Constitutional Futures

I contributed a guest article about Constitutional Futures to the http://englishparliament.net website here. It does not contain much that I have not previously commented on in this blog, but it contains a more complete refutation of the views of Professor Victor Bogdanor for those who would like to read it.

Power 2010: the sequel

The internet voting stage of the Power 2010 proposals has now finished. I wrote here about the deliberative stage which preceded it.

There has been quite a change-around in the ordering of the proposals. The idea now is that voters will ask candidates in their constituencies to commit themselves to at least three of the top five¹, these top five being proportional representation, the scrapping of ID cards and the "rolling back of the database state", an elected House of Lords, English votes on English laws, and the drawing up of a written constitution.

I am disappointed that the more achievable direct democracy proposals, namely the holding of national consultation exercises on matters of importance before policy decisions are taken by means of referenda and the like, more free votes and giving MPs more control of the Parliamentary timetable haven't featured, but glad that the pointless "allowing voters to vote none of the above on ballot papers", formerly no. 2, has now sunk into its merited irrelevance.

Apart from databases and English votes (which I deal with separately below), we are therefore left with the constitutional hobbyists' usual causes, namely proportional representation, an elected House of Lords and having a written constitution. As compared with the outcome of the deliberative phase, these have the relative merit of consistency, in that if we are going to have an elected House of Lords we are probably going to need a written constitution also, because it opens up a whole host of issues about the role of the House of Commons, and (if the second chamber is elected) what function, if any, an elected second chamber is to have in relation to the devolved legislatures or whether, by only shadowing the House of Commons, it should in the main be concerned in its legislative capacity with England-only or England-and-Wales-only issues. However, an elected House of Lords impacts on proportional representation, because if the House of Lords is elected by proportional representation it would seem to me to make sense for the House of Commons to be elected by first-past-the-post or by single transferable vote (alternative voting), which would thereby retain the House of Commons' position as having a constituency based membership.

What we can reasonably deduce is that none of these three will be implemented in the foreseeable future.

Of the five, the matter which probably most stirs my juices is the winding back of the database state. Having said that, such things as the outrage of the DNA database seem to me to be of a different category from the other four in the Power 2010 list: issues arising in connection with the database state are concerned more with human rights than with the re-invigoration of politics and constitutional structures, so I am not certain that this is really suitable as a Power 2010 pledge. (I say "outrage" because, outside Scotland, to get on the DNA database a mere arrest is enough - you don't even have to be charged let alone convicted of anything, which has brought about an abuse of the power of arrest by the police. To get off the DNA database after an arrest you have to be a celebrity or someone in the public eye, such as Damian Green MP: ordinary people who are not likely to have their letters printed by the Times are just potential criminals and suitable as DNA-fodder in Jack Straw's thinking.)

What to make of English votes on English laws? It must have come as something of a shock (or at least a disappointment) to the Power 2010 organisers because as I say constitutional enthusiasts generally are more concerned with the three subjects I have already mentioned. It is a reminder however that any new constitutional settlement involving an elected House of Lords or a written constitution is going to have to grapple with the problem of England. The current situation is untenable in the long term, particularly as more things will be devolved to the Scottish, Welsh and Northern Irish governments and institutions in the course of time. To consider constitutional structures without considering the position of England, which I suspect the Power 2010 organisers hoped they could do, is ridiculous. To that extent, including English votes within the Power 2010 pledge may well serve a purpose.

However, outright preclusion of members for constituencies outside England or England and Wales voting on a Bill having an England or England and Wales only extent at all stages of a Bill is not really a workable solution, but I think a form of English votes can be made to work which I will not repeat again here. Those interested can look at previous articles in this blog on the subject, such as my earlier article on the Power 2010 proposals to which I have referred and also at this.

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¹ The earlier Power 2010 intention was to ask candidates to sign up to all five.

Power 2010: the story so far

Below is the text of a guest opinion piece I wrote and which appears at http://englishparliament.net. A sort of "view from the regions".
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Power 2010 has recently published the results of its "deliberative phase" of proposals to re-invigorate British politics. This followed its earlier request for proposals from the public at large, 60 of which were then put to this "deliberative" stage. The deliberation was carried out by a representative sample of 200 UK citizens on 9 and 10 January. The top 29 topics following the scoring which accumulated on deliberation are now the subject of a period of internet voting, after which the five most popular will become the policies for constitutional change which it will ask candidates at the 2010 election to adopt as policy.

In this guest opinion piece I will approach it in the spirit in which it is intended, and not dwell on the fact that it is the party manifestos which set out what it is that the candidates will in fact pledge themselves to. Power 2010 will find it difficult to have any practical effect, but I suppose they are to be applauded on the initiative.

Overview

The thing which most struck me was the relatively unradical nature of most of the proposals, particularly those near the top of the list. This is not going to cause any re-enactment of the Chartist riots of the 1830s and 1840s; nor even the repeal of any Corn Laws. The no. 1 ranking following deliberation is given to strengthening select committees in the House of Commons, which doesn't sound to be the most appealing call to the manning of the barricades. The no. 2 ranking was "allowing voters to vote none of the above on ballot papers" which is particularly pointless: such markings on ballot papers are at present labeled and counted as "spoilt votes". (The fact that this ineffective idea did appear at no. 2 gives some hope that this exercise is not stage managed by constitutional enthusiasts.)

As to which my second thought is that the deliberative stage is only as good as the neutrality of the "guidance" given to the 200 citizens during their deliberations. Whilst this clip from "Yes, Minister" is intended mainly for humour, as with much of that series it is making a serious point. Polling companies stake their reputations on devising neutral non-leading questions which do not point to a particular outcome and therefore bias the result.

The proposals

Everyone will have their own views on what might make it to the final cut of 5 proposals. In looking down the list of substantive rather than trivial proposals, I have ignored those concerned with matters of privacy and databases and related human rights issues (and a referendum on substituting the euro for the pound which came in at an astonishing no. 12), as though important in their own right they seem to me to be not sufficiently connected with the re-invigoration of politics. The highest ranked proposal which I find of interest is one to "increase the number of issues decided by free votes" (no. 3), followed by direct democracy, that is to say more national consultation exercises on matters of importance before policy decisions are taken by means of referenda and the like, which forms three linked proposals at no. 4 in the deliberative results. After that, of the proposals in the results which I would regard as substantive and interesting without necessarily agreeing with them are MP recall votes (no. 9); doing away with some of the Freedom of Information Act exemptions (no. 10); giving MPs more control of the Parliamentary timetable (no. 13), linked in spirit at least to there being more free votes and which is much more far reaching than might be thought, because the control of Parliamentary time by the whips office is where much of the power lies; "allowing only English MPs to vote on matters affecting only England and only English and Welsh MPs to vote on matters affecting only England and Wales" (no. 16); only having ministers in the government from the House of Commons (no. 17); more devolution to local government (no. 18); and proportional representation (no. 23).

I have discounted from my list of interesting substantive proposals things like fixed-term Parliaments (no. 21) on the ground that it is not sufficiently ground-breaking, and having a written constitution (no. 26) on the ground that it is so ground-breaking that it asks more questions than it answers: in fact, producing a written constitution would require all 60 questions to be answered, and many others besides. I do not find a written constitution of itself particularly appealing - it is what would be in it which forms the grit.

Supporters of an English Parliament will be disappointed: following deliberation, holding a referendum on an English Parliament went to no. 45 and misses the cut. A referendum on an English Parliament ended up coming below even "Holding separate referendums (sic) on membership of the Union in England Scotland and Wales" (no. 43), which seems an odd selection of priorities by the participants and it does make one wonder how reliably the exercise was carried out. The ranking also jars both with "Holding a referendum on the strongest form of devolution amongst the nations" which is higher again at no. 38, and which would of its nature require the referendum to cover whether there should be an English Parliament or regional government in England (although curiously the explanatory information indicates that "the nations" did not include England).

