Enforcing Rights

Rights aren't much use if the means do not exist to enforce them. That underlies the opposition to the recent Legal Aid "reforms" (if you haven't done so already, it's worth looking at the four videos I posted on Friday - starting here.)

When the treaties which began the development leading to today's European Union were signed, some member states expected that rights for individuals arising in EU law would only be enforceable in the traditional way - by Member States or Institutions taking action against failures by other states or the institutions themselves. They would be the only ones who could stand up for the rights of individual citizens.

But the European Court of Justice developed the concept of "Direct Effect" - which means that, if certain criteria are met, an individual can enforce their right in a NATIONAL Court.

The breakthrough case was "van Gend en Loos v Netherlands Inland Revenue Administration". It's one of the key EU law cases - and every Law student should read it to follow the Court's reasoning  - it's available to read here.

There are other ways to enforce rights if there is no Direct Effect - these are "Indirect Effect" and "State Liability".

The following diagram sets out a logical approach to considering how an individual might enforce a right arising in European Law. (A frequently occurring question in exams). First consider whether there might be direct effect; if there is not, or may not, be direct effect then consider if indirect effect may provide the remedy. If neither of these can help, then the State should be sued under State Liability. Direct and Indirect Effect actions must be brought against the body whose action has immediately affected the individual (The employer; the company...)

Click on the picture to see the full sized version (works on some computers) or click on picture and print). I've highlighted in red the matters which would require detailed discussion - so make sure you are confident in using the relevant case law.

 

 

(If this has been useful to you - please share this post with others)

Concepts, Cases, Legislation & Arguments

Facing a Law exam?

There are four matters to concentrate on. For each topic (for example - Statutory Interpretation; The Doctrine of  Precedent; Juries; Direct Effect; Free Movement of Goods; Separation of Powers; Homicide....) make sure that you can succinctly deal with the key

* Concepts
* Arguments
* Cases
* Legislation

Could you describe and explain them to an intelligent friend? or deal with any question that they might fire back at you? (this is the value of working with other students as you prepare). Could you make a coherent argument in response to a request to discuss the strengths/weaknesses of the existing law - or for/against reform?

Are you confident that you know; could explain and use the relevant legislation or cases?

The diagram below might help you prepare your thoughts. [CLICK THE PICTURE FOR THE FULL SIZED VERSION]

"Condensing" is an important part of revision. [so you could review the topics and draw a diagram like the one below for each specific topic].

So is rehearsing explanations and arguments.

Is there a flow diagram you've seen - or could construct to logically set out your argument or solve a practical problem? (My students can use the Free Movement of Goods diagram (W200) or Judicial Review diagram (W201) as a starter).

Are there any tables you could construct which summarise arguments - with a column for Strengths (with a second column for your evaluation of those claimed strengths) and a column for weaknesses (with a fourth for evaluation).

For Criminal Law you could draw up a table setting out in columns the Actus Reus; Mens Rea; and defences for each offence, along with the leading cases & a sentence to remind you of the key facts.

Revision is not about memorising lots of facts - and regurgitating them. It's about demonstrating your handling of the concepts; arguments; and authorities. Train for the exam, not like a child preparing for a spelling bee competition, but a football player - ready to flexibly respond to whatever strategy the opposing team uses on match day. Flexibility and skilful use of your acquired resources (your knowledge and understanding) are the key.

01 Sadiq Khan

Sadiq Khan is the Shadow Lord Chancellor (Shadow Secretary of State for Justice). He was the first speaker at a fringe event on the state of the justice system.

His website is http://www.sadiqkhan.org.uk/

02 Emily Thornberry

Emily is the Shadow Attorney General. She was a human rights barrister before entering Parliament - where she served as a PPS in the Department of Energy and Climate Change (Ed Miliband was the Secretary of State). In opposition she has served in various roles, and her website is available at http://www.emilythornberry.com/.

03 Lucy Scott-Moncrieff

When the politicians had had their say, the lawyers spoke. First up was Lucy Scott-Moncrieff, a former president of the Law Society. She  is a Mental health and human rights lawyer.

04 Maura McGowan

The final main speaker at the Legal fringe was the Chair of the Bar Council - the body which represents barristers in England and Wales.


