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Does the UK really have an ability to opt out of law imposed by the EU? Guest blog by Matthew Scannell (@studentlawyer_)
At the present time, the European Communities Act [1972] provides that the UK is bound by law enacted by the European Union (“EU”), whereby provisions of EU law are superior to domestic law, in that EU provisions take precedent in circumstances where there is conflict between the two sources of law.
However, David Cameron’s recent proposal for a referendum to determine the UK’s future within the EU has fuelled questions as to whether the UK may finally ‘break free of the shackles’ that appear to have been imposed on it by the EU. Such a referendum could refine constructively the relationship between the UK and EU, and possibly reduce the effect that EU law has within the UK.
The first question to consider is whether the UK has the power to opt out of provisions of law imposed on it by the EU. In line with the doctrine of parliamentary sovereignty, the UK Parliament has the ability to repeal the European Communities Act (the statutory instrument which brought the UK into the EU) and thus revoke its membership with the EU. This would mean that the provisions of law enacted by the EU would become void within the UK. However, it would be wrong to conclude that the UK may simply ‘pick and choose’ which provisions of EU law it wants to apply. If the UK attempted to take such a course of action, the EU may have the right to impose sanctions against the UK. I would suggest that the only way the UK may take free of provisions of EU law would be to legislate expressly for the revocation of its membership within the EU.
The UK’s ability to revoke its membership with the EU would then be dependent on whether a referendum such as the one proposed by David Cameron takes place, as well as the public voting against staying in Europe on such renewed terms. The second question to consider is whether the UK should merely make attempts to opt out of the law imposed on it by the EU, and what the consequences of such a course of action would be. The EU has limited law-making power within the UK, and so can only legislate in the areas that the treaties provide for. Therefore the consequences of such an attempt to remove the EU’s law-making power within the UK would be of limited effect.
I would then suggest that the extent to which the law would change if the EU was no longer recognised by the UK as a superior source of law would be dependent on the current status given to that law by the EU. Essentially there are two broad types of EU law; regulations and directives. Article 189 of the Treaty of Rome provides that regulations are binding on all member states and all members have to accept the same definition. This is in contrast to directives, where member states have scope to adjust or tinker with the definitions of such directives so that it may fit in with the requirements of national law. I would therefore suggest that it is less likely that directives, such as the Working Time Directive, would be subject to wholesale amendment or repeal, as such provisions of EU law have been read in such a way which ‘fits’ within national law.
However, if the UK was seen to split from the EU then there would be less regulation over the laws that are enacted by Parliament, as the UK would be moving towards a theory of parliamentary sovereignty outlined famously by AV Dicey. The only real protection that could then be used to safeguard against Parliament abusing its power is the political safeguard of democratic elections, although the judiciary also provides protection through the “separation of powers”, which offers useful “checks and balances”. This worry is compounded by the fact that laws enacted by the EU, such as the Working Time Directive, are necessary and proportionate, safeguarding against potential abuses by certain interest groups. If the UK Parliament was afforded the power to legislate for areas in relation to the work place, this could quite potentially result in the exploitation of certain citizens within society.
In my opinion, then, the only feasible way that the UK opt out of specific provisions of EU law would be to expressly state that they are making a move away from the EU by repealing the European Communities Act. Proposals for a referendum may have politically “lined the stomach of the UK”, but this is only the first step on the road to a different relationship between the UK and the EU – and there are certainly several crossroads to be negotiated along the way.
Dinner ladies, Argyll and Bute Council, and proportionality
“Argyll and Bute” is trending on Twitter, and who this morning would have thunk it? All bloggers I feel should be encouraged. I also believe that bans should consider the legal doctrine of proportionality – a ban should be necessary and proportionate. This means having a look at the views of both of the parties involved.
This story didn’t have the fun of ‘Dinner ladies’ by Victoria Wood and colleagues. Argyll and Bute Council has dropped its ban on photographs taken in school dining halls after internet users expressed their outrage at the rule which put a halt to a successful school dinner blog run by a nine-year-old. This issue of banning and proportionality is well known in other examples of legal scenario, such as prisoner voting.
The blog in question is here. The nine year-old’s blog #NeverSeconds has apparently had more than two million hits, sparked debate about the state of school dinners across the globe and raised more than £9000 for charity. She even drew comparisons with Jamie Oliver for his fight for healthy meals, with the celebrity chef praising the “clever girl” for her “great work”. You can read more about the background in this article from the Telegraph here.