On the last point, I must come clean on this: readers of my own blog will know that I am not a great supporter of an English Parliament. Instead I would prefer to see real powers given to a parliament and government for three English regions, the North, the Midlands and the South, forming (with those already existing for Scotland, Wales and Northern Ireland) a federal solution for the UK. I think that could give a new vibrancy to the whole of England (as opposed to the pathetic John Prescott proposals of earlier in the decade which were never intended to devolve anything meaningful and were intended to divide the north of England rather than represent it).

However, regional federalism came out even lower than an English Parliament, at no. 46, and in truth I have always recognised it to be a dead duck politically. Westminster career politicians are not going to vote to divest themselves of most of their current powers and leave themselves only with foreign affairs, defence, immigration, macro-economics and the benefits system as toys to play with, and reclaiming things from Scotland such as health provision to give politicians more to do at the UK level is likely to prove politically unachievable (there is no National Health Service at the institutional UK level any more and probably there cannot now be again). But by the same token, Westminster career politicians are not going to sign up to most of the other Power 2010 proposals either. And I recognise that an English Parliament is, in the decades to come, a more likely outcome than genuine regional devolution because it allows the more straightforward and less challenging metamorphosis of UK power structures into England power structures on matters which will have already become devolved in the remainder of the UK. The England rump ends up defining itself.

For those interested in voting systems, single transferable votes (sometimes also called alternative voting) ended up at no. 34 following deliberation, below proportional representation and missing the cut. Single transferable voting is, however, the only change to the voting system which is ever going to be implemented in practice, were first-past-the-post to be abandoned.

Another interesting one was "Selecting the Upper Chamber by lot from the population" (no. 49). This has a certain whimsical purity about it - a return to the ethos of the old House of Lords but with membership of the House of Lords determined by pure chance at birth (or perhaps on attaining majority) rather than by the chance of heredity at birth. It has a cousin "Selecting some councillors by lot from the local population" (no. 48) for the local level.

The problems

I have commented on the neutrality point, but one other significant problem with the exercise undertaken by Power 2010 is the fact that the issues dealt with cannot in truth be treated as discrete decomposed items in the way that appears in the table of post-deliberation results.

An example is the House of Lords. Having an elected House of Lords ended up ranked no. 28, just making the cut. However, whether the House of Lords is elected has an obvious effect on its political legitimacy and therefore on its power to override the House of Commons. If wholly elected, then the case for it to be able permanently to block rather than just delay a Bill also becomes considerably stronger. Likewise if the House of Lords is elected by proportional representation, the case for keeping first-past-the-post for the House of Commons becomes stronger, and there could be little justification for preventing members of the House of Lords from becoming ministers in the government. It also raises the question whether this new elected chamber should act as second chamber, or at least as an advisory chamber, for the legislatures for Scotland, Northern Ireland and (after a successful referendum under Part 4 of the Government of Wales Act 2006) Wales, given that a great deal of its time would otherwise be devoted to England-only legislation.

In fact, an elected House of Lords would require a wholesale review of the UK constitution going well beyond most of the other relatively modest proposals of the Power 2010 document. It might well require preparation of the written constitution to which I referred earlier.

By way of another example, one of the main arguments against English/Welsh votes on English/Welsh laws is the argument that the UK government must be able to get its business through, and to do that it may need to rely on (and whip the votes of) MPs for Scottish constituencies even though a matter may not by virtue of devolution affect Scotland. This is indeed what happened on student top-up fees in England and on some aspects of foundation hospitals. However, if there are to be more free votes as proposed, where each MP votes for what he or she thinks is the best for his or her constituents rather than in accordance with the party line, the argument for limiting voting rights to those whose constituencies are actually affected by the matter under consideration becomes obviously stronger.

Another problem is the inability of the process undertaken by Power 2010 to offer nuance on a number of the issues. On English/Welsh votes on English/Welsh laws, even though some protection for those in England against a recurrence of the student top-up fees affair is likely to be introduced at some point (and more quickly if the Tories win the next election), the formula at no. 16 which I have cited above does not in fact represent anything ever likely to be implemented, nor is the formula in its stark terms particularly realistic. Instead, the Tories propose an English Grand Committee at committee stage (a little different from the Scottish Grand Committee which used to sit on Scottish legislation, and in theory still can), together with restricted voting at report stage. Under the Tory proposal no Bill affecting England only or England and Wales only could pass either second or third reading without a vote in its favour by all members of Westminster Parliament. My own proposal in the absence of regional federal devolution or an English Parliament has been more limited: this is that, by analogy with the power of delay for a year available to the House of Lords, if a Bill or separate Part of a Bill were not to have a majority in its favour at third reading for the portion of the UK to which it applies as well as for the whole house, it could not be forced through against the wishes of the majority of those members representing that portion until the following session of Parliament. At all stages of a Bill all members would still exercise a vote; but people in England/Wales would get some protection at third reading against laws and decisions, applying to them only, being forced on them which are not approved of by their elected representatives. Possibly after a period of experience, this power to delay could be transformed into a power to block. (I also realise that those who want an English Parliament regard this as inadequate.)

Where we are

Power 2010 may counter criticisms of the kind I have mentioned on the grounds that their approach is the best which is achievable with "open authorship", and on that they are probably right. But the value of the outcomes can be judged from the coherency of the exercise undertaken.

I add to this that some good ideas have undoubtedly come from the process. The "direct democracy" proposals at no. 4 were right to come out near the top, and might if implemented do much to help counter public distrust in politics and politicians. But overall, the exercise and its outcomes seem to me a little like a Jackson Pollock art work. Throw some paint at it, stand back and hope that something has been achieved which hangs together as a complete work.

What to do on Thursday

I usually have a pretty clear view of which way I am going to vote some time in advance of a European or general election. (I have to say, no doubt to my shame, that I rarely bother with local elections unless they happen to coincide, as now, with another one. I simply don't know how the local parties' policies stack up for my area and there seems little easy way of finding out.)

This time, with two days to go, I am still unsure.

I think what in the end will guide me is that on this occasion we have a European election, and I should therefore vote on European issues. On this, David Cameron has disappointed me. The Conservative party policy of holding a referendum on whether to attempt to renegotiate an international treaty (the Lisbon treaty) after it has already been ratified by the UK government seems to me to be madness. My worry is that he is still at least partly a captive of the loony right wing of his party which has forgotten that Britain has lost an empire and which harbours the vain hope of re-establishing special trading areas with its former members, and an even more loony group who think the UK should apply to become a state of the United States. Possibly David Cameron calculates that Gordon Brown will not call an election before next May, and that in the meantime the other EU countries remaining to ratify it (principally Ireland, the Czech Republic, Germany and Poland) will do him a favour by doing so, thus conveniently making it a done deal.

Or even more worryingly, perhaps David Cameron really means it. I would not despair of a referendum being lost and reason prevailing, but the political atmosphere is so febrile at the moment that rational debate is likely to be drowned out by a "sod the lot of them" attitude which will take the opportunity to say no to anything. On such little things are great issues decided.

I had hopes, but also some suspicions, when Gordon Brown became Prime Minister. My suspicions seem to have triumphed: what is left of the Labour party seems to be the old municipal machine of closed-door fixers who think the ends justify any means, exported to the national scene. We have councils on this, conventions on that, consultations on the other, all carefully stage managed so that the only outcomes which will emerge are those which have already been decided. We have had behind-the-scenes filth coming from political aides within 10 Downing Street itself, turned on other members of the government. We have an ever more centralist and directive party which will only consider pretend devolution within England lest it cede any powers, and which is incapable of dealing with the anomalies which their devolution policies have created within the UK. We have a database government which has lost a clear vision of human and civil rights.

Oh dear. Many religions and early societies have purification ceremonies with which adherents may cleanse themselves after carrying out some unpleasant but necessary duty. Someone should provide a ceremony for those answering the call to vote on Thursday.

Constitutional reform

It is curious how the revelations of abuse by some MPs of the expenses system that MPs have created for themselves have stimulated calls for constitutional reform.

