Monday, 19 January 2009

Devolution and the West Lothian Question - Part 5: 85% is enough

Related articles:
Part 1
Part 2
Part 3
Part 4

I have received an answer to my letter of 13th December referred to in Part 4, which is here. I am glad to say that the correspondence is now drawing to a close, but the essential proposition underlying present Ministers' thinking is now clear: 85% representation on matters devolved elsewhere is enough.

As I say in my response, I think the government is playing a dangerous game here for their own party advantage. As I mention in Part 3, "what I believe would threaten the future of the UK, and at the very minimum cause unacceptable ill-feeling within its constituent parts, is if a UK government were regularly and persistently to enact (by means of whipping Scottish members) controversial legislation for England (and Wales prior to a successful Assembly Act referendum) on matters devolved in Scotland which is opposed by the majority of members elected for England (and Wales prior to the referendum). The threat would be even worse if there were a SNP government in Scotland pouring petrol on the flames."

Present Ministers seem content to play this game were this electoral outcome to arise, notwithstanding that it would be almost certain to fail in the end.

Why have we reached the situation that Ministers seem unable to recognise that, even after causing such ill-feeling, the party advantage they look for would in the end elude them? Jack Straw seems to be a man on the back burner. The present situation seems to be a combination of a Minister of Justice who has lost interest in the job, and a clever Prime Minister who suffers from a one-track mind. (As an aside, on the few occasions I see Jack Straw on the television, he looks ever more doleful and ever more like my dog - somewhat alarming as it is owners who are supposed to grow to resemble their dog).

I am a sports fan, and I enjoy listening to BBC Radio 5's Saturday morning programme "Fighting Talk". In this programme, four sports personalities gain points by commenting in an entertaining way on topical sporting issues put to them. The two who at the end of the programme have the most points have a "play-off" to decide the winner called "Defending the indefensible". They have to try to argue an absurd sporting proposition convincingly.

Wednesday, 14 January 2009

Blogs, the Enlightenment and Creationism

The ubiquity of the internet and the resources which it makes available have provided means of communicating and finding information, and of conveying opinions, which have an ease which would have been unimaginable even 20 years ago. That includes blogs such as this one. The internet may well turn out to represent the biggest change in the way we think about information and validate it since the Enlightment of the 18th century.

It is curious therefore that the internet may also represent a serious challenge to the values which the Enlightment has left with us. These values are generally thought to be reductionism, rational human intercourse and the willingness to follow where the facts lead us free of predefined limits but always subject to the requirements of analysis and verification. In the area of science in particular, it has led to respect for the scientific method - the testing of ideas against experiment and other accumulated data - and in particular for peer review by others who are experts in the field in question: hence the importance of publication in the scientific community, and of the serious scientific journals and proceedings which enable that to take place.

By contrast the internet has made it trivial to create one's own reality, and to promote any semi-plausible point of view by reference to supposed facts which are impossible to verify or in respect of which no serious verification is attempted. It appears that any version of reality is possible - that we can all live in what has been described as our own epistemological bubble. There are groups out there, for example, who believe and persuade themselves that the moon landings at the end of the 1960s were faked by NASA, and that the supposed television pictures of the launches and of walks on the moon were fabrications.

This amounts to relativism projected onto the framework by which we conduct our lives and hold things to be true.

Curiously, given the opposition to relativism of those who hold fundamentalist religious beliefs, but appropriately given that Charles Darwin was born 200 year ago this year, one of the poster children of this trend is the growth of creationism. Creationism promotes the idea that the living organisms around us arise from a direct and spontaneous act of creation by a greater power (it may or may not also seek to defend the Genesis narrative), but it does this in reverse by arguing that Darwinian evolution is scientifically impossible or at least scientifically implausible. "Intelligent design" is the latest manifestation of creationism and so-called "creation science": it argues that the Darwinian explanation of speciation is impossible because of "irreducible complexity" - that as one traces the route of evolution backwards one reaches a brick wall, a point where the biological mechanism in question remains so intrinsically complex that it can only be evolved from and not evolved to, thus (so the argument goes) requiring an intelligent designer-creator to first construct those basic building blocks.

The way this feeds into opposition to the teaching of evolution at schools, which is where matters generally come to a head in the United States at least, where creationism is strongest, is the argument that (i) Darwinian evolution is "just a theory", (ii) there are alternative theories, such as intelligent design, (iii) it is the job of the teacher therefore to "teach the controversy" and put forward both the Darwinian and creationist view of how it is we are here.

