Please note: Enquiries concerning the Marie Celeste should be addressed to Mr. Conan Doyle, not the department of maritime law.

The Tenth Gabriele Ganz Lecture in Public Law :: 10 November 2005

Arvind Sivaramakrishnan

What do we do when Parliament passes law which puts institutions of state beyond the law? Our former colleague Raymond Plant, now Dean-elect of the School of Law at King’s College London and a member of Parliament's Joint Committee on Human Rights, gave us a fascinating account of a continuing tension between Parliament and the judiciary. Indeed the judiciary are apparently ready to defy Parliament and thereby overturn the central British constitutional principle of Parliamentary sovereignty; for example, in 2004, the judiciary seemed to regard the Asylum and Immigration (Treatment of Claimants) Bill as itself breaching the rule of law because it would have prevented tribunal decisions from being reviewed by the courts. The courts were prepared to step in and curb such legislative excesses by Parliament.

The issue turns on the meaning of the rule of law. With his customary and distinctive combination of intellectual authority and political experience, Plant outlined three approaches to it, and their respective problems. According to the first approach, Acts of Parliament are framed in such general terms as to be of little value until the courts interpret them in particular cases and thereby give them a precise meaning which they could not otherwise have. This approach goes back at least as far as Aristotle's critique of Plato, and regards the judge as an interpreter who gives specific form to general law. For the lawyers among us, Plant noted that this is not statutory interpretation but constitutive construction.

The problem is that this takes statute to be linguistically indeterminate, and effectively says there is nothing outside judges' interpretations of statute; as Plant said, "Derrida meets the legislative draftsmen." Further, is any and every interpretation going to be acceptable? This philosophic observer even wondered what it was that was being interpreted.

The second theory is that the rule of law is part and parcel of the traditions and practices of a democratic state; it is therefore perfectly legitimate for the courts to use such principles in reaching their decisions, even if doing so restricts the legislative power of Parliament. This approach has juridical and academic weight behind it, and even in a moderated form would enable the courts to refuse to apply law which violated democratic principles provided the judiciary were prepared to face the consequences.

The general principles of democratic states — such as fairness, freedom, justice, and so on — are, however, necessarily rather thin, and need to be rendered substantive by interpretation and elaboration. For example, is freedom from coercion only freedom from intentional coercion, or can it include coercion resulting from structural factors like poverty or scarcity of resources? Indeed, the more detailed the articulation of the wider concepts here, the more intense is the controversy over them — witness the battles over entitlement to state provision in all manner of areas. Plant's conclusion here is that an argument from political theory cannot on its own serve as a foundation for the authority of judges.

The third approach regards the rule of law as embodied in the common law, namely the body of law created by judges' rulings and not by Acts of Parliament. The common law is based not on abstract principles or theories but is a feature of a culture or community which gives concrete meaning to concepts such as freedom, fairness, access to justice, and the like. Those enduring cultural principles are therefore of a higher order than Acts of Parliament, which in any case can be repealed or amended by successor Parliaments. In effect, the sovereignty of Parliament is itself a product of common law, and exists only because the judges have chosen to recognize Parliament as sovereign.

This approach draws on "a rich heritage" of previous cases, but it works only if a set of coherent principles can be identified in the body of common law. In any case, the idea of a common-law constitution is intensely disputed by jurists, and that should make us pause before accepting it. (Even a little acquaintance with case-law should make us cautious about the idea that it contains any immanent coherent principles, and even more cautious about the idea that it expresses and protects higher principles of a benign and dignified cultural life or history.)

If the idea of the rule of law is not problematic enough anyway, the British situation has been complicated further by the passing of the Human Rights Act 1998, which also incorporates much of the case-law already created under the European Convention on Human Rights. The Human Rights Act, being an Act of Parliament, does not infringe Parliamentary sovereignty, and Parliament can repeal it at any time.

