12 May 2010

Government formation UK-style: a constitutional hiccup?

- TheGuardian: "David Cameron is new prime minister"
- BuckinghamPalace: "Appointment of new Prime Minister"

David Cameron is the new PM.

But some questions remain:

1.  Did Gordon Brown potentially embarrass the Queen by resigning as caretaker Prime Minister before a formal deal had been settled between the Tories and the Lib-Dems?
2.  As newly appointed Prime Minister, is David Cameron merely acting in a caretaker capacity - until a formal coalition agreement or arrangement on confidence is settled with the Lib-Dems?

Based on New Zealand's precedents and experience, the resignation and appointment seems somewhat premature.  The Governor-General has made it clear that in order to appoint a new PM and government, "political parties [must] have reached an adequate accommodation, and a government is able to be formed or confirmed".  In New Zealand, it is expected that parties will make that clear "by appropriate public announcements" and to provide the Governor-General with "sufficient information to be able to appoint a new Prime Minister".   By custom, or perhaps even constitutional convention, the public announcement expected from political parties in New Zealand is either a joint statement confirming a coalition or confidence and supply agreement has been settled or public disclosure of those agreements.  It is from these political compacts that the Governor-General is then able to ascertain which political groupings are able to "command the confidence of the House".

But do we have that in the UK now?  No deal appears to have yet been settled, although a general outline of the type of arrangement has been foreshadowed.   Is that enough for the Queen to be ascertain where the support of the House lies, with the requisite certainty?  I'm not so sure.  There's still a chance that negotiations about the form of the arrangement may break down. 

However, Gordon Brown's immediate resignation forces the Queen's hand.  The Monarch cannot be left without government advisors.  A Prime Minister is needed.  Hence the swift moves to appoint David Cameron.  But, if - as I suggest - he has not yet demonstrated with certainty that he commands the confidence of the House, then he must only be (in NZ parlance) a caretaker Prime Minister.  That is, legally installed in office, but subject to the constraints of the constitutional caretaker convention. 

These subtleties make be lost on a UK audience, but I think it's fair to say that the New Zealand experience, customs and conventions would probably avoid such hiccups.  The expectations in terms of signed political compacts, public statements, and public ceremonial appointment of the Prime Minister, along with acceptance of the caretaker convention mean we would be unlikely to get such a premature transfer of power.

3 May 2010

Shadow boxing with brothels

The first punch from Tau Henare:

Henare calls for Prostitution Reform Act amendment
Press Release: New Zealand National Party

Tau Henare
National List MP
30 April 2010

West Auckland National MP Tau Henare is calling for an urgent amendment to the Prostitution Reform Act 2003.

“It is appalling and totally unacceptable that a brothel can go up opposite a school’s gate and nothing can be done to stop it. The Act as it stands allows this to happen. It needs to be amended” said Mr Henare.

“The previous Labour led government legalised prostitution in 2003 to protect sex workers, but clearly not enough consideration was given to protecting children from the unwanted influences of the sex industry outside their schools” says Mr Henare. “We now have a situation where there are very few restrictions on where a brothel can be sited. As long as a small owner operated brothel meets the definition of a “home occupation” as set out in the Resource Management Act a resource consent is not required and there’s nothing a local authority can do to stop it.

“The law urgently requires a commonsense clause that enables local authorities to manage the location of brothels. I will be working with my colleagues in Wellington to bring about this change,” says Mr Henare


The actual legal position at the moment:
Prostitution Reform Act 2003:
s 14 Bylaws regulating location of brothels
Without limiting section 145 of the Local Government Act 2002, a territorial authority may make bylaws for its district under section 146 of that Act for the purpose of regulating the location of brothels.

2 May 2010

Schools, brothels and bylaws

Below are some media comments about the (inaccurate) claims of a loop-hole in the Prostitution Reform Act and the inability to impose proximity controls on brothels in bylaws:

NZ Herald:

Brothel could be removed lawfully - expert
By Michael Dickison 2:26 PM Thursday Apr 29, 2010

A council could regulate the location of brothels as long as it did not take unreasonably aggressive action, a law expert has said. A law expert says Waitakere local politicians are wrong to think they cannot lawfully help a school that wants removed a brothel set up across the street.

Henderson Intermediate School is up in arms after a four-person brothel opened nearby, with its board of trustees chairman urging "leadership" and "common sense" from the Waitakere City Council.

But Deputy Mayor Penny Hulse said yesterday the council could not remove the brothel because she had been advised that such a bylaw would be found unlawful in court and end up costing ratepayers in legal fees.

Victoria University senior law lecturer Dean Knight has written "The (continuing) regulation of prostitution by local authorities" in Taking the crime out of sex work, to be published next month.

Mr Knight told nzherald.co.nz that Ms Hulse's position was not accurate.

There would be no problem preventing brothels from opening near sensitive sites like a school unless the council was being so restrictive as to effectively outlaw prostitution, Mr Knight said.

A council could regulate the location of brothels, even small owner-operated ones, as long as it was "not so aggressive as to be unreasonable", he said. In his book chapter, Mr Knight says that to date there have been three challenges to such bylaws, with two court rulings invalidating restrictions for being "too severe".

The latest court ruling, however, made by the Court of Appeal in 2008, upheld a Hamilton bylaw prohibiting brothels within 100m of a school, church or marae.

The ruling in favour of the restrictions came after a 12-person brothel challenged them.

The legal situation remained "uncertain", even after a review of legislation in 2008, because how restrictive a council could be depended on specific local conditions, Mr Knight said.

The school's board of trustees chairman, Ron Crawford, said yesterday he had been contacted by many people disgusted at the situation and was confused to be told nothing could be done - especially since Rodney District Council has a bylaw preventing a brothel from opening near a school.

Rodney's bylaw prohibits a brothel from operating within 200m of a school, pre-school or church.

It also disallows neon signs and "sexually explicit" or "lewd" imagery outside brothels.

A spokesman for Rodney District Council said the council had amended the bylaw in December last year to comply with legislation and was confident it would stand up in court.

Radio NZ National (Morning Report):

- Legal expert says brothels can be kept away from schools
A legal expert says an Auckland school's anger at a brothel being set up across the road could have been avoided had an appropriate by-law been in place. (duration: 4′55″)

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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