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Studies in International and Comparative Criminal Law - no. 9
Hybrid and Internationalised Criminal Tribunals - Selected Jurisdictional Issues
Edition: 1st
Format: Hardback
Author: Sarah Williams
ISBN: 9781841136721
Publishers: Hart Publications
Price: £75
Publication Date: April 2012
Publisher's Title Information
In recent years a number of criminal tribunals have been established to investigate, prosecute and try individuals accused of serious violations of international humanitarian law and international human rights law. These tribunals have been described as 'hybrid' or 'internationalised' tribunals as their structure and applicable law consist of both international and national elements. Six such tribunals are currently in operation: the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the International Judges and Prosecutors Programme in Kosovo, the War Crimes Chamber for Bosnia and Herzegovina, the Iraqi High Tribunal and the Special Tribunal for Lebanon. The Special Panels for Serious Crimes in East Timor suspended operation in May 2005, although there continues to be some international involvement in investigation and prosecution of serious crimes. Suggestions have also been made that this model of tribunal would be appropriate for the prosecution of atrocities committed in, among others, Burundi, the Sudan, the Democratic Republic of Congo, Kenya and Liberia, as well as for a wider range of international crimes, most recently piracy.
The key aims of this book are: to place the model of hybrid and internationalised tribunals in the context of other mechanisms to try international crimes; to examine the increasing demand for the establishment of hybrid and internationalised judicial institutions and the factors driving such demand; to define the category of 'hybrid and internationalised tribunals' by examining the key features of the existing and proposed hybrid or internationalised tribunals, as well as the features of those institutions with international elements that are generally excluded from this category; to determine the legal and jurisdictional bases of existing hybrid and internationalised tribunals; to analyse how the legal and jurisdictional basis of a tribunal affects other issues, such as the applicable law, the application of amnesties and immunities and the relationship of the tribunal with the host state, third states, national courts and other international criminal tribunals. The book concentrates on the definitional, legal and jurisdictional aspects of hybrid and internationalised criminal tribunals as this has been the subject of some confusion in arguments before the tribunals and in the judgments of the tribunals. In its concluding section, the book examines the future role of internationalised and hybrid criminal tribunals, particularly in light of the establishment of the ICC, and the potential use of such tribunals in other contexts. It also assesses how hybrid and internationalised tribunals fit into a 'multi-layered framework' of international criminal law and transitional justice.
TABLE OF CONTENTS
Foreword v
Table of Cases xv
Table of Legislation xxvii
Introduction 1
1 The Emerging System of International Criminal Justice 10
I. Introduction 10
II. Prosecution of International Crimes before Domestic Courts 11
A. National Jurisdiction for International Crimes 11
B. Is There an Obligation to Exercise Domestic Criminal
Jurisdiction for International Crimes? 13
C. Challenges of Domestic Prosecution 18
D. Prosecution before National Courts of Third States on the
Basis of Universal Jurisdiction 19
III. Trials of International Crimes before International Courts 28
A. The Post-War Period: The Nuremberg and Tokyo Tribunals
and the Work of the International Law Commission 28
B. The Ad Hoc International Criminal Tribunals 31
i. Establishing the International Criminal Tribunal for the
Former Yugoslavia 31
ii. Establishing the International Criminal Tribunal for Rwanda 33
iii. The Development of the Completion Strategy 34
iv. Relationship between the Ad Hoc Tribunals and National
Jurisdictions 36
v. Conclusion: The Ad Hoc Tribunals and Their Contribution
to International Criminal Justice 44
C. The International Criminal Court 45
i. Establishment 45
ii. Jurisdiction 46
iii. 'Complementary' Justice: The System of International
Criminal Justice as Contemplated by the Rome Statute 50
iv. Conclusion 55
IV. Conclusion 55
2 Hybrid and Internationalised Tribunals: A Study of Existing Practice 58
I. Introduction 58
II. Special Court for Sierra Leone 65
A. Background to the Conflict in Sierra Leone 65