The meeting continued with comments and questions from the floor. It is one of the things I like about the Fringe at Conference, there is an opportunity to discuss policy matters with experts and (should Labour regain power at the next election), the leading politicians who will be making policy in the future.

01 Europe Rally

A meeting at lunchtime of the Sunday of Labour Party Conference has become a traditional part of the week's events. It is one I always attend - and has been in many formats. This time it was a rally held in the neighbouring Cinema. I recorded a number of the key speeches - and post them so that you can get an inside glimpse of what happens at Conference.

The meeting began with a few remarks from the Shadow Minister for Europe, Emma Reynolds.

02 Kathleen Van Brempt MEP

Visitors from other countries play an important role in Labour Party Conferences. I enjoy meeting members and politicians from sister parties around the world. Conference speeches have been made by leading politicians including President Clinton. At Sunday's meeting the Belgian MEP Kathleen Van Brempt shared her experience with members.

Her website (for those who can read Flemish) is available at http://kathleenvanbrempt.be/. She has been an MEP, breaking her service to become a Minister in the Belgian federal government.

03 Sir Julian Priestley

Sir Julian was the Secretary General of the European Parliament from 1997 to 2007. "In his role as Chief Executive of the institution, he was responsible inter alia for organising the policy advice for MEPs and the parliamentary committees, at a time when the legislative powers of the Parliament were being strengthened. He had also to prepare the Parliament for the largest Enlargement in the history of the European Union.

A known advocate for the improvement of the quality of EU legislation, Sir Julian led the administrative negotiations with Commission and Council to prepare agreements on Better Regulation. He reorganised the work of the EP’s committee secretariats to improve assistance to MEPs in their legislative work.

Sir Julian’s wide experience in the EU, and particularly in the European Parliament, has included stints as a member of a committee secretariat (Budgets), head of a secretariat (Energy, Research and Technology), Director responsible for all committees dealing with internal market legislation, and head of the Private Office of EP President (Dr Klaus Hänsch)." [from the EPPA website]

04 David Schoibl

David is Chair of LME (Labour Movement for Europe).

05 Richard Corbett

Richard Corbett is an expert in the procedure and practice of the European Parliament. I have frequently recommended on this blog his book entitled "The European Parliament", which is in my view has been - in all eight editions (and I have used all of them over the years in my role as an EU Law lecturer and analyst on EU affairs) - the best guide to the Parliament available. It is currently jointly written with Francis Jacobs (Author of Western European Political Parties: A Comprehensive Guide - with extensive experience as an EU official) and Michael Shackleton (Another very experienced EU official)


.
Richard was an MEP from 1996-2009 and is Labour's second candidate in Yorkshire & Humber, behind the sitting MEP Linda McAvan in the 2014 election.

06 Glenis Willmott MEP

Glenis is the current leader of the EPLP (the European Parliamentary Labour Party). When I stood in the European Elections in 2009, Glenis headed our East Midlands list - and she will do the same again next year. She has been an MEP since 2009.

Her website is http://www.gleniswillmott.eu/

07 Anneliese Dodds

Heading the list for Labour in the South East region is Anneliese Dodds. Her website is http://www.anneliesedodds.org.uk/.

She lives in Oxford and is  currently a Senior Lecturer in Public Policy at Aston University.

08 Rory Palmer

Rory Palmer is Labour's No 2 on the East Midlands list - so an increase in the percentage of the total votes cast in next May's election should send him as a new MEP to the Parliament. He is currently a Labour Councillor for Eyres Monsell and Deputy Mayor of the City of Leicester. His blog is available at http://rorypalmerblog.blogspot.co.uk/

Morning has broken...

I'm writing this in bed as Wednesday of Conference week dawns. Already I've caught up with emails and this morning's press coverage of the Leader's speech. Later today he will be back in the conference hall for a Question and Answer session. Then it will all be over - and delegates and other attendees will say their farewells, with promises to meet up in a year's time in Manchester.

Last night I went to a single fringe meeting. It was put on by the Open University, and considered the future of Higher Education. I found it incredibly stimulating. The advances in technology give an opportunity to use incredible new ways of learning. MOOCS (Massive Open Online Courses) are not just about delivering "lectures" via video across the world, but allow collaborative learning and a host of effective new means for individuals to learn. I recommend looking at the website "FutureLearn" - www.futurelearn.com for more details.

