The House of Lords – Into the Future?

The idea for presenting these opinions on the future of the House of Lords as an article grew out of a seminar held in the House of Lords in February 2006, an event that itself grew from the contributions to the book Parliament in the Twenty-First Century, a collection of 30 essays from academics, commentators and politicians.1 1. N. D. J. Baldwin (ed.), Parliament in the Twenty-First Century (London: Politico's, 2005). The seminar saw presentations from Lord Howe, Lord McNally and Lord Carter, and it is their observations that follow here.2 2. Lord Howe: Geoffrey Howe was Chancellor of the Exchequer (1979–83), Foreign Secretary (1983–89) and Deputy Prime Minister (1989–90); Lord McNally: Tom McNally is Leader of the Liberal Democrats in the House of Lords; Lord Carter: Denis Carter, Government Chief Whip in the House of Lords from 1997 to 2002. Sadly, Denis Carter died on the 18th December 2006. A skilled practitioner in the role of Chief Whip, he won respect from all sides of the House for his knowledge and understanding of the way the House operates and for his forthright and honest approach both to the business of the House and to his fellow peers. He is much missed by all those who knew him.      

The Portuguese Parliament and Public Opinion: A Case for Reform?

During the past decade, the Portuguese political system has been under close scrutiny. As in other Western democracies, the topic of citizens' dissatisfaction with democratic institutions has been at the centre of a wide debate amongst public opinion and politicians. This debate has focused on parliament and parliamentary reform has often been seen as a way of enhancing parliament's image. However, as this note will show, there is no clear evidence that the Portuguese are dissatisfied with this institution. Indeed, this is still an under-researched area. Why is there an assumption that the Portuguese parliament has a negative image? And why should this have consequences for parliamentary reform? In the context of the creation of a Portuguese Election Study, this note aims to raise questions for future research on this topic. The note will look into the concept of legislative support, assess the evidence available on the Portuguese parliament's popularity and suggest indicators that would help to clarify the Portuguese views on this. It will also explore the connection between legislative support and the role of parliament, to enquire whether popularity indicators can make a case for parliamentary reform.     

Strasbourg,the House of Lords or Elected Politicians: Who decides about rights after Re P?

In Re P , the House of Lords decided that art 14 of the Adoption (Northern Ireland) Order 1987 which prohibited unmarried couples from being eligible to adopt, violated articles 8 and 14 of the European Convention on Human Rights. Apart from its significance for adoption law and anti-discrimination law, Re P is also important in understanding the constitutional role of the courts under the Human Rights Act 1998 (HRA). Re P recognizes that if Strasbourg has determined that an issue falls within states' margin of appreciation, this does not prevent municipal courts from enforcing those rights. This comment will discuss the meaning and scope of the courts' obligation under section 2 of the HRA, the status of the rights protected by the HRA and the appropriate role of the courts in a rights dispute which is subject to moral, social, religious or political controversy.     

Reclaiming freedom of the press: A Hutchins Commission dream or nightmare?

This article explores how and why the Hutchins Commission's vision of a responsible press and an informed citizenry did not, and does not, realistically meet either the needs of the media industries or the public. Although it was the commission's goal to create a healthier society, the new technologies of communication present old and new problems—problems that cannot be negotiated by the commission's well‐meaning but idealistic notions of press responsibility. The Internet demonstrates the old dilemma of elite access and concentrated ownership and a new dilemma of utility characterized by isolated users whose communication can be argued only superficially as socially healthy. Perhaps a more innovative and structurally significant approach, beyond the rhetoric of “press‐responsibility,” is needed to create physical access to media that can achieve the kind of “publicness” the Hutchins Commission envisioned.     

‘European Governance’ or Governmentality? The European Commission and the Future of Democratic Government

The word ‘governance’ has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of ‘European governance’. The paper is set out in four steps. The first analyses the European Commission's claims for ‘governance’ as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion.     

