Monthly Archives: February 2012

Paul Bernal: Between a European Rock and an American Hard Place?

Europe and the US have had very different approaches to privacy – and in particular data privacy – for a very long time. Data protection, the centrepiece of European data privacy law, is currently undergoing a reform – and that reform is highlighting the differences in attitude, approach and understanding of privacy and its place in the delicate balance with free expression and business.

The issue that is causing the most contention is the much discussed ‘right to be forgotten’, one of the central planks of the suggested new Data Protection Regulation. It’s being strongly pushed by Commissioner Viviane Reding – but isn’t exactly getting a good press in the US. Apocalyptic pronouncements like “the right to be forgotten could close the internet” and that it is the “biggest threat to free speech on the internet” have appeared in such august journals as the Stanford Law Review.

What is perhaps just as interesting to UK people is the distress that the whole affair is causing to the UK government. They don’t seem to know what to do, or where they stand.

The right to be forgotten

The central thrust of the so called ‘right to be forgotten’ is the idea that people should be able to delete information about them held on the internet. One of the key reasons for its development was the difficulty that people have had in deleting their accounts from social networking sites like Facebook – and the sense that the data being held about people is in some senses ‘theirs’, and that as a consequence they should have the right to delete it. Exactly what the right would mean in practice is somewhat unclear. What kind of data would be covered by the right, and who the right could be enforced against – and how it would or could be enforced in practice – still seems very much up for discussion, and will probably remain so for some time.

From the perspective of the proponents of the right, it is a logical extension of the existing principles of data protection. People already have rights to access information held about them and to correct it when it is erroneous – and to ask for it to be removed if it is being held inappropriately. The ‘right to be forgotten’ takes this a step further – changing the balance so that unless there is a ‘good’ reason for data to be held, the data subject should have the right to delete it. Looked at from this perspective, it is a right that empowers people against the ‘big players’ of the data world – challenging the establishment, and helping to shift the balance of power back towards the individual.

The US perspective

From the US perspective there’s something very different going on: the right to be forgotten seems to be seen primarily as a threat to free speech. The very name ‘the right to be forgotten’ raises a spectre of censorship, or of the rewriting of history – and when Americans look across the Atlantic and back into history and see figures from Stalin and Hitler to the likes of Berlusconi, that impression might be reinforced. It’s for that reason that I’ve been arguing for a while that it would be better to call it the ‘right to delete’ rather than the right to be forgotten – but the latter seems to be what we’re stuck with.

Does the right to be forgotten really threaten free speech? European Commissioner Viviane Reding has done her best to reassure audiences both sides of the pond that it doesn’t. There are exemptions, she has said, for the media, and for free expression:

“It is clear that the right to be forgotten cannot amount to a right of the total erasure of history. Neither must the right to be forgotten take precedence over freedom of expression or freedom of the media.”

Those words haven’t reassured many American writers. Jeffrey Rosen in the Stanford Law Review is one of the most often quoted: he has gone into the detail of what has been presented about the right so far, and found enough ammunition to be able to suggest that it might be used precisely as a tool of censorship. Is he right? Well, the way it looks at the moment, at the very least we are in for some protracted arguments from both sides.

What about business?

All of this, however, may well be somewhat beside the point. Some of the more cynical of privacy advocates – myself included – suspect that the US position isn’t quite as principled as it might appear. Free speech is of course fundamental to the US constitution, and prioritised over almost everything else – but free enterprise is in some ways every bit as fundamental to the US, and when looked at in detail the right to be forgotten is far more challenging to free enterprise than it is to free speech. Businesses all over the world – but in the US in particular – have been building business models relying upon the gathering, holding and using of vast quantities of personal data. It is those business models that are under threat. Not only might they have to build in mechanisms to allow people to see and then delete the data held about them but the potential they have for exploiting this data might be much reduced. Those businesses are not likely to be unhappy to have the much-respected advocates of free expression do the hard work of opposing the right to be forgotten for them…

And the UK?

The UK seems to have neither Europe’s enthusiasm for privacy nor the US’s passion for free speech. What it does have is a desire to support business – and not to let anything else get in the way of the freedom for businesses to find ways to make money.  Back when the proposal for the right to be forgotten first started doing the rounds, UK politicians were doing their best to oppose it.

In May 2011 Justice Secretary Ken Clarke gave a speech to the British Chamber of Commerce in Belgium, counselling against too much data protection. He suggested that the right to be forgotten was effectively unworkable, and implied that it should be abandoned. His words weren’t heeded – Viviane Reding in particular has continued to push and push for the right to be forgotten – and the UK government looks as though it’s been squirming ever since.

It’s not the first time that the UK Government has been put in a position of confusion over digital issues, trying to ‘support business’. Back in November 2010, Ed Vaizey came out first against the idea of net neutrality, thinking he was supporting business, and then almost immediately in favour of it when he saw the reactions his first statements produced. In a similar vein, the confusion shown by the Information Commissioner’s Office over the notorious ‘cookies’ directive has been rumbling on for many months and shows no sign of real resolution.

This time, though, the UK Government has taken it a step further. It appears that the UK Government would much rather the ‘right to be forgotten’ disappeared. The Ministry of Justice is undertaking a consultation, ostensibly a ‘Call for Evidence on EU Data Protection Proposals’. The language used is nicely neutral, but the purpose appears clear.  In Hawktalk, the blog of the Amberhawk, the leading information law training providers, headlined their report on the consultation:

“MoJ asks for arguments to oppose the European Commission’s Data Protection Regulation”

Amberhawk suggested that by the nature of their call for evidence – the questions asked, the information provided, and the groups to which the call for evidence was sent – the MoJ was setting up a ‘numbers game’, wanting to say that the vast majority of respondents are opposed to the changes.

Will it work? Will the UK be able to block the regulation, or at least water it down in such a way as to neuter it? Given the persistence with which Commissioner Reding has pushed for the right so far, it seems unlikely. US opposition appears more likely to have an effect, not just because of the power of the US in the internet as a whole, but because their stance is more consistent and principled. Even that, however, cannot be taken for granted, as the US is now taking baby steps towards recognising the importance of privacy on the internet, with Obama putting forward his new  ‘Consumer Bill of Rights’ for privacy on the net.