I find Party Conference to be one of the most stimulating weeks of the year. Perhaps that doesn't come across in the TV coverage - which focuses on the floor speeches. The real value to me comes from the fringe meetings and the stalls in the exhibition hall. It's here is a wonderful opportunity to come across; think about and discuss new ideas and to explore knotty problems of policy and potential opportunities. The French Parti Socialiste has an annual "universite d'Ete" (summer university) - and party conference has that element. I'll be returning home with lots of reading material - but also with ideas to reflect upon and develop further.

My next post will be from Milton Keynes. There I will be able to return to inserting photos ; links and labels to posts. I'll also be uploading the many videos I took and incorporating them in future posts.

Bye....for now

All over -I'm on my way to the Open University fringe meeting (note - they are represented at all Party Conferences). Will post either later tonight - or tomorrow (depends on wifi access)

Ed gives the finger

In order to emphasise the points he is making, Ed is waving a single finger. Hope it's not misunderstood!

It now looks as if he is drawing to a close. He will no doubt get a standing ovation - and lots of people will be timing it. Interestly I have many books of obscure stats - but I've never seen a list of leader's ovations. News that will last just a few hours!

Ok, quiet words - and now the rousing line; back to quiet words - gradually increasing in speed. And now the final line - anfd the hall erupts - but no, there's more to come. Clearly it'sthe Baptist Minister's approach -  rousing chorus, quiet 'verse' - and now it's over - the hall erupts (and watches are looked at by the real nerds.

More from Brighton

First of all, can I apologise for any spelling mistakes - or bloopers - I'm not a good touch typists - and I'm trying to get this uploaded as soon as I can after it was written.

The text of this speech (as with all the speeches by front benchers) will be available for delegates and visitors shortly after  the speech ends. For many years Labour Students (the Labour society for students) has been given the text and allowed to copy the text and to sell the copies in order to raise funds.

I notice that on the floor at the Leader's feet are the excellent cartoonist Steve Bell, and my old friend, Ian Selby (a councillor and Deputy Mayor from Grantham). Ian is a talented broadcaster and photographer - and has just celebrated his birthday.

The announcent about a heating fuel price freeze got a good reception from the hall Conference also likes his setting out of the last Labour Government's record. This is important because many delegates and attenders feel that the party has failed to set out its positive achievements.

Water needed - so Ed has taken a drink - and is now back on track.....

Leader's Speech update

The speech is now in full flow. It is not my purpose in posting to gush about how wonderful the speech is. You can make your own mind up. But I can comment on what we are seeing.

The first thing to notice is the array of "beautiful people" who frame the Leader. No televised speech for the last few years has been without this framing. They are all young people, pretty girls and handsome lads (not that that is incompatible with brains - I know or have talked with some of them - some of them are awesome. They are intelligent, articulate and are discussing complex issues in the many fringe meetings. If our future is in their hands - the future looks good!).

As a contrast (???) some of the older former and current players in British politics are occasionally shown.  ( but watching the Leader from the side or from in front of him).

There is no auto cue - and he is not reading from notes. As an individual he is gifted at delivering a speech without notes - but which follows word for word (I've seen him do this with the text of the speech in front of me - it's very impressive how close he is to the printed text).

There are some jokes - with sudden switches to serious points. The delegates are lapping it up. Most of those around me are exhibitors, with a keen interest in the implications for their company, charity or pressure group. They are listening in silence as they weigh the speech up.

I shall stop to upload this - my next post will follow soon.

Leader's Speech

One ancient tradition of conference is queuing for the leader's speech. I usually join the other fanatics who start queuing the minute the morning session ends. More tickets are distributed than there are seats available (first rule of Leader's speeches - never allow a TV camera pick out an empty seat - so this precaution is necessary). This year however I had given my ticket away by mid morning (a tummy bug (and yes it was what I'd eaten not what I'd drunk!!!) meant I couldn't face standing in line for over two hours. Instead I'm in the exhibition hall, on a comfortable seat watching a big screen TV.

