Calman Report

The Calman Commission reported yesterday. The report, although 268 pages long, is quite a good read, with a perceptive analysis of the difficulties of achieving stable devolution to individual nations within the UK such as Scotland, given the way in which the UK has taken shape since the Acts of Union of 1707 and the unequal sizes and economic resources of its constituent parts.

The Calman recommendations

The report will be a disappointment for those hoping for a step on the road to Scottish independence. Gordon Brown has described it as "bold and realistic". Realistic, perhaps; but bold, no. From the unionist perspective I would characterise it is a clever and well conceived sleight of hand.

The report proposes some additional devolution of powers in a few areas: some further road traffic responsibilities such as alcohol limits and traffic speeds are to go to Hollyrood, together with the control of air powered weapons. Some other rather esoteric matters are proposed to go back to Westminster, such as company liquidation and the regulation of health professionals. But the headline change proposed is that national rates of income tax as fixed by the UK Parliament should be 10% lower in Scotland than in the remainder of the UK, with the Scottish government and Parliament having the power to make up that missing 10% (and more) with a Scottish income tax to whatever degree it thinks fit. In addition, it is proposed that the Scottish government should be able to fix its own rates of stamp duty land tax on property transfers, together with its rates of airport passenger tax, aggregates levy and landfill tax.

As a corollary of this, it is proposed that the Scottish government is also to be able to borrow for capital items to be financed out of these new revenue powers.

Why do I describe this as a sleight of hand? I do so because the Scottish Parliament already has the power to vary the rate of income tax applying in Scotland up or down by up to 3%. This power has remained dormant and unused: no Scottish government has wanted to make active choices between cutting public expenditure and taxation on the one hand and increasing taxation and public expenditure on the other hand. Implementation of the Calman proposal would force the SNP in government to show its hand on whether it is a low tax or high tax government, or whether it is to "cop out" of separate national aspiration by following the rates which are set at Westminster for the remainder of the UK. In short, it forces the making of active choices, and it does so without the Scottish government being able to make up the "missing 10%" by imposing a rate of tax which impinges proportionately more heavily on higher rate payers than on lower rate payers. (Adopting Dennis Healey's famous epithet as Chancellor, it cannot adopt a policy of funding public expenditure by taxing higher earners "till the pips squeak".)

In consequence of the diversion of the top 10% of income tax (or whatever lesser or greater amount the Scottish parliament chooses to fix) directly to the Scottish government, the block grant allocation from UK tax sources will be reduced. Some reports by newspapers with mathematically challenged correspondents have reported that one consequence is that less money is to go from taxpayers south of the border northwards. This is most unlikely in the short term, because the Commission also recommend that the Barnett formula should be retained until an acceptable needs-based formula for block grant allocations for the UK as a whole is arrived at. By far the most likely outcome is that the block grant to the Scottish government from the Barnett formula will be reduced by exactly the net amount of the missing 10% of UK income tax raised in Scotland that would have gone to the UK exchequer in the first year in which the new scheme comes into operation. In terms of UK contribution to public expenditure in Scotland, at the outset there is therefore likely to be no change at all, and in theory at least the "Barnett squeeze" which was intended to bring funding to different parts of the UK more into line is likely to become even less effective than it already is.

One matter highlighted in the report, reflecting in a more accessible way the Scottish Government's own 2008 GERS report, is that Scotland has historically received marginally more in public funds from the UK exchequer than it has contributed to it by way of taxation, even hypothecating 90%¹ of North Sea oil and gas revenues to Scotland and 10%¹ to England. There was a period in the 1980s of both high oil prices and high North Sea production during which Scotland was a net contributor by virtue of its fossil fuel resources, but on average it has been in deficit. This analysis was ostensibly to show why transferring 90% of oil and gas revenues to the Scottish government (with a concomitant reduction in block grant) would not work in practice because of the volatility of oil prices, but no doubt the extensive treatment of this in the report is another nod to the unionist agenda by making it clear to people in Scotland what their choices are. The fiscal deficits are not so severe in terms of Scottish GDP that it would put me off independence if I were a Scot and keen on national self-determination; but in the event of independence significant work would be needed by the Scottish government to avoid difficult times when the oil does run out.

