Category Archives: European Union

David Erdos: Mind the Gap – The CJEU Google Spain Judgment Profoundly Challenges the Current Realities of Freedom of Expression and Information Online

david.erdosCROSS-POSTED FROM OPENDEMOCRACY.NET.

The European UnionData Protection Directive of 1995 has always had lofty, and in many ways implausible, ambitions. As regards the private sector, it seeks to outlaw the input, storage or other processing on computer of any information relating to a living individual “data subject” (irrespective of whether the information is innocuous and/or widely available in the public domain) unless in each and every case that processing complies with a set of provisions put in place to ensure the protection of “the fundamental rights and freedoms of natural persons, and in particular their right to privacy” (Art. 1 (1)).

Subject to certain qualified and limited exemptions, that code requires that all data “controllers” – that is anyone who either “alone or jointly” determines the “purposes and means” of processing (Art. 2 (d)) – comply with a set of detailed rules designed inter alia to ensure fairness and transparency for the data subject and, in most circumstances, to completely outlaw processing of whole categories of “sensitive” information (for example regarding political opinion, religious belief and criminality) absent the subject’s explicit consent or unless this information is currently being manifestly made public by her (which may be taken as an albeit very tenuous kind of implicit consent) (Arts. 8, 10, 11 and 12).

In terms of legal principle, this code should have deeply structured the entire architecture of publication and dissemination of information on the World Wide Web. And yet, long before even the advent of Web 2.0, it was clear that the Web was largely operating according to an almost diametrically opposed understanding, namely, that information – in particular, publicly-available information – should, except in extraordinary circumstances, be “free”. This ethic is certainly at the heart of Google’s operations – indeed, its public mission is “to organise the world’s information and make it universally accessible and useful”.

The recently handed down Court of Justice of the European Union (CJEU) decision of C-131/12 Google Spain, Google v Agencia Espanola de Protection de Datos (2014) brings into stark relief the chasm between these two different understandings. The case originated from an attempt by a Spanish individual to use Spanish data protection legislation to get Google to delete from its search engine publicly available information relating to his bankruptcy from over ten years previously. His case, along with some 200 or so others, received the backing of the Spanish Data Protection Authority.

Google, however, contested liability on the basis that (i) it was not subject to Spanish law, (ii) it was not a “controller” of the processing and (iii) that making it comply would have a chilling effect on fundamental rights. Whilst many of these arguments received support in the advisory Advocate General Opinion of last June, the CJEU has now strikingly rejected all three. In sum it held that:

* Google search engine was bound to comply with Spanish law since the activities of its advertising subsidiary (Google Spain), unquestionably established on Spanish territory, were “inextricably linked” to the search engine itself (at 56). Therefore, all the processing was carried out “in the context of the activities” of the Spanish subsidiary. (As an aside, this implies that European Data Protection Authorities have been wrong to hold that Facebook is only subject to Irish law and can therefore ignore the data protection provisions of all the other 28 EU Member States).

* Google was clearly determining the “purposes and means” of processing data as it was deciding to create a search engine (at 33). It therefore was a “controller”. It was not relevant that the data in question had “already been published on the internet and are not altered by the search engine” (at 29).

* Far from constituting a chilling effect on fundamental rights, placing responsibilities on Google was essential to securing the “effective and complete” protection of data subjects’ rights and freedoms envisaged by the Directive (at 38). This was particularly the case since inclusion of information on a list of search engine results “may play a decisive role in the dissemination of that information” and “is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page” (at 87).

What was particularly striking and unexpected was that the Court went out of its way to enunciate both the ambit and substantive duties of Google in an even more expansive way than that suggested by the Spanish Data Protection Authority (DPA). As its Press Release following the judgment indicated, the Spanish DPA’s argument was limited to the idea that it was only on being asked by the data subject to remove material that Google became liable under data protection law. Moreover, Google would only have to accede to a “right to be forgotten” if its dissemination lacked “relevance or public interest” and was “causing harm to the affected individual”. On each of these aspects, however, the understanding of the CJEU was much broader.

Firstly, the Court stated that a search engine would be a controller not as a result of receiving a data subject request but merely because it was “processing” on its own behalf or, in other words, collecting and disseminating information from the web. It followed that:

Inasmuch as the activity of a search engine is … liable to affect significantly, and additionally, compared with that of publishers of websites, the fundamental rights to privacy and to the protection of personal data [as noted above, the Court found that this would often be the case], the operator of the search engine … must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of [Data Protection] Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved. (at 38)

Secondly, the Court stated that there could be a valid opposition to the search engine’s inclusion of personal data irrespective of whether inclusion in the search engine results “causes prejudice to the data subject” (at 96).

