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In the wake of the impending (but as yet congressionally unauthorized) US attacks on ISIS elements in Syria, the amazingly continuity in US national security policy has become ever more apparent. American presidents, whatever their politics or campaign rhetoric, over and over stick with essentially the same security programs as their predecessors. President Obama is but the most recent example. He has continued or even expanded numerous Bush administration policies including rendition to third countries, military detention without trial, denial of legal counsel to prisoners, drone strikes, offensive cyber-weapons, and whistleblower prosecutions.
Even seasoned insiders profess bewilderment. As a candidate, the President extolled the virtues of a nuclear-free world and promised to vigorously pursue disarmament. Yet he has recently approved plans for enormous new expenditures in a major ramping-up of the US nuclear arsenal. “A lot of it is hard to explain,” former Senator Sam Nunn told the New York Times. “The president’s vision was a significant change in direction. But the process has preserved the status quo.” The playbill changes, but the play does not.
The conventional explanation lies in the phenomenon described by the late historian Arthur Schlesinger—an imperial presidency. A series of overly-assertive chief executives, according to the theory, have dominated legislators and judges, knocking America’s carefully-balanced separation of powers out of kilter. Vietnam, Watergate, domestic CIA spying and other abuses all were attributed to this outsized presidency. The presumed remedy was to try to tie down the executive Gulliver with a web of new constraints, such as the War Powers Resolution, the Foreign Intelligence Surveillance Act, and a watchful new court and oversight committees.
It didn’t work. Forty years later, the United States has moved beyond an imperial presidency to a system in which the gargantuan US security apparatus not only has broken free of constraints but has engulfed even the presidency itself. Contemporary US security policy is seldom formulated in the Oval Office and handed down to compliant managers in the military, intelligence, and law enforcement agencies. Instead, nerve-center policies ranging from the troop buildup in Afghanistan to ABM deployment to NSA surveillance percolate up from the Pentagon, Langley, Fort Meade, and myriad Beltway facilities with no public names. With rare exceptions, that is where options originate, plans are formulated, and strategy ultimately defined.
The resulting programs take on a life of their own, feeding on caution, living off the bureaucratic land, run by an entrenched and elaborate network of well-meaning careerists and political appointees who are invested in the status quo, committed to increased payrolls and broader missions, and able to outlast the shifting preferences of elected officials. The programs are, in economic terms, “sticky down”—easier to grow than shrink.
Thus when the CIA asked for authority to expand its drone program and launch new paramilitary operations, President Obama famously told his advisers, “The CIA gets what it wants.” Security managers elsewhere also get what they want. During deliberations on the Afghanistan troop surge, the President complained that the military “are not going to give me a choice.” The admirals and generals, his staff said, were “boxing him in.” More recently, the White House claimed that President Obama was unaware of NSA spying on world leaders; Secretary of State John Kerry explained that some US surveillance activities are “on autopilot.” The President in response formed a supposedly independent panel to safeguard civil liberties and restore public confidence—which, it turns out, operated under the auspices of Director of National Intelligence James Clapper, who oversees the NSA.
America’s new security system is best captured by an earlier concept: “double government.” The term is Walter Bagehot’s, the celebrated scholar of the English Constitution, who in 1867 described how Britain’s government had slowly changed in substance but not in form as it moved to a “disguised republic.” The monarchy and House of Lords, he suggested, provided the grand public façade needed to generate public deference, while another set of institutions—the House of Commons, the cabinet, and prime minister—efficiently worked behind the scenes to carry out the actual work of governing.
In the realm of national security, the US government also has changed in substance but not in form—but American double government has evolved in the opposite direction, toward greater centralization and away from democracy. Congress, the presidency, and the courts appear to exercise decisional authority, yet their control is increasingly illusory. The real shaping of security policy is carried out quietly, in highly classified facilities, by anonymous managers the public never sees.
As the NSA’s ubiquity gradually has been unveiled, the Watergate-era questions were asked again: “What did the President know and when did he know it?” The answers to those questions now matter little, however. The remedies of earlier times have proven ineffectual, and the structural forces that eroded accountability and empowered the security elite remain strong. The system’s vaunted capacity for self-correction is therefore severely limited. In this new epoch of American double government, the disquieting question is: Who really is in charge? Unless the United States confronts that question squarely, Congress, the judiciary, and the presidency itself will continue, slowly and quietly, to fade into museum pieces.
“Why didn’t anyone in the know say something about it?” That’s the natural reaction of the public when some shocking new scandal – financial wrongdoing, patient neglect, child abuse – comes to light. The question highlights the role of the whistleblower. He or she can play a vital role in ensuring that something is done about activity which is illegal or dangerous. But the price which the whistleblower pays may be high – ostracism by colleagues, victimisation by the employer, dismissal, informal blacklisting by other employers who fear taking on a “troublemaker”.
It is crucial that the public interest in encouraging the genuine whistleblower is fostered. The law can play an important role in promoting this aim. It ought to further the following objectives:
to provide protection for the whistleblower
to ensure that he or she is given an adequate remedy if subjected to dismissal or other detriment; and
to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure.
As things stand at present, our law addresses the second of those objectives – it does provide a remedy (through the employment tribunal system) for a whistleblower who is dismissed or otherwise victimised. In its recent Response to the Whistleblowing Call for Evidence , the UK government made it clear that “the whistleblowing framework is a remedy not a protection” – so objective 1 is not fulfilled by the law as it stands. It also conceded that “the framework is about addressing the workplace dispute that follows a disclosure rather than the malpractice reported by the disclosure”. So objective 3 is not part of our legal framework in any explicit way.
On the government’s own analysis, then, the current legal framework on whistleblowing is not fit for purpose. One would expect this frank confession to be followed by a pledge to take action. In particular, what can be done about dealing with the danger and/or wrongdoing which the whistleblower has exposed?
The Call for Evidence and the debate which surrounded it certainly came up with various proposals. Primarily these focused on the role of the regulator. In statutory terms, the various regulators for everything from financial wrongdoing to patient neglect are known as “prescribed persons”, and are listed in statutory instruments promulgated from time to time. The whistleblower is entitled to make disclosures to such “prescribed persons” if they are reasonably believed to be true, and the prescribed person is one who is stated by the statutory instrument to be relevant in relation to the matters disclosed.
It follows that these regulators (such as the Financial Conduct Authority, the Environment Agency, the Health and Safety Executive, the Children’s Commissioner, and the Care Quality Commission to name a few random examples) could play an incredibly important role in furthering objective 3 above.
Prominent among the proposals for reform were those put forward by a prestigious commission set up by the charity Public Concern at Work. It made a number of suggestions across the board. But particularly material to the role of the regulator were the following:
regulators should require the organisations for which they are responsible to have effective whistleblowing arrangements in place
they should review the licence of those organisations which do not have such arrangements
a statutory Code of Practice for employers would provide the template for determining whether such arrangements were effective or not
the regulators should provide feedback to whistleblowers, or explain why it is not possible to do so
the current system of referral of employment tribunal claim forms should be strengthened to make referral mandatory unless the claimant opted out.
The only legislative response from the government has been that contained in clause 135 of the Small Business, Enterprise and Employment Bill 2014 . It gives the Secretary of State power make regulations to require a regulator to produce an annual report on whistleblowing. The regulations would set out the matters to be covered, but not in a form which would enable identification of either the whistleblower or their employer. They would set out requirements for publication e.g. by way of a report to the Secretary of State or on a website.
So far so good, and the proposed clause mirrors one of the suggestions emerging from the Public Concern at Work commission. Standing by itself, however, it is a totally inadequate response.
The crucial point is: what action will the regulators take in order to further the public interest? It is their role “to increase the prospect that something will be done to eliminate the danger and/or rectify the wrongdoing which is the subject of the disclosure”, as the government put it in its Response to the Call for Evidence. The proposals set out by the Public Concern at Work commission, or something very like them, are crucial if we are to hear the question “Why didn’t anyone in the know say something about it?” less frequently in future.
In the Preface to their new book A Guide to The SIAC Arbitration Rules, authors Mark Mangan, Lucy Reed and John Choong observe that:
“the [Singapore International Arbitration] Centre is now well-established as a regional leader and the SIAC Rules are among the most popular globally…the authors are all leaders in Asia, including Lin Hoe, Nathaniel Khng, Zara Shafruddin, and Darius Chan in Singapore; Yong Wei Chan and Judy Fu in Hong Kong;…and Nicholas Lingard in Tokyo”
Their observation highlights the importance of Asia both as a centre for international arbitration, and generally for commerce and the practice of commercial law in the 21st century. This underlines the relevance of the 2014 annual meeting of the International Bar Association in Tokyo which, as Michael J Reynolds in his programme to the conference states:
“We will be celebrating the importance of lawyers in Asia and the role they are playing in building the relationships between Asia and the rest of the world. Tokyo will also be a delight to discover, from the finest foods to compelling history, and will provide a rich cultural experience for everyone.”
The first annual meeting held in Asia for seven years, IBA 2014 presents a unique opportunity for colleagues, practitioners and law specialists to meet each other and make personal contact, face to face, many for the first time. Below, we aim to provide some useful information for both new attendees and seasoned delegates to the IBA Annual Meeting.
Over 5,000 delegates from more than 100 jurisdictions over the globe will convene at the Tokyo International Forum from 19-24 October at the International Bar Association’s Annual Meeting. The conference will feature six days of over 180 working sessions and over 60 official IBA social functions. The programme naturally features a special focus on Asian legal practice, including sessions on corporate social responsibility in Asia, Corporate and M&A Law in Asia: inbound and outbound challenges and a Master class on using courtroom litigation to support arbitration in Asia
Tokyo is an excellent gateway to Asia. Often thought of as a city, Tokyo is officially governed as a “metropolitan prefecture”, which combines elements of both a city and a prefecture; a characteristic which is unique to Tokyo. Located in the Kantō region, and placed on the southeastern side of the main island Honshu Tokyo also includes the Izu and Ogasawara Islands. Ranked fourth among global cities by A.T. Kearney’s 2012 Global Cities Index, Tokyo is an attractive destination for this year’s Annual Meeting.
