TTIP

On Tuesday 17th May, as part of the Brighton Fringe, the University of Brighton held a debate about TTIP.  On the panel were Jacqueline Minor, David Schneiderman and John Hilary.

The Transatlantic Trade and Investment Partnership is being negotiated between the EU and the US.  The EU says that this will

  • reduce the cost of importing and exporting goods across the Atlantic
  • encourage US investment in Europe
This will benefit small businesses as well as large.
Furthermore, the EU promises not to compromise
  • the precautionary principle
  • food standards
  • environmental standards
Here’s a useful EU TTIP Myth-Buster.

Minor pointed out that one’s view of TTIP ‘depends on whether you believe business to be malign’.

Hilary argued that TTIP would compromise food and environmental standards, and would see certain sectors, like the Irish beef industry, go to the wall.  Even Minor agreed that there would be some losers, and therefore unemployment.  Hilary also asked whether we should be encouraging more international trade at all, when we’re supposed to be reducing CO2 emissions.
Schneiderman focused on the ability for US multinationals to sue EU member states.  He cited cases already happening in Canada as a result of NAFTA.  TTIP would increase the power of US multinationals to sue governments against environmental or other laws.  He also pointed out the dangers of CETA, which is nearly signed-and-sealed.
It has to be said that there are already ISDSs against European governments:  TTIP wouldn’t start this, and EU bods argue that TTIP would help clarify the companies-suing-governments process.  But it would open up the process to a heck of a lot more companies.
While I agreed with a lot that John Hilary said, I found his implication that Brexit would be a good idea – because then the UK could negotiate an ethical trade deal with the US – unrealistic; I am heartened that at least one other person fears Brexit on a trade-deal basis, too.  We are actually better in Europe, because Europe has economic parity with the US:  Britain doesn’t.
The full TTIP report is here.
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The EU

Questions for which the EU is an example.

15 markers:
3. Define the concept of supranationalism, and explain why it has been controversial.
4. Distinguish, using examples, between intergovernmentalism and supranationalism.
5. Why have there been calls for the reform of the UN Security Council?
6. In what ways is the EU an example of supranational governance?

1. Explain the driving forces behind regional integration and cooperation.
2. Why has it been difficult to develop an effective EU Foreign and Security Policy?
3. What have been the implications of the enlargement of the EU since 2004?
4. Define the concept of supranationalism, and explain why it has been controversial.
5. Explain the relationship between regionalism and globalisation.
6. Distinguish, using examples, between intergovernmentalism and supranationalism.
7. In what ways is the EU an example of supranational governance?
8. Distinguish, using examples, between economic regionalism and political regionalism.
9. Define subsidiarity, and explain its significance for the process of European integration.
10. Explain the key driving forces behind the expansion of the EU.
11. In what ways has enlargement since 2004 been problematic for the EU?

45 markers
3. To what extent is global economic governance effective?
1. To what extent has the EU established a ‘federal’ Europe?
2. The EU is a unique example of regional integration.’ Discuss.
3. ‘The EU has developed into a major global actor.’ Discuss.
4. ‘Economic integration within regions inevitably leads to political integration’. Discuss
5. ‘The EU lacks global significance and influence.’ Discuss.

Podcast: Is the EU Broken?

How does the EU work?
What is subsidiarity, what does it cover, and how does it work?
Why did the EU get bigger, and what impact has that had?

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The World Bank

Comprises:
International Bank for Reconstruction and Development (IBRD)
International Development Association (IDA)

Based in Washington DC. The president by tradition is American

World Bank concentrated on loans to developing countries in 1970s and 1980s: while this helped build economies, it also helped build debt.

1980s, WB (with the IMF) concentrated on ‘structural readjustments’, i.e. imposing conditions on countries in return for loans. These were to persuade countries to become more free-market capitalist, but they caused some countries, e.g. Kenya, massive social problems.

In the 1990s, the World Bank was criticised for the environmental damage caused by its free-market policies. It subsequently turned greener, putting environmental issues into its conditions. It laid down 8 ‘Millennium Development Goals’.

Eradicate Extreme Poverty and Hunger
Achieve Universal Primary Education
Promote Gender Equality
Reduce Child Mortality
Improve Maternal Health
Combat HIV/AIDS, Malaria, and Other Diseases
Ensure Environmental Sustainability
Develop a Global Partnership for Development

good things:
repository of information which is open to all

criticisms:
run by economically powerful countries
run by people with libertal, free market mentality

World Bank Group
International Bank for Reconstruction and Development (IBRD)
International Development Association (IDA)
International Finance Corporation
Multilateral Investment Guarantee Agency
International Centre for Settlement of Investment Disputes

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Judiciary – some examples

HM Treasury v Ahmed, 2009

This concerned the freezing of assets of suspected terrorists.  The government had passed a Terrorism Order in 2006, allowing the Treasury to freeze assets.  This was in order to comply with a UN rule, but it was a law made by Order in Council, i.e. by the Privy Council and without any sort of Parliamentary involvement.  The Supreme Court ruled that the Order permitted HM Treasury to act ultra vires (beyond its power), and that this Order called into question the relationship between the executive and Parliament.  The SC also said that

“Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.”

