Professor Michael Gordon at the CLDG

On Tuesday 10 April, 3pm, at Neil MacCormick Room, David Hume Tower, professor Michael Gordon (University of Liverpool) will be speaking at the CLDG. The title of his presentation and abstract is as follows:
Constitution-Making in UK Courts – Constructing a ‘Shadow Constitution’?
Abstract:

The paper takes the case of Miller [2017] UKSC 5 as a starting point to consider potential changes in the way the UK courts are now using constitutional ideas.  First, it will explore the nature of the changing use of ‘the constitutional’ in the UK courts, by reference to the range and the effects of modern judicial engagement with ideas of constitutional statutes, constitutional values and constitutional principles.  Second, the paper will explore the implications of this ‘constitutionalisation’ of the UK constitution, and the potential problems of authenticity, legitimacy, and openness which it generates.  Third, and in light of the problems identified, the paper will attempt to outline a framework for understanding and evaluating the changing use of judicial constitutional rhetoric.  This framework is found in the idea of a ‘shadow constitution’, which stands not as an alternative to any ‘real’ constitution, but provides an analytical concept which better exposes the deficiencies of the contemporary constitution-making endeavours of the UK courts.  The idea of a ‘shadow constitution’ also creates space to understand both the appeal and the limitations of a constitutional model which, ultimately, it must be up to citizens to embrace or reject.

 

Chris Jones on Political Parties

Chris Jones (University of Edinburgh), co-convenor of the Constitutional Law Discussion Group, will be presenting his work in progress The Legal Personality of Political Parties.

Date: Tuesday 30 January, 3pm

Venue: Neil MacCormick Room, David Hume Tower

Abstract:

This paper forms part of a PhD research project that is examining the constitutional role of political parties by focussing on the evolving legal relationships between political parties and individuals.

Political parties are an intrinsic part of British democracy, yet operate in the shadows of the constitution, only recently acquiring constitutional and legal recognition. Without a legal personality and with no consistent statutory definition, their de jure existence does not match their de facto constitutional role, which is still developing. This surprising notion runs counter to popular understanding, and indeed public experience, of political parties’ contribution to the democratic process.

In this paper I examine the development of political parties within the United Kingdom and the devolved Scottish Parliament. I further examine their legal personality, what constitutionally distinguishes them from other political actors (both institutional and individual) and the constitutional dependence on the functions of political parties. I therefore consider individual rights with respect to political parties, which leads to examining the publicness of parties as institutions and whether a solely private law based understanding remains adequate.

Dr Veronica Fikfak on Damages in the ECtHR

We are happy to kick off a new semester! Our first seminar this semester will be on Tuesday 23 January, 3-5pm, at Room 11.01, David Hume Tower

Dr Veronica Fikfak (University of Cambridge) will speak on “Damages for human rights violations – A practice of commodifying rights?”

The abstract of her talk is as follows:

The proposed paper focuses on remedies for human rights violations, specifically non-pecuniary damages as a feature of the case law of the European Court of Human rights. In particular, I investigate whether the Court’s current approach to damages offers an effective and appropriate means of redressing human rights breaches and deters potential violators from infringing rights further. The paper builds on an empirical quantitative and qualitative analysis of the practice of the European Court of Human Rights, whose approach is often mirrored in domestic jurisdictions, including the UK (see the Ullah approach), France and Germany. The aim of the paper is to uncover how the Court’s approach to damages has influenced the approaches of the different jurisdictions and more specifically, how its approach has affected human rights compliance and deterrence in these countries.

Whilst domestic courts of the 47 Council of Europe Member States, over which the ECtHR has jurisdiction, usually award damages on the basis of scales that are public and mostly clear, this is not the case with the ECtHR. The Court sets out no rules or guidelines as to when individuals are likely to get compensation; it also does not explain which elements of their treatment applicants should emphasise nor how much they should ask for. The uncertain practice of the ECtHR has created a significant legal gap on the international level as well as in the domestic laws of the 47 countries of the Council of Europe. The paper, which I propose to present at the workshop, seeks to fill this gap. Through a statistical analysis of 5,000-7,000 cases of the ECtHR, the first part of the paper will explain when individuals are likely to be compensated for the breach of a human right and determine how much they are likely to receive in damages. More importantly, I intend to show what motivates the Court’s approach and how it perceives its function (ie whether it is seeking to punish states that are repeat violators, whether damages vary depending on the monetary situation of the respondent state, or characteristics associated with the victim, their religion, nationality etc.)

