Latest Consti Cases

Some interesting recent cases:

Revitt v DPP [2006] (HC Admin)

D argued that Article 6 ECHR (the right to be presumed innocent until "proved guilty according to law") was endangered by the UK's 'Guilty' plea system - which dispenses with a trial - and so he had to be permitted to change his plea when he wished. The argument is interesting (but unappealing) - apparently civil law jurisdictions tend to see a Guilty plea as evidence rather than proof. Lord Phillips explains why there's no problem, but I suspect that the reality is that no-one saw this argument coming.

R (Gardner) v Parole Board [2006] (CA)

G objected to being excluded from his Parole Board hearing (his counsel was permitted to remain) while his ex-wife - whom he was alleged to have assaulted - gave the evidence that she had refused to give in his presence. The CA held that the Board had had no real choice, and had acted fairly, since they needed to hear from the ex-wife in order to resolve the disputes of fact and assess G's risk.

R (Smith) v NE Derbyshire PCT [2006] (CA)

The PCT were contracting out some GP services, and decided without consultation to appoint an American healthcare company as Preferred Provider. S, of whose standing there is no noted discussion, challenged this, noting a breach of s.11 Health & Social Care Act 2001's duty to consult at stages of the provision-decision process. The PCT in effect argued Futility and Alternative Remedy, but didn't (really) dispute the breach. The CA dismissed the Alternative Remedy ('Mobilise the Patients' Forum') and assisted that Futility only worked if the same result was inevitable - probability was not enough. S won.

New at the Foreign Office ?

Harriet Harman, the Constitutional Affairs Minister - yes, she was Secretary of State for Social Services once (1997-98) - has called in the Sunday Times for the 'democratisation' of the Foreign Office. She doesn't want a referendum on every issue, but wishes the FO to be more outlooking - like the Home Office is, apparently. Intriguing ...

Lord Speaker (new)

I'd somehow forgotten to mention the election & appointment of a Lord Speaker (the role is newer than the title) for the House of Lords much earlier in the summer. She's Baroness Hayman, and some not massively informative notes about her intended role may be found here. It will be interesting to see what actually happens in practice. One trusts that students will update their notes about the Lord Chancellor's legislative role ...

Cunning Diversionary Tactic

In what must be a cunning diversionary ploy, Boris Johnson MP (Henley, I think ?) has distracted people from the New Labour spectacle by comparing it to the people of Papua New Guinea's alleged (and I'd like to stress that word) past involvement in cannibalism etc. The High Commissioner duly forced an apology, tho' since she considers him "a senior MP" (how senior, exactly ?) and seems to have accepted his curious remarks about "blameless bourgeois domesticity," it may be that her offence was rather at her nation being compared to the Conservative Party.

One theory is that Boris is doing this to relieve the heat on Mr Blair, so that he stays on, hands over to (say) Mr Miliband just before the next election, provoking an (even more) open revolt from the Brownites, which splits the Labour Party and wins the Conservatives their biggest majority since records began. Another theory ...

Consti Haiku

Giving full credit to Lawrence Solum for publicising the idea - but not sure about linking to his examples - it's just what it sounds like. All offers to improve on the following are welcome:

Poetry of thought
Poesy that's also Law
A Consti Haiku

Royal Marriage - or was it ?

Good to see in The Times that (Prof) Stephen Cretney is sticking to his guns over the Royal (?)Marriage. His line is that the Civil Marriages legislation has never covered Royal Marriages (why would they have wanted it to do so ?), and that therefore Prince Charles and (er) Camilla are not married after all. It's not just an Old [Bristol] Uni Tie thing - Lord Falconer has not (so far as I know) explained precisely how the Human Rights Act helps here, beyond vague references to Section 3 and Article 12. Some cynics, of course - and I would not wish to be one - might suspect an attempt to embarrass Prince Charles for his dislike of the HRA.

Richard's theory - for assistance with which his colleague Mr Ian Brown deserves much credit and no blame - is that the flipside of Prof Cretney's point is that the Royals are able to celebrate a common law marriage, which may also be the better view of what difference (if any) the HRA could make. As I understand it, what is needed are words of present and effectual mutual commitment by the parties - which presumably they spoke in the ceremony.

The difficulty facing this is admittedly a couple of 19th-century House of Lords decisions (at least one on an Irish appeal, I think ?) that demand a priest to be present. Richard's view is that they were wrongly decided (!), but it may be that there were some ordinands among the protestors milling around on that day in Windsor - might this suffice ? The Archbishop of Canterbury was, I think, waiting at Windsor Castle.

Policeman ? - Send for the Marquess of Queensberry

The House of Commons' Public Administration Select Committee has sagely observed that the rules on Ministers' conduct need a proper 'policeman,' as the BBC puts it.

Meanwhile, the Labour Party seem badly in need of a version of the Marquess of Queensberry's rules for their ongoing leadership contest. One wonders whether their two Statements (see here for Blair and here for Brown) were deliberately so different.

The BBC's analysis of 'why Brown v Blair ?' is curiously coy about the story of the 'Granita Guarantee' - that in that (former, I think) Islington restaurant Mr Blair promised Mr Brown that he would serve two terms and then step down in Mr Brown's favour. One guesses the problem to be that only the two men really know what (if anything) was said.

Charles Clarke's intervention, meanwhile, may not have harmed his chances of emerging as the 'unity candidate' to succeed Tony Blair - a role perhaps also coveted by his successor, John Reid.

The BBC's comment that 'loyalty is a habit of mind' is acute, and it would be ironic if Mr Brown were to rip the party apart in order to get the premiership, only to find that it was unable or unwilling to unite under him. The nightmare scenario for Mr Brown, I suppose, is that he is followed swiftly by Prime Minister Cameron, and then by a Blairite counter-coup of the sort that her declining health (even if she ever thought of it) made impossible for Mrs Thatcher.