Even more strikingly, the Court found that the simple making of an opposition would “override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding the information upon a search relating to the data subject’s name” (at 97). As a partial caveat, the Court did add that, at least as regards ordinary personal data “that would not be the case if it appeared, for particular reasons such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the lists of results, access to the information in question” (at 97). In stark contrast to the Advocate General’s Opinion, the Court made no mention at all of how the much stricter, sensitive information rules were meant to operate in this context.

The Court was right to find that Google was subject to Spanish law and was indeed a controller of its search engine results. What is surprising and more troubling were the Court’s views on the breadth and depth of search engines’ data protection responsibilities.

It is particularly striking that vis-à-vis Google the Court made no mention of freedom of expression even though this is enunciated in both Article 10 of the European Convention on Human Rights and Article 11 of the EU Fundamental Rights Charter. There was therefore no express attempt to balance this right against the data protection provisions set out in the Data Protection Directive and Article 8 of the EU Charter.

Instead, data protection was given priority, subject only to the partial caveat of a rather narrowly construed public interest centred on public figures. This approach can indeed be seen as required in order to secure the “effective and complete” protection of data subjects intended by the founders of European data protection.

However, such a vision is in profound tension with the whole way in which information is disseminated and sought out online including not only by large corporations such as Google but also by hundreds of millions of individuals. Much of the legal debate in the months and years to come will focus on dissecting exactly what the few limits left in play by the Court, which relate not only to public interest but also the “responsibilities, powers and capabilities” of search engines, actually mean.

But, in terms of real implementation, what is likely to matter more is how powerful the ideal of data protection enunciated in this judgment is when placed against the vast cultural, political and economic power of “internet freedom”. Whatever results from this, interesting times are ahead for the future development of this legal framework, with profound implications for the freedom of expression and information of us all.

 

David Erdos is a University Lecturer in Law and the Open Society and a Fellow of Trinity Hall, University of Cambridge.

 (Suggested citation: D. Erdos, ‘Mind the Gap’ Open Democracy (15th May 2014) (available at OpenDemocracy) OR D. Erdos, ‘Mind the Gap – The CJEU Google Spain Judgment Profoundly Challenges the Current Realities of Freedom of Expression and Information Online’ U.K. Const. L. Blog (15th May 2014) (available at  http://ukconstitutionallaw.org/).

 

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Filed under Comparative law, European Union, Human rights

Stephen Tierney: Why is Scottish Independence Unclear?

stierneyAs commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.

In trying to envisage life after a Yes vote it is natural to begin with the Scottish Government’s White Paper published in November 2013 which, at 648 pages, cannot be accused of failing to set out the SNP’s broad vision for independence. But for several reasons we must treat this only as the start of our quest and certainly not as a definitive template for a new Scottish state.

Here are some reasons why:

1. The White Paper is selective

The White Paper is certainly comprehensive but inevitably offers if not a Panglossian then at least an optimistic picture of the future, using evidence that supports the Scottish Government’s case for economic success and relatively easy transition to statehood. Inevitably many of these claims have been subject to contestation, and since they are dependent upon varying circumstances and the cooperation of other actors, not least the UK Government, they cannot be taken to be the last word on independence.

2. Are we sure there will be negotiations?

This is surely the easiest question to answer. The White Paper not unreasonably assumes a process of mutually cooperative negotiations given the Edinburgh Agreement in which the UK and Scottish governments undertook ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This has recently been restated by a UK Government minister. It can also reasonably be assumed that despite the bluster of the referendum campaign it will be in the interests of the UK to build a constructive relationship with its near neighbour. But there are still many unknowns concerning the negotiation process and its possible outcomes.

3. Who will negotiate?

On the one hand we would expect the Scottish Government to take the lead for Scotland. But let’s not forget the Yes campaign is a broader church than simply the SNP, and different contributors to this, such as the Green Party, will have their own agendas which they would seek to advance in negotiations with the UK. Furthermore, in the White Paper the Scottish Government announced that it ‘will invite representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the Government in negotiating the independence settlement.’ (para 2.7) Who might take part, what influence would these other actors have, and how might their influence re-shape the negotiations? Also, on the UK side different uncertainties present themselves. We assume the UK Government will negotiate for the UK, but with a general election in May 2015 a new government may take a different view of the negotiation process.