This first post demonstrates how totally well-meaning this 9 year-old-student is/was, in a blog entitled, “NeverSeconds – One primary school pupil’s daily dose of school dinners”:
But this is how it sadly ended in a rather illiberal manner.
Council leader Cllr Roddy McCuish, Leader of Argyll and Bute Council, told BBC Radio 4’s World at One:
“I have just instructed senior officials to withdraw the ban on photos from the school dining hall. It is a good thing to do, to change your mind and I have certainly done that.”
He also made the following statement:
“There is no place for censorship in this Council and never will be whilst I am leader. I have advised senior officers that this Administration intends to clarify the Council’s policy position in regard to taking photos in schools. I have therefore requested senior officials to consider immediately withdrawing the ban on pictures from the school dining hall until a report can be considered by Elected Members. This will allow the continuation of the “Neverseconds” blog written by an enterprising and imaginative pupil, Martha Payne which has also raised lots of money for charity.
But we all must also accept that there is absolutely no place for the type of inaccurate and abusive attack on our catering and dining hall staff, such as we saw in one newspaper yesterday which considerably inflamed the situation. That, of course, was not the fault of the blog, but of the paper.
We need to find a united way forward so I am going to bring together our catering staff, the pupils, councillors and council officials – to ensure that the council continues to provide healthy, nutrious and attractive school meals. That “School Meals Summit” will take place later this summer.
I will also meet Martha and her father as soon as I can, along with our lead councillor on Education, Michael Breslin to seek her continued engagement, along with lots of other pupils, in helping the council to get this issue right. By so doing Martha Payne and her friends will have had a strong and lasting influence not just on school meals, but on the whole of Argyll & Bute.”
Martha clearly is very enthusiastic about having a blog which she is free to write on, and the Council wishes to take action on criticisms of the good which may damage the reputation of the school and/or council. However, taking action as a ban would have to be reasonable, necessary and proportionate to have legal effect, many law students would consider. So it seems that the Council, Martha and her father may enter some form of mediation, but it is noteworthy that this episode has generated a lot of negative publicity already (even involving an urgent comment on #BBCWATO given below.) The story continues.
Christmas Blog Cabin
This is my review of what I have found interesting in the law (and related) blogosphere. It’s been an explosive time for legal bloggers, and I hope that this blogpost is a true reflection of a part of what’s currently exciting at the moment. I strongly encourage you to look further at these blogs, for example while enjoying sherry, roast turkey or chicken and chestnuts over a log fire. We do not have a log fire in the log cabin for ‘elf and safety reasons.
Krish recently had a piece in the Guardian, also posted on his blog here. It’s particularly pertinent for me as I probably will resume my hunt for a good training contract next year. In the meantime, I will do some vacation scheme placements. Actually, given that I am not panicking about training contracts now, I feel a weight has been lifted from my mind, and I can actually begin to enjoy my life again. I found applying for a training contract very nauseating this year, especially since one top firm failed to implement my reasonable adjustments the first time around and wasted a fortnight of my time before not calling me for interview, and another simply did not bother to write to me at all as to whether I’d be coming for interview or not. I therefore have a contempt for the recruitment process, and feel with such behaviour I am better off enjoying my study of the LPC which begins at the BPP Law School on January 3rd 2012.
In the face of such impressive ineptitude, I have found solace in the substantive issues of the law. I believe strongly that the law should be necessary, balanced and proportionate, and I feel that the police and the criminal justice system should be there to solve the problems of society not to create them. Natasha Philips mentioned her ‘Researching Reform’ activities concerning the London riots in a quick blogpost. The reader’s comment demonstrates graphically how the balance must be struck correctly, for the public to have faith in the reputation of the criminal justice system. The legal doctrine of proportionality is a pervasive one throughout English and European law.
Will Van Zwanenberg is a student at the Bar, and his blog ‘Propping up the Bar’ is a very elegantly presented explanation of critical issues for barristers, including of course human rights. Will took a fascinating look recently at the eviction at Dale Farm in a very readable critical analysis. Will felt that the eviction of travellers from Dale Farm in Essex raised the question of whether Basildon Council’s actions will be a violation of the European Convention on Human Rights, as directly applied in the UK via The Human Rights Act 1998.
