Just in case George and Alastair have got you running for the exits clutching your capital gains, there’s an interesting article in Accountancy Age suggesting that the taxman’s system of exit charges on businesses relocating elsewhere in the EU may be an unlawful restriction on freedom of establishment.
It sounds a decent argument to me!
Here’s the de Lasteyrie de Saillant judgment mentioned in the article.
I was amazed, watching Question Time on the BBC tonight, to hear both Harriet Harman and Simon Hughes suggest that one of the ways the Reform Treaty differs from the EU Constitution is in not providing for a “European President”. It just shows how little even major politicians know about this treaty!
In fact, the Reform Treaty makes provision for a President of the European Council, just as the Consitution did. It’s inserted as article 9b(5) into the Treaty on European Union by article 1(16) of the the draft Reform Treaty, at page 12.
Incidentally, the proposed President of the European Council is often confused with the Presidency of the Council of Ministers – admittedly that’s understandable given the confusing terminology.
The Council of Ministers is the workaday body that brings member states together, meeting constantly in Brussels in various configurations and especially in working groups of officials, to negotiate the detail of proposed directives, and so on. That will continue following the Reform Treaty, but with a new “team” presidency, or chairmanship, or three countries for 18 months, rather than the six monthly national presidencies we have now.
The European Council basically means the heads of state and government of the member states, plus the Commission President, and they meet every few months at summits to make the big decisions about where the EU is going. The Reform Treaty, as I’ve said, will create a new post of President of this institution.
I’m not entirely happy with Burton J’s Administrative Court judgment in Dimmock v Secretary of State for Education, in which he criticised Al Gore’s film, An Inconvenient Truth. I think the judgment is an unfortunate exercise in micromanagement of education policy and teaching, and slack in its legal reasoning.
Mr. Dimmock was arguing that the minister’s decision to send the film out to schools was unlawful, because it would cause LEAs and schools to breach their duties under sections 406 and 407 of the Education Act 1996 to forbid the promotion of partisan political views in their teaching; and to take steps to make sure that where political issues arise in school, pupils are offered a balanced presentation of opposing views.
Burton J concluded that the decision was unlawful for this reason, but that if guidance to teachers accompanying the film was redrafted and made available in hard copy – not on a website – then showing the film would not be unlawful, and need not be stopped.
Hm. It isn’t the minister, but LEAs, governers and heads who are under the statutory duties in question; I reckon Burton J has wrongly elided the question whether they would have breached their duties by allowing teachers at their schools to show the film (and indeed the question whether individual teachers would be promoting or presenting partisan or unbalanced views, which again is not the same as whether LEAS and heads have fulfilled their duties) with the question whether it was lawful for ministers simply to send the film out to schools when they weren’t obliged to show it at all, and had flexibility about the context in which they’d show it.
Secondly I think he’s paid far too much attention to the detailed form and wording of the guidance, seeing the legal position as turning entirely on them. The guidance in effect seems to have been redrafted by lawyers outside court – a ludicrous situation. And can it really be all that decisive, these days, whether the guidance was in hard copy or available on the web?
Unfortunately I fear, this case will lead to a small outbreak of partisan challenges like this – based on detailed attacks on the wording of guidance. And I doubt DCFS will bother with an appeal, given that the film can still be shown.
I was interested that at the Conservative conference last week David Cameron made clear a future Tory government will try to opt out of the EU social chapter. Not that that’s new – as this story shows – though a few years ago they did apparently drop their hard line. They’ve stiffened themselves again, then.
As it happens we’ve not long ago had the European Court of Justice’s judgment in case C-307/05 Del Cerro Alonso confirming that social chapter measures to improve working conditions, adopted by the Community under article 137 of the EC Treaty, can include rules about pay. That’s more surprising than it might seem at first, since article 137.5 says, in terms,
The provisions of this Article shall not apply to pay
The particular legislation in question was Directive 1999/70 on Fixed term work, implemented in the UK by the Fixed-term Employees Regulations. In effect the ECJ said that the limitation in article 137.5 needs to be interpreted strictly: it simply means social chapter measures can’t actually set wage levels. It doesn’t mean they can’t require equality in all working conditions, including pay.
A defeat for the UK, this.
I noticed an interesting letter in the Telegraph yesterday from Lord Wedderburn QC. It’s a bit cryptic, but I think he’s suggesting the ECJ might be about to create a new, enforceable right to strike.
The two cases he’s referring to, in which Advocates General have recently delivered opinions – the judgment of the court itself is awaited – are case 341/05 Laval and case 438/05 Viking Line.
I’m not sure I share Lord Wedderburn’s concern: I think if I were a union boss I’d be concerned that the ECJ is about to rule that strikes involving firms trading across EU borders must be justified in terms of EU free movement law, in order to be lawful.
I broadly welcome the Commons European Scrutiny Committee’s report about the inter-governmental conference on the Reform Treaty.