England

The report tip-toes around the issue of England. On the one hand, it says that the West Lothian Question is not for the Commission. One could question that, as part of its remit was to come up with devolution proposals which would "continue to secure the position of Scotland within the United Kingdom", and that could not be done without paying some regard to their effects on the remainder of the United Kingdom, including England. The more is devolved, the more are the matters affecting England on which the West Lothian Question will bite. Were the Commission to have proposed fiscal autonomy for Scotland for example, it is difficult to see how they could have remained oblivious to the effect of the West Lothian Question on taxation matters in securing the position of Scotland in the United Kingdom².

On the other hand, whilst those wanting an English Parliament will be just as disappointed by the report as those wanting Scottish independence, it does venture into the position of England in ways that Gordon Brown will be uncomfortable with, by suggesting that England is and has a political identity which is more than just a collection of regions:

"2.13 It is not for us to discuss where or how power might be decentralised or devolved in England – whether, as has been proposed in the past, to regional level, or by giving more power to local institutions. Nor is it for us to discuss how England’s laws should be made. But, however such ideas might be pursued, they will not affect the fact that England, though larger than Scotland, Wales or Northern Ireland, will remain a nation with a single political identity which it has maintained for at least as long as Scotland’s. It is of course possible to divide the UK into “standard regions” for administrative and statistical purposes. Scotland is one of those regions, as are Wales and Northern Ireland. But the standard regions in England do not have the same sort of political identity as Scotland. This fundamental aspect of the Union will always remain, and must not be ignored in its territorial constitution."

Gordon Brown will also be disappointed by the suggestion that his project for a written constitution, put on the back burner since he first proposed it in 2007, should have an English dimension:

"2.14 Because our constitutional arrangements are unique, it does not make sense to take ideas or institutions from other countries and apply them directly here. ... Devolution to Scotland (and Wales and Northern Ireland) created political institutions that exercise many of the powers of central Government for a significant proportion of the UK. That inevitably has meant that the governance of the rest of the UK cannot continue unchanged. [my emphasis]

2.15 It is not sufficient for Scots (or indeed Welsh or Northern Ireland citizens) to dismiss this as simply a problem for the English: the internal arrangements of the Union are a matter for all of us. The UK now has a territorial constitution, and it needs, in our view, to be more fully and clearly set out."

This is quite surprising, given the strong Labour influence in the make up of the Commission, and is concerning for the government in coming so soon after similar comments in the recent report of the Select Committee on the Ministry of Justice entitled "Devolution - a decade on" (comments here). The current government, and Gordon Brown in particular, will no doubt try to bury this as quickly as it and he are able.

However, given that it is likely that the Conservative party manifesto for the next general election will propose some form of Grand Committee for England-only or England-and-Wales-only legislation, the question does arise whether the Conservatives will put more emphasis on the West Lothian Question in the lead up to the election should polling show a closer contest with Labour than at present, so that every vote counts. (Not that I think an English Grand Committee is a particularly workable answer - my proposal concerning Third Reading here seems to me to be a much better solution.)

______________________________________

¹ Or is it 83% and 17% respectively, the figures used for the geographical allocation between Scotland and England in the Scottish government's 2008 GERS report, based on what would be international borders in the event of independence? It is not clear in the report how the hypothecation has been made.

² In fact, the Calman proposal for MSPs in the Scottish Parliament to set income tax, stamp duty land tax, airport passenger tax, aggregates levy and landfill tax for Scotland still raises, in a more attenuated form, issues about the relationship between taxation and representation when determining these taxes for the remainder of the UK, which I will cover in a later blog article.

Update: Article on taxation and representation here.

Voting reform

There is apparently to be a statement today by Gordon Brown about constitutional reform, which will include proposals for exploring voting reform by the so-called "National Council for Democratic Renewal", which is not a national council at all but just a committee of Ministers of the government.

Some on the right have regarded this as a last act of desperation by the Prime Minister in order to keep Labour in power. There is probably some force in this given that his initiative comes on the heels of a historically poor performance by Labour in the county and European elections last week. If that is not Gordon Brown's real purpose then it gives us another example of his inability to read how his actions appear to the world outside, because most will perceive his motives to be suspect.

