Curiosity of US Law - Outlawry lives ?

Glancing at the recent Privy Council case of Knowles v Gov't of USA and Sup't'd't of Prisons of the Bahamas [2006] UKPC 38 (PC), I note a curiosity of US Law, the Foreign Narcotics Kingpin Designation Act 1999. Unless Lord Bingham was joking or essaying satire - and neither seems likely - the President of the US formally states that (s)he considers someone to be a Foreign Narcotics Kingpin, and then they (the reputed FNK) are automatically subjected to various disadvantages and penalties - falling well short of outlawry, it should be said.

This feels like an idea worryingly likely to catch on - not so much in the field of drugs as in those of terrorism (where we already have all those 'killers' at Gitmo) and 'anti-social behaviour.' Interestingly - and Lord Bingham notes his concern re this - being an alleged FNK makes it difficult for you to retain a lawyer to assist you.

Welsh Assembly News

It's unfair, isn't it, for me to say that you can tell it's a slow news day when I'm writing about the Welsh Assembly ? (Cynulliad Cenedlaethol Cymru to our Welsh readers, I think)

Actually, what's proposed seems an interesting compromise between two admitted problems - polls show that the Welsh don't want more devolved powers, but Westminster has trouble finding the time to do the legislating for them. Again, it will be interesting to see how the courts treat these new Assembly Measures - almost like Acts of Parliament (ie immune from scrutiny), or yet another form of Delegated Legislation, to be Judicially Review'd pretty freely.

The lead story from the Beeb is here, and a Q&A of sorts is here.

Watch this space - and as one of the people that the Beeb interviewed rightly says, the real test for the Assembly will be what (if anything) happens when you get different political parties in charge at Westminster and in Cardiff.

The Devil and the Deep Blue Sea

We learn that Abu Hamza has been given leave [=permission] to appeal.

(I'm staying off the merits - I don't want to be the one who finds out whether the Contempt of Court Act 1981 applies to Blogs)

I wonder whether this is wise - tactically, I mean. I can see that it is arguable (as Sir Igor Judge said) that the circumstances of his prosecution might benefit from appellate discussion - but what if he's successful ? Then the Americans will want him extradited, and he'll be back in prison while that's worked out. He will say 'Human Rights' and the USA will make promises about what they will/not do (eg send him to Gitmo). Embarrassing, but he'd presumably still be extradited (see the NatWest Three), and if convicted by a USA judge (no comment) would surely be sentenced to a lot more than his UK 7 years (3-4 years allowing for parole etc).

Politics of Companies (II) - Book I Part I

Curiously, the idea of using Aristotle's Politics to consider the development of company law seems novel. This cannot be right - I must be searching badly. In the meantime, here's the Jowett translation of Book I Part I of the Politics (hat tip to MIT for this), amended to refer to companies. What do people think ?

"BOOK ONE

Part I

Every trading entity is a community of some kind, and every community is established
with a view to some good; for people always act in order to obtain
that which they think good. But, if all communities aim at some good,
the market or commercial community, which is the highest of all, and
which embraces all the rest, aims at good in a greater degree than
any other, and at the highest good.

Some people think that the qualifications of a chair of the board, chief executive,
director, and manager are the same, and that they differ, not in kind, but only
in the number of their subjects. For example, the ruler over a few employees
is called a manager; over more, the director of a firm or company; over a
still larger number, a chief executive or chair of the board, as if there were no
difference between a great firm and a small PLC. The distinction which
is made between the CEO and the chair is as follows: When the
running of the company is personal, the ruler is CEO; when, according to the
rules of the socio-economic science, the members rule and are ruled in
turn, then he is called the chair.

But all this is a mistake; for trading entities differ in kind, as will
be evident to any one who considers the matter according to the method
which has hitherto guided us. As in other departments of science,
so in the social sciences, the compound should always be resolved into the simple
elements or least parts of the whole. We must therefore look at the
elements of which the market is composed, in order that we may see
in what the different kinds of corporate governance differ from one another, and whether
any scientific result can be attained about each one of them."

I don't think that I'm always choosing my re-wordings well, but the idea seems to have legs. Also, I suspect Jowett stuck close to the original when in doubt, and that a more committed (at the risk of error) translation would read better.

I guess - tho' I'm not sure - that Aristotle would have allowed a community a separate legal [/whatever] personality from its citizens. I wonder at what point ?

Watch this space ...