The UK looks distinctly out of step – seemingly unable to influence Europe and unwilling to accept the views that are coming out of Brussels. For this author at least, the European view is distinctly more palatable, putting the rights of individuals at the heart of their proposals. It would be good if the UK Government began to do the same – and they might find their way out of the awkward position they now find themselves in.

Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at The Symbiotic Web Blog (link tohttp://symbioticweb.blogspot.com/) and tweets as @paulbernalUK.

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Patrick O’Brien: The European Fiscal Treaty: Constitutionalising ‘The Road to Serfdom’?

I start with a very old bad joke. A tourist is in Dublin, Ireland. In the midst of pondering the evident decline in the country’s fortunes (empty blocks of new apartments, growing anti-European sentiment, grizzled former bankers by the side of the road holding forlorn signs that read ‘will create dubious leveraged financial products for food’) she forgets herself and gets lost. Finding a friendly native she asks how to get to Grafton St. The bemused native responds: ‘Well, I wouldn’t start from here.’

I was reminded of this joke by the new European fiscal treaty.  The headline of the Treaty does two significant things. Firstly, it requires state parties to observe a balanced budget rule. Once the debt brake has come into full operation each state will be required in general to run their budgets in surplus or balance, and at a minimum to keep their structural deficit (that is, the amount of borrowing required to maintain their day to day operations – hospitals, schools and so on) below 0.5% of GDP. Secondly, the Treaty requires states to keep their overall government debt below 60% of GDP. Those who have exceeded this target are required to reduce their debt by one twentieth each year.

But these objectives are for the long term. Within the treaty there are exemptions for emergencies and severe economic downturns, so we must assume that these targets are not currently applicable to countries in trouble. In the medium term, each state will follow a tailored country-specific plan devised for it by the European Commission with which it must comply as it goes moves towards the twin 0.5%/60% targets. And in the short term, the state parties are required to enshrine these rules, together with a ‘correction mechanism’ in the event that the targets are not met, in domestic law within a year ‘through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes.’ (Art. 3[2]). In the event that the signatories fail to meet their obligations the Treaty provides for enforcement procedures through the European Commission and the ECJ.

I have two points I want to make about the Treaty. The first is a specific one relating to Irish constitutional law.

Art. 3(2) is tailored to reduce the likelihood of a referendum in Ireland and later in the same paragraph we find the positive sounding but rather otiose: ‘This mechanism shall fully respect the prerogatives of national Parliaments’. But it is very difficult to see how a ‘binding and permanent budgetary rule’ can ‘fully respect the prerogatives of national Parliaments’. The two ideas are opposed. The whole point of the treaty and of the debt brake project is to deprive national Parliaments of some of their prerogatives: at present those prerogatives include the power to run consistent budget deficits. Under the Treaty the European Commission, ECJ and other member states will be empowered to discipline Parliaments that do so.

There is some debate in Ireland as to whether a referendum is constitutionally required and what exactly the case law means. The Crotty case requires a referendum in the event of significant unanticipated change to EU competences. The Fiscal Treaty is not an EU treaty but an international treaty (albeit one that makes liberal use of EU institutions for its administration and enforcement). Suffice to say that we are in uncharted territory. But conversely if a referendum is not held what status will the debt-brake legislation have? There is (normally) no intermediate status in Irish law between ordinary legislation and the constitution and so the legislation will not be constitutionalised, in the sense that the text of the constitution will not have been amended. It is possible that the legislation might have some form of soft-constitutional status, but Irish politics and law rely heavily on the written constitution (as opposed to constitutional conventions) and this would still leave it open to being struck down by a future court as unconstitutional, or to being amended by the legislature as it saw fit. If this state of affairs is compatible with the Treaty and if states other than Ireland can take a similarly loose attitude to ‘permanent’ and ‘constitutional’ is Art. 3(2) a dead letter before it is even ratified?

There is another possibility, although it is a rather convoluted one. Art. 26 of the Irish constitution provides for an abstract judicial review procedure whereby the President, if he is uncertain about the constitutionality of a piece of bill presented to him for signature, can refer the matter to the Supreme Court for determination. If new President Michael D Higgins were to trigger this procedure in respect of the debt brake the supporters of the Treaty might not be entirely disappointed. The (much criticised) quid pro quo of the Art. 26 procedure is that if the Supreme Court gives the bill a clean bill of health it is, in effect, immunised from further constitutional scrutiny in perpetuity. This may be the only way that relative permanence can be assured in the Irish constitutional system without a referendum.

On to my second point. Is the debt brake rule enshrined by the Fiscal Treaty likely to work?

Article 7 of the new Treaty creates a procedure permits a qualified majority of the parties to overrule the Commission’s proposed course of action. When Ireland broke the Stability and Growth Pact early in the last decade by permitting inflation to get too high it was disciplined. When France and Germany did so by running high budget deficits, they persuaded other member states to overrule the Commission and the Pact became a dead letter. On one view Article 7 could create one rule for the big countries and another for the small.

The experience of the Stability and Growth Pact (Mark I) parallels that with debt brakes more generally. These provisions work – like most constitutional rules – when there is broad political and legal acceptance that they should work. Debt rules feature in a majority of US state constitutions and seem in general to work relatively well. But the existence of a debt brake clause did not prevent California from effectively defaulting on some of its debt in 2009, when it issued IOUs to its employees instead of paying them. The US constitution contains a provision to the effect that federal debt shall not be questioned; however this did not prevent the US from effectively defaulting on some of its debt in the 1930s when it pulled out of the gold standard. Switzerland enacted a debt brake in 2000 which has proven reasonably successful, but that replaced a similar provision in the constitution that had become a dead letter. In Germany, the new debt brake rule brought in in 2009 replaced weaker economic rules in the Basic Law that had become ineffective.

Even in Germany, it seems, constitutional debt rules will work only when they work: when they become politically possible. In Greece, in Spain, in Ireland, in Portugal, in Italy these rules will work – well, only if they are accepted. But in political terms the Treaty starts in a very poor position. There is powerful popular opposition to austerity in most states and it seems unlikely that can outrun this for much longer than one electoral cycle (in Greece in particular, where there are elections due in April). Political opponents can pray some strong economic arguments in support of their position. When even The Economist and The Daily Telegraph – those radical lefties – begin editorialising the Keynesian line that European spending cuts have gone too far and have started to create a bigger problem than the one they were intended to solve, it is safe to assume that the policy is ripe for review.