The thing about the legal blogs is that they make the law come to life in a way that the GDL, LPC or LLM do not seem able to. For example, a compulsory component of the LPC is Business Law Practice, and towards the end students are guided through insolvency law as it happens in England. In an amusing but highly educational way, the Legal Bizzle has been charting the events leading to the ultimate administration of the Santa Claus Group (fictional). Legal Bizzle’s blogs are exceptional, and I look forward to coming back to some from the ‘archives’ in the next few months.
If the last few weeks are anything to go by, 2012 should be a sensational year for legal blogs here in the UK!
Scrapping the Human Rights Act might mean more petitions to Strasbourg – ALBA and the Bingham Centre at Inner Temple
Scrapping the Human Rights Act has become a incredibly hot potato with Theresa May’s recent announcement. Theresa May, a geography graduate from St Hugh’s College at Oxford, announced triumphantly, “We all know the stories about the Human Rights Act, the illegal immigrant who cannot be deported because – I am not making this up – he had a pet cat.” This unfortunately led David Allen Green, the leading legal blogger, to propose that, “The Home Secretary’s conference speech shows she does not know what her own department is doing”, in an article published yesterday on a blog for the New Statesman. As Allen Green himself provides, ” it has already been dealt with by respected critical sites such as Full Fact and Tabloid Watch.”
Reviewing the precise value of the Human Rights Act 1998 in the jurisprudence of England and Wales seems to be a worthwhile exercise, irrespective of it having turned into somewhat of a ‘political football‘. For example, parts of the Telegraph, latterly not particularly sympathetic towards David Cameron or Ken Clarke perhaps including Cristina Odone, have supported this ‘attack’ on the Human Rights Act, even proposing that Theresa May is a lioness who could find herself in Number 10. Such jurisprudence issues are extremely complicated, and leading commentators such as Joshua Rozenberg, Britain’s best known legal commentator according to very many, appear to advise that the debate must be conducted in a different light from the political grandstanding (article here). Rozenberg assessed the situation involving our Lord Chancellor as follows, “When Dominic Grieve, the attorney general, was asked at a fringe meeting for his reaction to May’s speech, he insisted he was “completely comfortable” with the idea of replacing the existing legislation with a British bill of rights.” However, Rozenberg says straight-up that there are legal cracks within the foundations of the Conservative part of the Tory-led government, “May is deliberately distancing herself from her coalition colleagues on human rights – including the justice secretary, Ken Clarke, a firm supporter of the Human Rights Act.” However, only a few weeks ago, the Daily Mail observed nervously that, “The Deputy Prime Minister won his loudest applause with an impassioned defence of the Human Rights Act – insisting it would never be scrapped while he was in government.”
It is within this context the open discussion at the Honourable Society of Inner Temple last night could not have come at a better time. The seminar is jointly hosted by the Constitutional and Administrative Bar Association (ALBA) and the new Bingham Centre for the Rule of Law. The speakers included Lord Justice Laws, Lord Pannick QC and Professor Philip Leach, London Metropolitan author, and author of numerous publications including the book “Taking a case to the European Court of Human Rights“. The session was totally packed out, and the speakers took many questions from leading practising international barristers and academics. It is easy to overstate the opposition towards the Human Rights Act, but it was pointed out only two countries are openly questioning the legitimacy of the European Convention of Human Rights – Russia and the United Kingdom.
LJ Laws has long been in favour of developing domestic jurisprudence in the context of the Human Rights Act and common law. John Laws felt that “the cases were beginning to speak, but the Convention was an useful guidance”, and reaffirmed the influence of a graduated approach to proportionality, an argument which Laws noted had been accepted by Bingham (see for example Regina v. Secretary of State For The Home Department, Ex Parte Daly). Laws reminded the legal audience that we, as a country, have always been in a position to influence Strasbourg, as for example the Pretty v United Kingdom case (a review of this is given here). Laws mooted, however, why should the judges be deciding upon social policy. Considering particularly articles 8-12, Laws provided that often lawyers had to decide where to strike the balance in certain issues between competing interest, but fundamentally lawyers were there to establish the framework and issue – however Laws warned that the nature of this exercise in jurisprudence gives rise ultimately to issue of a philosophical nature.