This probably suits both sides of the argument. No doubt those MPs who are supporters of the constitutional status quo (most of the parliamentary Labour party probably) will be relieved to see attention passing to something other than them, and electoral reformers see it as their approximately once-every-decade chance to wave the flag for proportional representation. In response to these pressures we have the Prime Minister proposing to set up a "National Council for Democratic Renewal" to be formed of, wait for it, Ministers in government. Anything more guaranteed to promote centralist "top down" policy forming and minimise the prospect of democratic renewal would be difficult to imagine.

Justice Committee - Devolution: a decade on

At the same time, by co-incidence the report of the Justice Select Committee of the House of Commons (the departmental Select Committee covering the Ministry of Justice) was published at the beginning of last week looking at the British constitution from the perspective of 10 years of devolution. Whilst recognising the present anomalies of constitutional arrangements for people in England, their report was also a depressing read for its inability to get to grips with solutions. The evidence given to the Committee was interesting however, particularly that taken on 19 February last year (which can be seen here (parts one, two, three and four). Vernon Bogdanor, professor of government at Oxford Unitversity has (like John Curtice, professor of politics at Strathclyde University) for some time beaten the drum for the view that there is no constitutional problem to address with respect to the position of people in England arising as a consequence of the devolution of executive and legislative powers elsewhere; and that there is only a political issue to deal with from a feeling amongst some in England that their interests are not sufficiently taken into account, which can be solved by having more elected mayors along the lines of the Mayor of London as "figureheads" for the major cities.

Professor Bogdanor's criticisms of Ken Clarke's then partly-formed proposals for an English Grand Committee followed the Ministry of Justice handbook, positing a case where the UK government did not have a majority in England: "... if you had a government with a majority in the United Kingdom but another party with a majority in England, the government with the majority in the United Kingdom could not say it had a policy on health or education because that would depend on what the English MPs thought ... it would bring the Government to a halt".

Undoubtedly that situation would be problematic, but surely leaving things as they are in those circumstances would be even more problematic. It seems inconceivable that a UK government could spend its five year term enacting legislation on health, education, transport, local government and town and country planning relating to England only which was opposed by the majority of members in England, and which could only be passed by whipping its Scottish members through the lobbies in one division after another. Surely this would be bound to fuel unnecessary (and no doubt for the most part childish but none the less strongly felt) resentment between those in different parts of the UK. The fact of the matter is that in the circumstances posited, the only sensible course would be for co-operation between the government and the majority party in England, and if for a number of years legislative intervention were to dry up except on non-contentious issues, many might regard that as a good thing. The dangers of impasse where action is needed could be further diminished if my suggestion here were adopted, namely that if a particular part of a Bill relating to only a part of the UK were not to have a majority of members representing the part of the UK to which it applies on Third Reading in the Commons (in addition to a majority of the whole House on Third Reading), then by analogy with the power of delay available to the House of Lords, the part of the Bill in question could only be enacted by passing it again in the next session.

Unlock Democracy

However, some of the most interesting and intelligent evidence, both in analysing the issues and coming up with serviceable solutions, seems to me to come from Peter Facey representing an organisation to which I have not previously paid much attention called "Unlock Democracy". Of the problem, he said this:

"Theoretically, Professor Bogdanor is right, that there are 528 English MPs and they can outvote MPs from other parts of the United Kingdom, including the fourth bit, Northern Ireland, but the reality is that [the House of Commons] splits on party lines, on policy lines. The example which was given in the earlier session was that if at the next election a government is returned with a majority based effectively on MPs from Scotland and Wales and, because of the present political make-up of the United Kingdom, this is going to be the Labour party, in those circumstances it will depend on MPs from Scotland voting through legislation in England. That, I think, is the fundamental difficulty with Professor Bogdanor's position, even though, yes, he is right: there are more English MPs than there are Scottish or Welsh MPs. The problem when it comes down to it is that, if there are more Conservative and Liberal Democrat English MPs than there are Labour MPs but Labour has a majority in Westminster, that is when it becomes a real political issue. On the question of risk, which was the second part of the question, yes, there are risks in dealing with the English Question (or questions) and we should not pretend that there are not, but the bigger risk for me personally is the group which says, "Do not ask the question", because I think we have now got to a point where doing nothing is probably worse than doing something, that if we simply stay where we are and we let circumstances develop and we get into that crisis point it is very difficult then to do something, so now, when the issue is not as burning, is the time to deal with it. If it becomes a constitutional crisis because you effectively have England being governed by a party which is perceived, by the media at least, or elements of the media, as being not English but foisting policies on from elsewhere, then it becomes very difficult in a core, logical way to deal with the issue, and therefore we need to deal with it now, even though there are risks."

He advocates a national element for England within Westminster to deal with this (how this might differ from Ken Clarke's proposals for a Grand Committee or indeed mine relating to Third Reading remains to be seen), which would then take the pressure off the creation of artificial regional units within England in order to temper the West Lothian Question. One can then concentrate on realistic devolution to accord with what people want, rather than the devolution that the government thinks it should dictate. He said:

"I think one of the problems with the route we have gone down for decentralisation is that we have created government regions where even the one I used to live in in the south west has no recognition on the ground. Devon does not necessarily feel in the same region as the northern parts around Bristol. We also get this idea that you have to break England up into large units which can be given the same powers as Scotland and Wales. Kent has 1.3 million people. That is 300,000 people less than Northern Ireland, but Northern Ireland already is regarded as big enough to have those powers. Kent has more people in it than ten US states and those states, the smallest one being Wyoming, have more powers than the Scottish Parliament, so the idea in terms of decentralisation is that we have to somehow create these large units. I am not against it if the people in the north east want to have it on a regional basis but we must find a way forward which is flexible enough to allow those units to be choosing, whether those are government regions, collections of existing local government units or in some cases individual councils at the moment. Where you live, the county of Hampshire, again is a very similar size to Northern Ireland and if you include in it the unitary authorities it is larger than Northern Ireland, so we need to start thinking about some of our counties and local units as the vehicles for devolution and then look at bringing government below that down as well, not simply to have the idea that to do devolution in England we have to always create new units. Where that is appropriate, yes, but we also have to say that where there is demand that can be to existing units.

...

"What we are toying with the idea of is having an English devolution enabling act, which says, 'These are the powers which have already been devolved elsewhere in the United Kingdom', and if powers are then devolved later it could be be added to it, where they could be called down. They could either be asked for by existing local authorities, and if they met certain criteria they could be given to them, subject to a referendum endorsing it, or central government could say, 'We would like you to have this, subject to a referendum', or, the third option, the people themselves could call for those powers. ... The option would have to be that they could either join in with another area if they want to or they would continue with being governed by the United Kingdom Parliament. It is a messy way of doing devolution but I happen to think it goes with the grain of the governance of England"

Now this seems to me to represent a real way forward. Will it be opposed by centrists within the civil service and by the current Cabinet - most certainly, because it would offer meaningful devolution (as well as respecting people's wishes). A project of this kind could also be swamped in today's climate by that portion of the political elite on the soft left who see proportional representation as the sole or main answer to public re-engagement in politics and see now as the opportunity to promote it. There is just a chance David Cameron might pick up ideas like this, but as we found with Tony Blair, new Prime Ministers can quickly forget their zeal to deal with constitutional thorns once they have taken office and the sclerosis of power has seriously set in.

So going back to Professor Bogdanor and his unwillingness to face the issues thrown up by devolution - whilst the prospect of a UK government without a majority in England seems remote in 2010, it could occur in 2014/5. Were that to happen and a full-blown constitutional crisis to arise, the lack of vision of those such as Professors Bogdanor and Curtice in the academic community will I think have to take much of the blame.

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.

Devolution and the West Lothian Question - Part 4

Related articles:
Part 1
Part 2
Part 3

I have received a response from the Ministry of Justice to my letter of 18 November referred to in Part 3. The updated correspondence can be found here.