If you would like to know what’s available to fill your time outside your sessions, take a look at the following conference-related events:
Sunday 19 October: Opening ceremony. 6pm – 7.30pm, Welcome party 7.30pm-10.30pm, Auditorium, Tokyo International Forum
This year’s welcome party takes place in the iconic Glass Building which represents the very modern side of Japan and rated 3* by the Michelin Green Guide to Japan. The building reflects Japan’s mix of modern and traditional, offering delegates the opportunity to experience an energetic festival with traditional food, drink and entertainment.
Tuesday 21th October: 2pm-3pm, Meet Oxford author John Choong, author of A Guide to The SIAC Arbitration Rules
From 2pm – 3pm you can meet John Choong, at the Oxford University Press booths #16 and 17, who will be signing copies of his new title A Guide to The SIAC Arbitration Rules.
Wednesday 22 October Afternoon – IBA football match
The IBA ‘World Cup’ football match is a key part of the conference programme. 12 years after Japan co-hosted the 2002 World Cup, it now hosts the annual IBA match. Transport and other arrangements will be confirmed nearer the time and emailed to delegates who register an interest. All spectators are welcome.
Friday 24 October 7.30pm – 10.30pm, – Closing party, Happo-en
Happo-en is ‘garden of eight views’ and the closing party will be held in the grounds and buildings of this classic and beautiful Japanese garden. Constructed to be perfect from all angles, within this hidden gem of Tokyo you can wander at will and encounter some of the classical and historic art of Japan, including ancient Bonsai trees and stone lanterns together with live music and traditional performances.
Also, here are a few tips on what to expect when you get to Tokyo:
The weather in Tokyo in October will be mild. Expect temperatures to reach between 21-22 degrees Celsius, 69-71 degrees Fahrenheit.
There are eight restaurants at the Tokyo International Forum, including Takara which serves local and regional cuisine, including Sukiyaki (Japanese Beef Hot Pot) and Kaisendon (Sushi Rice Bowl), and Kurobuta-gekijo Hibiki, which specializes in local specialty foods of Kawagoe city, featuring dishes such as pork shabu-shabu and Yakiton (grilled pork skewers).
You find can find details of the layout of the Tokyo International Forum here.
If you are lucky enough to be joining us in Tokyo, don’t forget to visit Oxford University Press at booth numbers 16 and 17 where you can browse our award-winning books, pick up a sample copy of one of our professional law journals, or get a free demonstration of one of our online services including Oxford Legal Research Library: International Commercial Arbitration and International Commercial Law.
As President Obama ponders whom he will nominate as Eric Holder’s successor as attorney general, he should consider President Ford’s appointment in 1975 of Edward Levi to head the nation’s Department of Justice.
Four decades ago, the United States was reeling from Watergate. President Nixon’s first attorney general, John Mitchell, was on his way to federal prison while Ford’s pardon of Nixon remained controversial.
In this difficult environment, President Ford reached outside his official and personal circles to appoint as attorney general a preeminent legal scholar, Edward Levi.
Levi was a distinguished law professor, an accomplished dean of the University of Chicago Law School, and the widely-admired president of the University of Chicago. In a contentious political setting, Edward Levi was confirmed as attorney general by a voice vote in the United States Senate. Everyone understood that Ford had gone beyond politics as usual to choose an outstanding attorney general capable of restoring confidence in the Department of the Justice.
Ed Levi didn’t need the job. But the United States needed Ed Levi.
Levi’s tenure as attorney general did not disappoint. When Levi left the Justice Department at the end of the Ford Administration, the department’s reputation had been restored in large measure because of Levi’s integrity, professionalism, and independence.
President Obama should strive for an Ed Levi-type appointee for his second attorney general.
Many fine individuals are being mentioned to replace Holder. Most of these individuals are excellent lawyers and, under other circumstances, would be good leaders for the Department of Justice. But the United States today, like the United States in 1975, requires more than a good lawyer as attorney general. It requires someone with Ed Levi’s gravitas.
Some might retort that nothing comparable to Watergate has transpired in recent years. True. But we are a nation badly fractured on political lines. Legitimate concerns have been raised about the recent performance of the Department of Justice. In this difficult atmosphere, it is vital to reaffirm that the Department of Justice is an institution of law, not just another hyper-partisan political arena.
Like President Ford, President Obama should look beyond his official family and his circle of acquaintances to find an attorney general whose prime credentials are professional, not political. Holder’s replacement should be perceived as an independent attorney general who doesn’t need the job.
This heavyweight appointee could, like Ed Levi, come from academia or could come from the private sector. Another potential source for such an attorney general is the judiciary. Among those meeting the Ed Levi-test would be such personages as Justice Sandra O’Connor and Judges Richard Posner, Jon Newman and Jose Cabranes of the U.S. Court of Appeals.
President Ford’s historical reputation improves with each passing year. His pardon of Richard Nixon, widely condemned at the time, is now seen as an act of statesmanship which helped to move the United States beyond Watergate. Ford’s appointment of Edward Levi as attorney general was similarly an act of high statesmanship which reaffirmed America’s commitment to the rule of law. President Obama should make a comparably outstanding appointment for his second attorney general.
In the Preface to volume 1 of The Consolidated Treaty Series, Clive Parry explained that his collection purported to make the historical treaties antedating the League of Nations Treaty Series available to the modern reader. By this, the date ad quem, 1919, of his work was made self-explanatory. To justify his choice of the date post quem, 1648, he succinctly stated that this was ‘classically regarded as the date of the foundation of the modern system of States’. To Parry, as to many of his predecessors, 1648 was the natural point of departure for modern treaties.
It is indeed a commonplace among students of international relations and law to indicate 1648, the year of the Peace Treaties of Westphalia, as the very birth year of the modern states system of Europe, to the point that ‘Westphalian’ has become a buzzword for the system itself. The underlying claim is that the treaties inaugurated or even created a new international order based on the sovereign state. It is held that the treaties which put an end to the Thirty Years War (1618–1648) terminated the last great religious war in Europe and sounded the death knell for the universal authority of the pope and the emperor. Thus the princes and republics of Europe achieved their full sovereignty and a new international political and legal order which was premised on the principles of state sovereignty and religious neutrality emerged. As the modern state system was one in which, absent any supranational authority, states were left to their own devices to organise and regulate their mutual relations, horizontal agreements through treaty played a central role in the articulation of international order and treaties became its primary source.
Over the last two decades, the communis opinio among scholars has fallen under attack. A number of scholars have stated that the new order which Westphalia inaugurated had little to do with that the sovereign state system, which only emerged in the 19th century. According to those scholars, the idea of Westphalia is a case of ahistorical myth-making to provide the state system with a clear starting point. But the criticism can even reach further, to the outright negation that Westphalia created anything like a new order at all.
Indeed, any student of international relations or law who is familiar with the literature from international relations and law and who turns to the text of the treaties of Münster [1 CTS 271] and Osnabrück [1 CTS 119], 24 October 1648 – the two instruments which are commonly referred to as Westphalia – is in for a surprise. He or she will not find any mention of state sovereignty or religious neutrality as principles of international organisation in the texts, nor in the surrounding diplomatic documents. Neither will he or she find that the Westphalian Peace Treaties were universal peace treaties, to which most of the powers of Europe supposedly acceded; nor will he or she be able to pinpoint a reference to the balance of power, as so many scholars have claimed.
Westphalia is indeed a myth, and one which has particularly little basis in historical reality as far as the Peace of Westphalia is concerned. In truth, there is very little that is ‘Westphalian’ about Westphalia. Much of the confusion comes from the hybrid character of the two peace instruments, which has often been overlooked or misunderstood. The Peace Treaties of Münster and Osnabrück are of a dual nature. On the one hand, they are bilateral international peace treaties, that of Münster between the Holy Roman Empire and France, that of Osnabrück between the Holy Roman Empire and Sweden. On the other hand, they constitute an internal peace agreement between the emperor and the hundreds of Reichsstände, the constitutive parts of the Holy Roman Empire, which spelled out a new constitutional and religious settlement for the Empire. The clauses into which later scholars have read references to state sovereignty or religious equality all pertain to the latter dimension of the treaties and hold no reflection on the international order of Europe or the law of nations. Modern scholars have considered the involvement of the princes and estates of the Empire in an international peace treaty and the explicit confirmation of their right to make treaties to mark the final rejection of the universal authority of the emperor and the recognition of state sovereignty. In fact, these reminiscences were nothing but the confirmation, or at best adaptation, of old pre-Westphalian rights and went a long way to sustain the medieval, feudal, hierarchical structure that was the Holy Roman Empire. Inasmuch as the treaties had anything to say about sovereignty, it was to reject its ‘Westphalian’ character. Moreover, a comparison of the ‘international’ clauses of the treaties with older treaties teaches that they differed in no way from traditional peace treaties. A historical study of treaty practice should thus move beyond Westphalia and look for the origins of modern treaty-making in the Middle Ages and the 16th century. With time, Oxford Historical Treaties will therefore expand beyond the date post quem of Parry’s collection and include pre-Westphalian treaties.
All this does not suffice to dismiss 1648 as insignificant in the long-term history of the political and legal order of Europe. The mid-17th century certainly was a period of transition between political orders and Westphalia is as good an event to symbolise this as any other. The Westphalia Peace Treaties indeed ended the last great religious war in Western Europe. At the same time, they fell within the middle of a period of civil unrest and war in many European countries (1640–1668), which in the case of some of the major powers ended with the victory of the forces of centralisation over local and regional autonomy. Westphalia, together with some other events, marked the end of a period of turmoil that had started with the Reformation in the second quarter of the 16th century and which had destroyed the medieval order of Europe. After more than a century of unrest and instability which had impeded the formation of a new consent about the international order of Europe, Westphalia helped to create the conditions of internal stability which in the following decades allowed for the articulation of a new common order of Europe. No peace embodies this order more than the Peace Treaties of Utrecht (1713) [e.g., 27 CTS 475 and 28 CTS 295]. This new order thus only materialised after Westphalia rather than at Westphalia. It was the order of the territorial dynastic state – which Bobbitt referred to as the kingly state – and the public law of Europe, which in turn was to be transformed by the French Revolution into that of the nation-state.