In the second part of the paper, I will show how the Court’s approach impacts states’ practice. Building on behavioural economics, the paper will reveal how the current approach of the ECtHR to damages may be encouraging repeat offenders to pay-off their violations rather than change their behaviour, thus leading to commodification of rights. By fixing a monetary tag on a specific right and thus setting out a potential ceiling to human rights protection, the Court could be preventing better protection of rights in jurisdictions around Europe. In this context, I look at a number of recent cases which suggest that the awards made by the European Court have significantly lowered damages that individuals would get if national courts were left to decide to fix awards on their own. Does the current approach of the Court therefore encourage a perpetuation of problematic state behaviour practice, whilst preventing victims from having their harm assessed properly at the domestic and international level? The conclusion of the paper will speculate how, in light of these findings, the approach to damages or remedies should be changed.

Dr Tom Daly Wednesday 6 December

Our last event for this semester seminar series will take place on Wednesday 6 December, 3-5 pm at Neil MacCormick Room.

Our former convenor, Dr Tom Daly, will be speaking on “Democratic Decay and Courts: part of the problem?”

Here is the abstract of his talk:

Democratic decay―that is, the deterioration of democratic rule falling short of full breakdown―is a rapidly evolving threat to democratic governance worldwide. In Poland, South Africa, Brazil, India, Japan, the US and beyond, democratic structures are not only under intense pressure from anti-democratic political forces, but also from longer-term social forces including declining public faith in democratic governance and rising support for illiberal, nativist and xenophobic political parties, movements and leaders. Courts in these contexts often tend to be painted in two ways: either as heroes or as captives, capable of standing up for democracy or acting merely as servants to an anti-democratic regime. This talk will argue that the picture is much more nuanced and that even independent courts can be part of the problem, focusing in particular on recent developments in Brazil and India. 

Forthcoming: Seminar on Democracy, Pluralism, and Constitutionalism in Southern Asia

On 21st November 2017, we will be hosting a joint event with the Edinburgh Centre for Constitutional Law and the Centre for South Asian Studies at Neil MacCormick Room.

The agenda is as follows:

14:00 – 14:10              Welcome and Introduction by the Chair: Navraj Singh Ghaleigh

14:10 – 15:00              A Royal Coup – The Forced Dissolution of Pakistan’s Constituent Assembly using the Royal Prerogative and the Misrule of Law: H. Kumarasingham

15:00 – 15:20              Discussants: Wilfried Swenden and Asanga Welikala

15:20 – 15:45              Plenary Discussion

15:45 – 16:00              Break

16:00 – 16:45              In Search of the Ancient Constitution? The Galactic Polity and the Constitutional Challenge of National Pluralism in Sri Lanka and Myanmar: Roshan de Silva Wijeyeratne and Asanga Welikala

16:45 – 17:15              Discussants: Jonathan Spencer and Stephen Tierney

17:15 – 17:45              Plenary Discussion

Forthcoming event next Tuesday

Scotland’s Place in Brexit: Role and Perspective”

Anthony Salamone (University of Edinburgh)
Date: Tuesday 17 October, 3-5pm

Venue: Neil MacCormick Room, David Hume Tower

Abstract:

In the aftermath of the EU referendum, one of the essential resultant questions has been the role of Scotland in the process of Brexit. The majority vote for Remain in Scotland, the traditionally more pro-EU nature of Scottish mainstream politics and the ambitious drive of the governing SNP contributed to building a notion early on that Scotland could (or should) have a different arrangement in respect of Brexit. To that end, the present Scottish government is occupied by two parallel and competing Brexit objectives – (1) to oppose (hard) Brexit in relation to Scotland and (2) to ensure that, as and when Brexit develops regardless, Scotland’s interests are represented. Differentiation for Scotland within the UK’s Brexit settlement has consequently become a focal point of debate, concentrating in particular on Scottish membership of/association with the EU’s Single Market. At the same time, the various positions and tactics of all the main Scottish parties have degraded the original political consensus on maintaining Scotland’s place in Europe (however that was defined). The future of devolution and the debate on independence further contribute to and complicate the picture, as do politics in the UK as a whole, the Member States and the EU institutions. This presentation will explore the state of affairs of Brexit for Scotland (including the Scottish government’s strategy), from a politics perspective, and evaluate the prospects of Scotland’s principal scenarios for Brexit.