a thirteen-year-old, met V (a cis-gender girl), a year younger, through a gaming website. The pair developed an online relationship for three and a half years, throughout which D presented herself as a boy named ‘Scott Hill’ and used male pronouns. This relationship culminated in several in-person visits, during which D wore a strap-on dildo and engaged in sexual relations (orally and digitally) with V. V’s mother later confronted D about her birth sex, leading D to admit that she was biologically female. The facts were somewhat contested, with D claiming that V knew of her gender history throughout their relationship while V denied having any such knowledge. The Court of Appeal held that ‘while, in a physical sense, acts of assault of penetration of the vagina were the same whether perpetrated by a male or a female, the sexual nature of such acts is, on any common sense view, different where the complainant was deliberately deceived by a defendant into believing that the latter is male’.[16] V’s consent was vitiated under section 74, supporting a conviction for sexual assault by penetration. Several noteworthy elements of the judgment require observation. First, D’s acts are characterised as a deliberate (or active) deception as opposed to a non-disclosure. Second, the court relies upon the ‘common sense view’ alluded to in R(F) as a fulcrum to advance this characterisation. The significance of these findings ought not to be understated; they spotlight the fragility of the court’s current approach, reveal its cis-normative prejudices, and signal the need for a new conceptual framework. These will be discussed in turn. 2.2.1. Active deception as to gender The court identified the following factors that contributed to the finding of deliberate deception: D’s use of a different last name, the claim that D and V discussed ‘getting married and having children’[17], D’s gender confusion (particularly in witness statements where D used female pronouns when referring to herself), D telling V that she would ‘[put] it in’[18] (which V took to mean D’s ‘penis’), and D’s purchase of condoms. In a convincing counter by Alex Sharpe, none of these factors ought to be deemed deceptive if we take transgender identity seriously.[19] Gender identity ‘confusion’ is common, especially among young transgender people, and should be interpreted not as gender inauthenticity but as part of their navigation through a transphobic world.[20] All of these factors could just as easily point to the authenticity with which D presented herself as a transgender boy at the time of the events and, in any case, are not conclusive (individually or cumulatively) of D’s desire to induce a false belief in V. Indeed, again, on D’s account of the facts, D did not know that V was mistaken about D’s transgender identity; she claimed that V was aware of D’s gender history. To characterise D’s acts as a deliberate deception therefore seems unsustainable. More generally, the rhetoric of deception that pervades these cases implies a preoccupation with the ‘truth’, prompting a question about what constitutes the ‘truth’ for these purposes. The state of affairs to which the criminal law seems to attribute the moral significance of the ‘truth’ is the defendant’s gender history; the transgender defendant’s gender presentation, no matter how authentically lived, is deemed a pretence through which the law must see. This view of the ‘truth’ is contestable on two grounds: first, it deflates the importance of self-determination, and second, it runs the risk of legitimising discrimination against transgender individuals through the forum of the criminal law. The Foucaultian perspective finds that ‘[e]ach society has its regime of truth, its ‘general politics’ of truth: that is, the types of discourse which it accepts and makes function as true’.[21] Simplifying this view, the truth is not divorced from power but is a product of it; any truths about gender or sexuality which claim universality and objectivity must be viewed as ‘part of a ‘truth’ game’[22] in which the real victor is power. From this, it may be deduced that what is too readily accepted as the ‘truth’ behind the transgender defendant’s ‘deception’, namely their biological sex, is not the truth, but merely a created truth that is conditioned by an engagement in a system of power that privileges the cis-gender individual’s conformity to the cultural matrix. The truth is therefore constructed and internalised, as opposed to pre-determined. We have been conditioned to accept the gender binary as the truth, which renders the transgender person’s departure from it deceptive. Applying the constructivist perspective, Judith Butler uses the concept of performance to describe the phenomenon of gender, arguing that gender, in contrast with sex, is socially and relationally constructed, distinct from the body of the subject.[23] Separating these categories allows for gender to be seen as a performance through which the individual may subjectively determine the expression of their identity rather than as a necessarily cohesive expression of their biological sex. She explains this with such clarity that it is worth quoting in full: ‘[W]hen the constructed status of gender is theorised as radically independent of sex, gender itself becomes a free-floating artifice, with the consequence that man and masculine might just as easily signify a female body as a male one, and woman and feminine a male body as easily as a female one’ (emphasis in original).[24] Naturality is developed through repetition; the rehearsal of the rules of gender serves to reinforce the connection between gender and sex, thus cementing hetero- and cis-normativity. The transgender identity is thought to be ‘untruthful’ due to its disruption of these rules. It presents an ontological challenge to the taxonomies of gender and sex, ‘evoking complex questions about the construction, deconstruction, and ongoing reconstruction’.[25] These performances, however, ought not to be conflated with masquerades in which the performer hides the ‘truth’ behind their gender expression. ‘There is no gender behind the expressions of gender; that identity is performatively constituted by the very ‘expressions’ that are said to be its results’.[26] As such, gender is not a fixed universal truth that lies behind a performance; it is simply deemed to be universal due to the power structures that animate and repeat its legitimacy. Instead, the truth is in the individual’s gender performance. This idea is one that has been scientifically recognised and has gained empirically support from the definition of gender provided by the World Health Organization. It defines gender as ‘the characteristics of women, men, girls and boys that are socially constructed’.[27] Further, it makes clear that ‘[g]ender interacts with but is different from sex, which refers to the different biological and physiological characteristics of females, males and intersex persons…Gender identity refers to a person’s deeply felt, internal and individual experience of gender, which may or may not correspond to the person’s physiology or designated sex at birth’.[28] Clarifying the understanding of gender in this way destabilises the very underpinnings of the McNally judgment, and the rhetoric of deception in this area more broadly. If there is no ontological referent against which the truth is determined (and instead simply a default normative position to biological sex that has garnered societal acceptance due to repetition and powerful discursive influences), there can be no deception. For precision, this proposition does not seek to exclude the possibility of gender fraud altogether. There may be instances in which an individual deliberately projects an identity contrary to one’s subjective truth, such as the oft-cited ‘man’ who pretends to be a woman to gain access to women’s bathrooms. This may prompt calls for the potential of a test of ‘authenticity’ to determine the extent to which a person’s self-identified gender is to be recognised, as well as the metric against which deceptive versus non-deceptive fact-patterns can be distinguished. At this juncture, an important preface must be made. When demanding a test of authenticity, we must be acutely aware that the motivations for doing so may subconsciously, almost surreptitiously, resort to the very narratives that this article seeks to resist. It is worth noting that the narrative of the ‘man’ attempting to gain access to women’s bathrooms is premised on ‘earlier feminist anxieties that transgender women would—stealthily, deceptively—infiltrate, commandeer, and ‘rape’ women- and lesbian-only spaces’.[29] Once it is understood that these anxieties are the same as those which mobilised the racist desire to prevent ‘blacks entering white-only bathrooms’,[30] we are forced to scrutinise our desire to ask for authenticity: is it truly rooted in the practical need and sincere desire for clarity, or is it simply defaulting to the ‘long history of [transgender people] being made suspect’,[31] once again assumed as ‘counterfeit’[32] until they prove otherwise? This question becomes all the more salient when we recognise that the readiness with which we feel able to develop such tests is not easily transposable to other contexts. There is a general discomfort, for example, to demand the authenticity with which someone identifies with a particular religion—there are no such tests to determine whether someone is ‘truly’ Christian. Our hesitance to intervene in these matters is indicative of our reluctance to impose a yardstick of ‘correctness’ in matters of great personal significance and of great variation and complexity. In light of the exposition above about the legitimacy of transgender identities, it is important to recognise that the lived gender experiences of transgender individuals are no less significant. This recognition means that the criminal law should be slow to develop stringent tests of authenticity, being sensitive to both the cis-normativity that can underlie such tests and the general social climate that is still unaccepting of transgender identities. Such a climate can prevent the formation of a singular, uniform gender identity narrative against which the court can test all lived realities. This article therefore advocates for a presumption in favour of authenticity, unless it can be shown that the gender identity adopted by the defendant was truly for the purposes of procuring sexual relations. The factors outlined here are listed with caution due to the recognition that gender identity can be experienced in different ways, particularly at the intersections of culture, race, and religion. Nevertheless, the court may look to indications of gender expression, the length of time for which the defendant has lived in a particular gender identity, any expressions of a desire for sex/gender reassignment, and other factors pointing to gender dysphoria. When these factors are applied to the case of McNally, it is clear that the findings of deception could plausibly be viewed as expressions of D’s authentic gender identity. These include D’s gender confusion and D’s use of the phrase ‘putting it in’. As Sharpe argues, gender confusion is neither uncommon nor surprising particularly among young people who need to negotiate through a transphobic world.[33] Further, many transgender men truly consider a prosthetic device to be their penis.[34] It is stressed that these factors are not exhaustive and should only be used in the event that there is sufficient evidence to rebut the presumption of authenticity. Ethically speaking, Butler argues that authenticity is ultimately found in the individual: ‘we are all ethically bound to recognise another person’s declared or enacted sense of sex and/or gender’.[35] Any legal system that purports to take assertions of gender identity seriously must therefore recognise that no relevant gap exists between a transgender person’s gender identity and the gender identity that cis-gender people assume. A transgender D, presenting as male, is not deceiving V (who assumes or accepts D’s male gender identity) because D’s gender identity (as opposed to gender history) ought to be the truth that the court identifies. This is particularly relevant in cases like McNally where D’s anatomy was never relevant to the acts themselves (that is, oral and digital penetration). A conclusion that a transgender man acts deceptively in circumstances where he asserts his masculinity, either through statements or other aspects of his gender performance, is not only unsustainable in light of the ontological challenges highlighted above, but also serves to undermine the individual’s self-determination by indirectly prescribing the acceptability of some gender performances, those which are conveniently consonant with biological sex, while labelling others as deceptive. This labelling, particularly when done through a forum with the finality and gravity of the criminal law, has the effect of legitimising discrimination against transgender individuals in several ways. First, social theory suggests that labelling contains latent judgments about similarity and difference, as well as of inclusion and exclusion, which subsequently affect the way people understand themselves and others in the organisation of society.[36] In this way, labelling becomes a form of segregation and categorisation. Second, this process is almost always socially rooted, constituting an exercise of power that involves some degree of ‘symbolic violence’.[37] This links back to the Foucauldian understanding of truth as power—labels imposed through language and practice simply conceal the domination inherent in our systems.[38] Taken together, the label of ‘deliberate deception’ imposed upon transgender defendants not only underlines their ostracism from the gender conformity matrix, but also connotes a level of humiliation for their supposed transgression from what is deemed to be morally upright (the cis-gender identity). As highlighted by Allison Moore, ‘[t]erms like… deception and fraud are hardly imbued with moral integrity’.[39] She adds that these labels create an expectation that transgender defendants disclose their gender history, which ‘serves to naturalise and reinforce relations of dominance and subordination in the gender hierarchy’.[40] The cumulative effect of this labelling process is to conceive of any truthful transgender or gender nonconforming defendant as a self-loathing individual who has not only registered prejudice but has also internalised it, readily anticipating that they can never legitimately nor convincingly claim to be the object of a cis-gender individual’s desire.[41] After all, if their very identity is deemed to be deceptive, the social climate within which the transgender defendant operates is automatically conditioned by cis-normativity; the label of deception pre-determines the mens rea question (requiring that D did not reasonably believe that V consented) and renders it redundant by impliedly establishing that D, a liar, cannot reasonably (in most, if not all, cases) expect V to have consented. It is particularly concerning when this labelling process is done through the criminal law because conduct is not only condemned as a mere legal wrong but also ‘as [a moral] wrong in a way that should concern those to whom it speaks, and that warrants the further consequences (trial, conviction, and punishment) that it attaches to such conduct’ (emphasis added).[42] Indeed, its moral potential means that the criminal law cannot, and should not, shy away from condemning behaviour that has been proven to fall within its scope; it is arguably one of the State’s most powerful means through which those who have committed wrongs are called to account. However, when used in contexts where the law may have a part to play in creating the social narrative lived by the people to whom it must respond, it is precisely because of its primacy, its thrust, and its finality, that the criminal law should be slow to reinforce prejudices that other parts of the law seek to eliminate. As Brooks and Thompson highlight, ‘the harm suffered arises out of the victim’s own intolerance and prejudice, something which the criminal courts ought not to vindicate’.[43] There is a public policy concern here: unlike the intolerance that is readily expressed by the law for instances of racism or sexism, ‘if you are a transphobe, the legal message is: assume everybody to be cis-gender and if your unreasonable assumption fails to accord with reality, feel free to channel your sense of outrage through the criminal law’.[44] This is not to underplay any sense of ‘outrage’ on the part of V, flowing from a sense of being ‘misled’, but simply an argument that this outrage ought not to be vindicated by the criminal law. Understandably, the criminal law’s immense moral capacity means that it is an inappropriate outlet for judicial activism: it must keep pace with social norms rather than lead them, lest the law becomes unduly moralistic and suffocatingly prescriptive. Instead of aspiring towards norm-generation, therefore, we may settle for its capacity for norm-reflection. However, this does not mean that all aspirations for positive norms to be reflected ought to be abandoned. The norms reflected ought not to be those rooted in discrimination and prejudice, seeking to delegitimise, through its labels, certain factions of the very society that it is tasked with regulating. To say that one’s ‘humanity is a pretence’ tells them ‘that all social norms are suspended in dealings with them because they are not human’.[45] 2.2.2. The ‘common sense’ approach: a duty to disclose? The court in McNally cites the ‘common sense’ approach to claim that the sexual nature of the acts was different by virtue of D’s deliberate deception. When scrutinised, however, this justification is not analytically robust, when read in either a broad or a narrow sense. A broad understanding of ‘sexual nature’, which would follow the approach taken to ‘nature’ under section 76, would mean that D’s deliberate deception led V to believe that a sexual act in which they partook was non-sexual. Axiomatically, this reading of the judgment must be rejected given V’s knowledge that the acts were of a sexual nature. A narrow reading of ‘sexual nature’, one that is perhaps more generous to the judgment, would mean that D’s deliberate deception altered the nature of the acts (at least from V’s point of view) from being ‘heterosexual’ to ‘homosexual’ by virtue of D’s (undisclosed) biological gender. This seems to imply that the difference in the acts’ ‘sexual nature’ by virtue of D’s deliberate deception is important not wholly because of D’s culpability, but because of its incompatibility with V’s sexuality. The upshot seems to be that a bisexual V, deceived as they may be, may be said to have consented given that the difference in sexual nature would not be incompatible with their sexuality.[46] For several reasons, this model cannot be correct. First, the analysis on ‘sexual nature’ charted by the court conflates two analytically distinct questions: (1) did V consent? and (2) did D possess a reasonable belief as to V’s consent? (a question about mens rea). The court uses the idea that, from V’s perspective, the sexual nature of the acts became different upon her realisation of D’s biological gender, which in turn grounds the finding of non-consent. While some may suggest that the sexual nature of the act itself never changes (that is, V is performing an act with an individual who possesses a quality with whom they would not want to engage in acts of such nature), this is not how the court approaches the question. The court explicitly finds that ‘the sexual nature of the acts is…different where the complainant is deliberately deceived by a defendant into believing that the latter is a male’ (emphasis added).[47] This privileges V’s subjective understanding of the act, which is understandable when determining the answer to question (1) given the need to protect sexual autonomy (an interest explored in more detail in Section 3). However, the court continues to prioritise V’s subjective reality when answering question (2). Instead of undertaking a meaningful inquiry into the reasonableness of D’s belief, the bulk of the court’s analytical labour was expended on the finding of non-consent, which was grounded in an assumption, rather than a reasoned conclusion, that D’s gender identity was deceptive. By making unsupported references to this deception, cloaked in the language of ‘common sense’ without further elaboration, the mens rea question was rendered hollow by reference to V’s subjective reality. Yet it must not be forgotten that D was living authentically as a transgender boy and, on the question of sexual nature, could have conceivably deemed the act as heterosexual. When determining the reasonableness of D’s belief, the court failed to recognise that there were two subjective realities at play, the normative hierarchy between them being far from self-evident. As Joseph Fischel identifies, ‘[s]ubjective feeling is no more but no less exhaustive of gender than any other criterion, not least because gender…is made and remade relationally, not individually’.[48] Here, the deficiencies of the court’s distinction are brought forward and the true role of deception is revealed; it is used as an analytical tool to prioritise a characterisation of the acts only as V understood them, rather than engaging with how both parties may have viewed and experienced the events—an exercise that would have been all the more important in this context given the contested nature of the facts. This is not to undermine any feelings of shame or betrayal felt by V, legitimate as they are, but simply to highlight that the difference in sexual nature was only felt by V, rather than objectively as the court seems to suggest. The court finds that ‘[V] chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant's deception’[49], and halts its analysis here, failing to venture into an enquiry about reasonable belief. Again, although this is understandable in the determination of (non)consent, the primacy of V’s sexual autonomy must not be extended to the question of reasonable belief. On question (2), the court privileges the reality lived by V, one that is hetero- and cis-normative, without elaborating upon why, conceptually or doctrinally, this is done and instead retreating into the safety of principle by insisting that this privilege is simply part of the ‘common sense’ approach. Second, by focusing on its ability to deprive V of the choice to ‘have a sexual encounter with a girl’,[50] the rhetoric on deception seems to imply an ability to make a ‘straight’ choice.[51] To characterise the facts as a deprivation is to imply that the right held by V to have a specific sexual encounter, and the resulting harm from the infringement thereof, outweighs any interests in non-disclosure that may be possessed by D, and further, is of such significance that it warrants the intervention of the criminal law. Yet it is trite from cases involving deceptive sexual relations that sexual autonomy is not an unlimited right; as Schulhofer rightly observes, ‘[s]exual autonomy, like every other freedom is necessarily limited by the rights of others’.[52] It is submitted that the harm experienced by V, although legitimate, is culturally conditioned, and ought to be weighed against the normatively and empirically rooted interests possessed by D: D’s privacy and self-preservation.[53] For clarity, this is an argument in recognition of D’s interest in non-disclosure, one that is bolstered by well-established rights to privacy and self-preservation. Charles Fried has argued that privacy allows individuals to control the information that they disclose to, or conceal from, others, which in turn has important implications for individual integrity and interpersonal relationships.[54] The absence of this right is harmful because ‘to regard ourselves as objects of love, trust, and affection is at the heart of our notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions’.[55] Similarly, Thomas Nagel supports the view that privacy is a precondition to individual integrity and development, writing that ‘[t]he more we are…asked to expose our inner lives, the more the resources available to us in leading those lives will be constrained by the collective norms of the common milieu’.[56] The protection of privacy is thus undergirded by a significant moral concern: intrusion on one’s privacy (particularly in the form of demanding the proclamation of one’s gender history) damages the individual’s ability to engage in relationships internally and externally, with themselves and with others. The normative importance of this protection is heightened by the empirical reality of transgender individuals. Reports of harassment, assault, and murder of transgender people are ubiquitous.[57] ‘Bathroom bills’ in several state legislators in countries like the United States[58], effectively prohibiting transgender people from using the bathroom that aligns with their gender identity, coupled with narrative tropes of ‘transgender people as duplicitous’[59], have created an oppressive cultural landscape in which the decision to be reticent about one’s gender history begins to garner compassion, or at the very least begins to compete for attention in the consideration of V’s sexual autonomy. Some may suggest that, in light of the above, voluntary disclosure of one’s transgender status may be helpful as it avoids an individual being in a situation where they are harmed by transphobic individuals during sexual relations. In other words, perhaps transgender people are less likely to be the subject of harm if their identity is communicated prior to sexual relations rather than discovered during or after sexual relations. However, the empirical reality shows that the violence towards transgender people is not by virtue of the means through which their identity is discovered, but simply from their status as transgender individuals. The deaths of transgender or gender non-conforming people recorded by the Human Rights Campaign in 2021 were not situated within contexts of sexual encounters; many were fatally shot or violently killed by other means—the perpetrators ranged anywhere from acquaintances, partners, or strangers. [60] The suggestion that a voluntary proclamation of transgender identity would alleviate concerns about violence is therefore misplaced. Violence may be, and has been, enacted towards transgender people irrespective of setting, be it public or private, and context, be it sexual or otherwise. Without seeking to undermine the feelings of V, her harm ‘should be understood as constructive disgust in so far as it is socially and culturally contingent’.[61] What was once desire-led sex is retrospectively coloured by V’s conditionings of hetero- and cis-normativity. When engaging in the balancing exercise, therefore, it is not automatically obvious that the normatively constructed harm experienced by V ought to establish a finding of deception by D, who possesses compelling countervailing interests in privacy and self-preservation. Once these interests and their legitimacy are brought forward, the lack of scrutiny by the courts in its protection of V’s sexual autonomy becomes alarmingly hubristic. As such, the section below seeks to revisit this right and to propose a workable framework that rectifies the deficiencies in the court’s approach to deceptive sexual relations. 3. The Search for a New Conceptual Framework 3.1. Revisiting sexual autonomy The McNally judgment’s failure to account for the limits of the ‘common sense’ approach and to highlight when deceptions as to gender would not vitiate consent gives de facto trump card status to V’s sexual autonomy. The need to protect this right is understandable, given that autonomy is underpinned by the individual’s right to self-governance and self-sovereignty. As Joseph Raz has explained, ‘[t]he ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives’.[62] However, the view advanced by academics such as Jonathan Herring[63] and currently mirrored by the McNally model, one in which V’s sexual autonomy is, and ought to be, allotted unquestioned primacy above D’s potential interests in privacy and self-preservation, is problematic. It characterises V’s sexual autonomy as an absolute right, at least when juxtaposed against the rights of a transgender D. As Laura-Anne Douglas argues, this hierarchy of rights creates an informational ‘right to know’ for the purposes of V’s sexual autonomy, thus compelling transgender defendants to define and disclose their gender history.[64] Of course, sufficient and relevant knowledge is a reasonable precursor to autonomy as it allows the individual to make an informed choice, which in turn facilitates the individual’s freedom of action. Beyond the purposes of seeking to invalidate the transgender person’s gender identity, however, it is difficult to see why this ‘right to know’ is more important in cases with transgender defendants. Again, the preoccupation with biological sex is unjustified when we accept that the gender presentation of the transgender defendant is their gender identity. For precision, this is not a suggestion that biological sex can never be material to one’s sexual experience. It is simply a clarification that a default preoccupation with biological sex intrudes upon the transgender person’s right to maintaining the privacy of their gender history. Further scrutiny is therefore required of the substance of the right to sexual autonomy; its content must be adequately explored such that the appropriate boundaries are drawn when determining the scope of criminality. More specifically, this right must be examined in tandem with its relationship to the defendant’s conduct. Currently, the court’s model relies upon a distinction between active deception and non-disclosure with only the former being sufficient to vitiate consent. As has been revealed throughout this article, this model is inadequate due to its inability to signpost, with sufficient clarity, instances of when the latter is elevated to be an active deception. Again, D in McNally never (conclusively) engaged in actively deceptive behaviour: on her account, she was never aware of V’s desire to engage in sexual relations specifically with a cis-gender male, and as such, her level of knowledge can be distinguished from the defendants in Assange and R(F). In those cases, D was made aware of the materiality of certain facts to V’s consent yet proceeded with the act while inducing a belief in V that the conditions central to her consent were heeded. Enveloping the facts of McNally into the same label would fail to capture the varying shades of culpability and would likely lead to inconsistency in approach. There is a spectrum of behaviour, across which the appropriate label cannot always be active deception. The sections below will find that there is something that lays between active deception and non-disclosure, namely passive deception, and this is to be kept separate from a unilateral mistake made by V. It is argued that, along with active deception, passive deception can vitiate consent, arising either when D knowingly exploits a unilateral mistake by V to procure sexual relations, or when D is under an obligation to disclose certain information but fails to do so. As to the former, D’s knowledge and opportunism elevates V’s unilateral mistake to a passive deception. As to the latter, several approaches are considered below to help determine when an obligation is imposed upon D to disclose information for the purposes of V’s sexual autonomy. The discussion below does not seek to offer a complete account of when deception-induced consent will be rendered invalid, and is instead an overview of various approaches that have been explored throughout the literature, with some comment on the best way to proceed in this controversial area. 3.1.1 Positive versus negative sexual autonomy As mentioned above, this article adopts the distinction identified by Matthew Gibson between ‘principal sexual offences’ (such as rape, sexual or indecent assault etc) and ‘deceptive sexual offences’ (such as those in the cases of Assange, R(F), and McNally). Per Gibson’s argument, while deceptive relations are equally harmful to a victim’s right to sexual autonomy as the relations proscribed by the principal sexual offences, they represent a different wrong.[65] The distinct nature of the wrongs in these offences can be elucidated by reference to the type of sexual autonomy that is engaged by D’s conduct. In principal sexual offences, V is attempting to invoke, or defaulting to a state of, negative sexual autonomy.[66] V is unwilling, at the very least, to engage in such relations.[67] This is the case in instances that align with the paradigmatic understanding of rape, namely when there is coercion involved or incapacity on V’s part to consent. Understood in this way, negative sexual autonomy is closely linked with the question of whether to have sex or engage in sexual relations. As regards the level of knowledge that is required to exercise such autonomy, V does not need all the information about the specific features of the act that is to occur, simply that a sexual act is to occur at all. By contrast, in deceptive sexual relations, V is attempting to exercise both positive and negative sexual autonomy. V is willing to pursue those relations subject to a caveat (positive sexual autonomy) while wishing to avoid relations falling outside that caveat (negative sexual autonomy).[68] Positive autonomy involves the individual’s right to choose when, how, and with whom to have sexual relations. D’s deception harms V’s right to positive sexual autonomy by frustrating its progress.[69] Sexual autonomy in the positive sense leads to a more textured understanding of the ‘right to know’. Beyond knowing whether the act will be sexual, V will need to know more detail about some of the features of the act, D’s characteristics, or other circumstances surrounding the relations, in order to make a judgment about whether they fall within the ambit of their caveat. Although deceptive sexual relations may seem more harmful due to their engagement of both positive and negative sexual autonomy, violating negative sexual autonomy is much more serious than violating than violating its positive counterpart.[70] Negative sexual autonomy allows everyone to resist unwanted sexual encounters altogether whereas positive sexual autonomy, which is only valuable to those wishing to engage in sexual relations, is less conducive to requiring the full force of the criminal law (that is, through labels such as ‘rape’ or ‘sexual assault’).[71] The ‘‘harm’ to an individual from the non-fulfilment of any preferred sexual activity is…simply disappointment’.[72] Conceptualising and tracking sexual autonomy in this way assists in determining the moral and legal significance that ought to attach to D’s acts. The next section proposes that deceptive sexual relations should be further variegated into a tripartite taxonomy. 3.2. A taxonomy for categorising deceptive relations Deception in general may involve ‘actions, omissions, as well as words and strategic silences’,[73] the intention behind, and result of, which is to cause V to believe something false (X). D knows or believes that X is false, or at least not believe that X is true. Active deception involves a representation by D (either through words or actions) that induces a false belief in V, while passive deception requires that D fail to disclose a fact where D has an obligation to do so. A unilateral mistake still requires V to hold a false belief but, unlike deception, there can be no causative attribution of this belief to D; unilateral mistake per se does not attract culpability for D. For completeness, this article also takes the view that failing or refusing to correct a unilateral mistake made by V, one that D knows to exist, will also constitute a passive deception. This is not, however, the impetus of the current enquiry. The present task is to determine when D is under an obligation to disclose certain information such that a failure to do so will attract criminality. It is argued that when this obligation is triggered, coupled with D’s failure to discharge, V’s unilateral mistake is elevated to a passive deception. The question then becomes: in what circumstances is such an obligation generated? Space precludes an in-depth exploration of all perspectives on this matter, but a survey of the literature in this area has produced several possible approaches to this question: There are certain features of sexual relations that are always material and therefore always need to be disclosed. This equates to an argument that gender history is always relevant, and the transgender defendant is always under a reciprocal obligation to V’s ‘right to know’. The materiality of certain facts or features of sexual relations is subjectively determined by V, but D’s obligation to disclose is contingent on whether this materiality meets an objective test of reasonableness. The materiality of certain facts or features of sexual relations is subjectively determined by V, but D’s knowledge, or the reasonable expectation that D possesses knowledge, of this materiality generates the obligation to make V aware of any dissonance between those facts and the true state of affairs. These will be discussed in turn. 3.2.1. Implied conditional consent Amanda Clough is a proponent of the view that gender history is always relevant to the question of what V is entitled to know for the purposes of her sexual autonomy.[74] She argues that the correct analytical lens to be placed on a case like McNally is one that views it as a case of implied conditional consent, rather than as a case of deception as to biology. V consents to ‘what they think is a sexual encounter in line with their sexual orientation, and this is implicit’.[75] Their partner is then required to ‘meet the condition of being a biological gender to fit with the victim’s sexual orientation’.[76] If D does not disclose that this condition is not met, V cannot be deemed to have truly consented. Gender, therefore, and its compatibility with one’s sexual orientation, is a paramount consideration in, and indeed always material to, one’s consent to a sexual encounter. With respect, there are several deficiencies in this argument. First, as explored in Section 2, gender and sexual orientation are not always fixed. They are made and remade reflexively, adjusting to the postures of the individual’s negotiation with the world and with their identity. Again, as the World Health Organization notes, ‘[a]s a social construct, gender varies from society to society and can change over time’.[77] The inherent complexity involved in pinpointing one’s gender and sexual identity, let alone in conveying it with sufficient cogence such that others may also comprehend it, risks injecting another slippery concept into what is already a contentious area of the criminal law. Using sexual orientation as the implicit basis upon which consent is premised places an enormous burden on individuals to correctly anticipate the sexual orientation of their potential partner lest their biological gender be incompatible with it. The prudent transgender defendant may of course enquire about this openly, but this comes at the price of exposing themselves to a potential transphobe, and more generally, is not conducive to the spontaneity that often accompanies sexual intimacy. Second, this reasoning serves to reinforce that cis-normativity that is latent in the McNally judgment. It effectively forces transgender individuals to disclose what is likely private and highly sensitive information, on the ill-informed assumption that a heterosexual and cis-gender individual would never knowingly engage in sexual relations with them. This assumption is evident throughout Clough’s analysis, particularly in her assertion that ‘McNally knew her victim has made a presumption about biological sex that was essential to her agreement in sexual intercourse’ (emphasis added).[78] Again, there is insufficient evidence to ground such an assertion; on D’s account, she had no such knowledge about this materiality to V’s consent. To claim that she knew is to assume that transgender individuals should always know that theirs is a gender identity that cannot be accepted as it is presented, effectively relegating them as inferior versions of cis-gender individuals. Adopting such an approach would sharpen the law’s discriminatory potential and would ‘[fly] in the face of the empirical reality of successful unions between cisgender and transgender people, [rendering] transgender people and their bodies undesirable’.[79] 3.2.2. Reasonable materiality The difficulties involved in determining which deceptions should count for the purposes of vitiating consent have led some academics to propose a model in which the law, rather than the individual, prescribes the legitimacy of V’s ‘deal-breakers’. On this view, V’s consent is vitiated only if what is material to their consent would also be material to the reasonable person. This standard of reasonableness is justified by the idea that sexual autonomy is not an absolute right; its magnitude ‘may be graded, some violations [being] greater than other ones’.[80] Further, the harm to which the criminal law must respond should not be defined by the victim’s idiosyncratic perceptions of harm, but rather the set of moral and legal principles that are formed by ‘the values assigned by society to specific interests and the magnitude of a setback to those interests’.[81] Vera Bergelson’s approach to reasonable materiality attempts to temper the primacy of V’s sexual autonomy by focusing on D’s culpability. She explains that any intentional violation of V’s rights, with intention being the highest level of culpability, will warrant criminal punishment.[82] Moving the down the spectrum, when D is at fault but does not act intentionally, the amount of the inflicted harm should determine whether D should be held liable.[83] This harm is determined by reference to the types of interests that V possesses. When applied to deceptive sexual relations, she finds that there is no general duty to tell the truth, which in turn means that any obligation to do so would be contingent on the types of interests that are engaged if V is lied to. The greater is the probability that the risk of harm would materialise, and the more important is the jeopardised interest, the stronger is the legal claim not to be lied to about it.[84] This would mean that negligently failing to inform a sexual partner about one’s HIV status would attract criminal liability, while negligently failing to provide information about one’s age would not.[85] The materiality of the former is objectively reasonable by reference to the harm done to V’s welfare interests (that is, in physical health), whereas the latter is only likely to infringe upon one of V’s specific sexual preferences. She argues that ‘since there is no general legal duty to tell the truth, then…one’s grievance relating to the sexual partner’s lie may only be derivative’: V has a right to be free from physical harm, but there is no positive right that V may invoke against a lie about one’s age.[86] Although this model offers more nuance than the implied conditional consent model described above, particularly in its ability to tie together the interplay of actor’s culpability and the corresponding harm in cases of deceptive sexual relations, it nevertheless poses its own evidentiary and conceptual difficulties. Beyond having to show that their belief in the existence of a ‘deal-breaker’ was causally attributable to D, V would also have to show that being induced into such a belief results in a harm that is objectively reasonable or serious. This not only imposes an added evidentiary hurdle upon V, but, in Bergelson’s model, is underpinned by an incorrect understanding of how the right to (sexual) autonomy is conceptually understood. In her account, misrepresentations that do not hurt V physically, and instead cause emotional distress or financial and career disappointment, are beyond the proper reach of sex crimes law.[87] Again, this is because lie-induced harms that are not derived from V’s existing rights (such as a right not to be harmed physically) cannot fall within the scope of the criminal law. This assumes that the reasonableness of harm must be determined by reference to physical consequences that flow from deception (for example, the consequence of pregnancy in cases of condom-related deception). Yet this overlooks precisely the reason that the rhetoric of deception is used in the first place. The moral significance of the term lies not in its ability to capture the physical harm of deception, but in its ability to mirror the wrong involved in distorting the choices open to an otherwise autonomous individual and subjecting them to the distress of having their choices taken away. Bergelson’s model in turn conceives of V’s sexual autonomy in deceptive sexual relations as derivative of a right to be protected against the physical consequences of sex, as opposed to a right, deserving of protection on its own merit, to be the author of one’s choices. To adhere to such an account, one in which the calculus of harm done to V by a deception is externally pre-determined by legal principles, is to deflate positive sexual autonomy of its very essence—that is, the ability and freedom to seek out sexual encounters that fall within the ambit of one’s desires, while avoiding those that fall beyond its bounds. 3.2.3. Subjective materiality Although this article rejects Bergelson’s reasonable materiality model, it nevertheless shares her desire to return to the fundamentals of the law on sexual offences and to recalibrate the interplay between the victim’s harm and the defendant’s culpability. As discussed above, one of the errors in the McNally judgment was its failure to disaggregate questions about V’s consent and D’s mens rea. The finding of deception, which (for the reasons stated above) was unsubstantiated, was premised on V’s perception of harm, which in turn pre-determined D’s lack of reasonable belief (that is, D’s culpability). What is proposed here seeks to segregate these questions in order to better track the corresponding levels of harm and culpability in deceptive sexual relations, such that the infringement upon V’s sexual autonomy can be properly weighed against the need for the intervention of the criminal law. Sovereignty-based accounts of consent have explained autonomy as a person’s authority to make demands on others and to claim a space of autonomous choice.[88] If D steps on V’s foot without voluntary agreement from V, D causes harm to V by failing to recognise V’s authority to demand that others do not do so.[89] Consent is therefore the mechanism through which one expresses their demands on others and elects their choices; it is D’s destruction of that mechanism, whether through coercion, deception or otherwise, that leads to V’s harm. To externally determine the validity of what is material to V’s consent, often guided by the vagaries of moral intuition, therefore undermines V’s inherent authority to make demands about the circumstances or conditions of their sexual encounters. Given this autonomy-based rationale, it is submitted that the validity of V’s ‘deal-breakers’, or the materiality of certain aspects to V’s consent, ought to remain subjectively determined by V. Gibson is correct in identifying that ‘there is something capricious about dictating the presence (or otherwise) of V’s consent according to fluctuating intuitions about the legitimacy of deal-breakers’.[90] Consent must be harms-oriented give due weight to V’s personal positive sexual autonomy, enabling V to subjectively define the harm arising from the infringement thereof, and to determine the boundaries of their sexual desire. V is therefore the author of their sexual autonomy. Of course, this subjective approach is allied to allowing ‘deal-breakers’ that may be intuitively outlandish or downright prejudicial—V may choose to have sexual relations only with individuals who voted for Elizabeth Warren in the Democratic primary, or only with individuals of a particular race. Such an approach is reminiscent of Herring’s somewhat all-or-nothing stance on sexual autonomy, when he writes that ‘ultimately it is for V to decide with whom to have sex…She is under no duty to supply sexual service to others on a non-discriminatory basis’.[91] While this aligns with the substance of V’s sovereignty-based sexual autonomy, the position adopted here departs from Herring’s view in his assertion that any privacy rights of a transgender person must be subservient to their partner’s right of sexual integrity.[92] Again, as mentioned above, this hubristic approach is difficult to defend: feelings of humiliation, shame, or disgust may serve to retrospectively and constructively aggravate the harm felt by V, but may not necessarily reflect the level of culpability that ought to be attributed to the transgender D, given their compelling reasons for non-disclosure. Although the content of V’s sexual autonomy must remain personally defined by V, the exercise of such autonomy should not be absolute in the eyes of the criminal law. As has been repeated throughout this article, the hamartia of the McNally judgment was its privilege of V’s autonomy in the question of D’s mens rea. In finding that D acted deceptively simply by virtue of her authentic gender identity, the court was complacent in its determination of reasonable belief. This inappropriately extends the exercise of V’s autonomy and superimposes it onto questions about D’s culpability. The calculus of harm and culpability was prematurely altered in V’s favour. In order to restore balance, the criminal law must ensure that subjective questions about V’s consent and sexual autonomy (harm) are adequately and robustly tempered against objective questions about D’s reasonable belief in consent, or the reasonable expectation of knowledge about the materiality to V’s consent (culpability). It is submitted that the determination of deception and reasonable belief should include the concept of ‘justifiability’ in order to illustrate more holistically the picture of D’s culpability. What is proposed here does not seek to be a complete or comprehensive account of how the law ought to be developed, but hopes to highlight where the deficiencies of the current approach may be corrected and to provide a starting point for further discussions. First, any reasonable expectation of D’s knowledge about the materiality of V’s consent for the purposes of passive deception must be divorced from cis-normative assumptions about sexual intimacy. The law cannot condition the threshold of reasonableness by pointing to the prejudice latent in society and leveraging it to expect that transgender people anticipate their sexual partner’s involvement within such prejudice. Any expectation to make reasonable enquiries must be made by reference to the facts of the case rather than arbitrary and inevitably ever-changing assumptions about the larger socio-cultural landscape within which they operate. The law would not impose, for the purposes of meeting a reasonableness threshold, an expectation upon a Jewish man to make enquiries about whether his sexual partner is anti-Semitic, let alone label him deceptive simply by virtue of his failure to readily volunteer this information.[93] On the facts, that D was authentically living as a transgender boy means that the only way in which an expectation to disclaim her gender history would arise is through a concession that there is something undesirable in her identity that ought to be prefaced. The court’s current standard of reasonableness is therefore cis-normative, which places an enormous and, in this author’s opinion, unjust burden upon transgender defendants. As Sharpe cogently argues, ‘[p]lacing the obligation on transgender people produces a situation where the one who has no problem with his/her identity/body…is required to disclose personal information to the one who has a problem’.[94] The law must therefore remove the ‘supererogatory kind of ethical performance’ that it seems to demand of transgender people in order to reinvigorate the importance and essence of the mens rea element in these offences.[95] Second, the calculus of culpability when determining passive deception should involve an enquiry into the ‘justifiability’ of the defendant’s actions. The broad view adopted here is that defended by Scanlon, namely that when we claim that an action is wrong, such an action would be one that we could not justify to others on grounds that we could expect them to accept.[96] Although seemingly abstract, what this concept seeks to introduce is not a rigid multi-factor assessment into the morality of a defendant, but instead simply invites the court to consider any reasons that may underlie a defendant’s actions (or, in the case of non-disclosure, inaction). For example, when taking cases of undisclosed HIV status, the ‘wrongness’ or culpability that we may attribute to the defendant’s inaction flows from the fact that there are likely many reasons to reject any justification of such conduct. The defendant may invoke stigma as a justification, but this is unlikely to outweigh the victim’s harm, both to sexual autonomy and to physical health. In the case of the transgender defendant, as mentioned above, the justifications for non-disclosure ranging from privacy to self-preservation, with both interests being normatively and empirically rooted, are likely to garner acceptability such that the broader image of the defendant’s culpability can be illustrated, in turn pointing away from a finding of deception. Such a calculation would not rely on mere moral intuition, but instead on the court’s institutional capacity for fact-finding, as well as its well-established ability to weigh relative harms. When these factors are taken together, it is clear that D in McNally, on her account of the facts, was not under an obligation to inform V of her gender history. The authenticity with which she lived as a transgender boy points away from a reasonable expectation of knowledge about V’s cis-oriented consent. This, coupled with the justifiability of non-disclosure, means that any inaction would not lead to a finding of passive deception. Put simply, V made a unilateral mistake that should not have been redressed by the criminal law. 4. Conclusion McNally was decided incorrectly. This article has argued that the current approach taken in the law of consent in sexual offences failed the defendant through its characterisation of her transgender identity as deceptive. Beyond the lack of sensitivity shown towards the ontological implications of such an identity, the distinction between active deception and non-disclosure has proven insufficient to categorise the types of behaviour to which criminality should attach. This article has proposed that a better form of categorisation would involve, first, separating principal sexual offences from deceptive sexual relations in order to reflect the type of sexual autonomy that is engaged, with the former warranting stronger sanction given its gravity, and second, variegating deceptive sexual relations into a tripartite taxonomy, namely, active deception, passive deception, and unilateral mistake. Only active and passive deceptions are sufficient to attract liability. The approach advocated for in this article holds that the content of sexual autonomy must remain subjectively defined by V, but its exercise must be appropriately circumscribed. This can be done by ensuring that the law refrains from expecting transgender defendants to anticipate transphobia for the purposes of the reasonableness threshold, and by making a meaningful enquiry into the justifiability of D’s actions. An over-emphasis on V’s harm, likely to be normatively constructed by cis-normativity, has led to oversight on the proper organisation of the legal enquiry that ought to be undertaken in criminal offences. This article has made clear that the question of V’s consent (which ought to be harm-oriented, to reflect the subjective nature of sexual autonomy) must be kept distinct from the question about D’s mens rea (which ought to be wrong-oriented, to adequately capture D’s level of culpability). Doing so will bring much-needed clarity to the law on sexual offences, and will ensure that the disturbing reality in which McNally is labelled a sexual predator is never repeated. Juana de Leon Juana de Leon is a Law graduate from University College London. She recently completed the Bachelor of Civil Law at the University of Oxford. This article was completed during her undergraduate degree under the supervision of Dr Mark Dsouza. [1] [2013] EWCA Crim 1051. [2] ibid [26]. [3] ibid [10]. [4] Matthew Gibson, ‘Deceptive Sexual Relations: A Theory of Criminal Liability’ (2020) 40(1) Oxford Journal of Legal Studies 82. [5] ibid 86. [6] ibid. [7] ibid. [8] Assange v Swedish Prosecution Authority [2011] EWHC 2849. [9] R v Jheeta [2007] EWCA Crim 1699 [24]. [10] R v B [2007] 1 WLR 1567. [11] ibid [17]. [12] Assange (n 7). [13] [2014] QB 581. [14] ibid [25]. [15] ibid [26]. [16] ibid [26]. [17] ibid [4]. [18] ibid [5]. [19] Alex Sharpe, ‘Criminalising sexual intimacy: transgender defendants and the legal construction of non-consent’ (2014) 3 Crim LR 207, 217 (henceforth, ‘Criminalising sexual intimacy’). [20] ibid. [21] Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings (The Harvester Press Limited 1980) 131. [22] Alex Sharpe, ‘The Ethicality of the Demand for (Trans)parency in Sexual Relations’ (2017) 43(2) Australian Feminist Law Journal 161, 167 (henceforth, ‘Ethicality’). [23] Judith Butler, Gender Trouble: feminism and the subversion of identity (first published 1990, Routledge 2006). [24] ibid 9. [25] Sally Hines, TransForming gender: Transgender practices of identity, intimacy and care (Bristol University Press, Policy Press 2007) 17. [26] Butler (n 23) 34. [27] Anna Kari, ‘Gender and Health’ (World Health Organization, n.d.) accessed 7 February 2022. [28] ibid. [29] Joseph J Fischel, Screw Consent: a better politics of sexual justice (University of California Press 2019) 99. [30] ibid. [31] ibid. [32] ibid 100. [33] Sharpe, ‘Criminalising sexual intimacy’ (n 19) 217. [34] Zowie Davy, Recognising Transsexuals: Personal, Political and Medicolegal Embodiment (Ashgate 2011). [35] Cristan Williams, ‘Gender Performance: The TransAdvocate Interviews Judith Butler’ (TransAdvocate, 1 May 2014) accessed 19 December 2020. [36] Howard Becker, Outsiders: Studies in the Sociology of Deviance (first published 1963, Free Press 1977). [37] John Thompson, ‘Symbolic Violence: Language and Power in the Writings of Pierre Bordieu’ in Studies in the Theory of Ideology (Polity Press 1984) 42. [38] ibid. [39] Allison Moore, ‘Shame on You: The Role of Shame, Disgust and Humiliation in Media Representations of ‘Gender-Fraud’ Cases’ (2016) 21(2) Sociological Research Online 118, [7.5]. [40] ibid. [41] Alex Sharpe, ‘Queering Judgment: The Case of Gender Identity Fraud’ (2017) 81(5) J Crim L 415, 434. [42] RA Duff, ‘Responsibility Citizenship and Criminal Law’ in Stuart P Green and RA Duff (eds) Philosophical Foundations of Criminal Law (OUP 2011) 127. [43] Victoria Brooks and Jack Clayton Thompson, ‘Dude Looks Like a Lady: Gender Deception, Consent and Ethics’ (2019) 83(4) J Crim L 258, 268. [44] Alex Sharpe, ‘Sexual Intimacy, Gender Variance, and Criminal Law’ (2015) 33(4) Nordic Journal of Human Rights 380, 390. [45] William Ian Miller, Humiliation And Other Essays on Honor, Social Discomfort and Violence (Cornell University Press 1993) 165–167. [46] Gavin A Doig, ‘Deception as to Gender Vitiates Consent’ (2013) 77 J Crim L 464, 467. [47] McNally (n 1) [26]. [48] Fischel (n 29) 115. [49] McNally (n 1) [26]. [50] ibid. [51] Brooks and Thompson (n 43) 266. [52] Stephen Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press 1998) 99. [53] Sharpe, ‘Ethicality’ (n 22). [54] Charles Fried, ‘Privacy’ in Ferdinand Shoeman (ed) Philosophical Dimensions of Privacy (CUP 1984). [55] ibid 205. [56] Thomas Nagel, ‘Concealment and Exposure’ (1998) 27(1) Philosophy and Public Affairs 3, 20. [57] Cynthia Lee and Peter Kwan, ‘The Trans Panic Defense: Masculinity, Heteronormativity and the Murder of Transgender Women’ (2014) 66 Hastings Law Journal 77, 94. [58] Diana Ali, ‘The Rise and Fall of the Bathroom Bill: State Legislation Affecting Trans & Gender Non-Binary People’ (NASPA, 2 April 2019) accessed 8 March 2021. [59] Fischel (n 29) 100. [60] HRC Foundation, ‘Fatal Violence Against the Transgender and Gender Non-Conforming Community in 2021’ (Human Rights Campaign, n.d.) accessed 7 February 2022. [61] Moore (n 39) [9.7]. [62] Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 369. [63] Jonathan Herring, ‘Mistaken Sex’ (2005) Crim LR 511. [64] Laura-Anne Douglas, ‘The criminalisation of transgender-cisgender sexual relations: ‘gender fraud’ or compulsory cisnormativity? Assessing the meaning of consent in sexual offences for transgender defendants’ (2017) 3 Jur Rev 139, 154. [65] Gibson (n 5) 100. [66] ibid 86. [67] ibid. [68] ibid 97. [69] ibid 86. [70] ibid 103. [71] ibid. [72] ibid. [73] Larry Alexander and Emily Sherwin, ‘Deception in Morality and Law’ (2003) 22(5) Law and Philosophy 393, 400. [74] Amanda Clough, ‘Conditional Consent and Purposeful Deception’ (2018) 82(2) J Crim L 178. [75] ibid 189. [76] ibid. [77] Kari (n 27). [78] ibid 190. [79] Sharpe, ‘Ethicality’ (n 22) 175. [80] Vera Bergelson, ‘Sex, Lies and Law: Rethinking Rape-By-Fraud’ in Nicola Wake, Chris Ashford and Alan Reed (eds), Legal Perspectives on State Power: Consent and Control (Cambridge Scholars Publishing 2016) 161. [81] ibid 162. [82] ibid. [83] ibid 161. [84] ibid 164. [85] ibid 162. [86] ibid 164. [87] ibid. [88] Stephen Darwall, ‘The Value of Autonomy and Autonomy of the Will’ (2006) 116(2) Ethics 263, 267. [89] Tom Walker, ‘Consent and Autonomy’ in Andreas Müller and Peter Shaber (eds) The Routledge Handbook of the Ethics of Consent (Abingdon: Routledge 2018) 137. [90] Gibson (n 5) 98. [91] Jonathan Herring, ‘Rape and the Definition of Consent’ (2014) 26 National Law School of India Review 62, 71. [92] Herring, ‘Mistaken Sex’ (n 63). [93] Sharpe, ‘Criminalising sexual intimacy’ (n 19) 222. [94] Sharpe, ‘Ethicality’ (n 22) 170. [95] ibid 178. [96] Thomas M Scanlon, What We Owe to Each Other (Harvard University Press 1998) 4.