Headline image credit: Ratification of the Peace of Münster between Spain and the Dutch Republic in the town hall of Münster, 15 May 1648.. After Gerard ter Borch. Public domain via Wikimedia Commons.
In the second of our posts focusing on the Conservative’s proposed European Union ‘In/Out’ referendum, key legal figures and political commentators share their views on why Britain should stay in the European Union. Once finished, why not read the previous post on Why Britain should leave the European Union and decide which side has the more convincing argument?
* * * * *
What is best for Britain? That is the only question which both sides have been addressing in the “In/Out” debate in this country and to which they give different answers. Certainly that is a relevant question but it is not the only question which should be addressed. … We should also ask “what is best for Europe as a whole and also what is best for the world?”
One of the great achievements of the UK over the centuries has been the universalising, in part by example [and] in part by means of the European Convention on Human Rights, of its generally admired conceptions of human rights. … In consequence, the EU has these human rights as one of its foundation stones. … The steady increase of Member States of the EU and of candidate member states shows that many others value the EU and its commitment to human rights.
Systems of governance and substantive laws are not immutable and need changing from time to time. The UK should contribute in a positive fashion to these changes and to the continuing health of the EU.
– Sir Konrad Schiemann, former Judge, Court of Justice of the European Union
* * * * *
“One of the strongest reasons for staying in the EU is that quitting would be bad for our economy, as we would lose full access to the single market. Eurosceptics have tried to counter this argument by saying we could copy Norway, Switzerland, or Turkey. The snag is that none of these is a good model: Norway has access to the single market but has to follow its rules without a vote on them; Switzerland’s banks don’t enjoy access to the single market unless they relocate to places inside the EU like London; and Turkey doesn’t have access for services, which account for 80% of our economy.
“As Eurosceptics have come to realise the weaknesses of these models, they have employed a new argument: Britain is a special case. We are bigger than Norway and Switzerland, and richer than Turkey. We are, therefore, in a position to cut a better deal with the EU than any of them. Clout is important – and we certainly have more of it than Norway, Switzerland, or Turkey. But the problem with this argument is that the EU has more clout than us. Its economy would be six times our size.”
– Hugo Dixon, Editor-at-large, Reuters News, and author of The In/Out Question: Why Britain should stay in the EU and fight to make it better.
* * * * *
Before we run for the European exit we need to properly weigh up the alternatives. Those who want to do a ‘runner’ claim that the world is about to open their doors to our goods and services and that our influence will increase. I would love to see evidence of how easy it will be to swap our “disastrous” relationship with Europe for such a harmonious set of alliances with every other country around the world – as long as they are not European!
For my part I am greedy for the UK, not cautious – I want EU PLUS. I want the 500 million customers that the EU offers PLUS new trading partners and new export opportunities from across the globe.
We need have no identity crisis about our membership of Europe or feel that we are in any way diminished by sitting at the top table of the largest trading bloc in the world. We just have a lot of work ahead to help shape a new and ambitious Europe that shares our optimistic, confident, and outward-looking attitude and delivers true benefits to the British people.
– Laura Sandys, MP for South Thanet and founder, European Mainstream
* * * * *
I believe that all the most serious issues facing the world today are essentially international problems, and that none of these problems can be solved unless we continue to develop the international legal order at every possible level.
In my own field, one can refer to the problem of climate change or global warming, and the pressing need for more effective methods of control of greenhouse gas emissions. … Problems [such as these] are inherently transnational in nature, and all present insuperable challenges to individual national governments.
It is indisputable that in the European Union we have the single most advanced and successful example of an international legal order which has yet been established. … Unless we are ostentatiously to turn our backs on the world’s most serious problems, it is absolutely essential that we continue to participate in and to support this outstanding international development. Only in this way can the long-term interests of our country and our people be protected.
– Stephen Hockman QC, 6 Pump Court Chambers
* * * * *
It is unsurprising that the financial crisis should have brought back to the fore concerns about the very design of the EU’s institutional structure and issues of democracy deficit, on which there is already an extensive literature.
This is however matched by an equal dearth of literature concerning constitutional responsibility of Member States for the status quo. … It is noteworthy that the discourse concerning democracy deficit is normally presented as a critique of the EU. The EU is of course not blameless in this respect, but nor are the Member States, viewed collectively and individually. The present disposition of EU institutional power is the result of successive Treaties in which the principal players have been the Member States.
Member States bear responsibility for the choices that they have made, individually and collectively, in shaping EU decision-making. Thus insofar as there is a democratic deficit of the kind considered above responsibility cannot simply be ‘offloaded’ by the Member States to the EU. Member States cannot carp about deficiencies of EU decision-making as if they were unconnected with the architecture thus created.
Europe today is under threat from all sides. … To want to leave the European Union at such a time seems perverse. And to what end do the Europhobes – I use the word advisedly for we are all Eurosceptics to a degree – demand Britain’s exit? To wrest back national sovereignty from Brussels. Yet sovereignty is a chimera, a mirage, a will o’ the wisp. It is like a man lost in the desert: he has total control over what he does, complete freedom of action – yet he is powerless.
When he was European Commissioner, Leon Brittan said in 1989: “The concept of total sovereignty is, frankly, a dangerous delusion. Instead you have to ask on a pragmatic basis: how can I most effectively achieve what I want for my country? Sometimes the answer will be to take action at the national level. At other times it may be best to reach multilateral agreements. But there will be occasions when the right, long-term answer is to pool sovereignty with others, in order paradoxically, to achieve an objective which may be of paramount national (ital.) importance.” He was right then and his argument holds good today.
– Sue Cameron, columnist, The Daily Telegraph
* * * * *
Continued membership of the EU for Scotland (as part of the United Kingdom) remains a critical issue. Indeed, anecdotally at least, there appears to be the sort of broad consensus amongst Scottish businesses, the public sector, and civil society which has been so markedly absent from the Scottish independence debate. That consensus is firmly pro-European.
The real world considerations of a smaller economic entity such as Scotland, which is geographically remote from many of its key markets and exports proportionately more than its larger neighbour, revolve around reducing, not creating, barriers to trade.
Direct engagement with the EU operates alongside a dynamic relationship with Westminster which has seen almost annual alteration of the boundary between those areas reserved to London and those devolved to Edinburgh. … What becomes clear is not that the European Union is an unalloyed good, or that the Westminster Parliament is an unalloyed bad. The question is whether, in sum, membership of the European Union is a ‘good’ to be preserved despite its imperfections. I’ve no doubt it is.
With the next General Election on the horizon, the Conservative’s proposed European Union ‘In/Out’ referendum, slated for 2017, has become a central issue. Scotland chose to stay part of a larger union – would the same decision be taken by the United Kingdom?
In the first of a pair of posts, some key legal figures share their views on why Britain should leave the European Union.
* * * * *
“[The] EU as I see it is an anti-democratic system of governance that steadily drains decision-making power from the people and their elected national and sub-national representatives and re-allocates it to a virtually non-accountable Euro-elite. In many ways, this is its purpose. … Important policy decisions in sensitive areas of civil liberties … [are] taken by government officials and ministers with minimal input from parliaments and virtually unremarked by the media and general public.
“The European Commission started life as a regulatory agency attached to a trade bloc, which rapidly turned its regulatory powers on the Member States that had put it in place. Much the same can be said of the centralising Court of Justice, a significant policy-maker in the EU system.
“Democracy, in Robert Dahl’s sense of popular control over governmental policies and decisions or as a broad array of the rights, freedoms and – most important – the opportunities that tend to develop among people who govern themselves democratically, is out of the reach of the EU system of regulatory governance.”
“There is little if any direct trade advantage for remaining a member of the EU on the present terms. The direct financial burden of EU membership is some £17bn gross (£11bn net) and rising. … 170 countries in the world now operate in a global market based on trade according to “rules of origin”, and the UK now trades mostly with them, not with the EU.
“Advocates of the EU always present the “single market” as indispensable to the UK. Is this really so? The EU Single Market is the never ending pretext for the EU’s harmonisation of standards and laws across the EU. EU Single Market rules now extend well beyond what was the Single European Act 1986, and far beyond what is necessary to enable borderless trading within the EU.
“As the sixth largest trading nation in the world, were the UK to leave the EU Single Market, we would be joining the 170 other nations who trade freely in the global single market. We would regain control of our own markets and over our trade with the rest of the globe.”
– Bernard Jenkin, MP for Harwich and North Essex and Chair of the House of Commons Public Administration Select Committee
* * * * *
“The single currency is the crux. We did opt out of the Euro, but we can’t escape the Euro. The deflationary bias in the Eurozone, the catastrophic effects of a single monetary policy across such disparate economies and societies, culminating in banking and government debt crises, all continue to bear down on our exports and our overall economic performance.
“As the eighteen Eurozone countries meet apart from the non-Euro members of the EU to determine major issues of financial and fiscal policy, so we are increasingly marginalized within the EU, while having to live with the consequences of decisions in which we’ve had no part. … The EU will continue to be dominated by the Eurozone countries. They will do their best to salvage the single currency and will probably succeed, at least for some years to come. If British policy is to be characterized by more than passivity and fatalism, we will either have to establish new terms of membership of the EU (well-nigh impossible to achieve on a meaningful basis when the unanimous agreement of the EU is required), or find a way to split the existing EU into two unions of different kinds, or leave altogether.”
– Alan Howarth, Baron Howarth of Newport, former Member of Parliament
* * * * *
“Whatever the merits of the European Union from an economic or political perspective, its legal system is unfit for purpose. In the United Kingdom we expect our statutory laws to be clear and the means by which these laws are made to be transparent. We equally expect our court processes to be efficient and to deliver unambiguous judgments delineating clear legal principles. We expect there to be a clear demarcation between those who make the laws and those who interpret them. … All [matters] are quite absent within the legal institutions of the EU.
“It is perhaps understandable that an institution which is seeking to unite 28 divergent legal traditions, with multiple different languages, struggles to produce an effective legal system. However, the EU legal system sits above and is constitutionally superior to the domestic UK one. … The failures of the EU legal system are so fundamental that they constitute a flagrant violation of the rule of law. Regardless of the position of the UK within the EU, these institutions should be radically and urgently reformed.”