The European project has muddled through with the thinnest veneer of democratic legitimacy since its foundation because it has never really had much direct effect on the lives of citizens. It has been a preoccupation of elites, with glamorous international meetings to enthral politicians and civil servants, and constitutional innovations to intrigue lawyers. For the general citizen it offered mostly harmless or positive things: relatively easy international travel and the occasional new road. Perceived negatives, like the transfer of jobs from wealthier to poorer EU states, were often too diffuse to attribute directly to the EU. But now the imprimatur of the EU is directly associated with cuts to healthcare, salaries and pensions, massive youth unemployment and in some cases perceived national humiliation. All of this without any medium term end in sight, and all to be enforced by the European Commission and the ECJ. It is far from clear that the EU’s shaky political and constitutional legitimacy are capable of bearing the burden that the Fiscal Treaty would place upon them. If the Fiscal Treaty survives its initial Irish battle, the dubious constitutional politics surrounding it suggest that it might not win the war.

‘Well’, as the man said, ‘I wouldn’t start from here.’

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

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Jan Komarek: Playing With Matches: The Czech Constitutional Court’s Ultra Vires Revolution

When the Czech Constitutional Court (CCC) declared the CJEU’s judgment in C-399/09 Landtová “ultra vires”, one of my colleagues commented: “giving Solange into their hands was like to let children play with matches”. I am afraid it is the adequate description of the decision, which is difficult to explain in legal terms and which in my view has much more to do with the psychology of the Court and its individual judges, although other domestic actors, the Supreme Administrative Court and the Government, also played an important role.

I suspect many readers of this blog will have to check the CJEU’s website in order to know what Landtová case was about. From the point of view of EU law it was an ordinary case, decided by the Fourth Chamber, concerning the interpretation of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (“the Regulation”). Only at a closer look one could reveal an interesting dimension to it: the Czech Supreme Administrative Court (the SAC) was challenging the CCC’s case law concerning special pension increments that the CCC ordered to be paid to the Czech citizens, who were affected by the dissolution of Czechoslovakia in 1992.

Background to the conflict between the CCC and SAC

After the dissolution the two succession countries had to establish who was going to be responsible for paying the pensions of Czechoslovak citizens. Article 20 of the Agreement concluded by the Czech and Slovak Republic (“the C-S Agreement”) stipulated that the applicable scheme and the authority with competence to grant such benefits would be determined by the State of residence of the employer at the time of dissolution. Some people, who may have not moved from the Czech part of the then Czechoslovak federation during their entire life (except for holidays, perhaps), but whose employer had residence in the Slovak part, therefore obtained their pension (or its proportion) from Slovakia. This led towards the end of 1990s to a series of disputes, since the pensions in Slovakia were significantly lower than those paid in the Czech Republic (now it is the contrary, at least for some categories of people). The CCC found this to violate the right to adequate material security in old age (firstly in the judgment of 3. 6. 2003, II. ÚS 405/02).

The SAC never accepted this case law and initiated a protracted conflict with the CCC: the decision commented here is in fact the 17th in the line, which concerns various aspects of the matter. The SAC argued, among other things, that the special increment was incompatible with EU law.

The first argument was based on the fact that the C-S Agreement became part of the Regulation, which contains in its Annex III provisions of social security conventions that remain applicable notwithstanding the general rule according to which the Regulation replaces such conventions. Article 20 of the C-S Agreement was included in this Annex and in the SAC’s view the CCC’s interpretation changed the meaning of this provision – now part of the Regulation – and affected the way in which the pension is calculated according to it.

The second argument was based on the discrimination created by the CCC decisions: in general, by virtue of the Regulation (and just mentioned Annex), Article 20 of the C-S Agreement applies not only to Czech and Slovak citizens, but to any EU citizen who is retiring after the Czech Republic’s accession to the EU and who had before the dissolution of Czechoslovakia worked there. The CCC’s judgments have, however, limited the special increment to the Czech citizens only – excluding all others.

The CJEU’s ruling in Landtová Case

The CCC rejected these arguments in its judgment of 20. 3. 2007, Pl. 4/06 – without having asked preliminary reference to the CJEU, although its ruling necessarily involved the interpretation of the Regulation. We should add here, that in another judgment of 12. 8. 2010, III.ÚS 1012/10, the CCC quashed the SAC decision to suspend the proceedings in another Slovak pensions case and to await the CJEU’s ruling in the Landtová Case. The CCC ruled that it “has already dealt with the SAC’s interpretation and application of European law in the matter, which constituted ratio decidendi of the judgment”. In other words, the CCC stated that its interpretation of the Regulation shall prevail in the case regardless of the outcome of the CJEU’s ruling, so to await its results violated the rights to a fair trial of the petitioner in question.

On the reference from the SAC, C-399/09 Landtová, the CJEU ruled that while the special increment did not violate the Regulation as such, “the documents before the Court show[ed] incontrovertibly that the [CCC’s] judgment discriminate[d], on the ground of nationality, between Czech nationals and the nationals of other Member States” (para. 43). It added that “no evidence capable of justifying such discrimination has been adduced before the Court” (para. 47).

This reflects the fact that the Czech Government submitted observations which openly admitted that the CCC’s case law was contrary to EU law – rightly criticized by the CCC as “unprecedented”. However, the CJEU wanted to “soften” the consequences of its ruling: the special increment could be maintained, but must be paid to all EU citizens. At the same time, the CJEU observed that “EU law does not, provided that the general principles of EU law are respected, preclude measures to reestablish equal treatment by reducing the advantages of the persons previously favoured” (para. 53). It added, that “before such measures are adopted, there is no provision of EU law which requires that a category of persons who already benefit from supplementary social protection, such as that at issue in the main proceedings, should be deprived of it” (ibid.), stressing once again that the Czech Republic can adopt a solution that would satisfy both the requirements of EU law and the Czech Constitution as interpreted by the CCC.

