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mps’ expenses January 5, 2011

Posted by Bradley in : regulation , add a comment

The UK’s Independent Parliamentary Standards Authority has published a consultation document seeking input on the new MPs expenses scheme and on how it “does business”:

We recognise that initially we needed to operate as if we were providing services to a customer. This has had certain consequences, not least the ever-increasing demand for detailed advice and interpretation of detailed rules and guidance. The cost to the tax-payer is considerable. We are clear that the model of how we do business must evolve. Yes, we must address the Scheme’s rules. But yes, we must also address IPSA’s role. IPSA is above all a regulatory body. As such, we will be exploring ways of doing business which reflect this role.

Why does IPSA feel it is doing business, and providing services to customers (which seem to be the MPs and not the taxpayers)? After all, it was introduced to deal with massive manipulations of the earlier expenses scheme. And the document notes that “contributing to the restoration of public confidence in our democratic institutions” was one of IPSA’s important aims, and that IPSA tends to hear more from MPs than it does from the public. There are some suggestions of moving towards a more principles-based system, for example with respect to claims for taxi fares, which are only allowed when absolutely necessary but could be left to MPs’ discretion on the basis that the claims would be published and visible.

Meanwhile, the customers are complaining. MPs argue that the current rules interfere with their family life – for example, if they have chosen to live in London (where their job requires them to spend a bit less than half the year) but have constituencies outside London where they must spend weekends doing constituency business, they will not see their children at the weekend. This problem might be solved were they to live in the constituency (and this would have the added benefit that they might develop a better understanding of their constituents’ lives). Why should the UK have a system which encourages Londoners to represent people in other parts of the country rather than a system which might encourage people to stand for Parliament from the places where they belong?

Travel expenses for family members are also an issue. The document asks:

Should the rules on claiming travel costs for family members be changed? In particular, should MPs be able to claim for spouses’ or partners’ travel costs when they are travelling between the MP’s London Area residence and constituency residence: (a) with dependent children aged between five and 16 years; (b) with the MP only; or (c) on their own when visiting the MP?

MPs are currently developing rules which threaten the family lives of the rest of the population, for example by the regressive step of increasing VAT, by ill-conceived changes to the health service, and increasing the cost of attending university. Perhaps MPs might consider these other issues more carefully if they had to experience the sort of belt-tightening they want to impose on everyone else.

uk: government or chaos? December 19, 2010

Posted by Bradley in : governance , add a comment

After the student demonstrations, one UK Tory MP who claims to have been an influential adviser to Cameron argues chaos is preferable to planning (I don;t think he meant more demonstrations would be a good thing). Meanwhile, snow causes actual chaos (and cancelled my flight to the UK); and the high court holds that limits on skilled immigrants from outside the EU were adopted without the proper procedures. This doesn’t really sound like good government. The Public Administration Select Committee wrote in 2009 that good government involved:

i. Good people: government needs to recruit and cultivate the right people so that they are able to deploy their skills and abilities effectively to the work of government. This applies equally to government ministers, civil servants and public servants more generally.
ii. Good process: this means ensuring that appropriate structures, systems and procedures are in place for government to run smoothly—whether for the development of sound policies and legislation, successful policy implementation or for competent day-to-day administration of routine government business.
iii. Good accountability: adequate arrangements need to exist to ensure that people within government—both elected and appointed—are held to account for their decisions, actions and performance. One important prerequisite for proper accountability is the existence of defined roles and responsibilities so that it is clear who can be held responsible for what.
iv. Good performance: effective performance assessment within government helps to identify how well public organisations are meeting their objectives, as well as highlighting where improvements could be made, so that government is better able to work towards its desired outcomes.
v. Good standards: high ethical standards in public life are vital to ensuring basic public trust and confidence in governing institutions. Strong ethical regulation and ethical leadership in turn underpin the achievement of high standards.

It would be good to see this.

public bodies bill, fixed term parliaments bill December 16, 2010

Posted by Bradley in : governance , add a comment

According to the Guardian, Lord Judge’s criticisms yesterday of the Henry VIII clauses in the Public Bodies Bill will prompt some rethinking by the government. Meanwhile the House of Lords Constitution Committee criticised the Fixed Term Parliaments Bill:

The speed with which the policy was introduced, with no significant consultation, no green paper and no detailed assessment of the pros and cons of a five year term over a four year term, suggests that short-term considerations were the drivers behind the Bill’s introduction. The Hansard Society argued that “political expediency appears to have taken priority over Parliament’s right to properly scrutinise the executive.” Democratic Audit stressed that “this change is yet another piecemeal alteration, implemented with insufficient consultation, to the UK constitution”.

commission aims at italian torpedo December 14, 2010

Posted by Bradley in : dispute resolution , 1 comment so far

The Commission has announced a number of proposals to reform civil justice, including this significant one:

Bringing legal certainty to choice of court agreements between companies: In business-to-business relations, companies often agree to settle all disputes in one particular court. However, litigation tactics have led to a situation where the validity of such choice of court agreements is challenged in a court in another EU Member State in order to delay the settlement of the dispute – a practice sometimes referred to as “Italian torpedo”. The Commission proposed today measures to end such abusive tactics by ensuring that the court chosen in the choice of court agreement is always first to determine whether the agreement is valid or not.

