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April 17 2014

Transitional Justice in Nepal - a new Working Paper

As Nepal continues to debate how to deal with the legacy of the internal armed conflict of 1996-2006, the rule of law and transitional justice remain high on the national agenda. A new Working Paper from the Bingham Centre examining these issues was published on 17 April 2014.

The Rule of Law and Transitional Justice in Nepal: Options for Co-ordinating a Truth Commission, Criminal Justice Mechanisms and Personnel Reforms (April 2014), draws upon international and comparative experience to consider the benefits of three key mechanisms - truth commissions, criminal trials and personnel reforms - and how to reduce the potential for conflict when they overlap.

Read and download the Working Paper and Executive Summary.


March 13 2014

On Tuesday 4 March, the Bingham Centre held a panel discussion entitled: 'The Prisoners Left Behind: Imprisonment For Public Protection After Its Abolition'

To hear an audio recording from the event, addressed by Lord Lloyd of Berwick and three other experts including the Chairman of the Parole Board, click here


March 11 2014

Schools project: Citizenship Education and the Rule of Law

The Bingham Centre for the Rule of Law has been awarded a grant by the Legal Education Foundation to develop lesson materials (print, audio visual and web-based) that will introduce rule of law concepts to Key Stage 3 students, informing the way they think about citizenship issues. The project will run over 18 months, piloting in 10 schools in London and regionally. The Bingham Centre is currently recruiting for schools interested in taking part in the pilot and for an advisory panel to assist with project design and delivery. For more information, please click here


February 21 2014

On Monday 10 February, Robert Pé, Adviser on legal affairs to the Burmese opposition leader and Nobel laureate, Daw Aung San Suu Kyi, delivered a lecture on "Burma/Myanmar: The Prospects for Democracy and the Rule of Law".

The event was chaired by Lord Michael Williams of Baglan and was organised by the Bingham Centre in collaboration with the International Law Programme at Chatham House. The evening was hosted by Macfarlanes LLP.

To read Mr Pé's lecture in full, click here.

To read the Chatham House report on the event, click here.


February 19 2014

To read the Bingham Centre's submission to the JCHR Inquiry in respect of the Government's proposals in relation to Judicial Review, click here.


February 18 2014


The Bingham Centre for the Rule of Law announces the publication of a Report on Streamlining Judicial Review in a Manner Consistent with the Rule of Law. The Review was chaired by Michael Fordham QC, Visiting Fellow of the Bingham Centre and included Martin Chamberlain QC, Iain Steele and Zahra Al-Rikabi.

Sir Jeffrey Jowell QC the Director of the Bingham Centre for the Rule of Law said:

"The Bingham Centre wanted to make a constructive contribution to the debate about the role of Judicial Review. There has been no systematic review of the procedures of the Administrative Court for many years. This committee under the leadership of Michael Fordham QC has produced a number of practical suggestions which aim to make the procedures more efficient, saving public funds yet maintaining the standards of the rule of law."

To view the report, click here.


The Bingham Centre for the Rule of Law commemorates and celebrates the life of Nelson Mandela, lawyer and advocate for the Rule of Law

Nelson Mandela has been celebrated for his magnanimous political leadership of South Africa after 27 years in prison, but his work as a lawyer is less well known. To read an article on Mandela the lawyer written by the Centre's Director, Sir Jeffrey Jowell QC with Professor Hugh Corder of the Faculty of Law, University of Cape Town click here. The article was first published in Times Law on 27 June 2013.

Safeguarding the Rule of Law, Democracy and Fundamental Rights: A Monitoring Model for the European Union

The Bingham Centre for the Rule of Law has finalised its report, 'Safeguarding the Rule of Law, Democracy and Fundamental Rights: A Monitoring Model for the European Union'. Led by Justine Stefanelli and Lucy Moxham, the Report reviews existing monitoring mechanisms in the European Union, Council of Europe and United Nations, and proposes a monitoring mechanism that could be used by the European Union in the fields of fundamental rights, rule of law and democracy. The Bingham Centre is grateful to the Open Society European Policy Institute for funding this research. The Report was also submitted to the European Commission's recent consultation on the future justice policy of the European Union. More information about that process is available here.