B. The Establishment of the SCSL 68
C. Key Features and Jurisdiction 70
III. Special Tribunal for Lebanon 73
A. The Assassination of Rafik Hariri and the Establishment of
the UNIIIC 73
B. Further Attacks and the Establishment of the Special Tribunal
for Lebanon 75
C. Key Features and Jurisdiction 77
IV. Kosovo and the International Judges and Prosecutors Programme 79
A. The Conflict in Kosovo 79
B. Accountability for Violations of International Humanitarian
Law and Human Rights Law 82
C. Key Features and Jurisdiction 84
D. The Situation Following the Declaration of Independence and
the Transfer to EULEX 87
V. UNTAET and the Serious Crimes Process 90
A. The Indonesian Occupation of East Timor, the Consultation
on Independence and International Administration 90
B. The Quest for Accountability for Violations in East Timor 93
C. Key Features and Jurisdiction 95
D. Further Accountability Initiatives and the Re-activation of the
SPSC Process 98
VI. War Crimes Chamber for Bosnia-Herzegovina 101
A. The Conflict in Bosnia and Herzegovina 101
B. Accountability for Human Rights Violations 104
C. Key Features and Jurisdiction 106
VII. Iraqi High Tribunal 109
A. Saddam Hussein's Reign in Iraq 109
B. Occupation of Iraq: May 2003-June 2004 110
C. Establishing the Iraqi High Tribunal 113
D. Key Features and Jurisdiction 117
VIII. Extraordinary Chambers in the Courts of Cambodia 120
A. Regime of the Khmer Rouge 120
B. Accountability for Violations and the Negotiations for the
ECCC 121
C. Key Features and Jurisdiction 128
IX. Conclusion 133
3 Exclusions and Proposals for Future Hybrid and Internationalised
Tribunals 134
I. Introduction 134
II. Institutions with International Elements Not Considered to be
Hybrid or Internationalised Tribunals 135
A. The Nuremberg and Tokyo Tribunals 135
x Table of Contents
B. Serbian War Crimes Chamber 139
C. The Lockerbie Court 140
D. Other Institutions 144
E. Conclusion 148
III. Proposed Hybrid and Internationalised Tribunals 149
A. Special Tribunal for Burundi 149
B. The Special Court for Darfur, Sudan 152
i. The Discussion Surrounding the Referral to the
International Criminal Court 153
ii. The ICC and the Arrest Warrant for President Bashir 155
C. Specialised Chamber in the Democratic Republic of the Congo 157
D. An Extraterritorial Piracy Tribunal 161
E. Special Tribunal for Kenya 172
F. The Extraordinary Criminal Court for Liberia 178
G. Special Tribunal for the Trial of Hissène Habré 182
IV. Conclusion 185
4 Hybrid and Internationalised Tribunals: In Search of a Definition 187
I. Introduction 187
II. What is Driving the Demand for Hybrid and Internationalised
Tribunals? 189
A. Circumstances Leading to Establishment 191
B. Existence of an International Criminal Tribunal with
Jurisdiction 196
C. The Applicable Legal Framework 200
D. Conclusion 201
III. Is There a Definition of a Hybrid and Internationalised Tribunal? 201
A. Criminal Judicial Function 202
B. Duration of the Tribunal 202
C. Participation of International Personnel 204
D. Location of the Tribunal 206
E. Involvement of the International Community, in particular
the United Nations 206
F. Funding Mechanism 210
G. Legal Basis, Legal Capacity and Powers 212
H. Jurisdiction: An Introduction 214
I. Temporal Jurisdiction 215
J. Territorial Jurisdiction 218
K. Personal Jurisdiction 219
L. Material Jurisdiction 227
i. Factors for the Inclusion of International Crimes 227
ii. Must Hybrid and Internationalised Tribunals Exercise
Jurisdiction in Respect of International Crimes? 232
iii. Factors for the Inclusion of Ordinary Crimes 243
Table of Contents xi
iv. Is There a Requirement for the Jurisdiction of Hybrid and
Internationalised Tribunals to Include Ordinary Crimes
under Domestic Law? 246
v. Conclusions 248
M. Relationship with Other Institutions 248
N. Conclusion: Is there a Definition? 249
5 Legal and Jurisdictional Bases of Hybrid and Internationalised
Tribunals 253
I. Introduction 253
II. Tribunals Established by the Security Council 254
A. The Power of the Security Council to Establish an Ad Hoc
Tribunal 254
B. Can the Security Council Establish a Hybrid or
Internationalised Criminal Tribunal? 259
C. The Ambiguous Legal Basis of the STL 260
D. The STL as a 'Treaty-Based' Tribunal 262
E. Resolution 1757 as the Legal Basis for the STL 267
F. Which Option Did the Council Intend? 268
G. Conclusion 269
III. Tribunals Established by Treaty 271
A. General 271
B. Legal Challenges to the Establishment of the SCSL 273
i. The SCSL as a 'Chapter VII' Court 274
ii. Unlawful Delegation of Powers 278
iii. Arguments Based on a Violation of the Constitution of
Sierra Leone 279
iv. National Institution Arguments 281
