Consumer Rights

One of the greatest impact of membership of the EU on individuals, is the way that goods can move more freely - increasing choice - and very importantly, the EU has developed safeguards and rights for consumers.

Large companies can try to carve up the market for their own advantage. To avoid that Competition Law and the principles of the Free Movement of Goods has been developed. Often these companies - or trade groups - have lobbied their government for restrictive rules to promote their interests. The EU has challenged many of these attempts. A key case is known as the 'Cassis de Dijon' case - which established the presumption that if goods were legally on sale in one country, they should be able to be sold in all other member states. The onus is put on the State attempting to restrict imports (or exports) to justify the restriction. [The decision can be read here]

The following is a programme about the Single market - and its advantages and disadvantages.



More videos on Consumer rights can be accessed at http://europarltv.europa.eu/en/themes/consumer-rights.aspx

Philip Lacovara

I'm currently making (I hope) final amendments to my Ph.D. dissertation on Whips in the UK Parliament and US Congress. While searching for the date of a particular event (the event was described in a previous section on 95th Congress, but is being shifted to a description of the challenges faced by John Brademas [Majority Whip in the 95th and 96th Congresses], so I needed the date) - I discovered an interview in the "Washington Lawyer" of January 2005.

It was given by Philip Lacovara. My interest in him resulted from his resignation as head of an investigation into the Koreagate scandal. A South Korean, Tongsun Park, had been seeking to buy influence with members of Congress. He was ultimately indicted for bribery and corruption. [He escaped punishment in exchange for testimony but reappears in the Iraq "Oil for Food" scandal, for which he served time in prison]. Lacovera resigned because of disagreements he had with the Ethics Committee chair, John J Flint. John A Farrell ["Tip O'Neill and the Democratic Century"] says the argument was "over [Lacovara's] aggressive pursuit of John Brademas and John McFall", while contemporary newspaper stories refer to concerns that Lacovara had about the infrequency of committee meetings hampering his investigation. [Congressional Quarterly Almanac 1977] In the 2005 article he said "I had a flap with the committee chairman, who, in my view, was obstructing the investigation"

Lacovara had been an assistant to the Watergate special prosecutors, Archibald Cox and Leon Jaworski. He appeared before the Supreme Court to argue that Nixon should be ordered to hand over the tapes of meetings he had been involved in. [US v Nixon]. At the time of his involvement in investigated Watergate and Koreagate, he was only in his early thirties. The interview can be accessed here.

Bob Edgar

Bob Edgar was one of the Democratic freshmen in the 94th Congress ('the Watergate Babies'). This week he passed away suddenly. This interview was recorded in 2011.



A newspaper in his old district (The Delaware County Daily Times) published an obituary which said -

“He was a great American. He was a great Delaware Countian who left a legacy of good work of helping people in this county,” said Delaware County Democratic Party Chairman David Landau on Tuesday afternoon.

The Methodist minister defied Delaware County’s Republican-dominated politics in 1974 when he beat then-Delaware County District Attorney Steve McEwen for Pennsylvania’s 7th District seat in the U.S. House of Representatives by 17,000 votes. Dubbed a “Watergate baby,” Edgar was part of the Democratic sweep of Congress in the aftermath of the Watergate scandal and subsequent resignation of President Richard Nixon… The Delaware County Democrat represented the district for six terms until 1986 when he left to make an unsuccessful bid for Republican incumbent Arlen Specter’s U.S. Senate seat, an experience that reportedly fueled his frustration with the undue influence of money in politics.

“To maintain himself all those terms was extraordinary. He was someone who earned the respect of Republicans and Democrats alike. One of the true hallmarks of his tenure was that he was independent and he didn’t treat people differently because of their party affiliations,” said Landau , a volunteer for Edgar’s successful 1984 re-election campaign against Republican Curt Weldon.

Thomas Judge Sr., the former longtime chairman of the Delaware County Republican Party, called Edgar a gentleman and a great congressman after learning of his death on Tuesday afternoon.

“He was very, very conscientious,” said Judge. “We only disagreed once a year and that was in November. He did a very good job as a congressman. I thought the world of him.” inued...

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Judge noted that he could always call Edgar for help and advice on a variety of matters. “Whenever I called him, he would help me out,” said Judge.

Although he was a liberal and a pacifist, Edgar was a member of the House Veterans Affairs Committee where he fought for Vietnam veterans suffering from exposure to the toxic defoliant Agent Orange and Post-Traumatic Stress Disorder, among other advocacy efforts he championed for U.S. veterans.

