Archive for the ‘Parliament’ Category

Fergal F. Davis on “Lord Neuberger and the Diceyean Bushel”

June 13, 2011

Fergal F. Davis (ARC Laureate Fellowship: Anti-terror laws & the democratic challenge; University of New South Wales (UNSW)) has posted “Lord Neuberger and the Diceyean Bushel” . The abstract reads:

On 6 April 2011, Lord Neuberger, the Master of the Rolls, delivered the second Lord Alexander of Weedon Lecture. In it he revisited the awkward tension which exists between the “notion of supremacy of the democratically elected legislature and the rule of law”. While the topic approached is one of controversy, the learned Master of the Rolls adopted a position which is essentially orthodox – namely that Parliament remains supreme despite membership of the European Union, the existence of the European Court of Human Rights at Strasbourg and the Human Rights Act, 1998 (HRA). To describe Lord Neuberger’s position as orthodox is not intended to be a criticism. His suspicion of judicial supremacy is welcome and equally agreeable is his statement against judicial passivism. However, two problems emerge: firstly, the contention that Parliament remains supreme is difficult to sustain once it is subjected to anything beyond the most formal level of analysis; secondly, and more importantly, by returning to the orthodox Diceyean perspective he risks stifling potentially significant constitutional innovation contained within the HRA. This article will argue that the orthodox position advanced by Lord Neuberger needs to be set aside and a position equally respectful of the democratic legitimacy of Parliament, but more conscious of the role of the courts in contentious areas, should be adopted.

[UPDATED] "I’m just a bill, stuck here on Parliament Hill"- On Prorogation, State Immunity and Tyranny

January 5, 2010
 I’m just a bill, I am only a bill, and I’m stuck up here on [Parliament] Hill…” Some may remember the Schoolhouse Rock-How a Bill Becomes a Law cartoon from way back in the 70’s.

Over at www.slaw.ca , Connie Crosby reports on the Harper minority government’s controversial prorogation of Parliament last week (just in time for the holiday season so no one would notice) and the rise of a new grassroots movement, Canadians Against Proroguing Parliament, (CAPP) currently boasting over 30,000 Facebook members. CAPP relies on the historical precedent established by The Long Parliament, the eponymous English Parliament called by Charles I, on 3 November 1640, following the Bishops’ Wars, which lasted twenty years and was only dissolved after the English Civil War and the end of Interregnum in 1660. The Act against Dissolving the Long Parliament without its own Consent, reads:

198. Act against Dissolving the Long Parliament without its own Consent
(1641, May 11. 16 Charles I. c. 7. 5 S. R. 103. Gardiner, 158, 159.)

WHEREAS great sums of money must of necessity be speedily advanced and provided for the relief of His Majesty’s army and people in the northern parts of this realm, and for preventing the imminent danger it is in, and for supply of other His Majesty’s present and urgent occasions, which cannot be so timely effected as is requisite without credit for raising the said monies; which credit cannot be obtained until such obstacles be first removed as are occasioned by fears, jealousies and apprehensions of divers His Majesty’s loyal subjects, that this present Parliament may be adjourned, prorogued, or dissolved before justice shall be duly executed upon delinquents, public grievances redressed, a firm peace between the two nations of England and Scotland concluded, and before sufficient provision be made for the re-payment of the said monies so to be raised; all which the Commons in this present Parliament assembled, having duly considered, do therefore most humbly beseech your Majesty that it may be declared and enacted:

And be it declared and enacted by the King, our Sovereign Lord, with the assent of the Lords and Commons in this present Parliament assembled, and by the authority of the same, that this present Parliament now assembled shall not be dissolved unless it be by Act of Parliament to be passed for that purpose; nor shall be, at any time or times, during the continuance thereof prorogued or adjourned, unless it be by Act of Parliament to be likewise passed for that purpose; and that the House of Peers shall not at any time or times during this present Parliament be adjourned, unless it he by themselves or by their own order; and in like manner, that the House of Commons shall not, at any time or times, during this present Parliament, he adjourned, unless it be by themselves or by their own order; and that all and every thing or things whatsoever done or to be done for the adjournment, proroguing, or dissolving of this present Parliament, contrary to this Act, shall be utterly void and of none effect.