C. Conclusion 282
IV. Tribunals Established Under National Law, With International
Elements 282
A. Tribunals Established Under International Administration or
During Military Occupation 282
i. United Nations Administration of Territory: The Legal
Basis of the IJPP and the SPSC 282
ii. International Civilian Administration: The War Crimes
Chamber for Bosnia and Herzegovina 288
iii. Courts Established During Military Occupation: The Iraqi
High Tribunal 289
B. Tribunals Established Under National Law, Operating with
International Assistance: The ECCC 293
C. Conclusion 299
V. Conclusions: Legal Bases of Hybrid and Internationalised Tribunals 300
xii Table of Contents
VI. The Nature of Jurisdiction Conferred on Hybrid and
Internationalised Tribunals 300
A. Introduction 300
B. Territorial Jurisdiction 301
C. Delegation of Jurisdiction from the (Normally) Territorial
State 303
i. Lawfulness of a Delegation of Jurisdiction 305
ii. Do the Differences Between the ICC and the SCSL Preclude
a Delegation of Jurisdiction to the SCSL? 308
iii. Delegation of Universal Jurisdiction: Specific Concerns 311
iv. Conclusion 314
D. Universal Jurisdiction Arising from the Nature of the Crimes 314
E. Jurisdiction Based on the Powers of the Security Council
Under Chapter VII 316
VII. Conclusion 318
6 Legal Barriers to the Exercise of Jurisdiction 321
I. Introduction 321
II. The Principle of Legality 322
III. Immunity 326
A. Introduction 326
B. Nature of Immunity in International Law 326
C. The Internationalised Tribunals 330
i. The International Judges and Prosecutors Programme in
Kosovo 331
ii. The Special Panels for Serious Crimes in East Timor 331
iii. The War Crimes Chamber in Bosnia and Herzegovina 332
iv. The Iraqi High Tribunal 333
v. The Extraordinary Chambers in the Courts of Cambodia 334
vi. Conclusion 335
D. The Hybrid Tribunals 335
i. Treaty-based Hybrid Tribunals: The Special Court for Sierra
Leone 336
ii. Hybrid Tribunals Established by the Security Council: the
Special Tribunal for Lebanon 340
E. Conclusion 346
IV. Amnesties 348
A. Introduction 348
B. Amnesties and the Internationalised and Hybrid Tribunals 351
i. Internationalised Tribunals 352
ii. Hybrid Tribunals 356
C. Conclusion 361
V. Securing Custody of the Accused 363
Table of Contents xiii
A. Introduction: Cooperation and International Criminal
Tribunals 363
B. Cooperation and the Hybrid Tribunals 369
i. Hybrid Tribunals Established by the Security Council: the
Special Tribunal for Lebanon 369
ii. Treaty-Based Hybrid Courts: the Special Court for Sierra
Leone 372
C. Cooperation and Internationalised Tribunals 374
D. Conclusion 378
VI. Statutes of Limitation 380
VII. Ne Bis in Idem 384
A. Judgment by a National Court 384
B. Judgment by a Hybrid or Internationalised Tribunal and
National Courts 387
C. Judgment by a Hybrid or Internationalised Tribunal and the
International Criminal Court 388
D. Conclusion 389
VIII. Relationship with Other Courts and Tribunals 390
A. Hybrid and Internationalised Tribunals and Their Relationship
to Domestic Courts 390
i. Courts Within the Territorial State 391
iii. Hybrid and Internationalised Tribunals Exercising
Supervisory Jurisdiction in Respect of Domestic Courts 396
B. Courts in Third States 398
IX. Hybrid and Internationalised Tribunals and the International
Criminal Court 399
A. Introduction 399
B. Internationalised Tribunals 403
C. Hybrid Tribunals 404
i. Hybrid Tribunals Established on the Basis of a Treaty 404
ii. Hybrid Tribunals Established by the Security Council 406
D. Conclusion 407
X. Conclusion 408
Conclusions 410
Index 459
xiv Table of Contents
The Author
Sarah Williams is a Senior Lecturer at the University of New South Wales, Australia. She was previously the Dorset Fellow in Public International Law at the British Institute of International and Comparative Law, a Legal Researcher at the Foreign and Commonwealth Office of the United Kingdom and a Lecturer in Law at Durham University.
More Information on the Publisher's Website about, "Hybrid and Internationalised Criminal Tribunals"
Privacy Injunctions and the Media
A Practice Manual
Edition: 1st
Format: Hardback
Author: Iain Goldrein QC
ISBN: 9781849462846
Publishers: Hart
Price: £125
Publication Date: April 2012
Publisher's Title Information
A string of high profile law suits has drawn attention to a rapidly developing and controversial branch of media law - the use of privacy injunctions to restrain publication of information relating to the private lives of individuals. The purpose of this book is to set out the law relating to privacy injunctions, and best practice in relation to seeking or opposing this form of relief.