The reaction to the Landtová ruling

The reaction of the Czech authorities, however, was not to the CCC’s pleasing. First, with a specific reference to the CJEU’s ruling the Parliament adopted an act which prospectively excluded the possibility of paying the special increment to everyone.

For the SAC the response of the CJEU was somewhat precarious. While the CJEU confirmed that it was right in considering the special increment unlawful, the former did not exclude that it can be granted to Mrs. Landtová. In the concrete case at hand the SAC was therefore supposed (or at least not prevented by EU law) to grant the increment to Mrs. Landtová.

Instead, the SAC came up with a different interpretation: because the CCC created the special increment in violation of EU law – and in particular the violation of its duty to refer preliminary question to the CJEU, its case law cannot be binding on the SAC, the SAC argued. In an ironic twist the SAC took advantage from the CCC’s ruling which found that such a violation would qualify as a breach of the constitutional right to the lawful judge (another irony lies in the fact that this ruling concerned a violation by the SAC…). The SAC challenged the CCC even further, stating that it of course did not undermine the CCC’s role as the final arbiter of constitutionality. But the only possibility for the CCC, the SAC stressed, would be to find that the relevant provisions of EU law violated the material core of the Constitution. The SAC therefore provoked the CCC to call revolution, if it wanted to stick to its case law.

When I saw this last SAC’s judgment I did not expect the CCC would do so. It did.

The CCC’s “ultra vires ruling”

The fact that a constitutional court of a Member State of the EU declared a judgment of the CJEU “ultra vires” is not something I would automatically condemn. I have always found presumptuous the writings that stressed the post-communist Member States’ courts’ need to “learn”, or which reacted to some of their judgments, which did not correspond to the CJEU’s orthodoxy, with suspicions concerning the competence of the respective judges, who were said to have “misunderstood” what it entailed to be the EU. The way in which the CCC justified its move, however, is most insulting – not only to the CJEU, whose accommodating gesture was returned by the CCC with a slap in the face, but to anybody who cares about the constitutional arrangements in the EU in general, and the Czech Republic’s place therein in particular.

The core argument put forward by the CCC was that the CJEU applied the Regulation to the legal relationships regulated by the C-S Agreement. In the CCC’s view the Annex to this Regulation lists the provisions of social security conventions which remain applicable differently from the Regulation. The CCC’s case law, creating a special pension increment based on Art. 20 of the C-S Agreement was among those provisions and the Regulation itself, in the CCC’s view provided for such differentiated treatment of Czech nationals.

Unfortunately (for the CCC), the Regulation emphasises that “save as provided in Annex III, the provisions of social security conventions which remain in force … shall apply to all persons to whom this Regulation applies”. Annex III then contains two lists of social security conventions and only those contained in part B of the Annex can provide for a differentiated treatment of certain categories of people”. Article 20 of the C-S Agreement is not amongst them; it cannot, therefore, establish differentiated treatment for certain categories of people.

Moreover, the Regulation of course cannot violate the provisions of the Treaties, including the prohibition on discrimination on the basis of nationality. Thus Regulation No. 647/2005, which amended the Annex, stresses in the fourth recital of its Preamble:

On the basis of the case-law relating to the relationships between Regulation (EEC) No 1408/71 and the provisions of bilateral social security agreements, it is necessary to review Annex III to that Regulation. … In addition, it is not appropriate to accept entries in part B except where exceptional and objective situations justify a derogation from Article 3(1) of that Regulation and from Articles 12, 39 and 42 of the Treaty.

This only confirms that the discrimination found by the CJEU could hardly be justified in case the relevant provision was not expressly mentioned in part B of Annex III (although the CJEU hinted at such a possibility, as mentioned above).

However, the CCC found the very application of the Regulation inappropriate. In its view, “the provisions of Annex III are from the point of view of EU law of declaratory nature only, they are not constitutive; the key consideration for the application of the Regulation is the nature of the legal relationships concerned, which must contain the so called foreign element”. This foreign element was lacking, according to the CCC, since “the periods of employment during the existence of Czechoslovakia cannot be viewed, retroactively, as periods of employment abroad”.

The key passage of the judgment, trying to explain why the CCC considered the CJEU’s ruling ultra vires is the following:

“Not to distinguish legal arrangements following from the dissolution of a state with a single social security system from the arrangements concerning the consequences for social security systems of the free movement of persons in the European Communities, or the European Union, amounts to the failure to respect the European history, it means to compare the incomparable. For this reason it is not possible to apply European law, ie. the Regulation, to the Czech citizens’ claims stemming from social security. Following the principle explicitly stated in its judgment [of 26. 11. 2008, Pl. ÚS 19/08, Lisbon Treaty I], it is not possible to do otherwise than to find in relation to the consequences of the [CJEU’s judgment in the Landtová Case] for similar cases that in its [the CJEU’s] case the situation where an act of an institution of the EU exceeded the competences transferred to the EU by virtue of Article 10a of the Czech Constitution occurred, that an act ultra vires was occurred”.

First, the CCC’s assertion that “the provisions of Annex III are from the point of view of EU law of declaratory nature only” is plainly wrong. In fact the CCC implies that the content of those provisions is to be determined autonomously from EU law – so that they can e.g. be “amended” by a ruling of a national constitutional court, such as the decisions of the CCC ordering the payment of a special increment to Czech citizens negatively affected by the application of Article 20 of the C-S agreement. The truth is that those provisions became part of the Regulation – providing for a special regime within the Regulation and their interpretation thus became a matter of EU law – where the final word lies with the CJEU, not the CCC. This relates to the second argument, already mentioned: that the CCC’s decisions, creating the special increment, established unequal treatment. As such, they would have to be listed in another part of Annex III – but they were not.

Such a misunderstanding could be perhaps understandable, if it did not lead to the finding of ultra vires ruling on the part of the CJEU. While the CCC ornamentally refers to the BVerfG’s rulings concerning the possibilities of its intervention, everybody who has ever had a look at these decisions would know that they are quite different – if only because the BVerfG suggested that it would firstly send a preliminary reference to the CJEU before finding its ruling ultra vires. As one of my colleagues commented on this, well-behaving people firstly try to talk to each other before pressing the trigger. Not the CCC.