A Rush to Judgment?: The Origin of the 2001 Australian “Heroin Drought” and its Implications for the Future of Drug Law Enforcement

This paper reassesses the origins of what has been referred to as the Australian “heroin drought.” It looks at the theories that circulated in drug policy circles immediately after the supply shortage was discovered in 2001. It concludes that there may have been a ”rush to judgment” as these inferences were based on unsatisfactory data. As such, none of the theories that were advanced at the time hold true — the shortage was almost certain to have been the result of a Taliban- enforced reduction of Afghanistan grown opium. As interdiction strategies were one of the main theories for the shortage, this might seem disappointing, especially as supply reduction strategies struggle to maintain relevancy against a growing shift to demand reduction and harm reduction strategies. But this situation should not be the case — drug seizures should not be hailed as law enforcement's central strength in this or any other situation. Instead, the strong point of policing should be seen as the broad approach it takes to reduce crime through its attack on all criminal enterprises, not just its assault on a particular criminal sector — like the drug trade.     

Anonymisation of personal data – A missed opportunity for the European Commission

As early as the 1970's, privacy studies recognised that ‘anonymisation’ needed to be approached with caution. This caution has since been vindicated by the increasing sophistication of techniques for reidentification. Yet the courts in the UK have so far only hesitatingly grappled with the issues involved, while European courts have produced no guidance.     

The crime of the century? The case for the Holocaust

With the twentieth century now ended the Holocaust is surelya leading contender for the title of ``The Crime of the Century.'Although a massive literature exists on the Holocaust, very littleof this literature has been produced by criminologists. Somereasons for this relative neglect are identified and a case ismade for the claim that criminology can contribute to anunderstanding of the Holocaust and that the Holocaust cancontribute to the development of a more profound criminology. Thispaper draws upon an integrative criminological approach toconstruct a framework for understanding the Holocaust. This multi-disciplinary framework links philosophical, sociolegal,sociological, behavioral and criminological dimensions todiscriminate between unique and non-unique aspects of the Holocaustas a case of genocide and as crime. The paper closes with someobservations on the relevance of the Holocaust for challengesconfronting a twenty-first century criminology.     

The Animal: A Subject of Law? A Reflection on Aspects of the Austrian and German Juridical Systems

In recent years there has been a marked increase in interest in animal welfare issues worldwide. This subject often evokes extreme points of view, and can be both intellectually challenging and emotionally dividing. It is undeniably a field where substantial progress has taken place, with a multitude of countries worldwide implementing their own animal welfare and protection laws. However, calls continue to be voiced for more extensive and courageous measures to be taken concerning both the content and the enforcement of animal welfare legislation. To highlight a variety of these promising and noteworthy ideas this article outlines and examines some selected and qualified aspects of a potential juridical approach to the subject by consulting the legal systems of Austria and Germany under this particular premise. The aim will be to ascertain the extent to which animals have been granted consideration and protection, for instance in spheres of Constitutional or Civil Law. What options exist to safeguard an animal by a legally founded and secured position, and on which rank in the legal system could such provisions possibly be established? Ideally, a complete legal network on all possible levels of the legal system should be developed, ensuring a comprehensive and an all-embracing protection of the individual animal.     

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

     

Setting the Path for the UNWCC: The Representation of European Exile Governments on the London International Assembly and the Commission for Penal Reconstruction and Development, 1941–1944

This article discusses the development of the UNWCC and the intellectuals involved. It notes the commitment that smaller Allied states made to frame international criminal law with regard to war crimes. The article pays particular attention to two Czech delegates who stood out from the community of experts, and who were instrumental in formalizing how war crimes committed in Europe during the Second World War – and beyond – should be handled. The concept of crimes against humanity became a main outcome of the legal debates, serving not only as a blueprint for the London Charter, but the international criminal law system as a whole. The predecessors of the UNWCC, involving some of the most renowned lawyers of the time, formed one of the first truly transnational networks. Moreover, the experiences of the lawyers, and their framing of that experience in lengthy memorandums, helped to generate a new concept in politics: the protection of human rights.