Media By: Guest Contributor


Rose Slowe: Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

9 March 2017 by

England Europe

On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.

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The Front Page in the Digital Age: Institute of Advanced Legal Studies publishes report on protecting journalists’ sources

3 March 2017 by

newspapers-444447_1920A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday.

The Institute of Advanced Legal Studies (IALS), in collaboration with the Guardian, has published the results of a research initiative into protecting journalists’ sources and whistleblowers in the current technological and legal environment. Investigative journalists, media lawyers, NGO representatives and researchers were invited to discuss issues faced in safeguarding anonymous sources. The report: ‘Protecting Sources and Whistleblowers in a Digital Age’ is available online here.

The participants discussed technological advances which facilitate the interception and monitoring of communications, along with legislative and policy changes which, IALS believes, have substantially weakened protections for sources.
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Fathers4 (Access2) Justice: Administrative Court ruling on the public’s right to attend court hearings and the Court Service’s limited powers of control – Chris Adamson

8 February 2017 by

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R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin)

Summary

On 20 February 2015 Matthew O’Connor, the Claimant in this judicial review and the founder of the campaign group Fathers4Justice, was due to go on trial at Aldershot Magistrates’ Court for a public order offence. He arrived at court with around ten of his supporters, but when they tried to gain entry to the court building they were prevented from doing so by HMCTS staff. Only the Claimant and his Mackenzie Friend were allowed to enter.

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Article 50, the Supreme Court judgment in Miller and why the question of revocability still matters – Rose Slowe

25 January 2017 by

England Europe

With the Supreme Court having ruled yesterday that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU will undoubtedly revolve around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the government’s negotiation position. This post puts forward the hypothesis that such debates may become irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable.

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50 (see yesterday’s post on this blog which summarised the court’s judgment).  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s decision to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration.

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Guest Post: Magistrates struggle (again) with the use of imprisonment for non-payment of council tax – by Sam Genen and Sophie Walker

23 January 2017 by

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R (Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council [2017] EWHC 34 (Admin) (judgment awaiting publication)

There is an exceedingly long line of case law, stretching back beyond the days of the community charge (which was of course better known as the Poll Tax). In those cases, the courts have traditionally quashed custodial orders improperly imposed by magistrates for non-payment of council taxes.

Most recently, the legal charity Centre for Criminal Appeals have picked up the reins as part of their work challenging unduly harsh sentencing practices.  The case of R(Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council, a judicial review claim, is the first of the cases supported by the Centre to reach the High Court, and concerned imprisonment of a woman who had failed to make council tax payments required of her.

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Professor Robert Wintemute: Same-sex survivor pensions in the CJEU (Parris) and the UKSC (Walker)

9 January 2017 by

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In the recent case of David Parris v. Trinity College Dublin, the CJEU found that the ineligibility for a survivor’s pension of an employee’s same-sex partner, in circumstances where the 2011 recognition of their civil partnership by Irish law had come after that employee’s 60th birthday and therefore too late to trigger the pension entitlement, gave rise to neither direct nor indirect sexual orientation discrimination.

The UK Government had made written submissions in Parris, hoping for reasoning that would support its defence of an exception in the Equality Act 2010 permitting unequal survivor’s pensions for same-sex civil partners and spouses.  The compatibility of the UK’s exception with EU law and the ECHR will be tested in John Walker v. Innospec Ltd, an appeal to heard by the UK Supreme Court (UKSC) on 8-9 March 2017.  For a detailed analysis of the Court of Appeal’s judgment, see R. Wintemute, March 2016, 45(1) Industrial Law Journal 90-100.

Although it is suggested that the CJEU erred in finding no sexual orientation discrimination in Parris, it focussed on a rule of the Irish pension scheme that does not exist in Walker, namely that the employee’s marriage or civil partnership must take place before their 60th birthday.  It is therefore suggested that Parris will not help the UK Government in Walker.

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Who sees you when you’re sleeping? Who knows when you’re awake?

21 December 2016 by

hacking-1685092_960_720Angela Patrick of Doughty Street Chambers provides an initial reaction on the implications of the decisions in Tele Sverige/Watson for domestic surveillance and the Investigatory Powers Act 2016.

In an early holiday delivery, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the joined cases of Tele Sverige/Watson & Ors (C-203/15/C-698/15), this morning.