4. What if negotiations break down?

An unlikely scenario but one which does add more uncertainty to the mix is the possibility of failure of these negotiations to result in agreement. If negotiations do indeed break down, what then: a unilateral declaration of independence? This possibility has rarely been considered within the Scottish debate but it would raise a new set of issues regarding both the terms of separation between Scotland and the UK, at which point international law would provide some guidance as to the default position, and for Scotland’s status internationally.

5. Will there be a deal?

We can expect a deal at the end, but in light of the ‘personnel’ issues considered at point 3 the terms of any negotiated deal are hard to predict. How many of the goals to which it aspires in the White Paper will the Scottish Government achieve, and on which issues will it have to compromise, not only with the UK but with other parties to the negotiations on the Scottish side?

6. Surely experts can predict the outcome of negotiations?

Given that a UDI is highly unlikely, as commentators we can reasonably focus upon the terms of negotiations, but here voters must be struck by how we suffix our references to the most likely outcomes by restating how many variables are at work. It is no surprise that on the various issues at stake experts will reasonably disagree about different scenarios. As commentators we also have a duty not to enter the debate in a polemical way, using expert knowledge to advance the cause of one particular side. It is important to remain objective, presenting the evidence for the different sides of each argument as best we can.

7. Clarity and simplicity are not synonyms

The subject matter for negotiations could scarcely be more complex – disentangling a state with a highly integrated advanced economy. So many issues will need to addressed together that even listing the topics to be dealt with is a difficult, and inevitably an incomplete, task: the economy, the currency, debt, welfare, pensions, oil and gas, higher education, the environment, defence, the European Union, security and intelligence, borders, citizenship, broadcasting etc. etc. Issues surrounding each of these issues will have to be negotiated. Therefore, there is reasonable disagreement among commentators about the nature of the competence which an independent Scotland would acquire in relation to each of these, and as to the prospects for some degree of on-going cooperation or union with the UK in relation to each area of competence. And even if we commentators can reach some kind of consensus about a particular issue taken in isolation we need to factor in that each is a potential bargaining chip in negotiations. There may well be trade-offs which see some aspects of the Scottish Government’s preferred model of independence subject to compromise in return for other gains.

8. It’s politics, stupid

What would make things clearer? Well the obvious solution to a lot of uncertainty would be agreement between the two governments on a range of issues ahead of the referendum. The Electoral Commission (paras 5.41-5.44) has recommended ‘that both Governments should agree a joint position, if possible, so that voters have access to agreed information about what would follow the referendum. The alternative – two different explanations – could cause confusion for voters rather than make things clearer.’

But this is not going to happen. Uncertainty among voters is an important card for the Better Together campaign. It is simply not in the political interests of the UK Government to work with the Scottish Government to clarify possible negotiation outcomes. And in any case it may not be in the interests of the Scottish Government either should such pre-referendum discussions result in stalemate, thereby serving only to heighten rather than diminish uncertainty before the vote.

9. After independence: designing Scotland’s constitution

Even if negotiations are concluded and independence formally endorsed we will not have a final picture of Scotland’s constitutional future. Scotland will not at that stage have a constitution. According to the White Paper there will be an interim period during which some form of transitional arrangement will be needed. There will then be a Scottish parliamentary election in May 2016, and only after this, according to the White Paper, will a constitutional convention be established to draft a constitution. So many of the proposals set out in the White Paper concerning Scotland’s constitution are contingent upon how this convention is established, how it will draft a constitution, what this will contain, and how it will be ratified (i.e. will it be approved by the Scottish Parliament or by way of another referendum).

And what would the institutions of government in an independent Scotland look like: will the Queen be head of state? Will there be a one chamber or two chamber parliament? Will Scotland have a new constitutional court? The Scottish Government has views on these issues but also accepts they will be for the constitutional convention to determine. And what institutional arrangements would be needed to maintain areas of cooperation or union with the UK? All of these issues will remain to be settled.

10. It takes three to tango

And of course the foregoing issues focus upon Scotland’s relationship with the UK. What of Scotland’s external relations? Issues such as state recognition; succession to international rights, obligations and treaties; and membership of international organisations, all remain to be fully worked out. And most crucially, the European Union presents two huge issues. The first is how Scotland will be admitted to membership, something which remains a focus for debate, not helped by the bizarre interventions of senior EU politicians. The second issue is surely much more salient and the source of more reasonable disagreement, namely the terms of such admission.