“He was certainly a person who was an idealist. He was a man of great faith and had values he tried to act on in legislation,” said Landau.

He was the President of 'Common Cause'.

Reading

One of my Open University tutorial groups meets in Reading. It's now a very pleasant town with the River Kennet and the Kennet and Avon Canal running through - and lots of coffee shops.

It also has a link with Parliament. In 1453 Parliament met at Reading Abbey.

The Parliament Rolls of Medieval England (British History Online) contains information about this...

"The parliament of 1453, in being for a total of fifty-five weeks, was the second longest of the reign of Henry VI's reign to date, opening on 6 March 1453 and closing on 17 April 1454. Like the longest parliament of the reign, that of 1445, the parliament of 1453 sat for less than half of its total duration - twenty-one weeks and four days. The first session, lasting only three weeks, was held at Reading in March. A prorogation for Easter was followed by a second session at Westminster for nine and a half weeks from 25 April to 2 July. A prorogation to 12 November was then made. Despite the commons making generous taxation grants in the first and second sessions to underwrite military activity, it proved impossible to hold on to Guienne. The English were defeated in battle at Castillon on 17 July 1453. It is possible that it was news of this disaster which brought on King Henry's debilitating stupor. The exact date of its onset is not clear but most likely occurred in early August. On 13 October 1453, Edward, prince of Wales, was born.

Parliament was due to reconvene at Reading on 12 November, but it was on that day prorogued further, to 11 February 1454, in the hope of the king's recovery. Richard, duke of York, who had been absent from the first two sessions of the parliament, was brought back onto the council in mid- November 1453. A few days later, Edmund Beaufort, duke of Somerset, who had dominated the king's government to this point, was committed to the Tower where he remained until late January-early February 1455, thus being absent from the parliamentary session of 1454. The parliament did reconvene in Reading on 11 February as planned but was immediately transferred to Westminster where it reopened on 14 February 1454...

Parliament opened at in the refectory of Reading Abbey on Tuesday 6 March 1453. The chancellor, John Kemp, who had been translated to the archbishopric of Canterbury in July 1452, was absent. According to the roll (item 1), the parliament was opened by William, bishop of Lincoln, but as the bishop of Lincoln was at this point John Chedworth, this must be a scribal error for William Waynflete, bishop of Winchester, who was amongst those appointed as triers of petitions. When the commons came before the duke of York in the fourth session on 19 March 1454 (item 30), they claimed that at the commencement of 'this present parliament at Reading', the chancellor had spoken about the setting up of a 'sadde and wise' council of wise and discreet peers to whom all people might have recourse in the administration of justice. This suggests that Kemp was present early in the first session even if he was absent at the opening. There is no reference on the roll to the setting up of such a council. Indeed, as we shall see, the commons' complaint in March 1454 was that they had not been informed of the actual establishment of such a council. Another intriguing allusion to the business of the parliament exists in a royal letter sent to the earls of Salisbury and Northumberland on 8 October 1453, where it is noted that 'also that in our parliament which is still continued ('yit continued'), you and all other lords were warned that if any of you felt himself aggrieved against another, he should put his complaint in writing'...There is nothing on the roll about such an order, although the prorogation of 2 July 1453 with its reference to the king's intention to travel to various parts of his realm to end riots and misdeeds (item 20) would no doubt provide a context for such a command to be made collectively to the lords as they left parliament, and also for a commons complaint about the peace being badly kept (Parliament of 1453, Appendix item 38).      

 After the appointment of receivers and triers of petitions (items 2-5), the speaker was presented on Thursday 8 March (item 6). The choice fell on Thomas Thorpe. He had considerable administrative experience in the Exchequer as a summoner and from 1444 to 1452 as Lord Treasurer's Remembrancer, and had links with the Beaufort family. Although Thorpe had lost his post when York's associate, John Tiptoft, earl of Worcester, became treasurer of England on 15 April 1452, his links with Edmund Beaufort were strong enough for him to be promised the reversion of the chancellorship of the Exchequer in November 1452 as well as £200 for the vexations he had suffered. By the time parliament met he may already have become third baron of the exchequer; certainly he occupied this post by 26 April 1453."

Hansard Society

I mentioned in yesterday's post that I had attended the Hansard Society/Parliamentary Affairs Annual Lecture. The Hansard Society is an excellent organisation that puts on very useful meetings and produces some superb resources for anyone interested in deepening their understanding of Parliament.