Such best practice is targeted not just at litigators. This book is aimed also at journalists who are the watchdogs of the freedoms of our society, and other organs of the media.
The text is broken down into easily manageable sections, with numerous check-lists and quality control protocols. Applications in the Queen's Bench Division (including personal injury), Family Division (including the President's “Media guidance” and “Reporting Restriction Orders”) and “harassment” are covered, together with a “journalists' check-list”.
The book reflects the agenda (included in the foreword to the book) set by Lord Neuberger's Report of 2011 (“Report of the Committee on Super-Injunctions”).
The Author
The Author
Iain Goldrein QC practises from Chambers on the Northern circuit, Nottingham and London. He is a Visiting Professor in Litigation (the Sir Jack Jacob Chair) at Nottingham Law School, a Companion of the Academy of Experts, and an Accredited Mediator. He is also a Council Member of the International Institute of Experts, Hong Kong.
Contents
Foreword vii
Preface ix
User's Guide xvi
Table of Cases xxi
Table of Legislation xxxv
Part 1 Primary source material and legal principles 1
Part 2 Applicant practice management: Article 6 derogations from
open justice 27
Part 3 The interaction of Articles 8 and 10 49
Part 4 Proportionality 75
Part 5 Practice principles underpinning an Article 8 application 103
Part 6 Case management for Article 8 applications 115
Part 7 Applicant proceedings checklist up to (but not including)
service 147
Part 8 Service checklist for applicants 161
Part 9 Defence practice points in response to an Article 8
application 171
Part 10 Quality control checklist for the courtroom 183
Part 11 Journalist's checklist 193
Part 12 Harassment and the media 197
Part 13 Derogation from open justice and claims by children for
approval of large personal injury awards 227
Part 14 Reporting restriction orders in the Family Division 229
Contents
xx
Part 15 Template model statement 331
Part 16 Mediation 341
Part 17 Practice Guidance: Interim Non-Disclosure Orders 359
Part 18 Examples of orders from the cases (and a model notice of
application) 379
Part 19 Civil Procedure Rules 391
Part 20 Codes of Practice 457
Part 21 Key words highlighted in the Case Digest (and specifi cally
indexed) 463
Part 22 Case Digest 465
Case Digest Keywords Concordance 1155
Index 1159
Foreword
Privacy as a philosophical concept and as a value which society protects is both controversial in scope and content, and it therefore raises many difficult questions. Is it a right, as Warren and Brandeis put it, simply to be 'let alone'1? Or is it more than that? Is it a right which should be protected through a law of general application or should it only be protected in narrowly defined and limited circumstances? How should it relate to other rights? Should it, for instance, always trump freedom of expression when they come into conflict, should it always yield or should a balance be struck between them? If a balance should be struck, how should it be struck and in what circumstances?
The law of England and Wales has traditionally taken a narrow approach to privacy, its scope and content. The common law did not develop a general right of privacy, as the Court of Appeal in Kaye v Robertson affirmed in 1991,2 nor did Parliament introduce one, despite many attempts to do so. In the absence of a general law, the common law developed a limited and fact specific approach, protecting privacy through, for instance, as Lord Cottenham LC noted in Prince Albert v Strange in 1849,3 the law of confidentiality. In 1998 there was, of course, a seismic shift when Parliament enacted the Human Rights Act, and through it incorporated Article 8 of the European Convention on Human Rights into English and Welsh law. This has not, as the House of Lords made clear in Wainwright v Home Office, 4 introduced a statutory general right of privacy into English and Welsh law. It has however, as Parliament understood and the government intended during the 1998 Act's passage, provided a very significant spur to the law of privacy's development, as Lord Phillips MR (as he then was) observed in Douglas v Hello! (No 6).
The enactment of the Human Rights Act 1998 provoked a lively discussion of the impact that it would have on the development of a law protecting privacy. The Government has made it clear that it does not intend to introduce legislation in relation to this area of the law, but anticipates that the judges will develop the law appropriately, having regard to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms : see the comment of Lord Irvine of Lairg LC in the course of the debate on the Human Rights Bill (Hansard, HL Debates, 24 November 1997, col 771) and the submissions of the United Kingdom in Spencer (Earl) v United Kingdom (1998) 25 EHRR CD 105.5
In this welcome new book on Privacy Injunctions and the Media: A Practice Manual, Iain Goldrein QC provides a clear, insightful and, perhaps most importantly, practical guide to the way in which the courts have developed the law of privacy in the past decade or so. The book provides a readily accessible and properly comprehensive route through the substantive law of privacy as it now stands, its relationship with freedom of expression, and the balance to be struck between them. On its own, and given the ways in which the law has developed, this would be a significant achievement and should, deservedly, see this work become an essential reference work for lawyers, litigants and those generally interested in the law. In addition,Iain Goldrein has provided a detailed guide to the proper conduct of privacy litigation. Anyone wishing to prepare and prosecute a claim effectively ought to pay close attention to this guidance.