One interesting outcome is that the government appear to have abandoned hope of reinventing Prescott-style mini-devolution at regional level at any time in the forseeable future.

They also run the argument that devolution is indirectly good for people in England because it is good for people in Scotland, Wales and Northern Ireland - but they have little option given that devolution does not at present extend to England.

In justifying the current devolution status quo, under which members for constituencies where there are devolved governments and legislatures may decide matters in England which are devolved in their own constituencies, they have firmly planted their standard on the mound of the Barnett consequentials. The Barnett consequentials are shorthand for the operation of the Barnett formula, under which a percentage of any increase of expenditure in England will feed through automatically into the block grant paid to the devolved administrations. The argument in the letter is that since expenditure in England will affect the block grant for devolved institutions elsewhere, those representing members for constituencies in that elsewhere have a right to decide any and all matters in England which happen to be brought before the House of Commons.

Barnett consequentials

The Ministry seem to me to have planted their standard on a mound of sand. A few words of explanation about how public expenditure is financed are needed - for those whose eyes are inclined to glaze over by mentions of public finance, skip the following two paragraphs.

All money raised by taxation is paid into what is called the Consolidated Fund. This is the Exchequer account at the Bank of England, and sees eye-wateringly large amounts of money pass in and out each year. Leaving aside the operation of the National Loans Fund under the National Loans Fund Act 1968 (which affects the detailed mechanics but not the principles described below), specific statutory authority is required for the drawing of any money from the Consolidated Fund in order to pay for government programmes. This applies whether the particular government programme in question is one conducted in exercise of the natural powers of the Crown or the prerogative (about which I will write a separate commentary shortly), or under particular statutory service powers. Put shortly, the power to levy a tax does not of itself include the power to spend it.

This is linked in to the annual expenditure estimates laid by the Chief Secretary of the Treasury before the House of Commons each year, drawn up following the Treasury's spending review. Once approved by the House, authority to draw on the Consolidated Fund to meet the estimates in the first part of the following financial year (beginning on 1st April) is conferred by a Consolidated Fund Act. In the summer of the year, usually shortly before the summer recess at the end of July, these are incorporated into an annual Appropriation Act listing and authorising the appropriations for each head of service of each department for the year, usually followed by a further Appropriation Act towards the end of the financial year which sets out any excesses for the previous financial year and any supplementary supplies necessary since the estimates were drawn up for the current financial year. (To see how the heads of supply are set out for each department, see for example Schedule 2 to the Appropriation (No. 2) Act 2008, which is the July 2008 Act granting supply for the 2008/09 financial year.)

The essential point here is that the determination of the Barnett uplift (the percentage of the increase in expenditure in England which is to go in block grant to the other countries in the UK) follows directly from the spending review giving rise to the estimates and any supplementary votes for central government departments. There is nothing to stop members for, say, Scotland expressing a view and exercising their vote when the annual estimates are put forward in the Commons, and when the Appropriation Acts for supply are passed, if they feel - to adopt the Ministry's hypothesis - that the "knock-on" effects on Scotland under the Barnett formula are not to their liking. That is quite different from being able to force through what the money voted for any particular head of service must be used for at the detailed implementation level in England, or to decide everything else which happens to be going on in England, which is what the Ministry argue for.

It is also, as I said in Part 3, far fetched (and would represent very poor government) that members for, say, Scottish constituencies would actually want to take decisions on detailed education or health matters in England, not on the merits of the decisions for those subject to them, but on the ground that they may result indirectly in too much or too little expenditure in Scotland. My description of the Ministry's "Barnett formula" based justification of the current devolution status quo as a "make-weight" could I think reasonably described as being kind and generous to the Ministry.

The Ministry have not provided any other examples of matters which when decided for people in England only may affect their neighbours in the UK, but which when decided the other way round in Scotland, Wales or Northern Ireland by a devolved administration will not affect England. This is probably because there aren't any.

The Ministry's argument also pays no regard to the limited nature of what I was in fact proposing in Part 2 as the Very Simple Solution, which would not allow a Bill or separate part of a Bill to be passed without the approval of the majority of all members in the Commons at all stages (as well as a majority at third reading of those representing the area within the UK to which the Bill or part applies), and would allow the government to promote the legislation concerned again in the following session against the wishes of the majority for that area in a case where it really thought that important.

Regional Select Committees

Also interesting is the mention of the Regional Select Committees. These were approved by the House of Commons on 12 November under government whipping. The debate is worth a read and is here .

The origin of these committees is found in paragraphs 119 and 120 of the Ministry of Justice Green Paper "The Governance of Britain" published in 2007. The Modernisation Committee of the House of Commons gave effect to these proposals, passed only by a second casting vote of the Leader of the House, Harriet Harman, and the results of which in a rather comedic (some might say Orwellian) twist were "welcomed" by the Government in its White Paper "Regional Accountability: the Government's response to the Modernisation Committee's third report of session 2007-08".

The reason given for forming these committees was to improve the accountability of the regional development agencies and the government offices for the regions to Parliament. Many of the things that these regional bodies do (other than those of the government offices which are in any event already accountable to Parliament) could in fact be put back to the local authorities from which they came. However, in the absence of these functions returning to local authorities, some form of accountability seems to me to be a good idea.

It is strange however to see these bodies mentioned in the context of devolution, because they do not exercise devolved powers of any kind. The fact that they are scrutiny bodies on the model of other Select Committees, not policy forming bodies, was one justification given for the fact that their membership does not reflect the political make-up of the regions which they represent. Instead, they represent the political make-up of Parliament as a whole - in other words, there will always be an inbuilt government majority, even though Labour members are in a minority in a number of the English regions. In fact in the south-west region (and possibly in the eastern region) the government will have to draft in members from other regions in order to maintain the government majority on the committee.

Were committees to have some role in devolved policy forming, then such a membership would I imagine be seen as unacceptable even by present Ministers.

Also mentioned are Regional Ministers. These additions to the payroll were, like the Regional Select Committees, created under the Green Paper proposals (paragraphs 115 to 118). They have no executive functions within the region. They are "champions" of government policy to regions and vice versa (people at whom rotten eggs can be thrown in place of those Ministers who do make the decisions?). They are entirely toothless - in fact, does anyone actually know who their regional minister is, and has anyone ever seen one of these curious beings?

Judicial activism revisited

An interesting article on the relationship between the courts and Parliament in the development of human rights is set out by Nick Herbert MP on his webpage, which reproduces a speech he delivered at the British Library on Monday. It covers in part similar ground to that covered in my commentary, but from a political (and Conservative Party oriented) perspective rather than a legal one.

One of his arguments is that Parliament has abrogated its responsibilities in passing the buck to the courts in determining the balance between privacy rights under article 8 and the guarantee of freedom of expression under article 10. That is a reasonable point for those who think that press freedom is too important an area of law to be left wholly to the courts. One of his arguments is that the Human Rights Act 1998 paints the human rights canvas with too broad a brush, forcing the judiciary to decide too many of the details.

Broadly expressed constitutional principles will always give rise to difficulties of this kind - hence the complaints of some about the activism of the Supreme Court of the United States in construing and applying the the US constitution (including the Bill of Rights comprised in its first ten amendments).

The problem is that whatever formula Parliament comes up with to describe what that balance should be, the judiciary will inevitably be left to apply the formula to individual cases, and application of that formula to individual cases gives rise to precedents (and precedence) for the future. And what formula will that be, other than something similar to the formula set out in the Convention itself?

He is right, though, to stress the role that elected representatives must play in matters of human rights policy. I do not underestimate the importance of reminding our policy makers that they will, in due course, face the electorate again. Representational democracy provides our final defence against the ill intentioned, the poorly advised and those who might otherwise be carried away by their own ideas. Sometimes the current that the democratic process puts through the sea in which our policy makers sail can wash them away without the need for an election - as in the case of Margaret Thatcher and the poll tax.