The government subsequently passed the (temporary) Terrorist Asset-Freezing Act (2010) to make it all legal.  This shows that the SC, through the judicial review, can put pressure on the government to alter legislation.

Al Rawi, 2010

This concerned former Guantamo detainees.  The SC ruled that courts cannot order a ‘closed material procedure’:  the principle that each party, and lawyers, must see or hear all evidence and arguments presented to court is paramount.

Cadder v HM Advocate, 2010

This concerned legal procedure in Scotland.  The SC ruled that detainees must be given a lawyer (in Scotland, they’re called advocates) before they give any statements to the police – statements which would be used in court.  A law was subsequently passed allowing police to detain people for 12 hours instead of 6 (this would give more time to secure a lawyer).  This case shows not only the SC upholding civil liberties, but causing legislative change, too.

The Belmarsh Case, 2001

The Anti-terrorism, Crime and Security Act 2001 was a knee-jerk reaction to 9/11.  It allowed the detention without trial of terrorist suspects.  The House of Lords (for this was before the SC was born) ruled that this was contrary to the ECHR/ HRA:  no one, British or foreign, could be denied the right to a fair trial.  The Lord Chief Justice at the time was the legendary Tom Bingham, one of the great judges of the 20th century.

The Dangerous Dogs Act, 1991

This badly-drafted piece of legislation (another knee-jerk response) outlawed certain ‘types’ of dog.  The Act received a hammering in the courts in defining ‘type’, amongst other things.  The courts were the first body able to scrutinise this law properly, as it had been rushed through Parliament.

Sentencing: the government has tried to control sentencing, but failed; the 2003 Criminal Justice Act allows judges to set their own minimum terms.  Recently there have been new guidelines for magistrates on tougher sentencing.

Access to justice:  the Grayling reforms have introduced court fees and cut legal aid.  This means that seeking redress either in the criminal or in the civil courts is now quite expensive.  In 2104, the criminal bar went on strike over the reduction of legal aid, and now many employment lawyers are seeing their practices dwindle.

ASBOsBBC article here.

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Pressure Groups – some examples

Here’s a very good set of slides from the LSE.  And another article here.  And here’s a chapter, which is quite a read, but worth it. I’ll paraphrase it soon.

Here’s a list of environmental pressure groups.  It shows you the huge range of them.  One of them is actually a party (the Green Party), but we’ll forgive them that category error!  Carbon Neutral (on the last page) is a carbon offsetting company.  If it is to be  classed as a pressure group, it would be influencing business, rather than the government; however, its success may one day change government behaviour – and CN may well lobby the government.

PGs in the news.

UK Uncut started accidentally, but still campaigns vigorously.  This covers various sectors of society; it is an issue group, but its issue is quite broad (government cuts – this includes lots of different things/ areas).
The BMA has gone from being an insider group to being an outsider one. This shows a) the transient/ informal/ personal nature of politics, and b) that even ‘establishment’ pressure groups can’t influence a stubborn government.
Hacked Off, formed in response to media intrusion, is campaigning for the full implementation of the Leveson Report.
Age UK, a merger of several charities, gives advice and briefings to the government.  It is influential partly because the age group it represents is increasingly large (and influential).  It has come under fire recently for its partnership with nPower.
Frack Off is an umbrella organisation for local anti-fracking groups.

ASH, set up in 1971, has had significant influence on the government, which eventually (2005) introduced a smoking ban on the workplace.  Opposed to ASH, of course, are the big tobacco companies, such as Philip Morris. Part of the work of ASH is to expose how much lobbying influence these have over health policies in Britain and the EU.

The Autism Act 2009 was a private member’s bill in response to the National Autistic Society’s I exist campaign.

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Viscount Sankey

There’s a portrait in Cambridge University Library which I’ve always had a fondness for.  It’s of a chap called Viscount Sankey, and he smiles down on you as you walk down the music corridor.

He was actually quite an interesting fellow.  He was, of course, from a public school (Lancing) and Cambridge, but he was affiliated to the Labour Party.  Lord Chancellor 1929-1935, he was famous for his judgment that

‘Throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt…’

(This ‘golden thread’ is a favourite phrase of Rumpole of the Bailey.  Do watch some.)
Sankey also chaired the National Peace Council and gave his name to the Sankey Declaration of the Rights of Man (drafted by, among others, H. G. Wells).  This was forgotten when the UN’s Universal Declaration of Human Rights came out in 1948, but given that the Sankey Declaration was from 1940, it’s hard not to think that it must have had some influence on the UDHR.
But what really made me think of him was Neil McNaughton’s statement that 
‘While the developments described above have been going on, Britain has also seen the appointment of a number of senior judges with distinctly liberal leanings. Among them have been Lords Woolf, Phillips, Bingham and Hoffman.’
This is, of course, true, but he implies that this is a recent phenomenon.  It isn’t.  Senior judges have been liberal, and sticklers for the rule of law, for a long time.  Sankey is a good example.
Perhaps judges are more outspoken because the government is behaving more outrageously:  it’s not that judges have become more liberal, but that politicians have become more illiberal.

