Proposed Civil Justice Reforms

Yesterday the Lord Chancellor announced proposed that will make major changes to the way that the civil justice system works. It is a very useful document for anyone studiyng the English Legal System (for example my students at Aylesbury College and the Open University).

The document can be downloaded here.

The 1983 Parliament

As Wilson and Callaghan found, having a small - or non-existent majority is hell. But large majorities present their own problems. The 1983 Election saw the Conservatives gain a majority of 123. However it was to be a rough period for Mrs Thatcher. John Wakeham was appointed Chief Whip, replacing Michael Jopling. (In the House of Lords "Bertie" Denham [The 2nd Baron Denham] held the Chief Whip's post from 1979 until 1991). Both Houses were more rebellious than in the 1979 Parliament. MP's failed to restore the death penalty in July 1983 - it was a free vote, but Mrs Thatcher hoped and expected to win restoration. A few days later Tory MPs rebelled over pay.There was a major rebellion in April 1984 over the right to contract into paying the political levy within Trade Unions. In April 1986 the Goivernment lost on the Second Reading of the Sunday Trading Bill. It was only the second time that a Government had been defeated at 2nd Reading since 1924!

The big political story of the Parliament was the Miners Strike of 1984 to 1985. The BBC has a webpage about the strike, available here. It split the country in two.

In October 1984 the IRA unsuccessfully attempted to assassinate Mrs Thatcher and other members of the Tory Party hierarchy. The "Brighton Bomb" exploded in the middle of the night, during the Tory Party Conference. A report of the bombing is available here.

The Westland Affair in 1986 led to Michael Heseltine's resignation from the Cabinet - and he cited Thatcher's style of government. Heseltine wanted a European future for the Wessex based helicopter firm. Trade & Industry Secretary, Leon Brittain wanted to see Westland taken over by the US firm Sikorsky. Heseltine resigned on January 9th, Brittain was forced out on 24th over a row about the leaking of a letter on the Westland Affair.

Labour had improved their standing in the opinion polls, but not by enough to dislodge the Conservatives in the 1987 General Election. Mrs Thatcher maintained a majority of over 100.

Books on this period include -

Happy St Patrick's Day

Earlier this month I wished you all (and especially those who share with me Welsh ancestry), a happy St David's Day. As a "Morgan" - which some scholars claim means person who has come from across the sea - I might have some Irish ancestry. Certainly my wife's family is from Ireland - both her parents grew up in a village outside Waterford.

St Patrick was not Irish by birth, but was captured from Britain and taken to Ireland as a slave. Of course, I back the suggestions that he was a welshman - but we shall never know.

The day will be celebrated by Irish people around the world (any by many other who, like me have links, or who have no links at all!). Here are some links to the celebrations

New York
Boston
Washington DC
Birmingham UK
London 

Primary and Secondary Legislation

Legislation can be classified as either Primary or Secondary (sometimes this latter may be described as 'delegated legislation'.)

In the United Kingdom Statutes (which may also be referred to as 'Acts of Parliament' - the terms are completely interchangeable) - are primary legislation. As "government" has become more complex, lawmakers have had to choose between getting all the rules in the Statute - the disadvantages being that Statutes would become incredbly long and difficult to read - let alone, understand - and Parliament would not have enough time to consider in detail all the provisions.

So it has become the norm that the principles and key rules are contained in the Statute. Lesser rules are not made and considered by Parliament - but the power is delegated to someone else. The advantages additionally include the fact that these secondary rulemakers may be more expert - or are closer to where the rules will apply.

At a national level powers may be delegated to Ministers.

s 11 of the Identity Documents Act 2010 says

(1)This section applies to an order under section 7(6) or 10(3)(i).
(2)An order is to be made by statutory instrument..
(3)An order may be made only if a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament..
(4)An order may contain incidental, supplemental, consequential or transitional provision..

s7(6) says "The Secretary of State may by order amend the definition of “identity document”" - without this provision any need to change the definition would require new legislation - which would have to go through all the stages of a bill in both Houses of Parliament. So Parliament has delegated the power to the Minister.

s11(2) states which form the secondary legislation must take - a 'statutory instrument'. All you could ever want to know about SI's can be found in the Government document available here.