Prerogative of War (II)

Hmm .... - reading The [London] Times, I may have been a bit quick off the mark with the Lords' Constitution Committee. Apparently all that they are suggesting is a constitutional convention about Parliamentary approval for wars &c.

In a sense, this would just be a crystallization of the current position - essentially the Earl of Onslow's point in the radio exchange I noted previously. On the one hand, this is therefore a lot less wrongheaded (IMHO) than the Left's idea of legal rules. On the other - so what are you going to achieve ?

It seems to me that there are two problems of constitutional principle here:

1. You can't conjure a convention into existence like this. If people do it because of the words then it isn't a convention - see the so-called 'Sewel Convention' re Scots devolution. If enough people to matter really think that the Government needs advance clearance for wars etc (would that include 'peacekeeping' in Lebanon ?), then they will make it so. 'Sewel' will only truly become a convention after it has survived substantial political differences between London and Edinburgh, where Westminster has not intervened not because it was inconvenient but because they were aware that it was thought to be wrong. That is the essence of conventions.
   
2. This possibly substantial constitutional change (I suspect that it's meant to be a precursor - otherwise why bother ?) is being piggybacked on popular discontent about Iraq. This is wrong. The former is a question of consti, the latter is a question of politics, and as Their Lordships know perfectly well a prior parliamentary vote would have made no difference - military action in Iraq would have been approved, as of course it was.
   

One really would have thought that people might have learnt from the debacle over the (non-)abolition of the post of Lord Chancellor. Do consti things for consti reasons - anything else is asking for trouble.

Politics of Companies

Musing again on 'What is a Company ?' (like I said, there's no cure), it occurs to me to wonder whether any theorist has approached them as Aristotle does the various social groupings in the Politics - starting up from the sole trader (or wherever) - 'a god or a beast' ? Hmm ... - and then debating which form of corporate governance (a mixed one ?) is best. The idea is so obvious that someone must have done it: I'll let you know what I find.

Who Lied - Who Died ?

The Court of Appeal has just given judgement - or rather, its initial judgement - in R v Prime Minister &c exp Gentle [2006] EWCA Civ 1078 (CA). This was on appeal from [2005] EWHC 3119 (Admin) before Mr Justice (Andrew) Collins.

The claim is for a mandatory order (of old, mandamus) for a public inquiry into the circumstances of the UK's military action in Iraq - 'invasion,' as the Court calls it. This sort of thing has become something of a growth industry - not the call for a public inquiry (which is just 'politics as usual') but the attempt to enforce it by Judicial Review.

What is not yet a growth industry is for this to get very far in the Law Courts, cases like R v Secretary of State for the Home Department exp Amin [2003] UKHL 51 (HL) - the truly appalling Feltham case, to which the court referred - notwithstanding. The logic is - as both courts said - straightforward enough in principle, that cases like Jordan v UK (2000) (ECHR) require a public inquiry wherever people die in circumstances implicating state agents - and Amin indicates that it needs not be the state's finger on the trigger. McCann v UK (1995) (ECHR) - 'Death on the Rock' - is perhaps closest of the UK cases to this.

To my amazement, the Court of Appeal have granted permission to appeal (really, to apply, as they point out) against the Judge's refusal. As they appreciate with quite sufficient clarity, the argument is one of international law rather than domestic law (ie politics by other means), and scarcely justiciable in a UK court. The Article 15 point about lawful military action is interesting, I admit, and I wish that I could be more confident in distinguishing the Bosnian / Iraqi civilian cases, but this seems to me to be quite clearly an attempt to carry on a political argument that was - for better or worse - lost in Parliament. Whatever the Lords Constitution Committee's objections to the War Prerogative, they weren't suggesting this.

To be fair, the Court make quite clear that they expect the claimants / applicants to lose. However, it seems guaranteed (check out today's top leader column in The Times) to exacerbate Government suspicion of the courts, and for all that they say that it is important, it is not important in domestic law but in domestic politics. The irony of Tony Blair being forced out by wall-to-wall coverage of the appeal should also worry people concerned about the courts' functions.

Prerogative of War

The BBC has resurrected the old argument about whether the Royal Prerogative should be transferred from the Monarch (usually acting through the Government on everyday political questions) to the House of Commons. The occasion of this - at least nominally - was a House of Lords Constitution Committee Report on the War Prerogative.

