Archive | December, 2012

At the Movies

28 Dec

If our readers wish any entertainment advice for the festive season, then we advise that they consider Skyfall (the latest James Bond) and The Hobbit: An Unexpected Journey (the first of three) as possibilities. Constitutional lawyers will find much to enjoy in Skyfall (it’s also a pretty decent action film) while those who prefer Land Law or Equity will probably incline to the themes and gentler pace of Hobbit I.

We will have to wait until Hobbit III in two years’ time to see whether Peter Jackson’s updating of Smaug includes his putting in a claim for Adverse Possession of the Lonely Mountain. Tempting as it is to suggest that Smaug sue Bilbo for violating his Privacy, the risk of tabloid misunderstanding is just too great …

Dancing on the Edge ?

27 Dec

The writer has read with interest for a while now Press references to a body called The Marriage Foundation, founded by the High Court (Family Division) Judge Sir Paul Coleridge. One might say that for a Family Judge to favour marriage is a bit like a Chancery Judge favouring property – yes, of course, and are you now going to tell me about bears’ personal hygiene habits ? However, marriage is fairly obviously a controversial matter at the moment, and even an organisation that simply says it promotes marriage is going to be treated with suspicion: the whole topic is so politically loaded – however broad the range of legal luminaries cited as supporters.

The writer was not therefore surprised to find that there had been a complaint to the Office of Judicial Complaints about Sir Paul Coleridge’s involvement – controversial topic (however anodyne the group’s aims) and serving High Court Judge, surely not an A1 plan ? The official notice of their decision says little, beyond observing that Sir P had agreed that a lower profile for him personally be appropriate. That must have been before yesterday’s headlines about his thoughts on the Government’s plans to adjust the legal definition of ‘marriage,’ then ? Or does that oh-so-short decision notice cover an interview in which he told the LC and the QB Pres to ‘Go on, make my day’ ? Curiouser and curiouser …

Did the Crits Have a Point After All ?

26 Dec

The writer was reflecting recently on the USA’s gun laws and the Second Amendment – especially of course in the light of that primary school shooting a week or two ago. (If – hypothetically – some future reader is alas wondering ‘Which primary school shooting ?’ – try this link here to an angle on it)

Before we say more, here’s a link to a (Prof) Duncan Kennedy essay called ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’ 36 (1986) Journal of Legal Education 518 – yes, I know that’s a long title, that’s why I don’t want you to read it yet. It’s also a big pdf, so please start it uploading and read the rest of this while you wait.

Discussion of such incidents quickly moves to the Second Amendment to the US Constitution. The text follows, but Cornell Uni’s annotated version is warmly recommended.

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The leading case on this is District of Columbia v Heller (2008) (US Supreme Court). In Heller, the Supremes decide by a narrow 5-4 margin that a DC law that (more-or-less) totally bans handguns is unconstitutional.

Justice Scalia gives the lead judgement, for the majority, and there are dissents by Justice Stevens and Justice Breyer.

Recall, the DC law was a virtual ban on handguns. So – how did the minority explain that it was constitutional ? If one sets aside the merits of the Second Amendment, it is difficult (with all due respect) to see how
the dissenters achieve their outcome. The Justice Scalia approach has difficulties (a right to your own musket ?), for sure – but doesn’t it mean what it says ? If the consequences are tragic (discuss … – are they ?), the solution is a further amendment.

Of course, it may be that in Consti cases one is allowed (required ?) to have a view of the proposed rule’s merits, and decide accordingly. But it may be that it is also unwise/unpopular/both to say so. Back to Prof Duncan … and a future post …

Season’s Greetings !

26 Dec

A Merry Christmas, Happy Hanukkah, Delightful Diwali, Righteous Ramadan, Joyeux Noel, Feliz Nadividad and Maligayang Pasko, Bonne Annee and Blessed New Year to all our Readers!