The Report can be downloaded here.

Bingham Centre Event: Do Our Tax Systems Meet Rule of Law Requirements?

On 20 November 2013, the Bingham Centre held a one-day conference to discuss whether aspects of the UK tax framework comply with the rule of law standards set out in Tom Bingham's celebrated book 'The Rule of Law' (OUP 2011). The conference offered different perspectives on this important issue, including international speakers presenting comparative views. The event concluded with a debate on the GAAR between David Goldberg QC and Graham Aaronson QC. A summary of the event will be available soon. The conference continued the conversation from an earlier seminar in March 2013 and a summary of that discussion is available here

We would like to thank Berwin Leighton Paisner for its generosity in hosting both events.

A summary of the 20 November event is available here.

A selection of speakers' presentations and papers can be downloaded here.

12 November 2013
Bingham Centre Myanmar Constitutional Awareness Project November 2013

Naina Patel (the Bingham Centre's Director of Education and Training) and Alex Goodman (Barrister, working with the Bingham Centre) have recently visited Myanmar to provide training on the Constitution of the Republic of the Union of Myanmar 2008 as part of the current constitutional review process.

Materials from the programme are available for download:
  • Constitutional Awareness, Myanmar - Training Manual October 2013 (English or Burmese)
  • Constitutional Awareness, Myanmar - Training Slides November 2013 (English)
  • Key Provisions of the Constitution Myanmar - Handout November 2013(English)
The Training Manual examines a number of issues including what is the constitution, key provisions of the current Myanmar Constitution and possible areas for reform. The document is not written for the specialist in constitutional law nor is it intended to be fully comprehensive.


6 November 2013

Bingham Centre Autumn Newsletter

The Autumn edition of the Bingham Centre newsletter has been published featuring a number of articles by Bingham Centre staff and external fellows, as well as a guest contribution by Bingham Centre External Fellow, Michael Fordham QC on Immigration Detention and the Rule of Law.

Read it in full here


4 November 2013

Bingham Centre responds to Judicial Review and Legal Aid consultations

The Bingham Centre for the Rule of Law responded on 1 November to two Government's consultations, "Judicial Review: Proposals for Further Reform" and "Transforming Legal Aid: Next Steps".

The Centre is critical of the proposed amendments to judicial review laws regarding standing that would require a 'direct interest' and addresses the implications regarding accountability of government. The response also raises concerns about proposals relating to procedural defects and the rebalancing of financial incentives.

In its Legal Aid response (which is also a supplementary response on Judicial Review), the Centre examines the evidence for the Government proposals under which legal aid would ordinarily only be paid for judicial review permission work if permission is granted.

Read the full response to the Judicial Review consultation
Read the full response to the Legal Aid consultation

2 October 2013
Bingham Centre announces Review into streamlined judicial review consistent with the rule of law

The Bingham Centre for the Rule of Law announces a Review to consider and report on possible ways of improving procedures in the Administrative Court, to save and protect public funds, in a manner consistent with the rule of law. The Review aims to issue an interim report by the end of the year and a final report in early 2014.
It will be chaired by Michael Fordham QC, Fellow of the Bingham Centre. The other members of the Committee are: Martin Chamberlain QC, Iain Steele and Zahra Al-Rikabi.

Submissions deadline: 15 November 2013. Full details on the Review Website

1 October 2013
Bingham Centre Launches Report on Immigration Detention and the Rule of Law

The Bingham Centre has published its report, Immigration Detention and the Rule of Law: Safeguarding Principles. Led by Michael Fordham QC, with Research Fellows Justine Stefanelli and Sophie Eser, this report draws on legal instruments, promulgated standards, working illustrations and judicial observations. It includes 'soft law' sources and finds inspiration in the principled proactivity of non-governmental organisations.

Download the report here

24 September 2013

Sir Jeffrey Jowell part of UK Scoping Visit on the Justice Sector

Director of the Bingham Centre for the Rule of Law, Professor Sir Jeffrey Jowell was recently part of a four-day scoping visit by distinguished British judges and law professors on the Palestinian justice sector.