The Act, nevertheless, looks as if it embeds the idea of rights and the rule of law in the United Kingdom's system of state and law. Every Bill put before Parliament must contain the sponsoring minister's statement of compatibility with the Act, and both chambers of Parliament have established a Joint Human Rights Committee, which examines bills in detail and submits a report before a bill's second reading in the second house of its passage through Parliament. Further, the judiciary can declare a bill incompatible with the Human Rights Act, and in sum the Act looks like a neat solution to the problems over the rule of law.

Would that that were so. In fact there is no requirement that a bill's Explanatory Notes contain a reasoned statement of compatibility, and indeed the Identity Cards bill contained no reference to the bill's human-rights implications. In addition, many of the rights included in the European Convention and the Human Rights Act are themselves subject to abrogation on the grounds of national security. Above all, the provisions of the Act themselves have to be interpreted in particular cases, and we encounter the problems of linguistic indeterminacy again. The risks of what some call interpretative creep, namely progressively greater divergence from the words of the statute, are obvious, and it has even happened that a judge in a lower court has invoked the European Charter of Fundamental Rights and Freedoms — which is not a source of law at all — in deciding a case which involved disability rights.

There is yet more. While it is not a problem that applying the Human Rights Act requires the judiciary to assess the extent to which any legislative restriction of rights is proportionate to the problem at hand, the judiciary find themselves having to make judgments on the substantive ends and means of legislation. The problems this causes are exemplified in Rehman, an appeal against deportation under anti-terrorism legislation. The legitimacy of a legislative aim then turns on the ruling of a panel of judges, or — in the lower courts — a single judge. And in respect of other rights under the Act, the judiciary have had great difficulty over the Act's very applicability to services which have been contracted-out by the public sector.

Plant suggested that many problems of the relation between the judges and Parliament would be greatly diminished, and with them the threat of judicial challenge to Parliamentary sovereignty, if Parliament adopted internal procedures consistent with the Human Rights Act, particularly if the Commons were to "act in a much more responsible way" by improving very greatly its scrutiny of bills brought before it. Plant did not give the example, but a famous Law Lord advised an academic seminar over a decade ago that the judiciary were becoming much more severe with government at judicial review because Parliament was "useless as a check on the executive."

That little seems to have changed since then signifies a major question arising from Plant's lecture, namely the nature of the Commons, the elected and purportedly representative chamber of the sovereign legislative assembly of the United Kingdom. As to the record of the Commons in scrutinizing either draft legislation or executive action, well res ipsa loquitur. The likelihood of any improvement in that record remains a matter for speculation.

The discussion also raised some uncomfortable issues. In response, Plant said he would like to see the Human Rights Act, apparently already unpopular in many areas of the system of state, "brought down" to everyday issues, presumably issues of how public officials and services conduct themselves towards the public, towards their own staff, and so on. Some, including Rodney Livingstone, asked if Plant was justifying the "standard" view of Parliament as the sovereign body, and brought to our attention a parallel with the tensions between the Weimar parliament and judiciary in 1933.

The tenor of Plant's responses was that many of the issues around the idea of the rule of law are still in the process of resolution, and that it is not for philosophy to ordain in advance the form of their resolution. True to his Hegelian inheritance, Plant suggested that we shall understand the process of the resolution only when it is complete, when the dusk has fallen and the owl spreads its wings.

Our journey started from the university car park by coach to Portsmouth, thence by overnight ferry to Le Havre where we rejoined the coach and on to Paris. Breakfast was a six-thirty scramble on the boat unless one waited until mid-morning and left the coach as some did at the Arc de Triomphe to be picked up there in the afternoon for the short trip to our hotel situated in the commercial centre north of the river. Tempting though coffee and croissants on a sidewalk café were, watching the world go by, we opted for the city tour and left our exploration of the café scene until lunch.