In Northern Ireland, one of the most significant human rights instruments resulting from the Good Friday/Belfast Agreement in 1998 is Section 75 (s. 75) of the Northern Ireland Act 1998. It legally binds public authorities to not only have due regard to the promotion of equality of opportunity amongst nine protected categories of persons (those of differing religious belief, political opinion, racial group, age, marital status, sexual orientation, gender, those with dependents and those without, those with a disability and those without) but also to have regard to the desirability of promoting good relations amongst those of differing political opinion, religious belief or racial group. As part of s. 75, public authorities are required to assess through policy screenings and equality impact assessments (EQIAs) whether their policies would have any adverse impact on the protected categories of persons.[1] Whilst s. 75 has been praised for its innovation,[2] the breadth and magnitude of what it seeks to accomplish provides a challenge in terms of its enforceability. Traditionally, s. 75 could only be enforced by its accompanying monitoring body, the Equality Commission for Northern Ireland (ECNI). However, a recent decision in the case of Re Toner,[3] where a complaint was brought by a blind woman against Lisburn City Council on a number of grounds for failing to consider the needs of blind persons in the development of a Public Realm Scheme (PRS),[4] has changed this. It very significantly opened the door for complaints of ‘substantive’ breaches of s. 75 to be brought under judicial review,[5] an idea put forward in Re Neill’s Application[6] that had previously yet to gain traction. Although not clearly defined in the dicta of Re Toner, a ‘substantive’ breach in this particular case would seem to constitute a failure on the part of public authorities greater than ‘some simple technical omission or procedural failing’ as well as a failure to take action when concerns arose earlier in the implementation of the PRS.[7] Additionally, the court specifies that the breach was longstanding in nature and must be weighed against the benefits there might have been if the proper s. 75 considerations had been made.[8] Allowing complaints of substantive breaches invites questions about the extent to which the court should get involved in determining the legality of a public authority’s decision under Wednesbury unreasonableness.[9] In Re Toner, the issue centred not on the legality of the final decision made by the public authority but rather on whether the correct process had been taken to reach that decision, as the court maintained a pre-existing principle derived from R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills[10] that it is for the public authority to make the final decision.[11] Nevertheless, by giving s. 75 complaints access to judicial review; Re Toner opens the door to the possible scrutiny of decisions under Wednesbury. I foreshadow there will be increased scrutiny of public authorities’ decisions under Wednesbury, given the complexities that arise due to Northern Ireland’s history of conflict. This is because the current principles underpinning ‘due regard’, which I will shortly discuss, largely derive from England and Wales and do not account for the difficulties in ascertaining what adverse impact looks like for the groups of ‘political opinion’ and ‘religious belief’, which require unique considerations in a context such as Northern Ireland. Additionally, it is difficult for public authorities with limited resources to extract the evidence necessary to measure the adverse impact within these groups. This can be attributed in part to a lack of funding for public authorities to carry out meaningful consultations with those from the s. 75 groups on how a policy may impact them.[12] With little evidence to draw on, public authorities are arguably more susceptible to complaints of a ‘substantive breach’ and, therefore, subject to the possibility of both an ECNI investigation and judicial review. Decisions made on ‘political opinion’ and ‘religious belief’ are therefore more likely to be questioned because public authorities will have had to make them on the basis of their own judgement and personal experience due to lack of evidence. Because such decisions would be highly politicised, the courts may need to intervene through Wednesbury to ensure impartiality. To demonstrate how the new possibility of judicial review may influence public authorities, I consider how the Arts Council of Northern Ireland (ACNI), Northern Ireland’s leading arts and cultural development agency, may be affected. Although quite a niche public authority, it serves as an interesting example of a public authority that may be more susceptible to committing a ‘substantial’ breach of s. 75, given the complex nature of obtaining evidence and measuring impact in relation to the arts.[13] Before turning to a more detailed discussion of how the issues may play out in practice, I will firstly discuss Re Toner’s facts, issues, and reasoning. Facts Joanna Toner (the applicant) was a blind woman who utilised both a guide dog and a cane to walk.[14] In 2008, Lisburn City Council (hereafter ‘Council’) commissioned a report on how Lisburn’s central area could be regenerated through a Public Realm Scheme (PRS).[15] The height of kerbs in the new PRS had been lowered from the standard 100-130mm to a mere 30mm, which caused Joanna to lose confidence in getting around, subsequently leading her to make a complaint.[16] Despite lobbying attempts during the planning stages to change the kerb height from 30mm to at least 60mm, the Economic Development Committee (EDC) of the Council decided not to change the heights, a decision supported by the broader Council in 2014.[17] Leave to apply for judicial review was granted in 2015; however, at this stage, it was too late to reverse the kerb heights of 30mm, which had already been implemented.[18] Another key figure, in this case, is a landscape architect, Mr Watkiss, who was appointed to come up with concept design work for the purpose of economic appraisal in the report.[19] He was later appointed as the lead consultant for the scheme.[20] Crucial to this case is research made available to Mr Watkiss from the University College London (UCL) conducted in 2009[21] that suggested kerb heights of 40mm or less should be avoided and that 60mm kerbs ‘induced the greatest confidence’.[22] However, Mr Watkiss deemed that there was no clear conclusion on kerbs less than 60mm being dangerous and that there were methodological issues with the study.[23] This research was not made aware to the Lisburn City Council until 2014,[24] despite Mr Watkiss having received it in 2010.[25] The remaining facts of this case are mostly concerned with whether or not the issue of a 30mm kerb height had been mentioned during presentations, whether it had been disputed during the consultation, and if this was taken into account prior to the approval of the planning scheme by the Lisburn City Council. For the sake of brevity, the chronological timeline of consultation events will not be recounted here. I will instead highlight the most significant conclusions the court has made with respect to the findings of fact. The court was satisfied that the issue of 30mm kerb heights was flagged by Mr Watkiss in consultation presentations and that there was no opposition expressed during the consultation process. Lisburn City Council, therefore, went forward with planning permission in January of 2013, assuming that there was no opposition to the kerb height. No issues were raised until after work had already begun,[26] with controversy emerging after a seminar held in October of 2013, the main issue being the UCL research. The EDC, the body that ultimately decides on any change in the scheme,[27] became involved in 2014 and, after hearing varying viewpoints, maintained its position with no discussion. After another raising of the issue later in 2014, the EDC declined to go through another consultation process and decided not to take action on the issue any further. This decision was ratified by Lisburn City Council as well without debate.[28] Issues This case flags up two broad sets of issues. The first set of issues under consideration are procedural, related to s. 75 and its consultation process. These are reflected under [101] and concern issues of procedural fairness,[29] whether the consultation process was flawed,[30] the fettering of discretion both by the Committee and the Council, [31] and failure to conduct an Equality Impact Assessment (EQIA)[32] that considered the potential impact of the scheme on disabled persons (especially those that are blind),[33] as well as failure to give reasons for the decisions made.[34] It also considers more substantive issues of human rights violations, such as whether the decisions were in breach of ECHR Articles 8, 11 and 14,[35] as well as whether the actions of the respondent (Lisburn City Council) acted in opposition to the Disability Discrimination Act 1995.[36] However, although peripheral to s. 75, these issues will not be discussed in detail here, given my primary concern with s. 75. The issue most relevant to s. 75 is whether there was a breach of s. 75 in failing to conduct an EQIA and will therefore be my primary focus. This raises questions about the meaning and application of ‘due regard’ in a judicial setting. The second substantive issue concerns what the broader role of judicial review should be in relation to the already existing statutory compliance mechanism within ECNI. One of the grounds considered is whether the Council’s actions met the Wednesbury standard.[37]This portion of the case clarifies the difference between what constitutes a ‘procedural’ versus ‘substantive’ breach of s. 75 duties. Rules and application 1. The issue of s75 compliance In respect to whether Lisburn City Council was in compliance with its s. 75 duty, the court draws on some of the guidance provided by the Equality Commission on the meaning of ‘due regard’.[38] This guidance includes the point that due regard is not a final outcome but rather the process of giving the ‘appropriate level of consideration’ to statutory goals.[39] What constitutes appropriate consideration is variable, depending on the case and the public authority involved.[40] A high level of relevance must be proportionate to a high level of consideration and vice versa.[41] Although the court does not clarify what is meant by ‘high level of relevance’, the Equality Commission guidance states that ‘having ‘due regard’ or ‘regard’ entails taking a proportionate approach in determining the relevance of equality of opportunity and/or good relations to a particular function or policy’.[42] The Council, in its approved Equality Scheme, set out a process for screening policies for any potential impact on equality of opportunity. This subsequently leads to a decision on whether an equality impact assessment will be conducted, depending on whether the screening of the policy has determined that there will be either major, minor or no impact.[43] The court took stock of principles highlighted by the Court of Appeal of England and Wales in Bracking and Others v Secretary of State for Work and Pensions.[44] One such principle is that a decision-maker or Minister has a responsibility to ensure that they record the steps taken to fulfil their statutory requirements as established in R (BAPIO Action Ltd) v Secretary of State for the Home Department[45] and that the duty falls upon the Minister making the decision, what matters being ‘what he or she took into account and what he or she knew’,[46] regardless of what their officials know or offered in the way of advice, a principle derived from R (National Association of Health Stores) v Department of Health.[47] Ministers must also assess the adverse impact before (emphasis added) adopting a policy and not after a decision has been made, following Kaur & Shah v LB Ealing.[48] Bracking also draws on the dicta of R (Brown) v Secretary of State for Work and Pensions, which reviewed and contributed to a number of points concerning ‘due regard’ specifically.[49] In sum, the public authority must be aware of the duty to have ‘due regard’, the duty must be fulfilled before and when a policy is under consideration, as well as ‘exercised in substance, with rigour and with an open mind’.[50] There is, however, no duty for a public authority to expressly refer to the regard paid; however, if they do, the ‘scope for argument as to whether the duty has been performed will be reduced’, a principle derived from Baker.[51] Finally, the duty is non-delegable and continuous, and it is considered good practice for the decision-maker to keep records of their consideration.[52] Further, as established in R (Meany) v Harlow DC,[53] regard cannot be general – it must be specific and conscious of the statutory criteria.[54] Officials reporting to the Minister should be rigorous both in their enquiry of them and also in reporting to them, as per R (Domb) v Hammersmith & Fulham LBC.[55] Finally, yet another few principles under consideration, in this case, are derived from Elias LJ’s judgement in R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills.[56] Firstly, the decision-maker is responsible for weighing the factors that influence a decision, a principle derived from Baker.[57] Expanding on this, Elias LJ argues that if the decision-maker has taken the statutory criteria into account, the court cannot interfere in the decision-maker’s balancing of factors.[58] Secondly, there is a principle establishing that public authorities be informed before making any decision[59] – and that they must acquire the relevant information if they do not have it, ‘frequently meaning that some further consultation with appropriate groups is required.[60] The court, in this case, acknowledges the importance of separating the fulfilment of the s. 75 duty from the management of the PRS, as the duty, falls on Lisburn City Council and not Mr Watkiss.[61] There is little evidence in this case that the Council performed its s. 75 duties,[62] as no documentation of the Council’s fulfilment of the s. 75 duties were presented to the court.[63] Although Mr Watkiss performed a consultation exercise, the court is of the view that the Council should have conducted consultations themselves.[64] The Council argued that a need for an EQIA was screened out due to the lack of material signifying the impact of the PRS on disabled persons during the consultation exercise – however, this was found unacceptable by the court, as the court does not understand how the PRS was screened out, stating that: ‘If the right question had been asked viz in relation to the impact of the proposals on the position of the blind and partially sighted, it is difficult to see how this would not have led to a consideration by the Council of the UCL research…’.[65] Although the UCL research had not been seen by the Council until 2014, ‘unmistakable concern’ had been expressed regarding the kerb heights on the basis of the UCL research prior to 2014.[66] The Council did react to the kerb height opposition at this stage, but the court found that ‘[the Council] does not seem to have been alive to its continuing duty under section 75’. There was no evidence to suggest that, when the issue was raised, the Council associated the issue with s. 75 – rather, the Council associated the issue with the expenses involved in adjusting kerb heights as well as the project timeline.[67] While the matter did go to the agenda of the EDC and Council, only a reminder of the consultation with specific disability groups was given by the Equality Officer, which does not equate to the Council’s performance of equality duties.[68] The court was not satisfied that the s. 75 duty had been given rigorous enough attention, requiring a ‘conscious approach’ at this stage, inclusive of consideration of the UCL research and an EQIA.[69] The court, therefore, found a clear breach of the s. 75 duty, given the lack of enquiry throughout the entirety of the process. Although the decision ultimately reached by the Council is still theirs to make, the court ruled that the appropriate steps in the process of making this decision were not taken. In other words, if they had taken the appropriate steps to enquire and still reached the same decision, they would not have been in breach of their s. 75 duty.[70] The court, in their analysis, does not apply any of the previously discussed principles directly as they come to reach this decision – but it would seem that their ratio decidendi falls directly in line with that of the principles taken stock of in Bracking.[71] For example, they are not refuting the principle established in Hurley regarding the decision maker’s discretion in balancing factors[72] - rather, they acknowledge that the Council’s lack of consideration and enquiry is a breach of s. 75 duties, corresponding to the principles established in Brown, particularly the requirement that the duty ‘must be exercised in substance, with rigour and with an open mind’.[73] What the court in Re Toner seems to be arguing is that there was a lack of rigour and substance in exercising the duty, although they do not explicitly draw this connection themselves. 2. The issue of s. 75’s enforceability The respondent (Lisburn City Council) also sought to argue that s. 75 cannot be remedied by judicial review – however, the court argues that similar cases have been brought in England and Wales, such as Bracking.[74] The respondent argued that in Northern Ireland, recourse is sought through the Equality Commission for Northern Ireland (ECNI) under s. 75(4) and Schedule 9 of the 1998 Act.[75] Re Neill’s Application[76] sheds some light on these issues. The court ultimately decided that parliament intended consequences arising from a failure to comply with s. 75 are political,[77] with judicial review not being the default. However, they are not suggesting that the jurisdiction of the court can never be relied on in relation to s. 75 breaches and must be taken on a case-by-case basis.[78] A distinction was also made between procedural and substantive breaches of s. 75 – it was suggested that substantive breaches might be dealt with in a judicial review setting, with procedural breaches dealt with through the Equality Commission complaints procedure.[79] This was left open for development, as ‘the Court of Appeal studiously did not identify the circumstances in which judicial review may be available’.[80] In the instant case, the court believes the correct approach is one that relies on the specific facts of a case.[81] They have found that the Council’s failure to consider blind persons constitutes a substantive breach rather than merely a procedural one, as the failure constitutes something ‘far greater’ than a ‘technical omission or procedural failing’. They state: In this case, the failure appears to the court to have been longstanding in nature, as at no stage in the PRS’s development, was the issue of the public sector equality duty subjected to a s. 75 compliant process. Most particularly, when the matter came before the EDC and the Council (twice) in 2014 the opportunity was not taken to rectify the situation, notwithstanding that the matter had by this stage become one of high controversy.[82] Thus, judicial review as an enforcement mechanism was found to be acceptable in this particular case.[83] Their decision turns in part on the Council’s lack of awareness of the UCL research at an earlier date, where consideration of the research may have led to a different outcome.[84] The court also accepted the applicant’s view that the remedy sought through the Equality Commission would be ‘unlikely to achieve a potential change of view [of the Council]’, whereas if the Council had performed their s. 75 duty properly in the first instance or even at the time the judicial review was sought, they may change their view.[85] Analysis This case was hugely significant in allowing s. 75 complaints to be brought by way of judicial review, albeit apprehensively. The court was careful to say that judicial review was appropriate in this instance ‘due to the exceptional circumstances of this particular case’,[86] emphasising the ‘case by case’ principle upheld in Neill.[87] It is important to bear in mind that s. 75 and ECNI were established with a view to avoid litigation, [88] making Re Toner significant in that it marked a shift towards breaches of s. 75 being more litigious. McCrudden foresaw this shift, arguing that judicial review ‘should be seen as part of the armoury of weapons available to both the Equality Commission and non-governmental organisations in seeking compliance with s75 in the future’.[89] The shift brings a number of complex questions to light when considered in the context of public authorities, where the nature of work might not be as easily quantifiable, making it harder to recognise when there has been a failure to comply with s. 75. Take, for example, the Arts Council of Northern Ireland (ACNI), Northern Ireland’s leading arts and cultural development agency. In Re Toner, the applicant sought to remedy an adverse impact that was specific and measurable and for which there was supporting research - the height of kerbs. However, ACNI’s work in disseminating funds and supporting arts and cultural policy initiatives in accordance with necessarily expert and niche judgement perhaps makes pinpointing adverse impact on any one group more difficult, despite the amount of funding given to a particular policy initiative being a quantifiable action. This difficulty is compounded when trying to conceive of how a complaint of adverse impact on the basis of political opinion or religious belief might be raised. The criteria that such a claim would rely on would almost certainly be less quantifiable – and if it is at all quantifiable, experience to date would suggest that the level of non-response around issues concerning political and religious belief would render measurement of adverse impact extremely difficult.[90] Additionally, within the arts, the adverse impact of a policy decision would appear to centre on an opportunity lost or never had to begin with because of a specific funding call or a specific funding decision. Take, for instance, a politically controversial decision made by Paul Givan, previous Department for Communities (DfC) minister, to provide £98,000 more than originally planned for band instruments (most of which went towards Protestant marching bands) in July 2016.[91] ACNI was provided with the funding to administer the scheme. Colum Eastwood, SDLP leader and chair of the Assembly’s communities committee, drew attention to the fact that in December 2016, the DfC also decided it could not continue funding the Líofa Gaeltacht Bursary Scheme (a scheme to help those who want to learn the Irish language financially) because of ‘efficiency savings’.[92] In this instance, it would be difficult for those opposing the decision to fund band instruments to make a case as to why this decision led to an adverse impact – or alternatively, it would be difficult for them to argue how the decision not to fund the Líofa Gaeltacht Bursary Scheme causes an adverse impact. Whilst there are quantifiable funding figures, it is far more difficult to argue why such funding decisions bear such significant weight, as there are cultural and political undertones to consider. The effect is that arguments of the adverse impact made in relation to ‘political opinion’ or ‘religious belief’ pose a unique set of challenges that the court at present is not equipped to handle. Decisions such as this, which stoke community tensions, present unique challenges for public authorities (such as ACNI) under the Minister’s direction. When a government minister makes a decision that is perceived to give preferential treatment to one political/religious group over another group, there may be potential to argue that there was no due regard to equality of opportunity, s. 75’s primary legislative purpose. The meaning of ‘equality of opportunity’ within s. 75 encapsulates a more substantive approach to equality given that it is a positive obligation and can be understood as the fair distribution of society’s benefits, including ‘access to facilities, education, training and services’.[93]Did the Minister, in this instance, have ‘due regard’ to equality of opportunity? Even if he had taken all of the relevant information into consideration when reaching his decision, his own political preferences, and any minister’s preferences for that matter – can dictate the final decision. Additionally, questions are raised as to what role ACNI played in administering the scheme and whether they can also be held to account in the same way for simply taking direction. ACNI thus needs to be careful when making certain funding decisions so as not to prioritise one programme with a certain political undertone over another. The court in Re Toner was careful to uphold the principle cited in Hurley[94] (originating from Baker[95]) that it is for the public authority to weigh the factors influencing a decision and not the court.[96] Quoting Lord Justice Elias in Hurley, In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors [emphasis added]. If Ms Mountfield’s submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.[97] This raises interesting issues around Wednesbury unreasonableness that were largely avoided throughout Re Toner. I anticipate that with the opening up of judicial review for substantive s. 75 breaches, a need to question the decisions of public authorities more deeply under Wednesbury may arise in situations where substantive breaches of ‘due regard’ have been found, and a decision clearly advantages one side of the community more than the other. This would seem to apply to the s. 75 groupings of ‘political opinion’ and ‘religious belief’ the most. However, there is debate as to how much the court should step into the role of being what Laws LJ has termed ‘arbiters of political controversy’.[98] Decisions that would adversely impact the s. 75 groups of political opinion and religious belief (such as Paul Givan’s, for instance) may warrant the court to step more into the territory of being a political arbiter, given the highly politicised nature of some decisions. The court’s reasoning in finding that the Council did not have ‘due regard’ also played a part in their finding of a ‘substantive’ breach, as the court argues that the failure was ‘longstanding’ due to the lack of a s. 75 compliant process throughout the Public Realm Scheme’s (PRS) development.[99] In other words, if it were found that the Council had proper ‘due regard’, it would be unlikely that the court should find a ‘substantive breach’. The court did not take care to apply the specific principles it relied on to the facts of the case directly, as there were no paragraph pinpoints to the relevant case law. Although the list of authorities found in Bracking was referred to, the court did not expand on these in a direct sense. It would seem that the lack of assessment on the part of the Council in the form of an equality impact assessment (EQIA) was a major deciding factor for the court. They argue that despite ‘unmistakable concern being expressed based on the UCL research’ and the Council finally catching sight of the research in 2014, the Council still opted to neglect the issue.[100] In moving forward, public authorities should take care to follow the Brown principles discussed earlier underpinning Bracking, which were also applied in the instant case. The initial consultation undertaken on behalf of Mr Watkiss was not enough to satisfy the obligation to have ‘due regard’.[101] Therefore, public authorities such as ACNI should take care to ensure a number of things in moving forward. One such lesson includes that public authorities should be attuned to what the officials acting on their behalf are doing in relation to a proposed policy at all times, as the s. 75 duty is non-delegable,[102] with the sole responsibility of the duty resting with the public authority. Lisburn City Council could have enquired at any point more deeply into the information drawn on by Mr Watkiss– had they done so, they may have discovered the UCL research sooner, leading to a more rigorous enquiry at an earlier stage before the PRS work began. Policy screenings and EQIAs should also be conducted at the earliest stage possible, before and during[103] a policy’s implementation, which is also indicative of ‘due regard’. The consistent application of these principles from the earliest stages of a policy’s development is therefore necessary in order for a public authority to avoid a ‘substantive’ breach of s. 75. The case also established that it is not enough for public authorities to think vaguely about one s. 75 groups, such as those who are disabled – ‘a high level of consideration of the position of the blind and partially sighted ought to have flowed from the relevancy of the issue to this group’.[104] Therefore, public authorities must take into consideration how their policies will impact specific sub-groups within the broader nine s. 75 categories. This brings us back to the difficulty of measuring potential adverse impact within certain s. 75 groups, such as political opinion and religious belief, where, within ACNI’s data collection, there is a high level of non-response in quantitative survey results (as evidenced in their Audit of Inequalities). This is something the case law from England and Wales has not developed, as Northern Ireland’s public sector equality duty differs from England’s significantly in this respect. Imagine a hypothetical scenario where a complaint was brought against ACNI for not having had ‘due regard’ to the s. 75 categories of political opinion or religious belief. How can a public authority be at fault for not having ‘due regard’ when, despite attempts to collect this data, they are left with little to nothing to work with evidentially? Unless the decision-maker draws on their own personal experience or can devise a strategy for collecting meaningful qualitative evidence that better informs their judgement, evidence will continue to be ill-informed. These are barriers that I imagine affect other public authorities as well and would face significant challenges if tested in the courts. In the instance of a complaint of this nature being brought forward, the court may find that the only way to handle such complaints is to scrutinise the public authority’s final decision under Wednesbury unreasonableness. Conclusion The decision in Re Toner to allow for ‘substantive’ breaches to be brought forward under judicial review significantly expands the opportunity to seek accountability for breaches of s. 75. Previously, complaints could only be brought through ECNI, as legislated. The decision raises a number of interesting issues around what constitutes a ‘substantive’ versus ‘procedural’ breach and was careful to maintain that cases should be dealt with on a case-by-case basis. The case also relied extensively on case law principles in relation to the ‘due regard’ standard and maintained that so long as the correct process is applied in making a decision, the decision is for the public authority to make. However, with the door now open for judicial review complaints, it can be anticipated that courts will step more into the territory of being a ‘political arbiter’ by subjecting decisions of public authorities to the Wednesbury test. This is because I anticipate that the current principles relied on from case law in England and Wales when determining whether an authority has had ‘due regard’ will not be sufficient in the unique political context of Northern Ireland, particularly in cases involved with the s. 75 categories of ‘political opinion’ and ‘religious belief’, as it is much harder to measure adverse impact in these categories. Therefore, if a complaint is brought against a public authority under these two groups, it will be harder to pinpoint how a decisionmaker rationalised their decision – therefore, scrutiny of their actual decision may be warranted. With more avenues for complaints to be brought against public authorities, extra care should be taken to abide by all the principles established in relation to ‘due regard’, – such as conducting an EQIA early and being attuned to the activity of any public officials acting on their behalf (as their duty is non-delegable). Additionally, knowing that scrutiny under Wednesbury is not necessarily ruled out, solutions as to how to measure adverse impact within the groups of ‘political opinion’ and ‘religious belief’ need to be sought in order to mitigate any potentially controversial decisions. It will be interesting to see how any claim brought forward on the grounds of political opinion or religious belief will play out and whether the decision of the public authority will be subjected to the Wednesbury test. Dr Lillian Pollack Dr Lillian Pollack, a recent graduate of Queen’s University Belfast, successfully defended her doctoral thesis concerning the intersection of equality legislation and cultural policy in Northern Ireland this past spring. She recently won the best paper prize at the Leicester Law School Postgraduate Research Conference, and will commence a training contract with a commercial law firm in 2023. [1] ECNI, ‘Section 75 of the Northern Ireland Act 1998: A Guide for Public Authorities’ (ECNI, April 2010) 29, 41, 51. [2] Colin Harvey, ‘Democracy in Transition: Mainstreaming Human Rights and Equality in Northern Ireland’ (1999) 4 Journal of Civil Liberties 307. [3] [2017] NIQB 49. [4] ibid [1]. [5] See [161]-[164]. [6] [2006] NICA 5. [7] Re Toner (n 3) [163]. [8] ibid [163]-[164]. [9] Briefly described, Wednesbury is a standard of judicial review to hold public authorities to account on the decisions they have reached, the test being ‘that a decision was so unreasonable that no reasonable decision-maker could have come to it’. It is also known as ‘irrationality’. See Justin Leslie and Gavin McLeod, ‘Judicial review: Wednesbury unreasonableness’ (Westlaw, last reviewed in 2015). The test is derived from the case, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). [10] [2012] EWHC 201 (Admin) (Divisional Court) [77]. The principle states that it is for the decision-maker to weigh all of the relevant factors in making a decision. [11]Although the court in Re Toner does not explicitly state that they are upholding this principle, it can be inferred through their statement at [164], ‘…it is far from clear that if the section 75 duty had been rigorously performed even at that date that councillors would have reached the same conclusions as those which, in fact, they did reach’. Their lack of challenging the issue indicates their maintenance of the principle. [12] Tahnya Barnett Donaghy, ‘Mainstreaming: Northern Ireland’s participative-democratic approach’ (2004) 32 The Policy Press 49, 57. [13] See Eleonora Belfiore, ‘‘Impact’, ‘value’ and ‘bad economics’: Making sense of the problem of value in the arts and humanities’ (2015) 14 Arts & Humanities in Higher Education 95; Victoria D. Alexander, ‘Heteronomy in the arts field: state funding and British arts organisations’ (2018) 69 The British Journal of Sociology 23; Clive Gray, ‘Part 1: Intellectual and political landscape – Instrumental policies: causes, consequences, museums and galleries’ (2008) 17 Cultural Trends 209. [14] ReToner (n 3) [1]. [15] ibid [3]. [16] ibid [2]. [17] ibid [6]. [18] ibid [7]. [19] ibid [14]. [20] ibid [26]. [21] ibid [80]. [22] ibid [85]. [23] ibid [89]-[90]. [24] ibid [92]. [25] ibid [89]. [26] ibid [79]. [27] ibid [54]. [28] ibid [79]. [29] ibid [101b]. [30] ibid [101a]. [31] ibid [101d] [101f]. [32] Please note that in the official case, the court refers to Equality Impact Assessments as EIAs, however ECNI refers to them as EQIAs – therefore, I will also be referring to them as EQIAs. [33] ibid [101e]. [34] ibid [101j]. [35] ibid [101g]. [36] ibid [101h]. [37] ibid [101i]. [38] They do not specify which guidance, but it is assumed they are referring to the ECNI (n 1). [39] ReToner [135]. [40] ibid. [41] ibid. [42] ECNI (n 1) 27. [43] Re Toner (n 3) [137]. [44] [2013] EWCA Civ 1345 [25]. [45] [2007] EWHC 199 (QB). See [69] per Stanley Burnton J. [46] Bracking (n 44) [26(3)]. [47] [2005] EWCA Civ 154 at [26] – [27] per Sedley LJ. [48] [2008] EWHC 2062 (Admin). [23] – [24] as per Moses LJ. [49] [2008] EWHC 3158 (Admin). [50] ibid [92]. [51] This principle is quoted from Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2008] EWCA Civ 141, [38] but cited in Brown (n 49) at [93]. [52] These duties are discussed in Bracking (n 44) [25 (6)] but originated from Aikens LJ in Brown (n 49), paragraphs [90]-[96]. [53] [2009] EWHC 559 (Admin). [54] ibid [84] per Davis J. [55] [2009] EWCA Civ 941 [79] per Sedley LJ. [56] (n 10). [57] (n 51) [34] per Dyson LJ. [58] Hurley & Moore (n 10) [78] per Elias LJ. [59] Also informed by Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014. [60] Hurley & Moore (n 10) [89] per Elias LJ. [61] Re Toner (n 3) [141]. [62] ibid [142]. [63] ibid [143]. [64] ibid [144]. [65] ibid [145]. [66] ibid [146]. [67] ibid [147]. [68] ibid [148]. [69] ibid [149]. [70] ibid [151]. [71] Bracking (n 44) [25]. [72] Hurley & Moore (n 10) [78] per Elias LJ. [73] Brown (n 49) [92] per Aikens LJ. [74] Re Toner (n 3) [153]-[154]. [75] ibid[155]. [76] (n 6). [77] ibid [28]. [78] ibid [30]. [79] ibid. [80] Re Toner (n 3) [158]. [81] ibid[163]. [82] ibid. [83] ibid [166]. [84] ibid [164]. [85] ibid [165]. [86] ibid [166]. [87] See (n 77). [88] Christopher McCrudden, ‘Mainstreaming Equality in Northern Ireland 1998-2004: A Review of Issues Concerning the Operation of the Equality Duty in Section 75 of the Northern Ireland Act 1998’ in Eithne McLaughlin and Neil Faris, ‘Section 75 Review – The Section 75 Equality Duty – An Operational Review’ (Volume 2, 2004) Annex B, 10. [89] ibid 74. [90] For instance, in ACNI’s 2017 Audit of Inequalities (which is not available to the public), in relation to religion, there was a high level of non-returned data in both the Annual Funding Survey and the Support for Individual Artists Programme. The same was true of political opinion in the latter (p. 4-6). [91] Robbie Meredith, ‘Eastwood criticises decision to fund band scheme but cut Irish language bursary’ (BBC News, 4 January 2017) < https://www.bbc.co.uk/news/uk-northern-ireland-38513338> accessed 20 June 2022. [92] ibid. [93] Katherine E Zappone, ‘Charting the Equality Agenda: A Coherent Framework for Equality Strategies in Ireland North and South’ (Commissioned by the Equality Authority and the Equality Commission for Northern Ireland, no publication date) 36-7 accessed 23 June 2022. [94] Hurley & Moore (n 10) [77]. [95] Baker (n 51) [34]. [96] Re Toner (n 3) [151]. [97] Hurley & Moore (n 10) [78]. [98] R (on the application of MA & Ors) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) [74] (Laws LJ). [99] ReToner (n 3) [163]. [100] ibid [146] [150]. [101] ibid [152]. [102] Brown (n 49) [94] (Aikens LJ). [103] ibid [91] (Aikens LJ). [104] Re Toner (n 3) [163].