The Liberals may feel that this is their big opportunity to pursue proportional representation. Proportional representation is good for any small party which can place itself as a party of the centre, because it would result in a string of coalition governments, and a party of the centre forms the obvious coalition partner for two larger parties with more opposed political leanings such as the Conservatives or Labour. The Liberals could expect to be in power as junior partners for a number of years - that is, until new political groupings were to emerge as politics splinters, as in due course it would and does under proportional representation.

However, rather than proportional representation, the only form of voting reform which it appears that the Prime Minister could get through his own cabinet is some kind of single transferable voting system, sometimes also called alternative voting because this system allows a voter to choose an alternative candidate should her main choice (first preference) be knocked out because of a lack of first preference votes. Full-on single transferable voting enables subsequent transfers to third and fourth preferences and so on should earlier preferences be knocked out, but this is something of a purists' refinement which has little practical impact. However it is implemented, it is not proportional representation; but some right wing commentators still see it as a devious plot by the Prime Minister to keep the Conservatives permanently out of power.

I think this is a misreading, or at least an exaggeration. Boris Johnson was elected Mayor of London under this system in 2008 in an area (Greater London) which historically is by no means friendly to the Conservatives, and he only received marginally less second preference votes than did Ken Livingstone, and at a time which was uninfluenced by the MPs' expenses scandal. Such limited polling evidence as there is suggests that just at present the Conservatives would gain more second preference votes from Liberal supporters than would Labour. This is not surprising given Labour and Gordon Brown's current unpopularity, but unfortunately there is little reliable evidence on the trends over the long term. One suspects Liberal voters may on average be slightly more attuned to Labour, but I also suspect that second preference support turns more to whoever is in opposition at the time. What it is likely to cause is a greater difficulty for a government in winning a second term, as it amplifies movements of political opinion amongst floating voters.

There is one further thing to be said about alternative voting: it has great dangers for the Liberals. It encourages the smaller specialist parties such as the Greens or UKIP as first preference one-issue "pressure groups", leaving voters secure in the knowledge that their vote will not be wasted because they can specify Labour or the Conservatives as their second preference. In the round, this would tend to reduce the vote for the Liberals rather than increase it.

The big losers of voting reform could well be the Liberals, and the gainers the one-issue pressure groups who would be given a platform. Be careful what you wish for.

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.

Political balls

In his play Julius Caesar, Shakespeare gave us the lines:

Cowards die many times before their deaths;
The valiant never taste of death but once.
Of all the wonders that I yet have heard,
It seems to me most strange that men should fear;
Seeing that death, a necessary end,
Will come when it will come.

That's because international football was not played in the sixteenth century, or this supreme explorer of the ups and downs of human existence would surely also have had to cover the England football team when considering apprehensions of death. I die a death whenever the England football team loses. I was in two weeks' mourning after England failed to qualify for Euro 2008. I strongly suspect that Shakespeare would have felt the same.

With the possible exception of Wales, each of the constituent nations of the United Kingdom are football nations. I enjoy watching six nations rugby, but it might as well be tiddly-winks compared with football, and I am pretty certain that most people in Scotland and Northern Ireland feel the same.

What the hell therefore is the (English) Football Association up to, and why do they seem so content to align themselves with the government's proposals for a British under-23 football team in the London Olympics of 2012. Gordon Brown has a Britishness agenda which seems to compel him to want to see Britain in everything, so I can at least understand where he is coming from when pressing for a British football team in the Olympics. I can even understand Sebastian Coe of the Olympic Delivery Authority, also now a politician (albeit from a different party), making himself blind to the consequences of his support for Gordon Brown's proposal, and as another mitigating factor probably his being a Chelsea supporter has resulted in him only having half a football brain left anyway.

But why is Lord Triesman, the current FA Chairman, the man supposed to be representing the interests of English football, taking Gordon Brown's agenda without quibble? I find it mystifying: possibly it is yet another example of how football and politics don't mix. Lord Triesman is a very able man, but let it be remembered that he is also now at heart a politician and was a junior Minister and government spokesman in the Lords until he resigned this week to avoid giving the impression to FIFA of there being political involvement in the 2018 World Cup bid.