Their website's address is http://www.hansardsociety.org.uk/ - it's worth exploring. In particular it has links to

Publications (including downloadable publications)
Recordings of previous lectures and meetings
Details of future events.

The annual 'Audit of Political Engagement' provides valuable data on public attitudes to parliament and politics. If I am able to, I'll be (as I usually am) at the launch of the latest Audit on May 15th. If you can get to Portcullis House (the modern building across the road from Big Ben) that evening, do come along. I thoroughly recommend it. Press here to register.

The Future of Europe

On Tuesday I attended the Hansard Society/Parliamentary Affairs Annual Lecture. Andrea Leadsom, Co-Chair of the All-Party Group on European Reform and joint founder of the Fresh Start Project gave an interesting address entitled, "The European Union and the Democratic Deficit". I can't say that I agreed with all of it - it reflected an ideology and world view that I have profound problems with. However I was encouraged to hear much greater emphasis put on tackling the 'democratic deficit' at Westminster.

I have been involved for many years with both the European and Westminster Parliaments. I'm impressed with the independence of the European Parliament. It takes its job of scrutinising legislation seriously, and is not subservient to the Executive. [By this I mean the European Commission]. It is directly elected (though I do think that there are problems relating to EU citizens - we still tend to vote at European Elections on the basis of our feelings about national politics, rather than on European issues; the Parliament and the elections are not adequately covered by the national media; and the party list system in huge constituencies doesn't help), and its members have a much greater opportunity to develop legislation than backbench MPs at Westminster.

But I would agree with Ms Leadsom that transfering more powers to the European Parliament won't tackle the real democratic deficit. It is a strengthening both of scrutiny, and direct involvement in European issues, at Westminster which will do that.

We do a scrutiny system - for further information follow these Links
http://www.parliament.uk/business/committees/committees-a-z/commons-select/european-scrutiny-committee/ [House of Commons]
http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-select-committee-/[House of Lords]

Ms Leadsom proposed some useful reforms, which included -

• Encourage greater specialisation within the committees (have permanent sub-committees which specialise in particular subjects) - particularly in the Commons
• Have more pre-legislative scrutiny
• Have MEPs and EU Officials make reports to the committees
• Give the committees power to veto appointments to the Commission or UKREP [the Civil Service body representing Britain to the EU Institution]
• Encourage closer work with MEPs

She also suggested that the Europe Minister should be a cabinet post. These are all ideas worth exploring.

The Hansard Society hopes to have the recording of the meeting available on its website. At the time of writing it was not available - but try here.

Who should make law?

The doctrine of 'Separation of Powers' would confine law making to the legislative branch. However in practice law making is spread across all branches.

In the UK, Parliament frequently allows 'delegated legislation' - giving Ministers and others the power to make rules to flesh out the principles in the Statute. There can be controversy of how much power is delegated - 'Henry VIII clauses', allowing ministers to amend or repeal primary legislation is an extreme example.

In the USA the President (and his administration) are granted rule making powers. Then of course there are 'Executive Orders'.

Judges can also make law. In the UK the traditional 'declaratory theory of law' asserts that judges only declare what the law is (through statutory interpretation), they don't make the law themselves. Well that has been disputed for years (and I'm currently marking assignments on the matter for the Open University's W200 course). Any student of 'English Legal System' should prepare a reasoned argument about the validity of the theory - with arguments backed by evidence from cases.

Apart from the 'Separation of Powers' argument against judicial law making - there are concerns about how representative Judges are of the rest of the country. In the UK, judges are not democratically elected at any level. Professor J A G Griffiths was key in showing how unrepresentative judges were. Until fairly recently most judges came from the same social background; went to the same (private) schools, and attended the same universities - and of course were ALL male. Things have changed - but by enough?

Griffith's "The Politics of the Judiciary" is now in its fifth edition. Much has changed since the first edition - I recommend this book, all law students (and citizens) should read it!

How does the EU work?

One way of getting to understand the working of the European Union - is to watch it's "television channel"



This shows highlights from last week - the homepage is at http://europarltv.europa.eu/en/home.aspx

Legislating for a more responsible capitalism

Further to Friday's post on accountability - I recently read a thought provoking paper by Stephen Hockman QC entitled - "Legislating for Responsible Capitalism". You can access the paper here. Tonight he's due to address the Society of Labour Lawyers (of which he is the current Chair), but sadly other commitments mean that I won't be able to attend.

