The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: constitutional law

Party-mentary Sovereignty

This is one of the nice things about having a blawg. If you tried to talk about what I’m about to write about at a, certainly at a non-law, party (I have tried this, once – at 3am) you will get shouted down for being boring. I’m hoping that future employers will see this story is an example of how straight laced and legally minded I am and not a tacit admission that I may know how to party; unless that’s what you’re looking for in an employee and in that case I can neither confirm nor deny.

Drinking games are a surprisingly large part of this student’s student life. I was once at a house party thrown by an old schoolmate. It was a really good party, my friend has a real gift for hospitality (M&S barbecue food and Tesco Value brand drinks – don’t knock it if you haven’t tried it), and around 2am we were sitting around the kitchen table generally chilin’. One of us said “let’s play the coins game”. I had no idea what this was; he goes to a different university and obviously gets out more than I do.

The Coins Game

The rules of the coins game are, initially, very simple. But that’s the interesting thing about it.

You have two coins and you take turns flipping both. There are three ways that can work out.

  1. If you get 2 tails – do nothing or, 
  2. 2 heads – drink (it is a drinking game, after all) or,
  3. 1 head and 1 tail – make up a rule, any rule

The idea is that you will start off with a simple game that then grows in complexity and the trick is to keep track of all the rules. I never dreamed this is what I would use to talk about William Hague and Parliamentary Sovereignty.

The first rule that was created was “all vowels except ‘u’ are banned” – so effectively you could say “cuw” but not “cow” and you had to work out how to pronounce that. If you broke a rule you took a drink.

Fans of legal theory will have long since realised that I am describing a system of rules with a sanction for breach. It’s a classic example of Austinian command theory. We have invented “party law”.

Party law

The constitution of party law is simple. It’s an unwritten constitution but fundamentally it involves three rules for what you do when you toss a coin and a single sanction for breaking the rules. It is technically too simple, for reasons I’ll come to in a minute, and leaves the stability of party law dependent on the good will of the players and the simplicity of the rules created – in general the more complicated the rule the more unexpected the consequences. Carl Gardner, on Charon QC’s lawcast, said that implementing the concept of Parliamentary Sovereignty in a statutory provision will be the masterpiece at the end of a very long career for a particularly excellent drafter. Setting a clear rule that lets a legislative body do anything legislative they may ever want to do in future without stopping them doing something they may want to do in future is extremely difficult to do. “Parliament rules OK” is not going to cut it. We’re currently fine because there’s an accepted principle that Parliament can do anything it likes (although not as much anything than it used to be able to – see Mortensen v Peters).

In particular the problem for party law is that there’s no provision for the entrenchment of those rules nor limits on rule-making power.

Wait, no limits on power?

ultra vires

This is the big thing.

One of my friends made a rule – “all previous rules no longer exist”. Can he do this? Is this valid law? As a matter of theory this is completely fine under party law – if you can repeal one rule (and there’s no restriction saying that you can’t and in practice we all did repeal some rules we’d made) then you can repeal two at a time, or three or all of them. You can easily go back to the initial position.

We, briefly, split into factions that in hindsight covered quite a wide spectrum of views,. Broadly:

  • The guy who proposed the rule was just annoyed at the game and how much he was being made to drink and wanted (in the kindest sense of the word) to break it. He was, as far as party law was concerned, Justice Holmes’ “bad man” and party law is weak against this person
  • One of us spoke about “the point of the game”. He argued that it was a drinking game and the idea was to make up lots of rules that got people to drink a lot and that wiping out lots of rules at stroke was against the point, the purpose, of the game. A purposive approach.
  • I, scenting the blood of impromptu jurisprudence debate in the water, spoke about the wording of the initial rules. I pointed out that the rule was formally valid (I actually instinctively used these words) and that it both gave the power to do it and didn’t prohibit you from doing it. A resort to formalism.
  • yet another of us told us to shut up and we were subpar (this was not the word he used) chat. The host of the party cum legal symposium.

However, does “all previous rules” include the rules about tossing the coins? This didn’t come up in our discussion because the basic issue was could we make a rule to go back to the initial position or not but technically a rule is a rule under party law. There’s no formal entrenchment of the constitutional rules.

What if he had said “no one can toss a coin again?” In other words, under party law, do you have the power to break the game by making a rule that contradicts with the fundamental rules? In fact, are they fundamental in any sense other than that they were there first? Have the coin toss rules become higher law? None of us spoke about the rule making the game unplayable because, frankly, that was not in our interests as we wanted to play the game. However, what in the rules would actually stop you?

Either all rules are rules and it’s possible for a malevolent legislator(s), everyone acts unilaterally in party law, to destroy the game with either sneaky or just destructive rules or we implicitly give the initial rules higher status that we have expressed or we have implied an overlying principle of keeping the game working. That’s great but what guarantees this special role for social efficacy because it’s not certainly written down anywhere.