Since none of the opposition leaders seem interested in returning to elected work, it is up to Canadians to voice their disapproval of the government’s decision to prorogue government until after the 2010 Olympics in Vancouver. Many Canadians will have at least one bone to pick with the Conservative minority government’s decision to prorogue Parliament until March 3, 2010. There are thirty-three House Government Bills that have died as a result of prorogation. Why should we care? Aside from the fact that elected officials are paid through hard-working Canadians’ tax dollars, according to the Parliament of Canada website:

“The principal effect of ending a session by prorogation is to end business. All government bills that have not received Royal Assent prior to prorogation cease to exist; committee activity also ceases. Thus, no committee can sit after a prorogation.

In order for government bills to be proceeded with in a new session, they must be reintroduced as new bills or they may be reinstated, if the House agrees to this.” [emphasis added]

My personal prorogation bête noire is the death knell of Bill C-35- An Act to deter terrorism, and to amend the State Immunity Act, which did not make it past First Reading.

Bill C-35 was an Act to deter terrorism, and to amend the State Immunity Act (the Justice for Victims of Terrorism Act or JVTA) which was introduced in the House of Commons on June 2nd 2009 by the Minister of Public Safety, the Honourable Peter Van Loan. The bill was to establish a cause of action that allowing victims of terrorism to sue individuals, organizations and terrorist entities for loss or damage suffered as a result of acts committed or omissions made that otherwise would be punishable under Part II.1 of the Criminal Code (which deals with terrorism offences). Essentially, Bill C-35 would have allowed victims of terrorism to sue state-sponsors of terrorism for losses or damage occurring inside or outside Canada on or after January 1, 1985.

If the loss or damage occurred outside Canada, then the “real and substantial” connection test established under Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 416 (S.C.C.) and the factors articulated in either Muscutt v. Courcelles (2002), 213 D.L.R. (4th) 577 (Ont. C.A.), para. 41 or the Civil Jurisdiction and Proceedings Transfer Act (CJPTA)  would have to be met (see the recent British Columbia Court of Appeal decision in Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592 at

¶ 73 where Smith, J.A. eschews the Muscutt factors).

For the Canadian international litigation and arbitration bars, Bill C-35 held promise to expand the narrow exceptions to state immunity by amending the State Immunity Act to create a new—albeit admittedly equally narrow—exception, which would serve to remove state immunity only “when the state in question has been placed on a list established by Cabinet on the basis that there are reasonable grounds to believe that it has supported or currently supports terrorism.”

According to the official Legislative Summary:

“Bill C-35 is similar to a number of private members’ bills and senators’ public bills that have been introduced in Parliament since 2005.(4) The primary difference between the previous bills and Bill C-35 is that the other bills sought to include the cause of action in the Criminal Code, whereas Bill C-35 creates a free-standing civil cause of action.”

In The Tyrannicide Brief : The Story of the Man who sent Charles I to the Scaffold (Chatto & Windus, 2005) Geoffrey Robertson, QC, in recounting the infamous 1649 trial of England’s king Charles I and the heroic figure cast by John Cooke—the first lawyer to conceive of a charge of tyranny against a monarch— writes:

“British history is too often told – to children and on television – through the indulged lives of kings and queens, and never through the lives of lawyers. Yet men from the Inns of Court dominated that action–packed age, 1641–60, the crucible years in which they forged many of the ideals the world today most cherishes: the sovereignty of parliament; the independence of judges; freedom from arbitrary arrest and detention; the right to silence; comparative religious toleration – in short, freedom from tyranny.”

 
For those who may have forgotten, PM Harper also prorogued Parliament in 2007 : Sed quis custodiet ipsos custodes? - Who guards the guardians? (Juvenal)

UPDATE:

According to today’s Toronto Star article by Susan Delacourt, Ottawa Bureau:

“Liberal MPs have decided to defy Prime Minister Stephen Harper’s shutdown of Parliament by showing up for work anyway in Ottawa the last week of January. 

Liberals made the decision after a conference call Tuesday between leader Michael Ignatieff and his 76 MPs. Ignatieff reportedly told Liberals their mission was to keep the heat on Harper and keep political issues in the spotlight, even though the Prime Minister has prorogued Parliament until March 3, when the Olympics are over”

Guest Blog Post by CharonQC: Letter from London

October 25, 2009

It is my distinct privilege to welcome the famous (and in some quarters, infamous) “Charon QC” as The Trial Warrior’s first Guest Blogger.

