Deus ex Lege (W.S. Gilbert and the law)

lordchancellorAs you may know, I am a big fan of the works of Gilbert and Sullivan. I am also a lawyer. Imagine how pleased I was then to discover an academic paper on W.S. Gilbert and both his view of the law and the law’s view of his work!

From that august publication, the Oregon Law Review in 2004, Professor Jeffrey G. Sherman brings us “Law’s Lunacy: W.S. Gilbert and His Deus ex Lege – 46 pages of a near comprehensive treatment of Gilbert’s legal philosophy. I heartily recommend this article.

W.S. Gilbert was himself a barrister before he was a famous playwright, but not a very successful one.  However, it meant he was well placed to ridicule and satirise the legal system and the legal profession.

PoliceThe article is, understandably, concerned with pronouncements from the US Courts and their use of Gilbert’s works, which leaves open the possibility of a gifted British blogger writing an equivalent piece from a UK perspective. Someone who agrees that …

The Law is the true embodiment. Of everything that’s excellent. It has no kind of fault or flaw, And I, my Lords, embody the Law.

-Iolanthe

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A Constitutional Convention?

The Lord Purvis of Tweed, otherwise known as Jeremy Purvis, was the MSP for Tweeddale, Ettrick and Lauderdale from 2003 to 2011.

On Monday 1st June 2015, his Constitutional Convention Bill had its first reading in the House of Lords. It is, of course, a long way from there to becoming an Act of Parliament and I dare say that the Bill will fall long before then.

However, the Bill contains all sorts of interesting ideas and is just the sort of framework for doing all this Smith, Smith Plus, Devo Max, or whatever, properly.  Lord Purvis is quoted as saying that he wanted to see an end to the “make do and mend” approach to constitutional reform, and deliver a “sustainable, balanced devolution settlement that works for the whole UK.” And he is absolutely right in that.

But what does the Bill actually say?

The Long Title proclaims that it is “A Bill to Make provision for a convention to consider the constitution of the United Kingdom; and for connected purposes.” and it is commendably brief.

Section 1 provides that a Constitutional Convention is to meet, no later than 31 December 2016, under “fair and transparent rules about how the convention is to operate and how evidence is to be adduced”.

Section 2 gives us the terms of reference, i.e. what is the Convention to consider?

(a) the devolution of legislative and fiscal competence to and within Scotland, England, Wales and Northern Ireland,

(b) the devolution of legislative and fiscal competence to local authorities within the United Kingdom,

(c) the reform of the electoral system,

(d) the reform of the House of Lords,

(e) constitutional matters to be considered in further conventions, and

(f) procedures to govern the consideration and implementation of any future constitutional reforms.

Section 3 requires the Convention to report within a year with its recommendations, and gives the Secretary of State six months to lay responses to each recommendation before both Houses of Parliament.

Section 4 requires that at least half of the members of the Convention must be ordinary people, that is “not be employed in a role which can reasonably be considered to be political”

And section 5, 6 and 7 are just procedural and technical filler.

So, that’s it in a nutshell – there is much to commend this, and little to object to.

Why not write to your MP and ask them to do what they can to support this Bill?

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UPDATE: democracy arrives at the House of Lords

A brief update as to the franchise for the EU referendum.  The franchise is based upon those eligible to vote in UK general elections – this is why EU citizens are not allowed to vote, even though they can vote in devolved, local and European elections.

However, for the EU referendum, members of the House of Lords (usually excluded from general elections) will be able to vote.

This is very important, as otherwise we would be deprived of the votes of the following persons:

  • John Sentamu, Archbishop of York;
  • Jeffrey Archer;
  • Floella Benjamin off of Play School;
  • Alan Sugar;
  • Karan Bilimaria, founder of Cobra Beer;
  • Sebastian Coe;
  • Lord Cameron of Lochbroom;
  • Julian Fellowes;
  • Tanni Grey-Thompson;
  • Lord Hope of Craighead;
  • Jack McConnell;
  • Helena Kennedy;
  • Andrew Lloyd-Webber;
  • Lord Sewel (of Sewel motion fame);
  • David Steel;
  • Jim Wallace; and
  • Baroness Warnock.
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Should the United Kingdom remain a member of the European Union?

eu-63985_640

“Should the United Kingdom remain a member of the European Union?”