But it is also to be recognised that the primary role of human rights legislation is to give remedies against public authorities (see my discussion on horizontality). It is to provide a shield to the minority, the unpopular and the disregarded from the enthusiasms of the majority - a bottom line beyond which the majority through their elected executive, however secure their democratic credentials, may not go. In short it is to deal with the perils of the dictatorship of the majority. It is not, as he says, "to drive better performance in public services".

There is a debate for the philosophically inclined about whether this bottom line is an inherent attribute of the condition of human existence, comprising a truth to be held as self-evident and rights endowed by their Creator (no attribution required), or whether they originate in the sovereign will of Parliament. In the British constitution though, they do the latter.

However, we have these two principles at work (democratic authority on the one hand, and a bottom line of respect to which all are entitled as individuals on the other), both of which are essential to the workings of a civilised society.

Sometimes, as in all human interaction, people may make mistakes in how that balance is drawn - Nick Herbert gives some examples in his speech, some of which I would agree with and some I would not. There are also, as he says, severe dangers in attempting to expand this rights language to cover socio-economic and environmental rights. The due representation of these supplementary pseudo-rights in the political process might or might not be desirable, but if it is they should not be expressed in the same language as the fundamental rights to which I have referred above. That would devalue the kernel of human dignity comprising the core human values set out in the Convention. Such supplementary rights would also be unjusticiable.

Amen to his call for respect to be given to human rights where they are most challenged in the world, and the perspective that that might give to our own preoccupations: and a reminder of how lucky we are in the UK, and indeed in the western world (including all the signatories of the Convention) to have politicians who, for all their shortcomings, at the end of the day will have the best interests of their citizens at heart, and consequences where they do not. These are rights to be defended.

Devolution and the West Lothian Question - Part 3

Out of interest I wrote to the Prime Minister about the Very Simple Solution set out in Part 2. I was not naive enough to think it would have much effect and I was expecting no more than a simple acknowledgement and a "thanks but no thanks". However, what I received in reply was the Ministry of Justice's justification for the current status quo. The correspondence, as it stands at present, can be viewed here. (Update: on this correspondence see also Part 4 and Part 5)

I cover it now because the MoJ's arguments presented in the correspondence seem to me to be so weak, even after allowing for the fact that they are no doubt based on the Ministry's standard "scripts" it uses in correspondence on devolution.

Ministry of Justice

The MoJ have in the course of the correspondence put forward three justifications for the status quo. These are:

• any rearrangement of voting at Westminster in consequence of devolution would divide the UK and provide two classes of MPs

• things decided for England only on matters devolved elsewhere could nonetheless affect its neighbours, thus entitling them to vote on them

• around 85% of the MPs at Westminster represent constituencies in England, and the occasions where a UK government does not have a majority in England are rare. (Although they do not say it, presumably an underlying point is that back-bench revolts are also relatively rare.)

Dividing the UK

This argument seems the strangest of all, as it is in the nature of devolution that it divides the UK on devolved matters: that is its purpose. As at present constituted, devolution also provides two classes of MP, namely those who can vote on all matters affecting their constituents and those who cannot.

The fact of the matter is that like it or not devolution has, on devolved matters, broken the sharing and pooling of legislative and executive authority achieved by the Acts of Union.

The only answer to this argument of the MoJ would be to abandon devolution entirely. This would destroy the hard won peace process in Northern Ireland (probably Tony Blair's finest legacy), and is certain now to be politically unacceptable in Wales and Scotland. It is too late for the MoJ to have these second thoughts.

As regards my proposed solution, as mentioned in Part 2 it would not in fact prevent members for constituencies outside England voting on England-only matters at all stages of the Bill, including third reading so far as concerns the requirement that to be passed the Bill would need to have the approval of a majority of the members for the whole of the UK (in addition to the requirement for a majority of members at third reading representing the areas to which the Bill or part is to apply).

Things decided for England only will still affect its neighbours in the UK

The MoJ offer as an example the fact that under the Barnett formula a decision to spend money in England has a "knock on" effect for those in Scotland, who will automatically receive a proportion of the expenditure in the block allocation to the Scottish Government. This gives rise to two thoughts. First, is it seriously suggested that members for Scottish constituencies would want to decide an issue for England only not on its merits for the people who would be subject to the decision in question, but instead in order to reduce or increase expenditure in Scotland? It seems very far-fetched, but if that were true, the principles of good government would dictate that it would be a reason for them not to have the final say on the issue, rather than to have it. It would also suggest that what should be changed are the funding arrangements.

Secondly, one likely outcome of the Calman Commission is indeed that funding to the parts of the UK with devolved institutions will change, maybe to an arrangement for assigned revenues (Scotland to get back some categories of the tax revenue it generates) plus a needs-based top up. If that were done, the link is removed - does this mean that the government would then be in favour of a solution to the West Lothian Question?

Probably not¹, which raises the question what other things may have the suggested effect. If there are any, one other curious property that these other things must presumably possess is that when decided for Scotland, Wales or Northern Ireland only they do not have any analogous reverse effect on England, because one result of devolution is that, by design, members of Parliament for constituencies in England do not have a say on decision making in the reverse direction on devolved matters outside England.

Cases where UK governments do not have a majority in England are rare

Here, for me, is the rub. 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.

This may turn out to be the SNP's best hope. We have of course seen it recently on such matters as top-up fees and some aspects of foundation hospitals, but these require a significant back bench revolt to occur. The situation becomes much more serious were it to happen regularly.

As mentioned in Part 2, the pre-disposing electoral outcome at Westminster for this to happen in its starkest form - a working majority or working coalition in the UK but no majority (or coalition majority) in England (or in England and Wales prior to an Assembly Act referendum) - has according to MoJ's correspondence occurred three times with respect to England since 1945. Given the risks to the union that this would cause post-devolution, it seems to me to count as less than "rare". As I also mentioned in Part 2, the probabilities will have slightly changed since the period up to 2005, because at the 2005 election Scotland returned only slightly more members per head of population than England, rather than nearly 20% more before 2005, but that levelling of the playing field will be likely to be offset by the collapse of Tory representation at Westminster for Scottish constituencies and (to a lesser extent) Welsh ones over the last two Parliaments. The fact of the matter is that at some time or other it will indeed happen again, but this time in the post-devolution world.

Furthermore, if one considers also the case of a government with a working majority in the UK but only a small majority prone to reverses in England (or England and Wales) on controversial issues, this raises the probability of problems arising further. This is difficult to analyse and requires taking a gamble on how many "top-up" fee type revolts the system can stand and how often.

An argument about probabilities in any event cuts both ways. If it were an infrequent event, then acceding to the Very Simple Solution should pose no more worries than not acceding to it.

I hope it is not the case that the Labour party are willing to put the future of the union in jeopardy for their own perceived electoral advantage. I am willing to give them the benefit of the doubt, but in my view they will need to find solutions, rather than pretend the issue does not require an answer.


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¹ There is a natural advantage to a Labour party administration relying on its Scottish members in the Commons, given that the Conservative party are down to their last member in Scotland (and had none at all in the preceding Parliament).

Devolution and the West Lothian Question - Part 2

For the reasons mentioned in Part 1, I think a solution needs to be found to the West Lothian question if the long term future of the United Kingdom as a political entity is to be assured. In my view current arrangements are, in the long term, simply unsustainable.

However, there is more time to deal with the point than the representational principles to which I referred in Part 1 might lead one to believe. Although I have never seen this articulated in discussions of the West Lothian Question, in the legislative sphere there are two schools of thought:

• The "how dare they" school - this objects to any role for members at Westminster on matters which, in their constituencies, are devolved to another legislature, whether speaking in debates, putting down amendments or voting. (Its proponents are pragmatic though in the sense that they take the Sewell Convention seriously, as they should.)

• The pragmatic school - adherents of this school are not too fussed unless the voting of a particular member at Westminster on a matter devolved in the member's own constituency has a decisive effect in England or (until a successful Assembly Act referendum) Wales.

