Basal Questions :: Simon Evans

JCHR now urges changes to the definition of Public Authority

The UK Parliament's Joint Committee On Human Rights has changed its mind (an earlier report adopted a wait-and-see litigation-focused approach) and now urges a legislative clarification of the meaning of public authority. Specifically, it urges a separate interpretive provision (not amending the HRA itself) to the effect:

"For the purposes of s. 6(3)(b) of the Human Rights Act 1998, a function of a public nature includes a function performed pursuant to a contract or other arrangement with a public authority which is under a duty to perform the function."

Of course, the pending appeals to the House of Lords may render this moot. But the JCHR seems not to be holding its breath.

House of Lords Reform Again

Overnight the Commons voted in favour of a 100% elected Lords: see news report at  The Guardian among other places. An 80% elected Lords was also supported by a majority, but the half-half model was rejected. The questions proposed by the White Paper now go to the Lords who, the Guardian report, are likely to favour a 100% appointed chamber. Is an impasse on the way?

JUSTICE Discussion Paper on A Bill of Rights for Britain

The UK law reform and human rights organisation JUSTICE has produced a discussion paper outlining the issues involved in producing a British Bill of Rights (something that influential voices in Labour and the Conservatives have called for), including content (ECHR-plus, not ECHR-minus), amendability, enforcement and the process for reaching agreement on such an instrument. (Hat tip George Williams.)

Lords reform again ...

Guardian Unlimited Politics reports that the UK government has caved ... not on the substantive question of House of Lords reform canvassed in the White Paper but on how MPs were to vote on the options. The White Paper had (sensibly) proposed an alternative voting system (ie something like the preferential voting familiar to Australian voters) but the opposition seems to have regarded this as a "dangerous constitutional precedent" ... :

The government backed down on controversial plans to use a new voting method for MPs to decide on House of Lords reform.

Jack Straw, the leader of the Commons, told MPs that they would not have to use his preferred method of an alternative vote ballot.

Instead they will use the traditional division system and Labour MPs would get a free vote.

The decision revives the possibility of a stalemate on reform with MPs rejecting all the options as they did in 2003.

Mr Straw had faced criticism when he set out proposals for MPs to list the various options - ranging from a fully elected to a fully appointed second chamber - in order of preference.

Theresa May, his Tory shadow, said that the move was a "victory for common sense".

To carry on with the original plans would have set a "dangerous constitutional precedent", she claimed.

Impact of UK HRA - fall in human rights cases - Guardian Unlimited

Fall in human rights cases from the Guardian (18 Feb 2007):

The number of court cases using the Human Rights Act continued to fall last year, according to new research.

Legal information providers Sweet and Maxwell Online said records showed an 18% fall to 394 in 2005/06 from 479 in 2004/05.

It was the third year in a row to show a decline and represented a 27% fall from the peak of 541 cases in 2002/03.

Head of public law and human rights at Bindman and Partners, Stephen Grosz, said: "We saw a huge surge in the number of cases implementing human rights arguments when this legislation was first introduced but there has been a gradual downturn over the past three years as the Act has been established by test cases.

"Everyone is now aware of the legislation and organisations have become more careful about complying with human rights obligations, so the Act has been successful on this account.

"On the other hand it certainly hasn't opened the floodgates to litigation as some doom-mongers warned."

However, more human rights cases are having far-reaching implications after going to senior courts, he added.

"What this trend does not take into account is the higher proportion of human rights cases reaching the Court of Appeal and the House of Lords," said Mr Grosz.

"The Human Rights Act is becoming central to more and more of the really important legal decisions that are being made in the UK.

"It has managed to keep a check on some of the Government's more authoritarian instincts which in the post-9/11 world has been a considerable achievement."

Lord Bingham on The Rule of Law

Via Cheryl Saunders, Lord Bingham's David Williams Lecture on The Rule of Law, in which he responds to the invitation implicit in section 1 of the Constitutional Reform Act 2005 (UK) to give content to the rule of law.

Reform of the House of Lords - New White Paper - via Democratic Audit of Australia

Via the Democratic Audit of Australia:

"House of Lords reform proposals

The UK government has published a White Paper outlining proposals for a partially elected House of Lords. Reforms eliminating the right of almost all hereditary peers to sit in the second chamber were introduced in 1999, and were generally expected to be the first step in the introduction of an elected Lords. But in 2003, all the options for introducing an elected component were rejected. The government currently favours 50 per cent elected, with 50 per cent remaining appointed, though the Lords are expected to reject this. However, it has been reported that Gordon Brown, the favourite to succeed Tony Blair, will force through reform making the Lords entirely elected, once leader, if these proposals are blocked."

  Read the White Paper.

More rights scepticism

Benjamin Jellis' Sinking the Boat to Save it (a shorter version appeared in the Australian) joins the growing list of negative commentary on the Victorian Charter of Rights. It's a mostly careful piece whose central question-begging premises appear at the end:

"In our society, rights are protected by the representative nature of the parliament and the independence of the courts. It is a sorry shame, that in the name of rights, both will unnecessarily weakened."

There are really good questions in there, including the familiar ones about the effectiveness of parliaments in protecting rights and the impact of judicial review of rights instruments on judicial independence. The answers do seem to depend an awful lot on the details of political practice and on the political and legal cultures that grow up around rights instruments. Perhaps the proper stance is Charter-agnosticism, at least for a little while yet?

Australian federalism: broken but not dead

POLITICIANS and commentators have been saying all week that Australia's federal system is broken and needs fixing. They're right. But the problem is much older, and goes much deeper, than this week's High Court decision about the Work Choices legislation.

The powers of the Commonwealth have grown, and the powers of the states have diminished, since soon after the constitution came into force in 1901.

If we're going to fix Australia's federal system, we first need to understand what it's for and why the imbalance of powers is a problem. Why does it matter that the Commonwealth can now regulate virtually all economic activity (and much more besides) through the corporations power? Why does it matter that the states depend on Commonwealth taxes to fund the health and education services they deliver? After all, states don't have rights. We should abolish them if they don't serve a useful purpose. Federal systems are inevitably somewhat inefficient, duplicating some things and leading to squabbles about which level of government is responsible for others.

• Read the rest of this op-ed that appeared in the Sydney Morning Herald last month (with an overblown title and subtitle, not of my choosing): Federation in tatters.

Greg Craven on Federalism in the Australian

This blog was in grave danger of becoming moribund. Here's hoping for some more activity! A first taste: Greg Craven writing compellingly about the virtues of federalism in the Australian:  Greg Craven: Business gets its absolutes out of order.