“The Euro has faced serious difficulties for the last five years. The economic crisis exposed flaws in the basic design, while the effort to save the currency union has led to recession and high unemployment, especially youth unemployment, in the weaker nations. This has moved the focus of the EU from the single market to the economically more important project of saving the Euro.
“The effect of this on the UK is that the direction of the EU has become more integrationist and has subordinated the interests of the non-Euro states. Currently this covers ten countries but only the UK and Denmark have a permanent opt out. The protocol being developed to ensure that the eighteen do not force their will on the ten will need revising when it becomes twenty-six versus two. The EU will not be willing to give the UK and Denmark a veto over all financial regulation. Inevitably, this will need some form of renegotiation as the UK has a disproportionately valuable banking sector which cannot be expected to accept rules designed entirely for the advancement of the Euro.”
– Jacob Rees-Mogg, MP, North East Somerset
* * * * *
“The reluctance of the European Court of Human Rights (ECtHR) to find violations of human rights in sensitive matters affecting States’ interests raises the question whether subscribing to the European Convention on Human Rights (‘ECHR’) should be a pre-requisite of European Union membership, as is now expected under the Treaty of Lisbon. … [T]he decisions of the ECtHR are accorded a special significance in the EU by the European Court of Justice because the ECHR is part of the EU’s legal system.
“This was recently demonstrated in S.A.S. v France, concerning an unnamed 24-year-old French woman of Pakistani origin who wore both the burqa and the niqab. In 2011, France introduced a ‘burqa ban’, arguin that facial coverings interfere with identification, communication, and women’s freedoms. … A British Judge has said, “I reject the view … that the niqab is somehow incompatible with participation in public life.” The ECtHR held [that] France’s burqa ban encouraged citizens to “live together” this being a “legitimate aim” of the French authorities. … Britain could leave the ECHR and make its own decisions but then, insofar as the EU continues to accord special significance to ECtHR decisions, still effectively be bound by them.”
– Satvinder Juss, Professor of Law, King’s College London and Barrister-at-Law, Gray’s Inn
Strong, stable relationships are essential for both individuals and societies to flourish, but, from transportation policy to the criminal justice system, and from divorce rules to the child welfare system, the legal system makes it harder for parents to provide children with these kinds of relationships.
In her book Failure to Flourish: How Law Undermines Family Relationships, Clare Huntington argues that the legal regulation of families stands fundamentally at odds with the needs of families. We interviewed Professor Huntington about the connection between families and inequality. In the clips below, she explains policies and misconceptions that prevent us from helping families during the crucial first years of a child’s life, provides examples of supportive family law and good neighborhood development, and describes how helping families plays a role in fighting poverty.
Family law and how it affects families
Politics and policy in family law
The role of families in fighting poverty
How do you get into family law?
Headline image credit: family traffic sign. Public domain via Pixabay.
When the UN General Assembly endorsed the Responsibility to Protect (R2P) in 2005, the members of the United Nations recognized the responsibility of states to protect the basic human and humanitarian rights of the world’s citizens. In fact, R2P articulates concentric circles of responsibility, starting with the individual state’s obligation to ensure the well-being of its own people; nested within the collective responsibility of the community of nations to assist individual states in meeting those obligations; in turn encircled by the responsibility of the United Nations to respond if necessary to ensure the basic rights of civilians, with military means only contemplated as a last resort, and only with the consent of the Security Council.
The Responsibility to Protect is a response to war crimes, genocide, and other crimes against humanity. But R2P is also a response to pattern and practice human rights abuses that include entrenched poverty, widespread hunger and malnutrition, and endemic disease and denials of basic health care — all socio-economic conditions which themselves feed and exacerbate armed conflict. In fact, socio-economic development is a powerful mechanism for guaranteeing the full panoply of human rights, just as the Millennium Development Goals are a means of fulfilling the Responsibility to Protect.
While Responsibility to Protect is often misconstrued as a mandate for military action, it is more intrinsically a call to social action, and the embodiment of the joint and several responsibilities of the community of nations to seek a coordinated global response to life-threatening conditions of armed conflict, repression, and socio-economic misery. While diplomats and public servants debate the legality and prudence of military responses to criminal uses of military force against civilians, we must not neglect the legality, prudence, and urgency of non-military responses to public health and poverty emergencies throughout the world.
The United States has put out a call to like-minded nations to join forces, literally and figuratively, in the degradation and destruction of the criminal militancy of the so-called Islamic State [ISIL or ISIL]. Despite concerns that the 2003-2011 US war in Iraq itself may have led to the inception and flourishing of ISIS, and despite warnings that the training, arming, and assisting of Iraqi forces, Shia militias in Iraq and non-ISIS Sunni militants in Syria may inflame sectarian violence and threaten civilians in both countries, the United States is contemplating another open-ended military intervention in the Levant.
A military intervention against ISIS is not justified by the principles of Responsibility to Protect. Without the authorization of the Security Council or the consent of the Syrian government, military intervention is unlawful in Syria, offending both the UN Charter and the tenets of R2P. In either Syria or Iraq a military intervention, even with the permission of the responsible governments, is unlawful if it is likely to lead to further outrages against civilians. Military action that predictably causes the suffering of civilians disproportionate to any legitimate military objectives violates the principles of humanitarian law and the Geneva Conventions, as well as the UN Charter and R2P.
Alongside the criminal militancy of ISIS we face the existential threat of the Ebola virus in West Africa, endangering the people of Guinea, Liberia, Sierra Leone, and their neighbors. Over the past two months, approximately 5000 people have been infected by this hemorrhagic disease, and around 2500 have died, over 150 of them health care workers. At current rates of infection, with new cases doubling every three weeks, the virus could sicken 10,000 by the end of September, 40,000 by mid-November, and 120,000 by the New Year.
Ebola can be contained through basic public health responses: quarantining of the sick, tracing of exposure in families and communities, safe recovery of the bodies of the deceased, regular hand-washing and sanitation, and the all-important rebuilding of trust between effected community members, health care workers, and government officials. But the very countries impacted have fragile health care systems, insufficient hospital beds, and dedicated Red Cross workers, doctors, and nurses nearly besieged by the number of sick people needing care. By funding and supporting more health care and humanitarian relief workers at the international and local levels, more Ebola field hospitals and clinics, and more food, rehydration fluids, and safe blood supplies for transfusions, less new people will fall sick, and more of the infected will be treated and cured. At the same time, the fragile economies and political systems of the effected countries will be strengthened and the threat of regional insecurity will be addressed. Ebola in West Africa is calling out for a coordinated global public health intervention, which will serve our Responsibility to Protect at the local level, while furthering our collective security at the global level.
As the US Congress debates the funding of so-called moderate rebels in Syria in the pursuit of containing the criminal militancy of ISIS, we should turn our national attention to funding Ebola emergency relief in Guinea, Liberia, and Sierra Leone. Such action is consistent with our enlightened self-interest, and required by our humanitarian principles and obligations.
From their remotest origins, treaties have fulfilled numerous different functions. Their contents are as diverse as the substance of human contacts across borders themselves. From pre-classical Antiquity to the present, they have not only been used to govern relations between governments, but also to regulate the position of foreigners or to organise relations between citizens of different polities.
The backbones of the ‘classical law of nations’ or the jus publicum Europaeum of the late 17th and 18th centuries were the networks of bilateral treaties between the princes and republics of Europe, as well as the common principles, values, and customary rules of law that could be induced from the shared practices that were employed in diplomacy in general and in treaty-making in particular. Some treaties, particularly the sets of peace treaties that were made at multiparty peace conferences — such as those of Westphalia (1648, from 1 CTS 1), Nijmegen [Nimeguen] (1678/79, from 14 CTS 365), Rijswijk [Ryswick] (1697, from 21 CTS 347), Utrecht (1713, from 27 CTS 475), Aachen [Aix-la-Chapelle] (1748, 38 CTS 297) or Paris/Hubertusburg (1763, 42 CTS 279 and from 42 CTS 347) — gained special significance and were considered foundational to the general political and legal order of Europe.
This interactive map shows a selection of significant peace treaties that were signed from 1648 to 1919. All of the treaties mapped here include citations to their respective entries in the Consolidated Treaty Series, edited and annotated by Clive Parry (1917-1982). (Please note that this map is not intended to be an exhaustive representation of the most important peace treaties from this period.)
The UK Government will no doubt be shocked if the referendum on 18 September results in a Yes vote. However, it has agreed to respect the outcome of the referendum and so we must assume that David Cameron will accept the Scottish Government’s invitation to open negotiations towards independence.
The first step will be the formation of two negotiating teams — Team Scotland and Team UK, as it were. These will be led by the governments of both Scotland and the UK, although the Scottish Government has indicated that it wants other political parties in Scotland to join with it in negotiating Scotland’s position. We would expect high level points to be set out by the governments, the detail to be negotiated by civil servants.
What then would an independent Scotland look like?
The Scottish Government plan is for an interim constitution to be in place after March 2016 with a permanent constitution to be drafted by a constitutional convention composed of representatives of civil society after Scottish elections in May 2016.
The Scottish Government intends that the Queen will remain head of state. But this and other issues would presumably be up to the constitutional convention to determine in 2016.
Similarly the Scottish Parliament will continue to be a one chamber legislature, elected by proportional representation, a model rejected by UK voters for Westminster of course in a referendum in 2011.
The Scottish Government seeks to keep the pound sterling as the currency of an independent Scotland. The UK Government’s position is that Scotland can use the pound but that there will be no formal currency union. After a Yes vote this position could change but the unionist parties are united in denying any such possibility.
The UK has heavily integrated tax, pension, and welfare systems. It will certainly be possible to disentangle these but it may take longer than 19 months. In the course of such negotiations both sides may find that it makes sense to retain elements of close cooperation in the social security area, at least in the short to medium term.
The Scottish Government has put forward a vision of Scotland as a social democracy. It will be interesting if it follows through on plans to enshrine social rights in the constitution, such as entitlements to public services, healthcare, free higher education, and a minimum standard of living. The big question is: can Scotland afford this? It would seem that a new tax model would be needed to fund a significantly higher commitment to public spending.