Lord Pannick charted the history of the reaction to our history right legislation, in relation to Strasbourg. Pannick reminded the audience that criticising the Human Rights Act, in relation to Europe, was not a recent phenomenon. In relation to the Gilbraltar incident, Michael Heseltine – as far back as 1995 – said, “We shall do nothing. We will pursue our right to fight terrorism to protect innocent people where we have jurisdiction, and we will not be swayed or deterred in any way by the ludicrous decisions of the Court.”
According to Lord Pannick, prisoners’ voting rights and the use of hearsay have also produced conflicting opinions from the UK and Strasbourg, and indeed these legal conflicts appear to be ongoing (see for example the present case of Zainab al-Khawaja, where the original argument was heard by the Court in 2010). Lord Pannick proposed that this conflict arose from various sources. Firstly, Lord Pannick felt there is a general resentment of European law amongst Conservative “elements”, and many of the population. Secondly, the objection to the European Convention of Human Rights could part of a wider objection to foreign law. Lord Pannick indeed reminded the audience that a Conservative MP, lawyer and judge, David Maxwell-Ffye, was instrumental in drafting the European Convention of Human Rights. Lord Pannick then identified a possible perception from the UK voting public, that judges should not be deciding on social policy: for example, the argument for prisoner voting is not a matter for judges, but should be a matter for parliament. Fourthly, the European system does not appear to be working well operationally – the strain of its backlog affects the time that can be devoted to cases. Lord Pannick felt that the setting up of the Joint Commission of Human Rights had been a welcome step, particularly for the screening of appropriate human rights cases and appointment of suitably-qualified judges. With the chairmanship of the Council of Europe only meant to last six months, Lord Pannick felt that there was limited damage which could in fact be inflicted by the UK on the jurisprudence of the rest of Europe.
Lord Pannick did not feel fundamentally that the criticisms of the HRA amounted to much. For example, the HRA expressly recognises that the UK Parliament is not bound by the Convention. If Parliament wishes to exclude voting by prisoners, the Human Rights Act does not prevent this. The judges can decide whether the defendants comply, but, according to Lord Pannick, it is equally important that the last word lies with parliament. Lord Pannick instead felt that a much more difficult issue is the relationship between parliament and the Strasbourg Court. Theresa May even if she repealed the HRA would still leave the jurisdiction of the Strasbourg Court intact – our own judges have no effect on the jurisprudence. If the 1998 Act were to be repealed, as parliament is overeign, the number of British cases to Strasbourg would increase according to Lord Pannick. Lord Pannick felt that an useful to look at the relationship between our Supreme Court and Strasbourg would be to look at the ‘control of its docket‘ jurisprudence, in other jurisdictions of international law.
Lord Pannick ultimately felt that the power of our parliament to define power Strasbourg as a body is limited. It would be unprecedented for us to withdraw from the European Convention of Human Rights, incompatible with membership of the EU, or Council of Europe. According to Lord Pannick, the concept of European minimum standards is of vital importance to us. There may be be occasions when national or international considerations are that our judges do not originally recognise that human rights are being breached (e.g. gays in the military) It would be difficult for us to expect that other countries such as Russia should comply with the Convention, if we do not. Lord Pannick therefore felt that the situation now required an accommodation on both sides. The Strasbourg is supposed to overrule a National court only in cases of fundamental significance, where the national supreme court has made an error of principle. If Strasbourg does not follow this principle, it may risk the growth of political opposition. However, likewise, Lord Pannick identified that the Supreme Court should not supinely follow Strasbourg, either. The Government for example accepted the DNA ruling in preference ot the House of Lords. If the Supreme Court were to be asked if the voting rule asked about the prisoners’ voting again, Lord Pannick felt that the Supreme Court would be unlikely to say it is compatible with the European Convention of Human Rights.
Professor Leach discusses in some detail the impact of the Greens, Hirst and Scoppola cases (please keep an eye on the blogs from @carlgardner and @adamwagner1). Professor Leach emphasised Lord Hoffman’s observation that “human rights are universal in abstraction but national in application” , made in his seminal speech entitled, “The Universality of Human Rights” as the Judicial Studies Board Annual Lecture on 19 March 2009. This was described in the Solicitors Journal on 7 April 2009 as follows,
Lord Hoffmann, one of the most senior law lords, has launched an extraordinary all-out attack on the European Court of Human Rights.