Hotly anticipated by surveillance and privacy lawyers, these cases consider the legality of data retention laws in Europe, following the decision in Digital Rights Ireland that the Data Retention Directive was unlawful. Broadly, the CJEU confirms that EU law precludes national legislation that prescribes the general and indiscriminate retention of data.  The Court concludes that the emergency data retention legislation passed in a few days in 2014 – the Data Retention and Investigatory Powers Act 2014 – is unlawful.  That legislation is, of course, due to lapse at the end of December 2016 in any event.

This morning’s decision comes just too late to have influenced the passage into law of the Investigatory Powers Act 2016 (“IPA”) – the new domestic bible on bulk surveillance, interception, communications data retention and acquisition and equipment interference – which received Royal Assent in early December. However, what the CJEU has to say about surveillance and privacy may determine whether the IPA – also known by some as the Snoopers Charter – has a long or a short shelf-life.

The powers in IPA are built on the same model as its predecessor and provides for broad powers of data retention with limited provision for safeguards of the kind that the Court considered crucial.  Significant parts of that newly minted legislation lay open to challenge.
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Witness Protection: Can non-parties appeal critical findings made in a judgment which infringe their human rights?

30 November 2016 by

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Re: W (A child) [2016] EWCA Civ 1140 – read judgment

Summary

A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.

Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.

The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.

The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.

The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.

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Cian Murphy: Human Rights in the Time of Trump – The Need for Political Love

17 November 2016 by

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The election of Donald Trump as the next US President has shaken our faith in democracy and is a serious blow to the cause of human rights in the US and around the world. President-elect Trump’s campaign was a repudiation of the political and social progress made under his predecessor. It was an explicit threat to those who are vulnerable – whether because of their religion, race, gender, sex, sexual orientation, or physical abilities. Trump’s election, an ‘American tragedy’, comes at the end of a year in which the values that are said to underpin civic society in the US and Europe have come under significant threat.

When President-elect Trump’s inauguration takes place early next year he will seek to set the tone in the Western hemisphere, and across the globe, for the rest of this decade. It is clear, even before we address specific policies or world-views, that we will miss the grace and poise of President Obama. These are qualities that President-elect Trump revels to reject. We are unlikely to hear an affirmation of rights such as that President Obama made with the alliterative triad of Seneca Falls, Selma, and Stonewall.

What then, for human rights, in the time of Trump?
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Counter-terrorism overseas: Adebolajo report makes uncomfortable reading for MI6 – Marina Wheeler QC

14 November 2016 by

Image result for MI6Oversight of the Intelligence Services is a matter of enormous public importance, as counter-terrorism powers are enhanced to combat a pernicious and persistent threat.

A recent Report by the Intelligence Services Commissioner, Sir Mark Waller, assisted by Oliver Sanders of these Chambers, dispels some misconceptions about contact between the intelligence services and Michael Adebolajo, one of 2 men convicted of murdering Fusilier Lee Rigby[1]. It also shines a light on how HMG applies its policy on the treatment of detainees held overseas – in Adebolajo’s case, by a Kenyan partner counter-terrorism unit in 2010. Not all of the Report’s findings make comfortable reading for the Intelligence Services.

HMG’s policy was, and remains, never to assist, condone, encourage, solicit or participate in any form of mistreatment of detainees. The 2010 Consolidated Guidance to Intelligence Officers on the Detention and Interviewing of Detainees Overseas[2], is intended to guide UK personnel who work with overseas agencies where, by definition, they are unlikely to be in total control of the situation in which detainees are held.
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Post by Jo Moore: “A legitimate question: Deportation, discrimination and citizenship rights for children born out of wedlock.”

3 November 2016 by

R (o.t.a. Johnson) v. Secretary of State for the Home Department [2016] UKSC 56
19 October 2016 – read judgment

Summary

In Jamaica in 1985, a baby was born to British father and a Jamaican mother.  The child’s parents never married, and at the age of four he moved to the UK with his father. Under the law in force at the time, as an ‘illegitimate’ child, he did not automatically acquire British citizenship. If his mother had been the British parent, if his parents had ever married each other, or if an application had been made while he was a child, he would have become a British citizen. But he did not.

