Prosecution of Italian traffickers can go ahead even after Romania’s accession to EU

italy_immigrationPaoletti and others (Judgment) [2016] EUECJ C-218/15 (6 October 2016) – read judgment

The Court of Justice of the European Union (CJEU) has ruled that people smugglers can be punished even if the illegal immigrants themselves have subsequently gained EU citizenship by dint of the relevant country’s accession to the EU.

Legal and factual background

The accused in the main proceedings had illegally obtained work and residence permits for 30 Romanian nationals in 2004 and 2005, before the accession of Romania to the EU. They were therefore charged with having organised the illegal entry of these Romanian nationals “in order to benefit from intensive and ongoing exploitation of foreign labour”. This law was introduced to the Italian criminal code in accordance with the EU directive requiring the prevention and punishment of people smuggling (Article 3 of Directive 2002/90 and Article 1 of Framework Decision 2002/946, which provide that such an offence is to be punishable by effective, proportionate and dissuasive penalties). Continue reading

Arguments in the referendum challenge now available

OLYMPUS DIGITAL CAMERA

The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.

Government 

Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control.

Citizens’ Rights

People’s Challenge

Even if the government has prerogative power to deal with this, it cannot be used in any way to modify “fundamental rights”, in particular “citizenship rights”; these rights include employment, equal pay and healthcare rights.

Government

Article 50 was drafted to allow member states to determine their own requirements for withdrawal, free from interference from EU law. This is a provision of the EU Treaties which regulates states and does not confer rights upon individuals. As such, it cannot be invoked in a complaint such as the one at hand, regarding the activation of Article 50.

In any event, no particular rights have been asserted by the claimant that might be infringed by this process, and therefore they are not justiciable.

Devolution

People’s Challenge

The devolved legislatures of Scotland, Northern Ireland and Wales are bound by EU law to protect the rights of their citizens. Furthermore, Northern Ireland and the Irish Republic cannot be separated by different rules on free movement of EU citizens.

Government

The government’s use of its prerogative powers has nothing to do with devolution. The conduct of foreign affairs is a “reserved” matter so that the devolved governments have no competence over it.

Concluding statements

People’s Challenge

If Article 50 is triggered without the authorisation of MPs, this would create a precedent preventing any future parliament from legislating to hold a second referendum on EU withdrawal.

Government

It is “entirely appropriate” under the UK’s unwritten constitution for the government to implement the outcome of the resolution without the need for parliamentary authorisation.

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Divisional Court strikes down DRIPA communications data law

David-Davis-Tom-Watson-HOCR (ota Davis et al) v. Secretary of State for Home Department [2015] EWHC 2092 – 17 July 2015 read judgment

When a domestic Act of Parliament is in conflict with EU law, EU law wins. And when a bit of the EU Charter (given effect by the Lisbon Treaty) conflicts with an EU Directive, the EU Charter wins.

Which is why the Divisional Court found itself quashing an Act of Parliament on Friday – at the behest of four claimants, including two MPs, the Tories’ David Davis and Labour’s Tom Watson. 

The doomed Act is the Data Retention and Investigatory Powers Act 2014 or DRIPA. It was in conformity with an underlying EU Directive (the Data Retention Directive 2006/24/EC or DRD – here). However, and prior to DRIPA, the DRD had been invalidated by the EU Court (in the Digital Rights Ireland case here)  because it was in breach of the EU Charter.

All this concerns communications data, which tell us who was sending an email, to whom, from where, and when – but not the content of the email. DRIPA in effect compels telecoms providers to keep communications data for 12 months, and to make it available to public bodies such as intelligence and law enforcement agencies.

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A bluffer’s guide to human rights courts

Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?

Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.

If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.

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The ECJ on Aslyum, Greece; the UK Protocol on the EU Charter – Dr Cian Murphy

Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title.

The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.

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