The problem with this is that in scientific terms there is no such thing as "just a theory". For a particular scientific explanation to be elevated to the status of being a theory rather than a hypothesis, the hypothesis in question must be testable and tested, it must meet and explain a wide range of data relevant to it, and it must have the general support of others who are expert in the field in question. By contrast with the theory of evolution, intelligent design is barely testable (it can as mentioned only be tested in reverse), has not been tested and has virtually no support at all amongst the scientific community. Whilst "teaching the controversy" might sound plausible to your stressed politician with other things on her mind, particularly in the United States where creationism and fundamentalism is more of an issue, the fact of the matter is that there is no controversy to teach.

There is another major problem underlying the creationist approach. The intelligent designer is a synonym for God, but Darwinian evolution does not say anything about God other than challenging the literal construction of a particular biblical narrative. So far as concerns the Christian religion, there are in any event two different creation narratives in Genesis, the seven days version and the dust of the earth version. Few moderate and reasonable Christians, Jews or Muslims have difficulty containing Darwinian evolution within their religious world view.

As this blog is one with a legal emphasis, readers may wonder why I have raised the issue (other than by virtue of a general concern I may have about irrationality). I have done so because it is a matter which has been heavily litigated in the United States because of the No Establishment clause of the first amendment of the US Constitution, which has the effect amongst other things of prohibiting the teaching of religion in public (state) schools. So much is probably well known to us in Europe: what may be less well known is that this analysis has also required the court to examine the plausibility of creation science and to look at the evidence. This is because the court has had to examine whether "teaching the controversy" during science classes is a subterfuge for teaching religion, which in turn requires examination of whether there is any scientific credibility behind what a teacher may be being required to teach.

The best recent example of this is the Kitzmiller case, the judgment on which you can read yourself here (click on the link there marked "342") - and it is well worth doing so, both for the birds-eye view it gives of where we are on creationism and for the picture it paints for us of American life in a small town.

Some excerpts though on the first of those matters (where "ID" stands for "intelligent design"):
"After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. Moreover, ID's backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.
To conclude and reiterate, we express no opinion on the ultimate veracity of ID as a supernatural explanation. However, we commend to the attention of those who are inclined to superficially consider ID to be a true "scientific" alternative to evolution without a true understanding of the concept the foregoing detailed analysis. It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science."

"To be sure, Darwin's theory of evolution is imperfect. However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions."

Tuesday, 13 January 2009

The Royal Prerogative and the other natural powers of the Crown

The government's proposed Constitutional Renewal Bill, still in its legislative programme at the last Queen's Speech at the end of November, has yet to be introduced, but I thought it would be useful to lay the ground work for it in advance. One of the things that the Bill is proposed to do is to regulate some matters at present done under the Royal Prerogative.

So what are the natural powers of the Crown and what is the Royal Prerogative? In order to understand this, it is necessary to look first at how the law views legal personality, and secondly at what any given legal personality which the law chooses to recognise may do.

Legal personality

At common law, the principal form of legal personality is the natural person. In general, an individual can do anything which the common law, customary law or statutory provision does not expressly or impliedly preclude him or her from doing.

The Crown has however always claimed the sovereign power to create new legal personalities (itself an example of the exercise of the Prerogative), that is to say the right to form a new "artificial" legal personality by exercise of the sovereign will of the Crown. In practice this was done by the issue of a charter in which a body of individuals would be incorporated as a new body separate from the individuals which make it up, with the power to act as the "mind" of the body and to take decisions for it when gathered together in a meeting called in accordance with its constitution as set out in the charter. Such incorporation by charter is and was almost always for what might be considered public purposes: it became common for, for example, towns of significance to be incorporated so as to enable them to run themselves better. As another example, some of the early universities and colleges were formed by charter giving them the power to grant academic degrees and a constitution to run themselves. The BBC is today established and incorporated by charter, as are a number of bodies regulating the professions.

It was of course possible for individuals to join together on a common business enterprise, and to form associations or companies for the purpose without incorporation, but they would have done so as a collection of legal personalities rather than creating a new personality. One of the disadvantages of forming an enterprise as a collection of legal personalities was that each was individually liable for the things done within the terms of the enterprise - each was the agent of the other. In particular, if such an enterprise carried out a business and made a loss, each of the members would be liable without limit to the creditors.

Joint stock companies

This proved a disincentive to investment in collective business enterprise: people became unwilling to invest in the enterprise if there was the risk that, if it failed, they could be taken to the cleaners. It also became administratively difficult for unincorporated business associations comprising thousands of members to administer themselves. Initially for the purposes of stimulating colonial enterprise, the practice developed of forming joint stock companies by charter - one of the first joint stock companies being the Virginia Company, formed in 1600.

