LOTS OF WORTHY 'WE WILLS' IN THE COALITION AGREEMENT

• We will implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion. GOOD
• We will introduce a Freedom Bill. GOOD
• We will protect historic freedoms through the defence of trial by jury.  GOOD
• We will introduce safeguards against the misuse of anti-terrorism legislation. EVEN BETTER
• We will restore rights to non-violent protest. GOOD
• We will review libel laws to protect freedom of speech. EXCELLENT
• We will introduce safeguards against the misuse of anti-terrorism legislation. EXCELLENT
• We will further regulate CCTV.GOOD
• We will end the storage of internet and email records without good reason. VERY GOOD
• We will introduce a new mechanism to prevent the proliferation of unnecessary new criminal offences. EXCELLENT
• We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties. NOT GOOD - STICK WITH HRA/ECHR - IT IS OUR INTERNATIONAL OBLIGATION IN ANY EVENT
• We will provide more protection against aggressive bailiffs and unreasonable charging orders, ensure that courts have the power to insist that repossession is always a last resort, and ban orders for sale on unsecured debts of less than £25,000. CURIOUS - LOTS OF BUSINESSES WILL NOT LIKE THIS - THREATENING AN ORDER FOR SALE IS USUALLY THE LAST WAY OF EXTRACTING MONEY FROM DEBTORS SHORT OF BANKRUPTCY
• We will ban the use of powers in the Regulation of Investigatory Powers Act (RIPA) by councils, unless they are signed off by a magistrate and required for stopping serious crime. BRILLIANT!
• We will carry out a fundamental review of Legal Aid to make it work more efficiently. OMINOUS - WHAT DOES EFFICIENT MEAN?
• We will establish five-year fixed-term Parliaments. We will put a binding motion before the House of Commons stating that the next general election will be held on the first Thursday of May 2015. Following this motion, we will legislate to make provision for fixed-term Parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour.  THIS IS WORRYING?  AMENDS OUR CONSTITUTION WITHOUT MUCH THOUGHT?
• We will bring forward a Referendum Bill on electoral reform, which includes provision for the introduction of the Alternative Vote in the event of a positive result in the referendum, as well as for the creation of fewer and more equal sized constituencies. We will whip both Parliamentary parties in both Houses to support a simple majority referendum on the Alternative Vote, without prejudice to the positions parties will take during such a referendum. DON'T LIKE PR AT ALL.
• We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP is found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by 10% of his or her constituents. GOOD IDEA
• We will establish a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation. The committee will come forward with a draft motion by December 2010. It is likely that this will advocate single long terms of office. It is also likely that there will be a grandfathering system for current Peers. In the interim, Lords appointments will be made with the objective of creating a second chamber that is reflective of the share of the vote secured by the political parties in the last general election. PERSONALLY FAVOUR 1/ 2 ELECTED AND 1/2 APPOINTED - TO ALLOW FOR THE WISE MEN AND WOMEN FROM A RANGE OF TECHNICAL/CULTURAL BACKGROUNDS TO REMAIN MEMBERS.  QUITE LIKE THE IRISH SENATE'S COMPOSITION ACTUALLY

COURT OF APPEAL OVERTURNS McCOMBE J 2-1

See my earlier posting 




Lord Judge, LCJ for Unite, Lord Neuberger, MR for BA and Lady Justice Smith for Unite.  


Will post judgment and comment when available.  


THE MASTER OF THE ROLLS’ COURT COURT 71Before THE LORD CHIEF JUSTICE OF ENGLAND & WALES
THE MASTER OF THE ROLLS and
LADY JUSTICE SMITH
Thursday, 20th May, 2010
At 9:30
FOR JUDGMENT
APPLICATIONC1/2010/1197 British Airways Plc -v- Unite The Union. Application of Defendant for permission to appeal.

MASSIVE TRANSFER OF PRIMARY LEGISLATIVE POWER FROM WESTMINSTER TO CARDIFF

I did not notice some minor secondary legislation passing through the Privy Council, by which large swathes of primary legislative competence was transferred from the Parliament of the United Kingdom to the National Assembly of Wales.  Her Majesty was pleased in her Privy Council to dissolve Parliament on 12th April 2010 and also to approve a major change to our constitution. Did anyone notice?

At the bottom of the Privy Council minutes below are legislative competence orders pursuant to section 95 Government of Wales Act 2006 under which the National Assembly can propose that primary legislative powers be transferred from London to Cardiff.  

If both Houses of the Westminster Parliament agree to the necessary Henry VIII clause secondary legislation (the orders below - which are secondary legislation which can amend primary legislation) then the power is devolved and the National Assembly gets to make "Measures" in that sphere of legislative competence which as section 94 makes clear are the same as Acts of Parliament: " an Assembly Measure may make any provision that could be made by an Act of Parliament.".  