There's a lot of unhappiness about the way some companies - which enjoy legal protection [limited liability for their owners - ability to bring legal action to protect the company's rights - and the assistance of the courts and police] - are abusing their powers. There has been anger at the way a small group within a company can arrange to pay huge salaries to their top managers, while their workers are spied upon; lose benefits (pension rights; holidays); work longer hours - their customers are ripped off - and in the case of banks, cost the public heavily rescuing the system.

Don't get me wrong - I am not against Capitalism - with proper safeguards, it can be efficient and beneficial. It can bring, and has brought, great benefits to individuals and society as a whole. There is more scope for democracy and liberty than with alternative systems. BUT IT IS NOT PERFECT. Sadly history repeats itself - and the lessons learned from previous failures of capitalism are soon forgotten. I remember as a young man reading Galbraith, who pointed out the recurring cycle of scandal and failure: followed by regulation to address the weaknesses revealed; following by
forgetfulness; followed by increasing demands for a 'bonfire of regulations' and "freedom" for capitalists; followed by relaxation of the rules; followed by the INEVITABLE new scandal and failure. As I read (and hear - I do watch C-SPAN & some US TV thanks to satellites & the Internet) the current bunch of extreme-Conservatives pushing their agenda - I am reminded of the same follies in the 1920s. Thankfully FDR was able to 'save capitalism from itself' (let's not forget Keynes; Beveridge and Aneurin Bevan) and prosperity returned. But our current crop of Extreme-Conservatives (from Paul Ryan to George Osborne and Michael Gove) are determined to free capitalism to fail again. I hope they get thrown out before they succeed - it would be a bit to lose all the benefits of capitalism because they were too stupid to allow safeguards to keep it working well.

I recommend Hockman's paper - well worth reading and thinking about.

London

I've recently enjoyed a couple of days walking around London. Not my usual haunts around Westminster - but the old Roman settlement of  'Londinium'. This Roman 'new town' (the Milton Keynes of its day) was established within seven years of the invasion of Britain. There may have been earlier settlement in the area, but this was a planned new town.

Londinium was build in an area north of the (then much wider) Thames, which included what we now know as Ludgate Hill [where St Paul's is close to the summit] and Cornhill [where the main Forum was built)]. The River Fleet (now buried underground was the major river flowing into the Thames at the western end of the settlement). Between Ludgate Hill and Cornhill the "Walbrook" ran. Only a couple of weeks ago announcements were made about the significance of the finds on a site where the stream used to run. [Details here and BBC video].

Armed with the Museum of London's "Londinium" maps (1981 and 2011 editions - both are useful and complemented each other. An application showing Londinium's sites imposed on top of a modern map is available here.) I walked around the modern city.

These are two photographs taken from London Bridge showing the extent of the settlement along the river. Blackfriars Bridge (with the new covers for the extended platforms) marks the western end where the Fleet met the Thames.

The Tower of London marks the eastern end.















The current bridge lies a few feet to the west of the original Roman bridge. Of course the first "Londinium" had a short life. After only a decade it was burnt during Boudica's rebellion. But a new "Londinium" was soon built, which prospered greatly.

It was well worth visiting the Museum of London. There are some excellent displays and models to help a visitor understand the Roman city - and how it developed into today's London. I was surprised how much of the walls of London are now visible - and how marked the two hills of Ludgate and Cornhill remain.

I also visited the amphitheatre which lies below the Guildhall. The Museum of London and the Amphitheatre are open to the public.  A series of pdfs describe the walk around the walls.

Obligations

As part of a society, we have obligations to others that can be enforced by law. Criminal Law seeks to deter and punish behaviour which the State feels is bad. [for example - homicide; offences which injure, damage or destroy people or property; fraud; dishonesty; public drunkenness; disorder....].

Other obligations are enforced through the civil courts. Traditionally the labels "Contract" and "Tort" have been applied to two very different types of obligations.

"Contract Law" gives a framework for dealing with certain agreements. Not all promises or agreements will be considered by the Courts. The first thing that the courts must do is decide whether there is a legally enforceable contract. Often law textbooks refer to the 'essentials of a contract'. If a purported agreement doesn't enjoy these attributes, the Courts will not consider adjudicating upon and enforcing the "agreement"

In English Law - the essentials of a contract are

- Offer
- Acceptance
- Consideration
- Intention to Create Legal Relations.

There are very specific rules, mainly arising from particular cases which govern what the courts will recognise for each essential.