Modern-day Singapore prides itself as a ‘global city’ with a commendable level of economic stability as a result of its sustained cosmopolitanism. Having rapidly developed over a time when the differences between nations are increasingly valued, the city-state’s cosmopolitan disposition has led many to question the existence of a nation-specific identity. The government’s—more specifically, the People’s Action Party (PAP) that has led a supermajority government since Singapore’s independence—forceful hand in crafting the nation’s ‘global city’ identity has led many to perceive said identity to be artificial if not ill-defined. In this article, I delineate the steps undertaken by the PAP (concerning race and language) that lead to the existing global impression of Singapore before examining the approaches taken by state institutions to musically portray the cosmopolis. Race in the ‘Global City’ Singapore’s experience of numerous periods of economic and cultural reinvention precedes the proclamation of its statehood on August 9, 1965. These reinventions were mandated by its obsession ‘to become and remain a successful city-state and global city’.[1] Singapore today continues to be described as a ‘Global City’ or ‘International City’. In fact, the terms were ‘used regularly throughout the development plans of the State of Singapore, and in numerous planning documents produced for it’.[2] Singapore’s association with the ‘global’ and ‘international’ leaves many to ponder about what is to be considered its ‘local’ or ‘national’. Due to its central location in Southeast Asia, Singapore has served perennially as a hub for trade and commerce; it thrived as a cosmopolitan seaport that facilitated trade between Europe and East Asia as a British colony and is today a common midpoint for travel between Europe or Africa to Asia-Pacific as evidenced by its international passenger traffic. The settlement in Singapore of international travellers over time has engendered a multicultural and multiracial population on the island. This multiculturalism—and the determination to maintain it—has proven to be advantageous in ensuring Singapore’s economic success and plays a significant role in the genesis of Singapore’s cultural identity. It is important to note that Singapore’s ‘state creation preceded the process of nation building’ as a result of its unanticipated separation from Malaysia.[3] Contrasting with the common narrative of state independence succeeding an intensifying nationalist sentiment amongst its people, Singapore’s independence was not founded on such convictions. There was therefore an absence of a well-defined national identity at the onset of statehood. As a small island that lacks a resource-rich hinterland, Singapore’s state-creation process fixated on discovering the ways in which the state could generate and assure itself of an economic capital. The concern for its economy was characteristic of the inhabitants of the island, whom Sir Stamford Raffles—a British statesman often regarded as the founder of modern Singapore—described as having embodied a ‘“spirit of enterprise and freedom” which distinguished it from the rest of Asia’.[4] Singapore’s state-creation process was prioritised over nation-building, thus delaying the creation of a cultural capital. That is not to say, however, that the developments of the two capitals are distinct from one another. In recent years, the conception of Singapore’s cultural products has reflected a consideration for economic gains (as we shall see below). Apart from its people’s enterprising spirit, more pertinent to this study of identity is Singaporeans’ seemingly intrinsic belief in multiracialism. Raffles argued that the people of Singapore were ‘characterised by [their] diversity, but also the absence of prejudice’.[5] This statement highlights the past people’s cosmopolitan outlook of Singapore. Prior to its independence, Singapore was part of the Straits Settlements, themselves a part of the wider British Malaya. In a bid to maintain their rule over British Malaya, the British instigated a form of colonial nationalism in the region that raised the status of Malay culture, recognising the significance of the Malay population and providing them with a slight sense of autonomy.[6] Schools that instructed in the Malay language were favoured and received more support and funding from the British government than schools that instructed in other languages (such as English or Mandarin Chinese). This privileging of the Malay language and culture—according the Malay population with a sense of superiority over those of other races—displeased the Chinese-majority population in Singapore.[7] The resultant racial tension persisted within the region even after Malaysia gained its independence from the British in 1963, eventually triggering the race riots of 1964 in Singapore. Singapore’s intolerance of the existing cultural and racial hierarchy and Malaysia’s fear that a ‘merger with Singapore would lead to an overall Chinese majority that would threaten the privileges of indigenous Malays’ led to Singapore’s secession from Malaysia in 1965.[8] Negotiating Singapore’s multicultural and multiracial population proved to be a matter of great importance upon the nascency of the State as then Prime Minister Lee Kuan Yew ‘asked rhetorically, “How were we to create a nation out of a polyglot collection of migrants from China, India, Indonesia, and several other parts of Asia?”’.[9] To establish social connections between such disparate communities that was crucial to citizenship (and the forming of a coherent nation) was the primary concern of Lee and his government (led by the PAP). They dealt first with the fundamental issue of the nation’s lingua franca (or ‘working language’) by seeking a linguistic middle ground between its various racial communities. Its previous disputes with Malaysia had dismissed the Malay language as a contender, and while the Chinese now formed the racial majority in Singapore, their native language was not favoured as Lee had also aimed to ‘disassociate Singapore’s largely ethnic Chinese population from communist China’.[10] The decision was made to refer to the British, whose vernacular was already familiar to the population in Singapore as a result of its colonisation. The English language served as a racially neutral communicative tool upon the departure of the British as it was not inherently associated to a racial majority in Singapore. A proficient level of English is continually stressed in Singapore, especially since it holds the status today as the world’s lingua franca. In a speech given at the launch of a book series titled Grammar Matters (2000) produced to aid English-learning, then Minister for Education Teo Chee Hean highlighted the accessibility that English is able to provide to its citizens: Singapore has four official languages: Malay, Tamil, Chinese and English, reflecting our ethnic diversity and our history. Our mother tongues give us access to our diverse cultures, values and roots, while English is our working language. Using English as the common language for administration and education has helped Singaporeans from all walks of life understand one another and live together harmoniously. Equally importantly, proficiency in the English language has also provided Singaporeans with a medium to communicate with others around the world—for business and trade, in academia, in international fora, for travel and leisure, over the Internet. It has given Singaporeans a key advantage—global literacy—so that we can directly communicate and convey our views to others in many settings around the world.[11] Teo noted that English was not only able to facilitate communication within Singapore’s borders but also beyond on an international level. Alluding to Singapore’s economy-centred disposition, Teo also argued that mastery of English would enable Singaporeans to achieve the ‘global literacy’ essential to the nation’s economic development. With the understanding that one’s language is a strong signifier of one’s racial identity, the explication of language-learning in Singapore above highlights the government’s aspirations for racial equality. English remains today as the state’s de facto official language and language of business and administration. By proclaiming Malay, Tamil, and Chinese as the other official languages (despite the disparity in numbers of the racial communities who speak them), the Singapore government grants ‘equal status to the cultures and ethnic identities of the various “races”’, and prompts a racially unbiased society in Singapore.[12] This belief is instilled in citizens through the daily recitation of the National Pledge—that includes the lines, ‘pledge ourselves as one united people, regardless of race, language, or religion’—during their years in school.[13] Singapore’s penchant for racial equality stems from the issues encountered as a state of Malaysia (as highlighted above), and its societal structure as a British colony which senior diplomat Tommy Koh highlights to be ‘both racist and hierarchical’.[14] To inhibit the development of a racial hierarchy within a society, Koh explains that one needs to ‘treat [their] minorities as equals’, as demonstrated in Singapore.[15] Singapore’s racial demographics are managed by the state through the Chinese-Malay-Indian-Other (CMIO) model. This four-race model obligates Singaporeans to identify themselves as part of one category in relation to the others. Through administering this model, the government homogenises each category and erects racial boundaries ‘in an attempt to erase hybridity’.[16] To be categorised into one of the four racial groups is a significant part of forming one’s own Singaporean identity, as Eve Hoon explains: The coexistence of race and national identity was represented in the hyphenated identity model of ‘nation–race’, where Singaporeans were asked to identify as Singaporean–Chinese, or Singaporean–Indian, Singaporean–Malay or Singaporean–Other. Race was therefore foundational to the national identity of a Singaporean, almost serving as a prerequisite.[17] The ascriptive nature of the CMIO model is exploited in many areas of management in Singapore, ranging from housing where there was ‘a quota for each racial group in every block of flats’;[18] to education where students were taught Mandarin, Malay, or Tamil as their ‘mother tongue’ if they were Chinese, Malay, or Indian respectively while a choice is given to those categorised as ‘Other’; and to Singapore’s racialised public holidays, shown in the table below.[19] (Note that two days are associated with each race to ensure an equal distribution.)[20] As a result of these patent racial demarcations in the lives of Singaporeans, a notion of ethnic absolutism is passively developed within Singaporeans who become acutely perceptive of the nuances of the different racial factions.[21] In opposition to encouraging cultural integration often anticipated within the population of cosmopolises like Singapore, the government has instead made more distinct the racial boundaries between its people.[22] To further strengthen Singapore’s fundamental pillar of multiracialism, a curriculum known as ‘National Education’ is embedded within its education system. Students are taught of the racial conflicts in Singapore’s history—which include the race-related Maria Hertogh riots of 1950 and the racial riots of 1964—in order to comprehend the fragility of inter-racial relationships and to deter racial tensions and its lamentable consequences. Additionally, public discourse concerning racial differences is sanctioned as taboo by the government, thus further mitigating the recurrence of the disabling events in Singapore’s history.[23] Clash of Identities: Singaporeans vs Singapore Government In comparison with its achievements in other areas of Singaporean society, the government’s work as ‘architect of nationalism and national identity’ has been more contentious.[24] The national identity defined by the government centres around the state’s obsession with economic success, rather than the more problematic promotion of an ethnic identity.[25] Policies are constantly changing to encourage economic growth, which results in a continual construction and reconstruction of the Singaporean identity.[26] When Singapore experienced a labour shortage in the 1990s, the government acted upon this deficiency by attempting through several means to make Singapore a favourable place for foreigners to settle and work. First, Singapore’s foreign policy was amended, simplifying the immigration process.[27] Second, the government flagged the CMIO model in order to dismiss potential race-related concerns arising from integration into Singaporean society. Singaporeans are reminded of the all-encompassing ‘O’ of the CMIO model ‘to encourage Singaporeans to welcome immigrants of all ethnic backgrounds into Singapore’. Likewise, foreigners are led to view Singapore as an accommodating and cosmopolitan country with the ability to ‘incorporate all immigrants into [its] existing [CMIO] model’.[28] Some have termed the ‘O’ a ‘catch-all residual category’ due to the convenience it has provided to immigration.[29] The cosmopolitanism offered by the CMIO model and its connection to economic progress therefore constitutes the government’s notion of ‘Singaporean’. These efforts proved to be successful as the ‘O’ category saw an increase of approximately 100,000 individuals between 1990 and 2013.[30] The influx of immigrants led Singaporeans to question the relationship between their national identity and the race-managing CMIO model. Does the cosmopolitanism propagated by the government characterise what the people view as ‘Singaporean’? To the government, the ‘Singaporean’ is a cosmopolite who is inducted to the CMIO model and seeks economic progress. Singaporeans, on the other hand, regard the Singaporean identity as one that accounts for more than a racial identity represented by the CMIO model. The rejection of the convenient incorporation of new citizens into the CMIO model has shown that, to Singaporeans, the Singaporean identity is not simply defined by one’s race (or even language or religion) but by one’s experience of growing up and living in a society shaped by the CMIO model which has attuned individuals to the practices and tendencies of those in a racial category that is different to their own. To Singaporeans, falling into one category of the CMIO model—as immigrants do—may allow one to attain Singapore citizenship but is insufficient to allow one to claim oneself as ‘Singaporean’. Thus, a dispute between the government and the people’s notion of ‘Singaporean’ is established. While the government regards all citizens as Singaporeans, Singaporeans perceive themselves more exclusively as members of an imagined community—to use Benedict Anderson’s term—bound together by the experience of the Singaporean way of life.[31] The discord between the government and the people’s notion of ‘Singaporean’ is highlighted in the arts, which were employed to attract capable foreigners—Westerners, in particular—to join Singapore’s workforce. State-funded arts companies (or those with aspirations of state-funding) tend not to be overtly culture-specific in order to cater to what is anticipated to be a cosmopolitan audience. Melissa Wong cites the Singapore Repertory Theatre (SRT) as an example; the SRT’s tagline in 2010 was ‘World Theatre with an Asian Spirit’, which demonstrated that a distinct idea of ‘Singaporean-ness’ in the arts needs to be substituted for one that is less specific in order to create a cosmopolitan image of Singapore. This falls in line with the government’s view of ‘Singaporean’ and of Singapore as a cosmopolis. While the tagline is no longer in use by the company today, its inclination for global connections is hinted at still by the company’s mission, which states that the SRT seeks to collaborate ‘with the best talent in the world’.[32] A Linguistic Analogy Prime Minister Lee Hsien Loong has noted that ‘Singapore is not a melting pot but a society where each race is encouraged to preserve its unique culture and traditions, and appreciate and respect those of others’.[33] The Singapore government’s attempts to keep the categories of the CMIO model distinct and prevent a coalescence of said categories is illustrated by their management of languages in the nation. A bilingualism policy put in place in 1959 mandates that all Singaporeans have knowledge of two languages—English and a ‘mother tongue’.[34] Aside from being a key marker of one’s racial identity, the ability to read, write, and converse in one’s mother tongue arguably strengthens one’s allegiance with their CMIO category. In 1979, the Speak Mandarin Campaign was initiated by the government to organise the linguistically heterogeneous Chinese population in Singapore. The goal of the campaign was to encourage ‘all Singaporean Chinese to embrace the use of Mandarin and enjoy an appreciation of the Chinese language and culture’ and to discourage the use of Chinese dialects.[35] The government recognised that an absolute Mandarin-speaking Chinese population would eradicate the need for the teaching of dialects in addition to the bilingual education system. In a speech marking a re-launch of the campaign in 1986, then Deputy Prime Minister Goh Chok Tong dissuaded the use of dialects by branding them as a ‘learning burden’.[36] By encouraging the use of Standard Mandarin as the sole Chinese language amongst Singapore’s ethnic Chinese population, the government has further defined the Singaporean Chinese identity. While there have not been extensive campaigns for the Malay or Tamil languages, the Malay Language Council and Tamil Language Council (established in 1981 and 2000 respectively) organise events to encourage the continual use of Standard Malay and Standard Tamil amongst the respective racial communities.[37] In spite of the government’s attempts to keep the racial identities distinct and separate, a coalescence of these identity markers has proven to be inevitable—especially considering the close quarters in which people of different races inhabit. This coalescence manifests itself through an English-based creole language known as ‘Singlish’ which is widely spoken and understood by Singaporeans today. Singlish, while English-based, is characterised by words originating in Hokkien, Cantonese, Teochew, Malay, Tamil, and other common languages used in Singapore. Also part of its features are words created from a blend of languages; for example, ‘agaration’—which means an estimation—is an anglicised form of the Malay ‘agak-agak’ which refers to the act of estimating. Teo attributes the emergence of Singlish to the first-generation English speakers who are more in touch with their mother tongues: ‘The syntax, grammar, expressions, pronunciation and rhythms of their own mother tongues come more naturally to them. These creep into the English they use’.[38] As Singlish is unintelligible to non-Singaporeans (and is thus nation-specific) and is believed to reduce Singaporeans’ competence in Standard English, it was viewed by the government as detrimental to Singapore’s cosmopolitan image and economic wellbeing.[39] In light of these potentially threatening outcomes, the government initiated the Speak Good English Movement in 2000 to discourage the use of Singlish and stress the importance of English to inhabitants of a ‘global city’. As part of the campaign, the Ministry of Education revised the English Language syllabus used in schools with a stronger focus on grammar and presentation skills; more debates and essay competitions were organised; and new English-learning aids were published.[40] Similar to the treatment of Chinese dialects, Singlish was viewed askance by former Prime Minister Lee Kuan Yew who termed it a ‘handicap’ that ‘[the government] must not wish on Singaporeans’.[41] Whilst some Singaporeans believe that Singlish is integral to the Singaporean identity—arguing that ‘it is a true reflection of Singapore’s multiculturalism’[42]—it is seen by the government as a peril to its cosmopolitan vision of Singapore. The government’s pushback on Singlish evidenced their resistance towards Singaporeans’ ideal of a culturally homogenous national identity. Music in Singapore Similar to many aspects of Singaporean life, art in Singapore is subjected to the authoritative though pragmatic governance of the People’s Action Party. The government frequently argued in the early years of independence that the economically focused people of Singapore lacked ‘social graces and refinement’, qualities that could be inculcated with art.[43] The civilising ability of the arts was also recently highlighted by Prime Minister Lee Hsien Loong, who cautioned against building a Singapore with ‘a first-world economy but a third-rate society, with a people who are well off but uncouth’.[44] The state’s intention to induct the arts into its nation-building process is evidenced in the early years of the state’s independence as then Minister of State for Culture Lee Khoon Choy proclaimed at the opening of an art exhibition at the National Theatre in 1966 that ‘The days of Art for Art’s sake are over. Artists should play an integral part in our effort to build a multi-racial, multi-lingual, and multi-religious society where every citizen has a place under the sun’.[45] More than a decade later, the relationship between the arts and the state is highlighted again in former Finance Minister Hon Sui Sen’s speech at the opening of the Third Singapore Arts Festival on December 10, 1980: While it may sound romantic for artists to starve and work in their garrets, the output of such artists without patronage must be abysmally low. A Michelangelo could not have given of his best without the beneficence of a Pope Sixtus with a Sistine Chapel to be decorated: Neither could other artists of the Renaissance have done their work without the patronage of princes whose vanity must be flattered or wealth displayed.[46] Hon emphasised the working relationship between artists and patrons in Renaissance Europe and likened the state and its government to the latter. It was expected that artists would consider the patron’s (i.e., the state’s) interests when creating art. The arts were to serve a civilising role in the building of a society that is desirable to the government. This role involved instilling a unique sense of identity and belonging in Singapore citizens, which was crucial to retaining the state’s human resources following the economic crisis in the 1980s (which led to the emigration of many). In music, ethnic community songs and National Day Parade theme songs (NDP songs) were created to aid the imposition of the government’s sociological ideologies. Ethnic Community Songs Along with their enterprising spirit, the settlers of pre-independence Singapore brought to the island the songs of their diverse cultures, which are categorised into the definitive ‘C’, ‘M’, and ‘I’ of the CMIO model. In an attempt to create a shared entity amongst its people post-independence, the government appropriated these songs by changing its lyrics to suit a Singaporean context. In the early 1980s, these songs were recorded by celebrities and promoted widely to the nation as ‘national folk songs’ through television and radio and were made even more accessible with musical scores and records sold at a low price.[47] A disregard for the act of appropriation is blatantly expressed by former Senior Minister of State Lee Khoon Choy: Every tune is international. Melody is international. There is nothing wrong in putting new words to suit it to local conditions. You can choose any tune in the world, from any nation, but if you put new words to it, then you can sing it as your own.[48] Aside from the abovementioned efforts to popularise these ‘national folk songs’, a ‘quiet campaign’ known as Operation Singalong was introduced to foster a habit of communal singing amongst the population, which the government saw ‘as an important way for Singaporeans to develop a sense of belonging to the nation and solidarity’.[49] These songs are incorporated into a mass singing segment in the National Day Parade which is broadcasted nationwide every year. Lee’s statement proved to be unconvincing as the campaign was received poorly, with the population lamenting the disingenuity of the songs in reflecting Singaporean culture. Operation Singalong was eventually ‘quietly shelved and forgotten’.[50] While the songs were not well-received, the campaign was successful in popularising communal singing, a practice to be exploited later with the NDP songs. In response to the inauthenticity of the pre-existing ethnic community songs, numerous songs of a similar style were composed and added to the repertoire by local composers since the 1980s. Together with NDP songs, ethnic community songs are taught in schools every year in the build-up to the celebration of National Day on August 9. National Day Parade and Theme Songs The poor reception of the early ethnic community songs prompted the government to develop an alternative medium with which the population could better identify. The government employed advertising agency McCann-Erickson to produce National Day Parade theme songs in the hope of inculcating a sense of belonging to a unified community striving towards achieving prosperity and progress for the nation. The first of such songs was ‘Stand Up for Singapore’ composed in 1984 by Hugh Harrison. In contrast with ethnic community songs, the style of ‘Stand Up for Singapore’ was more akin to that of modern pop songs and appealed particularly to the younger generation. The production of the song (and its accompanying music video that was broadcasted on state media) was of a higher quality, thus augmenting its attractiveness.[51] The song’s success was perpetuated with further commissions from Harrison in 1986 (‘Count on Me, Singapore’) and 1987 (‘We Are Singapore’). Aloysius Ho notes that cassette tape sales of NDP songs saw a significant increase in those two years, reaching 73,000 in 1986 and 105,000 in 1987.[52] The popularity of these early NDP songs developed the medium into ‘fertile ideological sites for the PAP government’s many fantasies’.[53] The purpose of the early NDP songs was to strengthen the people’s community consciousness by evoking a sense of pride and joy in past achievements. This is illustrated in the opening lines of ‘We are Singapore’, which goes: ‘There was a time when people said that Singapore won’t make it / But we did / There was a time when troubles seemed too much for us to take / But we did’;[54] and in ‘One People’: ‘We’ve built a nation with our hands / The toil of people from a dozen lands / Strangers when we first began now we’re Singaporean’.[55] In addition to encouraging a unified community in Singapore, the songs often implore Singaporeans to ensure the state’s continued success, as evinced in the lyrics for ‘Stand Up for Singapore’: ‘Believe in yourself, you’ve got something to share / So show us all you really care / Be prepared to give a little more’.[56] In the late 1990s, the NDP songs were reinvented; an alternative narrative that connoted place identity emerged. Contrary to the chest thumping quality of the earlier style, the reinvented songs adopted ‘a softer and more sentimental musical style’.[57] This change in musical style catered to the refined taste of the population in the new millennium as the newspapers described: ‘the recent repertoire…is ostensibly more melodic, sophisticated and attuned to popular culture than the previous decades’ “Count on Me, Singapore” and “We Are Singapore”’.[58] The modified goal of establishing communal identity to a personal place identity warranted the recording of these songs by solo local artists in place of choruses (as before). Similarly, these songs were widely broadcasted through state media in the build-up to National Day.[59] Apart from the explicit titles, the lyrics of the songs reveal the objective of fostering place identity as demonstrated in ‘Home’: ‘Whenever I am feeling low / I look around me and I know / There’s a place that will stay within me / Wherever I may choose to go’;[60] and ‘My Island Home’: ‘My island home / Wherever I may be / I never will forget her / Nor will she forget me’.[61] The sentimental style of the music (with its moderate tempo and lush orchestration), through which these texts are delivered, effectively instigates nostalgia and tugs at the heartstrings of singers and listeners. The invented tradition of singing a repertoire of NDP songs en masse at National Day Parades—a result of Operation Singalong—is still observed today. The song composed for a specific year is featured ‘as the centrepiece of the parade’s grand finale, effectuating the climax of a “secular and ritual landscape spectacle”’.[62] In addition to their function within the nation, NDP songs were created to improve the cultural image of Singapore as perceived by other countries and contribute to a hitherto scant musical heritage. The embarrassing state of Singapore’s culture was alluded to by former Senior Minister of State Lee Khoon Choy who expressed that ‘very often, Singapore delegates abroad are hard put to present a song’, and that at such events when it comes Singapore’s turn—there’s no song. It is a disgrace to Singapore’s cultural prestige and image. They say Singaporeans cannot sing—Singaporeans only know how to make money. They don’t care for culture, they’re only materialistic. And that’s bad![63] Despite a reinforced legitimacy of NDP songs as a symbol of national identity (with local composers and artists assuming the responsibility of composition and production), the production of numerous parodies in recent years reveal the apprehension and criticism with which Singaporeans today consume NDP songs.[64] Case Study One: Singapore Armed Forces Band Military Tattoo The Singapore Armed Forces (SAF) Band is the musical arm of the Singapore military that provides musical support for state and military events. Besides its engagements with internal events, the SAF Band participates in international events organised overseas. Past participants include the Sweden International Tattoo 2013, the Royal Edinburgh Military Tattoo 2014, and the 2017 Virginia International Tattoo. These tattoo performances are aural and visual spectacles incorporating music, dance, and rifle drills by the SAF Band, SAF Music and Drama Company, and the Silent Precision Drill Squad (SPDS) respectively. As a representative of Singapore on the international stage, the SAF Band is responsible for presenting the Singaporean identity through its performances. To do so, the SAF Band consistently adopts a performance format which has been applied to their performances at the events listed above. Due to this consistency, this study will take the performance at the Royal Edinburgh Military Tattoo 2014 as an exemplar of the SAF’s approach to performing ‘Singapore’. The performance can be divided into six parts with a short pause marking the end of each part. While there is no pause between the first and second parts, a transition is made with a distinct change in artistic material.[65] The parts are distinguished with musical and visual markers which are clearly inspired by Singapore’s racial CMIO model. The ‘O’ of CMIO is assumed by the music and culture of the event’s host country—in this case, Scotland. Below is a table plotted with timestamps of the performance and parts defined by its associated race and percentage in length in relation to the entire performance. [66] The performance begins with an introduction constructed with themes and motifs from several NDP songs (including ‘We Are Singapore’, ‘Count on Me, Singapore’, and ‘Where I Belong’) and marches of the SAF (‘Tentera Singapura’ and ‘Bandstand’). A brief transition—in the form of a key change—is made before the part marked ‘Indian’. This part is characterised by its compound metre and offbeat accents—rhythmic devices typical of Indian music. The Malay part begins with ‘Di Tanjong Katong’, an ethnic-Malay community song, performed by a saxophone quintet. A jovial section follows with ‘Bengawan Solo’, another ethnic-Malay community song of Indonesian origins, before the section returns to and closes with ‘Di Tanjong Katong’. A solo on the Chinese flute begins the Chinese part. It is joined first by Chinese drums then by the full band. This part is also characterised by a pentatonic melody, an accompanying ribbon dance, and the band members’ drill display executed with handheld fans. In a similar fashion, a tin whistle playing the melody of ‘Wild Mountain Thyme’ marks the start of the Scottish part. This follows with band members singing the song in two-part harmony and with minimal chordal accompaniment. The finale begins with the ascending motif of ‘Wild Mountain Thyme’ in the melodic instruments which then morphs into the melodic lines preceding the chorus of ‘Count on Me, Singapore’. The song continues with interjections of the iconic fanfares from the Singapore national anthem ‘Majulah Singapura’ before the performance concludes with a mace throw by the drum major and a pyrotechnic display by the SPDS. The well-defined parts of this performance correlate to Singapore’s profoundly distinct racial communities that resulted from the government’s efforts (as previously explored). By displaying all the different parts in one performance, the SAF Band aims to illustrate Singapore as a country where different racial communities coexist and form a part of the Singaporean identity. The rather insignificant differences between the durations of each part of the performance is intentionally contrasted with Singapore’s racial demographics (shown in the graph below), manifesting the nation’s constant concern with equal representation of its majority races.[67] More interesting yet is the substitution of ‘Other’ with ‘Scottish’ in the performance. The ill-defined ‘O’ of CMIO has provided the convenience of adapting it to the culture of the host country. Apart from garnering cheers from the audience—potentially due to their familiarity with the musical content of the ‘Other’ part—the SAF Band’s incorporation of artistic symbols of an external culture into their performance demonstrates the adaptability and accommodating quality of the Singaporean identity and society. With the Scottish part incorporated, the performance communicates a message of inclusivity to its audience (who are presumably of the majority race in the host country) and paints a cosmopolitan image of Singapore. Additionally, it may be observed from an abstraction of the grand scheme that neither the ensemble of a military band nor the tradition of tattoo performance is an artistic attribute of the main cultures in Singapore; thus, the SAF Band’s engagement with the medium itself highlights a considerable level of cosmopolitanism. Aside from the music, Singapore’s generic Asian flavour is evoked through the dancers’ oriental costumes and dance while the SPDS characterised Singapore’s orderliness through its performance of discipline and skill.[68] As this was an overseas performance presumably intended for a foreign audience, the SAF Band was granted liberty to illustrate a more idealised image of Singapore than an authentic one. Case Study Two: Truly, SSO (2019) by Singapore Symphony Orchestra Formed in 1978, the Singapore Symphony Orchestra (SSO) is Singapore’s civic orchestra. In addition to providing public audiences with the experience of classical music performances, the SSO has recorded several albums and premiered the works of local composers over the years.[69] In 2018 and 2019, the SSO performed concerts of Singaporean music as part of the nation’s celebration of National Day. In the latter year, an album of Singaporean music titled Truly, SSO was produced as part of the National Day celebrations. Several tracks on Truly, SSO can be characterised by the melange of musical styles and influences—in contrast with the performance of the SAF Band, these pieces do not overtly illustrate the compartmentalised racial factions of Singapore. This is prevalent in ‘Symphonic Suite on a Set of Local Tunes’ (2004) and ‘Kampong Overture’ (2019) by Singaporean composers Kelly Tang and Lee Jinjun respectively. Unlike its stance on the mixing of languages (that resulted in Singlish), the Singapore government assumed a less belligerent position towards the fusion of musical styles. While the reason for this remains unclear, a strong case could be made with the justification that music, compared to language and its immediacy in interpersonal communication, has a weaker influence on the state’s economic development; thus, there is no obligation for a universally recognisable style. Moreover, Truly, SSO was targeted at Singaporeans experiencing a period of reflection through national celebrations. Cultural Medallion recipient Kelly Tang is a composer known for incorporating Singaporean folk songs into his work.[70] In addition to folk songs, Tang’s compositions are influenced by jazz and classical music amongst other styles. Several works that testify to Tang’s penchant for such fusions include ‘Tian Mi Mi’ (which combines the melody of Indonesian folk song ‘Dayung Sampan’ and the theme music of The Simpsons) and an arrangement of Michael Jackson’s ‘She’s Out of My Life’ in the style of a mediaeval motet.[71] ‘Symphonic Suite on a Set of Local Tunes’ is a symphonic medley of two NDP songs and two Malay community songs. The work’s brief introduction is clearly inspired by that of Beethoven’s Ninth Symphony, with instruments playing only the interval of a perfect fifth. After a sentimental statement of the melodies of ‘Bunga Sayang’ and ‘Home’, the work assumes the style of a concert march with the melodic content of ‘Chan Mali Chan’. The sentimental tone returns with a luscious rendition of ‘Bunga Sayang’ which is then followed by an orchestral fanfare. The piece concludes with a grand and martial delivery of ‘Together’. Apart from the work’s symphonic character, reviewer Chang Tou Liang also notes ‘clever cameos’ of Elmer Bernstein’s music for The Magnificent Seven (1960).[72] While the songs incorporated were executed in isolation, the mixing of musical styles was pervasive throughout the work. This piece’s integration of styles is comparable to Singaporeans’ national identity with its integration of cultures. An allusion to the symphonic idiom is apparent from the title of ‘Kampong Overture’ which utilises the melody of three Malay community songs. It is safe to conclude that Lee’s use of folk songs is intended to typically produce a work that is nation specific as he cites the compositional ethics of nationalist composer Antonín Dvořák in his notes for ‘Kampong Overture’: Czech composer Dvořák was famous for melding folk elements into the symphonic form, creating music that sounds nostalgic and genuine, qualities that made him one of the most popular folk-inspired composers of the 19th century. Kampong Overture takes a page from Dvorák by using three Malay folk tunes, Geylang Sipaku Geylang, Lengkang Kangkung [sic] and Suriram, and weaving them into a Romantic-styled symphonic overture.[73] In addition to the work’s character (that is reminiscent of Dvořák’s Slavonic Dances), its melody quotes the ‘Largo’ of Dvořák’s New World Symphony.[74] Another piece recorded on Truly, SSO worth highlighting is Tang’s ‘Montage: Concerto for Jazz Piano & Orchestra’ which was commissioned and originally performed by the Singapore Chinese Orchestra in 2010. Besides a melodic resemblance to the theme music of Japanese animation, Tang claims ‘Chinese tonal elements’, ‘Baroque and Jazz harmonies’, ‘Jamaican Calypso music’, and George Gershwin as inspirations for ‘Montage’.[75] This outcome of composing with such a myriad of influences can be likened to the linguistic amalgamation that is Singlish. The two works from Truly, SSO examined highlight the diversity of cultures and musical styles that exists in Singapore from which local composers take inspiration. Singapore’s cosmopolitan setting has resulted in the conflation of musical styles that can truly be described as unique to the nation. The existence of this musical identity is underscored by Chang who writes in his review of the National Day Concert in 2018 (where Tang’s work was performed along with others of a similar style) that the concert ‘merely scratched the surface of Singaporean music’.[76] Conclusion In today’s globalised world, some embrace the emergence of global citizenship and identity while others fear the loss of their heritage-claiming national identity.[77] Much like its architectural landscape, Singapore’s cultural identity is one that has been inorganically constructed. At the crux of this identity is an observance of racial equality by levelling the dominance of the racial groups despite the differences in population numbers. To do this, the government meticulously defined the characteristics of the nation’s ethnic Chinese, Malay, and Indian communities, which include the most common language, religion, and holidays observed by each racial community. A nebulous ‘Other’ category was added to account for the remaining population which proved more difficult to define. The resulting CMIO racial model is implemented to all areas of livelihood regulated by the government. In times of labour shortage, the CMIO model was flagged to portray Singapore as an accommodating nation ready to welcome all of any race to join its workforce and provide for its economic development. This is facilitated conveniently by the inclusive yet ambiguous ‘O’ category into which most immigrants fall. The influx of immigrants led Singaporeans to question their communal identity and conclude it to be different from that conceived by the government. This polarity is observed from the people’s embrace of the nation-specific vernacular of ‘Singlish’ and the government’s argument that it corrupts Singapore’s cosmopolitan image. Upon realising that Singapore had no music to call its own, the Singapore government took several actions to address this deficiency. Folk songs of external origins were appropriated and promoted through Operation Singalong. Due to its limited success, these folk songs were replaced with commissioned National Day Parade theme songs that varied in style from the anthemic to the sentimental. The NDP songs aimed to foster a sense of community and motivate citizens to contribute to the State’s economic growth in the early years of its inception but changed to that of establishing place identity in recent decades. On the international stage, the Singapore Armed Forces Band assumes the responsibility of projecting Singapore’s CMIO model by incorporating ethnic community songs into the racially marked parts (and NDP songs into the frame) of its performances. The ‘Other’ part incorporates material from the music of the performance’s host country, demonstrating Singapore’s cosmopolitanism and illustrating Ulrich Beck’s statement that ‘cosmopolitans are people who can “internalise the otherness of others”’.[78] Locally, the Singapore Symphony Orchestra performs the work of local composers that take inspiration from a myriad of sources (ranging from ethnic community songs and NDP songs to the canonical works of jazz and classical music) as part of national celebrations. Referring to the polarity between the government and the people’s notion of the Singaporean identity, I have shown through the case studies that the SAF Band abides by the government’s idealised cosmopolitan image of Singapore while the works in Truly, SSO reflect an integration of styles and cultures which is an attribute of the people’s definition of ‘Singaporean’. Nicholas Ong is a music graduate of the Universities of Nottingham and Oxford where he undertook research projects on the topics of nationalism, Singapore, music criticism, and nineteenth-century Russia. In October 2022, Nicholas will commence doctoral work on Russian critic-composer Valentina Serova at the University of Cambridge. Prior to his studies, Nicholas completed national service as a military musician in the Singapore Armed Forces Band. [1] Derek Heng, ‘Chapter 3—Casting Singapore’s History in the Longue Durée’ in Karl Hack and Jean-Louis Margolin, with Karine Delaye (eds), Singapore from Temasek to the 21st Century: Reinventing the Global City (NUS Press 2010) 76. [2] Nathalie Fau, ‘Chapter 4—Singapore’s Strategy of Regionalisation’ in Hack and Margolin (n 1) 55. [3] Quoted in Eve Hoon, ‘The (In)Significant Foreign Other: A case study on the limits and conditions of Singapore-style cosmopolitanism’ (BA Archaeology and Anthropology diss., University College London 2014) 6. [4] Christina Skott, ‘Chapter 7—Imagined Centrality: Sir Stamford Raffles and the Birth of Modern Singapore’ in Hack and Margolin (n 1) 161–62. [5] ibid. [6] Siew-Min Sai, ‘Educating multicultural citizens: Colonial nationalism, imperial citizenship and education in late colonial Singapore’ (2013) 44 Journal of Southeast Asian Studies 49. [7] ibid 55. [8] Hoon (n 3) 10. [9] Anthony Reid, ‘Chapter 2—Singapore between Cosmopolis and Nation’ in Hack and Margolin (n 1) 50. [10] Melissa Wan-Sin Wong, ‘Negotiating Class, Taste, and Culture via the Arts Scene in Singapore: Postcolonial or Cosmopolitan Global?’ (2012) 29 Asian Theatre Journal 233, 247. [11] Ministry of Information and the Arts, ‘Speech by RAdm Teo Chee Hean, Minister for Education and Second Minister for Defence at the launch of Grammar Matters, at Nanyang Girls’ High School Auditorium on 31 Mar 2000 @ 2.30 PM’, press release, 31 March 2000 . [12] Quoted in Selvaraj Velayutham, ‘Everyday Racism in Singapore’ in Selvaraj Velayutham and Amanda Wise (eds), Proceedings of the Everyday Multiculturalism Conference of the CRSI (Centre for Research on Social Inclusion 2007) 3. [13] ‘National Pledge’, National Heritage Board accessed 11 April 2020. [14] Neil MacGregor, ‘Singapore’ (As Others See Us, 2 September 2019) at 41:35. [15] ibid. [16] Chua Beng-Huat, ‘Culture, Multiracialism, and National Identity in Singapore’ in Kuan-Hsing Chen (ed), Trajectories: Inter-Asia Cultural Studies (Routledge 1998) 186. [17] Hoon (n 3) 11. [18] ibid. [19] Chua (n 16) 190. [20] Public holidays listed are ones observed in 2020. See ‘Public holidays’, Ministry of Manpower accessed 11 April 2020. [21] Ien Ang and Jon Stratton, ‘The Singapore Way of Multiculturalism: Western Concepts/Asian Cultures’ (2018) 33 Sojourn: Journal of Social Issues in Southeast Asia, S61, S78; Vicente Chua Reyes, ‘Issues of Citizenship, National Identity and Political Socialization in Singapore: Implications to the Singapore Education System’ (2013) 1 Studies of Changing Societies 37, 39. [22] Hoon (n 3) 12. [23] Velayutham (n 12) 2–4; Chua (n 16) 192. [24] Kirsten Han, ‘One Singapore?: Nationalism and identity in Singapore’s mainstream and alternative media’ (MA Journalism, Media, and Communication diss., Cardiff University 2013) 1. [25] Quoted in Hoon (n 3) 9. [26] Han (n 24) 1. [27] Hoon (n 3) 17–18. [28] ibid. [29] Quoted in ibid. [30] ibid. [31] Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso 2016). [32] ‘About Us’, Singapore Repertory Theatre, accessed 14 April 2020. [33] Nur Asyikin Mohamad Salleh, ‘Singaporean identity is unique: PM’, Straits Times (Singapore, 20 May 2017) . [34] Leonard Lim and Mathew Mathews, ‘Emerging sense of S’porean identity independent of ethnic heritage’, Straits Times (Singapore, 15 November 2017) . [35] ‘National Language Campaigns’, National Heritage Board, accessed 16 April 2020. [36] Lionel Wee, ‘“Burdens” and “handicaps” in Singapore's language policy: on the limits of language management’ (2010) 9 Language Policy 97, 99. [37] ‘National Language Campaigns’, National Heritage Board. [38] Ministry of Information and the Arts (n 11). [39] Wee (n 36) 102. [40] Ministry of Information and the Arts (n 11). [41] Wee (n 36) 99. [42] ‘Searching for the Singaporean Identity’(2019) TheAlumNUS 116 accessed 16 April 2020. [43] Terence Chong, ‘The State and the New Society: The Role of the Arts in Singapore Nation-building’ (2010) 34 Asian Studies Review 131, 134. [44] Quoted in ‘Singapore’s approach to diversity has created a distinctive identity across ethnic groups: PM Lee Hsien Loong’, Straits Times (Singapore, 20 May 2017) . [45] Quoted in Chong (n 43) 132. [46] Quoted in ibid 139. [47] Aloysius Ho, ‘The Invention of Tradition: Nationalist Songs and Nation-Building in Singapore’ (BA History thesis, National University of Singapore 2016) 14. [48] Quoted in ibid 13. [49] Stephanie Ho, ‘National Day songs’ accessed 26 April 2020. [50] Ho (n 47) 16. [51] ibid 30. [52] ibid 32. [53] Chong (n 43) 136–137. [54] ‘We Are Singapore’, National Library Board, Singapore accessed 27 April 2020. [55] ‘One People, One Nation, One Singapore’, National Library Board, Singapore accessed 27 April 2020. [56] ‘Stand Up for Singapore’, National Library Board, Singapore accessed 27 April 2020. [57] Ho (n 47) 43. [58] Quoted in ibid. [59] Examples of such songs include ‘Home’ (1998), ‘Where I Belong’ (2001), and ‘There’s No Place I’d Rather Be’ (2007). [60] ‘Home’, National Library Board, Singapore accessed 27 April 2020. [61] ‘Kaira Gong: My Island Home Lyrics’ accessed 27 April 2020. [62] Ho (n 47) 24. [63] Quoted in Edna Lim, ‘One People, One Nation, One Singapore’ in Edna Lim, Celluloid Singapore: Cinema, Performance and the National (Edinburgh University Press 2018) 132. [64] For an example, see SGAG, NDP 2018 Theme Song Parody [Unofficial Music Video] | SGAG (8 August 2018) . [65] This analysis is based on the performance dated August 24, 2017, uploaded online (performance starts at 00:35). See Royal Edinburgh Military Tattoo, Singapore Armed Forces Central Band @ Royal Edinburgh Military Tattoo 2014 (12 September 2014) . [66] As pauses are filled with applause, timestamps are not definitive but close estimates. Percentages are rounded to the closest whole number. [67] ‘What are the racial proportions among Singapore citizens?’, Gov.sg accessed 29 April 2020. [68] The SPDS is regarded as an embodiment of Singaporean efficiency and conscientiousness, having been described once in an NDP souvenir program that it emphasised ‘skill, precision and alertness’, and the ‘qualities for a nation of excellence’. See Lim (n 63) 131. [69] Jan Yap, ‘Singapore Symphony Orchestra’ accessed 28 April 2020. [70] The Cultural Medallion is regarded as the most prestigious award in the arts in Singapore and is conferred to those distinguished by their achievement of artistic excellence. [71] Venessa Lee, ‘Karung guni composer’, Straits Times (Singapore, 17 August 2015) . [72] Chang Tou Liang, ‘Something for everyone in concert of Singaporean music’, Straits Times (Singapore, 14 August 2018) . [73] Lee Jinjun, ‘SSO National Day Concert’, programme notes for Kampong Overture, Singapore Symphony Orchestra, Joshua Tan (Esplanade Concert Hall, Singapore, 10 August 2019) 40. [74] Chang Tou Liang, ‘SSO National Day Concert examines what is Singaporean music’ Straits Times (Singapore, 11 August 2019) . [75] Kelly Tang, ‘SSO National Day Concert’, programme notes for MONTAGE: Concerto for Jazz Piano & Orchestra, Singapore Symphony Orchestra, Joshua Tan (Esplanade Concert Hall, Singapore, 10 August 2019) 36. [76] Emphasis added; Chang (n 74). [77] Jayson Beaster-Jones, ‘Globalization’ (Grove Music Online) accessed 29 February 2020. [78] Quoted in Luke Lu, ‘Singapore and the cosmopolitan ideal’, TODAY (18 March 2014) .