Well, the CCC wanted to invent its own way of talking to the CJEU; instead of submitting a preliminary reference the Court sent a letter to the CJEU, where it wanted to explain its case law, as it saw that it was not be properly defended by the Government. The Registry, however, sent the letter back to the CCC, explaining that “according to what is established practice, the members of the CJEU do not exchange correspondence with third parties concerning the cases submitted to the CJEU”.

This apparently insulted the judges in Brno. The CCC “pointed to the deficits concerning the guarantees of the fair trial in the procedure in [the Landtová Case]”. In relation to its rejected letter the CCC “reminded that the CJEU regularly uses the institute of amici curiae in preliminary ruling procedure, in particular in relation to the Commission. in the situation when the ECJ was aware, that the Czech Republic as a party to the proceedings, acting through its government, which rejected the CCC’s opinion, which was the object of the CJEU’s assessment, it is impossible to see the CJEU’s finding that the CCC’s was a ‘third party’ in the case otherwise than a violation of the principle of audiatur et altera pars”.

Leaving aside a truly groundbreaking finding – also constitutional courts enjoy the guarantees of a fair trial! – the CCC demonstrated that it knew rather little about the relevant rules concerning preliminary ruling procedure, whereby the Commission (and the Member State Governments together with other institutions and also the parties to the case before the referring court) are invited to submit observations (Art. 23 of the CJEU’s Statute), no such provision is made for national courts and other institutions. Thus the CJEU’s rejection was fully in line with the rules which govern the procedure before it.

But there is another mystery: why did the CCC want to decapitate itself into the position of a party before the CJEU and complained about the latter’s rejection of its letter, if it had numerous possibilities of sending the reference to the CJEU, including in this case?

Consequences

In the Czech Republic only few people seem to have comprehended what the CCC did, except for the circles close to both courts involved and the Government. The CCC’s judgment contained other problematic elements which I did not have space to deal with (such as declaring the statute adopted by the legislature in response to the Landtová ruling “obsolete”, since the CCC did not have the competence to annul it in this case) and these will have to be discussed by the relevant actors.

One possibility I proposed on the Czech blog mentioned above was to await the change in the CCC’s composition, which is due in the course of this and the following year and try to postpone decisions in cases that deal with the same problem until this change. Some people suggest that the SAC should either simply ignore the CCC or to send another reference to the CJEU asking it on the effect of the CCC’s finding that the former’s ruling was ultra vires (what could the CJEU say?) It remains to be seen what (if anything) the reaction of the EU will be.

Jan Komarek is a lecturer in EU law at the London School of Economics and Political Science.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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Kate Malleson: Taking the politics out of judicial appointments?

Seven years after the judicial appointments process was completely refashioned under the provisions of the Constitutional Reform Act 2005 (CRA), the system is being looked at again. In November, the Ministry of Justice issued a consultation paper on ‘Judicial Appointments and Diversity: A Judiciary for the 21st Century’ pre-empting the forthcoming report of the House of Lords Constitution Committee inquiry on the same topic. A key issue in both the consultation paper and much of the evidence submitted to the Lords inquiry is the role of the Lord Chancellor in the appointments process. The provisions of the CRA reducing the role of the Lord Chancellor to that of a limited veto over the decisions of the judicial appointments commission (JAC) have been subject to a range of criticisms. The aim of the consultation paper is to address these concerns by achieving ‘…the proper balance between executive, judicial and independent responsibilities’. To this end, it proposes transferring the Lord Chancellor’s powers to the Lord Chief Justice in relation to appointments below the High Court or Court of Appeal while at the same time ensuring that the Lord Chancellor plays a more ‘meaningful role’ in relation to the higher judicial ranks. This would be achieved by requiring the JAC  to consult the Lord Chancellor on potential candidates for the most senior appointments and by including the Lord Chancellor on the JAC  selection panel for the appointment of the Lord Chief Justice and for the appointment of the President of the UK Supreme Court by the ad hoc Supreme Court appointment commission. At the same time, the Lord Chancellor’s current power of veto would be removed.

At first blush, therefore, these proposals look like a sensible attempt to recognise the distinction between the lower and upper ranks of the judiciary, acknowledging what the Lord Chancellor, Kenneth Clarke, has described as the ‘ritual’ element of his involvement in appointments at the lower ranks, while recognising the need for greater political accountability in appointments to the senior judiciary. The consultation paper notes the potential for a democratic deficit if the executive is not involved in the process: ‘We consider that the complete removal of the Lord Chancellor from the entire process would result in an accountability gap and are of the view that this gap increases with the seniority of the appointment being made’.

The first element of the proposed change, the removal of the role of the Lord Chancellor in relation to positions below the High Court or Court of Appeal, has attracted considerable support from those who gave evidence to the Lords inquiry. The Lord Chancellor himself stated in evidence to the Committee that in relation to this aspect of his role he simply ‘goes through the motions’ of reviewing the candidates about whom he knows little or nothing. In contrast, the proposed removal of the Lord Chancellor’s current right of veto in relation to the upper judiciary is far more controversial and it is hard to see that this aspect of the proposed change represents the creation of a more ‘meaningful’ role for the executive. The reason why the JAC was set up as a recommending commission rather than an appointing body, with the Lord Chancellor retaining the final say in appointments, was to provide a potential check on the decision-making of the independent commission in the event of something going wrong in relation to an appointment (whether the error was committed in good faith or bad) and to maintain a meaningful degree of political accountability in the process. The first of these functions would be lost under the proposals and the second would be weakened. In addition, the proposed change is likely to undermine efforts to increase diversity in the judiciary. Experience in other jurisdictions, as well as the UK, has shown that diversity does not automatically improve as the composition of the legal profession changes but requires political will to drive forward proactive changes, some of which are not supported by the judiciary or the legal profession.

A better option for striking the correct balance between the branches of government would be to retain the Lord Chancellor’s veto and for the JAC (and the ad hoc commission in relation to Supreme Court appointments) to provide the Lord Chancellor with a short-list of three names of candidates to choose from for all senior appointments whom the commissions consider to be very well-qualified and appointable. This would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit. It would also maintain the important function of a back-stop in case of error or malpractice.