Westminster's theoretical supremacy is maintained by section 93(5): "This Part does not affect the power of the Parliament of the United Kingdom to make laws for Wales."  So any Measure could theoretically be repealed by an Act of Parliament.  

I just can't believe that we use secondary legislation to amend our constitution in such a fundamental manner.  We are supposed to be a mature western democracy; yet we let our politicians play around with the constitution of our State using legislative methods first designed to provide for minor bureaucratic regulations. 

That the transfer of power away from our sovereign legislature can be done without a referendum and without even an Act of Parliament demonstrates how far away from being a modern constitutional state we remain.   

ORDERS APPROVED AT THE PRIVY COUNCIL HELD BY THE QUEEN AT WINDSOR CASTLE ON 12TH APRIL 2010

The Rt Hon Baroness Royall of Blaisdon (Acting Lord President)

The Rt Hon Margaret Hodge MP

The Rt Hon David Lammy MP

Dissolution	Proclamation for dissolving the Parliament and for calling another to meet on Tuesday the eighteenth day of May 2010, and an Order in Council directing the Lord Chancellor to cause the Great Seal to be affixed to the Proclamation.
	Order in Council directing the Lord Chancellor and the Secretary of State for Northern Ireland to issue Writs for the calling of a new Parliament to meet on Tuesday the eighteenth day of May 2010.
Charters	Order granting a Charter of Incorporation to the Worshipful Company of Marketors.
Misuse of Drugs Act 1971	The Misuse of Drugs Act 1971 (Amendment) Order 2010 (SI).
Government of Wales Act 2006	The National Assembly for Wales (Legislative Competence) (Culture and Other Fields) Order 2010 (SI).
	The National Assembly for Wales (Legislative Competence) (Transport) Order 2010 (SI).
	The National Assembly for Wales (Legislative Competence) (Local Government) Order 2010 (SI).
	The National Assembly for Wales (Legislative Competence) (Housing) (Fire Safety) Order 2010 (SI).
	The National Assembly for Wales (Legislative Competence) (Education) Order 2010 (SI).

JUDGE STOPS STIKE AND UINION GOES BESERK

UNITE says this about McCombe J's very reasonable judgment:

"This judgment is an absolute disgrace and will rank alongside the Taff Vale judgment as a landmark attack on free trade unionism and the right to take industrial action.  Its implication is that it is now all-but impossible to take legally-protected strike action against any employer who wishes to seek an injunction on even the most trivial grounds.

"Because of the far-reaching consequences of this injunction for all trade unions and indeed for our democracy, we are seeking leave to appeal immediately.  It need hardly be said that this brings the prospect of a settlement to the dispute with British Airways not one day closer.

"However, we will of course comply with the injunction, and will be immediately telling our cabin crew members, who have three times voted against the company's conduct by overwhelming majorities, to work normally and not take or threaten any industrial action."


Get a grip - His Lordship has decided that BA had a good arguable case that Unite has failed to comply with section 231 Trade Unions and Labour Relations Act 1992 and has therefore quite properly granted an interim injunction pending a trial of whether or not Unite has breached section 231.  That is not a disgrace; that is Unite not being able to show the judge on an interim hearing cogent and comprehensive evidence of full compliance with section 231; otherwise he would have held BA did not have a good arguable case and would not have made the injunction.   What might be a disgrace is referring to a High Court Judgment in such ludicrous terms and being a very large and well resourced trade union which cannot demonstrate total compliance with a simple piece of legislation.  Grow Up.  


UPDATE-  The judgment is now available - 

49.     In the end I consider the arguments as to whether the statute has been complied with give rise to properly arguable issues for trial.  The matter is not so clear as Mr Hendy would in my view have it.  I certainly cannot hold that the union's likelihood of success is overwhelming.  I have regard to my assessment of the likelihood of success at trial, and at present I am inclined to think that the union may well have failed to put in place an adequately analysed system calculated to ensure that all reasonable steps were taken to communicate with relevant members as soon as reasonably practicable the relevant items of statutory information.  The point to my mind is an arguable one. 

50.     Once one reaches that conclusion it is in my judgment inevitable that the balance of convenience comes down in favour the airline.  I have sympathy indeed with the union and its members who voted in the matter in the proportions which I have indicated.  However, to be entitled to protection from the consequences of otherwise unlawful conduct, it is necessary to demonstrate that the conditions of that statutory protection are satisfied.  The conditions of such protection have consequences for employer and employee alike, and I am unable to say on the present material that it is sufficiently clear that the union took the steps required by law at the time at which they were required so as to outweigh the other factors.  The balance of convenience in my judgment therefore requires the grant of the injunction sought by the airline.  

LAST WEEK: THE COURT OF APPEAL HEARD AN INTERESTING CASE...