The Parliamentary procedures for oversight of delegated legislation are described here. The most common procedures are the

Affirmative procedure: Both Houses of Parliament must expressly approve the SI. This may or might not involve a debate in the chambers - and the motion to approve might not be opposed - in which case no vote is taken. But when the motion comes up someone (often a whip) must should "aye" (Commons) or "content" (Lords)

Negative procedure: An SI becomes law without a debate or a vote, unless the delegated legislation is opposed. To do this an MP or Peer must "pray" against the SI. (Not on their knees, it merely means that they lay a motion to annul the SI)

The 1979 Parliament

The 48th Parliament of the United Kingdom saw a Conservative Majority of 43, headed by the first British woman Prime Minister, Margaret Thatcher. Conventional wisdom held that no Prime Minister could avoid appointing a Cabinet which contained her political rivals and ideological opponents. The main ideological division at this time within the Conservative Party was between the "Wets" (traditional Conservatives - who believed in maintaining the welfare state and the mixed economy, essentially at the levels of the period 1945-1979, who saw a social obligation towards the poorer members of Society; and who regarded unemployment as the greatest danger) and the "Drys" (the New Right that wanted privatisation; significant cuts in Public Spending; and the removal of many of the rights enjoyed by the Trade Unions and workers). While Thatcher appointed a balanced Cabinet in 1979 - by 1983 she had removed most of the "wets".

Within the Parliamentary Party there were some rebellions - but it was a less stressful period for the whips. Michael Jopling was Chief Whip in the Commons throughout the Parliament. Outside Parliament conditions were rougher. Plans to institute a programme of coal mine closures in February 1981 were withdrawn in the face of opposition from the Miners' Union. A Steel strike was fought in 1980. A recession - which many regarded as the result of the Monetarist policies pursued by the Government led to increased unemployment - and in 1981 a wave of riots spread across the country. Thatcher looked to be in danger of being a one-term Prime Minister.

Her survival was helped by the fact that the opposition Labour Party was deeply divided. In March 1981 some of its leading figures left the party to form the Social Democratic Party. This new party soared in the opinion polls. In April 1982 the junta in Argentina ordered an invasion of the Falkland Islands. I was in the public gallery when she came in to the Chamber to announce the surrender by the Argentinians. A successful task force had made Mrs Thatcher a national hero.

In June 1983 a General Election left Thatcher with a large majority of 123.

Books about the period include -

How many Prime Ministers?

Trivia Question for today - How many Prime Ministers have served the Queen during her 59 year reign?


A trick question - or at least I don't know the full figure - since Prime Ministers of Commonwealth countries ought to be included. But how many Prime Ministers of the UK?

Winston Churchill 1952-55
Anthony Eden 1955-57
Harold Macmillan 1957-63
Alec Douglas Home 1963-64
Harold Wilson 1964-70 and 1974-76
Ted Heath 1970-74
Jim Callaghan 1976-79
Margaret Thatcher 1979-90
John Major 1990-97
Tony Blair 1997-2007
Gordon Brown 2007-10
David Cameron  2010 -

The answer is 12.
A BBC Article about a dinner the Queen had with her Prime Ministers is available here.

The (October) 1974 Parliament

After negotiations between the Conservatives and Liberals broke down following the February 28th election - Harold Wilson was invited to form a minority government. Labour had 301 seats, but this was 17 short of an overall majority. He called an election on 18th September, to be held on 10th October. He won a majority of seats - just - Labour won 319 seats, a majority of 3!. This would have been difficult enough, but the Labour Party was divided on a number of issues. The Referendum on continued membership of the European Economic Community was meant to resolve the issue once and for all - but a "Yes" campaign which was vastly better resourced than the "No" campaign - and which the solid backing of much of the "establishment" - led many anti-Europeans to continue their active opposition.

A fractious Parliamentary Labour Party meant there were a large number of rebellions. The issues were wide ranging - but centered upon Europe; Terrorism (at this time - it was Irish terrorism - and in the 1970s there were a number of bomb attacks on the mainland); the Economy and Devolution. It was remarkable that the Government survived for so long. Philip Norton (Lord Norton of Louth) published a detailed study of rebellions in this Parliament -




Labour's first by-election loss came in June 1975. In March 1976 Harold Wilson, to everyone's surprise, resigned - and Jim Callaghan was elected by Labour MPs as his successor. By 1977 it was a minority government. A "Lib-Lab pact" with the Liberals gave some support - but the government fell after losing a vote of no-confidence by a single vote on 28th March 1979. Roy Hattersley described the events of that day in a Guardian article.