A third area of great interest is Scotland’s position in the world. One issue is defense. The SNP promises a Scotland free of nuclear weapons, including the removal of Trident submarines from the Clyde. This could create difficulties, both for Scotland in seeking to join NATO, but also for the remainder UK, which would need to find another base for Trident. The Scottish Government rejects firmly that it will be open to a deal on Trident’s location in turn for a currency union with London, but this may not be out of the question.
Another issue is that the Scottish Government takes a much more positive approach to the European Convention on Human Rights, than does the current UK government. In fact, the proposal is that the European Convention will become supreme law in Scotland, which even the Scottish Parliament could not legislate against. This contrasts with the current approach of the Conservative Party, and to some extent the Labour Party, in London which are both proposing to rebalance powers towards the UK Parliament and away from the European Court in Strasbourg.
Turning to the European Union, it seems clear to me that Scotland will be admitted to the EU but that the EU could drive a hard bargain on the terms of membership. Compromises are possible. Scotland does not, at present, qualify for, and in any case there is no appetite to join, the Eurozone, so a general commitment to work towards adopting the Euro may satisfy the EU. The Scottish Government also does not intend to apply for membership of the Schengen Area but will seek to remain a part the Common Travel Area, which would mean no borders and a free right to travel across the British and Irish isles.
The EU issue is also complicated because the UK’s own position in Europe is uncertain. Will the UK stay in the EU? The prospect of an in/out referendum after the next UK general election is very real. Another issue is whether an independent Scotland would gradually develop a much more pro-European mentality than we see in London. Would Scotland become positive rather than reluctant Europeans, and would Scotland seek to adopt the Euro in the medium to longer term? We don’t know for now. But if the UK votes to leave the EU, then this may well be the only option open to an independent Scotland in Europe.
To conclude, a written constitution, a stronger commitment to European human rights standards, a more pro-European Union attitude, and an attempt to build a more social welfarist state could bring about an independent Scotland that looks very different from the current UK. However, the bonds of union run deep, and if Scotland does achieve a currency union with the UK it will be tied closely to London’s tax structure. In such a scenario the economies, and therefore the constitutions, of the two countries, will surely continue to bear very many similarities. Much also depends upon relationships with the European Union. If the UK stays in the EU then Scotland and the UK could co-exist with a sterling currency union and a free travel area. If the UK votes to leave then Scotland will need to choose whether to do likewise or whether to align much more closely with Europe.
Like many Americans I walk an uneasy line between being appalled by the living conditions of the inner-city and being afraid of them. The educational and socio-economic disadvantages common in inner-city neighborhoods, along with the high rates of drug- and gang-related violent crime, are already hard problems to grasp and tackle. The fact that these [...]
Katherine Marshall sat down with her law department colleague to discuss life in the Oxford office, what’s on the bookshelf, and becoming Chancellor of the Exchequer.
What is your typical day like at Oxford University Press?
I normally start by planning each day in relation to the week and months ahead, prioritizing what needs to be done. Then I run through emails. After, the day can vary quite a lot depending on what needs doing for the various titles in production. I try to tackle the more complicated or sensitive items in the morning, such as going through complicated e-proof corrections, resolving complex issues (for example in terms of typesetting layout or corrections), checking covers, collating copy-edited files or proof corrections, or speaking to authors about queries or issues.
Later in the day, I might turn my attention to things such as reviewing schedules, booking freelancers, chasing up late corrections or responses, e-book checking, passing on files to the typesetters, sending titles to the printers, writing briefs to freelancers and suppliers or letters to authors, quality checking typescript PDF files, or dealing with invoices. These are all typical things a production editor might do in a day, indeed most of this list would be things I would turn my attention to in any given day. Everything is dealt with digitally these days, so a production editor is really glued to the computer screen.
What was your first job in publishing?
As the production editor of the Philosophy Press (sadly now defunct). It was an unusual role in a very small publishing company which involved running the company administratively, and helping to produce The Philosophers’ Magazine (print and digital) and a couple of titles about philosophy.
What are you reading right now?
One of the several books I’m reading at the moment (for the third time) is The Black Swan: the Impact of the Highly Improbable by Nassim Nicholas Taleb, which is about the impact of highly improbable events on life, particularly in terms of economics. One of the key subjects is about the widespread lack of understanding within economics about risk and probability, particularly in terms of the fractal nature of economic data which dictates that data cannot be predicted into the future from past events with any certainty. It covers a number of related psychological and epistemological subjects.
What’s the first thing you do when you get to work in the morning?
Have a cafetière of the strongest coffee I can find.
Open the book you’re currently reading and turn to page 75. Tell us the title of the book, and the third sentence on that page.
Cicero, “Discussions at Tusculum (V)” in On the Good Life (Penguin, 1971): “A man who lacks the absolute certainty that everything depends on himself and himself alone is in no condition to hold his head high and distain whatever hazards the chances of human life may inflict.”
If you could trade places with any one person for a week, who would it be and why?
Probably the Chancellor of the Exchequer, as I strongly disagree with the dominant contemporary approach to economics, which involves so much platonifying of ideas and then thrusting them upon a world which they bear so little relation to. I would do everything I could to switch the outlook to a much more Keynesian approach which is about being compatible and adaptable to the way people behave and aims at a full employment equilibrium. I appreciate I wouldn’t be able to achieve much in one week!
If you were stranded on a desert island, what three items would you take with you?
A copy of Edgar Alan Poe’s poetry and prose, some good coffee, and my iPod.
What is the most important lesson you learned during your first year on the job?
How to be efficient. I thought I was before, but I really wasn’t.
If you didn’t work in publishing, what would you be doing?
I would probably still be working as a pipe organ builder, which was my role before I made the move to publishing. Now, I keep my hand in by tuning instruments in my holidays.
Entry to the UK police force is changing. With Policing degrees are now available at over 20 universities and colleges across the UK – and the introduction of the direct entry scheme in a number of forces – fewer police officers are taking the traditional route into the force.
We spoke to officers, students, and course leaders to get their opinions on the relationship between theory and practice. Does a Policing degree make you a better officer?
On a personal level, a degree can help some students put their own career and practical training into context. Richard Honess had a “positive experience” in completing his Bachelor’s degree in Policing. “I now have a greater understanding of why we do what we do and the context of where our powers and policies originate; and why senior officers make the decisions they do. I have been able to merge my love of the job with my interest in science and scepticism with the development of ‘Evidence Based Policing’.”
“I have been bitten by the academic bug and I about to commence a Masters by Research in Policing, the ultimate in career development with a view to becoming a research ‘pracademic’!”
Experienced officers can also learn a thing or two. Darren Townsend operated as a Constable with 22 years’ service before deciding to take his degree. “The course opened my eyes completely around how policing worldwide operates, decision making processes especially in the wake of political interference, miscarriages of justice, [and] theory behind certain techniques of crime control.”
“In addition to all the operational aspects it has provided me with some fascinating ahandbook fro cademic reading which has generated an even greater interest in my chosen career which I believe will lead me to a greater professional performance and be far more open to opposing ideas, embrace positive change, and understand the difference academia and research can make to my already wide expanse of operational policing knowledge.”
However, some question whether academic study is really the best way to achieve the necessary skills. One contributor, who asked to remain anonymous, challenged the application of degrees in the field. “I personally do not possess a degree of any sort. My qualifications both within the police and previously in electrical engineering are more vocational. I have yet to see the benefit of policing degrees within policing and will be interested to see if, over time, they do improve policing. At lower levels of policing (up to inspector) I cannot foresee their worth: it is about communication and common sense at the front line.”
Paul Connor is series editor of the Blackstone’s Police Manuals and is a Police Training Consultant offering support for those sitting promotion exams. “Possession of a degree in any subject illustrates an ability to apply oneself and to learn but this does not equate an automatic right to pass every examination that follows in your life. This certainly applies to the OSPRE® Part I examination.”
“College of Policing research indicates that there is a correlation between the possession of a degree and success in OSPRE® Part I but a significant number of candidates without a degree pass the examination just as a significant number with a degree fail.”
The relationship between university research and its application in the field has also been put under scrutiny. Emma Williams is the Programme Director of the BSC Policing (In Service) degree at Canterbury Christ Church University. “Conversations about collaboration between universities and policing have never been so rife. Austerity and the need for resources to be used effectively have resulted in the College of Policing supporting the evidence based policing agenda and the commissioning of research by universities. Having spent eleven years in the Metropolitan Police as a senior researcher I am fully aware of some of the barriers that prevent research findings being fully implemented.”
“Officers can sense a loss of professional judgement when research further drives operational delivery and it can be seen as prescriptive and top down. Our degree programme fully encourages officers to use research and academic knowledge to assist them in their own decisions but to use it alongside their own experiential knowledge. Having knowledge of both the political and social context in which policing has developed and an understanding of theory and how it can assist them in their roles is in my opinion critical for this relationship to develop.”
The variance between theory and practice also raises questions about the structure of the degrees themselves. Susie Atherton previously worked on a police and PCSO training programme at De Montfort University. “It was very clear which were the ‘academic’ modules vs the ‘police training’. I do think there could have been better integration. We had to adapt and respond to their needs to make sure the academic modules did fit with their role, but this weakened their credibility as academic social science modules.”
“The new BA programmes promise employability through combining a three year policing studies degree with the Certificate in Knowledge of Policing. My worry is students who want to be police officers could leave after gaining the CKP, as undertaking this alongside 4 academic modules will be onerous and challenging. Students will perhaps question why they need to gain a full degree to get a job as a police officer, incurring 2 more years of fees, unless they wish to take advantage of direct entry. I am also aware of how valuable life experience, working in schools, military service and other roles are to the police service – transferable skills and knowledge about the world which cannot be gained doing a degree.”
“Fundamentally, if such programmes are to work, like any programme, they need proper investment, leadership and to respond to student feedback. Any weakness in these areas would jeopardise the continuation of programmes, but I do think policing programmes are vulnerable, simply because there are other options available”
Maryland State Comptroller of the Treasury v. Brian Wynne requires the US Supreme Court to decide whether the US Constitution compels a state to grant an income tax credit to its residents for the out-of-state income taxes such residents pay on out-of-state income.
Brian and Karen Wynne live in Howard County, Maryland. As Maryland residents, the Wynnes pay state and county income taxes on their worldwide income. The Maryland income tax statute provides that Maryland residents who pay income taxes to states in which they do not live may credit against their Maryland state income tax liability the taxes paid to those states of nonresidence. However, the Maryland tax law grants no equivalent credit under the county income tax for out-of-state taxes owed by Maryland residents on income earned outside of Maryland.
