The putative readers of our web blog would have realised why Public Rock had to be nationalised. The legislation must be enacted in 1 month and be subjected to EU approval however temporary Mr Brown says. And the Minister purports to say the government are the shareholders and they are not...
Where is the legislation may one ask vesting this control at the expense of the shareholders? Expect Virgin et al to be visiting the Court for a Judicial Review this week!
Not to mention the decision of 21 EU member states to recognise the independence of Kosovo contrary to Public International Law. The UN Security Council can not lawfully sanction the same and Russia would veto it in any event. It has been a funny old week! Can someone get me a ticket for Newcastle's next match - it would appear I am sponsoring their shirt!
Monday 18 February 2008
Sunday 10 February 2008
The Lion, the Titch and the EU Wardrobe
Or maybe: SCISSORS, PAPER, ROCK
Upon being sworn in as a High Court Judge one of the present Law Lords is reputed to have have quipped: ”I’ve no intention of changing my ways. It seems to me that a Lord Chancellor must take his Judges as he finds them.” So it is with this new blog: the authors don’t intend to change their ways. Our publishers and their insurers must take us as they find us. Clothed in anonymity we propose to be outspoken, informative but above all entertaining for you our readers about the legal issues of the week. We will take on weighty legal issues, such as the minimum wage, student debt and all that sort of thing. But to provide something of a soft opening we thought well what is happening out there in legal world?
It has as such been a busy week for Devil’s Counsel. We have scoffed down 5 or 6 bottles of Pinot and a few G&Ts. It has come to us this week that law is the fourth worst profession for alcohol related illnesses. Well readers with your help we can improve on that statistic. Fourth is for losers. We lawyers are winners. Only first for us will do.
So with sharp talons we’ve picked three different topical stories involving Politicians, Capital, Punishment and Children. Without specifying which is which, we are of course thereby at risk of breaking the actors guild rules: “never work with children, animals or amateurs.” Ah well, we were never members anyway.
The Lion
BBC 2 treated us to a Horizon special hosted by the Michael Portillo, you will remember him he was the Tory who was trounced in 1997 before becoming a TV luvvy - well he purveyed before us a sort of devilish beauty pageant in his quest to find a ‘humane’ method of execution. A curious undertaking for a former politician – my old mum say “Gas the let of them” but I detract. He complied a list of the humane options designed to be efficient, painless and without gore. We don’t know when the programme was filmed or made, but those responsible for scheduling perhaps missed a trick. For by sheer coincidence on 7th January 2008, the US Supreme Court heard oral argument in Baze v Rees (Case 07-5439). Baze entails a challenge by death row inmates to the legality of their execution by ‘three stage’ lethal injection. Amy Whinehouse please take note. Whatever one’s views on the death penalty, no doubt international jurists are heartened by Scalia J’s question at p. 21 of the transcript:
“We have been discussing this as though… [this] is a constitutional requirement… Where does this come from that… in the execution of a person who has been convicted of killing people we must choose the least painful method possible?”
We must! Well I ask you? It is curious to see how the language of the Eighth Amendment (“cruel and unusual punishment”) becomes a semantic game. For those curious to learn how the argument developed see:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-5439.pdf
The Titch
In Europe our perception of human rights is somewhat more sophisticated and we have outlawed the death penalty. Slavery is similarly banned (training contracts are not with respect defined as slavery – it is not as if any of you have contracted out of the Working Time Directive – as if!) and with it ‘child labour’ being a pernicious form of the same. But does EU law effectually ban the importation into the EU of goods or materials the production, processing or extraction of which involved child labour?
We raise this question because latterly some of the High Street retailers seem – how shall we put this delicately - to have been persuaded to issue press releases stating they now require their garment suppliers to certify that the fabrics do not consist of cotton produced in Uzbekistan. This is because of recent revelations that in Uzbekistan it is customary to send children to work in the cotton fields. Apparently their schooling can – as a matter of course – be suspended for this harvest. Unlike obviously in the UK where schooling can only be suspended where a child is shot, maimed or stabbed. You are now beginning to see why we don’t like work with children. Far too dangerous. Back to Uzbekistan. Shocking and doubtless more enlightened Nations wag their fingers at Uzbekistan. But before jumping upon the bandwagon that is the ‘high moral ground’, we wondered about the law. Of course there are a whole host of International Conventions about the evils of ‘child labour’. In general it doesn’t happen in the EU because it is illegal. However, where exactly is the EU law containing a rigorous import ban on products and materials created or handled using child labour?
We mean if Uzbekistan exports its cotton to Nation’s around the World who are less fastidious about their child labour laws, how does the EU purport to identify the products containing such cotton?
We are inclined to the view that it doesn’t. Devil’s Counsel volunteers a cheap bottle of plonk ( Blue Nun or something similar) to the 1st reader of this blog to satisfy the authors of this blog (in their absolute discretion, blah, blah, blah) that EU law isn’t a laughing stock in this regard. We wish you luck!
