english councils have no implied power to include prayers in formal meetings February 11, 2012
Posted by Bradley in : governance , add a commentUnder s 111 of the Local Government Act 1972 local authorities have implied powers “to do any thing which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.” Mr Justice Ouseley held that Bideford Town Council did not have the power to have prayers as a formal part of council meetings under this provision. The Council didn’t do itself any favours here by arguing at the same time that the prayers were important and that Councillors who did not wish to participate would not be required to do so:
There is a contradiction at the heart of the Council’s position. It has made the prayers part of the formal business of the Council, yet it says that Councillors, summoned to its meetings, are not obliged to be present for this incident to the transaction of business nor to participate in it. I do not think that what falls within the scope of s111, as an incident to the transaction of the business of the meeting, can then be regarded as such that attendance for it is unnecessary or optional, in distinction from all other business. In effect it is treated as being outside the scope of the meeting. I do not see that it can be calculated to facilitate the transaction of business or any other functions if, for it to take place at all, it is necessary to give Councillors the choice not to attend. Nor can it be conducive to the transaction of business or to the exercise of any functions, if it does not matter if Councillors attend or not. If the Council does not regard it as business for which attendance is summoned, then it should not be on the agenda. If it regards it as business to which the summons applies, it cannot make attendance for it optional on the grounds that participation could be objectionable to some Councillors. No such arrangement would be necessary for a few minutes silent reflection.
The judge said that if the council had had the power to hold prayers during council meetings the way in which it had been managing the practice did not infringe the complaining Councillor’s human rights or unlawfully discriminate indirectly against him on the grounds of his lack of religious belief.
Lord Carey, former archbishop of Canterbury, said the judgment could have “incredibly far-reaching consequences”. “Will the next step be scrapping the prayers which mark the start of each day in parliament?” he asked.
This seems to me to be both wrong and unnecessarily inflamatory. It ignores the narrow basis on which the decision rests. This interpretation of the Local Government Act has nothing to do with the powers of Parliament, which is a sovereign authority in a way that local authorities are not. So here, the fact that the judge thought the Council’s practice did not violate human rights or constitute unlawful discrimination seems to be what is significant.
greek doctors are “foreign government officials” February 6, 2012
Posted by Bradley in : corruption , 5commentsAccording to the SEC which charged Smith & Nephew PLC with violations of the FCPA (Smith and Nephew settled):
The SEC’s complaint against Smith & Nephew PLC alleges that its subsidiaries used a distributor to create a slush fund to make illicit payments to public doctors employed by government hospitals or agencies in Greece. On paper, it appeared as though Smith & Nephew’s subsidiaries were paying for marketing services, but no services were actually performed. The scheme basically created off-shore funds that were not subject to Greek taxes to pay bribes to public doctors to purchase Smith & Nephew products.
Last year the Central District of California held that:
a state-owned corporation having the attributes of CFE may be an instrumentality”of a foreign government within the meaning of the FCPA, and officers of such a state-owned corporation, as Messrs. Nestor Moreno and Arturo Hernandez are alleged to be, may therefore be “foreign officials”within the meaning of the FCPA
But even if this is a correct interpretation of the FCPA, isn’t there a real difference between officers of a government owned corporation and doctors in a hospital? Are the doctors “officials” in any real sense?
eu citizens initiatives.. January 26, 2012
Posted by Bradley in : governance , add a commentesma consults on draft technical standards on short selling and credit default swaps January 25, 2012
Posted by Bradley in : consultation , 1 comment so farThe consultation on draft technical standards on short selling and certain aspects of credit default swaps began yesterday and lasts until February 13. The Commission seems to have given ESMA over 4 months to provide the advice (from the end of November to the end of March) but it took ESMA two months to develop its consultation and it plans to use 6 weeks or so to finalise its advice. That leaves 2.5 weeks for public input. This is a bit of a contrast to the general lengthening of consultation periods the Commission announced at the beginning of the month.
uk consultation on registration of lobbyists January 20, 2012
Posted by Bradley in : consultation, transparency , add a commentThe Consultation Document is here. The document proposes that a body independent of Government and the lobbying industry should manage the register (a new arm’s length body?). The appropriate definition of lobbying is a central issue. Here are some of the questions posed by the document:
Should in-house lobbyists be covered? Many large companies have employees whose main duties are to lobby on behalf of that company. The Government proposes that only those lobbying on behalf of third parties should be covered by the Register. Given that is clear whose interests they represent, it is not evident that an extension of the register to in-house lobbyists would provide any additional transparency.
Should lobbyists or firms acting on a pro bono basis have an exemption from the duty to register?
Should organisations which engage in lobbying on behalf of interest groups such as Think Tanks and Charities be required to register? If so, how might this be captured in the definition of lobbying or lobbyist?