Kate Malleson is a Professor of Law at Queen Mary, University of London

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Stuart Lakin: What Role Should Judges Play in the Constitution Justice Sumption?

In his recent F.A. Mann lecture Jonathan Sumption Q.C., the newly appointed member of the Supreme Court, took up the question of the proper role of judges vis-a-vis the political branches of government in the UK.   Tom Adams has already provided a fine summary and analysis of the lecture in his January post.   I urge readers to follow the link to this post (and to read the lecture itself ) before continuing.

In this short comment, I want to offer some thoughts on Sumption’s central theme, namely that judges should not intervene in matters of politics or policy.     I shall make two general points, one positive and one negative.   In the positive, I shall support Sumption’s call for judges to engage directly with constitutional theory in determining which branches of government should decide which types of questions (for a more general argument about the importance of theory for public law, see my earlier post.)  In the negative, I shall support Tom Adams’s conclusion that Sumption’s own constitutional theory is rather unbalanced.   While Sumption makes many cogent arguments about the distinctive virtues of politics and governmental policy-making, he needs to say far more about the precise role of judges in the constitution.    This task, in turn, requires a far more detailed and nuanced account of the nature and importance of law, the rule of law and individual rights.

Before I move into my arguments, it is worth sounding a few notes of caution.  A public lecture of about 9,000 words (or an hour) in length, given just a few months before taking up judicial office (for the first time) in the highest court in the land, with lawyers, journalists and others hanging on your every word, is probably not the ideal occasion to mark someone’s score sheet.    Sumption is an unusually bright lawyer.   I doubt that his arguments are the best he has, or even that he fully endorses everything he says.    It certainly seems premature, to me, to conclude from his lecture that he is ‘conservative’ and ‘naive’ in his views (see Joshua Rozenberg’s article in The Guardian, November 9, 2011.).  But I may be wrong.  We shall have to wait and see whether, or to what extent, the arguments of Sumption Q.C. find their way into the judgments of Justice Sumption…

The need for judges to do constitutional theory

My positive argument can be made very briefly.  It is less of an argument, and more of a textual ‘hear, hear’ for the following passage towards the end of Sumption’s lecture:

“English judges have traditionally been shy about resorting to large constitutional theories to explain their judgments. This is consistent with the pragmatic and undemonstrative traditions of English law, and its distaste for rhetoric and all-embracing propositions. However, the reticence of English judges about the constitutional implications of their decisions has had unfortunate consequences. It has meant that English public law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts”  (22)

Whether or not this is a fair assessment of the record of English judges, the broad implications of the passage must be correct.   The proper division of responsibilities between courts, the executive and the legislature is a deeply controversial, moral question.   It can only be answered by reference to some theory of why certain types of decisions should be left to one or other branch of government.    The greater the willingness of judges to make explicit their constitutional theory, the greater the prospects for a coherent and principled model of the separation of powers.

Sumption supports this general view with a careful account of the relevance of judicial deference/restraint/reticence (call it what you will) to public law adjudication.

First, judicial deference, where appropriate, is not deference to the minister; it is deference to “the constitutional separation of powers which has made the minister the decision-maker, and not him.”  (18)     To put this point differently, judges should not defer at all; they should simply exercise their proper constitutional function on some principled account of what that function should be.   This is a point made repeatedly by Trevor Allan in his work on deference.

Secondly, Sumption plays down the significance of ‘institutional’ reasons for judicial deference.   Factors such as “the lack of justiciable standards by which to assess [particular areas of policy-making], the limitations of the court’s expertise, and the indirect impact which an adverse decision may have on interests not represented before the court”, Sumption argues, “reduce to the level of a practical impediment what is actually an important issue of principle.” (20)   The proper basis for judicial power, Sumption reiterates, must be the general application of an underlying constitutional principle across the whole range of government activity.

This distinction between ‘institutional/practical’ reasons and principled reasons for judicial restraint recalls Jeffrey Jowell’s distinction between the ‘institutional’ and ‘constitutional’ competence of courts.  Jowell and Sumption may not be in full agreement though.   For Jowell, institutional reasons for deference are themselves moral reasons (as opposed to practical, unprincipled reasons).    Jowell must be right on this point.    The question of what counts as a ‘justiciable standard’ must depend on some principled account of what types of standards judges should apply.    Similarly, the extent to which courts require special ‘expertise’ must depend on some principled account of what type of judgement courts should make about the evidence before them (I shall  have more to say about these points below).

Perhaps Allan, Sumption and Jowell are all ultimately saying roughly the same thing: that  an account of the proper role of judges requires a principled theory of a range of constitutional and institutional factors.    As Allan has helpfully put it, the label ‘deference’ is a conclusion about how we should understand those factors.

So What Should Courts Do?

Having encouraged judges to get stuck into constitutional theory, how far does Sumption himself take us towards a convincing theory of role of judges?    This brings me to my negative argument.   It is striking as one reads Sumption’s lecture how little argument there is about what judges should do.    There are heaps of warnings about what judges should not do, and how judges have strayed outside their proper constitutional role (whatever that might be): judges should not intervene in areas of ‘macro-policy’ (6), judges should not use judicial review as a means of expressing their ‘aversion’ to a policy (6), judges should not legislate (7), judges should not balance competing policies (9), judges should not attempt to resolve inherently political issues (18-19), etc, etc.     At the same time, Sumption gives plenty of rich and insightful argument about the value of politics as a mode of policy-making:   politics is an “essential tool of compromise” (17), the only means of determining the public interest, and the only way of ensuring democratic, public accountability on sensitive issues of public policy (21).

There is no question that a comprehensive theory of the role of judges vis-a-vis the political branches of government must include a detailed account of legislation, politics, policy, and democratic accountability   Those theorists who advocate a so-called ‘political’ or ‘republican’ understanding of the constitution place particular emphasis on these types of things.   As does Jeremy Waldron in his own uniquely challenging way.     But these types of things make up just one side of the constitutional equation.     We also need a positive account of precisely what role judges and courts should have in the constitution.   How should judges interpret statutes?   What limits should judges place on the exercise of executive discretion?   As I have said, Sumption doesn’t take us very far at all with those types of questions.   He assures us that judicial review is not ‘unnecessary’ (18); and he insists that we need to ‘sort out the law which judges [should] administer’ (19);  but, beyond that, he offers only the most indistinct account of judges’ job description.