Last week the Court of Appeal heard the Ministry of Defence's appeal against the judgment of Mr Justice Foskett which ruled that 10 lead claimants (out of a group action of 1,001) were either not time barred or were time barred but could proceed any way with their claims for personal injuries arising out of their alleged exposure to radiation at the British  Atomic and Nuclear tests in the 1950s.  It will be interesting to see how the Court deals with this case - it pulls at the heart strings if British servicemen are suffering without compensation (although if there are 20,000 odd survivors or dependants it could be expensive for the new cash strapped government) but then again - can they prove causation and it was all a long time ago............???

PROPER GOVERNMENT LAWYERS IN PROPER KIT

AND WE HAVE PROPER QCs IN GOVERNMENT

WHO HAVE PRACTISED AS BARRISTERS FOR LONGER THAN 5 MINUTES, CAN BE TRUSTED AND KNOW WHAT THEY ARE DOING (BET THE JUDGES HAVE BREATHED A SIGH OF RELIEF)

Those geeks out there may be interested to hear that Dominic will not be Attorney-General of Northern Ireland - but Advocate-General - devolution of justice to NI means that the NI Administration are going to appoint their own A-G.

No word on the Justice Ministers or Solicitor General yet nor on what happened to Edward Garnier QC - the  former Shadow AG?

STOP PRESS - Garnier is to be SG:

COURT 4


FRIDAY 14TH MAY 2010 in COURT 4 at 09.30am

BEFORE
LORD CHIEF JUSTICE OF ENGLAND AND WALES
MASTER OF THE ROLLS
SIR ANTHONY MAY PRESIDENT OF THE QUEENS BENCH DIVISION
PRESIDENT OF THE FAMILY DIVISION
AND
THE CHANCELLOR OF THE HIGH COURT

THE RIGHT HONOURABLE KENNETH HARRY CLARKE QC, MP WILL BE SWORN IN AS LORD CHANCELLOR OF GREAT BRITAIN

THE RIGHT HONOURABLE DOMONIC GRIEVE QC, MP WILL BE SWORN IN AS HER MAJESTY’S ATTORNEY GENERAL

THE RIGHT HONOURABLE EDWARD GARNIER QC, MP WILL BE SWORN IN AS HER MAJESTY’S SOLICITOR GENERAL

SO WE HAVE A COALITION GOVERNMENT

And a Coalition Agreement which says this:

We have agreed to establish a commission to consider the ‘West Lothian question’.


So there is no need for me to immediately worry about Tory plans as I did earlier.

I also note that there might be Freedom Bill as argued before the Election by the Lib-Dems - which I would fully support:


10. Civil liberties
The parties agree to implement a full programme of measures to reverse the substantial erosion of
civil liberties under the Labour Government and roll back state intrusion.
This will include:
- A Freedom or Great Repeal Bill.
- The scrapping of ID card scheme, the National Identity register, the next generation of
biometric passports and the Contact Point Database.
- Outlawing the finger-printing of children at school without parental permission.
- The extension of the scope of the Freedom of Information Act to provide greater
transparency.
- Adopting the protections of the Scottish model for the DNA database.
- The protection of historic freedoms through the defence of trial by jury.
- The restoration of rights to non-violent protest.
- The review of libel laws to protect freedom of speech.
- Safeguards against the misuse of anti-terrorism legislation.
- Further regulation of CCTV.
- Ending of storage of internet and email records without good reason.
- A new mechanism to prevent the proliferation of unnecessary new criminal offences.

TAKING ONE'S BREATH AWAY

This rather took my breath away this morning:

Record £105m legal cost claim in 'toxic waste' case

This is all about the battle by Claimants' lawyers, Leigh Day to obtain 

compensation for the people of the Ivory Coast arising out of the alleged 

dumping of toxic waste by Trafigura.  

You may recall that it was the subject of a super-injunction earlier.

I was particularly shocked by this:

"if every claimant had been paid in full, that would amount to about £3 in costs for every £1 recovered."

In other words Leigh Day have spent/earned £3 to win £1.  

Role on Lord Justice Jackson's costs regime reforms!

ELECTION DAY SPECIAL

• The MPs and one Peer are before Saunders J today arguing that only the High Court of Parliament can judge them for their alleged expenses wrong doing.  Rozenberg says he is going to apply to keep the hearing in the public domain.  

• The Election Court is on standby as I understand it should a party's majority hang on a disputed election return.  It takes two red judges in a Divisional Court to set aside a general election poll rather than an Election Commissioner such as the enthusiastic Richard Mawrey QC who is limited to local polls.

• And finally - tomorrow, will it be arise Lord Howard, Lord High Chancellor?