EUPOL COPPS facilitated the scoping visit, funded by the UK Consulate General in Jerusalem, on the justice sector and the judiciary for representatives of the Slynn Foundation headed by Sir Henry Brooke and Sir David Latham, and Sir Jeffrey Jowell.

During the course of the four-day visit last week, EUPOL COPPS head of mission Kenneth Deane first met the British delegation and briefed them about the mission's activities with its Palestinian counterparts in the justice sector.

The high profile guests held meetings with the Palestinian Chief Justice, the Minister of Justice and the Attorney General. They also met with a number of judges from the High Judicial Council (HJC), the Chair of the Palestinian Bar Association, practicing lawyers, a law school professor, and with members of the international community.

At a reception held in honor of the visit and hosted by the Palestinian Chief Justice, the President of the Slynn Foundation, Sir Henry Brooke, remarked on the quality of the discussions and debate which he had encountered in the course of his meetings with the Palestinian judiciary and actors in the justice sector.

The UK Consul General in Jerusalem, Sir Vincent Fean, who also attended the reception held at the HJC said of the visit: "The British Consulate General is honored to fund this first visit to Ramallah by distinguished British judges and law professors and, working together with EUPOL COPPS, we will use this visit for future cooperation."

Read the full press release on the EUPOL COPPS website.


16 July 2013
Prosecutorial Discretion and the Rule of Law

Keir Starmer QC, the Director of Public Prosecutions, delivered a lecture for the Bingham Centre in which he explained why not all crimes should be prosecuted and how discretion is (and should be) exercised when deciding whether a prosecution is or is not required in the public interest. Download the speech.

Mr Starmer said, "I am not under any illusions; there are risks attached to the exercise of discretion. Whilst in appropriate circumstances it can be a force for good, poorly exercised discretion can mask corruption and malevolence."

To avoid potential for abuse and to ensure victims, suspects and the community can have faith n the CPS, he argued that the process must be consistent with fundamental rule of law requirements identified by Lord Bingham: "The CPS should exercise its discretion whether to prosecute on stated criteria, and our decisions should be amenable to legal challenge." He also argued that if these are to truly be given effect then the CPS must go beyond those two Bingham principles and, additionally, explain how decisions have been reached.

A feature of Mr Starmer's tenure as DPP has been the publication of guidelines that set out how the CPS will approach decision making in difficult sensitive areas such as offences by journalists, end-of-life assistance, offences on social media, and where the victims of rape withdraw allegations. In keeping with the demands of explanation, he argued that "the more visible prosecutor" has been an important innovation, with reasons often being published and explained to media.

"Prosecutorial discretion", he said, "is a good thing. It takes the edges of blunt criminal laws; it prevents injustice; it provides for compliance with international obligations; and it allows compassion to play its rightful part in the criminal justice response to wrongdoing. But is also calls for strict accountability through guidelines, reasons and challenge."

The DPP's speech was delivered on 16 July 2013 at a seminar convened by the Bingham Centre for the Rule of Law. The Bingham Centre is grateful to Lady Justice Arden for chairing the seminar, to Hogan Lovells LLP for hosting the event, and to the DPP for kindly providing the text of his speech.

Download the speech.


4 June 2013
Bingham Centre submits response to Government legal aid consultation

The Bingham Centre for the Rule of Law has today (4 June 2013) submitted its response to the Government's consultation on reforms to legal aid. The Centre is highly critical not only of the proposals to reduce legal aid, but also in other areas, such as in prisons, the proposal for a residence test, and the proposal that legal aid should be provided for judicial review claims only where an application for permission is successful. In particular, our response casts doubt upon the evidence base of the proposals.

Read and download the full response
Read and download the press release


17 May 2013
The Bingham Centre publishes its inaugural newsletter

The Centre has published its inaugural newsletter, which features a number of articles by Bingham Centre staff and visiting fellows, as well as a guest contribution by Professor Paul Craig, of the University of Oxford.