Clarifying the Extent of Protection Afforded by Actual Occupation under the Land Registration Act 2002 I. Introduction Issues of priority are at the centre of English land law. Where a plot of land in which a third party has an interest is transferred from one party to another, a conflict arises between this third party and the transferee: whose interest has priority? If push comes to shove, can the transferee prevent the third-party interest holder from exercising her right, or is the third-party interest-holder entitled to enjoy her interest in the face of the transferee’s objections? The Land Registration Act (‘LRA’) 2002 does much to answer this question. Under section 29, pre-existing unregistered interests are postponed to the interests of a registered disponee taking for valuable consideration. As a result, any such unenforceable interests are rendered prima facie unenforceable against a purchaser. However, section 29 only has this effect where the priority of the interest in question is not ‘protected’. Interests falling under any of the paragraphs of schedule 3 LRA 2002 are within this special category of ‘protected’ interests.[1] This article is concerned with paragraph 2 of schedule 3, which serves the important function of safeguarding interests ‘belonging at the time of the disposition to a person in actual occupation’[2] and ‘whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition’.[3] Paragraph 1 is limited to leaseholds and paragraph 3 is limited to easements and profits à prendre. By contrast, paragraph 2 is not constrained in its application to any particular interests. This makes paragraph 2 potentially far-reaching in its effects and a powerful defence against the postponement mechanism in section 29. However, the interpretation of schedule 3 paragraph 2 has proved a significant headache for the courts. First, disagreement has emerged regarding precisely when the disposed land must be occupied.[4] Second, there has been debate as to which factors might be relevant when deciding whether a person is in actual occupation. The relevance courts should accord to a person’s ‘intentions and wishes’ has remained particularly ambiguous in this regard.[5] Third, in the context of the rectification and alteration provisions in the LRA 2002, the question has arisen whether a ‘right to rectify’ the register might amount to an overriding interest under schedule 3 paragraph 2.[6] Behind these controversies, however, the question whether the protection afforded by paragraph 2 is coextensive with actual occupation seems to have been largely forgotten. This question did receive some notable attention under the LRA 1925. Applying section 70(1)(g) LRA 1925—the precursor to schedule 3 paragraph 2 in the LRA 2002—the decisions in Ashburn Anstalt v Arnold[7] and Ferrishurst v Wallcite[8] came to opposite conclusions regarding whether occupation of part of the land could protect an interest in the whole. The LRA 2002 seems to preclude this possibility by providing that an interest is only overriding ‘so far as relating to land … in actual occupation’.[9] However, schedule 3 paragraph 2 is not free from ambiguity in this respect. In particular, the change in the wording from section 70(1)(g) LRA 1925 raises the question whether the words ‘relating to’ enable the protection afforded by paragraph 2(1) to extend beyond the land actually occupied. I will attempt to answer this forgotten question. First, I will outline in brief the pre-LRA 2002 disagreement regarding the scope of the protection afforded by actual occupation. Second, I will analyse the changes implemented by the LRA 2002. I will demonstrate that the vexed question is whether ‘relating to land … in actual occupation’ should be interpreted narrowly or broadly. Under the narrow interpretation, only an interest in land which is actually occupied by the interest-holder would be protected against postponement; under the broad interpretation, schedule 3 paragraph 2 also protects an interest in land which, although not itself occupied, still ‘relates to’ occupied land. Third, I will consider the merits of both the broad and narrow interpretations. I will examine the alternative drafting options available to Parliament, analogous language in the pre-LRA 2002 case law, the suggestions of the Law Commission, and the policy implications of each interpretation. From these I will argue that only the narrow interpretation is ultimately convincing. As I will demonstrate, this conclusion has far-reaching implications for the interaction between postponement and protection provisions in the LRA 2002. II. Pre-LRA 2002 Judicial Disagreement Under the LRA 1925, there was conflicting case law surrounding the extent of the protection afforded by actual occupation. Section 70(1)(g) LRA 1925 served a function analogous to schedule 3 paragraph 2 LRA 2002. Under section 70(1)(g), the ‘[t]he rights of every person in actual occupation of the land’ would be overriding and thereby take priority over the interest of a subsequent purchaser. However, while section 70(1)(g) made it clear that a right in the land actually occupied would be overriding, the statute was unclear as to precisely how far this overriding status would extend. Two cases interpreting section 70(1)(g) came to markedly different conclusions on this point. In Ashburn Anstalt v Arnold,[10] Mr Arnold held the head-lease in several properties and granted an informal sublease to Arnold & Co. Arnold & Co. entered into possession of two of these properties. Mr Arnold and Arnold & Co. then both entered into an agreement with Matlodge Limited to sell the head-lease and sub-lease in the properties, respectively. The agreements permitted Arnold and Arnold & Co. to remain in the property as “licensees”. The benefit of these agreements was assigned by Matlodge to Cavendish, resulting in the head-lease and sub-lease merging in the freehold. The freehold was ultimately transferred to Ashburn Anstalt subject to the original agreement between Arnold & Co. and Matlodge. Ashburn Anstalt wrote to Mr Arnold, requesting that Arnold & Co. give up possession; when the latter refused, Ashburn Anstalt brought proceedings seeking an order for possession. The relevant question before the court was whether the agreement between Arnold & Co. and Matlodge had created a tenancy which took effect as an overriding interest under section 70(1)(g) LRA 1925 by virtue of Arnold & Co.’s actual occupation. Fox LJ in the Court of Appeal found that Arnold & Co. had a tenancy in the property and that the tenancy was overriding under section 70(1)(g). However, while denying Ashburn Anstalt an order for possession, Fox LJ also adopted a narrow interpretation of the protection afforded by section 70(1)(g): The land occupied by Arnold & Co. at the date of the sale and transfer to the plaintiff was registered land; it was part of a larger area comprised in a single title. The overriding interest will relate to the land occupied but not anything further. Thus, we do not think it can extend to any area comprised in the single title but not then occupied by Arnold & Co.[11] This passage reflects two important propositions. First, occupation of part does not automatically constitute occupation of the whole. This follows from Fox LJ’s conclusion that, although Arnold & Co occupied ‘part of a larger area comprised in a single title’, an interest in the ‘area comprised in the single title’ was not protected beyond the land actually occupied. This precludes any argument that a claimant might be deemed in law to be occupying the whole site by virtue of her occupation of part. Second, and more far-reaching, the overriding status of any interest extends only so far as the land is occupied. To use the ‘protection’ terminology adopted in the LRA 2002, the protection against postponement afforded by actual occupation only encompasses an interest in the land actually occupied. An interest in land which is not in actual occupation cannot benefit from section 70(1)(g) LRA 1925. The Court of Appeal reached a different conclusion in Ferrishurst v Wallcite.[12] Ferrishurst Ltd had an option to purchase the underlease of a site. The site consisted of a building, comprised primarily of office space, and an adjoining garage. Ferrishurst sought to exercise this option after Wallcite Ltd acquired the property. However, Ferrishurst had failed to protect its option by entering it in the register. Ferrishurst therefore argued that the option was an overriding interest under section 70(1)(g) LRA 1925. Ferrishurst’s justification was that it was in actual occupation of the office space under a sub-underlease granted by Wallcite’s predecessor in title. The vexed issue was whether Ferrishurst’s actual occupation of part of the site protected its option to purchase the whole of the site. Judge Wakefield in the County Court held that Ashburn was binding. He therefore found that Ferrishurst’s interest was only overriding under section 70(1)(g) LRA 1925 to the extent of Ferrishurst’s actual occupation of the office space and denied Ferrishurst the right to exercise its option.[13] Robert Walker LJ, however, accepted an argument, advanced by counsel for Ferrishurst, that Ashburn was decided per incuriam because the Court of Appeal ‘would not have decided the case as it did’ if it had been made aware of the relevant authorities.[14] On the basis of the third exception in Young v Bristol Aeroplane,[15] Robert Walker LJ held that he was not bound by the precedent in Ashburn. He instead held that a person in actual occupation of a part of the land comprised in a registered disposition can enforce against the new registered proprietor any overriding interest which he has either in the land, or part of the land, occupied by him or in the remainder, or part of the remainder, of the land comprised in the registered disposition in question.[16] Since Ferrishurst was in actual occupation of part of the site, the unregistered option was protected with respect to the whole plot of land. Therefore, following Ferrishurst, the protection afforded by actual occupation under section 70(1)(g) LRA 1925 is not necessarily coextensive with the actual occupation itself. III. Schedule 3 Paragraph 2 LRA 2002 A. The broad and narrow interpretations The LRA 2002 departs from the position in Ferrishurst that occupation of part of the land can protect an interest in the whole. Schedule 3 paragraph 2 provides that An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for—[17] Notwithstanding this clarification—which reflects a conscious decision by the Law Commission[18]—the new provision is not wholly devoid of ambiguity. In particular, the phrase ‘relating to’ is problematic. The meaning of this phrase in schedule 3 paragraph 2 has only once been touched on judicially, in Chaudhary v Yavuz.[19] Yavuz’s predecessor in title had promised Chaudhary that Chaudhary could erect and use a stairway on the land adjoining Chaudhary’s in order to access the upper floors of Chaudhary’s property. Chaudhary claimed that this promise by Yavuz’s predecessor in title gave rise to a proprietary equity by estoppel under section 116(a) LRA 2002. Yavuz acquired the adjoining land for valuable consideration and was registered as a freehold proprietor. Yavuz then refused to permit Chaudhary to use the stairway on the basis that any equity by estoppel Chaudhary may have had in the land had been postponed under section 29. Counsel for Chaudhary argued that Chaudhary’s purported interest over the stairway and alleyway was protected under schedule 3 paragraph 2 LRA 2002 by virtue of actual occupation on four grounds.[20] Three of these grounds were more ‘conventional’: first, counsel argued that Chaudhary was in actual occupation through the metal structure that had been erected in the physical space containing the stairway;[21] second, that Chaudhary had acquired occupation by his contractors some years prior which he had never given up;[22] third, that Chaudhary was in actual occupation through his tenants, who had been using the stairway and balcony.[23] Each of these grounds was rejected by Lloyd LJ in the Court of Appeal.[24] Only the fourth ground put forward by counsel for Chaudhary raised the ambiguity surrounding ‘relating to’ in schedule 3 paragraph 2 LRA 2002.[25] Counsel argued that, even if there was no actual occupation of the stairway, the purported interest over the stairway could nevertheless be protected by actual occupation of the balcony since ‘a right over the staircase and the alleyway would relate to the balcony’.[26] I will term this argument the ‘broad interpretation’ of schedule 3 paragraph 2(1). By contrast, I will term the argument that protection of an interest in the land only extends so far as the relevant land is in actual occupation (i.e., the interpretation of section 70(1)(g) LRA 1925 adopted by Fox LJ in Ashburn) the ‘narrow interpretation’ of schedule 3 paragraph 2(1). Lloyd LJ, delivering the only reasoned judgment in the Court of Appeal, commented that he could ‘see force’ in the broad interpretation.[27] However, because he found that Chaudhary was not in actual occupation of the balcony, he did not have to decide the point. The existing academic literature has not addressed which of the two interpretations best represents the current law.[28] The relevance of the distinction between the broad and narrow interpretations is best illustrated by an example. Assume that A is the registered proprietor of a plot of land with a large two-storey building. A grants B, by deed, a leasehold over the building. B fails to register his leasehold and lives exclusively on the second floor, only ever using the ground floor to access the first floor. Is B’s leasehold protected from postponement under schedule 3 paragraph 2(1) LRA 2002 by virtue of actual occupation? Since B is living in the upstairs area his presence is certainly more than ‘mere[ly] fleeting’.[29] Applying the traditional test, B is therefore in actual occupation of the second floor. Whether B occupies the downstairs area is more open to doubt. It is unlikely that using the land merely as an accessway creates a sufficient ‘physical presence’[30] to amount to actual occupation.[31] It is therefore unlikely that B is in actual occupation of the ground floor. Assume now that A, still the owner of the freehold, sells this freehold to C. Under the narrow interpretation, B’s unregistered leasehold would only be overriding insofar as he was in actual occupation of the land. B’s interest in the lower floor would therefore be postponed to C’s newly acquired interest under section 29. Under the broad interpretation, however, B may argue that the bottom floor ‘relat[es] to land of which he is in actual occupation’. B’s leasehold over the whole estate would therefore be protected against postponement as an overriding interest. Therefore, which of the narrow and broad interpretations of ‘relating to’ is ultimately adopted has potentially far-reaching implications. However, before evaluating the merits of the narrow and broad interpretations, it is necessary to consider a third possible interpretation. B. ‘Relating to’ as a reflection of proprietary status? Both the narrow and broad interpretations of schedule 3 paragraph 2(1) outlined above suggest that ‘relating to’ qualifies the extent of the land protected under schedule 3 paragraph 2(1). A third possible interpretation is that ‘relating to occupied land’ in schedule 3 paragraph 2(1) emphasises that the interest must be proprietary. In contrast to the broad and narrow interpretations, this interpretation decouples ‘relating to’ from ‘actual occupation’ entirely. It thereby creates two restrictions on the scope of overriding interests under schedule 3 paragraph 2(1). First, the relevant interest must be a proprietary interest in the land being disposed of. Second, the interest is only overriding insofar as the land is in actual occupation. Under this interpretation, the phrase ‘relating to’ does not broaden the scope of the protection offered by schedule 3 paragraph 2(1). Instead, it narrows it. Several observations weigh against this interpretation. First, the fact that only proprietary interests in the disposed land can be overriding is already made clear elsewhere in the statute: section 29(1) only postpones ‘interest[s] affecting the estate’.[32] Interests that are merely personal and non-proprietary can therefore never survive a disposition.[33] Repeating this in schedule 3 paragraph 2(1) would be redundant. Second, if the intended purpose of the words ‘relating to’ had been to make clear that only proprietary interests in the disposed land could override, then one would expect to see similar language in the other paragraphs of schedule 3 referenced in section 29. However, no such language can be found: ‘relating to’ appears only in paragraph 2, and similar wording which might conceivably be aimed at emphasising the proprietary nature of the overriding interests is also almost entirely absent.[34] In the LRA 2002 as a whole, conjugations of the verb ‘relate’ appear quite rarely. Where ‘relate’ is used, the intention is almost always to establish a relationship to something other than land.[35] This further detracts from the argument that the phrase ‘relating to’ in schedule 3 paragraph 2(1) confirms the proprietary nature of the interest. It seems unlikely, therefore, that the words ‘relating to’ in schedule 3 paragraph 2(1) are intended to operate independently of the provision’s reference to actual occupation. The vexed question is therefore whether the narrow or broad interpretation of schedule 3 paragraph 2(1) should prevail. If a narrow interpretation of ‘relating to’ is adopted, the current law will have made a full return to the approach in Ashburn. In other words, only an interest in land that is actually occupied can override a disposition for valuable consideration. Under the broad interpretation, however, the phrase ‘relating to’ could encompass land which, although not itself occupied, ‘relates to’ land which is occupied. If this interpretation is accepted, schedule 3 paragraph 2 would not have fully embraced the position in Ashburn. The argument advanced by counsel for Chaudhary is therefore a middle ground between the outcomes of Ashburn and Ferrishurst under the LRA 1925: while occupation of part does not automatically protect an interest in the whole,[36] occupation of part may have this effect if the unoccupied area is sufficiently related to the occupied area. Since following a broad interpretation of ‘relating to’ in schedule 3 paragraph 2 would open the door to a potentially far-reaching expansion to the protection afforded to unregistered easements, the merits of this approach must be closely examined. IV. Evaluating the Broad Interpretation We have seen that the relevant alternatives are the broad and narrow interpretations of schedule 3 paragraph 2(1). In this part, I will consider the comparative merits of each interpretation. First, I will demonstrate that schedule 3 paragraph 2(1) could have been drafted more clearly, and that Parliament’s failure to adopt an alternative formulation supports the broad interpretation. This analysis is lent further credence by judicial interpretation of schedule 3 paragraph 2(1) in a different context. However, merely looking at alternative drafting offers an incomplete picture of Parliamentary intent. Second, I will argue that the analogous language in Ashburn can serve as an important source of guidance for interpreting the LRA 2002. Owing to similarities in language and context, ‘relating to’ in schedule 3 paragraph 2(1) should be attributed the same interpretation as in Ashburn. Third, I will examine the Law Commission report to glean the meaning behind the ambiguous language in schedule 3 paragraph 2(1). Although the Law Commission does not explicitly comment on the meaning of ‘relating to’, it does enumerate its reasons for rejecting the approach in Ferrishurst. If these same reasons also militate against the broad interpretation, it may safely be concluded that the Law Commission was not advocating in favour of the broad interpretation when suggesting its proposal to Parliament. Fourth, and finally, I will consider the policy implications of adopting both the broad and the narrow interpretation. I will suggest that the uncertainty introduced by the broad interpretation and its potentially far-reaching implications make it the less plausible of the two interpretations. Drawing from the above considerations, I will argue that the narrow interpretation better reflects the current state of the law. A. Alternative drafting A textual analysis of the LRA 2002 might suggest that the phrase ‘relating to land … in actual occupation’ in schedule 3 paragraph 2 has a meaning distinct from the interpretation of section 70(1)(g) adopted in Ashburn. One might reasonably opine that, had Parliament intended to limit the protection afforded by schedule 3 paragraph 2 to an interest in land in actual occupation, it would have said so more clearly. Indeed, eliminating the relevant ambiguity from the statute would have required little more than removing ‘relating to land’. Schedule 3 paragraph 2(1) (excluding subparagraphs (a)–(d)) could have been rephrased as follows: An interest belonging at the time of the disposition to a person in actual occupation, so far as he is in actual occupation of the land, except for— Why did the Law Commission (and Parliament) shy away from the above wording?[37] One possible reason is that it fails to make explicit the fact that the relevant interest must be an interest in the land (i.e., a proprietary rather than merely personal interest). However, as discussed above, it is unlikely that ‘relating to’ was intended to fulfill this purpose. Moreover, if Parliament had sought to make this explicit,[38] it could have done so with less ambiguity by adopting the following wording: An interest in the land, provided the interest belongs at the time of the disposition to a person in actual occupation and only so far as that person is in actual occupation of the land, except for—[39] If schedule 3 paragraph 2(1) had adopted the above language, it would have established beyond any doubt that an interest in the land is only overriding insofar as the land is in actual occupation. Therefore, it may reasonably be suggested that Parliament would have adopted this phrasing if it had intended schedule 3 paragraph 2(1) LRA 2002 to mirror the interpretation of section 70(1)(g) LRA 1925 in Ashburn. The fact that the phrase ‘relating to’ was used instead suggests that Parliament intended the provision to carry a different meaning. This kind of argument has already been accepted when interpreting schedule 3 paragraph 2(1) in a different context. Lewison J in Thompson v Foy[40] considered, obiter, whether actual occupation must exist only at the time the disposition of the interest occurs or also at the time the disposition is registered.[41] Lewison J held that the choice of language in schedule 3 paragraph 2(1)—‘An interest belonging at the time of the disposition to a person in actual occupation’—suggested that actual occupation must exist at both times. This is because ‘[a]s written, the phrase can be read as tying the “belonging” to the date of the disposition, while leaving at large the date of actual occupation’.[42] Lewison J pointed out that, had Parliament intended to make actual occupation at the time of the disposition the ‘sole criterion’, it could easily have done so by rewording the beginning of schedule 3 paragraph 2(1) to read ‘An interest belonging to a person in actual occupation at the time of the disposition’.[43] The current phrasing of schedule 3 paragraph 2(1) was not inherently incompatible with a construction which only required actual occupation at the time of disposition. Nonetheless, the availability of this alternative, clearer wording led Lewison J to conclude that this was not the correct interpretation of the statute. This reasoning lends support to the broad interpretation because it indicates that there has been at least some judicial receptiveness to this kind of argument in a very similar context. Indeed, the reasoning accepted by Lewison J is weaker than the argument being considered here. In Thompson, a construction that required actual occupation only at the time of the disposition did not render any part of the provision superfluous.[44] By contrast, if the narrow interpretation were adopted, ‘relating to’ in schedule 3 paragraph 2 is arguably left without any obvious meaning at all. I return to this issue below. However, Lewison J’s analysis has also been met with significant criticism.[45] Particularly noteworthy is the comment by Emma Lees. Lees argues that Lewison’s interpretation is an ‘artificial reading of the statute’ because it is ‘impractical in practice … and inconsistent with the approach taken under the 1925 legislation’.[46] Other factors, such as the practicability of the interpretation and the treatment of analogous provisions, can be quite appropriately considered alongside alternative drafting. Therefore, although clearer language may have been available to Parliament, this fact cannot be considered in isolation. Moreover, as will be demonstrated below, the Law Commission had a particular understanding of the words ‘relating to’ in mind when it proposed the draft Bill of the LRA 2002 to Parliament, and it made that understanding clear. When Parliament deliberated on the proper wording of schedule 3 paragraph 2, it did so in light of the Law Commission’s interpretation of the provision. B. Analogous language in the case law In the absence of language similar to ‘relating to land … land in actual occupation’ in the LRA 2002, it is worth considering whether similar language can be found in case law. Astute readers will already have noticed that the phrasing of schedule 3 paragraph 2(1) closely mirrors some of the language used in Ashburn. Considering the the scope of the protection afforded by actual occupation under section 70(1)(g) LRA 1925 in the penultimate paragraph of his judgment, Fox LJ opined that [Arnold & Co.’s] overriding interest will relate to the land occupied but not anything further. Thus, we do not think it can extend to any area comprised in the single title but not then occupied by Arnold & Co. Accordingly, the existence of the overriding interest does not entitle Arnold & Co. to enforce any rights it may have under clause 6 of the 1973 agreement over any land other than land in its occupation at the time of the 1985 sale and comprised in that sale.[47] The italicised words bear stark similarities to the material language in schedule 3 paragraph 2(1), which states that an interest is only overriding ‘so far as relating to land of which he is in actual occupation’. As discussed above, the decision in Ashburn established that the protection afforded to an interest in the land was coextensive with the actual occupation of that land. While this may not be evident from the italicised words themselves, it is made abundantly clear by the sentences that follow. Arnold & Co.’s overriding interest did not extend to any area ‘not then occupied’, and Arnold & Co. could not enforce rights over land ‘other than land in its occupation’. This language—were it included in schedule 3 paragraph 2(1)—would preclude any argument on the broad interpretation raised in Chaudhary. Fox LJ was therefore not using the phrase ‘relate to’ in order to open up the possibility that an interest in land not itself occupied might be protected by virtue of actual occupation—that is, the broad interpretation. In fact, he meant quite the opposite. ‘Relate to’ as used in Ashburn makes clear that only interests in land that is actually occupied are overriding. The similarities in context and language outlined above[48] suggest that schedule 3 paragraph 2(1) adopted, at least in part, the language used in Ashburn. If this is accepted, then ‘relating to’ in schedule 3 paragraph 2(1) should be accorded the same meaning as ‘relate to’ in Ashburn. The helpful context that is lacking in the statutory drafting may thus be compensated for by Fox LJ’s elaboration above. C. Law Commission Report A narrow interpretation of schedule 3 paragraph 2(1) also aligns better with the meaning of schedule 3 paragraph 2(1) in the Law Commission’s commentary to the draft Bill. Taking into account Law Commission reports ‘does not of course imply that the meaning which the context provided by this material suggests will be decisive’.[49] However, such reports do offer a useful insight into the ‘true intentions of the legislature’.[50] In the commentary to the proposed Bill that was to become the LRA 2002, the Law Commission discusses the scope of protection afforded by actual occupation under the heading ‘Qualification: Protection is restricted to the land in actual occupation’.[51] When the Law Commission goes on to note in the first line of that section that ‘actual occupation only protects a person’s interest so far as it relates to land of which he or she is in actual occupation’,[52] the words ‘relates to’ are being used in their narrow form—referring only to land actually occupied. This is further evidenced by the Law Commission’s comment that, at the time of the consultation, the proposed legislation ‘did no more than reflect the way in which section 70(1)(g) of the Land Registration Act 1925 had been interpreted by the Court of Appeal in Ashburn Anstalt v Arnold’.[53] The report goes on to explain that the decision in Ferrishurst departed from the analysis in Ashburn. It also explains why the Law Commission considers the approach in Ferrishurst to be unfit for the new system of land registration.[54] Also relevant are the reasons underpinning the Law Commission’s rejection of the Ferrishurst approach. Commenting on the proposed change to the law, the Law Commission explicitly states that the Bill reversed the ruling in Ferrishurst because this decision ran counter to two central objectives of the new land registration regime.[55] The first was the objective of creating ‘a faster and simpler electronically based conveyancing system’.[56] The LRA 2002 sought to make interests in the land discoverable on the online register without the need for many additional enquiries. The interpretation in Ferrishurst increases the possibility that an interest—not discoverable on the register—would be protected against a subsequent disponee. The interpretation is therefore in direct conflict with this objective of the LRA 2002. The second objective undermined by the decision in Ferrishurst was the objective of encouraging registration of rights.[57] Ferrishurst makes it more likely that an interest will be protected as an overriding interest by virtue of actual occupation. The decision thereby discourages registration and, perhaps more importantly, continues to uphold the notion ‘that it is somehow unreasonable to expect those who have rights over registered land to register them’.[58] The Law Commission concluded that the Bill reverses Ferrishurst ‘in furtherance of these two objectives’.[59] These same considerations militate against the adoption of the broad interpretation of schedule 3 paragraph 2(1). With regard to the first objective of land conveyancing the broad interpretation is out of line with the Law Commission’s intention for two reasons. First, by departing from the straightforward approach in Ashburn that only an interest in land actually occupied can be protected as an overriding interest, the broad interpretation generates a degree of uncertainty that is inimical to the first objective’s aims of creating a ‘​​faster and simpler’[60] land registration system which minimises the need for in-person examination of the land.[61] ‘Relating to’ under the broad interpretation of schedule 3 paragraph 2(1) could take on a wide range of definitions.[62] In Chaudhary, for example, it was suggested that the external stairwell ‘related to’ the balcony. Would it also have related to the house itself? What of a garage at the other side of the house where the dominant owner always parked before entering his house through the stairway? Because of this uncertainty in application, the broad interpretation fails to encourage the ‘absolute minimum of additional enquiries and inspections’.[63] Second, the broad interpretation runs counter to the first objective enumerated by the Law Commission because of the very nature of the legal inquiry which it requires courts to embark on. The vexed question under the broad interpretation is always whether the interest sufficiently relates to the occupied land. It seems entirely possible that one interest—such as an easement—might not sufficiently relate to the occupied land, while another interest—such as a beneficial freehold estate—would. This is relevant to the method and the ease with which it is possible to mitigate against the risk of an overriding interest arising by virtue of actual occupation under schedule 3 paragraph 2(1). Under the narrow interpretation of schedule 3 paragraph 2(1), an interest only overrides if the land is actually occupied. Therefore, a purchaser seeking to protect themselves against a potential overriding interest would only have to investigate the physical property. The nature of the interest of any occupier is immaterial. By contrast, properly mitigating the risks of an overriding interest under the broad interpretation of schedule 3 paragraph 2(1) may require not only an investigation of the land itself, but also an investigation into what kind of interest is held by any occupier. This requirement is alien to both the Ashburn and Ferrishurst approaches. In this way the broad interpretation of schedule 3 paragraph 2(1) constitutes an even greater interference with the Law Commission’s first stated objective of the LRA 2002 than the Ferrishurst interpretation. The Law Commission’s rejection of the Ferrishurst approach under the LRA 2002 therefore demands, a fortiori, that the broad interpretation of schedule 3 paragraph 2(1) also be rejected. The broad interpretation also runs counter to the second objective of the LRA 2002. Just as with Ferrishurst’s interpretation of section 70(1)(g) LRA 1925, the broad interpretation discourages registration by making it more likely that an interest will be protected without registration. Indeed, the legal ambiguity described above may contribute to this issue, since the current uncertainty surrounding the phrase ‘relating to’ might encourage interest-holders to take their chances in the courts. The broad interpretation also continues to perpetuate the ‘puzzling’ notion that it may be unreasonable to expect persons to register, which the Law Commission sought to eradicate by reducing the number and scope of overriding interests in the LRA 2002.[64] Had the Law Commission been presented with the broad interpretation of schedule 3 paragraph 2(1), it seems likely that it would have rejected this interpretation for the same reasons motivating the rejection of the Ferrishurst approach. D. Policy considerations Adopting the broad interpretation is also undesirable from a policy perspective. If ‘relating to’ does not limit the protection afforded by schedule 3 paragraph 2(1) to the land actually occupied (as would be the case under the narrow interpretation), then the limit to protection under schedule 3 paragraph 2(1) must lie elsewhere. This raises two questions, neither of which has a clear answer. The first is a question of some kind. What sort of relationship does the phrase ‘relating to’ require? Does the relationship between the occupied and non-occupied land have to be one of purpose? One of use?[65] One of physical proximity? While a multi-factor approach considering all of these factors might be possible, it would do little to introduce certainty. Any court trying to delimit the scope of ‘relating to’ must also be careful not to interpret the provision too broadly, lest it incorporate the Ferrishurst approach through the back door. If it were accepted that in some (not-so-remote) way every area of land ‘relates to’ the other land in the same registered plot, then it would follow that occupation of part of the land would protect interests in the whole. Once the relevant kind of relationship is established, the second question is one of degree. How close must the relationship be in order for one part of land to ‘relate to’ another? For example, if a holistic approach to the meaning of ‘relating’ were adopted, would it suffice if two parts of the plot generally served a single purpose, even if the interest-holder only ever used the two parts separately? What if the two parts had virtually no characteristics in common, but happened to be used together by a particular interest-holder? As was demonstrated above, the Law Commission did not have the broad interpretation of ‘relating to’ in mind when drafting the statute. Therefore, no guidance on answering the above questions can be gleaned from schedule 3 paragraph 2 or the accompanying preparatory material. Moreover, the term ‘relating to’ is not used in a similar context elsewhere in the LRA 2002 or the LRA 1925. This leaves little in the way of analogous case law which might assist judicial decision-making. In short, under the broad interpretation, the judiciary would be left in the dark regarding the proper application of schedule 3 paragraph 2(1). Actual occupation is already a context-dependent and volatile area of the law. Adopting the broad interpretation of ‘relating to’ would compound this uncertainty, severely inhibiting the reliability of commercial transactions and encouraging costly litigation. V. Conclusion In this article I have considered the forgotten question of whether the extent of protection afforded by actual occupation under schedule 3 paragraph 2 LRA 2002 is coextensive with the land actually occupied. Under the broad interpretation of schedule 3 paragraph 2, the protection afforded by actual occupation also encompasses an interest land which ‘relates to’ occupied land, even if that land is not itself occupied. Under the narrow interpretation, the protection afforded by actual occupation does not extend beyond the actual occupation itself. I have argued that, although Parliament could have adopted more precise wording for schedule 3 paragraph 2(1), the narrow interpretation is more convincing. This is because the narrow interpretation better reflects the case law which inspired the statutory provision, is in line with the Law Commission’s intention when drafting the Bill, and is more defensible from a policy perspective. Therefore, the Court of Appeal’s suggestion in Chaudhary that there is ‘force’ in the broad interpretation should not be followed. Only an interest in land which is actually occupied by the interest-holder is protected as an overriding interest under schedule 3 paragraph 2(1). The implications of this conclusion are particularly important for the protection of unregistered easements, because the purportedly overriding interest does not infrequently affect only part of the land. However, the rejection of the broad interpretation has more far-reaching consequences. In any context where only part of a registered plot is occupied, the broad interpretation had kept open the possibility that this occupation might protect an interest in another unoccupied part of the land, or even in the plot of land as a whole (as the Ferrishurst approach would have). Such an occupier has now lost this argument to fall back on. Fred Halbhuber Fred Halbhuber graduated with First Class Honours in Law from the University of Cambridge, where he came top of his class in company law, private international law and administrative law. He is currently pursuing a JD degree at Yale Law School and has published on land law (easements) and contract law (penalty clauses), among other topics. [1] LRA 2002, s 29(2)(a)(ii). [2] ibid sch 3 para 2. [3] ibid sch 3 para 2(c)(i). [4] Lewison J in Thompson v Foy [2009] EWHC 1076 (Ch) suggested that actual occupation must exist both at the time of the disposition and at the time of registration. This view differs from the position under section 70(1)(g) LRA 1925 (see, for example, Lord Oliver in Abbey National Building Society v Cann [1991] 1 AC 56, 88). [5] Courts have increasingly considered a party’s state of mind when analysing actual occupation. See, for example, Link Lending Ltd v Bustard [2010] EWCA Civ 424 [27] (Mummery LJ) and Bernice Thomas v Clydesdale Bank Plc [2010] EWHC 2755 (QB) [38] (Ramsey J). For criticism of this approach, see Christopher Bevan ‘Overriding and over-extended? Actual occupation: a call to orthodoxy’ (2016) 2 Conveyancer & Property Lawyer 104–117. [6] The so-called ‘Malory 2 argument’, named after Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] EWCA Civ 151. There is also the related debate over whether an adverse possessor’s right to be registered as proprietor of an estate is a potentially overriding interest under schedule 3 paragraph 2(1), as the Law Commission has suggested: Law Com No 271, para 14.64. [7] Ashburn Anstalt v Arnold [1989] Ch 1. [8] Wallcite Ltd v Ferrishurst Ltd [1999] Ch 355. [9] LRA 2002, sch 3 para 2(1). [10] Ashburn (n 7). [11] ibid 28F. [12] Wallcite Ltd v Ferrishurst Ltd [1999] Ch 355. Robert Walker LJ referred to Ashburn as a ‘formidable obstacle’ to Ferrishurst’s argument: 361. [13] ibid 362. [14] ibid 372. The key authorities that had not not been before the Court of Appeal were Hodgson v Marks [1971] Ch 892 and Williams & Glyn’s Bank Ltd v Boland 1981 AC 487. In the former case, Russell LJ remarked, obiter (Hodgson 391), that ‘the judge relied upon the correct conclusion that “the land” [in section 70(1)(g) LRA 1925] included part of the land’. In Boland, Lord Wilberforce emphasised that actual occupation under section 70(1)(g) LRA 1925 (like sch 3 para 2 LRA 2002) does not only protect interests giving rise to a right to occupy. Instead, actual occupation is merely the mechanism by which any interest is protected: ‘In the case of registered land, it is the fact of occupation that matters. If there is actual occupation, and the occupier has rights, the purchaser takes subject to them.’ [15] This third exception holds that ‘[t]he [Court of Appeal] is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam’: Young v Bristol Aeroplane Co Ltd [1944] KB 718, 730. [16] ibid. [17] LRA 2002, sch 3 para 2(1). [18] Law Com No. 271, para 8.54: ‘An interest belonging at the time of the registered disposition to a person in actual occupation is an overriding interest, so far as it relates to land of which he or she is in actual occupation’. [19] Chaudhary v Yavuz [2011] EWCA Civ 1314. [20] Although not explicitly identified by Lloyd LJ as four stand-alone arguments, it is clear from his judgement that he considered each ground separately; ground one is discussed at [32], ground two at [33], ground three at [34] and ground four at [35]. Arguably, there is a fifth, more general ground, discussed from [27]–[31] that mere ‘passing and repassing’ over the stairway merely amounts to ‘use’, not ‘occupation’; it is in support of this more general proposition—that mere use does not constitute actual occupation under schedule 3 paragraph 2—that Chaudhary (n 19) is most frequently cited. [21] ibid [32]. [22] ibid [33]. [23] ibid [34]. [24] ibid [32]–[34]. [25] ibid [35]. [26] ibid. [27] Chaudhary (n 19) [35]. This was picked up on in ‘Sex, Lies and Land Registration’, part of the ten old square 2011/2012 seminar season, where it was noted at [49] that Lloyd LJ ‘did … give a hint that he was in favour of Mr Chaudhary’s less restrictive interpretation’: https://issuu.com/keithplowman/docs/seminar_notes_sex_lies_and_land_registration_feb_2. [28] McFarlane, commenting on Chaudhary (n 19), notes that the argument advanced by counsel for Chaudhary ‘points out an ambiguity in the wording’ of the statute, but does not discuss the matter further: Ben McFarlane, ‘Eastenders, Neighbours and Upstairs Downstairs: Chaudhary v Yavuz’ (2013) 1 Conveyancer & Property Lawyer 74–82, 78. The ambiguity surrounding the words ‘relating to’ also goes entirely unaddressed in all of the major commentaries, including Gale on the Law of Easements (21st edn, Sweet & Maxwell 2020) and Megarry & Wade: The Law of Real Property (9th edn, Sweet & Maxwell 2020). T B F Ruoff and R B Roper, in The Law and Practice of Registered Conveyancing (Sweet & Maxwell 2021), implicitly accept that schedule 3 paragraph 2(1) has brought about a return to the Ashburn (n 7) approach for cases decided under the LRA 2002. Commenting on the effect of schedule 3 paragraph 2(1), the authors write without qualification that, under the new legislation, ‘the legal reach of the adverse interest is limited to the factual reach of the occupation’ [17.015]. Similarly, Roger J. Smith, in Property Law (10th edn, Longman Law Series, Pearson 2020) 273, writes that the ‘question [of whether protection of an interest in the land can extend further than actual occupation] is now settled by the wording of para 2: the overriding interest relates only to land over which there is actual occupation’ (emphasis added). Smith cites Chaudhary (n 19) but does not mention counsel’s argument that the wording of schedule 3 paragraph 2(1) leaves open the possibility that actual occupation and protection of an easement might not necessarily be coextensive. It should be noted, however, that Lloyd LJ’s positive reception of the broad interpretation was noted in ‘Sex, Lies and Land Registration’ [49] (n 27). [29] Abbey National Building Society v Cann [1991] 1 AC 56, 93. [30] Boland (n 14) (Lord Wilberforce). See also, Law Com No 271 para 8.22. [31] See, for example, Chaudhary (n 19), where the use of an external stairway to access an upstairs flat did not constitute actual occupation of the stairway. [32] LRA 2002, s 29(1) (emphasis added). [33] Ashburn (n 7). Of course, a new, direct interest can always be created by the words or conduct of the disponee. [34] Only schedule 3 paragraph 1 makes explicit reference to estates ‘in land’. Paragraph 3 makes no reference to the fact that an overriding interest must be proprietary. [35] See, inter alia, section 4(8)(a), section 5(2), section 33(c), section 42(4) and section 72(2), (3). [36] As would have been the case under the approach following Ferrishurst (n 8). [37] In addition to the likely influence of Ashburn (n 7), discussed below. [38] As mentioned above, this is unnecessary, since section 29(1) already qualifies an ‘interest’ as being ‘any interest affecting the estate’. [39] Of course, it might be simpler to refer to ‘A proprietary interest belonging at the time of the disposition to a person in actual occupation, so far as he is in actual occupation of the land, except for—’. However, the term ‘proprietary interest’ is unknown to the LRA 2002.Therefore, the Law Commission, although it uses the term in the Bill and Accompany Commentary to the LRA 2002 (see Law Com No 271, para 2.18), may have wanted to avoid introducing it into the Act here. [40] Thompson (n 4). [41] Because neither party advanced the interpretation favoured by Lewison J and because the leading commentators were against it, Lewison J ‘le[ft] the point to a case in which it needs to be decided’: ibid [126]. [42] ibid [29]. [43] ibid [124]. [44] As Lewison J recognised, ‘As written, the phrase can be read as tying the ‘belonging’ to the date of the disposition, while leaving at large the date of actual occupation’ (emphasis added): ibid [125]. [45] In addition to what follows, see, for example, Ruoff and Roper (n 29) [17.013]: ‘it is not clear that the LRA 2002 was meant to alter the principle established by Abbey National v Cann. In any event, given that the changes made by the LRA 2002 were designed to ensure that actual occupation was discoverable by a potential purchaser before he completed his purchase, there is nothing to be gained by requiring actual occupation at the date of registration save to provide a fortuitous and unmerited lifeline for a purchaser otherwise caught by discoverable actual occupation at the time of completion.’ See also Martin Dixon, Modern Land Law (Routledge 2021) 64; Ben McFarlane, Nicholas Hopkins, and Sarah Nield, Land Law: Text, Cases & Materials (4th edn, Oxford University Press 2018) 627; and Emma Lees, The Principles of Land Law (1st edn, Oxford University Press 2020) 475. Contrast Barbara Bogusz, ‘Defining the scope of actual occupation under the LRA 2002: some recent judicial clarification’ (2011) 4 Conveyancer & Property Lawyer 268–284, 272. [46] Lees (n 46) 272. [47] Ashburn (n 7) 28F (emphasis added). The first sentence in this quote is cited above in relation to the case law pre-LRA 2002. [48] As well as the Law Commission’s explicit reference to Ashburn in its proposal, which is discussed in further detail below. [49] Law Commission and Scottish Law Commission, The Interpretation of Statutes (Law Com No 21 and Scot Law Com No 11, 1969) para 52. [50] Pepper (Inspector of Taxes) Respondent v Hart Appellant [1993] AC 593, 635 (Lord Browne-Wilkinson). See also R v Secretary of State for Transport, Ex parte Factortame Ltd [1990] 2 AC 85. Here the House of Lords had regard to a Law Commission report when ascertaining Parliamentary intention from the fact that Parliament failed to implement one of the recommendations of the Law Commission. [51] Law Com No 271, para 8.55. [52] ibid. [53] Law Com No 271, para 8.56. [54] ibid paras 8.56–8.58. [55] Law Com No. 271, para 8.58. [56] ibid. [57] ibid. [58] ibid. [59] ibid. [60] ibid para 8.1. [61] The uncertainty generated by the broad approach is discussed in greater detail below when considering the policy reasons weighing against the adoption of the broad interpretation. In this context, the uncertainty of the broad approach is not being criticised in its own right. Instead, the uncertainty is being raised as evidence in support of the proposition that the Law Commission did not have the broad interpretation of schedule 3 paragraph 2 in mind when drafting the statute. [62] It is true that some ambiguity also exists with respect to what amounts to actual occupation of the ‘whole’ under the interpretation in Ashburn (n 7) (and under the narrow approach). However, if protection is coextensive with actual occupation, this simply becomes a question of whether the whole plot of land is, in fact, occupied. The courts are very experienced in answering this kind of question; indeed, the question whether a plot of land is ‘occupied’ is the question at the core of schedule 3 paragraph 2. Smith (n 29) notes that it ‘remains probable that actual occupation of an entire plot does not require physical occupation of every inch of it’: 273. [63] Law Com No 271, para 1.5. [64] ibid para 1.9. [65] Counsel for Chaudhary seemed to suggest that the overlap in purpose and use between the balcony and the stairway brought the interest in the latter within the scope of the protection afforded by schedule 3 paragraph 2(1): Chaudhary (n 19) [35].