That is the question proposed in Section 1(4) of the European Union Referendum Bill (HC Bill 2). The equivalent question in Welsh will also be posed for voters in Wales.  No, no Gaelic in Scotland, no Cornish in Cornwall, and definitely no Spanish in Gibraltar.

This hands a perceived advantage to the pro-Europeans as they get to identify as the “Yes” camp.  This was thought to be of some significance in the recent independence  referendum in Scotland – although referenda in Gibraltar have survived with healthy majorities for “No”, and of course it was the “Noes” that ultimately prevailed last year in Scotland.

The wording includes the insertion of the term “remain” suggested by the Electoral Commission, in case some people were not aware that this was already the case. Fair enough. By that logic, the referendum question in 2014 should have been: “Should Scotland become an independent country?” Maybe next time …

The language of the referendum is less important perhaps when the result is certain.  Thus, in the Falklands in 2013, the question was “Do you wish the Falkland Islands to retain their current political status as an Overseas Territory of the United Kingdom?”, but may as well have been asking they wanted to become a suburb of Buenos Aires. Astonishly, 3 votes out of over 1,500 were cast for “no”. According to the Guardian (12 March 2013), some islanders were talking about rooting those three out and shipping them off to Argentina – their reputations “destroyed”.

A referendum with a similarly sure-fire outcome was the one in Gibraltar in 2002, which came with an alarmingly long preamble, before cutting to the chase, with this question: “Do you approve of the principle that Britain and Spain should share sovereignty over Gibraltar?”  In that case, the “Yes” campaign mustered 187 votes out of nearly 100 times that many cast.

Past Scottish referendum questions have been slightly more suspect in their wording, with both questions in the 1997 vote on devolution employing a “Do you agree …” formula weighted towards the Government’s preferred option.  In 1979, the question relied on the electorate having done some pretty heavy reading by way of preparation for the posed: “Do you want the Provisions of the Scotland Act 1978 to be put into effect?”

Of course, ultimately the question is less important than the answer given. Which, for the avoidance of doubt, should be an emphatic “Yes”.

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Referendum Franchise

Flag of the Commonwealth

Flag of the Commonwealth

So, we now know who gets to vote in the EU referendum. To summarise:

  • 16 and 17 year olds do not get to take part;
  • also, under 16s do not get to take part;
  • EU citizens residing in the UK do not get to take part;
  • unless they are from Malta, or Cyprus, or Ireland – then they do;
  • British ex-pats who moved away within the last 15 years do get to take part;
  • Commonwealth citizens in the UK also get to take part;
  • residents of Gibraltar may take part (unless they are monkeys);
  • residents of the Falkland Islands may not take part (even if they are penguins);
  • despite repeated warnings from the European Court of Human Rights, prisoners will not get to take part; and
  • SNP MSPs do not get to take part (if they also happen to be from France).

Hope that’s all clear?

This is, of course, in preparation for the promised in/out referendum on the UK’s continued membership of the Commonwealth, for which EU citizens will have the vote, but no Commonwealth citizens will.

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Voting Systems – a comparison of Eurovision and the Council of the European Union

79486-ukeurovisionsongcontestVoting in the Eurovision final

In all participating countries, the televoting and jury voting result in two ranked lists of all songs;

Televoters can vote via the official app, telephone and/or SMS. The voting window opens after the last song has been performed, and ends 15 minutes later. These votes determine 50% of the outcome and are gathered by the EBU’s voting partner digame;

Professional juries are also required to vote. They determine 50% of the outcome. The jury, which consists of five members (including a chairperson) is the same jury that voted in one of the Semi-Finals. They will watch live and rank all songs based on the second Dress Rehearsal, the so called Jury Final;

The EBU’s voting partner digame will determine the national result by merging these two ranked lists, and will award 12 points to the country with the best combined rank of the jury and the televoting, then 10 points to country with the second-best combined rank, etc. The country ranked 10th in the combined ranking receives 1 point;

Since traditionally only 12, 10 and 8-1 points are being given, countries ranked outside of the top-10 do not receive points. Also, televoters and juries cannot vote for the country they represent;

If there is a tie between two or more songs in the combined ranking between televotes and the jury, the song that obtain a better ranking from the televote will prevail over the other;

Based on the combined full ranking of all songs of televoting and jury voting, each country will distribute 1 to 8, 10 and 12 points; The combined results of jury voting and televoting will be presented on air during the Final by spokespersons in all participating countries. As usual, the points 1 to 7 will appear on screen. The spokesperson will then reveal 8, 10 and 12 points.

