4 July 2016 by Guest Contributor
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Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.
The two-year countdown
Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.
But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero?
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2 July 2016 by Guest Contributor
Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.
Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey.
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2 July 2016 by Fraser Simpson
Photo credit: The Guardian
O’Neill and Lauchlan v. United Kingdom, nos. 41516/10 and 75702/13, 28 June 2016 – read judgment.
The European Court of Human Rights has ruled that criminal proceedings concerning two Scottish individuals ran beyond the “reasonable” period of time permitted under Article 6, ECHR. Despite considering that the individual stages of the proceedings were all reasonable in length, the cumulative time was excessive and in violation of Article 6(1).
by Fraser Simpson
Background
In August 1998, the applicants were sentenced to periods of imprisonment of eight and six years following convictions for various sex offences. During their incarceration, the police wished to question the applicants about the disappearance, and suspected murder, of their ex-housemate (AM) after she had been reported missing six months earlier. On 17 September 1998 the applicants were detained by police and interviewed separately for over five hours. During these interviews they were directly accused of the murder of AM but, subsequently, neither applicant was arrested or formally charged.
Following release from prison, and subsequent re-arrest and recall to prison due to the apparent abduction of a fourteen year old boy, the applicants were again convicted of various sex offences and sentenced to a further three years in prison. During this period of incarceration the applicants were also placed on petition in relation to the murder of AM in early April 2005. Formal charges were brought on 5 April 2005 whilst the police continued with their investigations. However, in late 2005, Crown Counsel raised concerns about the sufficiency of evidence. Accordingly, a decision to take “no proceedings meantime” was made in December 2005 and subjected to continuous review as investigations continued.
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1 July 2016 by Rosalind English
M, R (on the application of) Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 (30 June 2016)
The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to her own grandchild. Her daughter, referred to as A in the judgment, died of cancer at the age of 28 in 2011. The High Court had dismissed M’s argument that the HFEA had acted unlawfully by refusing to allow the eggs to be exported to a fertility clinic in the United States where an embryo would be created using donor sperm, and implanted in the mother.
The HFEA is bound by statute (the 1990 Human Fertilisation and Embryology Authority Act) to provide services using a person’s gametes only where that person consents. The difficulty here was that while A had consented to treatment for egg removal and storage, including storage after her death, she had not completed a specific form giving details of the use that was now proposed.
The essence of the appellants’ challenge was there was “clear evidence” of what A wanted to happen to her eggs after she died. “All available evidence” showed that she wanted her mother to have her child after her death, the Court was told.
Arden LJ, giving the judgement of the court, found that the judge below had reached his conclusion on the basis of a “misstatement of certain of the evidence” about A’s consent by the Committee.
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30 June 2016 by Hannah Noyce
The UN Committee on Economic, Social and Cultural Rights (CESCR) has published a damning report on the UK’s implementation of economic, social and cultural rights. The report is available here (under “Concluding Observations”).
The CESCR monitors the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), an international treaty to which the UK is a party. State parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to implement the rights set out in the treaty. The Committee may also take into account evidence from “Civil Society Organisations” (Amnesty International and Just Fair were among those who made submissions in respect of the UK). The Committee then addresses its concerns and recommendations to the State party in the form of “concluding observations”.
The Committee’s last report on the UK was back in 2009, so this was its first opportunity to review the austerity measures put in place since 2010.
It’s fair to say that the UK did not come off well. With regard to austerity, the Committee was:
“…seriously concerned about the disproportionate adverse impact that austerity measures, introduced since 2010, are having on the enjoyment of economic, social and cultural rights by disadvantaged and marginalized individuals and groups.”
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28 June 2016 by Rosalind English
Supporters of Brexit and campaigners for animal welfare are not natural bedfellows. And indeed my quick poll of the intuitive reaction to Thursday’s vote revealed anxiety about a future race to the bottom in terms of welfare standards as European regulations are unpicked and new trade deals are carved out, whether with individual member states of the EU, the European Union as a whole, or under the surveillance of the WTO. (But here’s a call for action: https://action.ciwf.org.uk/ea-action/action?)ea.client.id=119&ea.campaign.id=53173&ea.tracking.id=98b15a7c&utm_campaign=transport&utm_source=ciwftw&utm_medium=twitter
Which is why it is critical at this moment to remember that the obstacle in the way of this country reviewing its participation in the trade in live animals is one of the pillars of the EU Treaty: free movement of goods. Animals are regarded as goods, and any measure adopted by a member state government interfering with the movement of livestock within the single market and beyond its borders with its trading partners has been prohibited as a “quantitative restriction” on exports. When we are eventually free of this overarching prohibition, no time should be lost in grasping the opportunity to alter our laws in recognition of humane standards in animal husbandry.
Some Background: veal crates and the port protests in the 1990s
Just at the time when the red carpet was being rolled out for the Human Rights Act, campaigners for the rights of non human animals had their eye on a much more difficult task: persuading the government that shipments of young calves to veal crates across the Channel defeated our hard-won animal welfare laws and were in breach of the EU’s own proclaimed animal protection measures. The practice of rearing veal for the popular white meat involves confining a week old calf in a box for five months until slaughter. The well respected farm animal charity Compassion in World Farming managed to convince the UK courts that they not only had standing but an arguable case that this export trade breached the domestic prohibition on the veal crate system as well as the relevant EU Convention and Recommendation. CIWF contended that the UK government had power under Community law
to restrict the export of veal calves to other Member States where the system described above was likely to be used, contrary to the standards in force in the United Kingdom and the international standards laid down by the Convention to which all the Member States and the Community had agreed to adhere….
the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organisations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur.