When the Wynnes complained about the absence of a credit against their Howard County income tax for the out-of-state income taxes the Wynnes paid, Maryland’s Court of Appeals agreed. Maryland’s highest court held that such credits are required by the nondiscrimination principle of the US Constitution’s dormant Commerce Clause. The absence of a credit against the county income tax induces Maryland residents like the Wynnes to invest and work in-state rather than out-of-state. This incentive, the Maryland court held, may impermissibly “affect the interstate market for capital and business investment.”
For two reasons, the US Supreme Court should reverse. First, Wynne highlights the fundamental incoherence of the dormant Commerce Clause test of tax nondiscrimination: any tax provision can be transformed into an economically equivalent direct expenditure. No principled line can be drawn between those tax provisions which are deemed to discriminate against interstate commerce and those which do not. All taxes and government programs can incent residents to invest at home rather than invest out-of-state. It is arbitrary to label only some taxes and public programs as discriminating against interstate commerce.
Suppose, for example, that Howard County seeks to improve its public schools, its police services or its roads. No court or commentator suggests that this kind of routine public improvement violates the dormant Commerce Clause principle of nondiscrimination. However, such direct public expenditures, if successful, have precisely the effect on residents and interstate commerce for which the Court of Appeals condemned the Maryland county income tax as discriminating against interstate commerce: Better public services also “may affect the interstate market for capital and business investment” by encouraging current residents and businesses to stay and by attracting new residents and businesses to come.
There is no principled basis for labeling as discriminatory under the dormant Commerce Clause equivalent tax policies because they affect “the interstate market” of households and businesses. Direct government outlays have the same effects as do taxes on the choice between in-state and out-of-state activity. If taxes discriminate against interstate commerce because they encourage in-state enterprise, so do direct government expenditures which make the state more attractive and thereby stimulate in-state activity.
Second, the political process concerns advanced both by the Wynne dissenters in Maryland’s Court of Appeals and by the US Solicitor General are persuasive. Mr. and Mrs. Wynne are Maryland residents who, as voters, have a voice in Maryland’s political process. This contrasts with nonresidents and so-called “statutory residents,” individuals who are deemed for state income tax purposes to be residents of a second state in which they do not vote. As nonvoters, nonresidents and statutory residents lack political voice when they are taxed by states in which they do not vote.
Nonresidents and statutory residents require protection under the dormant Commerce Clause since politicians find it irresistible to export tax obligations onto nonvoters. The Wynnes, on the other hand, are residents of a single state and vote for those who impose Maryland’s state and local taxes on them.
In reversing Wynne, the Supreme Court should decide narrowly. The Wynnes, as residents of a single state, should not receive constitutional protection for their claim to a county income tax credit for the out-of-state taxes the Wynnes pay. However, the Court’s decision should not foreclose the Court from ruling, down the road, that credits are required to prevent the double income taxation of individuals who, for income tax purposes, are residents of two or more states. Such dual residents lack the vote in one of the states taxing them and thus require constitutional succor which the Wynnes do not.
Dissenting in Cory v. White, Justice Powell (joined by Justices Marshall and Stevens) argued “that multiple taxation on the basis of domicile” is unconstitutional. Since the Wynnes are taxed by only one state, the Supreme Court need not now confront this issue again. However, the Court should decide Wynne in a fashion which allows the Court to revisit this question in the future by holding that credits are constitutionally required to prevent the double taxation of dual residents.
The recent announcement made jointly by the Home Office and College of Policing is a vacuous document that will do little or nothing to change police practice or promote better police-public relations.
Let us be clear: objections to police stop and search is not just a little local difficulty, experienced solely in this country. Similar powers are felt to be just as discriminatory throughout North America where it is regarded as tantamount to an offence of ‘driving whilst black’ (DWB). This and other cross-national similarities persist despite differences in the statutory powers upon which the police rely. It would, therefore, seem essential to ask whether differences in legislation or policy have proven more or less effective in different jurisdictions. Needless to say, absolutely no evidence of experience elsewhere is to be found in this latest Home Office document. Instead, to assuage the concerns of the Home Secretary, more meaningless paperwork will be created.
One reason why evidence seems to be regarded as unnecessary is the commonplace assumption that ‘everyone knows’ why minorities experience disproportionate levels of stop and search: namely that officers rely not upon professional judgement, but upon prejudice, when exercising this power. Enticing though such an assumption is, it has serious weaknesses. As Professor Marion Fitzgerald discovered, when officers are deciding who to stop and search entirely autonomously, they act less disproportionately than when acting on specific information, such as a description.
Research that I and Kevin Stenson conducted in the early 2000s also found that the profile of those stopped and searched very largely corresponded to the so-called ‘available population’ of people out and about in public places at the times when stop and search is most prevalent. This is not to say that these stops and searches were conducted either lawfully or properly. Indeed, a former Detective Chief Superintendent interviewed a sample of 60 officers about their most recent stops and searches as part of this research. What he found was quite alarming, for in around a third of cases the accounts that officers freely gave about the circumstances of these 128 stops and searches could not convince any of us that they were lawful. There was also a woeful lack of knowledge amongst these officers about the statutory basis for the powers upon which officers were relying.
If officers were much better informed about their powers, then perhaps the experience of stop and search may be less disagreeable — it is unlikely ever to be welcomed — than it often is. Paragraph 1.5 of the Code of Practice governing how police stop and search states:
1.5 An officer must not search a person, even with his or her consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this Code.
The implication of this is quite clear: police may stop and search someone with their consent, but may not use such consent as a means of subverting the requirements under which the search would be lawful. Yet, so few officers seem even to be aware of this and conduct stop and search solely on the basis of their formal powers. I believe they do this as a ‘shield’; they imagine that if they go through the formal motions then no one can object to the lawfulness of the search. But they do object and do so most valuably, which gravely damages the public reputation of the police.
Research evidence aplenty confirms that it is not the possession of this power by the police that irks even those who are most at risk of stop and search. What they really object to is the manner in which the stop and search is conducted. A more consensual approach by police officers might just make the use of this power just a little more palatable.
Imagine that you’re watching a movie. You’re fully enjoying the thrill of different emotions, unexpected changes, and promising developments in the plot. All of a sudden, the projection is abruptly halted with no explanation whatsoever. You’re unable to learn how things unfold. You can’t see the end of the movie and you’re left with a sense of incompleteness you won’t ever be able to overcome.
Now imagine that movie is the existence of a human being which, out of the blue, is interrupted. Enforced disappearance cuts the life-flow of a person and it’s often impossible to discover how it truly ends. The secrecy that shrouds the fate of the disappeared is the distinctive element of this heinous practice and differentiates it from other crimes. All that you can imagine is that the end is not likely to be a happy one, but you will never give up hope. The impossibility to unveil the truth paralyses also the life of family members, friends, colleagues, and, to a certain extent, of society at large. If you don’t see the end, you’re unable to move on. You can’t grieve. You can’t rejoice. You’re trapped between hope and despair.
Today is the International Day of the Victims of Enforced Disappearances. Besides commemorating thousands of human beings who have been subjected to enforced disappearance throughout the world and honouring the memory of brave family members and human rights defenders who continue to combat against this scourge, is there anything to celebrate?
While the UN General Assembly decided to observe this Day beginning in 2011, associations of relatives of disappeared persons in Latin America had been doing so since 1981.
Over more than 30 years much has been done to eradicate enforced disappearance, both at domestic and international levels. Specific human rights bodies, such as the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) and the Committee on Enforced Disappearances (CED) have been established. Legal instruments, both of international human rights law and of international criminal law, deal with this crime in-depth and establish detailed obligations and severe sanctions. Regional human rights courts and UN Treaty Bodies have developed a rich, although not always coherent, jurisprudence. Domestic courts have delivered some landmark sentences, holding perpetrators accountable.
However, much remains to be done. First, the phenomenon has evolved: once mainly perpetrated in the context of military dictatorships, nowadays it is committed also under supposedly democratic regimes, and is being used to counter terrorism, to fight organised crime, or to suppress legitimate movements of civil protest. Enforced disappearance is practiced in a widespread and systematic manner in complex situations of internal armed conflict, as highlighted, among others, in the recent report “Without a Trace” concerning enforced disappearances in Syria.
During its latest session, held in February 2014, the WGEID transmitted 87 newly reported cases of enforced disappearance to 11 states. More than 43,000 cases, committed in a total of 84 states, remain under the WGEID’s active consideration.
Against this discouraging scenario, less than 15 states have codified enforced disappearance as an autonomous offence under their criminal legislation and thus lack the adequate legal framework to tackle this crime. Only a handful of states have adopted specific measures to regulate the legal situation of disappeared persons in field such as welfare, financial matters, family law and property rights. This causes additional anguish to the relatives of the disappeared and may also hamper investigation and prosecution. Amnesty laws or similar measures that have the effect of exempting perpetrators from any criminal proceedings or sanctions are in force in various countries and are in the process of being adopted in others. Recourse to military tribunals is often used to grant impunity.
States do not seem to be proactive in engaging in a serious struggle against enforced disappearance at the international level either. Opened for signature in February 2007, the International Convention on the Protection of All Persons from Enforced Disappearance has so far been ratified by 43 states, out of which only 18 have recognized the competence of the CED to receive and examine individual and inter-state communications.
Furthermore, states often fail to cooperate with international human rights mechanisms, hindering the fact-finding process, and proving reluctant in the enforcement of judgments. On their part, some of these international mechanisms, such as the European Court of Human Rights, narrowed their jurisprudence on enforced disappearance, undertaking a particularly restrictive approach when assessing their competence ratione temporis, when evaluating states’ compliance with their positive obligations to investigate on cases of disappearance, prosecute and sanction those responsible, and when awarding measures of redress and reparation.
One may wonder why 30 August was chosen by relatives of disappeared persons as the International Day against this crime. Purportedly, they picked a random date. They didn’t want it to be related to the enforced disappearance of anyone in particular: anyone can be subjected to enforced disappearance, anytime, and anywhere.