In the years to come it is inevitable that the law and practice relating to privacy will continue to develop. Those developments will further define how English and Welsh law deals with issues as to the scope and application of the law of privacy, and the procedure by which respect for privacy is protected and balanced against other substantive rights. That development will undoubtedly be greatly assisted, and shaped, by the insights contained in Goldrein on Privacy Injunctions. I commend it to all those who are interested in the development of the law in this important area, and particularly to those who want practical guidance.
Lord Neuberger of Abbotsbury, MR
1 Warren and Brandeis, 'The Right to Privacy' (1890) 4 Harvard Law Review 193.
2 (1991) FSR 62 at (66)
3 (1849) 1 Mac & G 25, 'In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend on any legal right; and, to be effectual, it must be immediate.'
4 [2004] 2 AC 4 at [35].
The Constitution of the United Kingdom
Constitutional Systems of the World
Edition: 2nd
Format: Paperback
Author: Peter Leyland
ISBN: 9781849461603
Publishers: Hart Publishing
Price: £12.95
Publication Date: January 2012
This acclaimed book provides a topical and contextual outline of the principles, doctrines and institutions that underpin the United Kingdom constitution. The second edition of The Constitution of the United Kingdom has been extensively rewritten to take account of recent constitutional developments, particularly changes made following the 2010 general election. The chapters are written in sufficient detail for anyone coming to the subject for the first time to develop a clear and informed view of how the constitution is arranged and how it operates. The main themes include: discussion of the history, sources and conventions of the constitution; later chapters deal with: constitutional principles, the role of the Crown, Parliament and the electoral system, government and the executive, the constitutional role of courts including the protection of human rights, the territorial distribution of power between central, devolved and local government, and the European Union dimension. In addition, the book offers an analytical discussion of the development of the constitution, its strengths and perceived weaknesses, and of reforms aimed at its modernisation.
The Author, Peter Leyland is Professor of Public Law at the London Metropolitan University.
Contents
Preface to the Second Edition v
Preface to the First Edition vii
Table of Cases xv
Table of Legislation xix
1 UK Constitution 1
PART I: CONSTITUTIONAL CONTEXTS 1
Introduction 1
What Is Liberal Democracy? 3
Freedom of Expression and the Broadcasting and Print
Media 4
Media Infl uence in Public Life and the News of the
World Hacking Scandal 8
The UK Constitution, Constitutionalism and Good
Governance 11
PART II: HISTORY 14
The Importance of History 14
Qualifying Absolute Monarchy 14
The Emergence of Parliament and the Path to
Democracy 18
Defi ning The Nation: What Is the United Kingdom? 19
Empire, Commonwealth and Europe 21
Conclusion 23
Further Reading 24
2 The Sources of the Constitution 25
Introduction 25
PART I: SOURCES OF THE CONSTITUTION 26
Statute Law 26
x Contents
The Common Law 27
European Union Law 28
European Convention on Human Rights 29
Legal Treatises 30
The Law and Customs of Parliament 31
The Royal Prerogative 31
PART II: CONSTITUTIONAL CONVENTIONS 32
Defi ning Conventions 32
The Practical Importance of Constitutional
Conventions 36
Conclusion 41
Further Reading 43
3 Constitutional Principles 45
Introduction 45
Parliamentary Sovereignty 47
The Rule of Law 66
Separation of Powers 72
Conclusion: Redefi nitions of Power 82
Further Reading 84
4 The Crown and the Constitution 87
Introduction 87
What Is the Royal Prerogative? 89
The Constitutional Role of the Monarch 93
Does the Monarch Retain Real Power? 97
What Is the 'Crown'? 98
Public Interest Immunity 99
Liability of the Crown in Tort and Contract 100
Evaluation: Reform or Abolition? 102
Conclusion 104
Further Reading 105
