The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: Constitutional reform

Hands off our ice

s. 14 Scotland Bill 2010-11

You may not know that there is a new Scotland Bill going through the Westminister Parliament just now. This is to partly to tidy up operating issues which the whole having a new Parliament in Scotland have exposed over the past decade and so.

Partly it’s also got elements of the completely crazy too.

Clause 14 is a bizarre provision which the explanatory notes says is supposed to “re-reserve” Antarctica from Alex Salmond’s legislative grasp. By Antarctica I do indeed mean that one that isn’t even in Scotland.

The proposed amendment is headed L7 and Heading L is the Miscellaneous heading of the Legislative Competencies section — weird little things that the Parliament expressly cannot do things about.

H/T: I thought that we were surely done with Heading L at this point (where do you go after outer space?) and I found out about this through Iain Nisbet’s Absolvitor post where he gets a brilliantly belt and braces answer from the Scotland Office (it’s not already in there, so, well…)

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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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Law Lords move to Supreme Court

“We do not want to lose you, but we think you ought to go.”
– Lord Wallace of Saltaire

The highest appeal court in the land has, for 133 years, been the Appellate Committee of the House of Lords.  This is coming to a close, with the Law Lords no longer staying in the House and instead moving to Middlesex Guildhall as Justices of the Supreme Court.

I’ve watched a lot of the lords reform with some disapproval (I don’t think we need an elected house of lords, I think either we need an unelected, or at least differently constituted, body to stand in the face of public hysteria and take an objective view or we don’t need an very expensive upper house at all) and I’ve not really understood what difference a supreme court would make to our jurisprudence.  I think this is a gap in my knowledge I should quickly rectify if I do manage to end up on the bar, it might be good to know.  I believe it helps separation of the judiciary, but given how the law lords generally kept themselves out of legislative roles I don’t know if anything has actually changed.

It is oddly reassuring to know that the first apparent mention of a Supreme Court came, not from Tony Blair, but from an 1869 Royal Commission.  This is not because the Royal Commission is infallible, it’s just that New Labour has been wrong before.

The 10 “going away” speeches from the 21 June can be found here: http://www.theyworkforyou.com/lords/?id=2009-07-21a.1507.0

Baroness Royall’s speech is a particularly enjoyable read, I point out the anecdote about the Duke of Buccleuch which any Scot would appreciate, while Lord Strathclyde’s is a much needed caution.  The whole debate is worth having a look at, with much of the continuum of opinions on constitutional reform quite succinctly included.  Not to mention a good bit of political point scoring, some of it from centuries ago.

This also raises a slightly uncomfortable point – were the Law Lords moved out to make space for Alan Sugar?