Read it in full here


26 March 2013
Addendum to news item of 17 March in Respect of the Arrest of Zimbabwean Human Rights Lawyer Beatrice Mtetwa

The Bingham Centre and Liberty followed up their statement condemning Beatrice Mtetwa's arrest with Instructions to Justice Johann Kriegler (Former Justice of the South African Constitutional Court) to appear at Beatrice's hearing and application for bail in the Zimbabwean High Court on Monday, 25 March. Bail of Z$500 was granted and the hearing of the charge will now take place in early April.
Beatrice has just written as follows:

My most profound gratitude at your support during my week's holiday as a guest of the government of Zimbabwe in its facilities in Zimbabwe. The absolute and total support I received made the 8 days appear like two days and instead of being broken, I feel invigorated as I scratch my lice bites from the prison cell. This stint also gave me an insight into the workings of the prison system and I am totally ashamed that I thought things were actually better than they are. Overcrowding, no ablution facilities in some cells, no mattresses for inmates, children sharing cells with adults, older foreign children forced to go to crèche for months on end whilst waiting for deportation, no recreational facilities or educational facilities for inmates, unbalanced diet, the list is endless!

I therefore consider that this was a necessary stint so that we can test the "new" constitution on all the myriad issues that continue to confront us in Zim.

I am particularly grateful that JUSTICE KRIEGLER, with his extremely heavy travel schedule was able to travel to Zim for the appeal hearing. I am humbled by this support and confirm my resolve to continue doing the best I can in the fight for the restoration of the Rule of Law in Zimbabwe.

My most sincere regards.

Beatrice


17 March 2013
Statement by Liberty and The Bingham Centre for the Rule of Law Issued on

17 March 2013 in Respect of the Arrest today of Zimbabwean Human Rights Lawyer Beatrice Mtetwa

Liberty and the Bingham Centre for the Rule of Law wholeheartedly endorse the statement of Freedom Under Law condemning the arrest of Beatrice Mtetwa in Harare today.

Ms Mtetwa is known internationally as a highly competent lawyer of the highest integrity. She was the recipient of a Liberty Human Rights Award in 2003. It is a cardinal principle of the rule of law and democracy that legal counsel are able represent their clients without intimidation so that acts and decisions of all public officials can be fairly challenged through the courts.

Shami Chakrabarti Director, Liberty

Professor Sir Jeffrey Jowell KCMG QC DIrector, Bingham Centre for the Rule of Law


07 March 2013

Bingham Centre News

From the Director

Lawrence McNamara Appointed New Deputy Director

We are immensely grateful to the David and Elaine Potter Foundation for their generosity in allowing us to appoint a Senior Research Fellow and Deputy Director. Lawrence comes to us from the School of Law at the University of Reading where he is a Reader in Law. He previously held lectureships at the University of Western Sydney and at Macquarie University, Australia.

His research interests lie primarily in the legal regulation of speech, especially as it relates to the media. He is the author of the celebrated, Reputation and Defamation (OUP 2007) which develops a theory of reputation and, in that light, analyses and proposes revisions to the common law tests for what is defamatory.

In 2009 Lawrence was awarded an ESRC/AHRC Fellowship in Ideas and Beliefs under the Research Councils UK Global Uncertainties priority. Now in its closing stages, this £300,000 award supports ' Law, Terrorism and the Right to Know', a programme of research that explores the relationships between democratic traditions of media freedom and the contemporary demands of national and international security. He has made an important contribution on that subject during the passage of the Justice and Security Bill.

Jan van Zyl Smit Appointed New Research Fellow in the Rule of Law

Jan van Zyl Smit Appointed new Research Fellow in the Rule of Law
Jan joins the Bingham Centre from Oxford Brookes University, where he is a senior lecturer teaching Public Law and International Human Rights Law. His recent research has focused on initiatives to reform the make-up of the judiciary in states undergoing constitutional transition, and on the effect of the UK Human Rights Act on the interpretation of legislation.