Back in Business

22 Dec

The writer has wondered for some time what the Church of Scientology has been up to (in the Courts, we mean – this is not a post about Tom Cruise, etc, etc) for the last few years. The UK Charity Commission’s 1999 decision to deny them charitable status (ie/esp as a body that advances religion) was comprehensive, but not exactly bulletproof: surely the Charities Act 2006 by broadening (arguably, at least) what counts as a religion had helped them – so why no word ?

Now we know – or at least we can theorise, courtesy of a High Court judgement noted by our friends at the UK Human Rights Blog. On one reading, paragraph 5 of Mr Justice Ouseley’s judgement says that the Scientologists are already recognised officially as a charity – but at the least it says that at least some local authorities treat it as charitable for local tax purposes. That may well answer our question: they have taken a piecemeal approach instead, persuading individual local authorities to treat them as charitable. Since the Church is wealthy and litigious, this cannot always have been a difficult decision: apparently HMRC also grant them VAT relief now too.

All of which – and we make no criticism of these tactics – set up nicely the current case: R on the application of Louisa Hodkin & CSREC v Registrar General of Births Deaths & Marriages (2012). There is a media summary here, and the actual Law Report here. The issue was whether the Scientology Chapel in question was “a place of meeting for religious worship” – which would enable it to be registered to carry out fully effective weddings in its own right. Of course, if they get to do their own weddings then they get to seem a lot more like a Church (Mosque, Temple, etc) – but they need to be accepted as a “a place of meeting for religious worship” first, which may seem a bit chicken-and-egg. Lord Lester (their lawyer) surely made much of that.

In fact, both the Registrar and the Judge considered themselves bound by a 1970 Court of Appeal (CA) authority on a similar point, R v Registrar General ex parte Segerdal. Thus the write-up in the Metro about their going to the Supreme Court (SC) – only the SC can overrule the CA.

In Segerdal the CA treated there as being two major issues, which then needed to be combined:
(1) Was Scientology a religion ?
(2) Was what happens in its Chapels ‘worship’ ?

The CA had not formally decided about (1) – although Mr Justice Ouseley discerned doubts. Their main point had been (2) – that what Scientologists did at their gatherings was not ‘worship.’ As to (1), it seems the Judge might have been sympathetic, but he still seemed to think (2) problematic, claims that Scientology beliefs have developed since Segerdal notwithstanding.

We will hear more of this: in the meantime, the Charity Commission’s decision tables confirm that the Commission is still inclined to contest ‘religious’ groups’ claims to be a religion rather than a philosophy if their beliefs seem excessively vague or their practices not especially religious.

However, these do both seem questions of degree rather than quality, so it may be that the Scientologists are not so far from recognition as a religion after all. It is the writer’s impression that they do have reasonably definite beliefs, although these are not very widely known (it is sometimes suggested that you learn more as you advance/pay more), and the Chapel services (note ‘Chapel’) are evidently meant to mimic a Church service (they even have a ‘Scientology cross,’ it seems), although the Judge’s impression seems to be that they do not as yet do so very closely – but what is ‘closely enough’ ?

Why I Blog (with apologies to George Orwell)

21 Dec

As regular readers may have noticed – and those searching this blog in future may wonder – these have been a quiet two weeks on this blog.

Perhaps these pauses are useful in a number of ways, but one reason has frankly been a sense that there really was nothing that one could usefully say to an age in which those two Australian DJs could say without apparent irony (words to the effect) that ‘No-one can imagine how bad we feel now’ and be put on suicide watch – instead of (say) being given as good a shake as the law allows and told to be silent until they had something useful to say – something useful to say to the grieving children of the nurse to whose death their ‘prank’ had led.

Of course, no such thing has happened. Indeed, their boss was quoted as saying that the nurse’s death was “not reasonably foreseeable” – without so far as we can tell anyone referring him to JB Priestley’s play, An Inspector Calls (1947).