This morning's plans were abandoned as I sat drinking water - and chatting to friends. There's a large contingent from Milton Keynes - and as my head has been down recently finishing off the thesis, I've had a lot of catching up to do. I did witness Ed Miliband enter the building, but we still await the speech.

I'll sign off now - but will post again later. The odd tweet of mine may appear under my twitter handle of  jdm_progressive.

A little (important) trivia - it was 50 years ago that Harold Wilson - in his conference speech - first promised a new type of university - the Open University. I'm the proud son of two of the OU's earliest students - who benefitted from an environment in which they set an example of tireless study as I was a teenager at secondary school; an Associate Lecturer at the OU (in Law), husband of an Associate Lecturer (Maths Education), and father of a daughter working at 'Walton Hall'. I'll be off later this afternoon to an OU sponsored meeting about MOOCs - Massive Online Open Courses. If you are reading this at Conference - do come along to the Osborne Room in the Metrople at 5-30.

Monday Evening

Since my last post I've been very busy. There was a lunchtime fringe meeting on Europe - more Europe, but different Europe. While next year's elections were of course a feature, the focus was on the advantages of EU membership - and the disadvantages of withdrawal

I didn't get the opportunity to see any of the afternoon's plenary - you might be tempted to say that I was indulging in the dark back corridor plotting - but no, I was out in the wonderful. sunshine . And we weren't seeking to overthrow the leadership; or stitch up a vote or an election - we were talking about, and discussing solutions to various practical issues our constituents were facing. (I have the luxury of not having any constituents - but a lot of experience in seeking solutionst).

In the evening I went to a meeting about the House of Lords - put on by Labour's front bench team there. Very informative about how the House works - and how to communicate views to members of a House made up mainly of part-timers, who don't have any personal staff - who may not use a computer - let alone email. Personal letters are the key - to Peers who have demonstrated an interest in the subject (and a search of Hansard online - or a look at 'Who's Who' in the local library can reveal this). Mass email bombing can be counter-productive.

Short visits to a Europe reception; a Diversity evening event in a local restaurant; and a karaoke event No, I didn't sing - my singing what have got me kicked out! I then returned to the hotel for an early retirement to bed.

Monday Morning...

I write this in the conference hall as the debate on "Britain's Global Role" continues (worth watching on BBC Parliament.

Since I last posted, I've attended a number of interesting events. Last night I attended an event on legal services. Again I filmed most of the short speeches - and they should appear in posts from later on this week. The issue of access to legal advice as a "Rule of Law" matter - and the practical problems that individuals and Courts are facing as a result of legal aid changes were stressed.

The vote on which issues will be debated as contemporaneous motions saw a large amount  of support for the legal advice motion but missed getting into the successful four.

The Association of Labour Councillors held their reception, and there was an excellent turnout - both from members and front bench speakers.

This morning I attended a breakfast round table held by Diabetes UK. Some of the facts highlighted were mind-blowing .

* 10% of the NHS budget is accounted for in treating Diabetes. 
* Of the £9.8bn spent each year, 80% goes on dealing with avoidable complications. Spending more on health education; identification of those at risk and those with Diabetes; and treatment - saves a massive amount of the costs needed for dealing with those complications.

It is worth visiting the Diabetes UK website - and if you or your loved ones are in a risk category - go to your doctor to be tested. Limbs and lives can be saved by exercise, an appropriate diet and medication.

The sad thing is that the incidence of diabetes is increasing. There are clear links to diet, exercise and obesity. The epidemic can be tackled - but it is not just an issue for healthcare professionals and decision makers. A safe environment for playing, walking and cycling can play a key role in avoiding developing diabetes, or if like me you have already been diagnosed, in pushing away the more serious consequences. Honesty in advertising and clearer labelling can help parents understand that the apparently 'healthy' breakfast cereal contains a dangerous level of sugar. In my view self regulation has failed miserably with food manufacturers; advertisers and retailers. There is increasing scientific evidence of the dangers and addictiveness of high fat, sugar and salt products - yet Cadbury's are able to link eating their sugar laden products with 'joy' - to increase standard sizes, and many retailers still cynically put temptation at child level height and near the queue for the checkout.

At lunchtime I intend to go to a meeting about the European Parliament. This evening I have a frustrating clash of fringe events - if only it was possible to be in three places at once. I'll be posting later on what I did get to attend.