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This is great. Read it. Lord Phillips’ lecture on Judicial Independence

Lord Phillips was the first President of the Supreme Court. He retired in 2012, succeeded by Lord Neuberger.  He delivered this lecture to UCL in 2011. You can read the whole of it here, but below is a précis.

‘The rule of law is the bedrock of a democratic society… If the rule of law is to be upheld, it is essential that there should be an independent judiciary. The rule of law requires that the courts have jurisdiction to scrutinise the actions of government to ensure they are lawful. In modern society the individual citizen is subject to controls imposed by the executive in respect of almost every aspect of life. The authority to impose most of those controls comes, directly or indirectly, from the legislature. The citizen must be able to challenge the legitimacy of executive action before an independent judiciary. Because it is the executive that exercises the power of the State and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected.’

He quotes principles for judicial independence as formulated in the Latimer House Guidelines (Commonwealth, 2003):

‘We believe in the liberty of the individual under the law, in equal rights for all citizens.’

This means that there should be an ‘appropriate, independent process for judicial appointments’, guaranteeing ‘the quality and independence of mind of those appointed.’

The Lord Chancellor, being a member simultaneously of executive, legislature and judiciary, had obvious conflicts of interest. Phillips says that the LC never was ‘influenced by political considerations in his appointments’, but because it was a rather nebulous process, that couldn’t be clear. So the JAC was set up. LC still has to approve their recommendations (and can veto them), but works well in ensuring independence. SC appointments are made by an ad hoc commission of senior judges.

The job description/ person specification for SC judges is on p.6 of his talk.

The new appointments system hasn’t so far done much to change the white-middle-class-male-ness of the senior judiciary, but this will necessarily take time.

Salaries: these need to be independently set as well. They were intended to be, but the Treasury said ‘no’. The Treasury also wanted the SC to be paid for primarily from court fees – but this would make justice only accessible to the wealthy. In return for getting Treasury money, the chief executive (the civil servant in charge of the court) had to find massive savings.

JR

50% cases are to do with public law (i.e. involve JR). ‘This makes it even more important that the Supreme Court really is independent of Her Majesty’s Government. These cases involve challenges to the legality of executive action.’

Previous to the HRA, ‘courts were reluctant to interfere with executive action.’ They based decisions on the Wednesbury principle: was the decision of administrators reasonable? The HRA means that judges now have to consider whether decisions/ actions comply with the ECHR/ HRA. This is part – but only part – of the reason for the increase in the number of JR cases. The other two reasons are 1) ‘the increased complexity of modern society which brings with it an increasing amount of executive control over the activities of the citizen.’ 2) ‘a growing recognition by the citizen and by public interest bodies of the possibilities of challenging such action.’

During the Belmarsh case, the Home Secretary (Charles Clarke) said that judges were keener on a criminal’s human rights than the good of society at large. Phillips says that this was a total misunderstanding of the judges’ position: Clarke wanted to pick judges’ brains about how to deal with ’the terrorist problem’, but this would have ‘infringed the principle of the separation of powers’.

Lord [Michael] Howard [another ex-Home Secretary] said:

“The power of the judges, as opposed to the power of elected politicians, has increased, is increasing and ought to be diminished. More and more decisions are being made by unelected, unaccountable judges, instead of accountable, elected Members of Parliament who have to answer to the electorate for what has happened”.

Lord Phillips said, ‘These statements evidence a failure to understand the role of the judiciary. When we review administrative action we do not substitute our decisions for those of the executive. We check that the executive has acted in accordance with the law, as laid down by Parliament.’

Ken Clarke said that JR grew more than he imagined, but we shouldn’t try to reverse it, as it is the law.

Accountability

The right of appeal means that courts are accountable.

The Constitutional Reform Act set up a ‘complex’ disciplinary scheme for sacking judges (for misconduct). This involves the LC and the LCJ, and Phillips thinks it works: ‘judges cannot be accused of looking after their own, and yet judicial independence is preserved.’

‘But some make the point… that judges are unelected and yet take it upon themselves to overrule the elected government.’ Some think we should have a SC more like America’s, but Phillips disagrees – for it leads exactly to the politicisation of the judiciary that we need to avoid.

Phillips thinks the filming of court proceedings is a good idea.

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