the uk, the eu, supremacy and parliamentary sovereignty December 7, 2010

Posted by Bradley in : eu , add a comment

The House of Commons European Scrutiny Committee gets to grips with the circularities in the EU Bill (for example the irony of a Bill purporting to reinforce Parliamentary Sovereignty while requiring referenda for future inroads on sovereignty) in a report published today. There’s a rather forceful conclusion:

the Explanatory Notes are misleading when they state .. that the clause has been included “to address concerns that the doctrine of Parliamentary sovereignty may be eroded by the courts”. Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated. We are gravely concerned that for political reasons it has been portrayed by the Government as a sovereignty clause in correspondence and also in the Explanatory Notes, which we discuss below. For these reasons we deeply regret that the Secretary of State’s refused to come and give evidence himself on these matters…The Explanatory Notes present as fact what the evidence we have received tells us is disputed, viewed from any perspective. We are concerned about the precedent this sets for future Explanatory Notes. Minimal research reveals the depth of the division of opinion on whether Parliamentary sovereignty is a common law principle .. as it does whether Parliamentary sovereignty can ever be put on a statutory footing. Yet, astonishingly, none of this is reflected in the Explanatory Notes. In addition, the case law which they quote—Macarthys and Thoburn—fails to include relevant passages of the judgments of Lord Denning and Lord Justice Laws and so gives a distorted impression.
Explanatory Notes are, we assume, drafted with care; they may be used to illustrate the context and mischief of an enactment, even if they are not approved by Parliament, and this would apply in relation to clause 18. All the more reason then that they should be drafted to reflect the status quo, rather than to present a partial opinion.

asset freeze: the italian limbo December 7, 2010

Posted by Bradley in : fundamental rights , add a comment

In something of a contrast to the decisions in the Kadi litigation (see, e.g., this September 2010 decision), the General Court has found that Sofiane Fahas’ right to be heard was respected:

In the present case, a statement of reasons was sent to the applicant by the Council on 3 January 2008, following the adoption of Council Decision 2007/868/EC implementing Article 2(3) of Regulation No 2580/2001and repealing Decision 2007/445/EC (OJ 2007 340, p. 100), the wording of which was identical to that of earlier decisions mentioning his name. The applicant submitted his comments in a letter of 14 March 2008. The Council considered the content of that letter before deciding to retain the applicant’s name in the list at issue in the contested decision. In the letter sent to the applicant on 15 July 2008, which enclosed both the contested decision and a statement of reasons which was identical to those for earlier decisions mentioning his name, the Council stated that, after considering the applicant’s letter of 14 March 2008, it had come to the view that there was no new evidence on the file to justify a change in its position and that the statement of reasons previously notified to the applicant remained valid. It follows that, as regards the right to be heard, the Council gave the applicant the opportunity to submit his comments on the statement of reasons.

In Kadi, the Court treats the EU institutions’ actions as representing merely the formality of seeming to respect the right to be heard. In Fahas, the Court emphasises that the listing is based on the decision of an Italian investigating judge. But a decision made in 2000, long before the 2008 actions and before the 2010 decision of the Court. The basis for the original listing was that an investigating judge in Naples issued a provisional arrest warrant on 9 October 2000 on a charge participating in a conspiracy to establish a cell of the ‘Al Takfir and Al Hijra’ group in Italy. The Court says:

By justifying its action by reference to a decision of an investigating judge of a Member State and informing the applicant, by the letter of 15 July 2008, of the grounds for including him in the list at issue, the Council fulfilled its obligations under Community law.

It seems rather shocking that EU law can to some extent redress the lack of protection of rights in the Security Council (which is problematic in terms of international law) but not the apparent lack of protection of rights in the justice system of an EU Member State. The Court says it cannot do anything about what is happening in Italy:

it should be noted that the General Court does not have the power to review compliance with national criminal procedure. Such review may be carried out only by the Italian authorities or, if the party concerned brings an action, the competent national court. Likewise, in principle, it is not for the Council to decide whether the proceedings opened against the party concerned and resulting in such a decision, as provided for by the law of the relevant Member State, were conducted correctly, or whether the fundamental rights of the party concerned were observed by the national authorities. That power belongs exclusively to the competent national courts or, as the case may be, to the European Court of Human Rights..

britons are well off after lord young’s resignation or not? November 20, 2010

Posted by Bradley in : truth , add a comment

Lord Young, the author of the recent Common Sense, Common Safety report, resigned as adviser to the UK Government after stating in an interview that:

For the vast majority of people in the country today, they have never had it so good ever since this recession – this so-called recession – started, because anybody, most people with a mortgage who were paying a lot of money each month, suddenly started paying very little each month.

His resignation letter states that he resigns, not because what he said suggested complete incomprehension of the situation ordinary Britons now face, but:

in view of the reaction to the reporting of the interview I gave earlier this week

Not his fault, but the fault of those who heard what he said. And this from an adviser to a Government which claims to be eliminating quangos to increase transparency and accountability. But is it really better for Governments to be careful about what they and their advisers say in front of journalists or for voters to be able to hear their private and uninformed prejudices?

asil international economic law in minnesota November 17, 2010

Posted by Bradley in : events , add a comment

Tomorrow I’m going to Minnesota for the ASIL International Economic Law Interest Group Conference (I’m giving a paper on consultation in transnational standard-setting). It will be much colder there than it is here in Miami.

asil meets in miami November 11, 2010

Posted by Bradley in : events , add a comment

The American Society of International Law is meeting in Miami this week (the program is here and the UM announcement is here).

developments in clearing November 10, 2010

Posted by Bradley in : financial regulation , add a comment

The CPSS has published a report on Market structure developments in the clearing industry: implications for financial stability (which focuses on “traditional markets” and OTC derivatives markets). Meanwhile, Deutsche Bank critiques the CFTC’s proposals for Requirements for Derivatives Clearing Organizations, Designated Contract Markets, and Swap Execution Facilities Regarding the Mitigation of Conflicts of Interest.