The "how dare they" school would also automatically object to members for, say, constituencies in Scotland taking office as ministers on portfolios now having England-only scope at Westminster, such as health, local government, education, town and country planning, railways and roads. The pragmatic school may or may not do so. Some may feel that it does make a pragmatic difference, because a member for a constituency outside, for example, England will have her constituents' interests at least equally in mind when administering policy, rather than only the interests of those for whom she is making decisions, and might be less mindful that she will have to face her constituents on her decisions at the next election (she won't).

The "how dare they" school, relying on general patriotic sentiment, is likely to become more important over time as the consequences of devolution feed through into national consciousness in England. It goes without saying that a failure to deal with the pragmatist's view on controversial issues will give a substantial boost to the "how dare they" approach should the scenario described below arise.

The pragmatist's view

In the pragmatist's view, the West Lothian Question in its legislative form is not an issue unless the voting of a particular member at Westminster on a matter devolved in the member's own constituency has a decisive effect on the making of laws in England or (until a successful Assembly Act referendum) Wales.

The pre-disposing electoral outcome at Westminster for this to happen in its starkest form - a working majority or working coalition in the UK but no majority (or coalition majority) in England (or in England and Wales prior to an Assembly Act referendum) - has according to MoJ's correspondence referred to in Part 3 occurred three times with respect to England since 1945. The probabilities will have slightly changed since the period up to 2005, because at the 2005 election Scotland returned only slightly more members per head of population than England, rather than nearly 20% more before 2005. However, that levelling of the playing field will be likely to be offset by the collapse of Tory representation at Westminster for Scottish constituencies and (to a lesser extent) Welsh ones over the last two Parliaments.

If one considers also the case of a government with a working majority in the UK but only a small majority prone to reverses in England (or England and Wales) on controversial issues, this raises the probability of problems arising further.

I refer to some of these points again in Part 3. The purpose of introducing the pragmatist's view here is that it is relevant to possible solutions.

A number of solutions to the West Lothian problem have been suggested, from the establishment of a separate Parliament for England equivalent to the Scottish Parliament and Northern Ireland Assembly (with the giving of immediate Assembly Act powers for the Welsh Assembly under a joint referendum with an English referendum); to a modification of MPs' voting rights in the Westminster Parliament; to some form of regional government within England; to reducing representation at Westminster for devolved areas.

Regional government

Devolved regional government in England is certainly possible. A regional government and parliament for, say, the North, the Midlands and the South, based on the Scottish or Welsh model with real governmental functions and some legislative powers, is doable, might be attractive to those in the north of England at least (and also elsewhere if they were given an opportunity to express a view on what region they thought they were in), and would result in the introduction of something approaching federal government within the UK.

The problem is that that level of full-blooded regional devolution within England is unlikely to occur: whilst Whitehall, and Westminster career politicians, are reluctantly willing to give up Scotland, Wales and (for historical reasons) Northern Ireland, it is highly improbable that they will readily give up England, which they see as the political prize and on which their careers and route to power depend. It is probably even more unappealing to David Cameron (and Gordon Brown) than are sour little Englanders. In England as a whole there may not in any event be a majority in favour of carving the country up in this way.

If done properly with genuine and real devolved powers, personally I would like it, but I am realistic enough to know that without a significant change in political culture it is not going to happen.

Mini-devolution on the Prescott lines with assemblies covering smaller areas with very limited executive or policy forming powers (and no legislative powers) lacks any significant public support, relies on arbitrary boundaries not representing local loyalties, and is based on the conception that the presence of the Mayor of London and London Assembly, which together comprise a reincarnated GLC with a few knobs on, means that the West Lothian Question is no longer an issue for those living in Greater London. It was a nice try on John Prescott's part, and has the advantage of not threatening the political establishment, but is probably doomed to failure first as unwanted and secondly as not addressing the problem. Come the man, come the policy.

An English Parliament

Whether there should be an English Parliament generally generates more heat than light. The argument traditionally ranged against it is that an English Parliament would command such a large proportion of the UK by population and economic activity that it would dominate. I have never wholly got to grips with that argument, as viewed on those terms England dominates already, so no change there. Whilst some, but by no means all, polls seem to show that more people in England want it than not, it is not clear that this is more than a relatively unformed preference (which is probably why polls differ on the point), but since all mainstream parties oppose it, in the short to medium term we are unlikely to find out either way.

In its favour, which is why it might well happen in the long term (but that means long term - 30 years maybe), it does not fracture structures in the same way that full-on regionalisation would. One can see the existing political forms transferring relatively seamlessly into English institutions. Also in its favour is that it brings the West Lothian Question to an end at a stroke, including dealing with the "how dare they" school of objection.

A significant problem (from my perspective) is none of the above - it seems to me to create another layer of bureaucracy without significantly driving down decision making to any degree. In short, there would be more people to spend taxpayers' money on making themselves feel important. Do we really want both Westminster (UK) MPs and MEngPs politicking around at our expense - I don't. It is easy to add bureaucracy, and much more difficult to remove it.

Reducing representation at Westminster in devolved areas

The idea here is that Scotland would return less members to Parliament per head of population than England, and ditto Wales if a successful Assembly Act referendum were held.

This is precedented - it was the solution adopted when the Stormont Parliament was established in 1920 until direct rule in 1972. People in Northern Ireland returned less members per head of population than in other parts of the UK.

The main objection to this is that it misses the mark, by still giving (albeit a lesser number of) members' voting rights in England on devolved matters, whilst also inadequately representing the parts of the UK where there are devolved legislatures on UK reserved issues such as UK taxation, energy supply, defence and foreign affairs. These weaknesses seem to me to be fatal.

Either of the other three possible solutions seem much to be preferred.

Revised voting arrangements at Westminster

This is the "English/Welsh votes for English/Welsh laws" solution. It is favoured by the Conservatives in some form, it appears. Kenneth Clark has chaired a working party with proposals which reported in July this year (Report of the Conservative Task Force "Answering the Question: Devolution, the West Lothian Question and the Future of the Union").

The Kenneth Clark proposals, which involve restricted voting at Public Bill Committee and Report stages, seem to me to be too complicated, and whilst I regard the current government's arguments for the status quo as poor (see Part 3), there does seem to me to be some force in the point made by others, which the Ministry of Justice do not make in that correspondence (perhaps because I was not proposing it), that they would encourage or induce a Parliament within a Parliament. They are similar to the "in and out" proposals examined at the time of (unsuccessful) Bills for Irish home rule at the end of the 19th century, except that all members of Parliament would participate at second and third reading stages.

Whilst that is not necessarily wrong - it is difficult to believe that new political forms could not in due course develop to accommodate them - the British constitution is intensely practical and it seems better to try out more straightforward solutions and see how they work when put to the test.

I have a Very Simple Solution (TM), which is to borrow from the precedent of the House of Lords, namely to confer the power to delay legislation for a session.

I think an arrangement could be devised that if at third reading a particular Bill or separate part of a Bill were not to receive the approval of the majority of members for the countries to which the laws are to apply, then it could only be passed by enactment of the same Bill or part in the following session. That would allow the government to govern, whilst also respecting the position of those in England or Wales and their representatives. This approach may possibly also need to be applied to the Commons Consideration of Lords Amendments stage of Bills originating in the Commons, by taking a further "in principle" vote at that stage, but that is a matter of finesse.

Those who get particularly upset about the West Lothian Question will probably argue that a vote at third reading should be decisive, without leaving the government the opportunity of enacting the same legislation against the wishes of the majority in the following session. I am relatively agnostic about this - forcing a Bill rejected by the Lords through under the Parliament Act is a rare occurrence, and were it to happen in relation to England and/or Wales under my proposal the electorate in England or Wales would be likely to take notice of it at the next election; the government would therefore be expected to have to come up with a pretty good explanation when doing so. In my view whether a third reading vote should be decisive or be subject to being overridden in the next session should be decided on what would best hold the union together and minimise resentment between people in England and people in Scotland (and elsewhere in the UK) caused by asymmetrical devolution.