The full result, including the televoting and the jury result in every participating country will be published on Eurovision.tv after the Grand Final

Source: http://www.eurovision.tv/page/vienna-2015/about/voting

Qualified Majority Voting in the EU Council

From 1 November 2014 a new procedure for qualified majority voting applies in the Council. Under this procedure, when the Council votes on a proposal by the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, a qualified majority is reached if two conditions are met:

  1. 55% of member states vote in favour – in practice this means 16 out of 28
  2. the proposal is supported by member states representing at least 65% of the total EU population

This new procedure is also known as the ‘double majority’ rule.

Blocking minority

The blocking minority must include at least four Council members representing more than 35% of the EU population.

Special cases

When not all Council members participate in the vote, for example due to an opt-out in certain policy areas, a decision is adopted if 55% of the participating Council members, representing at least 65% of the population of the participating member states, vote in favour.

When the Council votes on a proposal not coming from the Commission or the high representative a decision is adopted if:

  1. at least 72% of Council members vote in favour
  2. they represent at least 65% of the EU population

Abstentions

An abstention under qualified majority voting counts as a vote against. Abstention is not the same as not participating in the vote. Any member can abstain at any time.

Source: http://www.consilium.europa.eu/en/council-eu/voting-system/qualified-majority/

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In/Out Referendum on Eurovision in 2016?

Lord Graham of Norton raised the prospect of an early referendum on Eurovision membership as he launched a diplomatic whirlwind to renegotiate Britain’s place in the Song Contest.

Speaking in Vienna, he said: “I want to make early progress. The sooner we get on with this, the better.”

He admitted that he had not encountered a “wall of love” during discussions, but he said: “We need to address the concerns of the British people. They are not happy with Electro Velvet. Frankly nor am I.”

He listed his main concerns as action to stem the tide of EU migrants to Britain by bringing in “commonsense restrictions” on their entitlement to vote for their home countries in the Eurovision finals. He also advocated scrapping “unnecessary and burdensome” rules and worries that the UK was yet again going to receive “nul points”.

Meanwhile, extravagantly attired seasoned Eurovision performer, known simply as “Farage” hit back at back at the Confederation of the British Music Industry – which has spoken out against a vote to leave Eurovision.

“I think they are wrong about this,” he said, adding that it was a “really big myth” that the UK could not sell MP3s to the rest of Europe if it exited the Song Contest.

Scotland’s First Minister Nicola Sturgeon argued that a vote to exit Eurovision should only be effective if all four countries in the UK voted to leave. She has further claimed that an “out” vote in a poll on Eurovision membership could justify a second referendum on an independent Scottish Top 40.

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Devolution in the UK

800px-PalaceOfWestminsterAtNightI have just sent off my submission to the Commons Select Committee on Political and Constitutional Reform in response to their inquiry on the future of devolution in the United Kingdom, in the light of the referendum result.

The Committee’s terms of reference are as follows:

  • Should England, Wales and Northern Ireland be offered the level of devolution that has been discussed in relation to Scotland?
  • If so, what should be the next stages to take forward devolution in a) Scotland, b) Wales, c) Northern Ireland, d) England?
  • To what extent is the Government’s timetable for considering the future of devolution realistic?
  • What measures, such as a written constitution, could most effectively entrench future devolution settlements?
  • Given that different parties have put forward different proposals for further devolution to Scotland, what is the best way forward?
  • What implications does further devolution to Scotland have for how the House of Commons should deal with legislation that deals with only part of the UK?