5 Parliament 107
Introduction 108
PART I: ELECTIONS AND THE HOUSE OF
COMMONS 109
The Electoral System 109
Contents xi
First Past the Post, Alternative Vote or Proportional
Representation? 112
Electronic Voting 114
The House of Commons and the Formation of a
Government 114
PART II: THE HOUSE OF COMMONS 116
The House of Commons and the Role of MPs 116
The Speaker 119
Government and Opposition 119
Parliamentary Privilege 121
Parliamentary Standards, the Conduct of MPs and
the Expenses Scandal 122
PART III: THE HOUSE OF LORDS 126
Introduction and History 126
Composition of the House of Lords 128
House of Lords: What Next? 131
PART IV: PARLIAMENT AS LEGISLATOR 134
Public Bills 135
Private Members' Bills and Private Bills 140
Parliamentary Scrutiny of Delegated Legislation 140
PART V: PARLIAMENT AS WATCHDOG 141
Parliamentary Questions 142
Departmental Select Committees 142
Public Accounts Committee and the National Audit
Offi ce 149
The Parliamentary Ombudsman 152
Conclusion 154
Further Reading 155
6 Government and Executive 157
Introduction 157
The Prime Minister 158
The Prime Minister and the Cabinet 160
The Prime Minister: Policy Formation and
Implementation 164
Prime Minister's Press Offi ce and Government 'Spin' 167
Shaping Government Departments 169
xii Contents
Political Accountability and Individual Ministerial
Responsibility 171
Ministerial Responsibility: Answerability or
Resignation? 172
The Scott Report 174
Ministerial Responsibility and the Press 175
The Civil Service 176
New Public Management and Executive
Accountability 178
The Constitutional Reform and Governance
Act 2010 182
Government Openness and the Freedom of
Information Act 2000 183
E-Government Revolution 186
Conclusion 188
Further Reading 189
7 The Constitutional Role of the Courts 191
PART I: SURVEYING THE CONSTITUTIONAL
ROLE OF THE COURTS 191
Introduction 191
Common Law and Statutory Interpretation 192
Reforming the Offi ce of Lord Chancellor 196
Appointing and Dismissing Judges 199
A Supreme Court for the United Kingdom 202
PART II: ADMINISTRATIVE LAW AND JUDICIAL
REVIEW 204
Introduction to Administrative Law 204
Red Light and Green Light Theory 206
The Impact of Judicial Review 212
Distinguishing Public Law from Private Law 214
The Requirements of Standing 215
Grounds of Judicial Review 217
The Question of Merits 219
Judicial Review Cases 221
PART III: THE COURTS AND THE HUMAN
RIGHTS ACT 1998 223
Contents xiii
Vertical or Horizontal Effect 226
Proportionality Review 228
Conclusion 239
Further Reading 240
8 Devolution and Local Governance 243
Introduction 243
PART I: DEVOLUTION 246
Background to Devolution 246
Scottish Devolution 247
Welsh Devolution 253
Power-Sharing in Northern Ireland 256
Funding Devolution 260
Intergovernmental Relations 262
The Politics of Devolved Government 263
Relations with Europe 266
Devolution and the Courts 267
PART II: DEVOLUTION AND ENGLAND 272
The West Lothian Question 272
English Regional Government 274
An English Parliament? 277
PART III: LOCAL GOVERNMENT 278
Introduction to Local Government in the
United Kingdom 278
Mayor And Assembly for London 279
The Framework of Local Government 282
The Financing of Local Government 284
From Compulsory Competitive Tendering to
Best Value 285
Local Government: Power to the People? 286
Accountability Mechanisms 288
Conclusion 290
Further Reading 293
9 Conclusion: The UK Constitution 295
A Written Constitution, Republican Constitution
or Legal Constitution? 296
xiv Contents
Promoting Citizen Participation and the 'Big Society' 301
The European Constitution, the Treaty of Lisbon and the
European Act 2011 303
What Are the Dynamics of Devolution? 305
Further Reading 306
Index 307
Debating Euthanasia
Debating Law - no. 3
Edition: 1st
Format: Paperback
Authors: Emily Jackson and John Keown
ISBN: 9781849461788
Publishers: Hart Publishing
Price: £15
Publication Date: Dec 2011
Publisher's Title Information
In this new addition to the Debating Law series, Emily Jackson and John Keown re-examine the legal and ethical aspects of the euthanasia debate.