CharonQC (the online alter-ego of Mike Semple Piggot, Editor of Insite Law Magazine) is an internationally renowned UK blogger, legal academic, political commentator and non-practicing lawyer, whose rationalism and Agrippa-like skepticism is tempered by an unflagging commitment to democratic ideals, the rule of law and a philosopher’s “love of wisdom” (and fine Rioja wine, as well). In CharonQC’s own words:
“He has taught law for many years – and, to his surprise, still enjoys law; although he enjoys other academic interests as well. Law is fascinating more in the human interest than the letter, but compared to literature, science or philosophy, it does not engage the mind in quite the same way. He awarded himself the title QC when the Lord Chancellor suspended the award for real lawyers. Now, as no-one can instruct him in any matter, or would wish to, he is free to comment as he wishes on matters which catch his attention. He is, of course, a figment of a febrile imagination . He drinks Rioja – in fact he will drink any red wine, smokes Silk cut, reads all the newspapers (3 Tabloids 4 broadsheets…most days) , has a passion for motorbikes and sips espressos three time a day – ordering two each time. He sleeps for 4 hours a night – but that is his problem. He gets up and starts work (sometimes, it has to be said… writing a blog post) between 3.30 – 4.00 every morning…

He used to be a habitue of The Bollo and The Swan in Chiswick/Acton – and some other well known bars in London. (Charon is out of town at the moment!) When he finds a meal he enjoys – he eats it every day until he can no longer face eating it again. At breakfast, he always has one egg, two slices of toast, two slices of bacon, some baked beans, two espressos, a glass of tap water and an undisclosed number of Silk Cut cigarettes – and always starts eating the egg first… on a bit of buttered toast; turning the plate around so the egg is conveniently on the right hand side of the plate. He did not know he did this until it was pointed out to him by several friends. Breakfast takes approximately 35 minutes and is often taken while reading his tabloid of choice and The Indie… and then it is but a short motorbike ride back to his Staterooms where the day can begin. Breakfast is at 7.00 and more often than not Charon sits at a table outside – even in very cold weather – so he can keep an eye on the world as it goes by. He can also smoke outside without offending other early risers.
For the avoidance of doubt… I write the Charon Blawg for my own amusement and if people visit and enjoy it – great!. I don’t tolerate abusive commenters who slag other commenters / bloggers off – if they have a go at me they do so knowing that I will deal with it my own way should they be offensive. I’m quite good at blowing ‘the bloody doors off’ and even better at it now … now that I am a master of The Way of the Smoker with my Smokedo! and if you want to know what that is – just type Smokedo into the search box or into Google and you’ll enter a new world.”