My submission was as follows:

Further devolved powers, broadly equivalent to those discussed in relation to Scotland should be offered to the people of England, Wales and Northern Ireland;

A UK constitutional convention involving genuine non-party political participation from all areas of civic society across all 4 nations should be established to consider the details of the further devolution of legislative and executive power;

An English Assembly should be established to exercise devolved power for the whole of England and should be located in Liverpool, Manchester or Newcastle as a concrete demonstration of decentralisation of power within the United Kingdom;

The House of Commons should continue as the Parliament of the United Kingdom in relation to reserved matters only, such as defence and foreign affairs, with a change to proportional representation so that the make up of Parliament reflects the will of the people of the United Kingdom;

The House of Lords should be reformed as a democratically elected – but non party political – body to act as a revising chamber considering and making (non-binding) recommendations in relation to legislation from the House of Commons, the Scottish Parliament and the Assemblies in England, Wales and Northern Ireland;

The UK Supreme Court should continue to have jurisdiction in relation to any devolution issues which arise in respect of disputed competencies or overlaps of powers between legislatures.

The deadline for written submissions is the 23 October 2014, and you can make yours by following the link above.

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Nukes in a independent Scotland

nuclearexplosionI thought I’d take a look at the draft Independence Bill, and I will try to go through some of the more interesting aspects of it over the next few weeks.

I’m starting with the nuclear question.

Section 23 of the draft Independence Bill says:

Nuclear disarmament

The Scottish Government must pursue negotiations with a view to securing-

(a) nuclear disarmament in accordance with international law; and

(b) the safe and expeditious removal from the territory of Scotland of nuclear weapons based there.

Now, the first thing to say is that these two parts, (a) and (b) are not the same thing.  Disarmament is the act of reducing, limiting or abolishing weapons.  Simply removing weapons from one state to another is, as Iain Gray, has pointed out “not disarmament, that’s redeployment”.  When South Africa went through the process of nuclear disarmament in the 1990’s, that process was monitored by the UN.  They would not have been satisfied if RSA had simply decided to sell the nukes to the highest bidder.

In terms of the United Nations Model Nuclear Weapons Convention, there are several distinct phases to disarmament:

  1. taking nuclear weapons off alert,
  2. removing weapons from deployment,
  3. removing nuclear warheads from their delivery vehicles,
  4. disabling the warheads,
  5. removing the triggers (or pits),
  6. and placing the fissile material under international control.

Shipping them off to England might be of benefit to Devonport, and allow an independent Scotland to boast of being “nuclear free” – but it does not contribute to international disarmament.

It has always struck me that the wording used is flexible enough to allow a fudge of designating the base at Faslane as technically rUK (or even American) territory and allowing the WMD to stay while satisfying the letter of the commitment.  Even the Green’s proposed constitutional ban could be overcome in this way. Perhaps that’s just the cynic in me?

Delving deeper, in the event of an independence vote, the question arises – who gets the nukes anyway.  The House of Commons Defence Select Committee, during a discussion on the division of assets in the event of a Yes vote in September 2013, noted:

Examination of the experience of the division of military assets between the Czech Republic and Slovakia, following the dissolution of Czechoslovakia, suggested to us that an appropriate starting point for the negotiation might well be a population based share of existing assets taking into account the location of fixed assets such as military bases.

Clearly, this will be the subject of negotiation, but based on location alone, Scotland might well inherit the UK’s nuclear arsenal (or at least a proportion of it).  Then the Scottish Government could begin some serious disarmament.

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Electoral Maths

“For more than half of my life, Scotland has been governed by parties we didn’t elect at Westminster..” Alex Salmond

ScotlandMapWell, it’s been some time since Scotland voted for a single party in significant numbers to say “we” elected them.  In the 1950’s over 50% of the vote went to the Tories.  I assume that Salmond is counting the Labour government of the late 1990s to 2010 as part of the half when Scotland was governed by parties “we” did elect, but during that period, Labour polled only just over 40% of the popular vote in Scotland.

During the Blair era, Labour were elected on rather less than 40% of the popular vote in the rest of the United Kingdom.

It is possible to argue that, Scotland tends to do rather better than the rest of the UK when it comes to electoral maths.

The current coalition government received about 35.6% of the Scottish popular vote in 2010.  That’s as compared to the previous Labour government in 2005 which received 42% of the Scottish popular vote and only 35.2% of the UK popular vote.

This is a reason for rejecting the first-past-the-post electoral system, not for abandoning the Union.

 

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