In reality what finally happened at the party was the mass repeal bill was torpedoed by a bloodless coup and we just played a different game instead and that’s democracy in action.

Ironically the weakness of party law is that it is too supreme. What would happen to our Parliament if we get the sovereignty provision wrong? The common law sovereignty we have right now really seems to work for us so why are we fiddling with it for short term political gain?

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Do we need an (elected) House of Lords?

The House of Lords is a curious piece of constitutional framework but I think it’s better than the alternative. I don’t like that I have an MSP, an MP, an MEP and a couple of local councils (I live in one council area while I work and study in another). I think there has to be one or two too many cooks in that equation. I’ve got a funny feeling none of them particularly listen to me on the future state of the world and therefore do I really need 5 elected bodies to not particularly listen to my views? Do I need another?

The idea that the House of Lords should be elected is built on sound ideological foundations – democracy is good. I think it really is good, I just don’t see why people need multiple identical elected representatives to represent them. I think, if the second house will be made up by people voted for by the same people and arranged in the same political parties who will decide along party lines on the same legislation, this only happens because we assume we need a second house at all. Why would we? It’s exactly the same as the lower house.

I don’t want an elected House of Lords, I want a differently constituted upper house or I want us to save a bit of money by getting rid of it entirely. The whole point of the House of Lords is that it’s supposed to be able to resist the hue and cry of the masses and look at things objectively, the whole point of the House of Commons is that it’s supposed to listen to the voters.

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“Legal loophole” for prisoners closed

While reading this article I was reminded of a story I was told as an introduction to human rights. I hope this post interests readers, it’s certainly a piece that’s close to my heart – it’s Scottish Constitutional law. It’s a sordid tale of broken dreams, misplaced trust in man, drugs and the EC and I found it extremely interesting.

The Scotland Act is a fascinating piece of constitutional law and all Scots should read it — after all it’s the founding document of the fanciest named local authority of them all. The wording can be positively inspirational:

s.1(1) There shall be a Scottish Parliament
(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.

(6) Be willing to trade all the days, from this day to that, for one chance, just one chance, to come back here and tell our enemies that they may take our lives but they’ll never take our freedom*

*There may only be 5 subsections in section 1, I forget.

Well, 1(1) is inspiring at least — you know exactly what the drafter is looking for there. The Act draws directly on the European Convention on Human Rights-there’s no messing about with the Human Rights Act for us Scots. Despite implementing the convention in roughly the same way as the Human Rights Act (another of the new 1997 Labour government’s constitutional reforms) it is not exactly the same in its implementation — the limitation period from the Human Rights Act was missed out. Then, the House of Lords had a look over it, pointed out that actions were unlimited with the draft and it was not corrected. We can only assume that Parliament intended it that way.

Unfortunately this beautiful act of trust in the concept of Human Rights met its natural conclusion with a man named Napier. Napier v Scottish Ministers is the early, Scottish Court of Session case, not Somerville which is the meaty, precedental House of Lords decision but Napier involves drugs and I feel that gives Napier “edginess”.

Robert Napier was locked in a cell with his cellmate of the time, a recovering heroin addict and as everyone who has watched the Scottish tourist board propaganda film “Trainspotting” heroin causes you to become constipated while it is in your system. With a regular habit you can became quite consistently constipated. There was no access to heroin in this cell. The man was no longer constipated.

A very long story (and an even longer night for Napier) later, Napier, who if I recall correctly was in the jail in connection with some fairly violent crimes and should not be considered the innocent victim of this story but nevertheless should be greatly pitied, was left in cell in a Victorian prison with no toilet, a small bucket and a recovering drug addict with diarrhea.

This grim scene, combined with other elements of the Victorian prison system (Scottish jails taught the European prison inspectors something new and they have to deal with the former Soviet bloc) lead to convincing a judge that this amounted to a violation of the pursuer’s article 3 convention rights:

No one shall be subjected to torture or inhuman or degrading treatment

Napier, as a Scottish individual, had two routes to his Convention rights the Human Rights Act and the Scotland Act, both of 1998. One allowed Napier to get damages but the other allowed him to get damages and every other person who has ever had to do their jail business into a pot could equally also, claim damages. There was no limit on how far back the cases would go because of the drafting of the Scotland Act. The Scottish Executive set aside £50 million in a liability fund and even mere to get a toilet in every jail cell as soon as possible. The oversight has been corrected -on the 18th of June 2009. 11 years after the House of Lords pointed it out while the act was still under debate.

I don’t know if you can really call that a loophole at that point, it seems more Parliament’s fault.

Student Law Review

I dropped by my law school this week on the way to the library and picked up a copy of the current student law magazines while I was there.

The Student Law Review, published by Routledge Cavendish is a publication bordering on the “terrifyingly polished” and I find it to be a very interesting read that I try to pick up whenever I can.

I’ve done a quick and rough digest of the contents of this edition, and it’s a very, very long post so I’ve added it after the break. I will be back later to fact check but right now I’m just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

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