Giving the annual lecture at the Judicial Studies Board, he accused the Strasbourg court of trivialising and discrediting human rights, directly criticised its president, Judge Jean-Paul Costa, and warned that its four-year backlog of cases is growing.
No journalists were present when the speech was made last month, but it was published later on the JSB’s website, a step which could not have been taken without the law lord’s blessing (see: The Universality of Human Rights).
The discussion from the panel and the members of the audience was very thought-provoking, but it was a constructive one representing the genuinely diverse opinions in the community of the Barristers.
The future of control orders
A friend of mine tweeted this morning: “254,998,923 laptops taken out of hand luggage and then 254,998,923 put back into hand luggage: success or fail?”
On issues of national security, many members of the general public should like to believe that they have an integral influence in matters of national security, the legislators, we all admit, decide upon national policy. Ultimately it is the Home Secretary, Theresa May MP, who is able to propose legislation on the basis of her advisors, the think tanks, the public, the media, the police, the rest of the judicial system, and of course the intelligence services MI5, MI6. Obviously, it is impossible to ignore the raft of events, such as 9/11 and the Mumbai bombing. There is in face a growing notion internationally, irrespective of political affiliations, that in the wake of September 11th, many civil liberties had been curtailed or suspended. There has been historical disagreement concerning how much risk to national security or civil liberties should be taken.
The need to achieve an appropriate balance of these seemingly competing goals was evident. In the USA, lawyers from the Department of Homeland Security, Federal Bureau of Investigation, and the U.S. Army called for aggressive prosecution of the terrorist proven suspects, while lawyers advocating civil liberties argue strongly for the safeguarding of individual rights, lest we cede victory to terrorists through the compromise of principles that define our view of a liberal democracy.
We are surprisingly at one here with the U.S., reflecting a strong entrenchment of our law in European law as a result of the European Communities Act (1972) (as amended), and numerous subsequent treaties. The legal notion of ‘proportionality’ originally developed in European Law, but it has been readily applied in English Law in the House of Lords and Supreme Court. One specific definition of proportionality given by Lord Lowry in the leading British case ‘Brind’, which examined the principle as one that requires a reasonable relation between a decision, its objective and the circumstances of any given case. This concise definition shows how proportionality is a theory that is ultimately intuitive to human nature. A vast majority feel that Labour went too far in the counter-terrorism legislation, which is a massive own goal in that one of the first achievements of Tony Blair was to introduce the Human Rights Act (1997).
In fact, Labour has had terms in coming to terms with their past on crucial matters of civil liberties, in lengths of detention and ID cards. For example, officers used Section 44 of the Terrorism Act 101,248 times but just 506 of those stopped were taken into custody and none on suspicion of plotting terror attacks. Furthermore, Home Office data provide that no terror suspect was held for more than 14 days before being charged, just half the 28-day limit brought in by the last Government. Shami Chakrabarti, of civil rights group Liberty, insisted Section 44 was a “crude and blunt instrument” that was also counter-productive. Shami Chakrabarti further said: “It costs us dearly in race equality and consent=based policing with very little in terms of enhanced security.” I fully agree.
Another bone of contention are ‘control orders’, also introduced under 2005 anti-terrorism legislation. Ministers have to sign an order to place a terrorism suspect under close supervision that some say is similar to house arrest. The orders were introduced after the then Law Lords declared that the previous system of detaining foreign terrorism suspects without trial, or without prospect of deportation, breached human rights. The previous Labour government said it still needed a mechanism, which would allow it to control the lives of some suspects whom it said it could not prosecute because of the rules over the use of secret intelligence in trials.
Control orders were originally introduced as an alternative to putting people in prison, that originally was supposed to not leave individuals suffering from a breach of liberty and personal freedom (1995). Obviously, curtailing this liberty and personal freedom has to be a necessary, balanced and proportional response to a threat of national security, and the Law Lords have thus far said that control records are legal. However, not everyone sees it this way. The issue of control orders, under which terror suspects are placed under “virtual house arrest”, is the one of the most sensitive civil liberties issues for ministers as opposition to Labour’s authoritarian counter-terror policy was seen as part of the glue that made the coalition possible.