Other First hand accounts of that Government can be found in the following books

Computers in the House of Lords

The House of Lords yesterday debated and agreed to the Report from the Select Committee on the use of electronic devices in the House (available here) [The Administration and Works Committee].

This exchange occured towards the end of the debate -

The Chairman of Committees:....The noble Lord, Lord Harris of Haringey, asked me a large number of questions, one of which was whether I could define the difference between a laptop and an iPad. I use the expression “iPad” in the same way that one uses the expressions “hoover” or “fridge”. It does not necessarily mean the Apple product—there are other varieties. The noble Baroness, Lady Harris of Richmond, who is a member of the committee, put her finger on this when she said that it should be used silently. We do not want people clicking away on a keypad—at least that was the idea. That is the fundamental difference between what I see as an iPad, such as the one that is now on the Table, and a touchscreen device. Of course, technology might move on. It has moved on enormously. Only a few years ago we changed the rules of the House on the use of mobile telephones.

Lord Higgins: My Lords, I am most grateful to my noble friend. If the object is to clarify the position, in light of what he has just said are we to understand that iPads will be all right but netbooks will not?

The Chairman of Committees: I am not sure that I completely know the definition of a netbook and how it is different.

Lord Higgins: It is a question of whether they click or not.

The Chairman of Committees: Then the answer is that we would prefer devices that do not click and that therefore do not distract noble Lords while they are in the Chamber. I have slightly lost my thread now....

Political Science Degrees in the USA

Phillip Donavan has drawn my attention to an informative site that he has developed - about the various Political Science courses available across the USA.

I liked the site - because it has information about many universities, and the courses available. This is no mere listing - a description is given. This will be invaluable to anyone seeking to study in a US institution. It has useful links to APSA and IPSA (I'm a member of both) - and information about career opportunities once the degree has been awarded.

The website is "Political Science Degree" - and the address is http://www.politicalsciencedegree.com/

The Rule of Law (republished)

Many books deserve a fulsome recommendation. A very few fall into that rare category of "books every citizen should read". One small book out this year more than exceeds the criteria for inclusion in this limited list [the criteria should be (1) the writer has something VERY important to say AND (2) it is written in plain, readable language]

Lord Bingham of Cornhill ['Tom Bingham' is the name on the book] has been Master of the Rolls (head of England and Wales' civil justice system); Lord Chief Justice (head of the judiciary of England and Wales) and the Senior Law Lord (in the House of Lords Judicial Committee - the highest court in the UK before it became the Supreme Court). When he writes about the law, he knows what he is writing about! (Times' Profile)

"The Rule of Law" [London: Allen Lane, 2010 ISBN 978-1-846-14090-7] is a short, but incredibly powerful and useful book. It explains - in a very readable way - a central concept in English Law. He sets out a history of the idea, then explains what it means. It is no obscure academic principle, but the foundation upon which liberty rests. Every citizen should read this book - because it explains the meaning and importance of the idea - and sets out how easily it can be threatened.

The book is also a superb introduction to English Law. In succinct terms Lord Bingham explains (in a way unrivalled by any textbook I've seen) -

• sources of English Law (chap 3)
• principles of the English legal system (Chap 9)
• Judicial Review (Chap 6)
• Human Rights Law - including key provisions of the European Convention on Human Rights (Chap 7)
• principles of International Law (Chap 10)
• Sovereignty of Parliament (Chap 12)

If you are studying (or about to study) Law - [particularly those subjects traditionally known as 'English Legal System' and 'Constitutional & Administrative Law' (or the Open University's W100, W200, W201, Y166) - this is a book you will find very useful - both for understanding key concepts and for exam revision.
But this is not just a book for law students. Students of politics and history will also find it useful - as indeed (as I've already said a few times) ANY CITIZEN.

"You are under arrest"

Any viewer of TV or films will be familiar with fictional depictions of arrests in the US. A suspect is advised of their "Miranda rights". The term comes from the Supreme Court case of Miranda v Arizona, which sets out the procedural safeguards required to secure the Fifth Amendment's privilege against self-incrimination. The protections have subsequently been watered down significantly (an issue discussed in Chermerinsky's book (see original Washminster post of February 2011), chapter 4.