While I'm giving advice to Mr Brown, I'd stop worrying about whether you're "too Scottish" (is there a dividing line between acceptable and unacceptable levels of Scottishness, then ? Where, exactly ?) - if you keep making speeches about Britishness (I mean, you are Chancellor of the Exchequer), people will start to think that you think that there's a problem, even without Alex Salmond of the SNP's artful encouragement.

Uni Pennsylvania LR - Online Edition

(Prof) Lawrence Solum gets the usual kudos for his tip-off about the University of Pennsylvania's new online edition, PennUmbra. (No, lawyers' puns are equally terrible on each side of the Atlantic).

An article by Daniel Solove, seeking to classify different kinds of Privacy (thus its name, 'A Taxonomy of Privacy'), is especially commended as likely to be of interest.

The Beginning of the End ?

Saying that Mr Blair has been 'hit' by six ministerial resignations, one must immediately add that they're all fairly 'Er - who ?' figures. Even so, their resignation letters make striking reading, and Tony Blair's response - both the letter sent to Tom Watson and the remarks to the Press about 'just going to sack him myself' and 'disloyal, discourteous and wrong' (now what does that order of priorities say ?) - don't suggest that he's quite 'got it' yet. It must be said - these are not 'the usual suspects' at all.

The BBC helpfully gives an overview of 'who's signing what', while one wonders whether to congratulate Labour on their openness compared to Tory or Lib Dem leadership plotting, or weep for them. Nick Assinder's comments are worth reading. Most of the 'runners and riders' need not be taken seriously - and if that memo wasn't a hoax ... ?!

Party Funding - the US Angle

Jack Straw has been looking across the Atlantic to see what inspiration he can draw from there about the funding of political parties. His impressions are negative: as he remarks, the American approach is skewed / formed (choose your verb according to taste) by the Supreme Court's tendency to see campaign spending rules as limits on Free Speech. An alternative view would be that this is unrealistic: such rules will only 'bite' on a few (very rich) people, and so their true effect is to level the playing field and allow more to join in. Discuss ....

Constitutional Principles - an Introduction

Lawrence Solum has penned a fine set of comments on Constitutional Principles, which will be well worth reading. He is, of course, writing for an American context, but the translation should not be unduly difficult.

The obvious major difference does, however, provoke a question - since, as Professor Solum remarks, constitutional principles are not (generally) directly stated in the US Constitution, does that make it less legitimate for the US Courts to resort to them than for the UK ones to do likewise, since there is no equivalent UK constitutional text whose silences and omissions can similarly be alleged to be significant ?

I suspect - without any attempt to verify - that the practice is the reverse. Now - why ... ?

Consti - Ethics or Ontology ?

It occurred to me while setting off on holiday that, just as in philosophy there is sometimes said to be a divide between those who focus on 'Ethics as First Philosophy' (I'm quoting Levinas) and those who regard the primary questions as ontological ('the miracle of being,' if you like), the same might be said of Consti.

That is, before we discuss whether we have the Constitution that we ought (whatever that might be), there is the remarkable but little-remarked fact that we have a Constitution at all. I mean by this not that there is Text X of Age Y for State Z - that's nearly universal - but that there is a reasonably stable governmental system that operates in a relatively fair and predictable way. That is rather rarer.

One view is I suppose summed up best by the dictum attributed to Harry Calvert, that even Al Capone's gang had a constitution - 'Do what Big Al says, or else.' I guess that this was the way of things - otherwise he would have become Little Al or Dead Al rather quickly - but I'm not so sure that this amounts to a constitution.

This is for two - er, three - reasons.

Firstly, this suggests that the corrupt policeman who points a gun at you and says 'bribe me or I shoot you' is in some sense making law. Even most positivists would reject that conclusion.

Secondly, this does not really cover anything like the variety of decisions that the gang or its members must take. Certainly if Big Al has pronounced - yes, that is what happens (or a shootout). But what if he has not ? Or does not think it necessary ? Or does not care ? (eg precisely who takes which moll). One might either extend the constitutional analogy and say 'Ah, but there are conventions and customs' (really ?) - or one might say that there is no real constitution here and it is more a matter of 'survival of the fittest' with people forming and breaking alliances according to their perceived self-interest.

'That's politics,' you say - well, perhaps. But it's not Consti. Consti is more about the mechanisms and principles by which these questions are resolved without resort to a Hobbesian state of nature - which would seem to me to be probably a better analysis of Calvert's example, with the Capo for the time being as Leviathan - for the time being.

Thirdly, there are Lon Fuller's points about the morality of law - that is to say, that 'laws' must have certain basic properties (intelligibility, non-contradictoriness, etc) before they will deserve the title 'laws.' Until then, they are no more deserving of that title than the highwayman[=person]'s 'Stand and Deliver.'

This, of course, is more controversial, but I think that applied to Consti it would also derail Calvert's example - which was doubtless meant as hyperbole, but tends to be taken rather literally by students and textbook-writers.

This would both deny to some states (others may decide which) the claim to possess a 'constitution' (as oppposed to a piece of paper with that heading) and also re-open our eyes to the 'miracle of being' in Consti - how remarkable it is that some states are governed, and have been for some time so that we can expect it to continue into the future, in an orderly and predictable way. This would then, perhaps, cause us to be less confident that a functioning constitution is a natural and inevitable stage in a state's history (the Whig interpretation of Consti, shall we call it ?) and more concerned about what would be the most suitable conditions for that putative state to acquire and retain one.

I gather that Samuel Huntington has a book out on this ('Political Order in Changing Societies' (ppb 2006)), which I shall get around to reading at some stage and revert to you about.