If you are reading this at Conference, I'd encourage you to consider attending the fringe on "Legal Aid in Crisis - What Should Labour Do?" (Lord) Willy Bach ['fightbach' on twitter] who led for Labour in the House of Lords in opposing the Legal Aid legislation that was pushed through Parliament (LASPO Bill); Emily Thornberry, the Shadow Attorney General - and front line providers of legal advice, assistance and representation will be speaking. It is on at 17-30 in Lancing 2 in the Holiday Inn.

Sunday Afternoon

I'm now seated in the conference hall, listening to Liam Byrne talking about disabilies.  He is getting a good response from the the hall, which is close to full. Delegates - who have the right to speak and vote, are in the first twelve rows. I have a balcony ticket so am in the tiered seating area. It has lready been a busy day. I posted this morning from the Hilton Metropole. Those of us working or reading in the Bar (coffee only), watched Ed Miliband on the Andrew Marr Show. On our way to the Metropole, we had passed the seafront structure where Marr was broadcasting from.

I had to pick some stuff up from the city centre then made my way to the Europe Rally at the Odeon cinema. I filmed a number of the contributions and hope to share them with you when I return to Milton Keynes. We heard about the work of the European Parliament, and the importance of the Euro-Elections in May 2014.

I've met a lot of long-standing friends in the last few hours - a number of people are regular attenders at conference - and met many first time delegates. As I play no official role, I have freedom to do what I want - but delegates face a punishing schedule. They are here on behalf of their constituency Labour Party or their Trade Union. Generally they are expected to give a report upon their return. They have to vote on a number of matters during the work, and may have been mandated to vote a particular way on specific issues - by those they are representing.

As I have been writing, the subject matter has moved on. The Welsh Report is being given. Conference will adjourn at about 5pm, and I will be off to a series of  "Fringe Events". Some will involve speeches & debate, whilst other will be more of a social nature.

Conference

The Labour Party Conference officially starts this morning - but there were receptions all yesterday evening, heaving with delegates, politicians and members. I arrived after a revision session in Oxford for my Open University W201 group - by car rather than train, as Clapham Junction was suffering major problems - throwing my original plans into chaos.

I'll be here in Brighton for the rest of the conference - and I'll be posting about the things that go on during a major party political conference in the UK. Each is different - the role of conference differs in each of the parties - though there been a tendancy for all to move towards the American style rally and TV feast - for the sadly, small number of BBC Parliament viewers.

There are plenary sessions - and these are the venue for the major speeches. I've never been as a delegate - so am a viewer rather than a participant. But the exciting activities are to be found in the fringe. Today I'll be heading for the Odeon Cinema for a European meeting. As regular readers know, I've been a candidate for the European Parliament - and have a passion for working with fellow minded Europeans to achieve at a European level - what cannot be achieved purely at a national level. Many modern problems - like climate change and international crime cross national frontiers. As business is multinational - ordinary people need rights that are international. No doubt we'll here about the last year's achievements in standing up for consumers and employees rights.

I am to post as often as I can - so please check in - you won't be getting the "official" version - just my observations as an ordinary member, with a passion to share the story of how politics really works.

For my students in law - I have spent last night and this morning trying to encourage delegate to vote to debate a motion on access to justice. As Constitutional lawyers will know the "Rule of Law" is central to the British constitutional set up - but if access to legal advice is impossible - and for many people who need it, it is beyond their financial means - then the Rule of Law is a mockery. Rights must be enforceable. So we'll see if that motion is taken up.

As they say in France a bientot!

Understanding Today's Republicans

As some members of Congress seem ready to play Russian Roulette with the US Economy and Reputation - what motivates today's GOP? This article appeared in a blog published by two of the Democrat's leading strategists - "The Democracy Corps"

"The Republican Party is descending into unchartered realms of unpopularity with the country, even as its deepening divisions leave it immobilized in the face of doomsday budget deadlines.[1] If you want to know why Speaker Boehner has appealed to Democrats for help, you need go no further than the three ascendant blocs of Evangelicals, Tea Party supporters, and moderates that we described in our first Republican Party Project report last month.[2]