That was the idea back in 1981. Sadly, it still seems to be the case in 2014. It’s about time the obligations set forth in international treaties on enforced disappearance are duly implemented, domestic legal frameworks are strengthened, and legislative or procedural obstacles to investigation and prosecution are removed. It’s time to see the end of the movie. The end of enforced disappearance.
With the 10th European Society of International Law (ESIL) Anniversary Conference just around the corner some key thinkers share their thoughts on what they think the future of international law looks like.
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“International law traditionally flourishes with liberal hegemony, shared interests, or balance-of-powers parity. The first condition is visibly waning. The second and third conditions support regional and functional islands of multilateralism. While those islands may sometimes be shaky, they will continue to provide work for international lawyers. Beyond that, in the rough waters of war, peace, and even justice, the language of international law will also continue to pervade international relations. But it increasingly risks being perceived as an imprudent distraction. That is unless civil societies can unsettle the present monopolies that shape the terms of international legal discourse.”
“The future of international law will be somewhat as with its present: we will witness the continued expansion of international law’s reach into new and emerging areas of common concern, wrought by climate change, technology, and continued processes of international and regional integration that are changing the nature of State-to-State relations. I do hope, however, that there will be continued and sustained critical reflection in scholarship on the impact of law on the international space—on who it empowers and excludes, on the nature of legalisation and its purposes—for it is only through heightened scrutiny, and not unquestioned application, that international law may serve as a progressive force.”
“In my opinion, the international law of the future will be less influenced by the ‘Westphalian model’, for at least two reasons: the increasing role played by non-state actors, in particular armed groups and multinational corporations, which challenges existing state-centred rules of international law, and the emergence of cyberspace as a separate domain, that will entail a rethinking of traditional concepts like territory, sovereignty, and jurisdiction. With regard to the future of international institutions, it remains to be seen whether the United Nations will be able to survive in its outdated structure.”
“The future of international law is likely to be as its past: a vital, though often misunderstood, medium through which social actors at various levels and in various forms can structure and order their interactions, reflect their desires and manifest their concerns. It is neither static nor predictable. Following a period in which there have been high expectations of what international law can achieve, the next few years may be times of challenge as it struggles to deliver solutions which have become expected of it. But this is merely part of the endless re-calibration necessary to reflect the tasks to which it is being put and the realities which need to be faced. If international law does not disappoint from time to time it will cease to be a source of aspiration – and that would make for a far bleaker future.”
“International law has undergone dramatic change in the past fifty years, with issues from human rights to the environment to trade now the subjects of a wide range of hard and soft law instruments. Yet, many of the principles encapsulated within these documents remain unrealized due to the inability of international law to influence domestic law and national political priorities. Oftentimes, international law seems to remain distinct from domestic systems, treated with suspicion by national institutions.
“In the twenty first century, the national and international cannot be so easily separated. In areas such as refugee flows, arms proliferation, environmental degradation and combatting impunity, domestic initiatives and capability hold the key to international security. Agreement on and adherence to international standards is essential if global threats with national origins are to be managed effectively. International law must become not only the standard setter but the enabler and enhancer of domestic capacity. One of the key challenges will be to alter perceptions of international law itself. Rather than being viewed as something to be resisted or resented, side-stepped or paid lip service to, international legal standards must become part of domestic legislative and political agendas. The challenge is enormous, but essential, because, in the words of Anne-Marie Slaughter, the future of international law is domestic.”
“In the security regime, the future of international law looks increasingly dim. Attributability is a prerequisite for accountability, and powerful governments are discovering new ways to mask innovative forms of coercion behind a veil of anonymity. “Little green men” with no visible identification, untraceable drone strikes, “NATO” bombings that conceal belligerents’ identities, cyber-attacks masked by false flags—these sorts of intrusions all erode the rule of law by making it difficult if not impossible to impute responsibility. Should this trend continue, the security regime could look increasingly like Ferguson, Missouri—a juridical black hole where lawless police hide their badges.”
“In my opinion, the future of international law in the coming decades will continue to be shaped by the continued tensions between sovereignty and other interests of the international community, such as the protection of the environment, the development of the Responsibility to Protect and more broadly human rights.
“On the one hand, states will obviously have to continue to accept that the traditional Westphalian model of international law is facing challenges and that things cannot be as they were in the past.
“But on the other hand, activists in various fields need to accept that the world is not changing as fast as they would like everyone to believe and that sovereignty remains a key feature of the international legal order. To a certain extent, as a feature of any given community, sovereignty is in fact conceptually unavoidable in one shape or another, whether at the domestic or the international level. Testimony to this is the continued relevance in international affairs of national(istic) claims which find their legal cristalisation in concepts such as statehood, self-determination and the prohibition of the use of force in international law.
“Accepting this reality is key in shaping realistic, effective and intellectually sound policies that not merely focus on individual rights, however important they are, but also take into account the collective dimensions and interests of any human society.”
— Dov Jacobs, Associate Professor in International Law at the Grotious Centre, Leiden University, contributor to “Targetting the State in Jus post Bellum: Towards a theory of Integrated Sovereignties” in Jus Post Bellum: Mapping the Normative Foundations
In the 1990s, policing in major US cities was transformed. Some cities embraced the strategy of “community policing” under which officers developed working relationships with members of their local communities on the belief that doing so would change the neighborhood conditions that give rise to crime. Other cities pursued a strategy of “order maintenance” in which officers strictly enforced minor offenses on the theory that restoring public order would avert more serious crimes. Numerous scholars have examined and debated the efficacy of these approaches.
A companion concept, called “community prosecution,” seeks to transform the work of local district attorneys in ways analogous to how community policing changed the work of big-city cops. Prosecutors in numerous jurisdictions have embraced the strategy. Indeed, Attorney General Eric Holder was an early adopter of the strategy when he was US Attorney for the District of Columbia in the mid-1990s. Yet, community prosecution has not received the level of public attention or academic scrutiny that community policing has.
A possible reason for community prosecution’s lower profile is the difficulty of defining it. Community prosecution contrasts with the traditional model of a local prosecutor, which is sometimes called the “case processor” approach. In the traditional model, police provide a continuous flow of cases to the prosecutor, and she prioritizes some cases for prosecution and declines others. The prosecutor secures guilty pleas in most of the pursued cases, often through plea bargains, and trials are rare. The signature feature of the traditional prosecutor’s work is quickly resolving or processing a large volume of cases.
Community prosecution breaks with the traditional paradigm and changes the work of prosecutors in several ways. It removes prosecutors from the central courthouse and relocates them to a small office in a neighborhood, often in a retail storefront. This permits the prosecutor to develop relationships with community groups and individual residents, even allowing residents to walk into the prosecutor’s office and express concerns. It frees the prosecutors from responsibility for managing the flow of cases supplied by police and allows them to undertake two main tasks. The first is that prosecutors partner with community members to identify the sources of crime within the neighborhood and formulate solutions that will prevent crime before it occurs. The second is that when community prosecutors seek to impose criminal punishments, they develop their own cases rather than rely on those presented by police, and they typically focus on the cases they anticipate will have the greatest positive impact on the local community.
In the past fifteen years, Chicago, Illinois, has had a unique experience with community prosecution that allowed the first examination of its impact on crime rates. The State’s Attorney in Cook County (in which Chicago is located), opened four community prosecution offices between 1998 and 2000. Each of these offices had responsibility for applying the community prosecution approach to a target neighborhood in Chicago, and collectively, about 38% of Chicago’s population resided in a target neighborhood. Other parts of the city received no community prosecution intervention. The efforts continued until early 2007, when a budget crisis compelled the closure of these offices and the cessation of the county’s community prosecution program. For more than two years, Chicago had no community prosecution program. In 2009, a new State’s Attorney re-launched the program, and during the next three years, the four community prosecution offices were re-opened.
This sequence of events provided an opportunity to evaluate the impact of community prosecution on crime. The first adoption of community prosecution in the late 1990s lent itself to differences-in-differences estimation. The application of community prosecution to four sets of neighborhoods, each beginning at four different dates, enabled comparisons of crime rates before and after the program’s implementation within those neighborhoods. The fact that other neighborhoods received no intervention permitted these comparisons to drawn relative to the crime rates in a control group. Furthermore, Chicago’s singular experience with community prosecution – its launch, cancellation, and re-launch – furnished a sequence of three policy transitions (off to on, on to off again, and off again to on again). By contrast, the typical policy analysis observes only one policy transition (commonly from off to on). These multiple rounds of program application enhanced the opportunity to detect whether community prosecution affected public safety.
The estimates from this differences-in-differences approach showed that community prosecution reduced crime in Chicago. The declines in violent crime were large and statistically significant. For example, the estimates imply that aggravated assaults fell by 7% following the activation of community prosecution in a neighborhood. The estimates for property crime also showed declines, but they were too imprecisely estimated to permit firm statistical inferences. These results are the first evidence that community prosecution can produce reductions in crime and that the reductions are sizable.
Moreover, there was no indication that community prosecution simply displaced crime, moving it from one neighborhood to another. Neighborhoods just over the border of each community prosecution target area experienced no change in their average rates of crime. The declines thus appeared to reflect a true reduction instead of a reallocation of crime. In addition, the drops in offending were immediate and sustained. One might expect responses in crime rates would arrive slowly and gain momentum over time as prosecutors’ relationships with the community grew. But the estimates instead suggest that community prosecutors were able to identify and exploit immediately opportunities to improve public safety.
This evaluation of the community prosecution in Chicago offers broad lessons about the role of prosecutors. As with any empirical study, some caveats apply. The highly decentralized and flexible nature of community prosecution forbids reducing the program to a fixed set of principles and steps that can be readily implemented elsewhere. To the degree that its success depends on bonds of trust between prosecutor and community, its success may hinge on the personality and talents of specific prosecutors. (Indeed, the article’s estimates show variation in the estimated impacts across offices within Chicago.) At minimum, the results demonstrate that, under circumstances that require more study, community prosecution can reduce crime.