If a contract does exist, then the next question for the Court is, "what is in the contract"? So they consider 'Express Terms' and 'Implied Terms'

If one of the parties has failed to properly carry out the terms - the final issue is what remedies should be given.

Tort

Other obligations arise - not because we have agreed to do, or to refrain from doing, something - but because our behaviour and interests can conflict with the interests of others. The term 'tort' (yes, for any readers of French - it is the same word as the French Language uses for 'wrong'!) - covers a number of "wrongs" that one person may commit in relation to the person or property of another. These include defamation; trespass against the person; trespass against property; nuisance; and negligence.

Once, 'negligence' was a minor tort - a relationship which existed because there was a contract between two people, might give rise to additional responsibilities. If I agree to buy something from you, let's say a kettle- there is a contract which requires you to give me the kettle and requires me to pay you an agreed sum of money. But if the kettle is dangerous and I am injured when using it - the courts might find that an additional obligation has been created not to injure me.

Then came Donoghue v Stevenson - the case of the decomposing snail in the ginger beer bottle. This held that there can be a wide "duty of care", not confined to existing contractual relationships. The three questions a Court must ask are

1 Is there a duty of care?
2 Has that duty been breached? (and this involves considering what standard of care is required)
3 Did the breach of the cuty cause the injury or damage?

This is a brief outline - highlighting the significance of key terms in 'Contract' and 'Tort'. If you are a law student you'll need to turn to your text book (or if an Open University Student) your manual for the detail. While statute does play some role in these areas of law - cases are very important.  

Does it matter who we vote for?

I care less and less about which members of the political elite hold key offices. Does it really make any difference as to whether its the Old Etonian Boy's Club (Cameron et al)? privately educated MPs [ALL parties - 54% of Conservative MPs attended fee paying schools, compared with 40% of Liberal Democrat MPs, and 15% of Labour MPs.]? or the extremely wealthy (Essential if you want to be a Senator; Congressman and to an increasing extent an MP or Peer)?

[Well yes, if you believe in a representative democracy]

But my point isn't to decry the "pay to play" principle; or to deny that there are vastly different policies being put forward by the different parties - but to consider the implications of an important point made by Lord Acton in 1887.

 "Power tends to corrupt, and absolute power corrupts absolutely."

Sadly, Acton's words are true. There is a tendency for power to corrupt - perhaps not in its grossest form - but subtly, by desensitising people once they achieve power. Recent history is full of examples - the expenses scandal at Westminster is classic. Decent, hard-working, dedicated people ended up making claims which were outrageous - but their time in power had desensitised them. "Group-think" took over. Benefits became entitlements - and the public purse dipped into in a way they'd have condemned before they entered the Westminster village. We've read in the papers over recent months of how people thrust into power - whether they be performers or DJs; or politicians - abused their positions to claim sexual victims. Senator Fulbright spoke of the "arrogance of power" that can be shown by nations - but it can often be shown by individuals.

One of the defining demands of 'Extreme-Conservatives' is for less regulation. Cast off regulation and everyone would be better off. Their little experiment now has its results - the banking crisis; Enron; the horsemeat scandal...

We can't alter human nature - but we can put in safeguards to lessen the change of power corrupting. The Americans when they drew up their Constitution were keen to insert "checks and balances".

Montesquieu proposed 'separation of powers' as one way to lessen the likelihood of tyranny developing. Even medieval Kings required 'weights and measures' laws to stamp on the 'rip-off merchants.

Requiring greater accountability from those who exercise power is the only way to take on our human failings. Judicial Review in the UK has developed to challenge - not the substance of decisions - but the way they've been taken. A decision made by a public official who has a financial interest in the result of that decision, will be declared invalid. Decisions can be challenged and struck down where there is irrationality; or irrelevant considerations have been taken into account.

At Westminster and in Congress - our representatives can investigate and question how decision makers have acted. The National Audit Office [NAO] and the Government Accountability Office [GAO] can undertake professional, in-depth investigations and report their findings to our representatives. In Britain MPs and Peers can ask oral questions during question times - and grill Ministers in committee.

Freedom of Information laws can also shed sunlight upon decisions made - allowing questions to be asked.

It does matter who we vote for - because our representatives can call decision makers to account. The issue for us as voters is whether our Parliament/Parlement/Congress has the powers; tools and commitment to holding decision makers to account.