Two decades pass and the Secretary of State attempts to deport that individual, Mr Johnson, following a string of very serious offences. He appeals on the ground that deportation would be unlawful discrimination. If only his parents had been married, he would be a citizen and not be liable for removal.

The Supreme Court agreed. It held that there was no justification for someone in his position being liable to deportation simply through being born out of wedlock, which was an accident of birth over which a child has no control.

The Court also declared that a “good character” requirement for acquiring citizenship which applied only to illegitimate children was unlawfully discriminatory and incompatible with the Convention.

This judgment represents a further step towards equal rights for children born out of wedlock.



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A New Book on Parliaments and Human Rights Protection – Judge Robert Spano

13 October 2016 by

9780198734246

 

On the occasion of the publication of the book Parliaments and the European Court of Human Rights by Professors Alice Donald and Philip Leach, Judge Robert Spano of the European Court of Human Rights comments on the general themes presented in the book and its contribution to the ongoing debate on the European Convention on Human Rights and the Principle of Subsidiarity.

A culture of human rights in national parliaments

The effective implementation of human rights requires a culture of human rights at all levels of government as well as in society in general. Therefore, it is a possibly trans­formative development in European human rights law that the role of national parliaments in the realisation of human rights protection within the Convention system has increasingly become a focus-point in recent years, both at the level of policy within the Council of Europe, but as well, and importantly, at the level of adjudication of actual human rights cases in the Strasbourg Court.

This new book provides an excellent overview of this important development, by highlighting the arguments in favour of a more parliamentary-focussed human rights jurisprudence, while at the same time identifying the potential risks to be addressed in future cases.

As a serving judge of the Strasbourg Court, I would like to make a couple of remarks on the core of the normative argument in this regard, as developed by the authors, on the relationship between human rights, democratic governance and legitimate authority.

The first is a doctrinal point, while the second is more practical.

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Do the EU’s rules on standing square up to the principle of effective judicial protection? – Michael Rhimes

10 October 2016 by

scales of justice Old BaileyUnderstanding Standing: Post 3 of 3 of Article 263(4) TFEU

This is a final post in a series of three on standing in EU law. It will focus on whether the present position under Art 263(4) TFEU satisfies the principle of effective judicial protection.

Part I) Effective judicial remedies.

Effective judicial protection is of a long pedigree. We can trace an embryonic form of this right in the Magna Carta of 1215 which provides, in Article 29, that “no freeman is to be taken or imprisoned or disseised of his (…) liberties (…) save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice” (See also Arts 11 to 13). It also emerged fairly early on in the jurisprudence of the European Union in the mid-1980s, with the CJEU starting to toy with the idea that the effectiveness of EU law could impose certain obligations at the domestic level in order to ensure that effectiveness, Case C-14/83 Von Colson and more famously Case C-410/92 Johnson. The principle can now can be found enshrined in Art 47 of the Charter, as follows: 

Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. (…)

This Charter has equal status to the other two Treaties constituting the EU, the TEU and TFEU (see TEU, Art 6(1)) Thus, as has been stressed on many an occasion, the very applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter. In other words, effective judicial protection is a fundamental postulate of EU law – where there is EU law there must be effective judicial protection. 
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I have a right not to know Elena Ferrante’s real name* – George Szirtes

5 October 2016 by

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I have so many rights I am thinking of flogging some off on eBay. Though I have the right not to do so.

2
Stop telling me whatever it is you may be telling me. I have a right to tell you not to tell me.

3
I have the right and you have the right. What we have rights to may be different but let’s pool our rights and make one big right.

4
My right to have rights is being threatened by people who claim they have the right to other rights. Other people are bastards.

5
My rights are constantly threatened by people claiming to have rights. They have no right to such rights.

6
I have the right to stamp my foot. If I am not granted the right to stamp my foot I will stamp my foot. That is my right / my foot.

7
Everyone has the right to have rights. They are right to have rights. It is right to have rights. It is right to be everyone.

—–

*Article in Guardian to this effect. ‘Stop telling X what to do’ is a favourite Guardian meme to be fully explored another time.

Poem posted with permission of the author. George Szirtes is a British poet and translator from the Hungarian language into English

Concrete Walls and Bureaucratic Barriers to Access to Justice for Migrants

5 October 2016 by

 

calais-421331Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.

The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants.
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