Navraj Singh Ghaleigh

The Spectre of Carbon Border-Adjustment Measures

Carbon border adjustments raise fears amongst both the community of climate/international environmental lawyers and trade lawyers. To the latter they risk taking the form of unjustifiable barriers to trade and may sit uneasily with the body of WTO law concerning trade and the environment. To the former constituency such measures are yet more difficult, both buttressing emission reduction policies and measures that are vulnerable to carbon leakage whilst raising issues for fundamental principles such as CBDR and sustainable development. This paper addresses these concerns in the context of US and EU measures, considering them in the light of WTO case law and in particular the Brazil-Tyres dispute. The US measures, contained principally in the Waxman-Markey Bill, are of interest despite their demise for the parallels that they share with the steps taken by the EU in its Climate Change Package.

Sledgehammers and Nuts?: Regulating Referendums in the UK

The primacy of the Westminster Parliament in the constitutional arrangements of the United Kingdom1 is both well known and long established. It entails, amongst other things, the fundamental doctrine of the sovereignty of Parliament. For present purposes, it also contributes to the infrequent use of devices of direct democracy in the United Kingdom. Initiatives — whether direct or indirect — are entirely unknown to our constitutional system, though not unconsidered,2 as are popular or voter referendums.3 Legislative or submitted referendums4 are somewhat more familiar, but deployed only exceptionally. Further, the concept of a binding referendum is something of an anathema as a consequence of the aforementioned doctrine of parliamentary sovereignty. Conventionally described as the rule that the ‘Queen-in-Parliament’ (that is, the House of Commons, the House of Lords and the Crown, acting in concert) may make or unmake any law and is alone in having that power, parliamentary sovereignty has traditionally been interpreted to mean that Parliament cannot be legally bound.5 In the context of referendums, parliamentary sovereignty dictates that the electorate’s stated preference can, as a matter of law (though not practical politics), has only ever be advisory. The fine balance between political reality and constitutional formality has been put as follows: ‘The Government will be bound by its result, but Parliament, of course, cannot be bound.’6

Neither Legal Nor Political?: Bureaucratic Constitutionalism in Japanese Law

This wide-ranging article seeks to bring a number of important contemporary debates in Japanese constitutional law to a new audience. Japan’s is not a legal system that has much engaged recent British legal scholarship, and especially not public lawyers. Public Law, our house journal, has not published a single substantive article on Japan despite it being the first Asian country to adopt a written constitution, the world’s third largest economy, and possessed of a long tradition of legal and constitutional borrowing from Germany, France and the USA. If this is unduly instrumentalist, that we should have the confidence to study Japanese law for its own sake, it is at least part of a piece. The other East Asian polities of China, South Korea and Taiwan have been similarly ignored by UK legal scholarship. For this reason alone, this special issue of the King’s Law Journal is very welcome. That is not to say that the English language scholarship on Japanese law is thin; the citations herein attest to the contrary. However, the literature on Japanese constitutional law is a disproportionately small part of the whole, and that conducted by scholars in the European or Commonwealth tradition even more so. It will be argued that this is unfortunate, not least since many of Japan’s most pressing contemporary challenges are rooted in constitutional debates. The

Two Stories About E.U. Climate Change Law and Policy

The European Union has styled itself a global leader in climate action. In so doing, it presents itself as responding to science and public concern and its historic responsibilities. In terms of its means of response, the European Union’s emissions trading scheme (EU ETS) has been the primary instrument. A rational response to liberal economic theory, the EU ETS is often trumpeted as a cost-effective success story internally and as a model to be adopted externally. This optimistic narrative is challenged herein.

Perspectives on the Wendy Alexander Affair: Electoral Law, Parliamentary Standards and the Regulation of the Profession of Politics

This paper explores the implications of a small donation to a Scottish opposition politician who held office from September 2007 to February 2008. From these rather modest and now distant facts a number of important legal issues present themselves pertaining to the law of the funding of political parties, parliamentary self-regulation and the parallels between professional regulation and the regulation of politicians. Whilst party and campaign finance in the UK and Scotland have been the focus of some significant attention, their nexus with parliamentary standards has been rather unexplored. This engagement highlights the considerable complexity and occasional oddities of both regimes. When considered in the broader context of professional regulation standards, the regime becomes yet more questionable.

The Alleged Incapacities of Mr. Sheridan

This short paper inquires into the grounds on which candidates and sitting members may be disqualified from the House of Commons and also the devolved legislatures. Starting from the inaccurate reporting of the sentencing for three years imprisonment of the former MSP Tommy Sheridan, the paper argues that current law on this question is arcane and fragmented. Quite apart from its substantive merits, the UK’s regime is incompatible with the goal of citizens understanding who they can and cannot select to represent them.

Iterative Engagements: The EU and International Normativity

The process of internalizing international norms into domestic law is a matter of contention in all polities, to varying degrees of intensity. Harold Koh’s provocative thesis of transnational norm generation - of nation state and transnational private actors blending national and international legal processes such that international norms are internalized into domestic law - is considerably less provocative in the European Union than in its country of origin. Whereas public international law can elsewhere be seen principally as a constraint on independent action, the EU has frequently deployed it as an instrument for the advancement of European integration. As such, the process of ‘translation’ is less a matter of hypothetical speculation in the European Union than a known mode of legal and political activity. Commencing with some brief stage setting, this short paper analyzes two separate bodies of international legal norms - those pertaining to anthropogenic climate change; and business and human rights - and argues that in the EU context at least, ‘translation’ is best seen as one part of a highly iterative process of dynamic relations between levels.