The EU Wardrobe
EU law conveniently moves us to our third and final topic: Northern Rock (we do not mean Kevin Keegan – but the Bank). To quote one news channel: “the first run on an English bank for more than a century”. But of course the media take no responsibility for their intensive coverage and the panic it fermented. ‘The old lady of Threadneedle Street’ sprang into action with all of the efficiency of a rusty spring. Initially. We remind you that before the proverbial ‘hit the fan’ – the Bank of England (“BoE”) declined to secretly bail out Northern Rock with a loan to ease their liquidity problems. Why? The Chairman explained to the House of Commons Select Committee, that originally the legal advice had been that to do so without disclosure to the financial markets was contrary to EU Competition law.
Reportedly, within five months the BoE has given approximately £30 billion in loans to Northern Rock and a similar sum in guarantees to depositors One can’t help but grin to learn that some shareholders in Northern Rock threaten legal proceedings under – yes you’ve guessed it – EU law for ‘compensation’ against that Government should Northern Rock be nationalised. There is an effrontery in threatening law suits, whilst shirking their responsibilities for installing and maintaining a Board of Directors, whose disastrous financial planning resulted in this mess We are delighted to learn they pray EU law in aid of their cause because they and the Nation are potentially in for a shock.
Under EU Competition law rules the Government’s current rescue package for Northern Rock is only permissible because of strictly defined and limited exceptions to applicable to emergency state aid in the banking sector. The EU Commission has published its opinion on this matter. It accepts what has happened up to 5th December 07 was lawful. But expressly it points out that:
- The aid must be granted in the form of loans or guarantees.
- The aid must be limited to a period of not more than 6 months.
- If the UK communicates to the Commission within those 6 months a restructuring plan or liquidation plan, then the rescue aid can normally continue for the time needed by the Commission to decide on this plan.
- If there were state aid in the sale or restructuring of Northern Rock then this would require:
o separate EU Commission authorisation as restructuring aid;
o the state aid to be limited to the minimum necessary in time and amount;
o that the aid does not distort competition to an extent contrary to the common interest;
o the EU Commission to consider imposing specific conditions and obligations on the beneficiary.
What all of this means is that the lawfulness of the Government’s rescue package be it by nationalisation, bond issue, private takeover or otherwise, will not be decided in the UK or even by Parliament. It will be decided in Brussels under EU law. The commercial weakness this injects into the Government’s negotiations with private bidders is all too apparent.
By our calculation, the initial six month period expires no later than 16th March 2008. If there be a predatory banking consortium wishing to make a quick buck, we suggest their strategy ought to be clear: they should ask the well informed readers of the Devil’s Counsel.
Or as we like to say: “Subtle he needs must be, who could seduce Angels.”
Upon being sworn in as a High Court Judge one of the present Law Lords is reputed to have have quipped: ”I’ve no intention of changing my ways. It seems to me that a Lord Chancellor must take his Judges as he finds them.” So it is with this new blog: the authors don’t intend to change their ways. Our publishers and their insurers must take us as they find us. Clothed in anonymity we propose to be outspoken, informative but above all entertaining for you our readers about the legal issues of the week. We will take on weighty legal issues, such as the minimum wage, student debt and all that sort of thing. But to provide something of a soft opening we thought well what is happening out there in legal world?
It has as such been a busy week for Devil’s Counsel. We have scoffed down 5 or 6 bottles of Pinot and a few G&Ts. It has come to us this week that law is the fourth worst profession for alcohol related illnesses. Well readers with your help we can improve on that statistic. Fourth is for losers. We lawyers are winners. Only first for us will do.
So with sharp talons we’ve picked three different topical stories involving Politicians, Capital, Punishment and Children. Without specifying which is which, we are of course thereby at risk of breaking the actors guild rules: “never work with children, animals or amateurs.” Ah well, we were never members anyway.
The Lion
BBC 2 treated us to a Horizon special hosted by the Michael Portillo, you will remember him he was the Tory who was trounced in 1997 before becoming a TV luvvy - well he purveyed before us a sort of devilish beauty pageant in his quest to find a ‘humane’ method of execution. A curious undertaking for a former politician – my old mum say “Gas the let of them” but I detract. He complied a list of the humane options designed to be efficient, painless and without gore. We don’t know when the programme was filmed or made, but those responsible for scheduling perhaps missed a trick. For by sheer coincidence on 7th January 2008, the US Supreme Court heard oral argument in Baze v Rees (Case 07-5439). Baze entails a challenge by death row inmates to the legality of their execution by ‘three stage’ lethal injection. Amy Whinehouse please take note. Whatever one’s views on the death penalty, no doubt international jurists are heartened by Scalia J’s question at p. 21 of the transcript:
“We have been discussing this as though… [this] is a constitutional requirement… Where does this come from that… in the execution of a person who has been convicted of killing people we must choose the least painful method possible?”