The most important point they make is that the Reform Treaty is the “substantial equivalent” of the Constitution. The committee is right to think that (paras. 45 and conclusion at para. 72), and to be unconvinced that the UK’s so-called “red lines” make any real difference. They’re also right (para. 50) to reject the government’s contention that the Reform Treaty has departed from the “constitutional concept” or has no “constitutional character”. They rightly think that way of looking at it is “likely to be misleading”. William Hague was right, in debate in the Commons yesterday, to say that government arguments along these lines are “specious”.
Where the committee is also right is in its doubts about the significance of the UK’s new protocol on the Charter of Fundamental Rights (para. 60). Now, there is very little in life about which more rubbish has been said and wrote than this Charter. Even in the benighted world of Europhile-Eurosceptic debates, where honest men and women are scarcely seen, nothing rivals discussion of this for pure mystification, confusion and darkness. And the trouble is that both sides are so anxious to outmanoeuvre each other that they counter http://www.magliettedacalcioit.com non-arguments with non-measures, like this protocol. The truth is that although the Treaty will make the Charter legally binding, what it will bind the UK to do is almost entirely stuff it’s bound to do already. In substance, the Charter adds almost nothing to EU law. But because the government’s scared of Eurosceptic scaremongering about it, it’s prepared to infuriate other governments – and the unions – by insisting on an almost meaningless protocol, which is emphatically not an opt-out, and adds very little if any further protection.
It’s like Andy Murray reaching for a second racket with no strings – “look how brilliant my return will be now!” – when his opponent is serving with a shuttlecock anyway.
The committee labour under the impression that the Charter’s serve is far bigger than it really is, but they are right to point to the lack of strings. The Charter is unlikely to make much difference to the European Court’s rulings (the court will quote it a great deal; but that’s a different matter), but when it does make rulings based on the Charter, those rulings will apply in the UK. The committee is on to something with that.
The committee is wrong, though, about opting in to “Title IV” measures (para. 67, and conclusion at para. 74). Where under Title IV the Union considers legislating in the area of justice and home affairs – currently civil law cooperation, asylum and immigration, but extending also to police and criminal law cooperation under the Reform Treaty. An example might be a proposal to require Member States to use particular scientific techniques to investigate terrorism, or to harmonise what amounts to corporate fraud throughout Europe.
The UK is not automatically bound by such a measure: It has a special protocol, and this time a meaningful one. But it has the right to opt in, either at the negotiation stage or when negotiations are concluded. The committee seems to think the UK should also have a fourth right, to enter negotiations and then pull out, thus avoiding being legally bound by a measure, if it doesn’t like what’s agreed. I’m sorry, but that really can’t be right, and will surely be unacceptable to other Member States. The double opt-in right Cheap NFL Jerseys is clearly designed to give the UK three options: to give the proposal a wide berth; to get in at the negotiating stage, try to shape it, and then be stuck with the results – like everyone else round the negotiating table; or to watch and wait, and then agree to be bound if it likes what others have agreed. All those options are fair enough, because in return for the UK’s right to opt out, they give the UK no right to interfere with what others want – unless it agrees to set aside its opt-out and negotiate on equal terms. What would be quite wrong would be if one Member State could water down a proposal others were keen on, and having done so, simply walk away from it.
Finally, though, the committee is right I think (para. 68 and conclusion at para. 75) that the much-vaunted new yellow and orange card mechanisms (the orange card is new since the Constitution; the yellow card was already in the Constitution), supposed to give power to national parliaments to object to Commission proposals, isn’t not worth nearly as much as it seems.
Jack Straw’s speech at Bournemouth the other week contained a surprise: the Labour government having rejected amendment to the law of self-defence a couple of years back, now the new Lord Chancellor says
the law on self-defence works much better than most people think, but not as well as it could or should.
The justice system must not only stand up, but be seen to be standing up for people if they do the right thing as good citizens.
So I intend urgently to review the balance of the law to ensure that those who seek to protect themselves, their loved ones, their homes and other citizens, know that the http://www.nflauthenticjersey.com/ law really is on their side – that we back those who do their duty.
Well, well. I’ve not got a lot of time for this, I must say. I rather agree with Ruthie. This is a cynical attempt to seem to be changing something – to signal that the government is taking action – when all it’s doing is making more unnecessary laws. I can quite understand why people feel the police aren’t on their side in self-defence situations: I myself was attacked a few years ago, and when I grabbed my attacker in front of police officers in an attempt to have something done, was arrested for affray and accused of a racist assault. But when the police act as stupidly as that, it doesn’t matter what the law says.
I agree with what Charles Clarke decided in 2005: the current law is sound. This is a crisis of confidence in the police, caused by bad police practice – and only senior police officers can sort it out.
EU Law Blog has posted the latest draft of the Reform Treaty, as it’s emerged from the group of http://www.nflauthenticjersey.com/ Council, Commission and Member States’ governments’ legal experts that have been working on it in Brussels since July.