Jan began his legal studies at the University of Cape Town, where he completed an LLB magna cum laude and graduated first in his class. He then served as a law clerk to Deputy Chief Justice Pius Langa (later Chief Justice) at the South African Constitutional Court, before going on to graduate study as a Rhodes scholar at the University of Oxford, where he completed the BCL, MPhil and DPhil at Magdalen College. Jan has been involved as a researcher and advisor in the Kenyan constitutional transition. He conducted research for the Committee of Experts which drafted the 2010 Constitution and has served more recently as a legal consultant to the Kenya Judges and Magistrates Vetting Board, a body tasked with determining whether members of the serving judiciary are suitable to remain in office.

Rule of Law Seminar in Burma

I recently participated in a Rule of Law Seminar in Burma, organised by the European Union and the Attorney General of Myanmar, on 9 February in the capital Nay Pyi Taw. Present throughout the day was Daw Aung San Suu Kyi, Chair of their Parliamentary Committee for "The Rule of Law and Tranquility". The purpose of the meeting was to identify the role of the rule of law in the country's future. It was attended by about 300, including lawyers, civil servants, judges, members of parliament and NGOs.

The proceedings were opened by Myanmar's Attorney General, who invoked Lord Bingham's definition of the rule of law, and pledged that the country was committed to taking it forward. Daw Suu Kyi then identified a number of areas in which the rule of law was lacking in Burma/Myanmar, including an overloaded parliamentary drafting system, lack of facilities in courts and deficiencies in legal education. Above all, she said, ordinary people interact more with the administration than with courts, and it is that area that needs to be both more efficient and more compliant with rule of law standards.

I addressed the Seminar, and also participated in a later discussion session, and made the initial points that the rule of law was not a purely Western concept and was not vague but contained practical elements, as set out in Lord Bingham's book and in recent international instruments drawing on that book. I then made a number of suggestions about how the rule of law could be enhanced, including a more transparent law-making system and, taking up Aung San Suu Kyi's point, by setting out standards of good administration and administrative justice. These standards should be implemented through training and by providing the opportunity to challenge unlawful administrative action cheaply and effectively.

We are in discussions with the EU and others on the possible ways in which the Bingham Centre might be able to assist the promotion of the rule of law in Myanmar.

In Memoriam: Professor Ronald Dworkin

Professor Ronald Dworkin, who sadly died on 14 February, played an important part in the launch of the Bingham Centre during its first two years. He participated in its inaugural event, in March 2011, at Hogan Lovells, where he engaged in a "conversation" with US Supreme Court Justice Stephen Breyer, Lord Justice Stephen Sedley, and Lord Anthony Lester. A year later he was the keynote speaker at the Bingham Centre's event, in conjunction with the Foreign Office and the Venice Commission, on "The Rule of Law in Europe" at Lancaster House. Anyone who heard him on those occasions could not fail to be struck by his brilliance, eloquence and humanity.

The Director writes:
"We were privileged to have the support and participation of Ronald Dworkin during the first years of the Bingham Centre's existence. He has rightly been described as "the modern day Mill", whose work will be read with benefit by generations to come. Some years back he gave the seminal British Academy Lecture on the subject of the rule of law, where he demonstrated that it is a concept that is not purely formal, allowing countries like China to claim adherence to its values. He uncoupled "rule by law" or "rule-book" law, from "rule of law", which he imbued with a number of important democratic principles, such as equality, respect for human dignity and access to human rights. His writings generally on legal philosophy showed that law is not a bare system of rules but is infused with moral content. Litigation in the public law sphere involves a moral claim against the state. He was the most eloquent and subtle seminar-leader, lecturer and author who, in forums such as the New York Review of Books, commented brilliantly on the practical legal issues of the day, and the respective roles of the courts and the executive. He will be deeply missed, leaving us so greatly enriched by his enduring insights."


03 December 2012

Chief Justice Arthur Chaskalon, Bingham Centre Patron

It is with regret that the Bingham Centre announces the death of Arthur Chaskalson, former Chief Justice of South Africa and a Patron of the Bingham Centre.

Chaskalson gave up a lucrative commercial practice at the bar to found The Legal Resources Centre, an organisation that sought to pursue justice and human rights in South Africa, challenging the implementation of several apartheid laws.