Rights (Enjoy them while you can - before they're gone)

Yesterday I posted about 'rights' - sadly as I argue for rights, they are being taken away. I recommend this post from a friend of mine.

http://gordonlyew.wordpress.com/2013/04/18/british-citizenship-test-tightened-to-include-english-test/

The Congressional Black Caucus

The Congressional Black Caucus was formally constituted in 1971. The vision was “of a caucus that would be the primary policymaking vehicle in the Congress for the interests of African Americans.” It has been a powerful caucus since. Rangel explains the factors which have reinforced this. “Its members are more strong willed than most, because they come from districts that are non-competitive in terms of national elections…Secure black seats accrue valuable seniority no matter the fortunes of the national Democrats or Republicans.” Rangel notes, “The CBC has to be very selective about the formal group positions it takes. We tend to limit ourselves to stances that each member is ready and willing to defend when an interviewer or political opponent throws it in his or her face….Today [2007] we may well be at the long run point of diminishing returns to ethnic block politics, at least in Congress. Our districts are increasingly pressed by the faster-growing Hispanic populations, and we will continue to lose our old, non-competitive seats to Latino challengers.”

CBC members Jim Clyburn and Bill Gray have served as Majority Whip and John Lewis has served as the Number Two Whip for the Democrats for over two decades.

A CRS report notes that “At times, the CBC plays an oppositional role, both within Congress and the established party structure. “The CBC also issues declarations of its policy agenda, distinct from either party’s agenda.”

The current Chair is Marcia L Fudge, who represents the 11th district in Ohio. 

---

[1] RANGEL, C. B. 2007. ...And I Haven't Had a Bad Day Since, New York NY, Thomas Dunne Books

St Martin's Press. p184

[2] Ibid. p184

[3] Ibid. p199-200

[4] Ibid. p201

[5] MANNING, J. E. & SHOGAN, C. J. 2010. African American Members of the United States Congress: 1870-2009 (CRS Report RL30378), Washington DC, Congressional Research Service. p7

Rights

In the past slavery and serfdom have been facts of British life - some of our fellow human beings were regarded as less than fully human.

But in more enlightened times, it was recognised that whatever a person' gender; race; class; natural intelligence - there were certain rights that they should enjoy.

It is sometimes worth reflecting on what those rights are. Over recent centuries attempts have been made to identify and list those rights. It's worth looking at some of those documents, and reflecting on why those rights are so important.

Declaration of the Rights of Man and the Citizen (France, August 1789)

Declaration of the Rights of Man and the Citizen (France, 1793)

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" - US Declaration of Independence (1776) - and the amendments to the US Constitution

Article [I]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article [II]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article [III]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article [IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article [V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article [VI]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article [VII]

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article [VIII]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article [IX]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article XIII

Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Article XIV

1:  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article XV

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Article [XIX]

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Amendment XXIV

1.  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Amendment XXVI

1 The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Universal Declaration of Human Rights (1948)

European Convention on Human Rights (1952)

Bookstore

Check out the improved bookstore at the bottom of this blog. It now has more categories

- Congress
- Parliament
- Law Books
- European Union

More books will be added in the future.

An ideal Law Exam Question?

'Discuss the view that "Parliamentary legislation is excessively complex and its confusions undermine the rule of the law"'

This isn't actually an exam question that has been set in a British university - but it would an excellent question - either for "English Legal System" (allowing an explanation of issues relating to 'statutory interpretation') or "Constitutional Law" (enabling a student to demonstrate their understanding of the concept of the Rule of Law)

If I were a student, I'd read the following article - from which the quote is taken - and reflect on what points I could make - even going as far as preparing an essay plan.

http://www.guardian.co.uk/law/2013/apr/16/parliamentary-legislation-too-complex-report

On the 'Rule of Law' (and other UK constitutional principles), it's difficult to beat Lord Bingham's short, readable and thought provoking book of the same name.

Playing away from Home

When all government powers were held by one person (Kings - who made the law; carried it out; and personally judged in disputes) - the developing institutions sat where he was. If the King was in Oxford, Parliament met at Oxford.

With time the powers drained from the King to the institutions themselves. They gained permanent places to meet - so today we have the Houses of Parliament; the Supreme Court Building (formerly known as Middlesex Guildhall); the Royal Courts of Justice - and 10 Downing Street.

For most of the 20th Century Cabinet meetings were held in no 10, but recently the Cabinet has "played away from home." A recent House of Commons Library paper lists these meetings.

It can be accessed here.

