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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..