As the BBC's purported Q&A makes embarrassingly obvious, they don't really know what they're talking about - an elementary Yahoo! search would have found this summary by the Treasury Solicitor. A constitutional law student with time on their hands might care to e-mail the Beeb to correct their errors: I'll start with an invitation to them to include expressly some reference to R v S of S FCA exp Everett [1989] 1 QB 811 in their remarks about passports.

However, the Today programme (link to audio record - Real Player) yielded an interesting discussion involving Lord Holme (Lib Dem) and the Earl of Onslow (Con), which may be more informative. Lord Holme noted that (1) the HL Constitution Committee were unanimous, and (2) that a modern democracy shouldn't work like that, and (3) legitimacy required a House of Commons vote. The Earl maintained (with the perhaps unfortunate illustration of a surprise French attack on Dover) that the present situation (1) gives the needed flexibility whilst (2) in practice making illegitimate military adventures impossible.

All of these arguments and counter-arguments can be countered further: I shall content myself with remarking that on a question of Consti a group that are unanimous may be suspected of not having discussed the issues fully enough. However, I have not yet read the Report - it's not yet on the Committee's website - so I may apologise to them later (NB 'may'). A more careful critic will wish to explore further Lord Holme's criticisms of the Earl's 'in practice' comments, but also His Lordship's confidence in identifying what 'legitimacy' requires.

The irony of the Labour Government position being argued by a Conservative peer is too delicious fully to escape comment ...

No, Minister

David Miliband, regarded by some (but not Gordon Brown) as the natural heir to Tony Blair, started a blog over at DEFRA - the Department of the Environment, Food and Rural Affairs.

I share Guido's scepticism (see eg the comments) about whether this really does alter very much. If the concern really is popular participation in politics, then why the Government musings about measures that will increase the mathematical turnout without necessarily doing anything about its quality - measures like compulsory and postal voting ?

If voting matters enough to people, and given that they do have reasonable opportunities already, then they'll put themselves in a position to do it, either en route to work (if they work) or on their way home. The problem that needs addressing is why voting doesn't seem to matter: the Government proposals, by contrast, concede its frivolity.

Thinking about Company Law (I)

The gap's been while I begin to think about the nature of a company - what actually is one ?
(No, there's probably no cure, and the condition's chronic)

I'm used to thinking about Land Law in terms of the debate around (started by ?) Charles Reich's The New Property 73 (1964) Yale LJ 733* - that property is a bundle of rights (or is that Kevin Gray ?), and that what rights attach to what kind of stuff is not eternally absolute. The standard Marxist analysis is, of course, that what counts as special property varies with the economic era (not their phrase, but it'll do), and so the Marxist approach to [English - or the whole Commonwealth, I guess] Land Law is to say 'Well, of course you see Land as special. Your Land Law got going in feudal times, when Land did matter. But that's just historically [sc. economically ?] conditioned, and we can now see that it needn't be so.' This then leads less painfully to measures of collectivisation, state control of land, etc, and an intellectual justification for ignoring the protests of Messrs Locke, Nozick et al.

Now - what about applying that to Company Law ? That is, to say following Felix Cohen (Transcendental Nonsense and the Functional Approach 35 (1935) Columbia LR 809), that a company is whatever the court wants it to be, and so rather than discerning what is inherent in the concept 'company' the court is making policy decisions about what are to be the powers and liabilities of these new legal creatures - rather as Parliament does more openly in its Companies Acts etc.

Duncan Kennedy has probably done this better elsewhere, but one would then re-open the question of what are the rights and liabilities of a company, and examine the policy implications of the choices made. Two areas that interest me so far are the veil of incorporation (and of course its exceptions - especially its exceptions) and the question of companies and human rights.

*Reich's direction was to argue for/that jobs and welfare rights were/to be seen as forms of property, as important nowadays as land was of old.

Recent ECHR Decisions re UK

The ECHR's not been as quiet as it's seemed recently. In particular, it's given the following judgements against the UK:

1. Keegan v UK (2006) (ECHR). It seems that the Keegans' house was in 1999 the object of a fairly violent Police search for an armed robber. The choice of their house was apparently a rather feeble mistake, and so / yet when the Keegans sued they were told that they had to show malice. They couldn't - and so lost. The ECHR found a breach of Article 8 - for the search - and Article 13 - for the difficulty of getting a remedy in damages, and awarded some of its own. This would seem a case where UK law had been incorrectly applied anyway - nowadays there would surely be a fault-based remedy.
2. Saadi v UK (2006) (ECHR) - following R v S of S HD exp Saadi [2002] (HL). You'll recall that this was the Oakington litigation - about the Government's fast-track detention-for-decision process camps. The ECHR has - in effect - held the system itself to be OK under Article 5:1 ('versus illegal entry'), but that 76 hours to explain the detention to S's lawyer was too long for Article 5:2. As in Murray v UK (1996), the applicant wins on precisely the 'wrong' point: the Oakington system is (in effect) approved.
   