Where our Constitution is written down - in a draft memo from the Cabinet Office

It is curious to me that the closest we have to a written constitution is a long memo written in draft by some civil servants.  Other nations build massive halls of marble to house their sacred constitutional texts.  We keep ours in a draft chapter of a draft handbook.  Other nations have referenda and great national debates on what should be in their constitutions  - we ...don't - we just ask Sir Humphrey to take a quick note...

The Cabinet Office has been good enough to let us have a look at a draft chapter (number 6) of a handbook which gives constitutional advice to civil servants.

Chapter 6 is important because it tells us what our constitution requires in the event of a hung parliament - perhaps this is why the civil service have rushed out the draft version of the chapter (why in draft  - is that so the civil service can change the constitution if it is not what the politicians need post-Thursday?  We do have a flexible constitution!).  Professor Bogdanor comments on it here: In a hung Parliament, the Queen’s task is to endorse choices made by politicians - Times Online 

The chapter has things in it like this:


The principles of Government formation


14. Governments hold office by virtue of their ability to command the confidence of
the House and hold office until they resign. A Government or Prime Minister who
cannot command the confidence of the House of Commons is required by
constitutional convention to resign or, where it is appropriate to do so instead, may
seek a dissolution of Parliament. When a Government or Prime Minister resigns it is
for the Monarch to invite the person whom it appears is most likely to be able to
command the confidence of the House of Commons to serve as Prime Minister and
to form a government. However it is the responsibility of those involved in the
political process – and in particular the parties represented in Parliament – to seek to
determine and communicate clearly who that person should be. These are the
principles that underpin the appointment of a Prime Minister and formation of a
government in all circumstances.

This is apparently the constitutional process in the event of a hung parliament:


“Hung” Parliaments
16. Where an election does not result in a clear majority for a single party, the
incumbent Government remains in office unless and until the Prime Minister tenders
his and the Government’s resignation to the Monarch. An incumbent Government is
entitled to await the meeting of the new Parliament to see if it can command the
confidence of the House of Commons or to resign if it becomes clear that it is unlikely
to command that confidence. If a Government is defeated on a motion of confidence
in the House of Commons, a Prime Minister is expected to tender the Government’s
resignation immediately. A motion of confidence may be tabled by the Opposition, or
may be a measure which the Government has previously said will be a test of the
House’s confidence in it. Votes on the Queen’s Speech have traditionally been
regarded as motions of confidence.


17. If the Prime Minister and Government resign at any stage, the principles in
paragraph 14 apply – in particular that the person who appears to be most likely to
command the confidence of the House of Commons will be asked by the Monarch to
form a government. Where a range of different administrations could potentially be
formed, the expectation is that discussions will take place between political parties on
who should form the next Government. The Monarch would not expect to become
involved in such discussions, although the political parties and the Cabinet Secretary
would have a role in ensuring that the Palace is informed of progress.


18. A Prime Minister may request that the Monarch dissolves Parliament and hold a
further election. The Monarch is not bound to accept such a request, especially
when such a request is made soon after a previous dissolution. In those
circumstances, the Monarch would normally wish the parties to ascertain that there
was no potential government that could command the confidence of the House of
Commons before granting a dissolution.


19. It is open to the Prime Minister to ask the Cabinet Secretary to support the
Government’s discussions with Opposition or minority parties on the formation of a
government. If Opposition parties request similar support for their discussions with
each other or with the Government, this can be provided by the Cabinet Office with
the authorisation of the Prime Minister.


20. As long as there is significant doubt whether the Government has the confidence
of the House of Commons, it would be prudent for it to observe discretion about
taking significant decisions, as per the preelection period. The normal and essential
business of government at all levels, however, will need to be carried out.

THE WEST LOTHIAN QUESTION

The Conservatives have promised in their manifesto to create a new legislature within a legislature - the English Parliament within the UK Parliament - Page 84 of their manifesto:


Labour have refused to address the so-called
‘West Lothian Question’: the unfair situation
of Scottish MPs voting on matters which
are devolved. A Conservative government will
introduce new rules so that legislation referring
specifically to England, or to England and
Wales, cannot be enacted without the consent
of MPs representing constituencies of those
countries.




Curious how this constitutional revolution is buried at the back of their manifesto.  Would it require amendment to the Union with Scotland Act 1706, article 3?

That the United Kingdom of Great Britain be represented by one and the same Parliament to be stiled The Parliament of Great Britain.


How would this work?  

Prof Bogdanor says this in the Times Today

OF INTEREST TO SOME LAWYERS IS BACK.........

OF INTEREST TO SOME LAWYERS IS BACK.

I had placed a link in my blog to Head of Legal's blog and this seemed to lead to some form of fatal cyber infection which I have been unable to remove.  So I have moved to new address - now I'm of interest to lawyers rather than to only some lawyers and will start blogging again.