Emily Jackson argues that we owe it to everyone in society to do all that we can to ensure that they experience a 'good death'. For a small minority of patients who experience intolerable and unrelievable suffering, this may mean helping them to have an assisted death. In a liberal society, where people's moral views differ, we should not force individuals to experience deaths they find intolerable. This is not an argument in favour of dying. On the contrary, Jackson argues that legalisation could extend and enhance the lives of people whose present fear of the dying process causes them overwhelming distress. John Keown argues that voluntary euthanasia and physician-assisted suicide are gravely unethical and he defends their continued prohibition by law. He analyses the main arguments for relaxation of the law - including those which invoke the experience of jurisdictions which permit these practices - and finds them wanting. Relaxing the law would, he concludes, be both wrong in principle and dangerous in practice, not least for the dying, the disabled and the disadvantaged.
Contents
Series Editor's Preface v
Acknowledgements - John Keown and Emily Jackson vi-vii
In Favour of the Legalisation of Assisted Dying by Emily Jackson 1
I. Introduction 1
II. Why We Should Try 8
III. The Status Quo is Indefensible 13
A. Double Effect 14
B. Terminal Sedation 16
C. 'Do Not Attempt Resuscitation' Orders 18
D. Treatment Withdrawal 19
E. Exporting the 'Problem' of Assisted Suicide 33
F. The Euthanasia/Assisted Suicide 'Underground' and the Benefits of Regulation 34
IV. Why Might Anyone Think We Shouldn't Try? 37
A. The Sanctity and Value of Life 37
B. Effect on Doctor-Patient Relationship 43
C. Regulatory Difficulties 47
V. What Might an Assisted Dying Law Look Like? 62
A. Other Countries' Experience 62
B. Process 66
C. Method: Assisted Suicide or Euthanasia, or Both? 70
D. Substance 73
VI. What are the Consequences of not Trying? 80
Against Decriminalising Euthanasia; For Improving Care by John Keown 83
I. Introduction 83
II. Definitions 86
III. Ten Arguments For Decriminalisation 87
A. Autonomy 87
B. Compassion 101
C. Legal Hypocrisy 105
D. A Right to Suicide 110
E. Public Opinion 113
F. Legal Failure 114
G. The Netherlands 118
H. Oregon 128
I. Religion 136
J. Economics 138
IV. Professor Jackson's Arguments 139
A. Jackson 1 140
B. Jackson 2 157
V. The Joffe Bill 164
A. The Bill 164
B. Key Committee Recommendations Not Adopted 165
C. Extension and Abuse 166
VI. Conclusions 170
Bibliography 175
Index 179
x Contents
The Authors
Emily Jackson is a Professor of Law at the London School of Economics.
John Keown holds the Rose F Kennedy Chair in Christian Ethics in the Kennedy Institute of Ethics at Georgetown University. Formerly, he taught the law and ethics of medicine in the Faculty of Law at Cambridge, where he was a Fellow of Queens' College and of Churchill College
Sitting in Judgment - The Working Lives of Judges
Edition: 1st
Format: Hardback
Author: Penny Darbyshire
ISBN: 9781849462396
Publishers: Hart
Price: £27.50
Publication Date: Sept 2011
Publisher's Title Information
The public image of judges has been stuck in a time warp; they are invariably depicted in the media - and derided in public bars up and down the country - as 'privately educated Oxbridge types', usually 'out-of-touch', and more often than not as 'old men'. These and other stereotypes - the judge as a pervert, the judge as a right-wing monster - have dogged the judiciary long since any of them ceased to have any basis in fact. Indeed the limited research that was permitted in the 1960s and 1970s tended to reinforce several of these stereotypes. Moreover, occasional high profile incidents in the courts, elaborated with the help of satirists such as 'Private Eye' and 'Monty Python', have ensured that the 'old white Tory judge' caricature not only survives but has come to be viewed as incontestable.
Since the late 1980s the judiciary has changed, largely as a result of the introduction of training and new and more transparent methods of recruitment and appointment. But how much has it changed, and what are the courts like after decades of judicial reform? Given unprecedented access to the whole range of courts - from magistrates' courts to the Supreme Court - Penny Darbyshire spent seven years researching the judges, accompanying them in their daily work, listening to their conversations, observing their handling of cases and the people who come before them, and asking them frank and searching questions about their lives, careers and ambitions. What emerges is without doubt the most revealing and compelling picture of the modern judiciary in England and Wales ever seen. From it we learn that not only do the old stereotypes not hold, but that modern 'baby boomer' judges are more representative of the people they serve and that the reforms are working. But this new book also gives an unvarnished glimpse of the modern courtroom which shows a legal system under stress, lacking resources but facing an ever-increasing caseload. This book will be essential reading for anyone wishing to know about the experience of modern judging, the education, training and professional lives of judges, and the current state of the courts and judiciary in England and Wales.