The Scottish FA's analysis and leadership on this issue is completely right. The fact of the matter is that having four home nations separately represented in international football is an anomaly, which we are lucky to have and must guard jealously. We will only be able to do so for as long as we do not give FIFA a reason or excuse for reviewing the position. Fielding a British football team at the Olympics will give rise to a pointless hostage to fortune for very little benefit. Olympic football at the end of the day counts for nothing: it is the World Cup and the European Championship which are the pinacles of international football achievement for the home nations. It would be a tragedy to put at jeopardy English (and Scottish, Welsh and Nothern Irish) representation in world football simply so a few under 23s can run around a football pitch in the Olympics.

Nothing any individual member of FIFA says now makes any difference to this analysis. FIFA members come and go; international football goes on forever (or at least, until the sun becomes a red giant or there is earlier thermal runaway in the earth's climate). What is said by FIFA now will have very little impact on what is thought by FIFA in 10 or 20 years time. Politicians of all people should realise this.

My message is threefold:

Politicians: Keep out of football.

Gordon Brown: Even if you are not solely responsible, you have figured large in the ruination of our economy, please do not ruin football too.

The Football Association: Remember what and who you represent. Object wholeheartedly to this misconceived proposal by supporting the other home football associations in their opposition.

Iceland and terrorism powers

Most people will be familiar with the story or myth that the government used "terrorism powers" to freeze UK assets of the Landsbanki bank at the time of its collapse on 7 October last year, early in the current financial crisis now upon us.

Now time has passed and tempers have cooled a little, I want to look back at that, because it seems to me to be a wrong-headed view, and it distracts from some real issues concerning terrorism and civil liberties.

Terrorism

I am as concerned as many over the erosion of civil liberties, which has been justified in part by the government on the basis that it is a government's primary duty to keep members of the public safe, including safe against terrorist outrages. This is a false or at best simplistic analysis on a number of grounds. First, there is no such thing as "safe". Life only offers degrees of risk - degrees of risk about whether you are going to be run down by a car as you walk down the street, as well as degrees of risk about whether you are likely to be blown up by a terrorist when walking down the same street (the former is incidentally considerably more probable than the second). The government is not a one-issue pressure group and must reach a balanced judgement on policy. In this case the balance is between reducing the frequency of criminal killings (or at least, increasing the frequency of being able to mete out justice to those guilty of the killings) on the one hand, and the creation of an invasive "Big Brother" society on the other.

So, for example, the police in England, Wales and Northern Ireland (but not Scotland) have power to take compulsory DNA samples from those arrested and are thereafter under no obligation to destroy them even if the people concerned are subsequently found to be innocent or indeed are never even charged once the investigation is complete. The police now hold over 1.4 million such samples of which over half are from people who have not been convicted of any offence. I was disturbed to see Harriet Harman justify this on the Andrew Marr Show at the weekend on the ground that it assisted in the conviction of rapists. No doubt it does, and rape is indeed a horrible crime, but if the efficiency of obtaining criminal convictions is the sole criterion of policy then let's just introduce the police state now; and this is from a former legal officer of the National Council for Civil Liberties. Road accidents can also be avoided by adopting Pol Pot policies for the banning of all vehicular traffic and establishing a rural paradise. (As an aside, I was pleased when the European Court of Human Rights found in December that a blanket and indiscriminate policy of the kind the government has presently adopted on DNA retention is contrary to the European Convention.)

But I have never fully gone along with the public reaction against the action on the part of the government in protecting UK assets in the case of Landsbanki and Kaupthing. This reaction seems to be based on the proposition that the title of the "Anti-Terrorism, Crime and Security Act 2001" (which is the enactment which contained some of the powers used by the UK government) has the word "terrorism" in it. It also contains the words "crime" and "security". First a run down on some of the facts.

Landsbanki, Glitnir and Kaupthing

On 7 October the Icelandic government stepped in and took control of the Landsbanki bank because of the considerable excess of its liabilities over its assets. It announced that it would do all it could to protect the savings of the bank's Icelandic customers, but this commitment did not in its terms extend to its foreign savers. In addition, the UK government stated that the Icelandic government had been unable to confirm that it would meet its obligations to cover the first £16,000 of sums invested in the bank by foreign savers. There appears to have been, amongst other things, a telephone exchange¹ which included:

UK Chancellor: "So the entitlements the people have, which I think is about £16,000, they will be paid?"