France's history and culture are written into every Paris Boulevard and building, a truly monumental city centre well illustrated for us by our guide to all things French, Gerry, who was also our genial host and tour organizer. Much of the success and slickness of this trip was due to his consideration and ministrations together with our driver Gordon, known by the nickname: "Flash Gordon" after the precursor to "Star Trek", not with any of the latter-day meanings of that word — an indication perhaps of the age profile of the group. In the evening there was an hour-long ride on a bateau mouche, which turned out to be not the oft-advertised romantic river experience, but a tourist set-piece "must" used by hordes of visitors from all parts of the globe. Then there followed a dinner at a restaurant patronised by most in the group, but not by me and my companion who found their own restaurant and took a taxi back to the hotel.

The following morning we spent in Versailles, dividing the time between a produce market and Louis the 14th's sumptuous palace and gardens. Time did not allow more than a cursory visit, as we had to make the return sailing to reach home by ten o'clock.

"I love Paris in the spring-time, I love Paris in the fall." goes the song with no mention of high summer when Paris is usually stiflingly hot and airless, dusty and devoid of Parisians. But the clichés like the seasons are often wrong: "April in Paris" is often chill and maussade, whereas our weather had all the delight of spring with a comfortable warmth. Amazingly, traffic was light and we were never held up in this, a city notorious for its snarl-ups. All in all it was a most enjoyable experience and none should shy off a future trip for fear of amateurish organization or of being herded together with people just like them.

Alan Waring is a former Professor of the University of Sheffield and Associate member of the University of Southampton Staff Club.

Now this period is over and David Cameron takes power after a remarkably open and public leadership contest that has raised his profile from unknown to recognised public figure, it is an opportunity for the Conservatives under Cameron to realign themselves as a party worthy of the electorate, a party "of the many, not the few" and indeed a party that offers the whole electorate something tangible. Cameron's first job will be to shake off the "nasty party" image that has dogged the Conservatives: if he fails to do this, the party will remain in the doldrums anon.

Cameron's Conservatives must embrace a "modern" or "compassionate" conservativism that is more than just a sound bite. Conservatism cannot continue to be a byword for backward looking, bigoted views, and inequality: this is not what the party stands for in the 21st century and Cameron must make inroads into removing this stereotype. "Damn your principles! Stick to your party", Benjamin Disraeli, the 19th Century Prime Minister, famously stated, yet Mr Cameron has plenty of leeway to be compassionate without compromising his party affiliation, contrary to the vocal critics who have dismissed him as another Blair. Cameron must move away from the Tories obsession with populist, "core" vote policies and sound bites that switch off huge sections of the electorate, indeed often students, along with ethnic minorities, lower and lower-middle class groups as well as public sector workers; whilst at the same time not compromising the core Tory voters. Fundamentally, many of these aggrieved sections agree with the hard working, low tax and small government policies which the Conservatives have put forward at successive elections. The problem is in their perception of the party as backward looking and bigoted, something that Conservatives have foolishly perpetuated in recent years with ill thought-out and badly stage managed campaigns, such as the controlled immigration pledge of the previous election that became immediately became tarnished by comparisons with the far right.

Between the main parties there is consensus in improving public services and there is ideologically much in common between government and opposition in terms of their end goals. It is in the approach to reform where Conservatives have their best chance of winning back power at the next election. In an increasingly tolerant, caring and compassionate world, a party which places its needs above those of others will not be elected.

The Conservative Party must demonstrate that it is the party that will continue to reform public services whilst saving money, decreasing bureaucracy and addressing the failures of the current government. It must continue to show itself as open to ideas — as the many debates between the two leadership candidates has already shown — without abandoning its ideological conservatism, a balance that if David Cameron can achieve, will ensure the connexion of the party with the populace of Britain.

David Davis' backers have criticised the youth and lack of political experience that Cameron has, if we are to quote Disraeli once more, "the secret of success in life is for a man to be ready for his opportunity when it comes", whether the younger David's opportunity is now, only time will tell.