But you will understand the current war in the Republican Party better if you are able to see the the six underlying attitudinal dimensions that run through the consciousness of today's Republican Party supporters. It is these dimensions that create the passionate factions at war against ‘Obamacare,” gay marriage, and immigration.     
We uncovered these underlying dimensions using a multivariate factor analysis that took the inter-correlation of each question with every other question to identify factors that organize Republican voter consciousness on a range of issues, from politics to values to emotions.[3]  We used big data analysis to identify six underlying dimensions that, in effect, map the Republican brain.      
These are the six dimensions running through the attitudes of Republican identifiers:  

1.      The Obama-Pelosi-Democratic Congress-government activism dimension (explains 23.5 percent of responses).  This is the predominant, and the most motivating dimension of Republican thinking, explaining almost a quarter of the variation in responses to the world. This dimension is animated in the first instance by deep hostility to President Barack Obama, and equally by views of Nancy Pelosi and the Democratic Congress that held sway before the voter reaction in 2010.  These partisan responses are on the same dimension with a fierce hostility to federal government action, particularly with respect to climate change, though also health care reform.  While Republicans are desperate to stop health care reform, climate change has become as much a defining factor in Republican thinking.     

More than any other dimension, it gains its strength from deep hostility to the president and the Leader and health care reform.  Over 80 percent of Republicans offer cool reactions to them -- and three-quarters give them the coldest reactions possible, with Pelosi more reviled than the Obama.  This is the emotional and combustible dimension in the Republican identity.

2.      The homosexuality-traditional values dimension (8.2 percent). There is a second, very strong dimension that centers on homosexuality and traditional values.  Gay marriage and homosexuality set off the responses that form this dimension.  Importantly for Republicans, homosexuality has become more important than abortion in motivating the focus on preserving traditional values.  Two-thirds respond coolly to gay marriage, but almost all of them, 60 percent, are intensely negative.  This dimension and the centrality of homosexuality mean that social and cultural issues will be key drivers among Republicans and in the country.

3.      The Republican Congress dimension (6.6 percent).  Excited Republican reaction to the new Republican Congress after the 2010 elections constitutes another organizing dimension in their identity.  Unlike the country, Republican voters feel very warm and embrace the Republican Congress and the Speaker, including warm feelings about the Tea Party and pro-life groups.  

4.      The traditional pro-business dimension (5.2 percent).  There is a pro-business dimension in Republican thinking -- hostility to unions, pro-immigration and pro-free trade.  This was surely a more powerful factor in the past and it is barely more important than the anti-Wall Street dimension among Republicans.  This dimension gives energy to a traditional business agenda: marginalizing unions, facilitating labor market needs and promoting America's global businesses.  That agenda would not have much of an impact among Republican primary voters.   

5.      The anti-Wall Street dimension (5.0 percent).  Equal in explanatory power is an anti-Wall Street dimension that includes the leader of the Republicans in the House who voted against the TARP bailout, we should recall.  It also encompasses positive views of government action on climate change, suggesting openness to a regulatory response when it comes to Wall Street. 

6.      The anti-foreign-anti-immigration dimension (4.6 percent). The last dimension is an anti-foreign and anti-immigrant dimension, led strongly by opposition to free trade abroad but also by doubts that immigrants make a good contribution to the country.  This is more nativist than economic, as it is strongly associated with rejecting “the responsibility of the government to take care of people who can't take care of themselves." This dimension reinforces a view that Americans ought to get on with the work of the country. 

 

 

 

 

---

[1] In the last month, the Republican Party has reached new levels of unpopularity, as reflected in the recent NBC-Wall Street Journal survey.  An amazing 44 percent of the country view Republicans negatively, up 3 points this past month when we might have expected gains because of Syria.  The Democrats have a brand advantage of 12 points (40 percent versus 28 percent on feeling positive).  (NBC News/Wall Street Journal Survey of 1000 adults nationwide, conducted Sept. 5-8, 2013 by Hart Research Associates and Public Opinion Strategies).

[2] The survey of 950 2012 voters (1500 unweighted) nationwide was conducted from July 10-15, 2013.  The survey included an oversample of an extra 350 Republicans to allow for more detailed subgroup analysis.