With the development of the Crown in Parliament when acting legislatively as something apart from the Crown wielding executive or judicial authority, this was superseded by the practice of incorporating companies by an Act of Parliament. At first this was done by private Act on a case by case basis, but with the development of commerce, the Joint Stock Companies Act 1844 permitted incorporation by administrative action by the Registrar of Companies rather than by an individual Act of incorporation, although the limitation of liability to the assets of the company itself (the equity of members in the company) was not achieved without specific individual enactment until the passing of the Limited Liability Act 1855. The 1844 and 1855 Acts, with the Joint Stock Companies Act 1856, were the progenitors of what is now the Companies Act 2006 and modern company law.

Corporations created by statute are much the same in practice as those created by charter with one difference. In theory, bodies incorporated by charter have all the powers of a natural person, whatever might be the purpose of the charter, because they are an emanation of the will of the sovereign. By contrast, bodies incorporated by statute (which include most local authorities and all modern commercial companies) are only lawfully able to do the things which they are explicitly or impliedly authorised to do by the statute concerned, or in the case of companies incorporated by the Companies Acts, by their memorandum and articles of association. This is sometimes called the ultra vires (literally, outside the powers) principle.

This distinction has become blurred in recent times. Although, unlike a body formed by statute, a body formed by charter does not act intrinsically unlawfully when acting in excess of its charter, the court may by injunction restrain deliberate breaches, on the grounds that acting in breach of charter deliberately would comprise an abuse of the charter (Jenkins v Pharmaceutical Society of Great Britain [1921] 1 Ch 392). Furthermore, although the London borough councils are (unlike their counterparts in England and Wales outside London) still formally incorporated by charter, in what has become known as the "loan swaps" case (Hazell v London Borough of Hammersmith and Fulham and Others [1992] 2 AC 1) they have been held to be so regulated by statute in the things that they do that any separate powers as a charter body have been extinguished.

Likewise, under EU jurisprudence, commercial companies in the UK can in a number of circumstances be liable under contracts decided on by the directors and entered into in good faith by third parties even if the company may have been acting in excess of its memorandum and articles of association, and there are other circumstances in which by estoppel, mistake or by action for money had and received, the full rigours of the ultra vires doctrine may be tempered for partially performed contracts.

The Crown

What I have set out above may seem rather rambling and irrelevant to the natural powers of the Crown, but the purpose is to demonstrate that we have become so used, when an administrative decision is made, to looking for some statutory basis for it that it might be thought that all significant government action must be based on an enactment tucked away somewhere.

That is a mistake. The sovereign is a person and the government acting in right of the Crown may exercise all the powers of a natural person that you or I possess. Unlike creatures of statute such as local authorities, the government may do anything that it is not expressly or impliedly precluded by common law or statute from doing.

In addition, the Crown possesses at common law certain powers unique to itself, and it is these unique powers which are called the Royal Prerogative. Once, the Prerogative was at the seat of all government, and included the power to seize property, to deprive individuals of life or liberty (and through that to administer justice) and to make law. Nowadays the Prerogative is significantly reduced by the requirements of due process (as promulgated notably in the Magna Carta), together with the translation of most law-making functions to the Crown in Parliament and of the administration of justice to the Crown acting in the person of the judiciary.

The main Prerogative powers remaining to the executive branch of government are the power to act in defence of the realm and to wage war, and the power to enter into treaties and other arrangements with foreign governments. Other subsidiary matters still dealt with under the Prerogative include (as mentioned earlier) the grant of incorporation, the bestowing of honours, the prerogative of mercy (the power to pardon), the dissolution of Parliament (which is in consequence a matter which the Prime Minister can choose, provided the term of Parliament does not exceed five years and he maintains the confidence of Parliament) and the administration of the civil service.

The power to act in defence of the realm is often exercised by the making of Orders-in-Council (a form of legislative action outside Parliament), but does not have to be. No specific form of declaration of war is required other than a form recognised by public international law. This requires the conveying of a statement, oral or written, by one government to another that the two countries are forthwith in a state of war and that their respective citizens are enemies, prior to engaging in any acts of war affecting the other. However, as justice lies in the hands of the victor, whether a declaration of war properly precedes armed intervention is a matter mainly of academic interest. The realist would argue that a declaration of war only serves to give a warning to the enemy.

The natural powers of the Crown today

As I have previously mentioned in my blog, the British constitution is a practical thing. To the British constitution, theories concerning the powers of the sovereign are all very well and good, but Parliament holds the purse strings. Since the time of the civil war two principles of Parliamentary sovereignty have been established. First, no tax may be levied without the authority of Parliament. Secondly, no monies raised by taxation may be spent without the authority of the House of Commons. So far as concerns the second principle, in modern terms all money raised by taxation must be paid into the Consolidated Fund, and no money may be taken out of the Consolidated Fund without an appropriation of the House authorising it. (See this article for a further explanation of how this is done.)