We asked one of the exhibiting artists, Shaun Doyle, at the last minute to review this exhibition and he sent this to the editor the next day:

I've been trying to write you something, but it all came out bullshit. I was quite pleased with the title though...'CAT FLAP FOR THE SOUL'

Fill in the missing letters so that each letter occurs in each row, each column and each highlighted 3 by 3 square. As an additional aid a single English word occurs in one of the rows or columns.

Here is No 1, you need to identify book and author and what was Attlee's (and Churchill's and Lewis Silkin's) broken promise and, if not exactly which Council, whereabouts in the Country?

"As a 'clerk' who would never have dreamed of strutting about as a 'chief executive', Durant-Lewis may have built up a thrifty and effective council machine; but when he took the memory of Attlee's promise into the gleaming palace of privatising bureaucracy his council has since become, he was told that it wasn't on, and that the council had been incorrect to accept such an unrealistic agreement in the first place."

For No 2, the author is the same (idem as we used to say), but although the quote is given in the same volume, it comes originally from what newspaper and a profile of whom?

"As ****** ****** once remarked of the easily hijacked language of patriotism, 'The trouble with words is you never know whose mouths they've been in'."

No. 3 is something of a commonplace, but no less telling for that. You'll detect the slightly ingénue, even sycophantic air which may help in the identification. Author(s), subject ('He') and famous title needed, also the provenance of that title.

"He had always been interested in education, he told me. He felt most people stopped learning when they left college because they had not been taught properly. 'The object of education is to provide you with a key to knowledge,' he explained. But most people, on leaving college, threw the key away. 'Only those who are eager for it should have a college education. The schools are neglecting their most important responsibility: to make education interesting, to make you love and enjoy it, to apply it to your own life after you leave school.' Some day, he said, he'd like to write a book on the subject."

Happy searching

2. Film, North by Northwest; "I am but mad North North West"; Compass bearing.

3. -5: C5; E5 (postcode); F(ujita)-5 (scale of tornado damage); I(nterstate)-5; L(agrange point) 5; (Bell) X-5.

4. Antipopes.

5. g; Ag; rag; drag; Drago; dragon; dragoon.

6. One letter difference: muff; MAFF; naff; naïf; waif; wait; wart; hart; hurt; hurl; curl.

7. All mis-spelled.

8. 17: Louis XVII; wanted a heptadecagon on his gravestone (but was refused by the mason); 17th September; 17ème arrondissement; Messier object M17

No winner was declared for the second quiz.

1. John Beynon; Johnson Harris; Lucas Parkes.

2. bird; party animal; wanderer (at sea?); obscure; occult group; cheat; twelve; senior person.

3. Mathematical Recreations; Constant Craving; Sons and Lovers; The History of Mr Polly; The Man Who was Thursday.

4. Henry James; Hans Holbein; Geri Halliwell, Wole Soyinka, Angelina Jolie and Mia Farrow; 16 Collingham Road, SW5; West St, WC2.

5. Bangladesh; Mile End, Bank, Notting Hill Gate and Ealing Broadway; Colour blindness; T. Nebularia and T. Totanus; Right and left

6. Armand Jean du Plessis; neighbourhood; Edward John Barrington Douglas-Scott-Montagu

7. US Naval legalist; yearly shareholder's bash; doctors' governors; cricketing rule-makers; digital camera; "workshop" lessons; government business department; Del Boy

8. Donnie Brasco; President of ICANN; 9th Earl of Emsworth, Viscount Bosham; Conservative PM; Hazel's lepine brother; Pope, 1521-1590

Letters

Dear Editor,

My attention has been drawn to a recent article by the Union President, on the Union Website, and I shall quote from it in a moment. Its underlying attitude of ageism and sloppy thinking is so appalling that I believe that University Teachers should be thinking again about the ancient problem — how to produce graduates with a modicum of critical intelligence. That problem remains unsolved, as is revealed daily by our parliamentarians and tabloid journalists, but of course, many teachers don't let the problem impinge explicitly on their their teaching ("Not part of the Subject").