Note for worried Europeans: it's not that I think that your cases don't matter, it's just that they're rather difficult to translate across to UK law. For an example of how not to do that, see Mr Justice Sullivan's efforts in Jory v S of S LGTR (2002) a few years ago ....

Revising Revisionism - Lochner v New York

To every backlash comes - or may come - a further backlash.

Lochner v New York (1905) (USSC) was the case in which the Supreme Court invalidated (by a narrow margin) New York's Ten Hours for Bakers law.

It came to be seen as a prime example of judicial activism, formalism, and judges reading their own political theories into the Constitution (these three charges may not be wholly consistent ...).

Now, as David Bernstein reports, Lochner is being reappraised. Was it really a heroic Labo(u)r v Capital struggle, and is it any worse than Griswold or Roe ?

Declaration of Independence ?

The House of Lords (in their judicial capacity) have issued an interesting judgement, called Crehan v Inntrepreneur (CPC) [2006] UKHL 38 (HL).

In short - and subject to a better summary appearing - the Law Lords have reminded the ECJ&c that their decisions on law only remain binding on a UK court. As in that case, the application of that law is a different matter. Readers' comments will be gratefully received.

Royal - I mean, Presidential - Veto

President Bush has just veto'd his first piece of Congressional legislation, about public [ie taxpayer] funding for stem cell research. As you would not have gathered from the shrill BBC coverage, it is remarkable that George Bush has taken this long to wield the veto, which is accepted in the USA as a political tool in a way in which the (withholding of the) Royal Assent to legislation is not in the UK.

To be fair to the Beeb, they attempt a Q&A page on the stem cell issue elsewhere, but actual information about the US Veto requires following a link to their Clerk's Office for some statistics.

Of course, this new rarity of vetos requires interpretation. Does it mean that Congress is strong and the President weak ? Or vice versa, so that they don't produce veto-able stuff ? Or is it just that they both agree much of the time ?

'No Change' - if only ...

As the BBC report, the Government has decided that "Human rights laws will not change."

What they must mean by this is that they are not going explicitly to amend the Human Rights Act 1998 - surely never a politically serious proposition anyway.

However, even tho' the Government have abandoned the idea (same report) of getting a ministerial veto over Human Rights judgements in the courts - you may wish to re-read those last few words and check out that link (and this one, if not easily frightened) before continuing - they can achieve plenty by implied repeal and issuing 'guidance' to government bodies (and bullying Judges).

I wonder how long this non-interference will last if the Court of Appeal (and then the Law Lords) uphold Mr Justice Sullivan's Human Rights objections to the Prevention of Terrorism Act 2005's Control Orders regime in Re MB (2006) ?

This is the reality of David Cameron's call for a 'British Bill Of Rights' - that our Judges are already - for better or worse - interpreting the European Convention / Human Rights Act in (with respect) surprising ways that happen to preserve the existing UK law. See eg Alconbury (on the Planning laws) and Wilson v Sec of State for Trade / First County (on Consumer Credit).

Custom, not a Convention

This is Swan Upping week, and so a procession of boatmen (and boatwomen, one assumes) are making their way along the Thames to count and mark its swan population.

Almost as worrying as the widespread student belief that this is a constitutional convention (it has no constitutional purpose, being a larder check / conservation exercise, even if a rather quaint one), is the large Daily Mail coverage of the event. What can this mean ?

Woolfie in Retirement

For those who've wondered what Lord Woolf's been up to since he retired last autumn, here's part of the answer - he's been working with the European Court of Human Rights (ECHR).

Their site currently makes available the text of his initial Review (dated December 2005) of the ECHR's chances of sorting out its problems by administrative means. As he himself (in effect - page 6) says, the real problems are of substance rather than procedure, but this seems a good start. He is also, apparently, part of a Group of Wise Persons (from which language is that a bad translation ?) looking at those questions of substance (page 13).