[3] Our findings stem from a principle-components factor analysis conducted using responses from 607 self-identified Republicans to batteries of 13 feeling thermometer questions and 14 agree/disagree questions measuring policy-related attitudes. Such an analysis is typically used to find distinct patterns across a series of survey questions that reflect common underlying traits or attitudes. These patterns identify dimensions of opinion which are distinct from one another, with each dimension providing a different angle from which to assess the differences in attitudes across the Republican Party. The six dimensions identified in this memo correspond to the six most prominent factors identified by the analysis, which combine to account for 53% of the total variance across all responses.  These analyses are the product of a collaboration between Democracy Corps, Greenberg Quinlan Rosner Research, and Pivotal Targeting, LLC.

- See more at: http://www.democracycorps.com/Republican-Party-Project/mapping-the-republican-brain/#sthash.Eiw8me9t.dpuf

Open Westminster

This weekend promises a bonanza for anyone heading to Westminster. There are free tours and events around Parliament and the Supreme Court.

A leaflet is available here.

How well do you know your "Human Rights"?

The European Convention on Human Rights has played an important part in the development of the law in England. While that is obviously true since the passing of the Human Rights Act 1998 (full text available here), it had an important influence since it first came into effect. An article on UK Law online - written in 1997 - states:

"The European Convention on Human Rights and Fundamental Freedoms is a treaty signed in 1950 by the then members of the Council of Europe. In this way, it predates the European Communities and Union and arises from a quite different organisation. The two are linked, however, in that adherence to the Convention is now effectively a condition of membership of the EU. Additionally, the European Court of Justice refers to the Convention which influences its decisions, even though the EU is not a member of the Convention. Note that the European Court of Human Rights (described below) is not the same as the European Court of Justice. The judges are different and one sits in Strasbourg, the other on Luxembourg.

 

The UK was a founding member of the Convention and was very influential in its design. It was amongst the first states to ratify the treaty. It has allowed individuals to make complaints to the European Commission on Human Rights since 1966. The influence of the Convention has been growing in the UK in the past decade or so. (1980s-1990s) This is partly because the European Court of Human Rights has become a more energetic body...."

It is worth looking at the ECHR and identifying the specific rights arising from each article. The Key Section is 'Section 1 - Rights and Freedoms' which includes Articles 2-18. If you are revising for an exam in Constitutional & Administrative Law; Human Rights Law, or the Open University's W201 "The Individual and the State" - it might be worth drawing up a table (Spreadsheets like Excel are so useful for this purpose) setting out for each Article - the rights (brief phrase - then description); any limitations; key cases (distinguish those from the European Court of Human Rights; and cases decided in the English courts). Textbooks or course manuals are a great help here - they highlight the key points.

Could you give a brief talk on the subject matter of each right? (You might be able to persuade a fellow student; or a partner or even your cat - to listen to it. Failing that rehearse the 'talk' as you go for a walk - exercise AIDS revision).

It's also important to do a similar table and talk for key provisions of the Human Rights Act 1998.

Finally, be prepared to discuss the value (or otherwise) of the Human Rights Act & the ECHR. Prepare a briefing paper for yourself.

You might find the following briefing papers from the House of Commons Library useful
Report of the Commission on a Bill of Rights
UK Cases at the European Court of Human Rights since 1975
EU membership and ECHR
Deportation of individuals who may face a risk of torture

Magistrates and Juries

Professional judges are part of "government". They are employed by the State and exercise "judicial power", one of the three functions of government. Lord Atkin criticised, in the famous case of Liversidge v Anderson (a case worth reading - it can be accessed here) judges who "show themselves more executive minded than the executive." They are lawyers by training - and can be very 'legalistic' - applying the law laid down in statute or case law - irrespective of whether the law in question is a "bad" law.

These are some of the reasons that lay participation in courts has been highly prized in the English Legal System. The Americans so valued the independence of juries that the right to jury trial is entrenched in their Constitution. The Sixth Amendment begins - "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"

Law exams often invite candidates to discuss the merits of magistrates; juries, or both in the legal system. Such questions require the candidate to both describe and evaluate the claims for and against such involvement. So if you are facing an exam after a course in "English Legal System" or the Open University's W200 "Understanding Law" course - what can you do to prepare?