More information about Miranda warnings can be found here.

In the UK s28 of the Police and Criminal Evidence Act 1984  requires that the person being arrested be told of the FACT that he is under arrest, and the REASON for the arrest.

I found a very informative A-Level powerpoint presentation on police powers here.

Update on "Power of Arrest in the UK"

Expert legal advice clarifies the position about arrest other than under s24 of PACE

"s.26 of PACE abolishes all "independent" powers except those listed in Schedule 2 of the Act such as s.13 Visitors Forces Act 52 (arrest of deserters), s.49 Prison Act 1949 (prisoners unlawfully at large), s32 of the Children and Young Persons Act '69, s24 of the Immigration Act 71, s.7 Bail Act '76, plus powers under the Representation of the People Act, Mental Health Act and Repatriation of Prisoners Act"

The Power of Arrest in the UK

The power of the police to arrest someone can arise from the Common Law (in this context, that law which doesn't originate from an Act of Parliament) - for example, for 'breach of the peace'; or under specific legislation (a few "independent" powers remain - it is my understanding, though I can't confirm this - do you know? (if so drop me a line) - that arrest of deserters is one of them) - but most arrests are made - either

* under a warrant for arrest. This is signed by a Justice of the Peace (also known as a 'magistrate' - the terms are interrchangeable). For more detailed information from the UK Ministry of Justice press here.

* under s24 of PACE [Full Title - The Police and Criminal Evidence Act 1984] - PACE s24. Note this section was amended by the Serious Organised Crime and Police Act 2005 ss. 110(1), 178; and S.I. 2005/3495, art. 2(1)(m) - the link above is to that version which is now in force.

s24 distinguishes between past, current and future events. The key safeguard is the "reasonable suspicion" that the arresting officer must have. You can debate how effective such a safeguard may be in different circumstances.

"Citizen's Arrests" are possible in the UK (which means, not only the ordinary citizen, but a non-police officer - such as a store detective). This is covered by s24A of PACE.

Political Humour

If you are a new reader to Washminster, you might not have heard of "The Capitol Steps", a group who perform satirical songs. I've seen them whilst in Washington, buy all their albums - from 1999 onwards, and including "Sixteen Scandals", their compilation album of the earlier recordings - and regularly visit their website.

I also have books of political jokes and anecdotes. These are a few that have a special place on my bookshelves -









As you'll see some anecdotes have US and UK versions - surely they aren't made up?

Foursquare

I am now on Foursquare - J David Morgan

Plane Spotting

What route does the plane take from Heathrow to Washington? - (or my favourite routes Birmingham to Amsterdam and Amsterdam to Washington?). Where are the planes in flight between Wahington and the UK?

I have an iPhone App , which is also available on the internet here, which allows me to follow many flights. I used it before I flew to Washington in January to track the flights I would be taking. I was able to alert my wife that on the morning of the first leg (from Birmingham to Amsterdam), I would be be flying over the village she was teaching in that morning - so she would be able to watch out for me (sadly defeated by (1) the very heavy cloud and (2) the plane was a couple of minutes earlier than expected).

The programmes cover most of the world (though not mid-ocean). Have fun.

The First Meeting of Congress

The Constitution of the United States came into effect when New Hampshire became the Ninth State to ratify it. (Article VII - "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."). That occured on June 21st 1788. However the Institutions came into existence on 4th March 1789. That was the date set for the opening of the 1st Congress.

There is a detailed description of the events of that day in Robert Remini's excellent history of the House of Representatives - "The House". I would thoroughly recommend the book to anyone interrested in American History - but particularly the history of the House of Representatives. It is both a good read (and I've read it straight through on a number of occasions), and an excellent research resource (of which I make frequent use).



The day was one of great ceremony. Flags flew around the city of New York, which was host to the new Government. The centre of attention was Federal Hall - which wasw at that time New York's City Hall. It had been converted for the nation's use by Pierre-Charles L'Enfant. Sadly, while the crowds were there, few elected Congressmen were. Travel had been hampered by the poor states of many "roads" - many "mired in mud, riddled with potholes or washed away by floodwaters". Ice-packed rivers also presented an obstacle. It was only on 1st April that the number needed for business - a quorum - was reached.