In law schools as well as political science and history classes, students are generally taught that when the Supreme Court decides a constitutional issue it delivers the final word unless the Court changes its position. That is the prominent theory. In 1953, Justice Robert Jackson promoted the doctrine of judicial finality by making a statement that is often cited: ‘We are not final because we are infallible, but we are infallible only because we are final’.[1] Perhaps a clever and witty turn of phrase but it advances a claim unsupported by facts. What has occurred from 1789 to the present time is not judicial finality but an ongoing dialogue among all three branches of the national government, the states, scholars, and the general public. On occasion, members of the Supreme Court will acknowledge that errors and misconceptions can occur in the judicial process. Chief Justice William Rehnquist spoke bluntly in 1993: ‘It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible’.[2] The person who should have understood that point is Robert Jackson. In 1940 the Court upheld a compulsory flag-salute with a strong majority of 8 to 1.[3] The final word? No. The decision was subject to such criticism from the public and scholars that three Justices in the majority (Hugo Black, William Douglas. and Frank Murphy) announced two years later that the decision was wrongly decided.[4] That reduced the majority to 5-4. Two of the Justices in the 8-1 majority retired and their replacements joined the four Justices to produce a 6-3 decision in 1943 reversing the 1940 decision.[5] Who wrote the majority opinion in 1943? It was Robert Jackson. Early Precedents The claim of judicial finality appears in a unanimous decision by Chief Justice John Marshall in McCulloch v. Maryland (1819), which held that Congress possessed an implied power to create a national bank. He said if the case had to be decided ‘by this tribunal alone can the decision be made’. On the Supreme Court ‘has the constitution of our country devolved this important duty’.[6] He concluded that the statute to create the Bank of the United States ‘is a law made in pursuance of the constitution, and is a part of the supreme law of the land’.[7] The fact that Congress created the Bank and the Supreme Court upheld it did not prevent the elected branches from reaching a different conclusion a few decades later. On 10 July 1832, President Andrew Jackson vetoed a bill to restore the U.S. Bank. While admitting that the bill had some positive features and had gained support from the Supreme Court, he noted the mixed history of the Bank: Congress favoring it in 1791, voting against it in 1811 and 1815, but supporting it in 1816.[8] As to the decision in McCulloch, he denied that the Court’s ruling, even if it ‘covered the whole ground of this act’, ought ‘to control the coordinate authorities of this government’. Congress, the President, and the Supreme Court ‘must each for itself be guided by its own opinion of the Constitution’. A public officer who takes an oath to support the Constitution ‘swears that he will support it as he understands it, and not as it is understood by others’. The opinion of judges ‘has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both’.[9] Congress did not override Jackson’s veto. Aware of Jackson’s action, John Marshall had full appreciation of the degree to which the elected branches could reverse constitutional decisions by the Supreme Court. The overriding picture was a broad and open dialogue among the three branches of government, the general public, and scholars. Marshall passed away on 6 July 1835. Three-Branch Interpretations The pattern of all three branches sharing constitutional interpretation continued in subsequent years. An interesting example is the effort of Congress in 1916 to pass legislation to regulate child labor. The statute prohibited the shipment in interstate or foreign commerce of any article produced by children within specified age ranges: under the age of sixteen for products from a mine or quarry, and under the age of fourteen from any mill, cannery, workshop, factory, or manufacturing establishment.[10] Two years later the Supreme Court, divided 5-4, struck down the statute as unconstitutional.[11] The Court claimed that the steps of ‘production’ and ‘manufacture’ of goods were local in origin and therefore not part of the ‘commerce’ among the states that would be subject to regulation by Congress. To the Court, although child labor might be harmful the goods produced from their labor ‘are of themselves harmless’.[12] The last word? Not at all. Members of Congress did not accept the Court’s ruling as final. Instead, they decided to pass legislation to regulate child labor through the taxing power. A federal excise tax would be levied on the net profit of persons employing child labor within prohibited ages. By a vote of 8 to 1, the Court struck down the new child labor law.[13] The end of this dispute? No. Congress passed a constitutional amendment in 1924 to support its power to regulate child labor but by 1937 only twenty-eight of the necessary thirty-six states had ratified it.[14] Although the Supreme Court had twice struck down child-labor statutes, Congress in 1938 again passed legislation to regulate this issue. During debate, lawmakers did not bow down to the doctrine of judicial finality.[15] In 1940, a federal district court in Georgia held the child-labor statute unconstitutional because the activity within the state was not ‘interstate commerce’ subject to the control of Congress. The court accepted the Supreme Court’s position in Hammer v. Dagenhart that the ‘manufacture’ of goods is not commerce.[16] In 1941, a thoroughly reconstituted (and chastened) Supreme Court not only upheld the new statute governing child labor but did so unanimously. A brief opinion by Justice Harlan Fiske Stone noted that while manufacture ‘is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce’.[17] He proceeded to say that Dagenhart was ‘novel when made and unsupported by any provision of the Constitution’.[18] Quite extraordinary language! A Supreme Court opinion issued without any support in the Constitution. In using this language, Stone repudiated not only the doctrine of judicial supremacy but the assertion of judicial infallibility. To him, judgments on what goods to exclude from interstate commerce—considered injurious to the public health, morals, or welfare—are reserved to the elected branches, not to the judiciary.[19] The motive and purpose of a regulation on interstate commerce ‘are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control’.[20] Judicial Errors that Inflate Presidential Power In its decisions, the Supreme Court has often promoted independent presidential power in external affairs by relying on serious misconceptions. A prime example is the Curtiss-Wright case of 1936. The core issue was whether Congress could delegate to the President certain powers in the field of international relations. In 1934, Congress authorized the President to prohibit the sale of arms in the Chaco region in South America whenever he found ‘it may contribute to the reestablishment of peace’ between belligerents.[21] The issue was legislative, not executive, power. When President Franklin D. Roosevelt imposed the embargo he relied exclusively on statutory authority. His proclamation prohibiting the sale of arms and munitions began: ‘NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United States of America, acting and by virtue of the authority conferred in me by the said joint resolution of Congress…’.[22] On what possible grounds could the Supreme Court two years later discover exclusive and independent powers for the President? The answer: a total misconception of a speech delivered by John Marshall when he served in the House of Representatives in 1800. At no time in the speech did he claim for the President some type of exclusive and independent power over external affairs. The year 1800 marked an election contest between President John Adams and Thomas Jefferson. In the House, supporters of Jefferson argued that Adams be either impeached or censured for turning over to England an individual charged with murder. Because the case was already pending in an American court, some lawmakers wanted to sanction Adams for encroaching upon the judiciary and violating the doctrine of separation of powers. A House resolution rebuked Adams for interfering with judicial decisions.[23] Much of the issue depended on the nationality of the person released to the British. The House resolution stated: ‘it appears to this House that a person, calling himself Jonathan Robbins, and claiming to be a citizen of the United States’, was held on a British ship and committed to trial in the United States ‘for the alleged crime of piracy and murder, committed on the high seas, on board the British frigate Hermione’.[24] Notice the vague language: ‘it appears’, ‘calling himself’, and ‘claiming to be’. In fact, Robbins was an assumed name. The individual was actually Thomas Nash, a native Irishman.[25] Marshall took the floor to methodically shred the move for impeachment or censure. He pointed out that the Jay Treaty with England contained an extradition provision in Article 27, directing each country to deliver up to each other ‘all persons’ charged with murder or forgery.[26] Nash, being British, would be turned over to England for trial. President Adams was not attempting to make foreign policy unilaterally. He was carrying out a treaty and fulfilling his Article II, Section 3, authority to take care that the laws, including treaties, be faithfully executed. Under Article VI of the Constitution, all treaties ‘shall be the supreme Law of the Land’. In the course of delivering his speech, Marshall added this sentence: ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations’.[27] The phrase ‘sole organ’ is ambiguous. ‘Sole’ means exclusive but what is ‘organ’? To Marshall, it is simply the President’s duty to communicate to other nations U.S. policy decided by the elected branches, including provisions in treaties. Marshall was merely defending Adams for carrying out the extradition provision in the Jay Treaty. After Marshall completed his presentation, Jeffersonians found his argument so tightly reasoned that they decided to cease any effort to punish Adams. Despite the clarity of this issue regarding Marshall’s intent to defend Adams, the Supreme Court completely misread Marshall’s reference to the President as ‘sole organ’. Writing for the Court, Justice George Sutherland added pages of dicta (judicial comments that have no bearing on the issue before a court) that not only misrepresented Marshall’s speech but offered judicial support for independent presidential power in external affairs. Although President Roosevelt explained that he carried out the 1934 statute by relying solely on authority delegated to him, Sutherland announced that the President in the field of international relations possessed ‘plenary and exclusive power over external affairs’, an argument that not only exceeds what Marshall argued in his speech but violates express language in the Constitution. Anyone reading the Constitution would understand that the Framers did not concentrate all powers of external affairs in the President. Sutherland added not only dicta but erroneous dicta. Sutherland inserted another error in Curtiss-Wright by claiming that the Constitution commits treaty negotiation exclusively to the President: ‘He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress is powerless to invade it’.[28] That was pure dicta. Nothing in the case before the Supreme Court had anything to do with treaties or treaty negotiation. It was not merely dicta. It was erroneous. To cite persuasive evidence for this error would be a book published in 1919 by someone who had served in the U.S. Senate. He explained how Senators regularly participated in treaty negotiation and that Presidents acceded to this ‘practical construction’. As the book notes, the right of Senators to participate in treaty negotiation ‘has been again and again recognized and acted upon by the Executive’. How would Sutherland be aware of this book? He was the author.[29] Moreover, Presidents have invited members of the House of Representatives to participate in treaty negotiation as a means of building political support for authorization and appropriation bills needed to implement treaties.[30] Here is another example of Supreme Court Justices adding not only dicta to their decisions but erroneous dicta. A Broad Dialogue Corrections in constitutional positions are often required to take account of shifts in public attitudes. In a book published in 1962, Alexander Bickel noted that the process of developing constitutional values in a democratic society ‘is evolved conversationally not perfected unilaterally’.[31] A study published in 1989 by Thomas Marshall analyzed the impact of public opinion on the Supreme Court and concluded that the Court ‘appears to enjoy an enviable position as a policy maker’ because overriding the Court by constitutional amendment ‘requires cumbersome, time-consuming efforts, and very few attempts have ever succeeded’.[32] In a book published by Princeton University Press in 1988, I offered my views on Constitutional Dialogues: Interpretation as Political Process. I concluded that the belief in judicial supremacy ‘imposes a burden that the Court cannot carry. It sets up expectations that invite disappointment if not disaster’.[33] Court decisions ‘are entitled to respect, not adoration. When the Court issues its judgment we should not suspend ours’.[34] Judicial review fits our constitutional system because we like to fragment power through a system of checks and balances. This ‘very preference for fragmented power denies the Supreme Court an authoritative and final voice for deciding constitutional questions’.[35] On the back cover of this book are three statements promoting my book. One is by Ruth Bader Ginsburg when she served on the D.C. Circuit Court. She agreed that constitutional law ‘neither begins nor ends with Supreme Court decisions’. Multiple actors in the political system participate, underscoring ‘the colloquy or interplay constantly at work among the people, their elected representatives, and appointed judges in the joint enterprise of constitutional interpretation’. After her nomination to the Supreme Court, she offered this statement on 20 July 1993 to the Senate Judiciary Committee: ‘Justices do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the President, the states, and the people’.[36] After being confirmed as a Supreme Court Justice, Ginsburg often underscored how willing she was to reject the notion of judicial finality. In 2007 the Court decided the case of Lilly Ledbetter who had filed a lawsuit against Goodyear Tire after learning that she was being paid less than men for doing the same work. It took her two decades to learn that fact. In July 1998, she filed a formal charge of sex discrimination under Title VII and also a claim under the Equal Pay Act of 1963. Writing for a 5-4 Court, Justice Samuel Alito agreed with the Eleventh Circuit in rejecting Ledbetter’s complaint.[37] The Court said she should have file her case within 180 days of each alleged discriminatory pay action, but she did not know of Goodyear’s actions against her until two decades later. In a dissent joined by Stevens, Souter, and Breyer, Ginsburg noted the disparity between Ledbetter’s monthly salary as area manager and those of male counterparts at the end of 1997. The latter group ranged from a high of $5,236 to a low of $4,286. Her monthly salary for that time period was $3,727. As for the failure of Ledbetter to file discriminatory charges before 1998, Ginsburg explained that Goodyear Tire had withheld comparative pay information from her. Recalling the Civil Rights Act of 1991 that overturned in whole or part nine decisions of the Supreme Court, Ginsburg remarked: ‘Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII’. She made clear that a decision by the Supreme Court was not necessarily the final word. The elected branches could now enter the picture to reverse the Court. The Court issued its decision on 29 May 2007. In response, Senator Ted Kennedy said the Court had ‘undermined a core protection’ of Title VII of the Civil Rights Act of 1964.[38] In late July, the House of Representatives debated the Lilly Ledbetter Fair Pay Act to reverse the Court’s decision. Representative Jerrold Nadler of New York, objecting that Goodyear could pay her less just because she was a woman, offered this response: ‘Once again, Congress must correct the Supreme Court and instruct it that when we said discrimination in employment was illegal, we meant it, and we meant for the court to enforce it’.[39] By a vote of 225 to 199, the House passed the Ledbetter bill.[40] After the Senate filibustered the bill, no further action was taken until early 2009 when President-elect Barack Obama was poised to occupy the White House. This time the House passed the Ledbetter bill by a vote of 247-171.[41] The Senate debated the bill on 22 January after Obama had taken office. The bill passed the Senate 61-36. The House voted 250-177 to support the Senate bill. As enacted, the bill provides that an unlawful employment practice occurs when a discriminatory compensation decision is adopted. Nothing in the statute limits an employee’s right to challenge an unlawful employment practice.[42] Discriminatory actions carry forth in each paycheck, allowing women to file a complaint in a timely manner for relief. A congressional statute overrode a Supreme Court decision. Japanese-American Cases In its decisions in Hirabayashi (1943) and Korematsu (1944), the Supreme Court upheld actions against Japanese-Americans to prosecute them for violating a curfew order and to place them in detention camps because of their race. Although deficiencies were discovered with both decisions, not until Trump v. Hawaii in 2018 did the Supreme Court announce that Korematsu was ‘gravely wrong the day it was decided’. If Korematsu was that deficient, why did it take the Court 74 years to admit it? And what of Hirabayashi? Is that still good law? The record demonstrates not only a capacity of the Supreme Court to issue erroneous decisions but an unwillingness to correct them. On 25 February 1942, President Franklin D. Roosevelt issued Executive Order 9066, leading to a military curfew that covered all persons of Japanese descent within a designated military area.[43] A month later, Congress passed legislation to ratify the executive order.[44] Gordon Hirabayashi, a U.S. citizen of Japanese descent, was prosecuted in federal district court for violating the curfew order. A unanimous Supreme Court upheld the government’s policy.[45] The Court stated that a decision by General John L. DeWitt, who established the curfew, ‘involved the exercise of his informed judgment’.[46] In fact, his judgment was not professionally informed. He believed that all Japanese-Americans, by race alone, are disloyal.[47] Judicial deference to military judgments might be acceptable but not deference to pure racism. Roosevelt’s executive order led to the transfer of Americans of Japanese descent to a number of relocation centers, imprisoned solely for reasons of race. Divided 6-3, the Supreme Court supported these detention camps in various parts of the western states. Writing for the majority, Justice Black offered this judgment: ‘In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did’.[48] What ‘principles’ were announced in Hirabayashi? Answer: the Court should defer to whatever the elected branches decided to do. The guiding value was not protection of constitutional principles but judicial deference to Congress and the President. This decision did yield three dissents. Justice Murphy objected that the exclusion order was based on an ‘erroneous assumption of racial guilt’ included in General DeWitt’s report, which described all individuals of Japanese descent as ‘subversives’ who belonged to ‘an enemy race’ and whose ‘racial strains are undiluted’. Murphy refused to accept this ‘legalization of racism’. The dissent by Justice Jackson described the administration’s position as ‘an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents to which he had no choice, and belongs to a race from which there is no way to resign’. Those two decisions produced a number of critical reviews. In an article published in 1945, Eugene Rostow objected that the treatment of Japanese Americans had been ‘hasty, unnecessary, and mistaken’, leading to actions that produced ‘both individual injustice and deep-seated social maladjustments of a cumulative and sinister kind’.[49] In making his recommendations to the Secretary of War on 14 February 1942, General DeWitt referred to the Japanese as ‘an enemy race’ whose ‘racial strains are undiluted’.[50] An article published in 1945 by Nanette Dembitz objected to the Court’s deference to military judgments over civilians. Automatic judicial acceptance of military judgment ‘will stand as an insidious precedent, unless corrected, for the emergencies of peace as well as of war’.[51] On 18 December 1944, the Supreme Court issued an interesting decision involving Mitsuye Endo, an American citizen of Japanese descent. She was ‘relocated’ to the Tule Lake Center and later transferred to Utah Center. A unanimous Court noted that the Justice Department and the War Relocation Authority conceded she was ‘a loyal and law-abiding citizen’,[52] thereby rejecting the claim that all Japanese-Americans are by race disloyal. The Court noted: ‘A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind, not of race, creed, or color. He who is loyal is by definition not a spy or saboteur’.[53] Although that judgment undermined both Hirabayashi and Korematsu, the Supreme Court chose to leave those decisions untouched. The belief in judicial finality allowed two unprincipled decisions to remain in place. On 20 February 1976, President Gerald Ford issued a proclamation that apologized for the treatment of Japanese Americans during World War II, resulting in the ‘uprooting of loyal Americans’.[54] A clear message that repudiated President Roosevelt’s actions and invited the Supreme Court to reconsider Hirabayashi and Korematsu. No such steps were taken. In 1980, Congress established a commission to determine the wrong done by Roosevelt’s order. The commission’s report, issued in December 1982, stated that the order was not justified by military necessity. Instead, the factors that led to the decisions ‘were race prejudice, war hysteria, and a failure of political leadership’. In the commission’s judgment, ‘the decision in Korematsu lies overruled in the court of history’.[55] Yet the Supreme Court took no steps to overrule either Hirabayashi or Korematsu. Results in the lower courts were more promising. In the 1980s, both Hirabayashi and Korematsu returned to court after newly discovered documents revealed the extent to which executive officials had deceived federal courts and the general public. Both of their convictions were overturned in the lower courts.[56] The Justice Department chose not to appeal either case. By 1988, the Supreme Court had abundant evidence that its decisions in the two cases had lost any credibility. Yet the Court chose not to offer any public reevaluation of those rulings. A step toward correcting the errors in Hirabayashi and Korematsu was taken on 20 May 2011, when Acting Solicitor General Neal Katyal publicly stated that Solicitor General Fahy in the two Japanese-American cases failed to inform the Supreme Court of evidence that undermined the rationale for internment.[57] Among other defects, Fahy did not acknowledge that the Federal Bureau of Investigation and the Federal Communications Commission had already discredited reports that Japanese Americans had used radio transmitters to communicate with enemy submarines off the West Coast. Korematsu was finally the subject of Supreme Court rebuke in 2018. No mention was made of Hirabayashi. Why did the Court take more than seven decades to partly correct its record? In Trump v. Hawaii, issued on 26 June 2018, the Court split 5-4 in upholding a travel ban ordered by President Trump in September 2017. Writing for the majority, Chief Justice John Roberts concluded that the executive branch had offered sufficient national security justification for its actions.[58] Toward the end of his opinion, he noted that the dissent by Justice Sotomayor, joined by Justice Ginsburg, had repudiated Korematsu. To Roberts, whatever ‘rhetorical advantage the dissent may see in doing so, Korematsu had nothing to do with this case’. After having apparently excluded any consideration of that decision, Roberts proceeded to find serious flaws with it. In his judgment, the forcible relocation of Japanese Americans ‘to concentration camps, solely and explicitly on the basis of race’ lacked any application to ‘a facially neutral policy denying certain foreign nationals the privilege of admission’. Yet he regarded Trump’s travel ban as ‘well within executive authority’. After explaining the difference between Korematsu and the travel ban case, he stated the following: ‘The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution’, 323 U.S., at 248 (Jackson, J., dissenting.)’ If Korematsu was wrong ‘the day it was decided’, why did it take the Court until 2018 to make that admission? Interestingly, Roberts said the decision was overruled long ago ‘in the court of history’. Indeed, Hirabayashi and Korematsu were repudiated by Presidents Ford and Carter, Congress, scholars, and the lower courts in the 1980s that reversed the convictions of Hirabayashi and Korematsu. From 1944 forward, the Supreme Court had abundant evidence from presidential statements, a congressional commission, the 1988 statute that supported the commission’s findings, and lower court rulings in the 1980s that the executive branch had deceived the judiciary and withheld vital documents. After the Supreme Court in 2018 decided to discredit Korematsu, why did it not also repudiate Hirabayashi? Is the latter still ‘good law’? It was evident that both rulings were defective because the executive branch relied on the belief that all Japanese Americans, including those who were U.S. citizens, were disloyal solely on grounds of race. Moreover, it appears that the Court in 2018 might not have admitted error in Korematsu had Justice Sotomayor made no mention of that case in her dissent. It is remarkable that the Court could finally repudiate Korematsu but say nothing about Hirabayashi. Legislative Vetoes: Invalidated, They Continue Even though we associate the word ‘veto’ with the President, the two elected branches have developed a process that allowed agencies to seek permission from the Appropriations Committees (usually its subcommittees) whenever they felt a need to move funds from one area to a more pressing need. This process is called ‘reprogramming’ and a ‘legislative veto’. As a staff member of the Library of Congress, I learned a lot about this arrangement by working closely with the Appropriations Committees. The legislative veto served the needs of both branches. In the early 1980s, the Supreme Court considered a case called INS v. Chadha, which involved a legislative veto available to either house of Congress. With this decision pending, I published an article in the Washington Post called ‘Congress Can’t Lose on Its Veto Power’. It predicted that if the Court attempted to strike down the legislative veto, Congress would nevertheless remain ‘knee deep in administrative decisions, and it is inconceivable that any court or any president can prevent it. Call it supervision, intervention, interference, or plain meddling, Congress will find a way’.[59] Members of Congress placed my article in the Congressional Record five times, leading to discussion during floor debate.[60] The legislative veto in the reprogramming process would survive any Supreme Court decision because both of the elected branches understood the benefits of the process, something the Supreme Court failed to comprehend.[61] In what was widely considered a major separation of powers decision, the Supreme Court on 23 June 1983, struck down a one-house veto over the decision of the Attorney General to allow a deportable alien, Jagdish Rai Chadha, to remain in the United States. The breadth of the 7-2 decision appeared to invalidate all versions of the legislative veto. Writing for the Court, Chief Justice Burger regarded the legislative veto as unconstitutional because it violated both the principle of bicameralism and the Presentation Clause of the Constitution, which requires all bills to be submitted to the President. In his judgment, whenever congressional action has the ‘purpose and effect of altering the legal rights, duties, and relations of persons’ outside the legislative branch, Congress must act through both houses in a bill presented to the President.[62] This position by Burger was far too broad. As the Justice Department has acknowledged in a memo prepared by the Office of Legal Counsel, each house of Congress may alter the legal rights and duties of individuals outside the legislative branch without resorting to bicameralism and presentment. One example is issuance of committee subpoenas to testify and bring requested documents to a hearing.[63] Neither agency officials nor lawmakers would be satisfied with the model of separation of powers presented in Chadha. Deficiencies in the Court’s ruling were pointed out by Justice Lewis F. Powell, Jr. in his concurrence and in dissenting opinions by Justices Byron White and William Rehnquist.[64] Despite the Court’s ruling, the elected branches agreed to continue various types of legislative veto. The Court’s theory of government was unacceptable to the elected branches. Agency officials and lawmakers found the Court’s reasoning in Chadha far too static and artificial. The conditions that spawned the committee veto over reprogramming had not changed. Executive officials still wanted substantial latitude to administer delegated authority. Lawmakers were determined to maintain control without having to pass another statute. An article in the New York Times in 1989 explained how the legislative veto ‘goes on and on’ in the years following Chadha, underscoring the degree to which the Court lacked an understanding of the legislative process.[65] Regardless of the Court’s decision in Chadha, the reprogramming process continues as before. Agency officials seek approval from designated committees and subcommittees before funds can be shifted to another purpose. In a book published in 2015, former Secretary of Defense Robert Gates describes a situation he faced in 2011, wanting to reprogram money to an urgent need. To carry out that purpose, he needed approval from four committees in the House and Senate. He was able to reach a compromise to move the funds.[66] In another memoir from the Obama administration, Leon Panetta reflected on his years as CIA Director. He explained how he met with congressional committees and legislative leaders to gain support for reprogramming funds from one purpose to another.[67] In the years following Chadha, Presidents would at times in signing a bill object to the presence of committee vetoes. In signing a bill on 21 December 2000, President Bill Clinton offered this comment about provisions in the legislation ‘that purport to condition my authority or that of certain officers to use funds appropriated by the Act on the approval of congressional committees’. He said he would treat such provisions ‘to require notification only, since any other interpretation would contradict the Supreme Court ruling in INS v. Chadha’.[68] Do we take that as evidence that the Clinton administration refused to abide by the reprogramming process followed decade after decade? No. Someone with no understanding of how agency officials and committees of jurisdiction jointly agree to move funds to meet emerging needs placed that language in a signing statement and Clinton failed to understand that no administration bowed down to Chadha. Presidents say many foolish things in signing statements. In point of fact, executive agencies continued to seek committee approval to reprogram funds. Reprogramming instructions released by federal agencies are explicit about the need to obtain committee approval.[69] Just because the Supreme Court in Chadha did not understand how government operates does not require executive agencies to embrace judicial ignorance. Neither Congress nor executive agencies want the artificial model announced by the Court. Important accommodations need to be fashioned by committees and agency officials. In one form or another, legislative vetoes will remain an important process for reconciling legislative and executive interests.[70] The ‘Sole Organ’ Doctrine Returns Litigation starting in the George W. Bush administration prompted the Supreme Court to review some of the erroneous dicta about presidential power found in the Curtiss-Wright case of 1936. The story begins with legislation passed by Congress in 2002 that involved issuance of a passport to a U.S. citizen born in the city of Jerusalem. Under that statute, the Secretary of State ‘shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel’.[71] In signing the bill, President Bush objected that several provisions ‘impermissibly interfere with the constitutional functions of the presidency in foreign affairs, including provisions that purport to establish foreign policy that are of significant concern’. Three times he referred to ‘the unitary executive branch’. He expressed particular constitutional concern about Section 214 of the bill.[72] By referring to the President’s constitutional authority to ‘speak for the Nation in international affairs’, he implicitly, if not explicitly, relied on Curtiss-Wright dicta, much of it erroneous. According to Bush, Section 214 would ‘impermissibly interfere with the President’s constitutional authority to formulate the position of the United States’. However, the process of creating public policy, in both internal and external affairs, is a constitutional duty assigned to both of the elected branches. In his signing statement, Bush asserted that Section 214 interfered with the President’s authority to ‘determine the terms on which recognition is given to foreign states’, suggesting that the recognition power is vested solely in the President under Article II of the Constitution. Scholars have pointed out that there is no evidence that the Framers placed the recognition power in the President and ‘certainly not a power that is plenary in nature’.[73] Instead, Congress has also exercised the recognition power and Presidents have acquiesced in that legislative judgment. Executive recognition decisions ‘are not exclusive but are subject to laws enacted by Congress’.[74] Those issues were explored in a number of federal cases from 2006 to 2012.[75] In a decision issued on 23 July 2013, the D.C. Circuit concluded that the President ‘exclusively holds the constitutional power to determine whether to recognize a foreign government’ and that Section 214(d) of the 2002 statute ‘impermissibly intrudes on the President’s recognition power and is therefore unconstitutional’.[76] In seeking legal and historical precedents, the court turned to Supreme Court decisions, relying heavily on the sole-organ doctrine in the Curtiss-Wright case. The D.C. Circuit said the Supreme Court in that case ‘echoed’ the words of Congressman John Marshall by describing the President as the ‘sole organ of the nation in its external relations, and its sole representative with foreign nations’.[77] The court echoed the words of John Marshall but not his meaning. The D.C. Circuit demonstrated no understanding that the sole-organ doctrine was not merely dicta but erroneous dicta. The court said that ‘carefully considered’ language of the Supreme Court, ‘even if technically dictum, generally must be treated as authoritative’.[78] Nothing in Curtiss-Wright about the sole-organ doctrine was carefully considered. It wholly distorted what Marshall said. This decision by the D.C. Circuit about the sole-organ doctrine prompted me to file an amicus brief with the Supreme Court on 17 July 2014. The summary to the brief explained that the purpose of John Marshall’s speech in 1800 was to defend President Adams for carrying out a treaty provision and that nothing in the speech promoted independent and exclusive presidential authority in external affairs.[79] I pointed out that scholars had regularly identified defects in the dicta that Justice Sutherland had added to Curtiss-Wright ‘but the Supreme Court has yet to correct his errors. It is time to do so’.[80] Erroneous dicta in Curtiss-Wright ‘have misguided federal courts, the Justice Department, Congress, some scholarly studies, and the general public’.[81] While the Supreme Court is in session, the National Law Journal runs a column called ‘Brief of the Week’, selecting a particular brief out of the thousands filed each year. On 3 November 2014, it selected my brief in Zivotofsky. The column carried a provocative but accurate title: ‘Can the Supreme Court Correct Erroneous Dicta?’[82] On 8 June 2015, the Supreme Court reviewed the brief submitted by Secretary of State John Kerry, who urged the Court to define executive power over foreign affairs in broad terms, relying on Curtiss-Wright language that described the President as ‘the sole organ of the federal government in the field of international relations’.[83] In response, the Court said it ‘declines to acknowledge that unbounded power’, stating that Curtiss-Wright ‘does not extend so far as the Secretary suggests’.[84] In its brief rejection of Kerry’s position, the Court never clarified how the statutory issue at question had anything to do with the President’s recognition power. Moreover, it did not acknowledge that when the D.C. Circuit upheld the administration it relied five times on the erroneous sole-organ dicta in Curtiss-Wright. Readers would not understand the legal significance of the sole-organ doctrine in this case. Also, the Court did not explain at all how Justice Sutherland flagrantly misinterpreted John Marshall’s speech. Why ignore such basic and important questions? Was it considered inappropriate to point an accusing finger at Justice Sutherland and how he and his colleagues failed to properly understand Marshall’s speech? Would that explanation discredit the Supreme Court as an institution capable of constitutional analysis? A frank discussion of Sutherland’s error would have properly alerted the D.C. Circuit and other courts to take special care when relying on dicta, particularly when the sole-organ doctrine had been repudiated by scholars for more than seven decades. Furthermore, the Court left in place Sutherland’s erroneous dicta about the President possessing sole power to negotiate treaties. It even added its blessing to that misconception, stating that the President ‘has the sole power to negotiate treaties, see United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 81 L.Ed. 255 (1936)’.[85] Not only can the Justice Department, reporters, and others continue to cite this erroneous dicta from Curtiss-Wright but they can refer to the Court’s fresh endorsement of a misconception. The Court failed to cite scholarly articles from 1938 to the present time that regularly attacked Curtiss-Wright for its errors about presidential power. The Court did cite a fine law review article by Michael Glennon on Curtiss-Wright published in 1988. However, it failed to mention what Glennon said about that case. In an extensive critique, he detailed the many errors and serious misconceptions, calling the decision an ‘extravagant scheme concocted by Justice George Sutherland’.[86] He proceeded to describe Sutherland’s opinion as ‘a muddled law review article wedged with considerable difficulty between the pages of United States Reports’.[87] Having rejected the sole-organ doctrine from Curtiss-Wright, the Court proceeded to create a substitute that promotes independent presidential power in external affairs. It began by stating that the recognition of foreign nations is a topic on which the federal government must ‘speak . . . with one voice’ and that voice ‘must be the President’s’.[88] According to the Court, between the two branches ‘only the Executive has the characteristic of unity at all times’.[89] Obviously that is an abstraction that has little to do with the record of Presidents. Various administrations regularly display inconsistency, conflict, disorder, and confusion. That is evident not only by studying particular Presidents but by reading memoirs published by top officials who highlight the infighting and disagreements within an administration, including in foreign affairs. To the quality of unity the Court identified four other qualities of the President: decision, activity, secrecy, and dispatch. It borrowed those four qualities from Alexander Hamilton’s Federalist No. 70.[90] On what grounds would the Court assume that unity plus those four qualities are inherently positive, justifying support for broad presidential power in external affairs? The quality of decision, activity, secrecy, and dispatch can certainly have negative consequences. One need only recall presidential initiatives from 1950 forward: Truman allowing U.S. troops in Korea to travel northward, provoking the Chinese to introduce their military forces in large numbers and resulting heavy casualties on both sides; Johnson’s decision to escalate the war in Vietnam; Nixon involved with Watergate and his eventual resignation; Reagan’s involvement in Iran-Contra that led to the prosecution of many officials and nearly to his impeachment; Bush in 2003 using military force against Iraq on the basis of six claims that Saddam Hussein possessed nuclear weapons, with all six claims found to be entirely empty; and Obama ordering military action against Libya in 2011, leaving behind a country broken legally, economically, and politically.[91] In an article published in 2015, Jack Goldsmith evaluated the Court’s decision in Zivotofsky, noting that until the Court released its opinion on Section 214(d) executive branch lawyers had to rely on ‘shards of judicial dicta, in addition to executive branch precedents and practices, in assessing the validity of foreign relations statutes thought to intrude on executive power’. But now these lawyers ‘have a Supreme Court precedent with broad arguments for presidential exclusivity in a case that holds that the President can ignore a foreign relations statute’.[92] Ironically, although the Court presumably dismissed the Curtiss-Wright sole-organ doctrine, it created a new model that strongly endorses independent presidential power in external affairs. Goldsmith points out that although the Court appeared to ‘distance itself’ from some parts of Curtiss-Wright by making statements about ‘presidential exclusivity’ and judicial ‘dicta’, it would be wrong to assume that Zivotofsky ‘expressly repudiates the Curtiss-Wright dicta’.[93] In various parts of the opinion, the Court affirmed ‘Curtiss-Wright’s functional approach to exclusive presidential power’.[94] Those who favor independent presidential power in external affairs will seek to exploit the Court’s ‘untidy reasoning’.[95] In another analysis of Zivotofsky, Esam Ibrahim points out that executive branch lawyers sought to exploit various dicta in Curtiss-Wright, including the sole-organ doctrine. Yet in supposedly raising questions about those dicta, the Court now added other dicta that have the potential for promoting independent presidential power in external affairs, such as attributing to the President such qualities as unity, decision, activity, secrecy, and dispatch. As Ibrahim notes. the dicta in Zivotofsky ‘may be even stronger precedent than Curtiss-Wright ever was’.[96] The Court’s ruling in 2015 is ‘probably going to replace Curtiss-Wright as support for broad inherent executive power’ in opinions issued by the Office of Legal Counsel.[97] In an article published in Constitutional Commentary in 2016, I discuss how erroneous dicta in both Curtiss-Wright and Zivotofsky have broadened presidential power in external affairs.[98] I begin by explaining how careless and mistaken judicial dicta can undermine constitutional government. I then focus on how Curtiss-Wright involved legislative, not presidential, power, and how scholars who studied Curtiss-Wright thoroughly repudiated Justice Sutherland for his ‘careless and erroneous understanding of the process of treaty negotiation’.[99] In a section on how the executive branch relies heavily on dicta in Curtiss-Wright to expand presidential power, I point out how Attorney General Robert Jackson in a book published in 1941 described Curtiss-Wright as ‘a Christmas present to the President’.[100] Although the Supreme Court in Zivotofsky seemed to discard the sole-organ doctrine, it allowed ‘other erroneous dicta’ in Curtiss-Wright to continue.[101] I conclude with this observation: ‘Because the majority opinion in Zivotofsky is in many areas carelessly drafted and analyzed, it will add unnecessary and unwanted confusion about the role of the two elected branches in foreign affairs, most likely advancing presidential power over that of Congress’.[102] Conclusions Scholars, attorneys, and reporters continue to endorse the doctrine of judicial finality, insisting that on constitutional matters the Supreme Court must have the last word. In a book published in 2012, Jeffrey Toobin concluded that a Supreme Court decision ‘interpreting the Constitution can be overturned only by a new decision or a constitutional amendment’.[103] Reporters for major newspapers often promote judicial finality. Adam Liptak, writing for the New York Times on 21 August 2012, concluded that ‘only a constitutional amendment can change things after the justices have acted in a constitutional case’.[104] Offering his views in the Washington Post on October 25, 2014, Robert Barnes wrote that Marbury v. Madison ‘established the court as the final word on the Constitution’.[105] The examples offered in this article promote a much broader dialogue in shaping constitutional values. The Court’s decision in McCulloch v. Maryland, upholding the U.S. Bank, was later reversed by President Jackson’s veto of a bill attempting to restore the U.S. Bank. The ‘last word’ on this constitutional matter came when Congress failed to override his veto. The fact that the Supreme Court in 1918 and 1922 twice struck down child labor legislation passed by Congress did not stop Congress from trying again in 1938. On that occasion a unanimous Court upheld the statute. What those cases underscore is not judicial finality but rather a broad public dialogue on constitutional issues. That view was underscored by Alexander Bickel’s book in 1962, stating that the process of developing constitutional values in a democratic society ‘is evolved conversationally not perfected unilaterally’.[106] During her appearance before the Senate Judiciary Committee on 20 July 1993, seeking confirmation as a Justice of the Supreme Court, Ruth Bader Ginsburg reinforced that point: ‘Justices do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the President, the states, and the people’.[107] A clear example of that position came in 2007 when the Supreme Court decided the Lilly Ledbetter case, blocking her right to seek justice in the courts. As explained earlier in this article, Ginsburg’s dissent urged Congress to pass legislation ‘to correct this Court’s parsimonious reading’ of sex discrimination policy. Within a few years Congress did precisely that. The doctrine of judicial finality is undermined by other examples in this article, including the Court’s record on the erroneous ‘sole organ’ doctrine in Curtiss-Wright and the Japanese-American cases. The record demonstrates that all three branches of government, at both the federal and state level, are capable of serious error. What is needed is a broad dialogue that continues to press for improvements and better understanding. The Supreme Court is not the Constitution. To treat the two as equivalent is to abandon individual responsibility, the system of checks and balances, and America’s quest for self-government. Supreme Court opinions are entitled to respect, not adoration. Just because the Court issues its judgment does not mean we should suspend ours. The record makes clear how often the Supreme Court commits errors.[108] J. Harvie Wilkinson III, a federal judge on the Fourth Circuit, published a book in 2012 that analyzes various doctrines used to interpret the Constitution: Originalism, Textualism, Minimalism, and the Living Constitution. He warned that these ‘cosmic’ theories produced a harmful effect by encouraging judicial activism, ‘taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive’.[109] The ‘great casualty’ of those theories ‘has been our inalienable right of self-governance’, encouraging an increase in ‘judicial misadventures’ in the years to come.[110] The Constitution, he stressed, ‘is not the courts’ exclusive property. It belongs in fact to all three branches and ultimately to the people themselves’.[111] He concluded that courts ‘are less adept than legislatures at assessing the precise content of society’s values’.[112] Louis Fisher Louis Fisher is visiting scholar at the William and Mary Law School. From 1970 to 2010 he served at the Library of Congress as senior specialist in separation of powers at Congressional Research Service and specialist in constitutional law at the Law Library of Congress. He has testified before congressional committees more than fifty times on a range of constitutional issues. Author of 32 books and more than 600 articles, many of his articles and congressional testimony are posted on his personal webpage at http://www.loufisher.org. [1] Brown v. Allen, 344 U.S. 443, 540 (1953). [2] Herrera v. Collins, 506 U.S. 390, 415 (1993). [3] Minersville School District v. Gobitis, 310 U.S. 586 (1940). [4] Jones v. Opelika, 316 U.S. 584, 624 (1942). [5] West Virginia State Board of Education v. Barnette, 319 U.S. 614 (1943). [6] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819). [7] ibid 424. [8] James D Richardson (ed), A Compilation of the Messages and Papers of the Presidents vol 3 1145. [9] ibid. [10] Public Law No. 64-249, 39 Stat. 675 (1916). [11] Hammer v. Dagenhart, 247 U.S. 251 (1918). [12] ibid 271-2. [13] Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). [14] John Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2002 (ABC-CLIO 2003) 63. [15] For details on this legislation, see John Fliter, Child Labor in America: The Epic Legal Struggle to Protect Children (University Press of Kansas 2018) 191-214; Louis Fisher, Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution (University Press of Kansas 2019) 98-99. [16] United States v. F.W. Darby Lumber Co., 32 F. Supp. 734, 736 (S.D. Ga. 1940). [17] United States v. Darby, 312 U.S. 100, 113 (1941). [18] ibid 116. [19] ibid 114. [20] ibid 115. [21] 48 Stat. 811 (1934). [22] ibid 1745. [23] 10 Annals of Cong. 533 (1800). [24] ibid 532. [25] ibid 515. [26] 8 Stat. 129 (1794). [27] 10 Annals of Cong. 613 (1800). [28] Curtiss-Wright Corp., 299 U.S. at 319, emphasis in original. [29] George Sutherland, Constitutional Power and World Affairs (Columbia University Press 1919) 123. [30] Louis Fisher, ‘Congressional Participation in the Treaty Process’ (1989) 137 U. Pa. L. Rev. 1511, 1517. [31] Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill 1962) 244. [32] Thomas Marshall, Public Opinion and the Supreme Court (Unwin Hyman 1989) 167. [33] Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton University Press 1988) 278. [34] ibid 279. [35] ibid. [36] Ruth Bader Ginsburg, My Own Words (Simon & Schuster 2016) 183. [37] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). For further details on this case, see Fisher (n 15) 75-78. [38] 153 Cong. Rec. 14530 (2007). [39] ibid 21432. [40] ibid 21929. [41] 155 Cong. Rec. 458-59 (2009). [42] Public Law No. 111-2, 123 Stat. 5 (2009). [43] 7 Fed. Reg. 1407 (1942). [44] 56 Stat. 173 (1942). [45] Hirabayashi v. United States, 320 U.S. 81 (1943). [46] ibid 103. [47] Hirabayashi v. United States, 627 F. Supp. 1445, 1452 (W.D. Wash. 1986). [48] Korematsu v. United States, 323 U.S. 214, 217-18 (1944). [49] Eugene V. Rostow, ‘The Japanese American Cases – A Disaster’ (1945) 54 Yale L. J. 489, 489. [50] ibid 520-21. [51] Nanette Dembitz, ‘Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions’ (1945) 45 Columbia L. Rev. 175, 239. [52] Ex parte Endo, 323 U.S. 283, 294 (1944). [53] ibid 302. [54] Proclamation No. 4417, 41 Fed. Reg. 7741 (Feb. 20, 1976). [55] Personal Justice Denied, Report of the Commission on Wartime Relocation and Internment of Citizens, December 1982, at 238. [56] Korematsu v. United States, 584 F. Supp. 1406 (D. Cal. 1984); Hirabayashi v. United States, 627 F. Supp. 1447 (W.D. Wash. 1986); Korematsu v. United States, 828 F.2d 591 (9th Cir. 1987). [57] Neal Katyal, ‘Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases’ The United States Department of Justice Archives (20 May 2011) accessed 6 June 2022. [58] Trump v. Hawaii, No. 17-965, argued 25 April 2018 and decided on 26 June 2018. [59] Louis Fisher, ‘Congress Can’t Lose on Its Veto Power: If the Supreme Court Blocks Its Use, the President is Likely to Be the One Hurt’ Washington Post (Washington, 21 Feb 1982) accessed 6 June 2022. [60] Fisher (n 15) 204. [61] For details on the growth of legislative vetoes, see ibid 204-15. [62] INS v. Chadha, 462 U.S. 919, 952 (1983). [63] ‘Constitutional Separation of Powers between Cong. and the President’ (1996) 20 Op. O.L.C. 138. [64] Fisher (n 15) 216-17. [65] Martin Tolchin, ‘The Legislative Veto: An Accommodation That Goes On and On’ New York Times (New York, 31 March 1989) A11. [66] Robert Michael Gates, Duty: Memoirs of a Secretary at War (WH Allen 2015) 513-14. [67] Leon Panetta, Worthy Fights: A Memoir of Leadership in War and Peace (Penguin 2015) 298-99. [68] Public Papers of the Presidents, 2000-2001, Book III, 2776. [69] Fisher (n 15) 220-1. [70] For additional studies on how the legislative veto continued after Chadha, see Daniel Paul Franklin, ‘Why the Legislative Veto Isn’t Dead’ (1986) 16 Pres. Stud. Q. 491; Louis Fisher, ‘The Legislative Veto: Invalidated, It Survives’ (1993) 56 Law & Contemporary Prob. 273; Darren A. Wheeler, ‘Implementing INS v. Chadha: Communication Breakdown?’ (2006) 52 Wayne L. Rev. 1185; Michael J. Berry, The Modern Legislative Veto: Macropolitical Conflict and the Legacy of Chadha (University of Michigan Press 2016); Louis Fisher, Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (University Press of Kansas 2017) 182-98. [71] 116 Stat. 1366, sec. 214(d) (2002). [72] Public Papers of the President, 2002, II, 1697-99. [73] Robert J. Reinstein, ‘Recognition: A Case Study on the Original Understanding of Executive Power’ (2011) 45 U. Rich. L. Rev. 801, 802. [74] Robert J. Reinstein, ‘Is the President’s Recognition Power Exclusive?’ (2013) 86 Temp. L. Rev. 1, 60. [75] Fisher (n 15) 112. [76] Zivotofsky v. Secretary of State, 725 F.3d 197, 220 (D.C. Cir. 2013). [77] ibid 211. [78] ibid 212, citing Overby v. Nat’l Ass’n of Letter Carriers, 595 F.3d 1290, 1295 (D.C. Cir. 2010). [79] Brief Amicus Curiae of Louis Fisher in Support of Petitioner, Zivotofsky v. Kerry, No. 13-628, U.S. Supreme Court, July 17, 2014, 2 accessed 6 June 2022. [80] ibid 2-3 [81] ibid 35. [82] Jamie Schuman, ‘Brief of the Week: Can the Supreme Court Correct Erroneous Dicta?’ (2014) Nat’l L. J., Nov. 3 accessed 6 June 2020. [83] Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2089 (2015). [84] ibid. [85] ibid 2086. [86] Michael J. Glennon, ‘Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright?’ (1988) 13 Yale J. Int’l L. 5, 11. [87] ibid 13. [88] Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. at 2086. [89] ibid. [90] ibid. [91] Louis Fisher, Presidential War Power (3rd edn, University Press of Kansas 2013) 100-3, 132-37, 209-32, 238-47. [92] Jack Goldsmith, ‘Zivotofsky II as Precedent in the Executive Branch’ (2015) 129 Harv. L. Rev. 112, 114. [93] ibid 129. [94] ibid 130. [95] ibid 146. [96] Esam Ibrahim, ‘The Dangers of Zivotofsky II: A Blueprint for Category III Action in National Security and War Powers’ (2017) 11 Harv. L. & Policy Rev. 585, 592. [97] ibid 593. [98] Louis Fisher, ‘The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky’ (2016) 31 Const. Commentary 149. [99] ibid 186. [100] ibid 201. [101] ibid 218. [102] ibid 219. [103] Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (Random House International 2012) 194. [104] Adam Liptak, ‘In Congress’s Paralysis, A Mightier Supreme Court’ New York Times (New York, 21 August 2012) A10. [105] Robert Barnes, ‘Addressing the Supreme Court with Fun’ Washington Post (Washington, 25 October 2014) A1. [106] Bickel (n 31) 244. [107] Ginsburg (n 36) 183. [108] Louis Fisher, ‘Correcting Judicial Errors: Lessons From History’ (2020) 72 Maine L. Rev. 1. [109] J. Harvie Wilkinson III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Oxford University Press 2012) 4. [110] ibid 9. [111] ibid 22. [112] ibid.