Primary versus Secondary Legislation

 A recent assignment I had to mark invited students to discuss the advantages and disadvantages of Primary versus Delegated legislation.

Primary Legislation in the UK means 'Acts of Parliament' - they can also be called 'statutes' the terms are completely interchangeable. A proposed statute is known as a "Bill". For a bill to become law it has to complete all the stages of the parliamentary legislative process. There is an excellent interactive guide to this at http://www.parliament.uk/about/how/laws/passage-bill/.

If you visit an established English Law Library, you'll see that the earlier volumes of statutes contain many years worth of statutes - but in recent decades three or four fat volumes are needed for a single year's Acts of Parliament. With the development of complex government - there are more and more laws passed.

Parliament can delegate it's law making power - and does so often in primary legislation. The power to make legally enforceable rules is delegated to a Minister; or to local authorities - or to whoever Parliament decides. The 'law' that is produced by the person or body delegated to is known either as 'secondary legislation' or 'delegated legislation'.

One issue which writers of assignment titles and exams like to see discussed is the question of the adequacy of scrutiny of legislation. Are MPs and Peers able to thoroughly consider and amend bills?  This raises questions about the resources available to legislators - including specialist advice and time. 

Is there sufficient scrutiny of primary legislation? Just because it can take a long time doesn’t mean that effective scrutiny is going on.

Some people assume that, without the various stages that primary legislation has to go through, Secondary legislation lacks proper scrutiny. It's worth thinking that through. What scrutiny is required - and how does the present system work? There's another excellent resource available at

http://www.parliament.uk/about/how/laws/delegated/.

The issue is whether the scrutiny for either is appropriate. It can be argued that actually the scrutiny system for delegated legislation (where a committee sifts through the SIs – highlight points of possible concern) is actually better than the time-limited; ‘theatre’ that Public Bill Committees and the Chamber go through.

So what do you think? Observations and comments are always welcome at comments@washminster.com
 

Stony Stratford

I live in Milton Keynes - a place some people think has no history. [It is a 'New City', planned from the 1960s; developed since - and now with a population of almost a quarter of a million]. But it is full of history. A Roman Villa can be visited in Bancroft; the major Roman road, later known as Watling Street runs through the city (and close to where I live); ancient villages remain [often hidden within one of the estates on the grid] - and Bletchley Park is a site and now museum of international historical significance.

Then there is Stony Stratford - sitting on Watling Street. It wasn't a Roman town itself (MK's Roman town was 'Magiovinium' - to the South East of Fenny Stratford) - and there is evidence of roman settlement across the Great Ouse in Old Stratford - but it came into its own during the medieval period. Watling Street continued to be a major route across England - and stony Stratford developed as a coaching town. If you walk around you'll see the tell-tale signs of coaching inns -

 

After the death of Edward IV, his son - the twelve year old Edward - left Ludlow heading for London. At Stony Stratford his uncle, Richard of Gloucester [to become Richard III] - who was named as his protector in Edward IV's will - met with the young Edward V - and took him into his care.

This plaque can be seen on a property in Stony Stratford High Street. At the moment (in the little spare time I have), I'm reading about Richard III. As someone with many connections to Leicester (and a former tutor at Leicester University), I followed closely the developments involving the discovery of Richard III's body. Currently I'm part way through John Ashdown-Hill's fascinating book "The Last Days of Richard III".



In the interests of full disclosure I should mention that I've also recently joined the Richard III Society.

Freedom of Expression

Traditional 'freedom of expression' in England rested upon the principle that anyone is free to do what they want, unless the behaviour is specifically banned. Liberty is one sense, but a fragile one. The problem is that one person's use of the freedom may interfere with someone else's rights.

So throughout English history freedom of expression has been limited. The criminal law has been used to prevent obscenity; revelation of state secrets; sedition; inciting troops to mutiny; and in everyday life threatening, insulting or abusive words and behaviour are banned. Incitement to racial and religious hatred will bring criminal sanctions. There is criminal liability for contempt of court.

If someone's rights have been interfered with, there are remedies available in the civil courts - through actions for the torts of defamation and breach of confidence.

The European Convention on Human Rights, Article 10 states:-

1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This is not an absolute right - Section 2 makes that clear - but the right is also balanced against the rights of others set out elsewhere in the ECHR. Article 8 sets out the right to privacy - "Everyone has the right to respect for his private and family life, his home and his correspondence."