Questions About Public Bill Committees

Natascha Engel: To ask the Deputy Prime Minister what assessment he has made of the benefits to the legislative process of public reading stages for bills.

Sir George Young: I have been asked to reply.

The public reading stage will improve public engagement with Parliament by giving individuals a chance to participate in the legislative process and improve the quality of legislation by taking into account the views of those who might otherwise not contribute. The current pilot public reading of the Protection of Freedoms Bill will provide the basis for a further assessment of the merits of the process.

Natascha Engel: To ask the Deputy Prime Minister what proposals he has for the (a) minimum and (b) maximum amount of time for public reading stages of Bills.

Sir George Young: I have been asked to reply.

Public reading stage will normally begin when a Bill is published and end in time for the points raised by members of the public to be taken into account during proceedings in the Public Bill Committee.

Dr Richard Price

"Dr Price has been described as one of the greatest Welshmen ever. He was a great advocate of freedom and equality, becoming a leading libertarian and dissenter of that time. He supported the America in its War of Independence against Britain and the principles of the French Revolution."


Richard Price born at Tynton, Llangeinor, Glamorgan, (in the Garw Valley) on 23 February 1723. Like some other notable men of his age, his genius was not limited to one subject. He was a mathematician, a preacher and a political philosopher. His advice was sought by British Prime Ministers (the Earl of Shelburne & William Pitt the Younger - on financial reform); the Continental Congress in America in 1778. Ben Franklin, Thomas Jefferson, Thomas Paine and John Adams visited his home in Newington Green, London.

One of his works "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America" (1776) can be accessed here.

Local Courts in the USA

In England and Wales we have a single legal system - which has criminal and civil aspects. In the United States the state legal system (for example that of Virginia, Maryland, Wisconsin or California) exists alongside the Federal legal system.

Virginia State Courts

"There is a general district court in each city and county in Virginia. The general district court handles traffic violations, hears minor criminal cases known as misdemeanors, and conducts preliminary hearings for more serious criminal cases called felonies.


General district courts have exclusive authority to hear civil cases with claims of $4,500 or less and share authority with the circuit courts to hear cases with claims between $4,500 and $15,000. Examples of civil cases are landlord and tenant disputes, contract disputes and personal injury actions."

"The circuit court is the trial court of general jurisdiction in Virginia; this means that the court has authority to try a full range of cases both civil and criminal. Civil cases involve disputes essentially private in nature between two or more parties; criminal cases are controversies between the State and persons accused of a crime. Only in a circuit court is a jury provided for the trial of these disputes and controversies."
A diagram of the Virginia State Court structure is accessible here.

Federal Courts

"The United States district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. Every day hundreds of people across the nation are selected for jury duty and help decide some of these cases.

There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico. Three territories of the United States -- the Virgin Islands, Guam, and the Northern Mariana Islands -- have district courts that hear federal cases, including bankruptcy cases."

A diagram of the structure is available here.

So in Alexandria, Virginia you will find

STATE

The Alexandria General District Court at 520 King Street
The Alexandria Circuit Court at 520 King Street
(The Court of Appeals and the Virginia Supreme Court are 100 miles away in Richmond)

FEDERAL

Virginia Eastern District Court at 401 Courthouse Square
Virginia Eastern Bankruptcy Court at 200 South Washington Street

St David

As a Welshman (well to be strictly correct, of Welsh ancestry - I was born in a part of Coventry - which at the time was in the district of Meridan - which is the geographic centre of England), I will today be celebrating the Welsh national day. St David was a welshman (note to my English & Scottish friends - it's a good idea to have as your patron saint someone from the country! St Andrew was from Palestine and St George - if he ever existed! - would have been Turkish), born in the late fifth or early sixth century. He was both the founder of many churches, (including the 'bed-hus' or chapel, which he is said to have founded in the village of "Betws" where my mother's family come from.) and an able administrator.

A webpage about St David can be found here.

If you are thinking about visiting Wales - the Tourist Board's website is here.

Many famous Americans have Welsh ancestry - including Presidents Adams, Jefferson, Monroe, Harrison, Lincoln, Garfield, and Nixon; Confederate President Jefferson Davis; Vice President Hubert Humphrey - Secretary of State Clinton and many others.

There is a book about the 150 most famous Welsh Americans.