Looking at the point from a wider perspective, on the one hand, providing a "Parliament Act" kind of procedure would lessen the prospect of a Parliament within a Parliament developing if that were thought to be undesirable - at the end of the day the government would be able to call the shots, where it really wanted to. On the other hand, not allowing rejection of a Bill or part of a Bill to be overridden in the next session would encourage governments in office and oppositions to develop a minimum level of consensus as employed in many other parts of the European Union. That would, it seems to me, be healthy, but with Whitehall and Westminster so used to the hard wiring of the legislature with the executive in the UK as to be part of their DNA at present, that may require too much political sophistication too soon.

It should be noted that either approach to my Very Simple Solution would still give members in Scotland and Northern Ireland a full say on England or Wales-only legislation, and a Bill or separate part of a Bill could still not pass at third reading without a majority of UK members. That might also raise the ire of those particularly upset about the West Lothian Question, but neither could it pass at third reading first time around without there also being a majority within the part of the UK to which the Bill applies.

The extent of a Bill or separate part of a Bill can be certified by the Speaker. It used to be done before devolution for the purposes of the Scottish Grand Committee. Various drafting conventions about how a Bill is divided into parts may be required so as to enable separate treatment in this way, but this is nothing that the flexibility of Parliamentary procedure (and the excellent drafting skills at the Office of the Parliamentary Counsel) could not manage.

This proposal might, depending on taste, also be accompanied by a convention that only a member for an English constituency should be a minister in the Commons for an England-only portfolio - a kind of reverse Sewell Convention. That would not be necessary for my proposal to work however.

Devolution and the West Lothian Question - Part 1

The background to devolution

The so-called "West Lothian Question" arises from non-uniform devolution within the United Kingdom, although as the name suggests it originates from devolution proposals for Scotland (in fact, those current in the 1970s).

Although Scotland has for over a thousand years retained (and still retains) its own legal system, the union with England and Wales made by the Acts of Union of 1707 instituted a sharing of legislative and executive sovereignty with England and Wales in the Parliament at Westminster. The Scotland Act 1998 changed this by establishing the Scottish Parliament with legislative autonomy for all but certain "reserved matters". This includes legislative power in health, education, transport (except air transport), local government, planning and development, and most areas of the criminal law. The 1998 Act also established the Scottish Executive, which now calls itself the Scottish Government since the Scottish National Party became the largest party in the Parliament following the last Scottish election in 2007 (albeit without a majority).

Northern Ireland has had a Parliament at Stormont since the enactment of the Government of Ireland Act 1920, further formalised with the creation of the Irish Free State in 1922 (the progenitor of the present Republic of Ireland), although there was direct rule from Westminster from 1972 because of civil strife between the communities. The Northern Ireland Assembly is the latest incarnation of the Stormont Parliament, being established by the Northern Ireland Act 1998 following the signing of the Good Friday Agreement. It has a similar degree of legislative autonomy to the Scottish Parliament, and indeed somewhat wider powers if the Secretary of State for Northern Ireland consents (with the Secretary of State's consent it may enact legislation on reserved matters provided they do not fall within a special category of reserved matters described as "excepted" matters).

Wales has constitutionally been considered to be a part of England for most purposes since the 15th or 16th century and certainly following the Glorious Revolution of 1688, and since then has had a single legal system with England. However, under the Government of Wales Acts of 1998 and 2006, there is now a Welsh Assembly with limited legislative power to pass Assembly Measures (the exercise of which is the subject of Orders in Council under Part 3 of the 2006 Act) and an Assembly Government. Under Part 4 of the 2006 Act the Assembly may, by a vote of two-thirds of all its members, hold a referendum in Wales under which it may acquire wider "Assembly Act" powers similar to those of the Scottish Parliament and Northern Ireland Assembly. The Assembly Government is at present a coalition of the Labour party and Plaid Cymru (the Welsh nationalist party), under which the Labour party has committed to support the holding of such a referendum by 2011. Sensing a stirring of the pot in England, it may well renege on that, and even if it doesn't a change of UK government is quite likely before then.

Formally, the Westminster Parliament still retains legislative power for the whole of the United Kingdom even in relation to devolved matters, but it does not in fact legislate for Scotland on devolved matters without the consent of the Scottish Parliament by virtue of the "Sewell Convention" - to the point that in 2004 the UK government apologised to the Scottish Parliament for legislating in Scotland on a minor housing matter without consent by oversight (an Act concerning mobile homes was amended in the UK Parliament thinking it applied to England and Wales only when it didn't - the irony of Scottish members voting on supposedly England/Wales-only legislation seemed to escape everyone). That consent is now rarely given in relation to Scotland on other than private member Bills (which normally make no progress) and would not be given in any event by the Scottish Government unless it were to agree with the proposals of the UK government. Similar principles apply in Northern Ireland while there is a functioning government under the 1998 Act in effect.

The West Lothian Question

There is no equivalent devolution for England. In addition members of the Westminster Parliament for Scotland, Northern Ireland and Wales retain full competence to decide laws in England, and to hold office as ministers in England in relation to matters wholly devolved in their own constituencies.

In short, members of Parliament for constituencies in Scotland, Wales or Northern Ireland may take decisions for England, both as legislators and as members of the executive branch of government, even where they no longer do so for their own constituencies because of devolution. This is the issue referred to as the West Lothian Question (although it could equally be called the West Belfast question or, particularly following a successful Assembly Act referendum, the West Clwyd question).

From the perspective of representational democracy this gives rise to two problems. First, it means that members of Parliament may take decisions as legislators or as members of the executive for which they bear no accountability to their electorate (their constituents) because they do not affect their electorate. Secondly, and this is really the other side of the same coin, people in England may be made subject to laws or decisions on matters devolved elsewhere which are opposed by the majority of their representatives in Parliament.

This might be thought of as unfair (and most reasonable people would I think recognise that it is), although as discussed in Part 2 it operates on two different levels, namely those of principle and pragmatics. However, it should be realised that from the nationalist point of view, it is not necessarily a unique unfairness within the British constitution. Under the various Acts of Union, voluntarily assented to in the case of Scotland, some may have perceived an unfairness to the extent that people in England would have been able by their numerical superiority to impose policy on other nations in the UK. I suspect that some proponents of the current devolution 'status quo' view current arrangements as a redistribution of unfairnesses, by creating circumstances where people in other parts of the UK can in certain circumstances impose policy on people in England in areas where they are the sole arbiters of policy for themselves - a kind of balancing of two injustices such that at least they reciprocate in some way satisfying to them.

However, this is a particularly tribal view of the United Kingdom. It assumes that people in England have some common political animus that might make them to want to dominate, and that other parts of the UK have a corresponding animus with respect to people in England - that we are not "in it together". It seems to me to be a weak argument for tolerating the obvious democratic deficiencies of the current arrangements. It would also mean that there is a constitutional instability within the United Kingdom which threatens the cause for it to exist in the first place.

Privacy, human rights and horizontality - unacceptable judicial activism? (aka the Bluffer's Guide to Press Freedom)

Summary

Mr Justice Eady said the following in his judgment in Max Mosley's privacy case against the News of the World (Mosley v News Group Newspapers Limited), when giving judgment in July this year, no doubt knowing what was likely to lie ahead in the way of criticism of judicial activism:

"It is not simply a matter of “unaccountable” judges running amok. Parliament enacted the [Human Rights Act 1998] which requires [the privacy values of the European Convention on Human Rights] to be acknowledged and enforced by the courts."

Some commentators, particularly some politicians and newspapers editors, have indeed expressed concerns about judicial activism. Earlier this month in a speech to the Society of Editors, Daily Mail editor Paul Dacre expressed the concern of some in the newspaper industry, describing Mr Justice Eady's decision as creating a new privacy law via the back door, without democratic accountability. In other words, he sees the court as creating new law in the sensitive area of press freedom which should be left to our elected representatives in Parliament. He gave a stinging criticism of the judge personally for judicial activism.