It also allows us to reflect on George Orwell’s essay, Why I Writeperhaps surprisingly available in extenso here (I would have thought it still in copyright).

Ultimately, however, it is as an ancient blogger put it:

‘If I had said – “I will not speak thus” –
I would have betrayed our children’

– or a Roman blogger put it –

‘It would in fact be harder not to blog’

– and we agree. The times call for a critical (in the sense of critique rather than necessarily of criticism in the popular sense) commentary – and those who can provide it must do so, whatever their doubts about their readership.

Staying Classy Down Under

8 Dec

Our readers probably took no more notice than we did of the Australian Radio Station’s hoax call to the Hospital at which the Duchess of Cambridge had been treated.

However, matters have now taken a different turn with the nurse whom the radio DJs successfully hoaxed having apparently killed herself.

The DJs’ response to the furore is quoted by the BBC as being: “We’re very sorry if we’ve caused any issues and we’re glad to hear that Kate is doing well.”

Yes, just a few issues …

Lord Justice Leveson has – it is said – opined that these *Radio* DJs’ behaviour shows the need to regulate the *Press* as per his Report.

Mmmm … er, how, exactly ?

So classy …

More Alike Than They’d Like

6 Dec

We recall from Latin lessons at school the comment (apropos [of] Cicero) that ‘those who seek to walk in the middle of the road tend to get knocked down and run over.’ We hope that no such fate befalls (Prof) David Mead of Essex Uni, who has just posted a luminously sensible piece on the UK Constitutional Law Blog, asking both sides of the HRA* debate to ‘play nicely‘ (as it were) – more reason, less politics, he pleads. Bonne chance

*If you need to ask what this stands for, you may prefer to find another blog … – tho’ you’re welcome to stay if you like …

A Time to Lay Down Stones

5 Dec

We cannot be unaware that the online world eagerly awaits our thoughts about the Leveson Report. That we have not yet read it – and have no realistic expectation of doing so – will not deter the public clamour. (Reference: The Eatanswill Gazette – oh, and see an intriguing essay by GK Chesterton here …)

What do we think ?

Our view is that the real-er question is – what do we feel ? All the discussion and comment and point-scoring and debate seems to come down to – what do we feel about substantial state regulation of the content of the Press ? Many writers seem to regard their own position as obvious, and those who disagree as evidently foolish/in bad faith. We intend to avoid that error.

Others put the matter better, so the following links may assist:

On the general principle – Milton’s Areopagiticasummarised conveniently (hopefully accurately) here – is treated as a classic.

Some dissents to the general ‘hang the Journalists’ mood may be found here:
Simon Jenkins in The Guardian – following on from Peter Preston here.

We suggest that the reader makes up their mind/rationalises their prejudices using the following:

(1) Leveson LJ’s own little difficulty with information standards – well pointed out by our colleague Nick Cartwright and gleefully reported in the Press;

(2) Fraser Nelson’s cri-de-coeur in The Spectator. A heroic stand for Free Speech, or special pleading for exemption from the rule of law from the classier end of the sewer ? As Mr Nelson(F) himself points out, the alternative may not be very impressive: he cites Labour MP Jim Dowd as giving them a (dis)honourable mention in debate for this.

Freedom of Conscience or Freedom from the Rule of Law ? Would the latter claim be falsified if Mr Nelson complained to the ECHR about any such conviction a la Goodwin ? Or would that suggest that Journalists obey the laws they choose – as Mr Dowd complains? Is an analogy (not Mr Nelson’s) with the sanctity of the confessional helpful – or does it illustrate precisely the kind of claim that is being made ?

As we love to say, discuss ….

ECHR – HUDOC News

4 Dec

The ECHR has now published the 2nd part of its HUDOC Tutorial. This explains the Advanced Search feature. This looks rather impressive, I have to say – it provides (or seems to) a Westlaw/LexisLibrary style system of cross-referencing.

Try this for a link to it on YouTube.

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