Lesia's poem No Place Like Home explores the shared human longing for a home, not only as a search for a refuge or place to settle, or a return to where one is from, but also as a feeling of belonging and rootedness. Lesia Daria is a writer, journalist, campaigner, and volunteer. She is a communications adviser at the Ukrainian Institute London, and in Surrey where she is active in her local community, she is helping Ukrainian refugees to settle into life in the UK. Previously Lesia worked as a journalist in Washington DC, Kyiv, London, and New York, and lived in Paris, Minsk, and Istanbul. She holds a BA from the University of Virginia and an MSc from the London School of Economics and Political Science.

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! 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 Appropriation of Iranian Rap Music and the Negotiation of its Legality Introduction No one knows about Amir Tataloo. Bahman Ghobadi’s film No One Knows About Persian Cats (2009) could be seen as a dynamic and thrilling introduction to Iranian popular music: two rock musicians form a band and run around Tehran, desperately looking for a way to leave the country. Many Iranian musicians, however, criticised the film’s sensationalist representation of the popular music scene, stating that it greatly exaggerated the danger they face in order to depict them as victims of an oppressive regime.[1] The rapper Amir Tataloo, too, has been subject to an overly politicised portrayal, failing to be considered as a complex figure by the media and in scholarship. I first became aware of Tataloo’s music when I came across his video Energy Hasteei [Nuclear Energy], in which he sings in support of the Iranian nuclear program on board a navy ship. At the time, I was interested in the intersections between rap and politics in Iran, and had never before heard any rap songs in support of the government. I was intrigued as to what led Tataloo to produce the music video—was he coerced into making it, or perhaps rewarded with a small fortune? My further research did not provide answers to these questions. His story only became increasingly confusing: in May 2017, he appeared in a high-profile meeting with current president Ebrahim Raisi, but only three years later, in January 2020, Iranian judicial authorities requested that Interpol issue a ‘red alert’ for his arrest in Turkey ‘for spreading corruption’.[2] With each article, whether from news outlets or academic journals, it was difficult to gain any real sense of who Amir Tataloo was. It appeared that Tataloo the person, the rapper, could not be disentangled from his relations to the Iranian government. Writers seemed only able to view him through the distorted lenses of resistance or propaganda: he has generally been portrayed either as an illegal party rapper, fighting against the autocratic government, or as a mere pawn of the Iranian regime’s propaganda centres. In this article, I aim to look beyond the reductionist binaries that often dominate discussions of popular music and power in Iran (anti- vs. pro-regime, liberal vs. hardliner) and present a more multifaceted perspective of rap music’s significance in Iranian politics. Looking at this music scene through the figure of Tataloo provides a deeper understanding of its evolution in the last few years, how social media has impacted the genre, and the ways in which rap’s legality is constantly under negotiation. The main body of this paper is divided into two sections. The first section explores the evolution of Tataloo’s image and artistry through three music videos: Energy Hasteei [Nuclear Energy], Shohadā [Martyrs], and Jahanam [Hell]. The stark contrast between each video’s discourse and artistic choices highlights the need for more complex portrayals of Tataloo, depictions that consider the significance of these works for the rapper and his career. In addition, I argue that scholars and journalists, in their focus on the political messages in the first and second videos, funded by the Revolutionary Guard, have omitted an important perspective. An analysis of these videos’ aesthetic elements reveals two noteworthy processes taking place: an appropriation and sanitisation of conventional hip-hop tropes for the purpose of propaganda, as well as a clear improvement in the artistry of rap music videos. The second section considers what Tataloo’s career and interactions with several branches of the Iranian government can reveal about the legitimisation of rap music in Iran. I explore the main arenas on which the negotiation of rap’s legality can play out, and identify the principal stakeholders and agents of influence in this process. Amir Tataloo—background Amir Tataloo is the stage name chosen by Amirhossein Maghsoudloo; a popular but controversial Iranian rapper considered part of the first generation of the Iranian underground hip-hop scene. The musician was born in Tehran on September 21, 1987. He started singing pop music at the age of 17 in 1998 and, in 2003, set up a blog where he would publish his compositions.[3] Tataloo’s career began as an illegal ‘underground’ rapper, directly criticising the government for not providing him with a legal outlet for his music. He has repeatedly sought to obtain official licenses for the release of his music from the Ministry of Culture and Islamic Guidance, but to no avail. Indeed, to this day, very few rap albums have ever been approved by the Ministry for official release.[4] For this reason, Tataloo chose to publish all his music online.[5] On three separate occasions, the rapper has been detained at the orders of Iranian authorities: 2013, 2016 and 2020. In December 2013, Tataloo was briefly arrested by the Iranian gasht-e ershād [morality police] on charges of cooperating with foreign satellite news channels[6]. The rapper was arrested for a second time in 2016 on charges of ‘tashviq be fesād u fahshā’ [encouraging corruption and prostitution].[7] It was later revealed that the cause of his arrest was an audio file posted to his Instagram, which lead to Tataloo being charged with several crimes, such as insulting a government official, qazf [accusing someone of adultery or sodomy], and inciting threats.[8] Finally, in January 2020, Tataloo was arrested for a third time by Turkish authorities in Istanbul, who stated that Interpol had issued a ‘red notice’ for him. This notice was reportedly issued by Iranian judicial authorities who accused him of ‘encouraging citizens, especially young people, to use drugs, especially psychotropic drugs, and for spreading corruption’.[9] Having once held the most followed account on Instagram, Tataloo also broke several other records on social media, such as the most comments on a single Instagram post: 18 million[10], and the most viewed live broadcast on Instagram: 626,000 views.[11] The rapper, in the court session during his first arrest, suddenly stood up and stated: ‘nemi tavānid harkāri mi khāhid bā man bekonid; man milionhā havadār dāram’ [You can’t do whatever you want with me; I have millions of fans].[12] After his arrest in 2016, his fans took to social media to defend him and demand his release, posting 700,000 comments on Instagram, including on the accounts of the Supreme Leader Ayatollah Ali Khamenei, saying that musicians do not belong in jail. According to the data recorded by the users themselves on Twitter, these reactions came from two age groups: 13 to 17 years old and 18 to 24 years old.[13] The rapper’s immense popularity on social media has allowed him to explore a space in which he can express himself freely, uninhibited by most of the cultural and political restrictions facing musicians living in Iran. Tataloo’s unofficial online releases, which have been published and shared endlessly on social media apps such as Telegram and Instagram, essentially sidestep the state’s official cultural institutions. The public forums and comment sections which surround these releases represent a worryingly opaque space for hardline Iranian authorities, where fiery young people could possibly gather to chat about subversive beliefs or to ‘spread corruption’. Overall, Tataloo occupies a highly contested position in Iranian society. The rapper’s most ardent fans refer to themselves as ‘tatāliti’ [Tatalites], and have written a 500-page fan book compiling his biography, transcribed interviews and his complete lyrics. They follow certain rituals inspired by their idol, such as the ‘dure-ye pāki’ [period of purity]: fourteen days in which fans should not eat or smoke, sin or have relationships with the opposite sex, and should exercise daily. Tataloo even designed a flag for his fans.[14] As a result of the near-zealotry of his fans, he has been perceived as a cult leader or as a fraudster who exploits the vulnerability of adolescents.[15] Literature Review Popular music and politics in Iran The relationship between music and politics in Iran is a complex tapestry, in which several interweaving power structures have varying degrees of influence over music’s permissibility, making the latter exist in a constant state of negotiation. Rap music, which is the focus of this article, stands in marked contrast to other genres of popular music: rappers are very rarely granted a license from the Ministry of Culture and Islamic Guidance, without which it is illegal for any musician to record or release music. Tataloo’s pigeonholing in scholarship as either a protest rapper or a pawn of Iran’s propaganda centres prevents us from understanding the implications of his unique position in Iranian society. Both Nooshin[16] and Semati[17] have drawn attention to the reductionist binaries which dominate discussions of popular music and power in Iran, with overly simplistic conceptions of hegemony and resistance, reformists and hardliners, modernity and tradition, etc. Indeed, in their haste to view music through the lens of politics, scholars have missed something fundamental about music: its aesthetic value. Street[18] and Steward[19] stress the danger of looking at music purely through a political lens when, for many, it functions primarily as a source of aesthetic pleasure. Within the context of Persian cultural studies, this sentiment is echoed by Nooshin, who discusses the romanticisation of ‘resistance’ in representations of Iranian popular music.[20] In over-politicising music scenes in Iran, she argues that scholars disregard or push other equally important aspects of musical activities to the margins, and that this portrayal is more representative of the author’s beliefs than the motivations of the musicians. The political fetishisation of musicians from the Middle East has also been discussed by Swedenburg[21] in relation to Palestinian musicians, who finds that their music is only appreciated if it fits within a narrative of Palestinian resistance. The necessity of stepping beyond reductionist narratives of hegemony and resistance in interpretations of popular music is crucial to the analysis of Tataloo’s music, motivations, and persona. Laachir and Talajooy’s book, though centred around Resistance in Middle Eastern Cultures, compiles several convincing examples of how to surpass oversimplification in analyses of resistance.[22] Mozafari, for example, succeeds in conveying the resistance of solo female vocalists, a marginalised group in Iran, whilst still granting them agency.[23] By focusing on the social and professional implications of these musicians’ strategies to resist censorship, Mozafari provides a multifaceted perspective of the significance of this form of resistance. The works cited above stand as the exception that proves the rule, revealing the gap in current scholarship of accounts of popular music that examine the differing motivations of musicians beyond the purely political. Iranian rap music Beyond its subversive potential, there are several more aspects of rap music worthy of scholarly investigation. Ranjbar insists that all rap music in Iran should be considered oppositional due to its unofficial and highly contested nature, regardless of whether the lyrics of songs are political, however this assertion rests on the idea that rap music is entirely ‘underground’.[24] This is a misleading and reductionist term which fails to account for the several occasions on which rap albums have been licensed by the Islamic Republic’s Ministry of Culture, as early as 2003,[25] or on which rappers have collaborated with the state’s media centres.[26] Although such examples are as of yet relatively uncommon, they problematise Ranjbar’s clear-cut model of resistance and hegemony. Few English-language works in scholarship supersede this binary in their analysis of rap lyrics. In Persian, however, some scholars treat the oppositional lyrics of rappers with more nuance. Goudarzi and Alvandi, whilst focusing on counter-hegemonic themes, reveal the numerous socio-economic topics tackled by rappers beyond the purely political: widespread poverty, unemployment, corruption, or addiction.[27] Similarly, Kowsari and Mowlaei emphasise how Iranian rap music, in addition to being a marginal discourse in society, itself contains several dominant and marginal discourses; radical protest only constituting one of the nine discourses they identified. These discourses indicate several other lyrical themes worthy of scholarly investigation, notably feminism and hedonism.[28] Tataloo is acknowledged as one of the main rappers in the latter discourse, stressing the need to consider his position in Iranian society with an aesthetic angle, and from the perspective of his audience. It is relevant to consider how Iranian rappers have been classified in scholarship, and whether Tataloo fits neatly into these categories. As I have already mentioned, Kowsari and Mowlaei grouped rappers into certain themes of discourse, based on an analysis of their song lyrics. The consensus, however, is that categorisation based on the goals and motivations of rappers is the most useful.[29] Johnston and Ranjbar divide these musicians into three categories: aggressive ‘gangsta’ rappers who break taboos, moralistic rappers who strive for social awareness and commercial ‘pop’ rappers. As Golpushnezhad[30] and Johnston28 point out, however, the traditional distinction between ‘political’ and ‘party’ rappers is of limited use: many artists known for poppy, superficial songs became outspoken critics of President Ahmadinejad during the 2009 Green Movement, including Amir Tataloo.[31] Whereas rap remains essentially unauthorised and unofficial in Iran, several genres, like pop and rock, have now become legalised and accepted following a period of illegality in the wake of the Islamic Revolution. Nooshin argues that whereas in the 1980s the Islamic Republic essentially gave pop music its subversive power by banning it, in the following decade, the government appropriated this genre and embedded it into official establishment institutions in order to render it safe, controllable and docile.[32] She later discussed the recurrence of this trend with the genre of rock music.[33] Siamdoust points out that the Islamic Republic would rather bring certain music under its control and express a vacuous joy through it, than permit musicians to freely express real, potentially subversive feelings.[34] Only Golpushnezhad has specifically focused on this trend of appropriation in rap. By dividing an analysis of Iranian rap music into three chronological phases, she argues that it has evolved from being completely marginal and unauthorised, to a genre partially supported and funded by the IRGC.[35] New nationalist propaganda There is general agreement in scholarship that Iran’s youth is the demographic that the Islamic Republic is most focussed on to preserve its political legitimacy and perpetuate its revolutionary values. Bobbio, Khatam, and Zimmt argue that the Islamic Republic’s lack of support from the youth arises from its failure to respond to their demands of economic and social freedoms. Their analysis of the political situation in Iran, however, tends to be overly reductionist; the broad assertions that young people are moving away from Islamic values towards a ‘Western’ (read ‘liberal’, ‘democratic’) lifestyle[36] and that Iran is essentially a ‘post-Islamist’ society[37] reveal more about the author’s political fantasies than those of the young Iranian population. In addition, Bobbio’s claim that Western-inspired music is forbidden in Iran betrays a rather superficial understanding of the Iranian cultural sphere: far from being banned, pop and rock music have gradually become endorsed by the Islamic Republic’s cultural centres.[38] Other scholars offer more nuanced and valuable perspectives, such as Varzi[39] with a wide focus on various forms of data (media, newspapers, interviews etc.) and Bajoghli, with detailed findings obtained through two years of participant observation. Propaganda producers in the Revolutionary Guard espouse a view that through their work, they have ‘distanced [them]selves from young people and that’s the real danger’. Alongside this perceived estrangement exists an acute awareness that the young population would be unlikely to defend the regime in times of crisis, as their fathers and grandfathers had done during the Iran-Iraq War: ‘we could turn into Syria!’[40] In addition, their argument that the regime’s cultural producers are redirecting propaganda away from a traditional Islamic conception of nationalism towards one that emphasises Iran’s uniqueness is highly significant, as it reveals the motives behind the production of new forms of nationalist propaganda in Iran, such as Tataloo’s music videos Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs]. In examinations of this new form of propaganda, however, too much agency has been granted to the media producers of the IRGC, rather than the artists involved. In all accounts of Tataloo’s collaboration with conservative branches of government,[41] the rapper is never treated as anything more than a puppet of the regime’s propaganda centres. Bajoghli’s call for the need in scholarship to perceive regime media producers as ‘complex actors’ is not extended to the musicians and directors who actually create the nationalist promotional material—the question of who these artists are, and whether they are all fully supportive of the regime, remains wholly unexplored. In valuing the regime producers’ experience over that of the artists they employ, this scholarship has inadvertently reproduced the authoritarian and prescriptive dynamics between official cultural institutions (the Ministry of Islamic Culture and Guidance, the Islamic Propaganda Organisation) and Iranian artists; artists have been stripped of their agency and have failed to be considered beyond the gaze of the state and its intentions. An exploration of Tataloo’s unique status would encourage a multifaceted portrayal of the artists involved in regime-supported media, and help paint a fuller, more complex picture of all the actors involved. Sources and method The first two music videos by Tataloo selected for analysis, Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs], were produced in collaboration with regime media producers and the third, Jahanam [Hell], was released independently. Together, they reveal the broad evolution in Tataloo’s beliefs, values, and aesthetics from 2015 to 2020. Since it is impossible for rappers to appear on state media and in concerts, the virtual space of these Internet-propagated mediums is the only concrete link between the rapper and his audience. Whereas most sources discussed above tend to primarily examine the messages found in the lyrical text of these music videos, their visual and musical form is also worthy of investigation. The first two videos do not merely convey the regime media producers’ nationalistic messages—they also entertain with aesthetic elements, and form a part of Tataloo’s artistic image. Further, the context of their production is highly significant—Jahanam [Hell] is all the more significant due to the stark contrast it draws with the relatively conservative aesthetics of Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs]. Section 1: Propaganda, entertainment or more?—Amir Tataloo through his music videos Energy Hasteei [Nuclear Energy] ‘hich qodrati nemi tavānad melat-e Irān rā az dāshtan-e energi-ye salah āmiz-e hasteei mahroum sāzad’ [No power can deprive the Iranian nation of peaceful nuclear energy]. This Persian phrase, appearing at the beginning of Energy Hasteei[42] (0:01), is the most straightforward expression of the music video’s message. Most striking, however, is the sight of Tataloo, a rapper previously shunned by the Iranian regime, singing and dancing on the deck of the IRIS Damavand, the flagship of the Islamic Republic of Iran Navy’s northern fleet.[43] This image quickly captured the attention of international media, who, in conventionally sensationalist terms, noted the significance of such propaganda being released in the final stages of the Iran nuclear talks in Vienna.[44] It is clear why international journalists exclusively focused on the music video’s elements of propaganda—these are the most immediately apparent, and require only a basic knowledge of Iran’s nuclear policy to decode.[45] Visually, there is an evident involvement of the regime in the music video’s production, in the presence of soldiers, a navy frigate and a not-so-subtle portrait of Khamenei in the background.[46] The song’s lyrics (helpfully translated into English for the benefit of international audiences) condemn the hypocrisy of foreign powers in prohibiting Iran from developing nuclear energy whilst being in possession of nuclear weapons: ‘If it’s bad, then it’s bad for you too!’ Tataloo questions why critics have focused on the negative aspects of nuclear energy, when all things contain both ‘good’ and ‘bad’: the sky can provide ‘rain’ but also ‘hurricanes, lighting and hailing’, a fire can both ‘burn’ and be ‘warm’, and water can both ‘drown you’ and ‘save you from thirst’. There is a sudden escalation in analogies however, when the same judgement is applied to guns: they can ‘kill’ but also ‘protect your homeland’.[47] Here, firearms are posited as an extension of nature, hence making it seem perfectly natural for a nation like Iran to develop the capacity for nuclear energy. Released in the final moments of the JCPOA’s negotiation (an agreement on the Iranian nuclear program), this message reads as a nationalistic cry of victory. Bajoghli discusses a new tactic employed by regime media producers to make their propaganda less easily identifiable—they create small and unidentifiable production studios, still funded by the Revolutionary Guard and the government’s cultural budget, but not directly affiliated with them.[48] Indeed, nothing in the music video nor the ‘behind-the-scenes’ footage published alongside it suggests that this video was funded by these organisations—besides one small detail. In its final frame, acknowledgements of all the military divisions who assisted with the music video’s production are followed by a reference to ‘shabake-ye interneti-ye nasr’ [Nasr Internet Network].[49] The ‘darbāre-ye mā’ [About Us] section of this production studio’s website reveals that it was founded in order to combat the domination of the ‘mafiyā-ye resāne-ye sihonisti’ [Zionist media mafia],[50] betraying some of the Revolutionary Guard’s harsh anti-Israeli zeal.[51] There are several elements of Energy Hasteei, however, that journalists and scholars alike have omitted in their focus on its nationalistic propaganda—who the video is addressing and how the video addresses this audience. The populist message in Tataloo’s lyrics, portraying him as a simple, everyday Iranian who is unaware of ‘what is happening in [his] country’ but who senses ‘a scent of exhaustion’[52] is not only meant for an audience in Iran. The fact that this was Tataloo’s first music video to come with English subtitles is not a mere coincidence: the video was clearly intended to have a global reach. At regular intervals, images of ‘normal’ Iranian citizens holding posters with English slogans appear, urging viewers not to ‘let the media fool [them]’, and declaring that Iran is a ‘peacful’ (sic) nation who has ‘never invaded a country’.[53] Behind these citizens are some of the most popular Tehrani sites that any tourist would recognise: the Azadi and Milad towers (0:42, 1:48), the Darabad quarter leading up to the Alborz mountains (0:34) and the capital’s train station (0:16).[54] Tataloo’s assertion that ‘silence is for statues’[55] also gives the impression that he is a courageous hero speaking out against injustice, a narrative that is easily digestible for foreign viewers who only have a superficial knowledge of Iranian politics. Beyond this political narrative, however, there is also something else at play. Conventional aesthetic elements of hip-hop music videos are appropriated and sanitised in Energy Hasteei, in order to instinctively appeal to Iran’s young population, without crossing any of the government’s cultural red lines. The standard rap trope of backup dancers, usually a troupe of attractive women or members of the rapper’s clique, is here replaced by stone-faced soldiers in uniform performing a drill with their rifles in hand. These servicemen can even be seen singing along to the song’s chorus.[56] Considering dance’s position as the most vilified art form in Iran,[57] the use of a military drill as a substitute for backup dancing allows the video’s producers to preserve the form of a hip-hop trope whilst avoiding any problematic display of immodesty. Similarly, the fog machine typically employed in music videos for atmospheric effect is here replaced by smoke grenades and the navy ship’s funnels.[58] A parallel process of the militarisation and sanitisation of hip-hop tropes is also audible in the music of Energy Hasteei. Several conventional elements of rap music are present, such as a groovy, hip-hop style break being played on the drums, as well as floaty arpeggiated melodies from a keyboard in the verses. In the chorus, however, a noticeable shift takes place.[59] Monotone, choir-like backing vocals, short staccato notes on the strings, and intermittent shouts all imbue the music with an element of tension, more typical of military parades or anthems than rap songs. Shohadā [Martyrs] The music video for Amir Tataloo’s song Shohadā [Martyrs] was released on September 23 2015, during Sacred Defence Week, Iran’s most important annual commemoration of the Iran-Iraq war, for which the government schedules public events, television and radio shows. The narrative of martyrdom has its origins in the Battle of Karbala (680 AD) during which the grandson of the prophet Muhammad, Hussain ibn Ali, was killed and beheaded. In fact, virtually all Shi’i imams excluding the 12th are conventionally believed to have been killed in their youth by their opponents. Consequently, shahādat [martyrdom] is intrinsically linked to the ideal of heroism in Shi’ism. In Hamid Dabashi’s words: ‘the only hero is a dead hero’.[60] When Iraq invaded Iran in September 1980, Ayatollah Khomeini was provided an ideal opportunity to strengthen his authority as a religious leader. The largest mobilisation of the Iranian population was essentially achieved by embracing martyrdom as ‘state policy’.[61] The phrases jang-e tahmili [imposed war] and defā’e muqaddas [sacred defence] became common in public discourse, due to their implication that fighting on the front, more than a protection of the nation, constituted a heroic religious act.[62] Released only two months after Energy Hasteei, the music video for Shohadā similarly represents the desire of regime media producers to move away from traditional Islamic conceptions of nationalism towards those that will resonate with Iran’s youth. Much like the Museum of Sacred Defence, opened in 2012 in Tehran, Shohadā redirects the narrative of martyrdom: instead of being seen as a heroic deed or a path to heaven, dying for one’s country is portrayed as being brutal, but necessary. Shohadā opens with a dedication in Persian: ‘be khānevādehā-ye shohadā-ye jang-e tahmili va hasteei’ [to the families of the martyrs of the imposed and nuclear war].[63] The video is essentially comprised of three perspectives: soldiers dying at the front, the assassinations of nuclear scientists, and Amir Tataloo paying tribute by singing and rapping. Throughout the music video, the casualties of the ‘imposed’ Iran-Iraq war are visually equated with the assassinations of nuclear scientists, which the state claims were orchestrated by Israeli spies.[64] This parallelism allows regime producers to renew the narrative of martyrdom for a new generation by presenting scenes that young people will be familiar with, since the assassinations portrayed are seemingly based on real events: the first[65], on Mostafa Ahmadi Roshan’s killing by car bomb[66] and the second,[67] on the drive-by shooting of Darioush Rezaeinejad in 2011.[68] The core message here, that all those who die for the state are martyrs, is expressed in several ways which aim to appeal to young people. Firstly, the emotional impact of the assassinations is increased by portraying the victims as ‘sāde va ‘āsheq’ [simple and in love]: the first is shown buying a teddy bear, presumably for his love interest, moments before his death, and the second is shown laughing with his wife on the doorstep of their home.[69] Secondly, the image of such a popular celebrity as Tataloo standing in front of coffins draped with the Iranian flag presents a role model for young people to follow in the expression of their nationalistic grief. Furthermore, Tataloo’s singing and rapping conveys grief through a medium that the youth will be able to relate to: ‘bazi harf-hā geriye dārand’ [some words cry]. Finally, his assertion that anybody can give their life for their country, ‘farq nadāre ke jensi, ke rangi, ke qomi’ [no matter what gender, colour or ethnicity], reads as a rather unusual attempt to appeal to the more liberal tendencies of Iran’s youth.[70] Amir Tataloo, though taking centre stage in Energy Hasteei and Shohadā, has failed to have been considered as a complex character. Any investigation of his motivations, actions and goals in the context of the music videos has been omitted in favour of what he represents: a shocking symbol of the regime’s desperation to appeal to young people, or of rap’s appropriation for the purposes of propaganda. It is no less important to ask what Energy Hasteei and Shohadā mean for Tataloo, lest he be treated as a mere pawn of the regime’s media producers. Though the rapper claims ‘No, I am not involved in political games’,[71] for over a decade he has either been directly associated with politicians, sung about political issues, or taken a public stance on contemporary political issues. In 2009, Tataloo sang in support of the reformist politician Mir Hossein Mousavi during the Iranian parliamentary elections, with the song Irān-e Sabz [Green Iran]. Keeping in mind also that Tataloo was arrested in 2013 for appearing on unauthorised satellite channels, such high-profile, state-supported productions as Energy Hasteei and Shohadā could be seen as providing the rapper with an opportunity to reinvent himself, and wipe his slate clean in the eyes of the Ministry of Culture and Islamic Guidance. Certainly, his attire in the music videos suggests as much: the understated tones of his clothing, his beard and the Islamic prayer beads around his neck would seem far more tolerable to government officials than his trademark long hair, exposed chest, arm tattoos and cross necklace. Jahanam [Hell] Tataloo’s music video for Jahanam, released independently in 2020, is far more ambitious than Energy Hasteei and Shohadā, both conceptually and in terms of production value. In duration alone, Jahanam has a longer runtime than both of the state-funded projects combined. Where Energy Hasteei and Shohadā were both literal and realistic in their narratives, Jahanam stands as a multi-layered symbolic exploration of hell through themes of depression, betrayal and political injustice. Three scenarios are juxtaposed in Jahanam, all of which end in Tataloo’s death. The first shows the rapper walking to the edge of a rooftop, looking down at a city, only to turn around and be pushed off by his double.[72] This marks the culmination of his character’s increasingly deteriorating mental state, reflected in the song’s lyrics: ‘az hamishe ghamgin taram’ [more depressed than ever], ‘chizi namunde azam’ [there’s nothing left of me] and ‘jahanam mirize tu tanam’ [hell is pouring into me].[73] Here, hell is used as a symbolic representation of a dark mental state, from which there is no escape. In the second narrative, Amir Tataloo depicts a passionate love affair which ends in heartbreak. This hell—the pain of his lover’s betrayal—is expressed visually through Tataloo’s second death: moments after being resuscitated by a doctor, his partner plants a kiss on his lips and proceeds to stab him in the heart.[74] The third narrative portrayed in Jahanam is arguably the most intricate: Tataloo’s tale of incarceration and torture functions on both a symbolic and a literal level. Jahanam opens with a scene of Tataloo on trial—he is seen standing in the defendant’s podium in a prison uniform and handcuffs. Following this trial, Tataloo is violently thrown into a prison cell[75]. It quickly becomes clear, however, that this tale of imprisonment is more than just a metaphor for his vilification and ostracization by society. The song’s lyrics suddenly become very literal: ‘bāyad jelo bāzpors chet furan barge ru pureh kossher konam’ [I have to fill the paper with a bunch of bullshit in front of the interrogator] and ‘mige bas ni bāzam benevis be ki vasli martike olāq?’ [he orders me to write more and asks me: who are you working for, you prick?].[76] The tendency of the Iranian criminal justice system to crack down on artists for ludicrous charges is well documented[77], and here Tataloo reveals another face of hell, a country where his fate is either ‘a’dām ya qafs’ [execution or a cage][78] (‘Jahanam’ 5:12). The injustice of this system is not only expressed through the very direct portrayal of abuse in an interrogation cell, but the image of a prison guard psychotically attempting to stab a bird with a screwdriver through the bars of its cage.[79] Whether or not one enjoys Tataloo’s character or music, it is undeniable that Jahanam uncovers an artistry which transcends the rapper’s one-dimensional portrayal in scholarship and media as a mere party rapper or a puppet of the Revolutionary Guard’s media centres. In addition, it is hard to think of a greater change of lifestyle than Tataloo’s in between Energy Hasteei and Jahanam. Whereas the rapper appears as a model Islamic citizen in the former, his self-portrayal in Jahanam deliberately crosses the regime’s cultural red lines, as if he is keen on provoking officials at every turn. The music video shows Tataloo drinking whisky, cracking a whip whilst staring at a woman’s derriere and smoking cannabis.[80] Tataloo’s lyrics, too, in addition to being sexually explicit, also contain numerous examples of profanity. With Janaham, Tataloo consciously crosses the point of no return in attempting to appeal to the Iranian authorities—the values espoused in Jahanam are the polar opposite of regime-friendly. Energy Hasteei and Shohadā stood out upon their release in 2015 due to their impressive visuals, and seemed to suggest that regime-funded music videos were far superior in production value to those independently released by rappers. The video for Tataloo’s Jahanam, however, reveals that such a large contrast no longer exists in 2020: unofficial rappers are now able to release productions which rival the quality of state-supported projects. A small sign in one frame of Jahanam reveals that the music video was filmed in Turkey: ‘hasta hizmetleri’ [patient services],[81] where Tataloo currently lives. The new trend of Iranian rappers releasing immensely popular tracks and music videos from abroad—Jahanam has 3.5 million views, and the LA-produced Tehran Tokyo by Tataloo’s friend Sasy has 5 million—is reminiscent of Iranian expatriate music releases in the 80s and 90s. So-called Tehrangelesi [a portmanteau of Tehran and Los Angeles] musicians were able to reach Iranian audiences on the black market through cassettes—a new technology far harder for authorities to confiscate and which listeners could copy with ease.[82] It would seem that for this recent wave of rappers, who have also left Iran and are taking advantage of the possibilities of a novel medium, social media is the new cassette. Section 2: The legitimisation of rap in Iran Whether rap music is to become fully sanctioned in Iran remains in question. However, it is clear that a process of co-option and sanitisation has begun in relation to rappers, their music, and aesthetics. If this trend were to continue, rap would join both pop and rock as genres which were once entirely subversive, but gradually became adopted into official state framework in order to rid them of any disruptive potential. The figure of Amir Tataloo, as the most noteworthy and infamous rap musician involved in politics, provides a valuable angle from which it is possible to consider on what arenas the legalisation of rap music could play out, and who could contribute to its unfolding. As explored in the first chapter, music videos funded by the Revolutionary Guard’s media centres such as Energy Hasteei and Shohadā mark the beginning of a co-option of rappers and the aesthetics of their music for the purpose of making nationalist propaganda more appealing to young people. As such, they constitute an important arena through which rappers could gain a higher profile, and their music could gradually become more acceptable. If, like the Chinese government,[83] the propaganda centres of the Islamic Republic such as the IRGC or the Islamic Propaganda Organisation continue to fund and produce music videos to further their message, this would undoubtedly improve rap’s reputation amongst even the most hardline branches of the state—as it would demonstrate that even the vilified rap music can be used to promote the values of the Islamic Republic. Social media provides a space both for famous rappers to gain official social recognition, and for the transmission of hardline political views. Tataloo has published several posts in support of the Ayatollah and the Revolutionary Guard, and has sought to legitimise himself through social media in other ways, such as appearing alongside celebrities that are accepted in the official sphere. As an example, the rapper attended a Persepolis F.C. training session in April 2020 and was photographed alongside famous footballers such as Payam Sadeghian and Mohsen Bengar.[84] Such photoshoots are beneficial for both parties involved: footballers are able to gain publicity through Tataloo’s countless social media followers, and the rapper, by association with figures that are legally recognised by the government’s cultural system, acquires an air of legitimacy and greater cultural influence. The presence of unlicensed yet popular musicians at official events and conferences is an additional site for the negotiation of rap’s legitimacy: much like with footballers, appearing alongside eminent politicians allows rappers to seem endorsed by the regime, whereas politicians can extend their sphere of influence to the musicians’ young fanbase. The principlist politician Hamid Rasaee, prior to denouncing Tataloo for his ‘heretic’ views on Instagram, was seen shaking the rapper’s hand and gifting him a ‘prize’ caricature at a Fars News ceremony in July 2017.[85] Fars News is the ‘semi-official’ news agency of the Iranian government, associated with the Revolutionary Guard[86]—suggesting that Tataloo’s relationship with the latter extended beyond the production of music videos or the publishing of conservative opinions on his social media. Undoubtedly the most significant of these encounters between rappers and hardline politicians remains Tataloo’s meeting with Iranian president Ebrahim Raisi in May 2017. This ‘Elvis Meets Nixon’ moment came as a shock to many Iranians, not least for the sheer absurdity of seeing the two figures sitting side by side: the rapper’s tattoos, visible on his bare forearms, strongly juxtapose with Raisi’s sombre black cleric robes.[87] Beyond their appearance, Tataloo’s career path and past arrests for ‘encouraging prostitution and corruption’ appear wholly irreconcilable with Raisi’s exceptionally conservative politics: the latter was named as one of the four figures who led the 1988 executions of Iranian political prisoners, in which over 5,000 political dissidents were imprisoned, interrogated and killed because of their opinions or non-violent campaigning[88] (‘Blood-Soaked Secrets: Why Iran’s 1988 Prison Massacres Are Ongoing Crimes Against Humanity’). In a video of the meeting, Raisi is noticeably uncomfortable as they discuss Imam Reza, the eighth Imam in Twelver Shi’ism, and his national significance: Tataloo asserts that Imam Reza is not just for clerics but ‘barā-ye hame-ye Irān-e’ [but for all Iranians!].[89] Indeed, Raisi is also the custodian for the Imam Reza shrine in Mashhad, and the son-in-law of Ahmad Alamolhoda, the prayer leader and Grand Imam of the shrine who, incidentally, banned all music performances in the city of Mashhad.[90] Raisi was in the midst of his presidential bid when the video of his meeting with Tataloo was released in May 2017, and many joked that the rapper cost him the election, as Rouhani was re-elected.[91] The implications of this encounter, however, between hardline cleric and unauthorised musician, are quite serious. The fact that such a conservative politician would even consider meeting a rapper, let alone release a video of their encounter, is a testament to the hardliners’ sheer desperation to appeal to young people. It also suggests that similar compromises in the future could pave the way to the legitimisation of unauthorised musicians. Despite the fact that Tataloo emigrated to Turkey, and spoke out against the regime and Islam in Instagram posts and his music video Jahanam, his popularity on social media continues to be exploited to spread conservative political messages. In December 2020, a video recorded from Instagram Live was posted on Youtube by the channel ‘Amir Tataloo Original Fan’. In the video, an older woman discusses sexual topics with a teenager in order to encourage him to delete Instagram.[92] Iran’s Communications and Information Technology Minister, Mohammad Javad Azari-Jahromi, stated that a ‘certain hardline thinktank’ was responsible for the widespread distribution of the video, which reached half a million views on Youtube.[93] What is unusual about this video, however, is the appearance of the woman, Mina Namdari. She appears without a hijab (compulsory in Iran) and with visible cleavage and a bottle of wine in her hands (though she fails to actually drink from it during the video). It is difficult to understand why a hardline think tank would promote such a video that is blatantly in transgression of Iran’s modesty laws, unless one considers the Revolutionary Guard’s tendency in recent years to attempt to conceal their role in the production of certain propaganda videos.[94] IRGC producers often include profanity and anti-regime messages in their media in order to mask the fact that it is propaganda. With this video, it seems as if hardline producers are hiding their involvement by employing a woman who superficially appears to be breaking the Islamic Republic’s modesty laws. There exist several stakeholders which negotiate the legality and legitimacy of rap music through the arenas outlined above. Media producers in the Islamic Revolutionary Guard Corps such as Reza Hosseini believe that they need to ‘tell better stories’[95] to young people through their content, so that they do not feel ostracised by nationalistic or revolutionary values; they recognise a need to speak ‘in the language of youth’. By pushing their sanitised and professionally-produced appropriation of rap into the limelight, they are also able to detract attention from its more subversive form, essentially silencing any voices of dissent. Their enduring interest in rap as a means to talk to young people, even after Amir Tataloo has turned against them, is clearly visible in the propaganda video published through a Tataloo fan page on Youtube. Hardline politicians too, such as Hamid Rasaee and Ebrahim Raisi, by appearing alongside Tataloo, essentially recognise rap music’s legitimacy and influence in Iranian society and bring it into an official framework. Politicians meeting such rappers displays this genre of music in the light of public attention, and suggests that their transgressive history can be overlooked on certain occasions –casting doubt on the legitimacy of rap’s illegality. Of course, the central factor in any question of rap’s possible legalisation in Iran remains the Ministry of Culture and Islamic Guidance, from which all musicians must obtain a license in order to perform and release any music legally. The ministry’s opposition to rap as a genre seemingly arises out of an aversion to its implications of Western influence, rather than out of any particular opposition to its musical aesthetics. It appears that it mostly fears the word ‘rap’, and its ‘European and American’ allusions, but recognises that there is potential for a legitimate form of the genre to be fully licensed in the future: the director of the ministry’s music department Pirooz Arjmand suggests that the term ‘goft-avāz’ [musical spoken word] be used to replace ‘rap’, which he asserts takes notice of a tradition of musical spoken word that existed far before rap arrived in Iran, called ‘tartil khāni’ [recitation].[96] Indeed, the arrest in March 2021 of producers associated with Sasy Mankan’s video Tehran Tokyo, in which he appears alongside American porn star Alexis Texas, reveals that combating the influence of these expatriate rappers still remains a matter of great concern to the Islamic Republic and its cultural centres. Several members of the Iranian parliament decried the video’s harmful influence, perceiving it as an issue of ‘āsibha-ye rohāni [...] barāye kudakān-e bi dafā'e’ [psychological harm to helpless children][97] or ‘kudakān rā be tamāsha-ye pornogrāfi tashviq konad’ [encouraging children to watch pornography].[98] The example of pop music’s legalisation, which partially arose from the government’s failure to quash the inflow of subversive expatriate pop in the 80s and 90s, suggests that the Ministry of Culture and Islamic Guidance would benefit from giving licenses to more rappers. Since they are unable to prevent the songs of expatriate rappers such as Amir Tataloo and Sasy Mankan from spreading through the internet, sanctioning a legitimate domestic rap scene would provide a viable alternative to the ‘obscene content’ these musicians freely release from abroad.[99] The IRGC as well as hardline politicians such as Hamid Rasaee and Ebrahim Raisi, perhaps inadvertently, provided Tataloo with a certain legitimacy and cultural standing by granting him an official stage. To a certain extent, propaganda posted through Tataloo’s fan pages reveals that the IRGC hardliners still recognise rap’s powerful influence. There is also the sense, however, that the compromise between hardline branches of the state and rappers such as Tataloo is no longer deemed beneficial to either party. Why would Raisi deem it necessary to resort to endorsing such controversial figures when presidential elections were rigged in his favour?