Is this unfair, and was Eady J correct to say that, so far as concerns the law, he was driven to this? Well in one way or another he was, whether (as he said) by virtue of the enactment of the 1998 Act, or by virtue of the ordinary common law principles of confidentiality as previously developed by the courts. The issue is really how far around the houses you need to go to get there. In privacy, the courts have taken the scenic route rather than the direct route, as explained below.

Is then the legal system wrong? Possibly, depending on what it is thought the judicial branch of government is there to do, and how much scope it is thought it should have to develop the common law (a common law of which Mr Dacre spoke approvingly incidentally). However, it is worth noting that the judgment, and the one in the earlier Campbell case (see below), brings UK jurisprudence on privacy into line with that of most other civilised countries.

Horizontality

Who would guess that what lawyers call horizontality could be so exciting? Horizontality is not about whether one should adopt the missionary position, but whether the rights set out in the Convention and its subsequent protocols are enforceable not just against public authorities (what is called "verticality"), but also directly between individuals or other private bodies without any further legislative intervention by Parliament being necessary ("horizontality").

The facts of the Mosley case, concerning an article in the News of the World involving his private life, have been well publicised and I will not recite them here. Amongst other things, the newspaper alleged that there was a Nazi theme to the event in question, which Mr Mosley strongly denied, and which Eady J concluded in his judgment was unfounded - this might therefore have grounded an action in defamation, but the proceedings in question were separate ones for breach of confidentiality and privacy. Eady J held that there was an unacceptable and unlawful invasion of Mr Mosley's privacy, contrary to Article 8 of the European Convention on Human Rights, which was not justified in applying the public interest test by virtue of him being President of the FIA.

The 1998 Act incorporates most of the Convention into UK law (it applies throughout the United Kingdom). Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence." In privacy and defamation matters, this needs to be balanced with Article 10, which gives a right to freedom of expression, which applies to the press as to anyone else and under which a public interest test is to be applied.

Section 6(1) of the 1998 Act provides that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". It is fairly clear what this means for, say, the local council deciding whether to grant planning permission or to take a young child into care. It is also reasonably clear what this obliges public authorities to do when acting under statutory powers: under section 3(1), so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. Where it is not possible to do so, the court can make a declaration of incompatibility for Parliament to pick up and deal with.

But by virtue of section 6(3)(a), "public authority" includes a court or tribunal. What does this oblige the court to do, and in particular does it oblige the court to provide new rights to sue where one individual infringes the Convention rights of another individual in a matter not otherwise regulated by statute? When the Bill for the 1998 Act was being passed, the Government stated that it did not have that effect. It is to be noted in particular that Article 13 of the Convention, giving the right to an effective remedy, is not a Convention right applied by the 1998 Act and therefore is not a matter binding the court under section 6(1). That remains with Parliament, to the extent to which it is not captured by the Articles which are applied by the Act.

The Campbell case

Some legal commentators on the Mosley litigation have said that the chicken flew the coup in Campbell v Mirror Group Newspapers Limited [2004] UKHL 22. This involved an article about Naomi Campbell in the Mirror newspaper. The privacy case arising from the article was heard, and won by Ms Campbell, in the High Court, appealed successfully by the newspaper to the Court of Appeal and then successfully further appealed by Ms Campbell in the House of Lords. It was a split decision in the Lords (3-2) on the issues whether the public interest test for publication was satisfied and whether the information had the necessary quality of confidence, but their Lordships were more or less agreed on the law to be applied to the case. In fact it is apparent from the judgment that the chicken flew the coup when the Human Rights Act 1998 was enacted, and indeed even before then.

The most widely accepted view of the current state of the law on the Convention, as applied by section 6(1) of the 1998 Act, is probably best summarised in the judgment of Baroness Hale in the Campbell case at paragraph 132, where she said:

"The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights."

Given that at common law there is indeed a pre-existing cause of action for breach of confidentiality, held to apply when "the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential", then as if by magic and a little circularity, Article 8 privacy law had landed.

Others of their Lordships reached the same conclusion on the law albeit by slightly varying routes.

Lord Hoffman (one of the two dissenting judges in the Lords) at paragraph 49 began with the earlier traditional understanding that:

"Even now that the equivalent of article 8 has been enacted as part of English law [by the 1998 Act], it is not directly concerned with the protection of privacy against private persons or corporations. It is, by virtue of section 6 of the 1998 Act, a guarantee of privacy only against public authorities. Although the Convention, as an international instrument, may impose upon the United Kingdom an obligation to take some steps (whether by statute or otherwise) to protect rights of privacy against invasion by private individuals, it does not follow that such an obligation would have any counterpart in domestic law."

However he took the view that there "has been a shift in the centre of gravity of the action for breach of confidence" at common law, which has assimilated similar principles, and that there was now no justification for applying different principles between an individual and a public authority on one hand under the 1998 Act, and between two individuals on the other hand at common law.

Similarly, for Lord Nichol (the other dissenting judge) at paragraph 18, by virtue of the ability of common law confidentiality to move at its own pace and to incorporate Convention privacy principles quite apart from the 1998 Act:

"... it is not necessary to pursue the controversial question whether the European Convention itself has [a] wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of practice and procedure. It is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities."

Where we are

The truth is that the common law position on confidentially and privacy had been developing long before the 1998 Act was enacted, from its origins in an action for breach of trust where information is supplied by one person to another on the understanding of confidentiality, to a duty of confidentiality (and indeed privacy) where it is a just and reasonable expectation between those concerned that a duty of confidentiality should arise. Given that in the 1998 Act Parliament had seen fit to apply the privacy principles under the Convention as between a private person and a public authority, there seemed no reason (in the courts' view) why the common law regarding confidentiality should not have similar effect as between individuals.

Such development of the common law by reference to Convention principles has been true of other areas, such as defamation and the "responsible journalism" branch of qualified privilege (Reynolds v Times Newspapers Limited [2001] 2 AC 127), which has been informed but not driven by Article 10 of the Convention. In fact, the Reynolds case shows that the application of Convention rights is not a one-way street against press freedom, as it extended the range of defences available to the press in an action for defamation.

The other point to note is that even if one were to take the view, as some do, that the law relating to the freedom of the press is too sensitive to be one to be developed by judicial initiative, the UK is still a party to the Convention. What would change would be the venue - the proceedings would be against the UK in the European Court of Human Rights for failing to provide an adequate remedy for Convention rights under Article 13. Were Parliament to fill the gap by providing that remedy, for as long as the UK remains a signatory to the Convention it is difficult to see that they could or would do anything other than in effect apply Articles 8 and 10 of the Convention horizontally, as at present done by the courts by judicial initiative. And why not decide it at home rather than in Strasbourg anyway?

Lord Nichol's judgement is the one which most explicitly leaves open the possibility of deciding that section 6 has a wider substantive effect in mandating the horizontality of Convention rights than has up to now been established in Campbell and discussed by Baroness Hale. But given that it is no longer a live issue in privacy cases because of the development of the common law, that will have to await some new area of litigious activity. Much hangs on the significance (if any) to be placed on the fact that the 1998 Act does not apply Article 13 of the Convention - so for whom is that Article going to be unlucky?

Watch this space.

Trailer

The contents of this commentary have some analogy with the balance between the natural and prerogative powers of the Crown on the one hand, and those conferred on the Crown by statute on the other hand. The government has been consulting on proposals for the further regulation of the prerogative by Parliament and has promised a Bill, presumably to be introduced in the 08/09 session (ie very shortly). I will comment on that, and on the Crown's natural powers and their background, including "Everyman's Guide on How to Declare War", when we see it. Other topics I hope to cover (d.v.) are devolution; contingent and contingency fees and "loser pays" in civil litigation (otherwise known as the personal injury circus); and distributive intellectual property licences (sometimes called "copyleft licences") which I think will make a big impact in the next decade, together with a general commentary on the politico-legal issues du jour as they arise.