So, although the Crown possesses these broad common law powers, it cannot actually do anything involving the expenditure of money (and what doesn't?) without Parliamentary authority for the expenditure. There is a further control in that the Crown has voluntarily agreed in an exchange of notes with the Committee of Public Accounts of the House of Commons in the 1950s that it would not launch new programmes involving expenditure continuing from year to year in reliance only on the ordinary appropriations without also obtaining legislative powers for the service concerned - but this is an administrative rather than a legal requirement.

In addition, there is also the point that a government can only hold office for so long as it maintains the confidence of the House of Commons. Where a government by its actions ceases by resolution of the House to hold that confidence, either a new Prime Minister likely to have its confidence must be appointed by the sovereign, or Parliament must be dissolved and an election held.

One other principle of law can impinge on the natural powers of the Crown. Where Parliament has enacted, by such specific service legislation, how and when something is to be or can be done, then as a matter of necessary implication that would be taken to have extinguished (or at least suspended) the Crown's natural powers in that subject matter (Attorney General v De Keyser's Royal Hotel [1920] AC 508).

Substitution of statutory for common law powers

However, in my view the De Keyser principle should be applied with caution. It is clearly right, when dealing with the exercise of Prerogative powers affecting the rights of the citizen (such as, as in the De Keyser case, the taking of property for defence purposes), that any statutory code covering the same subject matter should prevail. However, it is another matter when the Crown is acting under its more general natural powers, such as when exercising the power to act pro bono publicae. Events are unpredictable, circumstances change and flexibility is needed. In real life, not everything can be governed by detailed statutory rules and it is not desirable that they should be. For example, for a number of years the Criminal Injuries Compensation Scheme was run on an a non-statutory basis under the natural powers of the Crown supported by appropriations of the expenditure concerned in the annual Appropriation Acts. Given that there were such appropriations, that should have been of concern to no-one other than the pedant.

The Court of Appeal recently got into an unnecessary tangle about this in R (Shrewsbury and Atcham Borough Council and Others) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148). This concerned proposals of the Secretary of State for Communities and Local Government to introduce unitary local government in parts of Shropshire in place of the then current two-tier (county council and district council) local government. The Secretary of State had had the temerity (in Carnwath LJ's view) to ask the local authorities concerned for views on this, and on any proposals they may have for unitary local government for their area. In a judgment of greater length (21 pages) than argument, Carnwath LJ managed to persuade himself that because the Local Government Act 1992 contains provisions under which unitary authorities can be created on recommendations of the Electoral Commission, it was wrong for the Secretary of State to solicit such proposals directly from the local authorities in advance of the enactment of new legislation (which became the Local Government and Public Involvement in Health Act 2007) which would have enabled her to implement them directly. In the end, though, he concluded that this did not really matter given that, by the time it had reached the Court of Appeal, the 2007 Act had been enacted and therefore impliedly ratified her actions.

What a bizarre set of conclusions, happily not accepted by the judge at first instance (Underhill J), who kept a firmer grip on reality and concluded the Secretary of State had acted lawfully, nor by Carnwath's fellow judge in the Court of Appeal, Richards LJ (also a former and well respected junior Treasury Counsel), who reached the more realistic conclusion (in only one page) that what had happened was just the kind of thing those in government might be expected to do where they feel it in the public interest, and that the Secretary of State had acted properly. Happily the Court of Appeal had also earlier reached a view inconsistent with Carnwath's in R v Secretary of State for Health, ex p C [2000] 1 FLR 627. In fact, it is surprising that leave to appeal was given at all, particularly given that council tax payers in Shropshire and other taxpayers in the UK were paying for it all.

Taking Carnwath's analysis to its conclusion, given the enactment of the Joint Stock Companies Act 1844 and its successors, it was wrong to form the BBC and similar bodies by Royal Charter, as they could undoubtedly have been formed as companies limited by guarantee. Get a grip.

The proposed Bill

From earlier consulation material, the Bill is not going to concern itself with these kinds of trivia. Instead it is intended to regulate the powers of the Prerogative properly so called, so as:
  • to require treaties requiring ratification (not all do as some come into force immediately) to be laid before Parliament prior to ratification to enable Parliament to express a view
  • to require approval of Parliament to war or planned (non-emergency) deployments of troops,
  • to turn the administration of the civil service from a prerogative matter to a matter of statutory regulation,
  • to surrender the prerogative of mercy, given that there are now statutory provisions allowing the Court of Appeal to review defunct cases which may involve a miscarriage of justice.

These might seem radical, but given the explanations above in truth they are not. In relation to war in particular, no waging of war will be successful unless Parliament votes the money to pay for it. Thus, no government in particular will ever declare war unless it is confident it can secure a majority in Parliament to go along with it.

On this basis, why not? But it is not earth shattering stuff.