For the moment - ah, the joys of executive summaries ! - he recommends especially:

1. more education about what the court does
2. satellite registries both to do (1) and to deal with problems nearer 'ground level'
3. pilot judgements (inc on remedies) to help deal with serial problems
4. more encouragement of (and national establishment of) Alternative Dispute Resolution mechanisms
5. more training for judges

The material about Protocol 14 (pages 12-13) is also of interest, in terms of future single-judge disposal, and a 'significant disadvantage' test. The latter is necessitated (IMHO) by the Court's tendency to forget the flipside of its concern to ensure that the rights it protects are 'real and substantial' - that cases that are academic (in the popular sense) be rejected.

One might also add that the ECHR's increased workload also reflects an increased workload for the concept of 'human rights' generally - that it is being extended to cover all sorts of matters not previously seen thus. Whether that is natural 'mission creep' given its 'trump card' status, or indicates some wider social breakdown (or those two are related), awaits another post ...

King Tony I, and Hegel

Thom Brookes of Newcastle and Sheffield has an interesting piece out on SSRN, entitled 'No Rubber Stamp - Hegel's Constitutional Monarch,' which he asks not be cited for the time being.

Generally, I find German thinkers whose names begin with 'H' to be impenetrable (Hegel, Heidegger, Habermas, etc), so this must be good - even if it's a summary of Hegel rather than the man himself.

I'd commend the following points of interest:

1. As Brookes points out, Hegel doesn't believe in a threefold separation of powers - he regards the Judiciary as part of the Executive (p.9, note 30 and text);
2. Again, there is an obvious comparison with the UK (p.16), since Hegel comments that his monarch needed only be someone (anyone) to 'dot the 'i's.' However, when Hegel himself looks at the (then) UK (p.22 and note 70) he concludes that the UK monarch is too weak - even if no-one else considers whatever happened in 1692 to be the last royal rejection of a parliamentary decree;
3. In fact - tho' Brookes doesn't take this point that I can see - the better analogy to Hegel's powerful (or so Brookes argues) monarch is the Prime Minister. To take two topical points,
• the Monarch is unaccountable, while the Ministers are accountable to Parliament and dismissable by the Monarch (pp. 25-27);
• the needs (or 'needs') of foreign affairs may bring a temporary (or 'temporary') expansion to the Monarch's powers (p.33).

Hmmm ....

Wednesbury across the Atlantic

Speaking of Lawrence Solum, he references an interesting article by Ilya Somin (George Mason Uni) on the US Supreme Court's decision in Gonzales v Raich (2005) (USSC), called Gonzales v. Raich: Federalism as a Casualty of the War on Drugs.

For the non-US lawyer, this has two especial points of interest:

1. the remarkable width given (as usual) to the 'Commerce Clause' of the US Constitution. So much for checking the legislature ...
   
2. the 'rational basis' standard of review for Congress' decision to use the Commerce Clause to legislate in this area - that no specific evidence is needed - see references from notes 26 and 51, and sections IC and ID. In effect, a Congressional lawyer need only come up with some plausible reason for supposing that this matter may affect interstate commerce - and then they can. That narrower interpretations of 'rational basis' have been preferred in the past (note 55 cites Romer v Evans (1996)) simply underscores the point - that this is remarkably like the (allegedly) 'bad old days' of the Wednesbury test for unreasonableness test in the UK.

Another Legal Theory Blog

(Prof) Lawrence Solum of Illinois Uni has moved his Legal Theory Blog over to typepad.com.

Please adjust your bookmarks accordingly - he's strongly recommended to the thoughtful constitutional lawyer and legal theorist.

The First Post

It would be logical, I think, for the First Post in a new Blog to seek to set out the writer's programme, philosophy, etc, and generally to justify yet another addition to a crowded blogosphere.

On the other hand, today's stories on the BBC site include:

• De Menezes Police won't face homicide but may face Health & Safety charges
• Lord Hattersley (what is it about that phrase ?) calls on Tony Blair to quit soon despite his being "instinctively honest"
• Vladimir Putin finds it 'colonialist' for people to wonder how democratic is Russia
• Lord Levy's lawyer has difficulty seeing why his client might be arrested re the loans-for-peerages stories
• The Government's new Guide to the Constitution for schools can't even get an MP's constituency right - or the spin plausible when this is pointed out to them.

In those circumstances, the better question may be - how can one not write a blog ? As Juvenal put it, difficile est bloggum non scribere (Satires I, 30).