Take the following familiar situation described by Sumption early on in his lecture (6).  A statute gives a minister an apparently unqualified power to act ‘as he or she thinks fit’.  The court has to decide whether the minister has abused this power.    How should a judge decide this question?    We can infer from Sumption’s account of what judges should not do that they should apply the “clear literal meaning [of] the statute”, or they should try to find “sufficient and admissible evidence of the actual [Parliamentary intention].”  (7)    But the text of statute will very often (if not always) bear many different possible meanings; and it may be altogether unclear from the text (or indeed from Hansard) what meaning Parliament intended.   What should a judge do then?      Sumption seems to have no answer to this question beyond telling us that, at this point, a judge’s decision will cease to be a legal decision: judges will instead inevitably cross over into the forbidden territory of policy-making and legislation.

Sumption’s failure (at least in this lecture) to advance a rigorous theory of the judicial role is symptomatic of an unfortunate tendency among British constitutional lawyers and theorists.  Different views on the role of judges are all too often expressed in metaphors or empty slogans: judges should apply ‘a light touch’ or a ‘hands-off’ approach, or a ‘progressive’ approach to judicial review.    The fix for this tendency, I think, is a much closer engagement with legal theory alongside political theory.     If it is thought that judges should give effect to the law, then judges and theorists need to grapple with the question of what counts as a legal right, duty or power; and they need to think about what it means for officials or institutions to be governed by law (or the rule of law).    These are difficult and controversial questions, but judges and theorists have no option but to confront them.    Judges can only make a principled judgment about when to impugn a ministerial decision if they have put together a theory both of politics, policy and democracy, and of law, the rule of law, and individual rights.   I would add that judges should be as willing to spell out their legal theory as their political theory.    Given his general sympathy to judges doing theory, it would be surprising if Sumption were to disagree with me about this.

Stuart Lakin is a Lecturer in Law at the University of Reading

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Armin von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei and Maja Smrkolj: A Rescue Package for EU Fundamental Rights – Illustrated with Reference to the Example of Media Freedom

Fundamental rights protection, once a side show, has become important for the EU, as proved by the newfound treaty recognition of the EU fundamental rights charter (CFREU), and the upcoming accession to the European Convention on Human Rights (ECHR). At the same time the fundamental rights situation in a considerable number of Member States is an increasing cause for concern. This has mostly been illustrated with reference to minorities and asylum seekers. However, recent reports of organizations like the Council of Europe, the OSCE and various NGOs have also highlighted serious problems with regard to media freedom, such as overt political influence, media concentration, disproportionate sanctions on journalists, misuse of counter-terrorism legislation against the press, deficient protection of journalistic sources and failure to investigate violence against reporters.

While the Union is supposed to promote fundamental rights around the world (Article 21 TEU) and intensely scrutinizes the respective situations in candidate countries (Article 49 TEU), there is scant action so far in case of serious fundamental rights violations in Member States. In this respect, the defense of the Union’s foundational values (Article 2 TEU) is largely left to national and international institutions. The Commission, which is supposed to be the ‘Guardian of the Treaties’, seems reluctant to fully protect fundamental rights and rather prefers to concentrate on less sensitive ‘technical’ issues of the internal market. The assertion that the scope of EU fundamental rights protection is strictly limited is omnipresent.

Such a restrictive approach has traditionally been explained by concerns for the constitutional identity of the Member States. As the respective experience undergone by the USA shows, central enforcement of one single set of fundamental rights against member state action bears the risk of centralization. For this reason, the Charter of Fundamental Rights does not generally apply to the Member States but only “when they are implementing Union law” (Article 51(1) CFREU). This does not mean that there is a legal vacuum beyond the Charter’s scope: According to Article 2 TEU the Member States are bound to “respect for human rights”. Enforcement of this obligation is subject to a political decision (Article 7 TEU). However, this mechanism has severe drawbacks. Firstly, by its very nature it involves considerations of political opportunity which arguably might lead to a habit of mutual indulgence amongst Member States governments: The prevailing unwillingness to initiate the Article 259 TFEU procedure can serve as an illustration. Secondly, the negative experience of the Haider affair has apparently led to a considerable inhibition threshold.

The lack of credible enforcement mechanisms not only undermines the Union’s legitimacy in the eyes of the individuals affected, it is also of systemic concern: A massive deterioration of fundamental rights protection in some Member States might eventually threaten fundaments of European integration, namely the principle of mutual confidence and the premise that the Union can rely on the functioning polities of the Member States. Democracy in the Union would be seriously affected if Union citizens were hampered in expressing their opinions in or informing themselves via independent media. It is not surprising that the Court of Justice of the European Union (CJEU) itself has searched for a way to ensure fundamental rights protection by stretching the “scope of Union law” in which EU fundamental rights apply to the Member States. This jurisprudence has however not offered a satisfactory solution: On the one hand it is far from addressing the most problematic situations, on the other hand it has sometimes transgressed the limits of what is doctrinally justifiable.

In this light we argue for an innovative approach to EU fundamental rights protection with regard to Member State action. Our proposal is to open up “respect for human rights” set out by Article 2 TEU for individual legal actions via Union citizenship. This might come as a surprise given that today – despite the famous opinion by AG Jacobs in Konstantinidis – citizenship and fundamental rights are usually treated as distinct concepts. There is, however, a close historic and teleological connection: Both discourses developed around the same period in reaction to the pressing legitimacy question. Citizenship and fundamental rights are therefore two mutually strengthening concepts which essentially pursue the very same objective, i.e. to bring the Union closer to the individual. In systematic terms this is also reflected in today’s positive law in that the Charter of Fundamental Rights not only contains the so-called citizens’ rights but also refers to citizenship as a whole (2nd consideration). Finally, if Union citizenship is to be taken seriously, it cannot be completely separated from fundamental rights questions: In theory it would seem odd to exclude the -literally- most fundamental rights in EU law (cf. Article 2 TEU) from the “fundamental status” of the citizen. In practice effective exercise of Union citizenship is often heavily dependent on fundamental rights.