I’ve been waiting for this draft before putting my oar in to the debate; but I expect to be posting quite a lot about the Treaty in the next few weeks.
One of the things I omitted to comment on in my September slackness was Mervyn King’s explanation to the Commons Treasury Select Committee of why he couldn’t organise a secret takeover of Northern Rock bank, or give it covert support.
You’ll remember he blamed the Takeovers Directive for preventing a secret takeover: I think he was right about that because of the mandatory procedure for publishing a bid, laid down in article 6. The Directive is implemented in the UK via the City Takeover Panel’s Code, which it now administers under Part 28 of the Companies Act 2006. Rule 2.2 is I think the relevant rule – it requires an announcement when a purchaser is sought for 30% or more of the voting rights in a company – and I guess at least that much of Northern Rock would have been in question – or where commitments are sought from http://www.nflauthenticjersey.com/ others, such as the Bank of England, in relation to a potential offer – and surely they would have been. Rule 2.2 is at page 65 of the pdf file of the Code. So, just as Uncle Mervyn said.
I also think he was right that the Market Abuse Directive prevented him from supporting Northern Rock covertly. Article 6, which is implemented in the UK by listing authority rules made by the FSA under the Financial Services and Markets Act, would have and required Northern Rock, whose shares of course are listed on the London Stock Exchange, to disclose as “inside information” the fact of any support from the Bank of England. Again, just as Mervyn said.
I was surprised not to see Dame Juliet Wheldon, former Treasury Solicitor, mentrix of Shami Chakrabarti and legal adviser to the Bank sitting behind Mervyn at the committee. There was no sign of her, though.
Most discussion of the possibility of a November election assumes that the decision is solely Gordon Brown’s. But is it really that simple? I think not.
It’s the Queen who dissolves Parliament in fact, by issuing a proclamation under the great seal saying that she’s directed the Lord Chancellor to send writs to returning officers to cause an election to be held. I realise of course that the Queen, by convention, acts on the advice of her ministers. That’s sometimes called “the cardinal convention” of the constitution, and on that basis no dissolution has been refused since before Lloyd George decided the right to recommend one was his alone. But that doesn’t mean the Queen can’t lawfully refuse a dissolution. She most certainly can.
Professor Rodney Brazier, in the 3rd, 1999 edition of his excellent book Constitutional Practice, says this:
It is beyond doubt that the Sovereign can refuse a request for a dissolution of Parliament: the difficulty lies in identifying the situations in which such action would be constitutionally appropriate.
In other words, the convention that the Queen follows the recommendation of the Prime Minister is simply that – a convention. Not law, or a hard-and-fast constitutional rule. So in what kind of situation could the Queen properly refuse a dissolution?
Well, one such situation, you might argue, would be if a Prime Minister were to recommend a dissolution when it was not strictly necessary to hold an election, so that the timing of the http://www.nflauthenticjersey.com/ election reflected, more than usually, party interests rather than national ones; and when returning officers were so unprepared that, taken together with the fact that electoral registers were out of date, there was a real risk of poor electoral administration and some voters feeling disenfranchised. A far fetched scenario?
I’m not seriously saying the current situation is one in which a refusal would be appropriate. I think for the question to arise seriously, the Prime Minister’s opportunism would need to be even more naked than it actually is today; more importantly, the risk of electoral chaos and of voters feeling excluded would have to be greater. Given that we now have the Electoral Commission, I think the Queen might feel some kind of warning would be needed from them first – certainly the opposition and all other parties would need to be making their objections clear, and there’d have to be reason to believe there was serious public unease. Even so, I’m very interested to hear what those responsible for elections are saying at the moment – and I’m sure both the PM’s advisers and the Queen’s have the point in mind.
My final thought is that, contrary to liberal reflex, all this is a good reason not to transfer the PM’s right to request a dissolution to Parliament itself, as Gordon Brown has proposed. It sounds nice and modern at first, until you realise of course that the PM will always be able to whip a big majority into voting for dissolution when he or she wants one, and that a narrow majority won’t need maglie calcio poco prezzo whipping, either because they think they’ll gain seats in an election, or because a confident opposition will itself support the dissolution motion. So there’s no real positive case for the change.
And there’s a case against, because the change would make it even more politically difficult than it is now for a monarch to resist the recommendation of an over-mighty Prime Minister and his obedient majority, should we ever get into an extreme situation. At the moment, the political pressure is on the PM: he or she alone must feel able to justify cutting and running, and can claim no more legitimacy than that justification brings with it. That creates a serious disincentive to abuse. Whereas a parliamentary vote carries its own feeling of legitimacy -paradoxically recucing the pressure for a dissolution request to be politically justified.
Call me a constitutional conservative if you like, but I don’t think that’d be a change for the better. A truly liberal, democratic constitution where a sovereign Parliament makes all law is one thing – the control by a Parliamentary majority of the democratic process itself is quite another.