We must! Well I ask you? It is curious to see how the language of the Eighth Amendment (“cruel and unusual punishment”) becomes a semantic game. For those curious to learn how the argument developed see:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-5439.pdf
The Titch
In Europe our perception of human rights is somewhat more sophisticated and we have outlawed the death penalty. Slavery is similarly banned (training contracts are not with respect defined as slavery – it is not as if any of you have contracted out of the Working Time Directive – as if!) and with it ‘child labour’ being a pernicious form of the same. But does EU law effectually ban the importation into the EU of goods or materials the production, processing or extraction of which involved child labour?
We raise this question because latterly some of the High Street retailers seem – how shall we put this delicately - to have been persuaded to issue press releases stating they now require their garment suppliers to certify that the fabrics do not consist of cotton produced in Uzbekistan. This is because of recent revelations that in Uzbekistan it is customary to send children to work in the cotton fields. Apparently their schooling can – as a matter of course – be suspended for this harvest. Unlike obviously in the UK where schooling can only be suspended where a child is shot, maimed or stabbed. You are now beginning to see why we don’t like work with children. Far too dangerous. Back to Uzbekistan. Shocking and doubtless more enlightened Nations wag their fingers at Uzbekistan. But before jumping upon the bandwagon that is the ‘high moral ground’, we wondered about the law. Of course there are a whole host of International Conventions about the evils of ‘child labour’. In general it doesn’t happen in the EU because it is illegal. However, where exactly is the EU law containing a rigorous import ban on products and materials created or handled using child labour?
We mean if Uzbekistan exports its cotton to Nation’s around the World who are less fastidious about their child labour laws, how does the EU purport to identify the products containing such cotton?
We are inclined to the view that it doesn’t. Devil’s Counsel volunteers a cheap bottle of plonk ( Blue Nun or something similar) to the 1st reader of this blog to satisfy the authors of this blog (in their absolute discretion, blah, blah, blah) that EU law isn’t a laughing stock in this regard. We wish you luck!
The EU Wardrobe
EU law conveniently moves us to our third and final topic: Northern Rock (we do not mean Kevin Keegan – but the Bank). To quote one news channel: “the first run on an English bank for more than a century”. But of course the media take no responsibility for their intensive coverage and the panic it fermented. ‘The old lady of Threadneedle Street’ sprang into action with all of the efficiency of a rusty spring. Initially. We remind you that before the proverbial ‘hit the fan’ – the Bank of England (“BoE”) declined to secretly bail out Northern Rock with a loan to ease their liquidity problems. Why? The Chairman explained to the House of Commons Select Committee, that originally the legal advice had been that to do so without disclosure to the financial markets was contrary to EU Competition law.
Reportedly, within five months the BoE has given approximately £30 billion in loans to Northern Rock and a similar sum in guarantees to depositors One can’t help but grin to learn that some shareholders in Northern Rock threaten legal proceedings under – yes you’ve guessed it – EU law for ‘compensation’ against that Government should Northern Rock be nationalised. There is an effrontery in threatening law suits, whilst shirking their responsibilities for installing and maintaining a Board of Directors, whose disastrous financial planning resulted in this mess We are delighted to learn they pray EU law in aid of their cause because they and the Nation are potentially in for a shock.
Under EU Competition law rules the Government’s current rescue package for Northern Rock is only permissible because of strictly defined and limited exceptions to applicable to emergency state aid in the banking sector. The EU Commission has published its opinion on this matter. It accepts what has happened up to 5th December 07 was lawful. But expressly it points out that:
- The aid must be granted in the form of loans or guarantees.
- The aid must be limited to a period of not more than 6 months.
- If the UK communicates to the Commission within those 6 months a restructuring plan or liquidation plan, then the rescue aid can normally continue for the time needed by the Commission to decide on this plan.
- If there were state aid in the sale or restructuring of Northern Rock then this would require:
o separate EU Commission authorisation as restructuring aid;
o the state aid to be limited to the minimum necessary in time and amount;
o that the aid does not distort competition to an extent contrary to the common interest;
o the EU Commission to consider imposing specific conditions and obligations on the beneficiary.
What all of this means is that the lawfulness of the Government’s rescue package be it by nationalisation, bond issue, private takeover or otherwise, will not be decided in the UK or even by Parliament. It will be decided in Brussels under EU law. The commercial weakness this injects into the Government’s negotiations with private bidders is all too apparent.
By our calculation, the initial six month period expires no later than 16th March 2008. If there be a predatory banking consortium wishing to make a quick buck, we suggest their strategy ought to be clear: they should ask the well informed readers of the Devil’s Counsel.
Or as we like to say: “Subtle he needs must be, who could seduce Angels.”
Subscribe to:
Posts (Atom)