[100] Furthermore, as Jahanam has shown, rappers no longer need to depend on the Revolutionary Guard’s media centres or the Ministry of Culture and Islamic Guidance in order to release professional music and video productions. The power of social media such as Instagram and Youtube has allowed certain rappers to create a ‘hyperground’ rap scene, which the Iranian government cannot censor and through which they can escape its restrictions. Though it is still uncertain whether rap music is to become fully legitimate in the next few years, the case of Tataloo suggests that rappers like himself hold immense influence over the future of the genre, and continues to stand as a strong symbol of rap’s persistence influence and significance in Iranian society. Conclusion If we are to know about Amir Tataloo, it is clear that a different approach is needed. Until researchers move beyond the overly simplistic narratives by which they define rappers, as either fighting against the regime or collaborating with it, they will fail to gain any real sense of rap music’s significance in Iran. In this article, I have attempted to provide several alternate perspectives which account for the multifaceted intersections between music and Iranian politics and paint a more complex picture of the status of rappers in Iranian society. Firstly, I have discussed how certain aesthetic aspects of Amir Tataloo’s music videos, which are taken for granted in favour of their immediate political messages, reveal deeper trends affecting rap music in Iran behind the scenes. In Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs], certain tropes of hip-hop culture are co-opted and rendered ‘safe’: a troupe of backup dancers is replaced by a military parade, and smoke grenades become fog machines. Tataloo’s Jahanam [Hell] reveals that rappers no longer have to depend on funding from the Revolutionary Guard’s media centres in order to create visually impressive music videos. In addition, by juxtaposing the discourse between the videos funded by the IRGC and one which Tataloo released independently, I call for a more multifarious and subtle portrayal of the rapper: one which considers what these videos could represent from his perspective. Secondly, I have examined Amir Tataloo’s career and interactions with various branches of government in order to explore the negotiation of rap music’s legality in Iran. I have revealed how the IRGC and other conservative branches of government continue to recognise rap music’s influence, and the extent to which social media rappers from abroad constitute a threat to the strict guidelines of the Ministry of Culture and Islamic Guidance. It is worth considering whether such factors could lead to the emergence of an official form of rap music, vacuous and emptied of any potentially subversive meaning, as has occurred previously with the genres of pop and rock. Casper Alexander Sanderson Casper Alexander Sanderson has received an MA (Hons) in Arabic, Persian and Russian at the University of St Andrews, as well as an MPhil in Modern Middle Eastern Studies at the University of Cambridge, for which he was awarded the Prince Alwaleed Bin Talal Studentship Grant. [1] Theresa Parvin Steward, ‘I Am the Brave Hero and this Land is Mine’: Popular Music and Youth Identity in Post-revolutionary Iran (University of Edinburgh 2013) 22-130. [2] ‘Iranian Rapper Tataloo Reportedly Arrested in Turkey’ (RFERL, 28 January 2020) accessed 12 June 2022. [3] Mohammad Fowladi, Hell & Purgatory (Tatality.com, January 2020) 16-17. [4] Laudan Nooshin, ‘Hip-Hop Tehran: Migrating Styles, Musical Meanings, Marginalized Voices’ in Byron Dueck and Jason Toynbee (eds), Migrating Music (Routledge 2011) 99. [5] Fowladi (n 3) 16-17. [6] ‘Amir Tataloo khānande-ye irāni bāzdāsht shod’ [Iranian Singer Amir Tataloo Was Arrested] (BBC Persian, 3 December 2013). [7] ‘Amir Tataloo be etehām-e ‘tashviq be fesād u fahshā’ bāzdāsht shod’ [Amir Tataloo Was Arrested on Charges of ‘Encouraging Corruption and Prostitution’] (Voa News, 25 August 2016). [8] ‘Barresi-ye hoquqi-ye anāvein-e etehami-ye Amir Tataloo’ [Legal Investigation of the Accusatory Topics of Amir Tataloo] (JameJamOnline, 3 September 2016). [9] RFERL (n 2). [10] ‘Rekord-e tāze-ye Tataloo dar Instagrām’ [Tataloo’s New Record on Instagram] (Radio Farda, 4 September 2019). [11] Fern Taghizadeh, ‘Live-e Instagrām dar qarantiye; az sargarmi va āmuzesh tā sokhanrāni va mosābehe’ [Instagram Lives in Quarantine; From Entertainment and Education to Lectures and Interviews] (BBC Persian, 13 April 2020). [12] ‘Mored-e ajib-e Tataloo u tatalitihā’ [The Strange Case of Tataloo and Tatalites] (ISNA, 28 August 2016). [13] ‘Talāsh-e tatalitihā’ [The Endeavours of Tatalites] (BBC Persian, 2 September 2016). [14] Fowladi (n 3) 17, 72. [15] ‘Jomhouri-ye tatalitihā’ [The Republic of Tatalites] (Radio Zamaneh, 29 August 2016); ‘Tasir-e tatalihā dar tartib-e nojavānān’ [The Impact of Tatalites on Adolescents] (Farhang News, 11 September 2016). [16] Laudan Nooshin, ‘Prelude: Power and the Play of Music’ in Laudan Nooshin (ed), Music and the Play of Power in the Middle East, North Africa and Central Asia (Routledge 2009) 1-31. [17] Mehdi Semati. ‘Sounds like Iran: On Popular Music of Iran’ (2017) 15(3) Popular Communication 155-62. [18] John Street, ‘‘Fight the Power’: The Politics of Music and the Music of Politics’ (2003) 38(1) Government and Opposition 113-30. [19] Steward (n 1). [20] Laudan Nooshin, ‘Whose Liberation? Iranian Popular Music and the Fetishization of Resistance’ (2017) 15(3) Popular Communication 163–91. [21] Ted Swedenburg, ‘Palestinian Rap: Against the Struggle Paradigm’ in Walid El Hamamsy and Mounira Soliman (eds), Popular Culture in the Middle East and North Africa: A Postcolonial Outlook (Routledge 2013) 17–32. [22] Karima Laachir and Saeed Talajooy (eds), Resistance in Contemporary Middle Eastern Cultures: Literature, Cinema and Music (Routledge 2013) 207-275. [23] Parmis Mozafari, ‘Female Solo Singing in Post-Revolution Iran’ (2013) in ibid 262-278. [24] Morvarid Ranjbar, ‘Emergent Culture: Iranian Rap Music as a Tool for Resistance’ (Wilfrid Laurier University 2016) 50-57. [25] Nooshin (n 4) 99. [26] Narges Bajoghli, Iran Reframed: Anxieties of Power in the Islamic Republic (Stanford University Press 2019) 99-106; Elham Golpushnezhad, ‘Untold Stories of DIY/Underground Iranian Rap Culture: The Legitimization of Iranian Hip-Hop and the Loss of Radical Potential’ (2018) 12(2) Cultural Sociology 271-73. [27] Mohsen Goudarzi and Alireza Alvandi, ‘Musiqi be masabe-ye moqāvemat; mazamin-e kanterhezhemonik dar rap-e fārsi-irāni’ [Music as Resistance; Counter-Hegemonic Themes in Persian-Iranian Rap] (2019) 8(30) Jām’e farhang resāne [Society Culture Media] 122–44. [28] Masoud Kowsari and Mohammad Mahdi Mowlaei, ‘Gune-shenāsi-ye goftemānhā-ye musiqi-ye rap-e irāni-fārsi’ [A Typology of the Discourses in Iranian-Persian Rap] (2013) 29(8) Motāle’āt farhang va ertebātāt [Cultural Studies and Communication] 91–116. [29] Sholeh Johnston, ‘Persian Rap: The Voice of Modern Iran’s Youth’ (2008) 1(1) Journal of Persianate Studies 102–19; Ranjibar (n 24) 50-54; Mahmood Shahabi and Elham Golpoush-Nezhad, ‘Rap Music and Youth Cultures in Iran: Serious or Light?’ (2016) 3 Youth, Space and Time 218–19. [30] Golpushnezhad (n 26) 268. [31] Nahid Siamdoust, Soundtrack of the Revolution: The Politics of Music in Iran (Stanford University Press 2017) 271-281. [32] Laudan Nooshin. ‘Subversion and Countersubversion: Power, Control, and Meaning in the New Iranian Pop Music’ in Annie Randall (ed), Music, Power, and Politics (Routledge 2005) 250-262. [33] Laudan Nooshin, ‘The Language of Rock: Iranian Youth, Popular Music, and National Identity’ in Mehdi Semati (ed), Media, Culture and Society in Iran: Living with Globalization and the Islamic State (Routledge 2008) 70; Laudan Nooshin, ‘‘Tomorrow Is Ours’: Re-Imagining Nation, Performing Youth in the New Iranian Pop Music’ in Nooshin (ed) (n 16) 246–249. [34] Golpushnezhad (n 26) 268. [35] ibid 262–73. [36] Raz Zimmt, ‘The Conservative Predicament in Iran’ (Institute for National Security Studies, 2017) 2 accessed 12 June 2022. [37] Azam Khatam, Struggles over Defining the Moral City: The Problem Called ‘Youth’ in Urban Iran (Oxford University Press 2010) 14. [38] Emanuele Bobbio, ‘Winning Back the “Left Behind”: Iran's New Nationalist Agenda’ (Istituto Affari Internazionali (IAI), 2018) 8 accessed 12 June 2022. [39] Roxanne Varzi, Warring Souls: Youth, Media, and Martyrdom in Post-Revolution Iran (Duke University Press 2006) 13-21. [40] Bajoghli (n 26) 15-22. [41] ibid 104-106; Bobbio (n 38) 8; Abbas Milani, ‘Iran’s 2017 Election: The Opposition Inches Forward’ (2017) 28(4) Journal of Democracy 30–37; Zimmt (n 36). [42] ‘Energy Hasteei’ [Nuclear Energy], (Youtube, Amir Tataloo, 12 July 2015) 0:01 accessed 12 June 2022. [43] ibid 1:07-1:14 [44] Hanif Kashani, ‘Iranian Rapper Drops Bomb with Pro-Nuke Video’ (Al-Monitor, 14 July 2015) accessed 12 June 2022. [45] Kay Armin Serjoie, ‘This Is the Surprising Way the Iranian Military Responded to the Nuclear Deal’ Time (New York, 16 July 2015) accessed 12 June 2022; Ishaan Tharoor, ‘Watch: Iranian Rapper Celebrates Nuclear Power from the Deck of a Warship’ The Washington Post (Washington, 16 July 2015) accessed 12 June 2022. [46] Tataloo (n 42) 1:03, 1:06, 1:21. [47] ibid 0:04, 0:31-33, 0:42, 0:46, 0:59. [48] Bajoghli (n 26) 114. [49] Tataloo (n 42) 3:15. [50] NasrTV, (NasrTV, 2021, fa.nasrtv.com/page/about). [51] Al-Monitor Staff, ‘IRGC Chief: Israel Could Be Blown up in a Single Operation’ (Al-Monitor, 6 May 2021) accessed 12 June 2022. [52] Tataloo (n 42) 1:38-41. [53] ibid 0:16, 0:36, 1:49. [54] ibid 0:42, 1:48, 0:34, 0:16. [55] ibid 2:44. [56] ibid 1:04, 1:19. [57] Parmis Mozafari, Negotiating a Position: Women Musicians and Dancers in Post-Revolution Iran (The University of Leeds 2011) 240. [58] Tataloo (n 42) 2:02, 1:38. [59] ibid 1:04-28. [60] Hamid Dabashi, Shi’ism: A Religion of Protest (Harvard University Press 2011) 82-4 [61] Roxanne Varzi, ‘Iran’s Pieta: Motherhood, Sacrifice and Film in the Aftermath of the Iran–Iraq War’ (2008) 88 Feminist Review 47. [62] Pedram Partovi, ‘Martyrdom and the “Good Life” in the Iranian Cinema of Sacred Defense’ (2008) 28(3) Comparative Studies of South Asia, Africa and the Middle East 522. [63] ‘Shohadā’ [Martyrs], (Youtube, Amir Tataloo, 23 September 2015) 0:01 accessed 12 June 2022. [64] Ian Black, ‘Bullet-Riddled Cars and Lush Gardens: Iran’s Memorial to Its ‘Nuclear Martyrs’’ The Guardian (London, 2 July 2015) accessed 12 June 2022. [65] Tataloo (n 63) 2:04-20. [66] Saeed Kamali Dehghan, ‘Iran Nuclear Scientist Killed in Tehran Motorbike Bomb Attack’ The Guardian (London, 11 January 2012) accessed 12 June 2022. [67] Tataloo (n 63) 2:40-55. [68] Saeed Kamali Dehghan, ‘Iran Denies Assassinated Academic Worked on Nuclear Projects’ The Guardian (London, 25 July 2011) accessed 12 June 2022. [69] Tataloo (n 63) 2:02, 2:04, 2:43. [70] ibid 2:45, 2:30. [71] Tataloo (n 42) 2:02, 1:32. [72] ‘Jahanam’ [Hell], (Youtube, Amir Tataloo, 15 Jan. 2020) 0:49, 3:22, 6:14 accessed 12 June 2022. [73] ibid 1:19, 6:11, 6:17. [74] ibid 5:42, 5:49, 5:57. [75] ibid 0:17, 1:10. [76] ibid 4:30, 4:45. [77] ‘Tortured Filmmakers and Musicians Face Imminent Arrest Amid Crackdown on Artists’, (Amnesty International, 1 March 2016) accessed 12 June 2022. [78] Tataloo (n 72) 5:12. [79] ibid 5:01, 5:35. [80] ibid 1:43, 1:44, 5:51. [81] ibid 3:39. [82] GJ Breyley and Sasan Fatemi, Iranian Music and Popular Entertainment from Motrebi to Losanjelesi and beyond (Routledge 2016) 141. [83] ‘Chinese Health Workers Dance and Sing in Music Video to Promote Covid Vaccine’, The Independent (London, May 2021) accessed 12 June 2022. [84] (Varzesh3, 21 April 2020) accessed 12 June 2022. [85] Hossein Velayati, ‘Hamid Rasaee and Amir Tataloo’ (Wikimedia Commons, Fars News, 16 July 2017) accessed 12 June 2022. [86] Maryam Sinaiee, ‘Iranian News Agency Targeted by US Sanction Resorts to Hacking to Get Domain Back’ (Radio Farda, 25 January 2020) accessed 12 June 2022. [87] ‘Jalase-ye Amir Tataloo bā Ebrahim-e Ra’isi’ [Amir Tataloo’s Meeting with Ebrahim Raisi], (Aparat, amiromega, June 2020). [88] ‘Blood-Soaked Secrets: Why Iran’s 1988 Prison Massacres Are Ongoing Crimes Against Humanity’, (Amnesty International, 2018) accessed 12 June 2022. [89] (n 87) 0:50-5. [90] Rohollah Faghihi, ‘Senior Iran Cleric Faces down Culture Minister over Concerts’ (Al-Monitor, 23 August 2016) accessed 12 June 2022. [91] Holly Dagres, ‘This Young Iranian Rapper May Have Cost Raisi the Presidency’ (Al-Monitor, 31 May 2017) accessed 12 June 2022. [92] ‘Amir Tataloo Original Fan’, (YouTube, Amir Tataloo Original Fan, 17 December 2020) accessed 12 June 2022. [93] ‘Iran Judiciary Prosecutes Communications Minister Over Internet Access’, (Iran International, 20 January 2021) accessed 12 June 2022. [94] Bajoghli (n 26) 114. [95] ibid 2, 100. [96] ‘Ayā vezārat-e ershād musiqi-ye rap rā be rasmiyat mi shenāsad?’ [Does the Ministry of Culture officially recognise rap music?] (Tarāne Music, 13 May 2016). [97] Mojtaba Tavangar, (Twitter, 2 March 2021) accessed 12 June 2022. [98] Mohammad Sarshar, (Twitter, 2 March 2021) accessed 12 June 2022. [99] ‘Iranians Arrested Over Viral Video Featuring US Porn Star’, (IranWire, 10 March 2021) accessed 12 June 2022. [100] Ali Vaez, ‘Iran’s Rigged Election’ (Foreign Affairs, 16 June 2021) accessed 12 June 2022.

The Court of Strasbourg is a lighthouse, a lookout. - Jean-Paul Costa[1] Introduction The Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights (ECHR), is the ‘essential reference point for the protection of human rights in Europe’.[2] Concluded by the Council of Europe on 4 November 1950, the ECHR defines rights and freedoms which the contracting parties ‘shall secure to everyone within their jurisdiction’ under Article 1 of the ECHR and sets up the mechanisms for controlling contracting parties’ compliance with the obligations to secure these rights and freedoms.[3] This paper will explore Article 6 of the ECHR, not in terms of its practical guidance, but from the point of view of its jurisprudence in achieving fair trial rights in the Member States. Given the remit of such analysis, this paper will not seek to explore all aspects of the jurisprudence of the Court given all the rights and guarantees incumbent within the said Article, but instead concentrate on specific rights to focus on whether or not the Court has been effective in those areas in achieving fair trial rights. Firstly, it will provide an outline study of the jurisprudence of the Court and the tools available to it in reaching its decisions and consider such issues as the Court’s teleological effectiveness, its autonomous approach, the exercise of balancing involving the principle of proportionality and the controversial doctrine of the margin of appreciation. Secondly, and in a closer examination of some of the rights granted under Article 6, the paper will further explore the concept of ‘overall fairness’, and its development within the jurisprudence of the Court and how it has been applied when considering the right to legal advice, the right to an interpreter and the right to examine witnesses so far as securing fair trial rights, and in doing so will also examine some dissenting judgements. Finally, it will assess the overall effectiveness of the Court’s approach and whether or not it has, in fact, achieved ‘fair trial rights’. Understanding the Jurisprudence of the Court As a treaty, the Convention must be interpreted according to the international law rules in the interpretation of treaties.[4] They are to be found in the Vienna Convention on the Law of Treaties 1969 (‘Vienna Convention’).[5] Article 31(1) of the Vienna Convention states that the basic rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In accordance with the Vienna Convention, considerable emphasis has been placed on a teleological interpretation[6] of the Convention, i.e. ‘one that seeks to realise its object and purpose’. This has been identified in general terms as ‘the protection of individual human rights’[7] and the maintenance and promotion of ‘the ideals and values of a democratic society’.[8] Both of these considerations are confirmed by the Convention Preamble, which also identifies ‘the achievement of greater unity between its Members’ as the aim of the Council of Europe.[9] In its Soering judgement, the Court connected this principle of effectiveness to the nature and objectives of the Convention and to its own work in interpreting its provisions: In interpreting the Convention, regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms [effectiveness principle]…Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective…In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society.[10] Thus, Gerards confirms,[11] with reference to the Belgian Linguistics case of 1968, where the Court emphasised that the ‘general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights, was to provide effective protection of fundamental human rights’[12] and the Airey case in 1979 where the Court rephrased the principle of effectiveness in a formula that it still uses today that ‘the convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.[13] It was highlighted that the notion of effectiveness provides the Court with important guidance in interpreting the Convention and in assessing the reasonableness and acceptability of interferences with the Convention rights. According to Article 1 of the Convention, the primary responsibility for offering effective protection of the Convention rights lies with the national authorities, who must ‘secure the Convention rights to everyone within their jurisdiction’. This has been called the principle of ‘primarity’.[14] The Court’s task is mainly one of checking whether the national authorities have complied with the obligations they have undertaken under the Convention. This is referred to as the principle of ‘subsidiarity’.[15] While not previously mentioned in the Convention, it has long been established in the Court’s jurisprudence, and as of August 2021, together with the margin of appreciation doctrine, it is now included as a principle within the Convention’s Preamble, pursuant to Protocol 15.[16] The principle of subsidiarity provides a theoretical basis for deference by the Strasbourg Court when considering compliance by State parties with their Convention obligations.[17] It also underlies the Strasbourg Court’s view that, in line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the efficacy of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention’.[18] and that the Court is not a fourth instance court of appeal from national courts. In the words of the Court, ‘it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention’.[19] Therefore, a claim that an error involves a breach of the right to a fair hearing in Article 6 will not succeed, as Article 6 provides a procedural guarantee only; it does not guarantee that the outcome of the proceedings will be correct on the facts or in law.[20] An important consideration which lies at the heart of the Court’s interpretation of the Convention and which is key to realising its ‘object and purpose’ is the need to ensure the effective protection of the rights guaranteed.[21] In Artico v Italy,[22] the Court stated that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. In that case, the Court found a breach of the right to legal aid in Article 6(3)(c) because the legal aid lawyer appointed by the state proved totally ineffective.[23] A potential stumbling block in a coherent jurisprudence lies within the Court’s approach to the principle of consistency in interpretation which is limited by the text of the Convention. In Stec and Others v UK the Court stated that the ‘Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions’.[24] Harris (et al.) note that although the Court relies heavily upon the ‘object and purpose’ of the Convention, it has occasionally found its freedom to do so is limited by the clear meaning of the text.[25] For example, in Wemhoff v Germany[26] it was held that Article 5(3) does not apply to appeal proceedings because of the wording of Article 5(1)(a). Exceptionally, in Pretto and Others v Italy, the Court went against the clear working of the Convention in order to achieve a restrictive result by acknowledging ‘that members States have a long-standing tradition of recourse to other means, besides reading out aloud, for making public the decisions of all or some of their courts…for example deposit in a registry accessible to the public’. There it held: The Court, therefore, does not feel bound to adopt a literal interpretation. It considers that in each case, the form of publicity to be given to the ‘judgment’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1.[27] In essence, the unqualified requirement in Article 6(1) that judgements be ‘pronounced publicly’ does not apply to a Court of Cassation. The Court considered that it must have been the intention of the drafting states to respect the long-standing tradition of the Council of Europe, despite no clear evidence in the travaux préparatoires.[28] Harris (et al.) considers that the Court’s approach may have been influenced by the fact that the text of Article 6 was probably drafted with only trial proceedings in mind.[29] In another decision of the Court, it adopted the position that the text of the Convention may be amended by state practice. The Court in Soering v UK[30] at, paragraph 103 said as follows: The Convention is to be read as a whole, and Article 3 should therefore be construed in harmony with the provisions of Article 2. On this basis, Article 3 evidently cannot have been intended by the drafters of the Convention to include a general prohibition of the death penalty since that would nullify the clear wording of Article 2 § 1. It then considered the law in the United Kingdom with respect to capital punishment, and in finding that the death penalty cannot be imposed for murder (Murder (Abolition of the Death Penalty) Act 1965, section 1) the subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence to remove a textual limit on the scope for evolutive interpretation of Article 3.[31] At the time of the Soering judgement, the Court highlighted that ‘de Facto the death penalty no longer exists in the time of peace in the Contracting States to the Convention’, and in those where it did, it was not carried out. It suggested that this virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice…is reflected in Protocol No. 6 to the Convention, which provides for the abolition of the death penalty in time of peace…has been ratified by thirteen Contracting States to the Convention.[32] The Court has emphasised that a European, autonomous definition for such notions and concepts that are also used in national constitutions and legislation should prevail.[33] The Court has expressly stated that the integrity of the objectives of the Convention would be endangered if the Court were to take the national level of protection, or the national definition of certain notions, as a point of departure for its own case law. In particular, as Gerards highlights, this would pose the risk that the States might try to evade the Court’s supervision by narrowly defining the terms and notions that determine the Convention’s applicability.[34] However, despite this, the Court in Engel[35] left the decision as to whether effective protection of the right to a fair trial would be at risk by moving parts of the criminal law to disciplinary law to the national authority. Similarly, in Vo, the Court deliberately decided to avoid having to make the decision of when ‘life’ can be held to begin by leaving it within the margin of appreciation doctrine,[36] justifying its position by stating that firstly…such protection has not been resolved within the majority of the Contracting States…and secondly, that there is no European consensus on the scientific and legal definition of the beginning of life’.[37] In principle, the Court’s methodology was the opposite of an autonomous approach adopted in Engel, namely that the autonomous concepts of the Convention enjoy a status of semantic independence: their meaning is not to be equated with the meaning that these very same concepts possess in domestic law.[38] A similar concern recently arose in the case of R v Brecani[39] in the United Kingdom (UK), concerning a 17-year-old defendant in a conspiracy to supply cocaine. The defendant relied on the two-limb statutory defence under the Modern Slavery Act (MSA) 2015, s.45(4).[40] The appeal concerned the status of a Victim of Trafficking as determined by ‘a competent authority’. In VCL and AN v UK the ECtHR stated that ‘Evidence concerning an accused’s status as a victim of trafficking is…a ‘fundamental aspect’ of the defence which he or she should be able to secure without restriction’.[41] By contrast, the ‘status’ which the ECtHR afforded appeared to mean that as determined by the competent authority. However, the Court of Appeal in Brecani, in providing a broad formulation of the ratio, stated that ‘caseworkers in the ‘competent authority’ are not experts in human trafficking or modern slavery and for that fundamental reason cannot give opinion evidence in a trial…’.[42] This decision has the potential to cause injustice and put the UK in breach of its international obligations, such as whether it was appropriate for the UK to prosecute a victim of trafficking following a determination by a single competent authority in line with the Council of Europe Convention and the Palermo Protocol to the UN Convention on Transnational Organised Crime rather than on domestic legislation alone.[43] As Mennim and Ward suggest, if the ECtHR reaffirms or clarifies its view in VCL, the Court of Appeal or the Supreme Court will need to (re-) consider the same point.[44] The Brecani case highlights the concern raised by Gerards’ earlier, that can result in narrowed interpretations to circumvent compliance with a Contracting Party’s Article 6 obligations. How Proportionality is employed Stein argues that balancing is central to the reasoning process of the ECtHR, yet it is considered by many to be in tension with the Court’s chief aim of protecting fundamental rights.[45] Balancing in the jurisprudence of the ECtHR is essentially synonymous with proportionality assessment, the adjudication method used by the Court in the vast majority of its cases, this is despite its absence from the text of the ECHR. The use of proportionality in assessing violations of Convention rights has become the norm in the Court’s adjudication process.[46] However, while this may be the case, Stein argues that far from the textbook structured proportionality review, which is generally a constructed test made up of three independent, yet interrelated sub-stages (suitability, necessity/least restrictive means and proportionality in the strict sense/balancing test), proportionality as adopted by the ECtHR, is a flexible, open-ended balancing test in which competing claims of individual rights and collective goals are weighed against each other on a case-by-case basis.[47] The principle is often employed under the second paragraphs of Articles 8-11, where a state may restrict the protected right to the extent that this is ‘necessary in a democratic society’. This formula has been interpreted as meaning that the restriction must be ‘proportionate to the legitimate aim pursued’.[48] Similarly, proportionality has been invoked when setting the limits to an implied restriction that has been read into a Convention guarantee[49] and, in some cases, in determining whether a positive obligation has been satisfied. It has also been employed in considering non-discrimination under Article 14[50] and derogation from the Convention under Article 15.[51] Stein further contends that the resort to an all-inclusive balancing test carries controversial side effects that impact the review stages preceding the proportionality assessment, namely the ‘definitional’ stage and the ‘legitimate aim’ stage.[52] In respect of the former stage, Stein cites Gerards and Senden,[53] who argue that the ECtHR often completely skips this stage or pays lip service to it by accepting that the case falls within a Convention right without providing an explanation. When the Court does address the definition of the right, it often merges this analysis with the assessment of the justification for its limitation, thus avoiding the need to draw the scope of the right independent of competing policy considerations.[54] The second notable side effect, Stein identifies,[55] concerns the ‘legitimate aim’ in which illegitimate policy aims are filtered out. At times, quoting Šušnjar, the legitimacy of the aim is assumed, explicitly or implicitly.[56] Further, Gerard notes that although mentioned in each case, the Court has rarely found an aim to be illegitimate and has refrained from developing sub-requirements to help to elucidate the requirements entailed in the different prescribed aims.[57] Sadurski holds that even in the rare instances in which the Court expresses mild doubts concerning the aim, it brackets or disregards these doubts and proceeds to assess the proportionality of the application of the challenged measure/law.[58] The result of this process is that the illegitimacy of the aim is integrated into the proportionality assessment and is not the outcome of independent scrutiny.[59] The failure to articulate unjustified aims elevates collective goals, regardless of their incompatibility with what we value as essential to a given right.[60] When deciding on the proportionality of a ‘general measure’ enacted by a legislature, the Court has taken into account the quality of the parliamentary review in the respondent state that requires the measure. In the Animal Defenders International v UK case, the dissenting judgements expressed unease at the Court’s approach, stating their concern that the ‘double standard within the context of a Convention whose minimum standards should be equally applicable through all the States parties to it…very difficult to understand’.[61] The dissenting judges expressed their concern that the ‘fact that a general measure was enacted in a fair and careful manner by Parliament does not alter the duty incumbent upon the court to apply the established standards that serve for the protection of fundamental human rights’. They went further and stated: It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission. Taken to its extreme, such an approach risks limiting the commitment of State authorities to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention. Where the determination of the public interest and its best pursuit are left solely and exclusively to the national legislator, this may have the effect of sweeping away the commitments of High Contracting Parties under Article 1 of the Convention read in conjunction with Article 19, and of re-asserting the absolute sovereignty of Parliament in the best pre-Convention traditions of Bagehot and Dicey. The doctrine of the margin of appreciation, which was developed to facilitate the proportionality analysis, should not be used for such purpose.[62] As evidenced above, a further doctrine, which plays a crucial role in the interpretation of the Convention, is the margin of appreciation. The essence of this doctrine is that a state is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, administrative or judicial action bearing on a Convention right.[63] The doctrine was first explained by the Court in Handyside v UK.[64] As Harris (et al.) highlight, the doctrine is a controversial one.[65] When applied widely, for example, to tolerate questionable national practices or decisions, for example, Barfod v Denmark,[66] it may be argued that the Court has abdicated its responsibilities.[67] However, underlying the doctrine is the understanding that the legislative, executive, and judicial organs of a state to the Convention basically operate in conformity with the rule of law and human rights and that their assessment and presentation of the national situation can be relied upon in cases that go to Strasbourg.[68] Given this premise, Harris (et al.) suggest that the doctrine can be justified and accords with the principle of subsidiarity, albeit not used in other human rights systems globally.[69] In the next part of the paper, I will consider how the court’s jurisprudence is employed within the ambit of Article 6, in particular, Article 6(1), Article (2) and Article 6(3)(c) and (d) of the Convention and reflect on whether or not the concept of ‘overall fairness’ has been applied before assessing the overall effectiveness of the Court’s approach and whether or not it has, in fact, achieved ‘fair trial rights’. Article 6 Jurisprudence Article 6[70] does not contain a limitation clause. It does however enshrine the right to a fair trial, a broad term which includes a cluster of correlated procedural rights, starting from the more abstract, such as the right to an independent and impartial tribunal (Article 6(1)[71] and the presumption of innocence (Article 6(2)[72] to something more concrete, such as the right to legal assistance and the right to examine witnesses (Articles 6(3)(c) and (d).[73] The Court has also read into Article 6(1) certain implied rights, such as the right to effective participation[74] and equality of arms[75] which Samrartzis states can be similarly pinned on a sliding scale of abstraction.[76] However, according to Hoyano, despite the idiosyncratic list, it failed to include the privilege against self-incrimination and pre-trial disclosure of evidence possessed by the prosecution, which the ECtHR had to read into Article 6 to give it instrumental content.[77] The text of Article 6 does not provide a method by which to determine whether the infringement of a right protected under Article 6 is justified. This ambiguity is amplified by the fact that Article 6 is not an absolute right.[78] Further and more intriguing is the fact that parties may derogate from it under Article 15. Article 6(1) provides a generalised right to a ‘fair and public hearing’; Article 6(2) guarantees the presumption of innocence of all accused of a criminal offence; and Article 6(3) particularises five ‘minimum rights’ (see Annex I for the full text of Article 6). A fair trial guarantee does not require providing the most favourable circumstances imaginable for the defence, according to Hoyano.[79] ‘Fairness’ within the Concept of a Fair Trial In the context of rights relating to a fair trial, Goss holds that the ECtHR has displayed a tendency to refer to the ‘standards of proportionality’ and ‘very essence’ practically interchangeably, as in Goth v France (2002),[80] so there is hardly any significant distinction between what constitutes a disproportionate infringement and what constitutes an impairment of the very essence of the right.[81] Goss’s condemnation goes further: This irrational flexibility means that the Court can approach an individual application in an unpredictable multitude of ways: the Court may be deferential or not; the relevant test may be said to be one part of Article 6 or several; the relevant basis for the implied rights may be said to be one thing or another; and the alleged violation may be assessed using any one of a number of incoherent approaches…If the Court wished to deploy different approaches in similar situations, or different approaches in different situations, the interests of predictability and consistency simply demand that it adequately explain itself.[82] Hoyano takes the view that Strasbourg’s conception of the purpose of the fair trial guarantee is restrictive in that it is only designed to secure justice from national courts in the overall procedure afforded by their legal system rather than justice in the result.[83] According to Samartzis,[84] overall fairness is the unifying standard by which the Court has come to determine the relation of the rights. For example, to access a lawyer and examine witnesses under Article 6(3)(c) and (d), respectively, and the general right to a fair trial under Article 6(1).[85] Overall fairness, Samartzis submits, is an open-ended concept that emerged early on in Strasbourg jurisprudence and initially was conceived as an additional guarantee to the minimum rights of Article 6(3) ECHR.[86] In recent years, overall fairness has evolved into a distinct stage of the test[87] by which the Court finds a violation of Article 6(3)(c) and (d). However, Samartzis concludes that its meaning remains elusive or, as Hoyano describes it’s: a ‘protean and multidimensional term’.[88] In the cases of Salduz v Turkey[89] and Ibrahim and Others v UK[90], the ambiguous meaning given to ‘overall fairness’ by the Court serves, according to Samartzis,[91] to undermine the rule of law and facilitate judgements that misconceive the nature of the right. The Salduz test was generally understood to expand the protection afforded under Article 6(3)(c): the accused was to have a near-absolute right to access a lawyer before the trial, subject to a robust ‘compelling reasons’ test. Incriminating statements given without the benefit of legal advice and assistance should not be used for a conviction. In Ibrahim and Others, the Court reiterated the Salduz rule, specifying that it involved two stages. Firstly, the right to access a lawyer at the pre-trial stage can be restricted if there are compelling reasons to that effect. This is a stringent test:[92] factors relevant to its satisfaction are (a) whether the restriction has a statutory basis, (b) the quality of the legal provisions, and (c) the exceptional character of the restriction. Secondly, the Court examines the impact of the restriction on the overall fairness of the proceedings. This stage, Samartzis maintains, does not presuppose the presence of competing reasons. Instead, the Court recognised that the restriction might, in exceptional circumstances, be permissible even in their absence.[93] Thus, it rendered overall fairness the overriding consideration in finding a violation of Article 6 ECHR, of which the ‘compelling reasons’ test is but an aspect. Similarly, the Court conceived Article 6(3)(c) as an aspect of the fair trial stipulated by Article 6(1) rather than as an independent procedural right.[94] Samartzis further examines ‘overall fairness’ in the case of Schatschashwili v Germany.[95] The case questioned the compatibility with Article 6(1) and Article 6(3)(d) ECHR concerning trial statements of absent witnesses whom neither the accused nor his counsel had the opportunity to examine in the preliminary proceedings. Like Ibrahim and Others, the Court adopted a similar approach and formulated its methodology as a three-stage test[96] in accordance with the principles developed in Al-Khawaja and Tahery v UK.[97] The first part of the test considered whether there was a good reason for the witnesses’ absence. The second part was to determine whether the statements were the sole or decisive evidence for the conviction of the accused, and in the final part, the Court reviewed the overall fairness of the proceedings. From the assessment, the presence of counterbalancing measures was considered crucial, with the ‘sole or decisive rule’ under the second limb being no longer absolute. While the Court made a finding of a violation of Article 6 in this particular case, it noted that the absence of good reasons for non-attendance alone did not itself render the trial unfair even if the untested evidence was neither sole nor decisive and was possibly even irrelevant for the outcome of the case as this would amount to the creation of a new indiscriminate rule.[98] Samartzis emphasises that once again, the Court reduces one of the stages into the overall fairness assessment instead of being replaced with a concrete rule.[99] In further consideration of the overall fairness in the assessment of proceedings the court in Murtazaliyeva v Russia[100] insisted that its preservation ensured that the three-pronged test that it introduced did not become excessively rigid or mechanical in its application.[101] The Court asserted that the significance of the testimony that is sought must be weighed against its ability to influence the outcome of the trial. Owen points out that the three-part test: (a) whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation; (b) whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial; and (c) whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings, is problematic. He highlights that its introduction continues to place the burden upon the defendant to justify why the witness must be heard as opposed to the prosecution showing why the witness should not.[102] He further identifies that what is of particular relevance is that the requirement is now imposed upon defendants to be able to show that evidence that a witness would provide can reasonably be expected to strengthen the case for the defence. This concept, as noted by Judge Pinto de Albuquerque, who, in his dissenting opinion, commented that the three-pronged test is a prima facie liberal test that is applied in an illiberal manner.[103] Further, Judge Bošnjak, in his partly dissenting opinion, expressed concern about the fact that it is often ‘impossible’ to determine what effect the testimony of a witness will have upon a court before that testimony is heard.[104] In 2017, the Grand Chamber applied the two-stage test analysis under Ibrahim and Others in Simeonovi v Bulgaria and found no violation of Article 6(3)(c), although the applicant, in that case, was denied access to a lawyer without any compelling reason.[105] In a further decision of the Court in November 2018 in Beuze v Belgium[106] where the applicant was subject to a systematic and mandatory restriction on his right to access his lawyer at the investigation stage, the Court had to explain: whether a clarification [as to the two stage test of analysis made in Ibrahim] is of general application or whether, as claimed by the applicant in the said case, the finding of a statutory restriction is in itself, sufficient to have been a breach of the requirements of Article 6(1) and Article 6(3)(c).[107] In the majority of the Court’s opinion,[108] the mere existence of a systematically applied general and mandatory restriction on the right to access to a lawyer does not in itself result in a violation of Article 6(3)(c). However, in the joint concurring opinion of Judges Yudkivska, Vučinić, Turković and Hüseynov, they highlighted that the Salduz type of case, of which Beuze was one, and Ibrahim and Others case were two very different cases.[109] The Grand Chamber acknowledged this in the judgement in Beuze,[110] yet it decided to view such ‘fundamentally different situations through the same lens without ever analysing those differences in any depth’. The concurring judges believed that these two situations, when it comes to guaranteeing minimum rights to the assistance of a lawyer during pre-trial proceedings, deserve to be treated differently and were treated differently before the present judgement.[111] The concurring judges took the view that the judgement in Beuze departed from the standards of a fair trial as determined in Salduz and Ibrahim and Others, taken together. They went further and took the view that the judgement distorted and changed the Salduz principle and devalued the right that the Court established previously.[112] They considered That moreover, the present judgment also weakens, if not overrules, the jurisprudence in which the Court has laid down several other conditions which the domestic authorities must respect in restricting the Article 6 safeguards, including the right of access to a lawyer: first, that no restriction should be such as to destroy or extinguish the very essence of the relevant Article 6 right; second, that the restrictions may, in general, be imposed if they pursue a legitimate aim; third, that the restriction should be reasonably proportionate to the aim sought to be achieved.[113] Celiksoy takes the view that the Beuze judgement presented a dilemma in terms of whether the Salduz test or the Ibrahim and Others test had to be followed by the ECtHR.[114] If it followed the former approach and found an automatic violation of Article 6(3)(c) due to the restriction on the right to access a lawyer in the absence of compelling reasons, it would have contradicted the Ibrahim and Others test, which always requires a two-stage analysis.[115] In adopting the latter test, it was at the cost of the principles in the Salduz case and therein ‘devaluing’ the jurisprudence of the court over a period of ten years.[116] The real problem, Celiksoy contends, arose from the majority’s methodology and reasoning by insisting that both tests under both cases were the same when in fact, as cited supra, the Court acknowledged that they were separate.[117] The majority had missed an opportunity to re-establish both the Salduz and Ibrahim and Others tests as two separate but complementary principles.[118] In Doyle v Ireland[119] the dissenting judgement of Judge Yudkivska highlighted that the decision in Beuze[120] was based on a misguided interpretation of the Court’s own jurisprudence. In Doyle, the Court, relying on Ibrahim and Others and Beuze[121] in applying the overall fairness assessment, concluded that its strict scrutiny revealed that the proceedings were fair as a whole and there was no violation under Articles 6(1) and Article 6(3)(c) of the ECHR. Remarkably, in his dissenting judgement Judge Yudkivska concluded that 'the overall fairness of the proceedings in the present case was irreparably compromised'.[122] These are, without doubt, strong words when compared to the majority decision. Celiksoy submits that in his assessment of the Beuze judgement the case sends an implied message to the states that there is no need to recognise the right of access to a lawyer as a rule since even the application of a systematic statutory restriction of a general and mandatory note will not in itself constitute a violation of Article 6(3)(c).[123] Samartzis surmises that the novelty of the overall fairness line of authority lies in that overall fairness may override the meaning of Article 6, not only to expand but, surprisingly also, to negate the minimum fair trial guarantees of Article 6(3).[124] He argues further that, on one account, the Court’s overall fairness jurisprudence focuses on the accuracy of the trial’s outcome, which is indicated by the fact that the result of the overall fairness assessment coincides with whether or not the Court is convinced that the applicant was in fact guilty.[125] With the exception of Schatschaschwili v Germany, every relativisation of the Court’s bright-line tests has come with a finding of no violation of Article 6 in cases where the guilt of the accused appears indisputable.[126] One has to question whether or not the high bar required of successfully challenging Article rights 6 in light of the Doyle judgement[127] is capable of being met given the propensity of the ECtHR to rely on (properly considered) reasoning of domestic courts in its decision-making process. Vogiatzis argues that every violation of the right to interpretation undermines the overall fairness of the proceedings[128] and gives effect to the requirement of the rule of law. In its first judgement on Article 6(3)(e), the Court found that paying for interpretation costs ‘may have repercussions for [the accused person’s] exercise of the right to a fair trial as safeguarded by Article 6.[129] But, as Vogiatzis highlights, it was in Kamasinski[130] where the link between interpretation rights and fairness was solidified: the ‘guarantees in paragraphs 2 and 3 of Article 6…represent constituent elements of the general concept of a fair trial embodied in paragraph 1’. Placing the guarantee in the context of a fair trial under Article 6(1) enabled the ECtHR to deduce the principle that the right to interpretation applied not only to oral statements at the trial hearing but also to ‘documentary material and pre-trial proceedings’.[131] In Amer,[132] the Court reiterated that the interpretation right at the pre-trial stage ensures a fair trial, and a key consideration for the interpretation of this right is the defendant’s linguistic knowledge and the nature of the offence.[133] Despite this positive development of the link between the right to an interpreter and a fair trial, in Panasenko,[134] the Court appeared to unduly focus on the conduct of the accused at trial as opposed to thoroughly scrutinising states for failing to meet their positive obligations. It relied on the fact that the applicant did not specify the extent of the problems with interpretation at the trial, which impaired his broader right to a fair trial.[135] While Vizgirda[136] may have accentuated states’ positive obligations, Panasenko[137] highlights the extent to which the Court will go to undermine the applicant’s rights. The Court, further, having drawn inspiration from EU law, has not gone as far, Vogiatzis suggests, as duplicating the provisions/standards prescribed by Directive 2010/64 EU.