Between 1989 and 1990 he assisted with the drafting of the Constitution of Namibia, and from 1990-1994 he was a key advisor to the Multi Party Negotiating Forum in the drafting and adoption of the Interim Constitution of South Africa in 1994. In June 1994, he became the first President of South Africa's new Constitutional Court, the highest court in South Africa where constitutional matters are concerned. On 22 November 2001 he became the Chief Justice of South Africa.

Sir Jeffrey Jowell, Director of the Bingham Centre said that Arthur Chaskalson was one of the most courageous and able lawyers of his time. His Constitutional Court established the highest standards of justice for the new South Africa, drawing on the best international and comparative standards while promoting the rule of law, equality, respect for human dignity and transformative justice.

Justice Chaskalon is survived by his wife, Dr Lorraine Chaskalson, sons Mathew and Jerome and grandchildren, to whom the Bingham Centre offers its sincere condolences.


28 November 2012

BINGHAM CENTRE AMENDMENT TO JUSTICE & SECURITY BILL ACCEPTED BY THE HOUSE OF LORDS

Following the Bingham Centre's Briefing Paper drafted by Dr Tom Hickman and Professor Adam Tomkins, the Bingham Centre wrote to Lord Wallace of Tankerness on 23 July 2012 to raise an issue with the Government arising from an amendment to the Justice and Security Bill moved by Lord Thomas of Gresford. To read the letter in full, click here.

During the Bills Report Stage in the House of Lords on 21 November 2012, reported in Hansard, Lord Wallace of Tankerness made a statement to Parliament regarding the acceptance of the need to amend the Bill:

Amendment 39 Moved by Lord Wallace of Tankerness

"39: Clause 6, page 4, line 35, at end insert "and any other enactment which would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section."

Lord Wallace of Tankerness: My Lords, in Committee, my noble friend Lord Thomas of Gresford tabled an amendment seeking to amend the effect of the disclosure gateway provisions in the Security Service Act 1989 and the Intelligence Services Act 1994. The amendment was based on a suggestion that emanated from the Bingham Centre for the Rule of Law. At that time the Government resisted the amendment on the grounds that it was not necessary to secure the agencies' compliance with their disclosure obligations and that it was wider than appropriate because it would mean the courts could order disclosure into civil proceedings regardless of the connection between those proceedings and the agencies' functions.

However, following the Committee stage, Professor Sir Jeffrey Jowell from the Bingham Centre wrote to me urging the Government to reconsider the issues raised by the amendment. After careful consideration and consultation with experts on this complex area of law, the Government have concluded that a similar amendment would be necessary. This is a technical area of law and it may help if I briefly explain why the change is needed.

Under Clause 6, the court must, on an application from the Secretary of State, make a declaration that the proceedings are ones in which a closed material application may be made if the court considers that a party would be required to disclose material in the course of proceedings and disclosure would be damaging to the interests of national security. The problem with the Bill as drafted is that it does not make it clear that statutory bars to disclosure into open court should not prevent there being disclosure into closed material procedures.

I assure the House that the Liberty analysis of this amendment is wrong. In an e-mail to parliamentarians its policy director described the amendment as being able to expand the categories of secret information on which the application for a CMP declaration can be based. That is not the case. The amendment makes it clear that the court should ignore any statutory provision that would prevent the disclosure of relevant material into open court but not into closed material procedures when the court is deciding the question of whether a party to proceedings would be required to disclose material. In other words, we do not want to be in the unfortunate position where we are unable to use a CMP as a result of these Acts covering the Security and Intelligence Agencies. These Acts are in part designed to ensure that highly sensitive information is not made public in the interests of our national security. The closed material procedures, however, have been assessed to be secure enough to allow highly sensitive information into a courtroom to be considered by a judge. The Government and agencies want the chance for a judge to come to an independent judgment. We do not want silence on these important matters.

Once again, I am grateful to my noble friend Lord Thomas for having raised this issue in Committee. While we may not have agreed on every point today, I am always grateful for his tireless work in holding the Government to account and for his detailed contribution. I am particularly grateful to the Bingham centre for taking time to scrutinise the Bill and for writing to me and asking the Government to rethink. The centre is an important legal research institute and the Government welcome its contribution to make sure that the Bill is suitably drafted. I beg to move.