The Government does not wish to discourage the normal activity between constituents and MPs. Should there be an explicit exemption included in any definition?
critique of uk e-petitions system January 19, 2012
Posted by Bradley in : transparency , add a commentThe House of Commons Procedure Committee has published a report which critiques the Government’s implementation of e-petitions. Here’s an example of the problems the committee identified:
It is wrong for the Government to raise petitioners’ expectations of the e-petitions process to unrealistically high levels. E-petitions may be an easy way to raise awareness of an issue, to receive a response from the Government to a particular concern, or even to have a matter debated in Parliament. They are not, and should not be claimed to be, an easy way to change Government policy or legislation… We recommend that the Government should remove the sentence “e-petitions is an easy way for you to influence government policy in the UK”from its e-petitions website and replace it with a statement that more accurately reflects reality. We propose: “epetitions are an easy way for you to make sure your concerns are heard by Government and Parliament”.
new year, new consultation in the eu January 4, 2012
Posted by Bradley in : consultation , add a commentThe Commission announced yesterday that it is lengthening the consultation procedure from 8 to 12 weeks. And, probably to encourage registration: lobbyists who are registered on the transparency register will get early alerts about proposed initiatives:
The Commission has also introduced an alert service for upcoming initiatives: Organisations that sign up for the Transparency Register, can subscribe to this alert service to get early information on the roadmaps for new initiatives in their fields of interest about one year before there (sic) adoption.
Of course those who aren’t lobbyists aren’t supposed to be on the Transparency Register, and they don’t get the early heads up either. So it’s a bit of a mixed bag. Let’s make life easier for lobbyists if they agree to let us watch them. But it doesn’t seem to do much to encourage more general citizen participation in consultations (which seems to be what the public statements suggest will happen):
The President of the European Commission, José Manuel Barroso, said: “A key part of getting our policies right is listening to the people who will be affected by them. By keeping our consultations open longer we will strengthen the voice of the citizens, businesses and organisations that help us shape our policies for the benefit of all.”
independent review of terrorist asset freezing act 2010 December 15, 2011
Posted by Bradley in : transparency , add a commentDavid Anderson, the independent reviewer of terrorism legislation, has published his first report. There’s a lot in this report, including a very clear description of the background and of the statute. Reading the report it isn’t very clear that there’s much clarity about what the freezing of assets is really achieving. The report notes, for example, that the Treasury’s list of designated persons “has a distinctly haphazard look” (para. 10.12).
The report makes a number of recommendations, including:
The Treasury should issue and present to Parliament a statement of policy regarding ts approach to designation under TAFA 2010, in order to ensure that the power is used in a consistent and principled manner. That statement should deal, in particular, with: (1) the factors that may lead the Treasury to conclude that the statutory tests for designation (in particular, the necessity test) are satisfied;(2) the factors that in a case where the statutory tests are satisfied may inform the Treasury’s exercise of its discretion to designate (or to retain a designation in force). It should also confirm that no designation will be made, or retained in force, without consideration of whether designation would be proportionate bearing in mind the anticipated effect on private and family life (Article 8 ECHR) and property rights (Article 1 of the First Protocol).
The report also makes recommendations about improving procedures for designation and review, and for licensing and compliance (for example to reduce the humiliation suffered by designated persons) and about increasing transparency.
public administration select committee on the big society December 14, 2011
Posted by Bradley in : governance , add a commentConclusions of today’s report:
The substantial change expected to result from the Big Society project, namely the devolution of power to communities and citizens will not occur overnight: if successful, as witnesses suggested, it will take a generation. The Government’s Big Society statements have, so far, failed to communicate this point effectively. There is public confusion with the policy agenda, eighteen months into this administration. Confusion also still exists among many service providers. Early examples, such as the Work Programme, have caused the charitable sector to express serious reservations about the implementation of the Government’s ambitions in practice.
To bring in charities and voluntary groups to deliver public services, the government must take steps to address the barriers they experience in the contracting and commissioning system, which means developing a plan to address roles, tasks, responsibilities and skills in Whitehall departments. We recommend:
a) A single Big Society Minister, who has a cross-cutting brief, to help other Ministers to drive through this agenda once they begin reporting progress against the aims of Open Public Services White Paper, from April 2012.
b) An impact assessment, applied to every Government policy, statutory instrument, and new Bill, which asks the simple question: “what substantively will this do to build social capital, people power, and social entrepreneurs?”
Unless this is done, the Big Society project will not succeed
corporate jotwell: december 2011 December 12, 2011
Posted by Bradley in : jotwell , add a commentThis month I am recommending Kimberly Krawiec’s paper: Don’t ‘Screw Joe the Plummer’: The Sausage-Making of Financial Reform.