[138] Conclusions As highlighted above, in the Animal Defenders’ case, the dissenting judgement of the Court raises a fundamental issue concerning the Court’s approach generally within the context of the Convention, and that is that a minimum standard should be equally applicable to all the States’ parties. States which seek to interfere in those fundamental rights, whether legislated upon or judicially decided, as evidenced in the recent decision of R v Brecani, have the effect of States avoiding their obligations under Article 1 and giving solace to the pre-Convention pervasive view that Parliament is sovereign. The Doctrine of Appreciation, which is used frequently in connection with the principle of proportionality, has the effect of weakening the Court’s role and, therein, the rights afforded to individuals under the Convention. A reliance on States compliance with the rule of law and its obligations under the Convention borders on collective naivety if the Court does not wish to appear to be abrogating its responsibilities and instead should seek to impose consistency and compliance across the board. Goss’ evaluation of the indistinctive assessment adopted by the Court has its merits, while the language used by the Court in its jurisprudence of ‘overall fairness’, as summarised by Samartzis, equally does not provide sufficient clarity to its meaning, as evidenced in Ibrahim and Others and Beuze. Equally, the Court in Murtazaliyeva introduced a reversal of the burden onto the defendant on why a witness must be heard, a fact highlighted by Judge Bošnjak in his partly dissenting opinion. It is difficult at times to reconcile the reasoning of the Court, particularly in these cases wherein it sought to undermine its own jurisprudence by compromising the ‘overall fairness’ of proceedings, as Judge Yudkivska emphasised in Doyle. The impact of these decisions is enormous and has the effect of eroding or extinguishing basic fundamental rights as well as encouraging, at the very least, attempts by national governments or national courts to implement laws and/or interpret judgements that can undermine rights and freedoms guaranteed under the Convention, thereby upsetting the harmony first sought and advanced in Stec and Others v UK. Annex I Article 6: Right to a fair trial In the determination of his civil rights and obligation or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of moral, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; to have adequate time and facilities for the preparation of his defence; to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; to have the free assistance of an interpreter if he cannot understand or speak the language used in court.[139] Damian P Clancy Damian P Clancy (LL.B (Hons) Cardiff) is a non-practising solicitor in England and Wales and is currently undertaking his Masters Degree at the University of Limerick. Damian’s professional background is in family law where he qualified as an Arbitrator and one of the first to qualify in England as a Child Arbitrator. He is looking to continue his studies by undertaking a PhD. [1] Jean-Paul Costa, La Cour Européenne Des Droits De L’Homme: Des Juges Pour La Liberté (Dalloz 2013) 257. Costa is a former President of the ECtHR (2007-2011). Translation from Marie-Luce Paris, ‘The European Convention on Human Rights: Implementation Mechanisms and Compliance’ in Suzanne Egan (ed), International Human Rights: Perspectives from Ireland (Bloomsbury 2015) 91. [2] Recommendation Rec. (2004) 4 of the Committee of Ministers to Members States on the European Convention on Human Rights in university Education and Professional Training [2004] 114th Session. [3] Paris (n 1) 91. [4] See e.g. Golder v UK A 18 (1975); 1 EHRR 524 PC [29] and Johnston and Other v Ireland A 112 (1986); 9 EHRR 203 [51]. [5] David Harris, Michael O'Boyle, Ed Bates, and Carla Buckley (eds), Law of the European Convention on Human Rights (4th edn, OUP 2018) 6. [6] Nikos Vogiatizis, ‘Interpreting the Right to Interpretation under Article 6(3) € ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?’ (2021) 00 Human Rights Review 7. [7] Soering v UK A 161 (1989); 11 EHRR 439 [87]. [8] Kjeldsen, Busk Madsen, and Pedersen v Denmark A 23 (1976); 11 EHRR 439 [87]. [9] Harris et al (n 5) 7. [10] Soering v UK (n 7). [11] Janneke Gerards, General Principles of the European Convention on Human Rights (Cambridge University Press 2019) 4. [12] Belgian Linguistics Case (1968) 1474/62, I.B. 5. [13] Airey v Ireland, ECtHR 9 October 1979, 6289/73 [24]. [14] J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff Publishers 2009). [15] Explanatory report: Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (coe.int) [9]. For an explanation as to the term ‘subsidiary’, see Harris et al (n 5) 17-8. [16] European Convention on Human Rights - Official texts, Convention and Protocols (coe.int)– Entry in force since 01.08.2021—Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 213) - ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’. [17] Harris et al (n 5) 17. [18] Varnava and Others v Turkey hudoc (2009) 164. [19] Garcia Ruiz v Spain 1999-I; 31 EHRR 589 [28], cited in Harris et al (n 5) 18. [20] Harris et al (n 5) 18. [21] ibid. [22] Artico v Italy A 37 (1980; 3 EHRR 1 [33]. Cf. Airey v Ireland A 32 (1979); 2 EHRR 305 [24]. [23] Harris et al (n 5) 18. [24] Stec and Others v UK (2006)-V: 43 EHRR 1027 [48] GC. Cf Klass and Others v Germany A 28 (1978); 2 EHRR 214 PC. [25] Harris et al (n 5) 19. [26] Wemhoff v Germany A 7 (1968); 1 EHRR 55. [27] Pretto and Others v Italy A 71 (1983); 6 EHRR 182 [26]. [28] Harris et al (n 5) 19. [29] Harris et al (n 5) 19. [30] Soering v UK (n 7). [31] While state practice had not reached this point by the time of the Soering case, in the Al-Saadoon and Mufdhi v UK (2010) 61498/08 case the Court later concluded that it had, so that the numbers of ratification of the Thriteenth Protocol prohibiting capital punishment and other state practice were ‘stongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances’ [120]. [32] Soering v UK (n 7) 103. [33] H.C.K. Senden, Interpretation of Fundamental rights in a Multilevel Legal System. An Analysis of the European Court of Human Rights and the Court of Justice of the European Union (Intersentia 2011) 169, 298, cited in Gerards (n 11) 67. [34] G.I.E.M. S.R.L and Others v Italy (2018), ECtHR (GC) 1826/06, 216 cited in (n 11) 67-68. [35] Engel and Others v the Netherlands, ECHtHR 24 June 2010, 30141/04. [36] An explanation is provided at page 11. [37] Vo v France, ECtHR (GC) 8 July 2004, 53924/00, 82-84 cited in (n 11) 71-72. [38] George Letsas ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15 European Journal of International Law 2, 279, 282. [39] [2021] EWCA Crim 731. [40] R v. Brecani [2021] EWCA Crim 731 - MSA 2015 s.45(4)—(i) that the defendant was a child who had been trafficked from Albania and this his involvement in a conspiracy to supply cocaine was a direct consequence of his having been a victim of slavery or relevant exploitation; and (ii) that reasonable person in the same situation as he was and having his relevant characteristics would have acted as he did. [41] VCL and AN v UK, App. No’s 77587/12 and 74603/12, 161. [42] ibid 54. [43] Sean Mennim and Tony Ward, ‘Expert Evidence, Hearsay and Victims of Trafficking: R v Brecani [2021] EWCA Crim 731’ (2021) 85(6) The Journal of Criminal Law 471, 474. [44] ibid 475-476. [45] Shlomit Stein, ‘In Search of Red Lines in the Jurisprudence of the ECtHR on Fail Trial Rights’ (2017) 50 Isr. L. Rev. 177, 182. [46] ibid citing (n 31); Marc-Andre Eissen, ‘The Principle of Proportionality in the Case Law of the European Court of Human Rights’ in Ronald St J Macdonald, Herbert Petzold, and Franz Matscher (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) 125, 146. [47] (n 43) and (n 30). [48] Handyside v UK A 24 (1976); 1 EHRR 737 PC [49]. [49] Fayed v UK A 294-B (1994); 18 EHRR 393,71 (Article 6(1)). [50] Belgian Linguistics; case A 6 (1968); 1 EHRR 241 [284]. [51] Lawless v Ireland (Merits) A 3 (1961); 1 EHRR 15 & Ireland v UK A 25 (1978); 2 EHRR 25 PC. [52] VCL (n 43) 183. [53] ibid 184, citing Janneke Gerrard, and Hanneke Senden, ‘The Structure of Fundamental Rights and the European Court of Human Rights’ (2009) 7 International Journal of Constitutional Law 619, 632-634. [54] VCL (n 43) 184, citing ibid 639. [55] ibid. [56] Davor Šušnjar, Proportionality, Fundamental Rights, and Balance of Powers (Brill 2010) 90. [57] Janneke Gerards, ‘Judicial Deliberations in the European Court of Human Rights’ in Nick Huls, Naruice Adams and Jacco Bomhoff (eds), The Legitimacy of highest Courts’ Rulings: Judicial Deliberations and Beyond (TMC Asser Press 2009) 407, 417, 62. [58] VCL (n 43) 184, citing Wojciech Sadurski, ‘Is There Public Reason in Strasbourg?’, research paper, Sydney Law School, 6 May 2015, 15/46 3-5. [59] ibid 10. [60] ibid 185, citing Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal of Constitutional Law 468, 488. [61] Animal Defenders International v UK Hudoc (2013) [1]—Joint Dissenting Opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano. [62] ibid 10. [63] Harris et al (n 5) 14 and (n 15) as to the amendments to the Preamble under Protocol 15. [64] Stein (n 46) 48-49. [65] Harris et al (n 5) 16. [66] Barford v Denmark A 149 (1989) 13 EHRR 493 [28-36]. [67] Harris et al (n 5) 16-7. [68] Harris et al (n 5) 17. [69] ibid and (n 122). [70] See Annex I for the full transcript of Article 6. [71] Article 6(1) - In the determination of his civil rights and obligation or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of moral, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice. [72] Article 6(2) - Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. [73] Article 6(3) - Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. [74] Stafford v UK Application No 16757/90, Merits and Just Satisfaction, 23 February 1994. [75] Neumeister v Austria Application No 1936/63, Merits, 27 June 1968. [76] Andreas Samartzis, ‘Weighing Overall Fairness: A Critique of Balancing under the Criminal Limb of Article 6 of the European convention on Human Rights’ (2021) 21 Human Rights Law Review (2012) 2, 410. [77] Laura Hoyano, ‘What is balanced on the scales of justice? In search of the essence of the right to a fair trial;’ (2014) Criminal Law Review 1, 8. [78] Samartzis (n 76) 410. [79] Hoyano (n 77) 6. [80] Goth v France (2002) App No. 56316/99—See Mennim (n 43) 186 and (n 63)—where the court ruled that the requirement of surrendering to custody as a requirement of admissibility of appeal deprived the petitioner of liberty, and ‘undermined the very essence of the right to appeal by placing a disproportionate burden on the appellant that upset the fair balance that had to be maintained between the need to enforce judicial decisions and the need to ensure access to the Court of Cassation and that the defence was able to exercise its rights’. [81] Mennim (n 43) 186, citing Ryan Goss, Criminal Fair Trial Rights (Hart, 2014) 198-201. [82] Ryan Goss, Criminal Fair Trial Rights (Hart 2014) 206-207, cited in ‘Criminal fair Trial Rights: Article 6 of the European Convention on Human Rights’ Crim. L R., 2015, 3, 243-246, 243. [83] Hoyano (n 77) 8. [84] Samartzis (n 76) 410. [85] For example, Atlan v United Kingdom (2002) 34 EHRR 33, 39. [86] Samartzis (n 76) 413, citing Nielsen v Denmark where the European Commission of Human Rights held that, irrespective of whether there has been a violation of the minimum rights of Article 6(3), ‘the question whether the trial conforms to the standard laid down by paragraph 1 much be decided on the basis of the consideration of the trial as a whole.—Nielsen -v Denmark Application No 343/57, Commission (Plenary) Report, 15 March 1960 [52]. [87] As to the second stage of the Salduz v Turkey case (n 87) following an analysis in the first stage of where access to a lawyer can be restricted for compelling reasons. This second stage does not presuppose the presence of compelling reasons, instead the Court recognised that the restriction may, in exceptional circumstances, be permissible even in their absence. [88] ibid 413 citing Hoyano (n 58) 4. [89] Salduz v Turkey [GC] Application No. 36391/02, Merits and Just Satisfaction, 27 November 2008. [90] Ibrahim and Others v UK [GC] Application Nos 50, 541/08, 50, 571/08, 50, 573/08 and 40, 351/09, Merits and Just Satisfaction, 13 September 2016. [91] Samartzis (n 76) 412. [92] ibid 414. [93] Samartzis (n 76) 415, citing from the Ibrahim judgement (n 70) 265. [94] ibid 415. [95] Schatschashwili v Germany [GC] Application No. 9154/08, Merits and Just Satisfaction, 15 December 2015 cited by Samartzis (n 76) 415-416. [96] ibid 107. [97] Al-Khawaja and Tahery v UK [GC] Application No.’s 26766/05 and 22228/06. [98] Schatschashwili v Germany (n 95) 111-113. [99] Samartzis (n 76) 416. [100] Murtazaliyeva v Russia [2018] ECHR 1047. [101] Samartzis (n 76) 416-417. [102] Jordan Owen, ‘Questioning of Witnesses’ (2019) E.H.R.L.R. 2019, 2, 217-221, 220. [103] ibid 221 citing Judge Pinto de Albuquerque at para 18 of his dissenting judgment in Murtazaliyeva v Russia (n 98) [104] Murtazaliyeva v Russia (n 100) 220-221. [105] Simeonovi v Bulgaria [2017] ECHR 438. [106] Beuze v Belgium [2018] ECHR 925. [107] Ergul Celiksoy, ‘Overruling ‘the Salduz Doctrine’ in Beuze v Belgium: The ECtHR’s further retreat from the Salduz principles on the right to access to lawyer’ [2019] 10 New Journal of European Criminal Law 2019 4, 342-62, 343, citing Beuze ibid 116. [108] See judgement of the majority in Beuze v Belgium (n 106) in its findings at the conclusion of the judgements (after para. 200). [109] See dissenting judgement [2] under ‘Introduction’ heading. [110] Beuze v Belgium (n 106) 116; cf. [2] of Concurring Opinion. [111] ibid [2] of Concurring Opinion. [112] ibid 19. [113] ibid [20] of the Concurring Opinion. [114] Celiksoy (n 107) 352. [115] ibid. [116] ibid. [117] Beuze v Belgium (n 106). [118] Celiksoy (n 114). [119] Doyle v Ireland [2019] ECHR 377. [120] ibid under heading ‘B. Beuze’s unfortunate legacy’. [121] ibid under heading ‘C Overall fairness in the present case—1. The applicant’s severely restricted communication with his solicitor’. [122] ibid D—Conclusion of the dissenting judgement of Judge Yudkivska. [123] Samartzis (n 84) 359. [124] Harris et al (n 5) 471. [125] Samartzis cites Al-Khawaja (n 97) 155-158; Ibrahim and Others (n 90) 277-279; Murtazaliyeva (n 100) 169-176 and Simeonovi (n 105) 132-145. [126] Samartiz (n 76) 471. [127] Judge Yudkivska (n 122). [128] Nikos Vogiatizis, ‘Interpreting the Right to Interpretation under Article 6(3)(e) ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?’ (2021) Human Rights Law Review 2021, 00, 1-25, 12. [129] ibid 14 citing Luedicke, Belkacem and Koc v Germany, Applications 6210/73, 6877/75 and 7132/75, 28 November 1978, 42. [130] Kamasinski v Austria, Application 9783/82, 19 December 1989 [62]. [131] ibid 76; Judge Yudkivska (n 127) 14-15. [132] Amer v Turkey, Application 25,720/02, 13 January 2009, 77-78. [133] Soering v UK (n 7) 15. [134] Panasenko v Portugal, Application 10,418/03, 22 July 2008. [135] Soering v UK (n 7)—the court in that case found that the claim was ‘manifestly ill-founded’ and was rejected; ibid 60-64. [136] Vizgirda v Slovenia (2018) 59868/08, 3 of the dissenting opinion of judges Kucsko-Stadlmayer and Bošnjak. [137] Soering v UK (n 7) 60-64. [138] Judge Yudkivska (n 127) 22. [139] The text of the ECHR is available on the website of the Treaty Office of the Council of Europe at under ‘Full List of Treaties of the Council of Europe‘ (ETS no. 005) accessed 7 December 2021.

A Critical Examination of the ENP’s Success in Promoting Democracy and Good Governance in the EU’s Neighbourhood As a key European Union (EU) foreign relations instrument, the European Neighbourhood Policy (ENP) governs the relations between the Union and sixteen countries to the east and south of EU territory.[1] These countries are primarily countries which aspire to become an EU member, or to pursue closer integration policies with the EU in general.[2] The key focus of the ENP is that of stabilising the EU neighbourhood in terms of economy, politics, and security.[3] In exchange for EU financial assistance, countries must meet strict conditions for governance and economic reforms, as articulated in the EU Association Agreements between its own government and Brussels.[4] Association Agreements concluded between the EU and partner countries typically stipulate commitments to economic and human rights reforms to be carried out, in exchange for tariff-free access to parts of the single market, and various forms of technical assistance. In 2011, the European Commission (EC) articulated in its ‘Review of The European Neighbourhood Policy’ that the ENP’s focus was to build ‘deep and sustainable democracy and inclusive economic development’.[5] The Joint Communication issued the same year conceptualised the ENP as a guardian of the ‘stability, prosperity and resilience of the EU’s neighbourhood’, rather than a custodian of democratic advancement, suggesting a slight shift from the original focus on promoting democracy as one of the ENP’s foreign policy initiatives to an emphasis on promoting the EU’s security interests.[6] Nilsson and Silander argue that the paradigm change from promoting democracy to enhancing regional security manifestly confirms the EU’s implicit admission of the ENP’s inadequacies in fulfilling the former endeavour.[7] I argue that the ENP has largely been effective in promoting formal democratic reform, in terms of setting up electoral institutions and legislative infrastructure in the Eastern Neighbourhood,[8] but has failed in promoting democratic values and adopting principles of good governance, for example by implementing anti-corruption policies or empowering civil society. In addition, I suggest that the limited progress of democratic advancement in the EU’s neighbourhood is a result of the ENP’s intergovernmental organisational logic; the existing institutional structure enables elites to strategically adopt an ostensibly democratic apparatus while neglecting the promotion of normative democratic principles. This essay draws on quantitative and qualitative evidence and focuses its discussion on the Eastern Neighbourhood. Conventional literature on the EU’s democratising impact has highlighted conditionality as one of the main causal modes.[9] It assumes that EU target states are rational actors in the international system, motivated to maximise their economic and security interests, and that strategic exchange between actors is conditional upon their relative bargaining power.[10] It follows that the larger the gains target states perceive from adopting the EU’s conditionality requirements, the greater the likelihood of reforming their internal governance structures.[11] While the EU does not initiate coercive intervention under this model, the domestic adoption costs may upset the target state’s internal status quo, particularly if presiding governments are soft authoritarian regimes.[12] Throughout the years, the Southern Neighbours have struggled to gain EU membership; Turkey’s progress has been tumultuous and uncertain, and Morocco’s application was rejected in 1987. Considered against the later enshrinement of the geographic membership criterion, scholars have asserted that the Eastern Neighbours generally have more incentive to adopt democratic reforms as compared to the Southern Neighbours.[13] The Southern Neighbours vary widely in terms of the depth of their economic links to the Union; Scazzieri’s study is illuminative regarding the lesser economic gain these countries perceive from potential EU membership, particularly in view of the substantial government reforms needed to adhere to EU conditionality requirements.[14] The regional strife and political turmoil following the Arab Spring in 2011 has also rendered many of these states hesitant to adopt institutional democratic reforms. The causal mechanism between conditionality and the relative success of formal democracy over substantive democracy has not been addressed thoroughly enough in existing literature and warrants further discussion. To this end, this paper illustrates how conditionality under the ENP is effective in promoting democracy among the Eastern Neighbours, only to the extent that their governments have been able to perceive economic benefits from instituting reforms. I begin by surveying the organisational logic of the ENP and the Eastern Partnership, after which I examine the skewed progress of democratic advancement among the Eastern Neighbours in relation to indicators of formal democracy and substantive democracy. I then discuss how elites have abused the ENP’s top-down operational practices and manifestly slanted the democratic advancement of the Eastern Neighbourhood towards the formal adoption of democratic apparatus, and at the expense of substantive democracy. I conclude by refuting the purported significance of Russian influence as inhibitory towards democratic advancement in the region. The ENP was originally conceptualised as a catalyst of ‘democracy, rule of law, respect for human rights and social cohesion’ for states without EU membership prospects.[15] Ever since its official establishment in 2004, this foreign policy initiative has run in tandem with the EU’s policy aim of enlargement.[16] Under this framework, the EU formulates bilateral Association Agreements which set tangible goals for democratic governance. Fulfilment of such conditionalities allow target countries access to economic and technological rewards.[17] Critics have often described the relationship as ‘coercive’ and ‘asymmetrical’; nevertheless, it is largely the EU’s attempt at transforming its neighbourhood through soft, ideational power as opposed to military intervention.[18] The Eastern Partnership (EaP) was launched in 2009 as an Eastern dimension of the ENP; with a particular focus on the Eastern Neighbourhood including Caucasian and former Soviet states.[19] While formal democracy is contingent upon electoral practices and mechanisms, substantive democracy is based not only on ‘citizens’ [participation] in the making of decisions that concern them, but also that decisions must not be served wrapped in a shroud of ignorance’.[20] Measurement of substantive democracy therefore requires an examination of the outcomes of democratic governance and practice, with a focus on fairness, equality, and justice. Insofar as democratic procedures alone cannot overcome inequalities between individuals by mobilising political resources to their benefit, certain democratic principles must be incorporated into governance structures and policies.[21] Addink further operationalises the definition of substantive democracy to encapsulate ‘good governance’ principles such as establishing strong democratic norms, accountability systems, independent anti-corruption institutions, and legal-rational guarantees of media freedom and independence.[22] Building on this, Pridham conceptualises the ENP’s promotion of democracy as a two-track model.[23] Under this model, the ENP promotes both formal and substantive elements, but in a disjointed manner. As a result, a country may succeed in the former while completely neglecting the latter. This is apparent in Moldova’s electoral development: in the early 2000s, Moldova’s parliament required at least 6% share of the primary vote for political parties to be represented in the legislature, 9% for two-member electoral blocks, and 2% for three and more member-coalitions.[24] This arrangement severely undermined pluralism in the Moldovan parliament, as measured by the number of parties as an indicator for formal democracy. In 2005, the European Parliament Resolution on Parliamentary Elections in Moldova directed the country to reduce this threshold to 4% for political parties and 8% for electoral blocks, so that smaller parties could have greater representation in civic discourse.[25] Furthermore, the EU-Moldova Action Plan (2005) exemplifies the formal aspects of democracy by prioritising the ‘the stability and effectiveness of institutions guaranteeing democracy [and] ensuring the democratic conduct of parliamentary elections…in accordance with European standards’.[26] Moldova’s significant degree of adherence to formal democratic reform has not, however, been matched by attention to aspects of substantive democracy. Despite recommendations on the empowerment of civil society, media transparency, and attempts at combating corruption, official descriptions of such initiatives have been equivocal and rarely been scaled against a quantitative benchmark.[27] The stark contrast as observed between indicators of formal democracy and substantive democracy is indicative of how the Moldovan government has pursued the two tracks of democracy with different degrees of commitment. As per this two-track model, it is evident that while the ENP has successfully influenced Eastern Neighbours into adopting formal aspects of democracy through electoral mechanism reform, the latter have not undergone further development in terms of substantive democracy. Inhibitors of substantive democracy and good governance such as corruption and elite nepotism, media repression, and poor political representation of civil society have not been eradicated. As will be explained in the following sections, this two-track model results in the consistently poor scores of Eastern Neighbours in various democracy indicators. In particular, negative trends have been reported, based on heavily-weighted substantive democracy factors. Ukraine’s case further demonstrates the uneven development and entrenchment of formal democracy and substantive democracy. Having consistently improved its electoral integrity per the EU directive, the International Election Observation Mission concluded that ‘voters [were able to make] informed choices between distinct alternatives and to freely and fairly express their will’ in Ukraine’s 2006 parliamentary elections.[28] In July 2019, the Parliament approved a new Electoral Code that had begun being drafted in 2015, providing for a proportional representation system which combined an open and closed party list system, as well as a new system for local elections.[29] The EU-Ukraine Association Agreement established the primary reform objectives in the country, and following these developments, Ukraine held open and democratic presidential and legislative elections in 2019, marking the country’s first peaceful shift of power since the events of Euromaidan.[30] These examples demonstrate how EU directives have substantially improved formal democracy in Ukraine. Nevertheless, factionalism continues to account for conflictual relationships between elites, at times even leading to constitutional crises; power struggles over anti-corruption reforms between the Constitutional Court of Ukraine, the Ukrainian Parliament, and the President have gripped the country since October 2020.[31] As for media freedom, Ukraine has consistently ranked around 90th out of 180 countries from 2006 to 2020; its Freedom House score of 62 in 2020 only puts it in the ‘partly free’ range.[32]Ukraine’s EIU democracy index has dropped from 6.94 in 2006 to 5.81 in 2020, further demonstrating the dearth of substantive democratic norms in the country.[33] Prevailing corruption problems also remain a contentious issue. Although Ukraine revamped its anti-corruption legislation in 2011 and 2014, selective law enforcement severely hampers its operation.[34] In 2019, Zelensky’s presidency even commenced with the pursuit of a corruption investigation against his predecessor.[35] Although the country’s Corruption Perceptions Index (CPI) score has incrementally improved from 2.8 in 2006 to 3.3 in 2020, anti-corruption campaigns still emphasise form over substance. In Moldova and other Eastern Neighbours, there is a similar trend of unequal development between official (formal) democracy and genuine (substantive) democracy. The EU-Moldova Action Plan established a framework for Moldova’s domestic institutions and foreign policy that was compatible with EU membership standards; the Law on Whistleblowers was implemented in November 2018, following major democracy-related aspects of the EU Action Plan.[36] New regulations provide legal protection for anyone ready to testify about wrongdoings and irregularities, as well as a specialised reporting mechanism.[37] Moldova held its first parliamentary elections in February 2019, adopting a mixed electoral system of one national constituency in which fifty one legislators were elected by first-past-the-post in single-member constituencies and fifty were elected by proportional representation from closed party lists.[38] Nevertheless, while Moldova’s Bertelsmann Transformation Index (BTI) score—which sheds light on the quality of substantive democracy—has seen incremental improvement from 5.40 in 2006 to 5.80 in 2020,[39] this trend is often attributed to the protests in 2009, 2015, and most recently, in 2019.[40] In 2009, in the wake of an allegedly fraudulent election in which the governing Party of Communists of the Republic of Moldova (PCRM) won a majority of seats, civic unrest rocked several Moldovan cities.[41] The movement represented a turning point in contemporary Moldovan politics. Having held snap elections after Parliament was dissolved, the Alliance for European Integration, a centre-right anti-communist ruling coalition, was created in response to the PCRM’s victory in the July 2009 polls, paving the way for closer Moldovan-EU relations and a greater drive to fulfil EU conditionality requirements in the years to follow.[42] After the fall of the PCRM in 2009, the unfulfilled hopes that Moldova may institute governmental reforms of transparency and accountability ultimately paved the way for the 2015 protests, far exceeding the scale of their predecessor. Finally, in 2019, a constitutional crisis and subsequent attempts to form a new government culminated in the positions of President, Prime Minister, and Speaker of the Parliament being contested by competing claims.[43] This unleashed a movement of protests in which opposing factions rallied their support for different candidates. Apart from calls for the government’s resignation and the annulment of recently approved laws, the protests have illuminated how Moldovan-EU relations have transcended the institutional level by galvanising democratic advancement, having socialised the Moldovan polity to expect higher standards of transparency and accountability from their government. With the internalisation of democratic values and good governance principles, these examples demonstrate the inextricability of Moldovan-EU relations from democratic progress and political awakening in the country on the level of both institutions and the citizenry. In comparison, Belarus’ BTI score remained the same at 4.38 throughout 2006 to 2020.[44] It is worth noting that while Belarus did experience protests against President Alexander Lukashenko in 2005, followed by a subsidiary movement in 2006, these were quickly and heavily suppressed by the police.[45] Similarly, Azerbaijan’s BTI score has even noted a 0.37 fall from 3.80 in 2006 to 3.43 in 2020.[46] Although protests against an alleged government fraud in parliamentary elections erupted in Azerbaijan in mid-2005, the movement subsided after five months when the police eventually suppressed riots with tear gas and water cannons.[47] These examples illustrate that progress in various democracy changes remains negligible, if not regressing, among certain states of the Eastern Neighbourhood. I will now consider the reasons for the incongruence between formal and substantive democratic norms as brought about by the institutional framework under the ENP. An examination of the causal mechanism necessitates a dual consideration of the role played by elites as well as the EU policy net. The ENP imposes rigid conditionality requirements on partner countries. As elites in target states fail to perceive reasonable prospects for EU membership, they also believe that there is little to gain from adopting substantive democratic reforms in their countries, since the economic benefits of EU membership are closed off to them. They are also wary of potential domestic costs, as they are likely to bear the largest costs of political instability. Elites therefore strategically adopt formal forms of democratisation (for which benefits from the EU are more easily achieved) while neglecting the development of good governance principles. This problem is exacerbated by the lack of organisational guidelines through which the European Commission may review the progress of substantive reforms in partner countries and adopt signalling measures. As EU-EaP cooperation initiatives have largely adopted a top-down approach, I argue that incumbent EaP government office-bearers strategically adopt formal forms of democratisation while neglecting the promotion of normative democratic and good governance principles. Caiser similarly attributes the phenomenon to elite perception of unlikely EU-membership prospects, as well as a fear of losing power.[48] This discussion warrants a closer examination of the role of elites in hindering democratic advancement. Given the inequality of bargaining power between the two actors, democratisation conditions are imposed by the EU upon EaP states as a crucial criterion to receive economic rewards.[49] The adoption of EU legislation, legal acts, and court decisions in Moldova serves as a prime example—having repeatedly demanded Moldova adopt EU electoral standards and laws, the ENP has demonstrated its leverage over EaP governments via potential economic incentives.[50] Elites seek both to legitimise their regimes and to extract economic benefits from the EU; thus, they strategically adopt democratic reforms, such as legislative overhauls, which are most perceptible to their EU partners.[51] In contrast, improvements in substantive democracy, such as establishing independent anti-corruption agencies, safeguarding media freedom, and empowering civil society, are not only less quantifiable and recognisable indicators of democracy to EU partners, but are also perceived to be potentially disruptive towards the hierarchical entrenchment of the incumbent regime.[52] Civic society in former Soviet states such as Moldova often lacks channels of political representation and participation. Coupled with failed authoritarianism, the circumstances give rise to a political pluralism that renders substantive governance reforms extremely precarious to elites seeking to preserve their power.[53]Furthermore, elites interpret the ENP’s rigid policy conditionality and its reluctance to offer a reasonable prospect of EU membership as indicative of the minimal economic benefits to be gained by adopting substantive democratic reforms.[54] Given that these reforms also create possibilities of upsetting vested interests and decrease support for the governing administration, which may directly threaten elites’ hold on power, their cost-benefit analysis produces an incongruence between formal and substantive democratic norms in these countries. Office-bearers must be convinced of the value of abandoning the old equilibrium—as elites are primarily concerned with preserving their power and vested interests, the incentives towards instituting substantive democracy must, to some extent, benefit them also. In this respect, a parallel may be drawn between EaP states and the Southern Neighbours: as the latter’s geographical location preemptively refutes the possibility of EU membership, they are also less incentivised towards improving the quality of democracy.[55] The 2017 EU-EaP Summit Joint Declaration has negated any possibility for EU membership entry for at least the coming decade.[56] Given that EU membership prospects are expected to be confined within the Association Agreements, elites are understandably deterred from abandoning the current equilibrium to institute substantive democratic reforms.[57] Here, Ukraine again serves as an apt illustration. In keeping with EU recommendations, Ukraine has introduced proportional representation to improve electoral inclusivity.[58] This development did not, however, resolve entrenched issues of factionalism, selective law enforcement, and large-scale electoral fraud, and largely failed to clarify the power distribution between the Prime Minister and the President.[59] Zelensky’s administration has continued to stifle media freedom by banning opposition news outlets such as Yandex and RosBiznes Consulting (RBC), despite EU recommendations.[60] Although an independent High Anti-Corruption Court of Ukraine (HACC) was established in April 2019, the vested interests of the judicial elite continue to threaten the rule of law.[61] During mid-2020, members of the Constitutional Court made a series of decisions which threatened to destroy the HACC.[62] The following August saw the Constitutional Court declaring Artem Sytnyk’s appointment as director of the National Anti-Corruption Bureau (NABU) in 2015 as unconstitutional, a move that was deemed ‘politically motivated’ by officers of the NABU.[63] By autumn, the blockage of a judicial reform initiative was backed by the Parliament, the President, and by twenty members of the High Council of Justice, some of whom face corruption charges. This marks the culmination of democratic backsliding; attempts to adopt transparency reforms are being reversed.[64] Although contemporary Ukrainian elites reportedly identified the institution of democratic reforms as a prerequisite for EU candidacy, they also contended that only formal democratic measures should be implemented.[65] These examples not only demonstrate the endorsement of formal democracy over substantive democracy, but also illuminate the extent to which vested interests have subsumed attempts at improving the transparency and accountability of the government, particularly in view of the low EU membership prospects. The model is also evident in other EaP states. Following EU recommendations, Georgia introduced proportional representation in its 2004 constitutional reform.[66] Although the initiative purportedly promotes pluralism, critics have pointed out that the demarcation of electoral districts do not reflect geographical distribution of voter density.[67] Georgia is yet one more example where the advancement of substantive democracy has been considered subsidiary to that of formal democratic apparatus. The lack of precise organisational guidance is one of the principal shortcomings of this top-down strategy, as it provides elites with substantial flexibility to circumvent the adoption of substantive democratic reforms, and deprives the European Commission of the ability to follow up with countermeasures, should elites fail to meet the original commitments.[68] Although the European Commission can in principle sanction regressions by withdrawing the conditional EU economic benefits, this watchdog function is greatly hampered by the fact that democratic backsliding or stagnation itself is not reflected in the current indicators. To the extent that top-down EU policies neglect the quantification and appraisal of procedural democratic elements, the European Commission remains powerless in closing this policy loophole. This limitation creates an especially undesirable effect for the EU’s normative power: elites interpret it as a sign of weakness or general apathy, creating a positive feedback loop which further encourages the incongruence of formal and substantive democratic reforms. To conclude this essay, I will refute the purported inhibitory effect of Russian influence upon democratic advancement in the Eastern Neighbourhood. Such arguments assert that the Russian administration has interfered with democratic and governance reforms of EaP states to hamper their chances at EU membership.[69] Scholars have argued that geopolitical interests have characterised the Russian administration’s perception of Eastern Europe, meaning that Moscow will seek to frustrate EaP states’ attempts at building harmonious relations with the EU.[70] There is, however, insufficient evidence to suppose a clear relationship between Russia’s autocratic influence and the stagnant democratic development among EaP states. While theoretical predictions associate geographical proximity to Russia with democratic foreclosure, Armenia demonstrates that the success of democratic advancement is also largely dependent on strategic policy formulation. While Armenia abandoned the Association Agreement for membership in the Russian-led Eurasian Union in 2013,[71] the country has articulated plans for judicial reform pursuant to the EU-Armenia justice policy dialogue and continued its partnership with the EU.[72] Alongside the installation of a pro-democracy government following the 2018 Armenian Revolution, these developments have holistically improved its EIU democracy index from 4.09 in 2012 to 5.35 in 2020.[73] It is apparent that the ENP has yielded skewed results in promoting formal democracy over substantive democracy, calling for a thorough understanding of the underlying causes to remedy this situation. This essay has argued that the top-down intergovernmental promotion of democracy has manifestly encouraged elites to adopt an asymmetrical approach towards democratic reforms. Ultimately, attempts to promote the EU’s democratic norms must go beyond the formal apparatus—they must focus on the operational logic of the ENP, and work towards empowering civil society from the level of the citizenry. Dilys Tam So Yin Dilys Tam reads Government and Laws at the University of Hong Kong and minors in Fine Arts. She holds a conditional offer for the HKU Presidential PhD Scholarship, and her forthcoming publication in Springer Law Books Series: Law and Visual Jurisprudence investigates how bilateral investment treaties can be used to facilitate international art repatriation. She is also a mooter, a creative writer, and an active painter. [1] The sixteen countries include Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine in the East, and Algeria, Morocco, Egypt, Israel, Jordan, Lebanon, Libya, Palestine, Syria, and Tunisia in the South. [2] Florian Carmona, Kirsten Jongberg and Christos Trapouzanlis, ‘The European Neighbourhood Policy | Fact Sheets on the European Union | European Parliament’ (2021) accessed 18 April 2022. [3] ibid. [4] ibid. [5] European Commission, ‘Review of the European Neighbourhood Policy’ (European Commission 2011) accessed 6 June 2022. [6] European Commission, High Representative of the Union, ‘Joint Communication to The European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions. A New Response to a Changing Neighbourhood’ (European Commission 2011) accessed 6 June 2022. [7]Martin Nilsson and Daniel Silander, ‘Democracy and Security in the EU’s Eastern Neighbourhood? Assessing the ENP in Georgia, Moldova, and Ukraine’ (2016) 12 Democracy and Security 44-61. [8] The Eastern Neighbourhood comprises Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine. [9] Frank Schimmelfennig and Hanno Scholtz, ‘Legacies and Leverage: EU Political Conditionality and Democracy Promotion in Historical Perspective’ (2010) 62 Europe-Asia Studies 443-460. [10] ibid. [11] ibid. [12] Naim Mathlouthi, ‘The EU Democratisation of The Southern Neighbours Since the ‘Arab Spring’: An Inherently Inadequate Approach’ (2021) 4 International Journal of Social Science Research and Review. [13] Schimmelfennig and Scholtz, (n 9) 2. [14] Luigi Scazzieri, ‘Rethinking The EU’S Approach Towards Its Southern Neighbours’ (Centre for European Reform 2020) accessed 22 April 2022. [15] European Commission, ‘Wider Europe - Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ (Office for Official Publications of the European Communities 2003) 11-12 accessed 18 April 2022. [16]Mor Sobol, ‘It’s the Member States, stupid! The deadlock which bedevils the European Neighbourhood Policy’ (2015) 68 Studia Diplomatica 63-76. [17]ibid. [18] Ondřej Horký-Hlucháň and Petr Kratochvíl, ‘‘Nothing Is Imposed in This Policy!’: The Construction and Constriction of the European Neighbourhood’ (2014) 39 Alternatives: Global, Local, Political 252-70. [19] Frank Schimmelfennig, ‘Europeanisation Beyond the Member States’ (2010) 8 Zeitschrift für Staats- und Europawissenschaften 319-39. [20] Manuel Couret Branco, Political Economy for Human Rights (Routledge 2020) 88. [21] Johanna Severinsson, ‘Defining Democracy in The European Union: Assessing the Procedure and the Substance’ (PhD, Lund University Department of Political Science 2022) 4-22. [22] Henk Addink, Democracy and Good Governance (Oxford University Press 2019) 91–96. [23] Nilsson and Silander, (n 7) 1. [24] The European Commission for Democracy Through Law (Venice Commission, Council Of Europe), The Office for Democratic Institutions and Human Rights of the OSCE, ‘Joint Recommendations on the Election Law and the Election Administration in Moldova’ (Organization for Security and Co-operation in Europe 2004) accessed 6 June 2022. [25] Nilsson and Silander (n 7) 1. [26] European Commission. (2005). EU-Moldova Action Plan (Office for Official Publications of the European Communities) 4 accessed 6 June 2022. [27] ibid. [28] Yhiah Information Agency, ‘Ambassador Maasikas: IMF, EU financial aid, visa-free travel depend on fighting corruption’ (2020) accessed 22 April 2022. [29] Oksana Huss and Oleksandra Keudel, ‘Ukraine: Nations in Transit 2021 Country Report’ (Freedom House, 2021) accessed 18 April 2022. [30] ibid. [31] Emily Channell-Justice, ‘Can the High Anti-Corruption Court Fix Ukraine’s Corruption Problem? Q&A with REECA Grad Ivanna Kuz’ accessed 20 April 2022. [32] The Economist Intelligence Unit, ‘Democracy Index 2020: In Sickness and in Health?’ (The Economist 2020) accessed 18 April 2022. [33] ibid. [34] Andrew McDevitt, ‘The State of Corruption: Armenia, Azerbaijan, Georgia, Moldova and Ukraine’ (Transparency International 2015) 8-11 accessed 18 April 2022. [35] Al Jazeera, ‘Ukraine probes ex-leader Petro Poroshenko in intelligence case’ (2010) accessed 18 April 2022. [36] Victor Gotisan, ‘Moldova: Nations in Transit 2021 Country Report’ (Freedom House, 2021) accessed 18 April 2022. [37] ibid. [38] ibid. [39] The Economist Intelligence Unit, (n 33) 6. [40] Cristian Cantir and Ryan Kennedy, ‘Balancing on the Shoulders of Giants: Moldova’s Foreign Policy toward Russia and the European Union’ (2014) 11 Foreign Policy Analysis 397-416. [41] Ellen Barry, ‘Protests in Moldova Explode, With Help of Twitter’ The New York Times (New York, 7 April 2009) accessed 18 April 2022. [42] ibid. [43] Patrick Kingsley, ‘Moldova Had Two Governments One Has Finally Resigned’ The New York Times (New York, 14 June 2019) accessed 18 April 2022. [44] ‘BTI Index. Political Transformation’ accessed 6 June 2022. [45]ibid. [46]ibid. [47] OECD, ‘Anti-Corruption Reforms in Azerbaijan: Pilot 5th Round of Monitoring Under the OECD Istanbul Anti-Corruption Action Plan’ (2022) accessed 6 June 2022. [48] Tom Casier, ‘The EU’s two-track approach to democracy promotion: the case of Ukraine’ (2011) 18 Democratization 956–77. [49] Sonja Grimm, ‘Democracy Promotion and the European Union’ in Peace Research Institute Frankfurt / Leibniz-Institut Hessische Stiftung Friedens- und Konfliktforschung, Democracy Promotion in Times of Uncertainty: Trends and Challenges (Peace Research Institute Frankfurt 2018) 16-19. [50] ibid. [51] ibid. [52] Schimmelfennig and Scholtz (n 9) [53] ibid. [54] Heather Grabbe, ‘European Union Conditionality and the Acquis Communautaire’ (2002) 23(3) International Political Science Review 249-68. [55] Tanja Börzel and Frank Schimmelfennig, ‘Coming Together or Drifting Apart? The EU’s Political Integration Capacity in Eastern Europe’ (2017) 24 Journal of European Public Policy 122–40. [56] Petra Kuchyňková and Juraj Hajko, ‘Ten years of EaP: successes but also new challenges’ (2019) 28 International Issues & Slovak Foreign Policy Affairs 73-83. [57] ibid. [58] ibid. [59] Kenneth Geers, Alliance Power for Cybersecurity (Atlantic Council 2020) 11-16. [60] ‘Russian Media Organisations Banned for Three Years in Ukraine’ (Safety of Journalists Platform, 31 July 2018) accessed 6 June 2022. [61] Diane Francis, ‘Ukraine’s reforms remain hostage to corrupt courts’ (Atlantic Council, 15 September 2020) accessed 22 April 2022. [62] Channell-Justice (n 32) 5. [63] ibid. [64] ibid. [65] Geers (n 64) 10. [66] Neil MacFarlane, ‘Afterword’ in Stephen Jones and Neil MacFarlane (eds), Georgia: From Autocracy to Democracy (University of Toronto Press 2020) 229-36. [67] ibid. [68] Morten Broberg, ‘Furthering Democracy through the European Community’s Development Policy: Legal Limitations and Possibilities’ (International IDEA 2010) accessed 6 June 2022. [69] ibid. [70] Jean Crombois, ‘Conflicting Narratives? Geopolitical and Normative Power Narratives in the EU Eastern Partnership’ (2017) 49 Politeja 109-26. [71] Stanislav Secrieru and Sinikukka Saari (eds) The Eastern Partnership a Decade On (European Union Institute for Security Studies 2019) 84-95 accessed 22 April 2022. [72] ibid. [73] The Economist Intelligence Unit, (n 33) 6.