Our doctrinal starting point is the “substance” of Union citizenship which the CJEU in Ruiz Zambrano has held to apply even to purely internal situations. According to the Court “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. What emerges from this reasoning is that the CJEU views Union citizenship not only as a bunch of transnational free movement rights but as a truly “fundamental status” which the Union is called to protect against particularly serious encroachments. We argue that this rationale serves as a link between EU citizenship and fundamental rights: Even in purely internal situations the “substance” of Union citizenship precludes violations of fundamental rights that amount to emptying the “fundamental status” of its practical meaning.

How can one frame this in concreto? We propose that inspiration should be drawn from the German Federal Constitutional Court’s Solange-doctrine. As is well known, the Karlsruhe Court no longer exercises its competence to control EU secondary law as long as the Union ensures fundamental rights protection which is “essentially similar to the protection of fundamental rights required unconditionally by the Basic Law.” This is further defined by the requirement to “generally safeguard the essential content of fundamental rights” and operated as a presumption to be disproved by the claimant. We argue that this two-pronged test should be taken up by the CJEU and turned towards the Member States: Outside the Charter’s scope of application a Union citizen cannot rely on EU fundamental rights as long as it can be presumed that their respective essence is safeguarded in the Member State concerned. However, should this presumption be rebutted, the “substance” of Union citizenship – within the meaning of Ruiz Zambrano – comes into play. On this basis Union citizens can seek redress before national courts and the CJEU.

As regards the first prong, the essence of fundamental rights is set out in Article 2 TEU as one basic condition for the exercise of public authority in the European legal space, be it by the Union or by the Member States, and as such is not limited to the scope of the CFREU. Its content however is far more restricted than the full range of fundamental rights protection enshrined in Article 6 TEU and the CFREU. This can be drawn inductively from the jurisprudence of the ECtHR, the CJEU and national constitutional courts: With regard to media freedom it only precludes measures inhibiting political speech or debates on questions of public interest.

The second prong is based on the principles of subsidiarity and respect for national identities (Articles 4(2) and 5(1) TEU). In this light it can and should be assumed that the national systems of fundamental rights protection comply with their obligations arising out of Article 2 TEU. How can this presumption be rebutted? Not by simple and isolated fundamental rights infringements. Instead, one has to look for violations of the essence of fundamental rights which in number or seriousness account for systemic failure and are not remedied by an adequate response within the respective national system. Such violations not only put into question the basics of the European legal space but also deprive Union citizenship of its practical meaning. This threshold is not to be mistaken as instrumentalizing the individual for general purposes but seen as focusing on these cases which demand EU intervention. Further guidance for interpretation can be taken from the criterion of a “serious and persistent breach” in Article 7(2) TEU. Conceivable examples therefore include the refusal to abide by a final judgment of the ECtHR in a domain that touches upon the essence of fundamental rights, the defiance, bypassing or intimidating of domestic courts in such cases or intentional, reckless or evidently illicit conduct of highest state authorities.

Put into practice our proposal could then work as follows: If a national of a Member State feels that her rights have been violated she would turn to the national judge. In court she could rely on the domestic (and possibly ECHR) standard of fundamental rights protection. Outside the scope of the CFREU she could not invoke EU fundamental rights, nor could she rely on Union citizenship to claim a violation of Article 2 TEU unless the presumption of compliance was rebutted. However, in case of systemic violation of the essence of fundamental rights the “substance” of Union citizenship, within the meaning of Ruiz Zambrano, would be activated as a basis for her redress. First of all it would be up to the national court to establish the facts and to apply the respective provisions of Union law. Yet, according to Article 267 TFEU the latter would be enabled and, in a case of last instance, by and large obliged to refer to the CJEU for a preliminary ruling on the interpretation of Articles 2 TEU and 20 TFEU.

At this point one can already hear critics shout: “ultra vires”. Our proposal, they might argue, would breach the federal order of competences emphatically underscored in Article 51 CFREU. In our view however this criticism is not persuasive: Firstly, our proposal does not extend the scope of the CFREU beyond the limits of Article 51 but merely implies better enforcement of the essence of fundamental rights enshrined in Article 2 TEU. It is beyond question that the latter binds any exercise of public authority by the Member States and can be enforced by the EU under Article 7 TEU. Therefore our approach neither creates new and unexpected obligations for the Member States nor adds new competences for the Union as such; only the Organkompetenz of the CJEU, but not the Verbandskompetenz of the EU is affected.

Secondly, while the former Treaties have kept the EU’s foundational principles out of the reach of the CJEU the Lisbon Treaty subjects Article 2 TEU to the Court’s jurisdiction and thus to its mandate to ensure that “the law is observed” (Article 19(1) TEU). Our proposal would therefore not constitute an unwarranted arrogation of institutional powers but simply put flesh on what has already been laid down by the framers of the Treaties. It resembles the famous Van Gend en Loos line of jurisprudence inasmuch as it complements a centralized enforcement mechanism with “the vigilance of individuals concerned to protect their rights” and interjudicial cooperation. This not only has the well-known advantage of combining the interpretative rulings of the CJEU with the authority and enforceability of domestic court decisions. Arguably, it can also provide national judges with some backing from the side of Union law through the voice of the CJEU speaking on behalf of a Union founded on respect for human rights. Hence, one could say that our proposal ultimately aims at strengthening domestic courts in critical situations.

An extended version will be published in the Common Market Law Review.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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House of Lords Select Committee on the Constitution Produces Report on Legality of Scottish Referendum.

The House of Lords Select Committee on the Constitution has published a report on the legal issues raised by the proposed referendum on Scottish Independence.  One of the issues they discuss is the capacity of the Scottish Parliament to legislate for a referendum without the support of the Westminster Parliament.  They conclude:

“An authoritative determination of the legal issues analysed in this chapter could be given only by the courts. Having considered the matter in detail, we are of the clear view that the legal analysis offered by the UK Government is correct. Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to pass an Act purporting to authorise a referendum about independence.”  [Para. 30]

The Committee has, consequently, broadly followed the view expressed by Adam Tomkins, set out in a post on this blog.   The contrary argument – holding that such a referendum would be lawful – was advanced by a number of academics in a group post, which can also be read on this blog. 

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