First of all review your notes; old essays; textbooks; journal articles for the arguments on both sides. Consider the strengths and weaknesses of any claims made. Weigh up the advantages and disadvantages. Your job is not to advocate one view or other but to logical consider the arguments and come to a reasoned conclusion. There is no 'right' or 'wrong' answer - the examiner will be looking for your knowledge and understanding of the advantages and disadvantages; for evidence of further reading and reflection; critical evaluation of the arguments; a well argued discussion and a conclusion which is based on that evaluation and argument.

It's worth writing a short briefing note for yourself - setting out the key points. If you have the opportunity to talk to fellow students have a discussion - or why not argue one side whilst your colleague argues the other. Then reverse it - you argue for the other side and so on.

The examination of Judicial Review

Today I want to discuss the English remedy of "Judicial Review". It is nothing like Judicial Review in the USA. The latter involves the Court deciding to strike down legislation. Of course in the UK we have "parliamentary sovereignty".

At Law Degree level Judicial Review can be looked at from a number of angles. If you are facing an exam question - make sure that you answer the specific question set, not the question you'd have liked to have been asked. [You'd be surprised that there are some people who will try to answer the question they wanted, rather than the one on the paper - some do so deliberately, because they don't know how to answer the question set - sadly the examiner is not likely to take pity on them. Others have "prepped" a particular answer - one of the dangers to watch out for if you are using model answers or previous exam papers to guide you - and when they identify the JR question imagine that the learned answer is appropriate. READ THE QUESTION. That's what you'll be assessed on. The key is to be flexible - have a sound foundation of knowledge - and deploy that knowledge and understanding to answer whatever question you face.]

One type of question invites reflection on the constitutional issues raised by Judicial Review. How does it fit in with Parliamentary Sovereignty? Is challenging a decision made by the Executive strengthening or undermining Parliament? Have Judges given themselves too much power? Does JR give them an opportunity to impose their own values (or views on what is unreasonable/irrational) over those who are ultimately accountable to parliament? Was JR necessary to fill in a gap in ministerial responsibility to Parliament? How have the courts dealt with decisions based on statute or the Royal Prerogative?

[A list of cases to prepare should include AG v DeKeyser's Royal Hotel Ltd; CCSU v Minister for the Civil Service [the GCHQ case]; and Anisminic Ltd v FCC]

A second type of question asks for a problem to be solved. Someone is upset by a decision. Can that decision be challenged by JR? It's worth going through this logical pattern to solve the problem

Is the decision making body susceptible to JR? (Public Body or Public Law?)

-          Public Body?

-          Carrying out public functions? R v City Panel on Takeovers & Mergers ex p Datafin Ltd [1987] QB 815

-          No private law issues? O’Reilly v Mackman [1983] 2 AC 237

                                                                (* The exclusivity rule*)

 

Does the claimant have ‘Standing’

-          Sufficient interest s31(3)  Senior Courts Act 1981

-          Inland Revenue Commissioners v NFSESB [1982] AC 617

-          R v HM Inspector of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329

-          R v SoS for Foreign Affairs ex parte World Development Movement Ltd [1995] 1WLR 386

 

Time Limits?

-          Normal– without (1) undue delay and in any event (2) within 3 months – s31(6) Senior Courts Act 1981 & 55.4 Civil Procedure Rules  [UNLESS]

-          Specified in relevant Statute

Ouster Clause?

 

 

-          Total - Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

-          Partial – (time-limit clauses) – R v SoS for the Environment ex parte Ostler [1977] QB 122

 
Grounds of Challenge?

-          Illegality

-          Irrationality

-          Procedural Impropriety

-          Breach of ECHR Right

 

(make sure you use one of the frequently used ‘labels’ – for example: irrelevant considerations; legitimate expectations; rule against bias; unlawful delegation…)

Remedies?

Thomas Paine

Thomas Paine was a great Englishman - who played an influential role in both the American and French revolutions. Sadly, those who decree what history is taught in schools - or what we can watch on TV - don't like to pay much attention to the glorious radical tradition in Britain.

I've long been an admirer of Thomas Paine. Over the summer I published some posts about one of his great works - "Common Sense" (the series began on 28th July).

If listening to Common Sense makes you want to know more here are some suggestions for Further Reading