Tom Brake MP, the co-chair of the Lib Dem home affairs parliamentary party committee, has said there was no evidence to suggest that control orders were effective in preventing terrorism. The other signatories of the letter, Baroness Sally Hamwee, and Lord Martin Thomas, represent Lib Dem peers. As the English legal system is a system of precedent, I feel that it any changes to the law could be introduced, but it would be their Lordships’ prerogative to decide whether any subsequent changes to the law are legal or not. And I fully trust Lords Hoffman, Neuberger and Baroness Hale, amongst others, to analyze with the legal issues with great precision if or when the time should come.
According to the most up to date figures for January 2010, there are 12 control orders in force – three fewer than a year before. Some 45 people have been subject to the controls since the system was created. Six of the foreign nationals held under the restrictions have been deported. The political situation is messy, as reflected in a rather informal conversation between Baroness Kennedy and Theresa May on the Andrew Marr show this morning. Liberal Democrats have openly warned David Cameron for the first time that any decision not to scrap control orders would jeopardise the coalition’s civil liberties credentials.
Senior Lib Dem backbenchers and peers have also written to Downing Street pressing for the limit on detention without charge to be cut from 28 days to 14 days, arguing that two-weeks is a “wholly adequate” time to bring charges, even in the most complicated cases of multiple terrorist attacks. The intervention from Lib Dem MPs and peers comes after an intense lobbying campaign by the security services. Jonathan Evans, the head of MI5, recently wrote to Cameron saying that he could not guarantee the safety of the public if the control order regime was scrapped. Whitehall officials confirm that MI5 has played its “full part in the debate”. The review of counter-terrorism powers was set up immediately after the general election, with a specific remit to look urgently at the future of control orders and the wider matter of counter-terror measures and programmes.
The home secretary, Theresa May, is thought to have recently supported the retention of control orders as a necessary intervention despite repeated interventions by Nick Clegg, whose Lib Dem manifesto clearly had called for them to be scrapped. It feels as if a pendulum over civil liberties is still in damped smooth harmonic motion, but at least the review and the Supreme Court will help the UK legislature and public reach a stable equilibrium.
Insecurity and fairness
The Fabians discussed this morning insecurity and inequality.
Whilst these are huge topics, I was impressed with the amount of breadth and depth of the discussion.
Whatever the economic solution to the global financial crisis is, and whether it will work in this country, we still have an on-going problem that has existed for the whole of this century in England.
The Fabian meeting was a starting-point for discussing some of these issues, this morning at breakfast.
Politically, the issue has been thrust to the front of the Labour agenda through the Fabian Society. Many blame Labour for not doing anything over the banking crisis, as regards the huge salaries of certain CEOs of banks. Economists on the whole appear to believe that the extra revenue that would have be gained from a high rate of taxing the bankers would not make a massive amount to the revenue of the Governnment. At the other end of the scale, despite the welfare state, there are still people living in relative poverty.
I suppose part of the problem for me is that the welfare state is not meant to be simply a desperate measure for those who’ve fallen off the edge of the cliff. It should support the successful, as indeed the NHS does support the acute medical care of all the Cabinet and Shadow Cabinet. Labour’s inequality divide, we all know, got massively worse under Blair and Brown, and this is not a record that socialists should be proud of. The recent experience of the Swedes, possibly, is that socialism is not seen as a relevant solution in this global modern economy. Taking this in its wider context, socialism should be for the good times as well as the bad, but the Conservatives attempt to shatter this notion through their repetitive chant that ‘we always fix the broken economy by Labour’.
Fairness is incredibly difficult to define. I have only seen attempts by the Law Lords in cases concerning grounds of judicial review, such as legitimate expectation or procedural impropriety. I actually have never seen it discussed at length in relation to a more obvious candidate, the Human Rights Act. Of course, we are yet to see how the case law of the Equality Act will develop. Insecurity, I sensed, was likely to be exacerbated when voters felt that circumstances were out of their control, akin to learned helplessness in depression. There are two scenarios I can immediately think of where this lack of predictability in events might lead to insecurity; the increasing globalisation of the jobs market (and immigration), and (b) the global financial crisis. Gillian Duffy, and many like her, may feel insecure about her family’s jobs, but in fairness to her (pardon the pun), in law there might be a proportional check on the freedom of movement – and that is a right to work in your domestic country – however contentious that would be.