Contents
Foreword vii
Acknowledgements ix
1. Introduction 1
2. Images of Judges 18
3 Where Do English andWelsh Judges Come From? 44
4. The First Step on the Ladder: Becoming a Part-time Judge 65
5. Becoming Her Majesty's Judge 84
6. Training 103
7. Judges' Working Personality 117
8. Criminal Business: District Judges in the Magistrates' Court 148
9. Criminal Business: Circuit Judges in the Crown Court 173
10. Judges and Juries 211
11. Civil Business in the County Court 227
12. Family Judges: The Patience of Job and the Judgment of Solomon 260
13. High Court Business 291
14. The Court of Appeal 323
15. Brenda and the Law Lords Transform into the Supremes 358
16. Judges on Judges 406
17. Tools of the Trade 427
18. The World of Judges from 2011 447
Index 457
The Author
Penny Darbyshire has a first in law, a master's degree in criminology and a Ph D in socio-legal studies. She has been a lecturer, senior lecturer and reader at Kingston University since 1978. She is also an adjunct associate professor, University of Notre Dame, London Law Centre, and was a visiting lecturer at the University of California at Berkeley, from 1992 until 1993. She was a visiting fellow at Wolfson College, Cambridge in 2005.
Reviews to Date
Penny Darbyshire, the author of this impressive work, has a first degree in law, a master's in criminology and a PhD in socio-legal studies. With those qualifications and existing research expertise in the legal system under her belt she was well placed to take on the formidable task of revealing the truth about the working lives of judges...The findings are a testament to her skill as a researcher and the book is a testament to her skill as a writer. Anyone who is interested in judges and the courtroom should read this truly unique book. I predict that they will not be disappointed and I will not be surprised if Penny Darbyshire wins an award or two for this book. Professor Penny Cooper Expert Witness Institute Newsletter December 2011
Sitting in Judgment: The Working Lives of Judges by Penny Darbyshire, is a weighty work. She has spent seven years researching the judiciary and sitting alongside them. The result is a rare exposé of what judges do, think and how they and the system have changed.…Darbyshire's painstaking work contains some gems and sheds some light on a world that remains remote to most. Frances Gibb The Times 29th September 2011
Although little she says will come as a surprise to anyone who has ever spoken to a judge, Darbyshire has some justification for contrasting the fruits of her academic research with the 'cruel and lazy journalism' that has left the public imagining the typical judge to be an 'archaic media folk-devil' dressed up like a pantomime character…Darbyshire's book is probably at its most revealing in showing how judges used to be appointed before the system was reformed; some, she discovered, had applied unsuccessfully for silk and were offered a seat on the circuit bench as a consolation prize. She reminds us, though, of a system in which all judges were appointed by a cabinet minister. Joshua Rozenberg Law Society Gazette 6th October 2011
Foreword
By Lord Judge, Lord Chief Justice of England and Wales
This is an illuminating and intriguing study of the way in which judges throughout England and Wales actually work. It reveals the practical day. to day realities, not the myths nor the theories nor the misconceptions. It tells us a great deal about the stresses and strains of judicial life and provides penetrating insights into the attitudes of judges to their responsibilities and the way in which they approach them.
Until recently research of this kind would not and did not happen. It was an essential feature of my personal willingness to offer my support for this proposed research that it should be approached with an open mind and without preconceptions. These were preconditions. On the other hand, if they were satisfied, then there would be no attempt to exert any form of editorial control. It was obvious from my first meeting with Dr Darbyshire that her objective was to discover and report the facts rather than seek to find material which would support any pre-existing prejudices, and that equally, she would not countenance any form of such control. Once the ground rules were established, as she explains, she was given unrestricted access to a vast body of judges. The 'absolute transparency of which she speaks is perhaps best illustrated by the fact that she sat in with judges in the Court of Appeal and Supreme Court as they deliberated with each other.
The research method was direct observation. Dr Darbyshire spent long periods over several years, sitting in court with judges exercising their different jurisdictions in crime, civil and family work (but not the Tribunals) from the Supreme Court to district judges sitting in the County Court, trying civil cases, and the Magistrates' Courts, trying criminal cases. She did so in the context of discussions of the relevant issues with the judges, so that she could see for herself how the judicial mind was working. She recorded their responses, and the responses of their colleagues who she met, for example, at lunch, to broader issues affecting the judiciary and she saw for herself the problems which judges encounter. She noted, too, areas where she felt criticism was justified as well as concerns expressed by individual judges themselves about different aspects of the system in which they work.
The result of what I believe to be the first research of this kind, certainly in this country, is vividly, yet fairly described. It will be welcomed by anyone who wishes to be better informed about today's judges and the ways in which their responsibilities are discharged.