Lord Thomas of Gresford: My Lords, have I not always said that this is a listening Government? I am grateful to my noble and learned friend for taking on board what I said on the last occasion, which I confess I have now totally forgotten. However, clearly it was very persuasive and I thank the noble and learned Lord for the amendment.
Amendment 39 agreed."


26 November 2012

Diminishing judicial review will reverse 50 years of legal progress

Following the recent threats by the Prime Minister and the Secretary of State for Justice to cut down on opportunities for Judicial Review, The Director published an article in Guardian Online on 19 November. To read the article in full click here.


23 November 2012

The Proposal to Codify Principles of Good Administration in European Institutions: Advancing the Rule of Law?

The Bingham Centre, joined by the Italian Council of State (Consiglio di Stato), hosted a conference on Friday, 23 November which explored the proposal before the EU Parliament (EP) to codify good administrative practice within EU institutions (EU (2012/2024(INI)). The first of its kind in the UK, the conference considered a variety of perspectives on the merits and disadvantages of codification, and the substance of the proposals, with a view toward informing the EU process.

Professor Paul Craig QC began the conference with a look at general options for codification ranging from the very broad (i.e. codification of general principles) to the very specific (i.e. codification of all substantive and procedural principles), and discussed whether, in the context of EU codification, the resulting legislation would apply only to EU institutions, or the Member States in implementing EU law as well. Professor Luigi Berlinguer, the lead author of the EP proposal, discussed its background and intended scope arguing strongly that the time was ripe for clear standards of good administration, in line with general principles as well as Article 41 of the EU Charter of Fundamental Rights.

The conference then shifted its focus to international models of codification. Professor Cora Hoexter of the University of Witwatersrand in South Africa, one of the architects of their Promotion of Administrative Justice Act of 2000, related how in its 12 years it has had a positive effect in terms of issue awareness, but how, due to particular deficiencies in the drafting of the term "administrative action", the Act had been by-passed by the emergent practice of referring to rule of law principles as a means of protecting individuals in their dealings with the executive as well as the administration. Professor Mario Chiti of the University of Florence followed with a comparative look at Italy and some other continental European States and spoke in favour of administrative pluralism that would balance competence for administrative procedure between the EU institutions and the Member States. Dr Jeff King of UCL considered the examples of the United States and Germany. To close, Professor Emeritus Carol Harlow of the LSE commented on the text of the EP proposal and suggested that codification at the EU level may be a useful way to bring consistency into administrative proceedings that may otherwise be difficult to achieve owing to the varied backgrounds of EU civil servants.

The Bingham Centre, together with the Italian Council of State, intend to take forward this study so as to contribute to the development of the EU proposals.


21 November 2012

The Inadvertent Criminal: The Rule of Law and the New Cartel Offence

On the 21 November a meeting of the Bingham Centre for the Rule of Law discussed the proposed reform of the criminal cartel offence in section 188 of the Enterprise Act 2002. Key to the proposed amendments is the suggestion to remove the word 'dishonesty' in respect to an agreement to make or implement cartel arrangements. The merit of this omission was discussed at length. In particular, the question of whether such an omission could result in a finding of culpability against innocent individuals. This issue was analysed against a backdrop of general criminal law and the various elements of crimes requiring mens rea and strict liability offences.

From there, the discussion moved to an analysis of several key terms, such as 'agree', 'conceal' and 'intent', and the question whether omitting the word 'dishonesty' simply resulted in ambiguities was considered. The dialogue also considered whether the proposed removal would result in an offence with a wider catchment area, and thus result in a chilling effect on business development.

Finally, it was considered whether the defence of consultation with a legal professional prior to making or implementing any arrangements that might be caught by the offence would be an adequate prophylactic in situations where such advice counselled against the proposed action or presented an unclear picture of the legal situation.

Overall, the discussion was an analysis of whether the Bill sufficiently provides rule of law protection to individuals who might come within its purview. It was felt that perhaps the best way forward would be to think more clearly about the impact of removing the dishonesty requirement, on the remainder of the cartel offence provisions. Ultimately, the goal should be clarity and legal certainty.