Anyway, to the President's article, which is not likely to further good relations between the University and its neighbouring community (and I get tired of defending us against irritated neighbours). After thoughts on other matters, the President comes to the recent attempt by neighbours to persuade the relevant authorities to cut opening hours in the Union bars, rather than extending them further as desired by the Union. The neighbours' case was approved , but the Union is appealing, and meanwhile the existing hours will remain. I now quote examples of the President's scholarship:

He first explains the background, — the financial need to open until 11pm, and then the need to renew the separate "Public Music and Dancing License", which allows late opening on Club nights. ("Late" means 2 am on restricted nights, and the Union hopes to open later still on more nights.) This License is dealt with by a sub-committee of the City Council, rather than by the magistrates. Then he writes (and I hope I copy his punctuation and syntax accurately):

"You can come to your own conclusions on the amount of impartiality the council would have, given the fact that the Licensing Sub-committee consists of 5 elected councillors who coming into an election years were the people who actually bother to vote in local elections are the type of people who got bed early, are retired and need something to occupy their day. Anyway after almost four hours in court, we presented evidence the residents lied and got confused"

"a very rude local resident who was sitting next to me smirked and told me I had got what I deserved!!!"

"Needless to say this issues had been brewing for awhile, students just do not show any amount of social responsibility when travelling home, I would like you as councillors to remind all students that when they are returning from any pub or club in the city that they must be quiet and behave themselves. Ultimately if we do not start behaving ourselves, the reputation of our degrees will suffer."

Compared with my day, (I retired 13 years ago) University Staff now have so much pressure from Mad Management that they will find it very hard to guide graduates into being admirable citizens. But isn't that still an important function of teaching in a University?

Yours sincerely and sadly,
Brian Griffiths

Back to Contents

Southampton's Heritage

Dear Editor

Alec Samuels' excellent article [Town and gown, Issue 446, October 2005] was both comprehensive and stimulating.

I have advocated for some years now that there should be a jointly funded post [the Universities and SCC] to act as a liaison bridge. The responsibilities would range from planning proposals, coordinating special commemorative events or anniversaries, work placement projects and heritage research and conservation. The liaison post holder could encourage and focus voluntary help in the field of research to practical hands on experience in conservation. Be it industrial architectural projects, air, sea or land transport, Commons and open spaces to a Victorian cemetery there are several organisations waiting to welcome and encourage both short and long term support. The heritage community with the Southampton Heritage Federation at its centre is a rich source of local authors and historians.

Earlier suggestions that the Universities and the Southampton and Fareham Chamber of Commerce link with the SHF have so far been met with indifference. Even if the formal liaison post is at this stage a step too far surely a representative of the Universities and C of C could be associate members of SHF and at least have a finger on the pulse and identify parts of the town's social history being lost at an alarming rate.

It is in the main the Federation and its constituent members who have engaged with the city council in trying to make the city more conscious of its heritage and the greater potential of tourism income supporting our citizens. As we lose traditional employment [Vospers, Ordnance Survey etc] and our city fills with more and more blocks of flats, nightclubs and shopping centres we in turn encroach onto and then destroy our heritage. We will never catch up with Portsmouth or Bristol but the heritage still remaining would be in lesser peril if a partnership — the council, the Federation, the Universities and businesses joined in positive efforts to address the problem.

The SHF can be contacted via Solent Sky [Hall of Aviation]. Membership is open to individuals as well as societies and groups.

John G. Avery
Southampton Heritage Federation
Founder member

FRIENDS OF SOUTHAMPTON OLD CEMETERY "Emblems & Symbols — a look at Victorian funeral traditions" by JOHN G. AVERY £4.00 at Hawthorns, Southampton Tourism Centre or Echo shop.