In fact the EU rules merely contained stipulations as to the minimum width of veal crates and the composition of veal calves’ diets.
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28 June 2016 by Adam Wagner
It is only four days since the UK public narrowly voted to leave the European Union. A lot of people are now arguing for a second referendum. But would that be democratic?
Like many people who voted to remain, I have been feeling down about the result. My social media feeds have been full of many of the states of grief, but mostly anger and denial. It is denial which, I think, is motiving the calls for a second referendum. I am therefore wary, as someone who would love for this all magically to go away, of the allure of those arguments. But, we are in uncharted waters. Millions are calling for a second referendum on the original question, and now likely Conservative leadership candidate Jeremy Hunt has called for a second referendum to decide whether the country would accept an exit deal.
Hunt’s argument is enticing, at first glance anyway. He begins by saying that ‘The people have spoken – and Parliament must listen“. But – but! – “we did not vote on the terms of our departure“. In short, he wants to open up “a space for a “Norway plus” option for us – full access to the single market with a sensible compromise on free movement rules”. And he thinks the best way to make that happen is to negotiate an informal deal before invoking Article 50 (therefore setting a two-year time limit) and “once again… trust the British people to decide on whether or not it is a good deal”.
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26 June 2016 by Guest Contributor
We’re quiet at the UKHRB, but working on it. In the meantime, here is a level headed prognostication of where the EU arbiter – no longer head arbiter for us, but for the time being – will need to go.
Thank you Eutopia law for permission to repost this instructive article by Professor Peter Lindseth.
“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum. Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.
But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?
We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog,
the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic.
This post is in that spirit.
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22 June 2016 by Jessica Elliott
R (Nigel Mott) v Environment Agency [2015] EWHC 314 (Admin) Read Judgment
An interesting Court of Appeal decision concerning the science of migratory salmon, and the circumstances in which compensation will be granted when an interference with Article 1 Protocol 1 is found.
For over forty years, Mr Nigel Mott has fished for salmon at Lydney on the River Severn with putcher ranks: rigs of conical baskets which trap adult salmon as they swim upstream in order to spawn.
Putchers had long enjoyed a privileged status as against other means of fishing. Owing to their designation as a “historic installation”, they were spared the controls and conditions which applied to rods and nets, and which have increasingly regulated fishing activity since the first Salmon Fisheries Acts in 1861.
Freedom to fish without restriction allowed Mr Mott to make his living from this ancient method: at £100 per salmon, his annual catch of 600 fish brought him a gross turnover of £60,000.
In 2011, new statutory powers enabled the Environment Agency (“the Agency”) to impose catch conditions on fishing licences granted in respect of historic installations “where it considers that it is necessary to do so for the protection of any fishery”.
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20 June 2016 by Charlotte Bellamy
The Ministry of Justice
In the news
The Justice Select Committee has found that steep rises in court fees are damaging access to justice. The report examines the recent and proposed changes to fees for court users in the civil and family courts and tribunals, including those introduced for employment tribunals and the proposed increase to asylum and immigration fees. The Committee, chaired by former barrister Bob Neill MP, raises serious concerns about the quality of the Ministry of Justice’s research into the impact of the fees, sharing the view expressed by the senior judiciary who gave evidence that it does not provide a sufficient basis to justify the proposals. Lord Dyson, Master of the Rolls, described the research as “lamentable”.
The Coalition Government over the course of the 2010-15 Parliament pursued policies aimed at decreasing the net cost to the public purse of Her Majesty’s Courts and Tribunals Service, by introducing and increasing various fees for court users. This included introducing fees for employment tribunals, the now extinct criminal courts charge, and a range of fees for civil proceedings, including “enhanced fees”, which are set at a level greater that the costs of the proceedings themselves. The pursuit and implementation of fees has been continued in the current Parliament.
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15 June 2016 by Hannah Lynes
Photo credit: the Huffington Post
In the news
The UN human rights committee has found that restrictive abortion laws in Ireland had subjected a woman to cruel, inhuman and degrading treatment, in violation of the International Covenant on Civil and Political Rights.
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13 June 2016 by Guest Contributor
Last year 32,446 people subject to immigration control in the UK were detained by the government. Some had entered the country irregularly and were quickly removed. Others were detained pending removal or deportation. More than half of them were released back into the community, meaning that their detention had served no purpose.
But what many people don’t know is that many of those detained were ordinary people, many of whom had lived in the UK for decades and, until they were detained had been quietly going about their everyday lives with their partners and children. Some have never known any other home, and have husbands and wives, sons and daughters, jobs, homes, lives right here in Britain. Decisions to detain pay no heed to the impact of such a decision on the wider family. Parents are removed without warning from the heart of the family.
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8 June 2016 by Guest Contributor
1 Crown Office Row and Hart Publishing are delighted to announce the publication of
‘The Inquest Book: The Law of Coroners and Inquests’ edited by Caroline Cross and Neil Garnham
with contributions from barristers at 1 Crown Office Row
We are delighted to offer readers of the UKHRB a 20% discount on the book! Please see below for details of how to order with your discount
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6 June 2016 by Jim Duffy
Next Tuesday, the British Institute of International and Comparative Law (BIICL) will be holding an event in London to mark the start of the final furlong in the run-up to the In/Out EU referendum.
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1 June 2016 by Fraser Simpson
Photo credit: The Guardian
Hunter, Re Judicial Review, [2016] CSOH 71 – read judgment.
The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.
by Fraser Simpson
Background
The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.
The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.
Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance.
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