Icelandic Finance Minister: "I hope that will be the case. I cannot state that or guarantee that now but we are certainly working to solve this issue."

Later on 7 October the Icelandic government also took control of another bank, Glitnir.

The UK government described the special treatment of Icelandic savers, and the refusal to give a straightforward answer to a straightforward question on depositor insurance, as "effectively illegal" (they were perhaps too nice to say that a failure to meet insurance obligations would be "effectively theft"), and the UK government clearly felt that more might be on the way. Frankly, the loss of savings already in Iceland was probably not a surprise to the government, and international defaults do from time to time occur at times of crisis. What it appears that the UK government feared was that such good assets of Landsbanki as it possessed in the UK, and assets of UK subsidiaries of the Kaupthing bank, would be siphoned off in the direction of Iceland, leaving UK savers in those banks high and dry. As any government would and should do in these circumstances, it looked at its options.

UK government action

There were a number of possible routes the UK government could follow to protect UK savers' assets from disappearing abroad, but the most straightforward with respect to Landsbanki and its Icesave operation (which did not operate via UK subsidiaries), and the one which presumably the government on legal advice considered was the most likely to limit the loss of UK savings, was offered by section 4 of the Anti-Terrorism, Crime and Security Act 2001. This provides:

"4(1) The Treasury may make a freezing order if the following two conditions are satisfied.

(2) The first condition is that the Treasury reasonably believe that—

(a) action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by a person or persons, or

(b) action constituting a threat to the life or property of one or more nationals of the United Kingdom or residents of the United Kingdom has been or is likely to be taken by a person or persons.

(3) If one person is believed to have taken or to be likely to take the action the second condition is that the person is—

(a) the government of a country or territory outside the United Kingdom, or

(b) a resident of a country or territory outside the United Kingdom.

(4) If two or more persons are believed to have taken or to be likely to take the action the second condition is that each of them falls within paragraph (a) or (b) of subsection (3); and different persons may fall within different paragraphs."

Acting under these powers, on 8 October the Landsbanki Freezing Order 2008 was made by the Treasury, freezing Landsbanki assets in the UK at 10.10am.

The Treasury shortly after made the Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008 under banking legislation, providing arrangements for the taking over and transfer of the assets of the UK subsidiary companies of Kaupthing to ING Direct NV (a Dutch company). Following the making of this order, Kaupthing went into administrative receivership in Iceland (it is in administrative protection but not technically bankrupt) - following the bursting of the Iceland bubble its only worthwhile assets were those of its successful overseas subsidiaries - and some other European countries also made transfer of assets orders of Kaupthing subsidiaries under their own banking legislation. Whether this was linked to fears about the flight of assets is not entirely clear, as the Financial Services Authority appears to have separately reported on 8 October that the Kaupthing subsidiary no longer met its threshold conditions for FSA authorisation due to lack of funding (something not related to its Kaupthing parent except to the extent that there would have been issues about the ability of the parent to further capitalise its subsidiary to bring it within the rules - it probably could not).

I have to say that, had the UK government failed to take emergency steps to protect UK assets in order to prevent them being exported to Iceland, then I think they would rightly have been subject to very substantial criticism. Faced with an Icelandic bank with substantial UK investors having become effectively worthless, an Icelandic government announcing investor protection arrangements only applying to Icelandic nationals, and the havering of the Icelandic Finance Minister over even meeting its insurance obligations at a time when every second counts in terms of capital movements, would have been extremely worrying. The discriminatory treatment against non-Icelandic investors was also probably contrary to the Icelandic government's obligations relating to the European Economic Area (both the Dutch and UK governments are of that view, disputed of course by the Icelandic government).

Icelandic view

Many people in Iceland, including the Icelandic government, seem to be upset about the actions of the UK government, and also at action taken by the Dutch government to protect their investors. The Icelandic government have abandoned proposals to take the UK government to court in the UK by way of judicial review for the freezing of Landsbanki assets, but say that they will bring proceedings before the European Court of Human Rights on Landsbanki. They say they intend to bring judicial review proceedings in the UK in respect of Kaupthing, but they are surely now out of time to do so.