There is some useful caselaw on balancing these rights, including -

Thompson and Venables v News Group Newspapers
Campbell v Mirror Group Newspapers
Murray (by his Litigation Friends) v Express Newspapers plc
There's an excellent resource here on current privacy law.

The Huguenots

Tomorrow marks the 415th anniversary of the signing of the Edict of Nantes, [13th April 1598]. This decree by Henry IV of France served as a guarantee to the Protestant Huguenots that their rights to worship would be respected.  It granted them full civil rights and established a special court, the Chambre de l’Édit, composed of both Protestants and Catholics, to deal with disputes arising from the edict. Protestant pastors were to be paid by the state and released from certain obligations; finally, the Protestants could keep the places they were still holding in August 1597 as strongholds, or places de sûreté, for eight years, the expenses of garrisoning them being met by the king. (source)

However, it was revoked by Louis XIV in 1685 with the result that large numbers of French protestants fled to England to escape persecution. Over twenty thousand (out of an estimated 200,000 who fled France) of these religious refugees settled in Spitalfields, London.

This weekend in London there are a number of events to celebrate the contribution made to British life (and the silk-spinners who worked in Spitalfields, in particular). More details are available from Time Out.

Further information about the Huguenots can be found on the Huguenot Society's website.

Does Britain need a Constitutional Convention?

The Political and Constitutional Reform committee, an all party select committee of the House of Commons has just produced a report which will be on interest to all citizens - but particularly to students of UK Constitutional Law. It sets out what a 'constitutional convention' would  be, and the arguments for and against.

The Report can be accessed here?

Extreme Conservatism?

In Britain, so it is said (I have my doubts whether things really were less partisan), we had a period of "Butskellism" - a term coined to cover the political consensus of the 1950s. Butler was the Tory Chancellor of the Exchequer (1951-55), who succeeded Gaitskell (who went on to lead the Labour Party).

In the US, there was once a time when Members of Congress worked across the party divide.

But today extreme language is used - and bipartisanship is a long forgotten tradition. What's gone wrong?

Well - as I wrote in my first sentence, there may be a bit of 'rose-tinted glasses' at work here. Elections and policy battles have always been hard fought. Many of this generation's predecessors could be extremely acid tongued [Winston Churchill for example].

But partisanship certainly has increased. I thoroughly recommend Sean M Theriault's "Party Polarization in Congress" and Mann & Ornstein's "It's Even Worse Than It Looks"  for descriptions and explanations.




(These link to the 'Kindle' versions - but you can also get them as paperbacks or Hardbacks).

Can I suggest my own thesis - and please come back to me with your comments via comments@washminster.com - and that is that in the US, UK and France one of the key (but not the only) factor is the resurgence of what can be described as 'Extreme Conservatism'. This isn't the 'One Nation' Conservatism associated with Harold Macmillan and the Tories who supported the post World War Two consensus - who saw a positive role for the State and didn't seek to aggressively redistribute wealth from the many to the few. It isn't the conservatism associated with the Republican Party under Martin, Halleck, Ford, Rhodes, Michel and President Eisenhower.

This is a conservatism that is fundamentally in favour of a minimal state - still around to fight external and internal enemies - but not providing for the needs of citizens. (Private companies can do that - with their own profit as the primary motivation); a State which doesn't 'interfere' by regulation - except as a temporary response to yet another scandal (be it in banking; in food manufacturer; or after a 'disaster').These extreme-Conservatives treat their political opponents as 'illegitimate' (see the false claims about Obama; the language being used by UMP politicians in the debate in France over 'mariage pour tous' [See Le Monde 31 March 'L'electorat de droite se radicalise' p1, 2-3, 16 - "a rhetoric of de-legitimation of the President Francois Hollande")] - and will refuse to work with their elected opponents [see the activities of many Republicans in Congress].

"Conservatism" is a phrase which suggests the good old ways of the past; 'traditional' even reactionary - but this extreme-Conservatism is radical - it seeks to tear down not uphold.

But it isn't new!

Richard Hofstadter described previous versions in the aftermath of Joe McCarthy and as Goldwater led the Republicans to defeat at the 1964 Presidential Election. His book (The Paranoid Style in American Politics) is a classic - and I've been re-reading it whilst away in Southampton; Sheffield and Suffolk. In its final version it may be 48 years old - but it describes what we would so easily recognise today.

The President's Budget

Access to the documents giving the detail of the Budget proposed by President Obama can be found here.

They relate to Fiscal Year 2014, which begins on 1st October 2013.

Background to the Budget process can be found here.