More broadly, the estimates suggest that the role of prosecutors is more far-reaching than typically thought. Crime control is conventionally understood to be primarily the responsibility of police. It was for this very reason that in the 1990s so much attention was devoted to the cities’ choice of policing style – community policing or order maintenance. Restructuring the work of police was thought to be a key mechanism through which crime could be reduced. By contrast, a conventional view of prosecutors is that their responsibilities pertain to the selection of cases, adjudication in the courtroom, and striking plea bargains. This article’s estimates show that this view is unduly narrow. Just as altering the structure and tasks of police may affect crime, so too can changing how prosecutors perform their work.
Making the leap between school and university can be a stretch at the best of times, but for UK law students it can be a real struggle. As there is no requirement to study law at school before beginning an undergraduate programme, many new law students have a very limited knowledge of how the law works and what they can expect from their studies.
We asked a group of 77 law students from around the UK about how they prepared for their courses. It turns out, only a third of them did any reading before starting, but a vast majority would have done, if only their university had given them a bit of advice.
What range of career options are out there for those attending law school? In this series of podcasts, Martin Partington talks to influential figures in the law about topics ranging from restorative justice to legal journalism.
Restorative Justice: An interview with Lizzie Nelson
The Restorative Justice Council is a small charitable organisation that exists to promote the use of restorative justice, not just in the court (criminal justice) context, but in other situations of conflict as well (e.g. schools). In this podcast Martin talks to Lizzie Nelson, Director of the Restorative Justice Council.
Handling complaints against lawyers: An interview with Adam Sampson
In this podcast, Martin talks to Adam Sampson, Chief Legal Ombudsman. They discuss the work of the Legal Ombudsman, how it operates, the kinds of issue it deals with, and some of the limitations the office has to deal with matters raised by dissatisfied clients.
Reporting the law: An interview with Joshua Rozenberg
Joshua Rozenberg is one of a very small number of specialist journalists who cover legal issues in a serious and thoughtful way. He has worked in a wide variety of media, including the BBC, The Daily Telegraph, and The Guardian. In this interview, he describes how he decided to become a journalist rather than a practising lawyer and comments on the challenges of devising ways to enable legal issues to be raised in mass media.
As we enter the potentially crucial phase of the Scottish independence referendum campaign, it is worth remembering more broadly that political campaigns always matter, but they often matter most at referendums.
Referendums are often classified as low information elections. Research demonstrates that it can be difficult to engage voters on the specific information and arguments involved (Lupia 1994, McDermott 1997) and consequently they can be decided on issues other than the matter at hand. Referendums also vary from traditional political contests, in that they are usually focused on a single issue; the dynamics of political party interaction can diverge from national and local elections; non-political actors may often have a prominent role in the campaign; and voters may or may not have strong, clear views on the issue being decided. Furthermore, there is great variation in the information environment at referendums. As a result the campaign itself can be vital.
We can understand campaigns through the lens of LeDuc’s framework which seeks to capture some of the underlying elements which can lead to stability or volatility in voter behaviour at referendums. The essential proposition of this model is that referendums ask different types of questions of voters, and that the type of question posed conditions the behaviour of voters. Referendums that ask questions related to the core fundamental values and attitudes held by voters should be stable. Voters’ opinions that draw on cleavages, ideology, and central beliefs are unlikely to change in the course of a campaign. Consequently, opinion polls should show very little movement over the campaign. At the other end of the spectrum, volatile referendums are those which ask questions on which voters do not have pre-conceived fixed views or opinions. The referendum may ask questions on new areas of policy, previously un-discussed items, or items of generally low salience such as political architecture or institutions.
Another essential component determining the importance of the campaign are undecided voters. When voter political knowledge emanates from a low base, the campaign contributes greatly to increasing political knowledge. This point is particularly clear from Farrell and Schmitt-Beck (2002) where they demonstrated that voter ignorance is widespread and levels of political knowledge among voters are often overestimated. As Ian McAllister argues, partisan de-alignment has created a more volatile electoral environment and the number of voters who make their decisions during campaigns has risen. In particular, there has been a sharp rise in the number of voters who decide quite late in a campaign. In this case, the campaign learning is vital and the campaign may change voters’ initial disposition. Opinions may only form during the campaign when voters acquire information and these opinions may be changeable, leading to volatility.
The experience of referendums in Ireland is worth examining as Ireland is one of a small but growing number of countries which makes frequent use of referendums. It is also worth noting that Ireland has a highly regulated campaign environment. In the Oireachtas Inquiries Referendum 2011, Irish voters were asked to decide on a parliamentary reform proposal (Oireachtas Inquiries – OI) in October 2011. The issue was of limited interest to voters and co-scheduled with a second referendum on reducing the pay of members of the judiciary along with a lively presidential election.
The OI referendum was defeated by a narrow margin and the campaign period witnessed a sharp fall in support for the proposal. Only a small number of polls were taken but the sharp decline is clear from the figure below.
Few voters had any existing opinion on the proposal and the post-referendum research indicated that voters relied significantly on heuristics or shortcuts emanating from the campaign and to a lesser extent on either media campaigns or rational knowledge. The evidence showed that just a few weeks after the referendum, many voters were unable to recall the reasons for their voting decision. An interesting result was that while there was underlying support for the reform with 74% of all voters in support of Oireachtas Inquiries in principle, it failed to pass. There was a very high level of ignorance of the issues where some 44% of voters could not give cogent reasons for why they voted ‘no’, underlining the common practice of ‘if you don’t know, vote no’.
So are there any lessons we can draw for Scottish Independence campaign? Scottish independence would likely be placed on the stable end of the Le Duc spectrum in that some voters could be expected to have an ideological predisposition on this question. Campaigns matter less at these types of referendums. However, they are by no means a foregone conclusion. We would expect that the number of undecided voters will be key and these voters may use shortcuts to make their decision. In other words the positions of the parties, of celebrities of unions and businesses and others will likely matter. In addition, the extent to which voters feel fully informed on the issues will also possibly be a determining factor. It may be instructive to look at another Irish referendum, on the introduction of divorce in the 1980s, during which voters’ opinions moved sharply during the campaign, even though the referendum question drew largely from the deep rooted conservative-liberal cleavage in Irish politics (Darcy and Laver 1990). The Scottish campaign might thus still conceivably see some shifts in opinion.
Headline image: Scottish Parliament Building via iStockphoto.
Martin Partington discussed a range of careers in his podcasts yesterday. Today, he tackles how new legal issues and developments in the professional environment have in turn changed organizational structures, rules and regulations, and aspects of legal education.
Co-operative Legal Services: An interview with Christina Blacklaws
Co-operative Legal Services was the first large organisation to be authorised by the Solicitors Regulatory Authority as an Alternative Business Structure. In this podcast, Martin talks to Christina Blacklaws, Head of Policy of Co-operative Legal Services.
The role of chartered legal executives: An interview with Diane Burleigh
The Chartered Institute of Legal Executives sets standards for and regulates the activities of legal executives, who play an important role in the delivery of legal services. In this podcast Martin talks with Diane Burleigh, the Chief Executive of CILEX, about the challenges facing the legal profession and the opportunities provided for Legal Executives in the rapidly developing legal world.
Educating Judges and the Judicial College: An interview with Lady Justice Hallett
The Judicial College was created by bringing together separate arrangements that had previously existed for training judicial office-holders in the courts (the Judicial Studies Board) and Tribunals Service (through the Tribunals Judicial Training Group). In this podcast Martin talks to its Chairman, Lady Justice Hallett, about the reasons for the change and ways in which the College is developing new ideas about judicial education.
When it comes to assessing someone’s sincerity, we pay close attention to what people say and how they say it. This is because the emotion-based elements of communication are understood as partially controllable and partially uncontrollable. The words that people use tend to be viewed as relatively controllable; in contrast, rate of speech, tone of voice, hesitations, and gestures (paralinguistic elements) have tended to be viewed as less controllable. As a result of the perception of speakers’ lack of control over them, the meanings conveyed via paralinguistic channels have tended to be understood as providing more reliable evidence of a speaker’s inner state.
Paradoxically, the very elements that are viewed as so reliable are consistent with multiple meanings. Furthermore, people often believe that their reading of another person’s demeanor is the correct one. Many studies have shown that people – judges included – are notoriously bad at assessing the meaning of another person’s affective display. Moreover, some research suggests that people are worse at this when the ethnic background of the speaker differs from their own – not an uncommon situation when defendants address federal judges, even in 2014.
The element of defendants’ demeanor is not only problematic for judges; it is also problematic for the record of the proceedings. This is due to courtroom reporters’ practice of reporting the words that are spoken and excluding input from paralinguistic channels.
I observed one case in which this practice had the potential for undermining the integrity of the sentencing hearing transcript. In this case, the defendant lost her composure while making her statement to the court. The short, sob-filled “sorry” she produced mid-way through her statement was (from my perspective) clearly intended to refer to her preceding tears and the delays in her speech. The official transcript, however, made no reference to the defendant’s outburst of emotion, thereby making her “sorry” difficult to understand. Without the clarifying information about what was going on at the time – namely, the defendant’s crying — her “sorry” could conceivably be read as part of her apology to the court for her crime of robbing a bank.
Not distinguishing between apologies for the crime and apologies for a problem with delivery of one’s statement is a problem in the context of a sentencing hearing because apologies for crimes are understood as an admission of guilt. If the defendant had not already apologized earlier, the ambiguity of the defendant’s words could have significant legal ramifications if she sought to appeal her sentence or to claim that her guilty plea was illegal.
As the above example illustrates, the exclusion of meaning that comes from paralinguistic channels can result in misleading and inaccurate transcripts. (This is one reason why more and more police departments are video-recording confessions and witness statements.) If a written record is to be made of a proceeding, it should preserve the significant paralinguistic elements of communication. (Following the approach advocated by Du Bois 2006, one can do this with varying amounts of detail. For example, the beginning and ending of crying-while-talking can be indicated with double angled brackets, e.g., < < sorry > >.) Relatedly, if a judge is going to use elements of a defendant’s demeanor in court to increase a sentence, the judge should be prepared to defend this decision and cite the evidence that was employed. Just as a judge’s decision based on the facts of the case can be challenged, a decision based on demeanor evidence deserves the same scrutiny.
On August 23rd the United Nations observes the International Day for the Remembrance of the Slave Trade and its Abolition. In honor of this day, we examine the history of slavery and its abolition, and shed light on contemporary slavery practices.