One feels every sympathy with the predicament of the people of Iceland, who having had a significant proportion of their national economy built on a bubble have been victims of their bankers' irresponsibility and avarice to a considerably greater extent than have the people of the UK (and it has been bad enough in the UK); I can also understand why, given the predicament of the Icelandic economy, the Icelandic government might choose to abandon its obligations to those outside Iceland. However, watching UK assets disappear north-westwards is not an option. Furthermore, Part 2 of the 2001 Act (within which section 4 is situated) is not only or even primarily concerned with terrorism, but with economic damage, which undoubtedly would have been caused had there been an exporting of Landsbanki assets to Iceland. Part 2 is most definitely not intended for use in dealing with the proceeds of terrorism, as some have suggested (it is section 1, in Part 1, which does that). Having decided to put its own nationals first with the remaining assets at its disposal - as I say, understandable in the circumstances - it seems odd for the Icelandic government then to complain about the UK government doing the same for UK nationals.

One also has to ask what point the Icelandic government are trying to make on Landsbanki, other than enjoying pointing blame away from themselves by whipping up hysteria against Gordon Brown and Alastair Darling. Everyone agrees Landsbanki is and was bust, and had already ceased trading by the time the freezing order was made. So the Icelandic government seriously wants to argue in the European Court of Human Rights that it was not only lawful for them to move money contributed by UK investors out of the UK for the purposes only of compensating Icelandic savers, but it was also unlawful for the UK government to prevent them from doing so?

Kaupthing is a slightly different case because the making of the transfer order under banking legislation for the transfer of its UK subsidiary's assets appears to have triggered the parent company's move into administration in Iceland. However if it is correct that by 8 October the Kaupthing subsidiary had failed to meet UK funding requirements then some intervention would have been required given that by 8 October it would probably have been impossible for it to re-capitalise.

Part 2 of the Anti-Terrorism, Crime and Security Act 2001

What of Part 2 of the 2001 Act though?

It is a requirement of the making of an Order under section 4 that the Treasury must have reasonable grounds for believing action to the detriment of the United Kingdom's economy is intended, and in order to continue in effect the order must be approved by both Houses of Parliament within 28 days. An order can only last 2 years, and must be reviewed by the Treasury.

Perversely perhaps, the fact that freezing orders are subject to affirmative resolution in Parliament would make it more difficult to bring proceedings in court for judicial review on the ground that the Treasury's belief was not reasonable. Whether there should be a procedure for court approval as well as or instead of Parliamentary approval perhaps depends on where you think the balance between the judiciary and Parliament should lie in relation to such approvals, but it seems highly improbable that a court would have done anything except approve the freezing of assets in this particular case.

Part of the public criticism of the government about Landsbanki is almost certainly a reflection of general public disquiet over the extent to which terrorism and crime are being used as reasons (critics might say excuses) for the slow and apparently continuing erosion of our basic civil liberties. But in my view Landsbanki is not an example of this. Possibly we also see something of ourselves in "plucky little Iceland".

I am much more concerned about the creep towards a surveillance society, arbitrary police powers and the "you don't need to worry if you're not guilty" approach to human rights.

________________________________________________

¹See eg the debate in Committee in the House of Commons on the freezing order here

Blogs, the Enlightenment and Creationism revisited

In Blogs, the Enlightenment and Creationism I wrote about, amongst other things, so-called "intelligent design" and the Kitzmiller/Dover case.

I have recently come across a publication entitled "Rescuing Darwin" by Nick Spencer and Denis Alexander, published by Theos, which is well worth a read for those interested in the subject, and which also contains a description of the results of recent polling on public attitudes to Darwinian evolution by natural selection.

It is freely available but under terms which are to my poor mind next to incomprehensible. Despite that, it is clear enough that it is free for individual readers to download (go to the "download report" link on the page I have given) and read, so download and enjoy.

For those living near or visiting London, I also recommend an outing to Down House, Darwin's former family home now run by English Heritage, which gives a remarkable insight into Darwin's life and ideas. A google search will find internet links, with particulars of when it is open.

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

Related articles:
Part 1
Part 2
Part 3
Part 4

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

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

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

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

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

Blogs, the Enlightenment and Creationism

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

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

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

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

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

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

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

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

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

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

Some excerpts though on the first of those matters (where "ID" stands for "intelligent design"):

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

...

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

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.