Letter from London – a mildly idiosyncratic view of some developments in the legal profession and system in England & Wales
I am delighted to accept an invitation from Antonin Pribetic to do a guest post on his blog and while there has not been a great deal of commercial, arbitration or indeed any law over the recent long summer, there have certainly been a few developments for the profession in England & Wales which may resonate with our colleagues in Canada.
I share Antonin’s taste for the martial arts and, indeed, in my youth achieved reasonably high rank in the fast form of Karate Wadō-ryū and also practised Kendo. I retired from both in my early forties as anno domini took a toll and I could not devote the time to keep it up. My Katana sits, still, on a mantle piece and was last used, somewhat incredibly, to cut a pineapple in half at a dinner party some time back. My then wife, a long suffering woman asked, not unreasonably, why I could not cut a pineapple by more traditional means rather than getting a friend to throw it into the air and seeing how many times I could slice it before it hit the ground. Her request was all the more reasonable when one considers the location of this bizarre behaviour – our dining room with eight guests present. Yes… it may be that I used to overdo the juice in those days.
I also share Antonin’s interest in Sun Tzu, so I will use some of the great general’s aphorisms throughout this guest post.
1. Be extremely subtle, even to the point of formlessness. Be extremely mysterious, even to the point of soundlessness. Thereby you can be the director of the opponent’s fate.
Substitute the word ‘reader’ for ‘opponent’ and this could be a perfect description for the techniques I use on my own Charon QC blog of intermixing sense and nonsense in blog posts. I am a fan of parody and there is much to parody in our legal system and the antics of our judges and lawyers.
This week, we have the extraordinary matter of a judge getting hot and bothered about the use of the word ‘partner’ instead of wife. The Telegraph reports “Old fashioned chivalry or just old fashioned? A judge has taken the extraordinary step of disrupting a court case to express his exasperation at the modern use of the word partner in place of wife.”
Judge George Bathurst-Norman could contain his frustration no longer when a probation officer’s report referred to the accused’s wife as his partner. A wife is a wife, he said and to call her otherwise is to “downgrade marriage.” He said the modern phrase was “insulting” and “inaccurate”.
Sounds more like a hissy fit from an overworked judge, but there again; some of our judges tend to wander into a
2. The enlightened ruler is heedful, and the good general full of caution.
Some judges are just simply absurd and this one had certainly not taken the advice of Sun Tzu as this story from The News of The World from June of this year reveals:”
Judge Gerald Price QC, 60, was so besotted with 25-year-old Christopher Williams he set him up with a FLAT, paid him a monthly ALLOWANCE and let him sit on the bench in court as he presided over TRIALS. Williams said: “His business is truth but he’s been living a lie.” Apparently Judge Price let his rent boy sit on the bench with him ‘while he jailed criminals’.
3. The quality of decision is like the well-timed swoop of a falcon which enables it to strike and destroy its victim. 
Canadian readers may have heard of the fuss caused by London law firm Carter-Ruck recently when they gagged The Guardian by using a superinjunction which led to claims that Carter-Ruck were trying to gag Parliament – or to be more accurate, the reporting of Parliamentary proceedings. I wrote about this at some length and, indeed, for those of you who wish to follow up in more detail I did two podcasts: one with ex-government lawyer Carl Gardner and one with Mark Stephens, a very well known and well regarded media lawyer.
The Commons’ gag order was intended to prevent publication of Trafigura and Minton in the same context. As Wikileaks notes – the Minton report released by Wikileaks has not been mentioned in the press because of an 11 September 2009 media injunction. The use of superinjunctions – an injunction preventing reporting on the existence of the main injunction – described as ‘unfortunate’ by Gordon Brown, our prime mentalist, and is being looked at closely by Parliament. there was a debate on the subject in Parliament last Wednesday.
Carter-Ruck, it has to be said, is one of the least popular law firms in the UK. Scourge of satirical magazine Private Eye and the media generally; they do have a reputation for pushing claims aggressively and for using superinjunctions. I don’t have a problem with this in itself – they are a law firm doing what law firms do… their job – but I share the antipathy of many lawyers into the increasing widespread use of injunctions and the mission creep of privacy laws. This, however, is a matter for Parliament to deal with and to change the law.
4. The supreme art of war is to subdue the enemy without fighting.
What was extraordinary about the Guardian Gag was the reaction on the political and legal blogosphere to the Guardian gag. Twitter was soon alight with comment, criticism and ribaldry and before you could say ‘Client reputation management’, #Trafigura and #Carter-Ruck were trending topics. Carter-Ruck and Trafigura backed down – after a farcical attempt to suggest that Parliament hold back on debate because of sub-judice ‘issues’ and then finally caved in on the publishing of the Minton report. This is a spectacular case study on how not to manage your client’s reputation and the issue has brought into the open the existence of the superinjunction and the fact that there are hundreds of them out there in newsrooms throughout the UK.
5. There has never been a protracted war from which a country has benefited.
The British have a taste for secrecy and this week we have had the High Court judgment on Binyam Mohamed and the judges declaring that they will publish the secret information on torture by the US government at Guantanamo in the case of British Guantanamo resident Binyam Mohamed. The case is going to appeal, so we still don’t know what the seven secret paragraphs are. I suspect they are fairly graphic descriptions of the interrogation methods applied to Binyam Mohamed by the US to the advantage of the British security services. A very shoddy business on the part of our Foreign secretary David Miliband. If you are interested, you may like to listen to this podcast on the Binyam Mohamed judgment which I did with Carl Gardner last Thursday.
Well… a brief look behind the often bizarre world of law in England & Wales. I exclude Scotland because they have a separate legal system and are well able to come up with bizarre decisions of their own – as exemplified in the Al Megrahi Lockerbie terrorist release decision.
Charon QC

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