11. What is ‘independence’ anyway?

All of these questions raise a larger issue, namely the heavily integrated nature of the modern nation-state and the web of international relations which bind states within Europe. As the details of the Scottish Government’s proposed model of independence emerge, for example in relation to the currency, what is envisaged is in fact the continuation of important relationships with the UK as well as new and close relations with international partners. But clarity on these points is obscured by campaign gaming. The Yes side is reluctant to voice these aspirations in detail since this will invite the ‘we will never agree to that’ response which we have seen in relation to currency union. This will inevitably mean that much of the detail of what the Scottish Government aspires to will most likely remain unstated at the time of the referendum. The challenge for voters then is a broader one: it concerns how they understand the very meaning of statehood and sovereignty in today’s Europe. The reality today is that any new state emerging from within the EU and intending to remain within the EU will, by definition, instantiate a novel form of statehood which delivers independence but not separation. This, a unique state of affairs, is the factor which poses the deepest analytical challenges to political actors, to constitutional theorists and practitioners, and, since a referendum is the mechanism assigned to determine such an outcome, ultimately to voters.

Is there any point in expert commentary?

Yes of course. There are many technical issues which can be clarified. This will not fully explain how Scottish negotiations will go with either London or Brussels but it can make clearer the issues which will be subject to negotiation.

Secondly, much of the uncertainty stems from the political positions of the two sides: Better Together which does not want to suggest negotiations will go smoothly for the Scottish Government; Yes Scotland which claims that they will. However, the UK Government’s position following the hard reality of a Yes vote is likely to be significantly different from that as stated in the heat of the referendum campaign. Again academics must try to disentangle these two different positions. At the same time they can probe the viability of the claims made by the Scottish Government in its White Paper.

In the end some kind of bigger picture may emerge, albeit through a glass darkly. People when they vote will do so with two rival visions of the future in mind. These will not be perfect predictions of what either an independent Scotland or an on-going UK (we must also remember that a No vote also carries many uncertainties concerning the future) will look like in 1, 5 or 10 years’ time, but they will need to make sense to the people casting their votes. As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.

Stephen Tierney is a Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme

Suggested citation: S. Tierney, ‘Why is Scottish Independence Unclear?’ U.K. Const. L. Blog (25th February 2014) (available at: http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, European Union, Scotland, UK Parliament

Alison Young on HS2: Wilkommen zum Constitutional Pluralism

young_alison-l2The HS2 case is widely recognised as the first important Constitutional case of the year. Its importance for parliamentary sovereignty and the relationship between EU law and national law appears to turn on four paragraphs: paragraph 79 of Lord Reed’s judgment and paragraphs 206 to 208 of the judgment of Lord Neuberger and Lord Mance. Mark Elliott states that these paragraphs suggest that, not only does the UK have a separate category of ‘constitutional statutes’ but that some constitutional statutes are more constitutional than others. Adam Tomkins comments that the case also demonstrates the dangers that can arise when the Court of Justice of the European Union (CJEU) interprets EU directives in a purposive or teleological manner, perhaps taking these provisions beyond what the Member States, represented by the Council, the European Parliament and the Commission intended. He welcomes the approach of the Supreme Court which questions the interpretation of the CJEU. I want to focus on another question – is HS2 best understood as the UK’s conclusive acceptance of constitutional pluralism? In doing so, I hope to demonstrate how this may alleviate the confusion that may be caused by multi-layers of constitutional statutes, as well as how this may help the UK to respond when it believes that the CJEU may have gone too far.

Constitutional Pluralism

Constitutional pluralism is a much-used term. It can be hard to define, particularly when separating it from the related issue of legal constitutionalism. It can also be hard to separate out when the term is used to describe inter-institutional relationships and when it is used to prescribe how institutions should relate to one another. For the purpose of this brief response, constitutional pluralism is defined as occurring when two or more institutions assert the authority to definitely resolve a particular issue, but where neither institution can effectively ‘make good’ on its assertion of authority.

Applied to the European Union, both the CJEU and national courts assert their claim to be the institution that definitively determines the nature of the relationship between national law and EU law. However, neither can fully make good on this claim. The CJEU does not stand in a hierarchical relationship to the national courts. As such, it cannot, as a matter of law, force the national courts to comply with its judgments. However, national courts are also not completely free of influence from the CJEU. They play a major role in implementing EU law, but have no power to declare EU law to be invalid and, for the highest level of court capable of adjudicating on a particular issue, have an, albeit limited, obligation to refer the case to the CJEU. Whilst the CJEU determines EU law, the national courts determine how this is applied to the facts.

Constitutional pluralism can also be applied to the UK. Whilst Parliament enacts legislation, courts determine the principles by which this legislation will be interpreted. Courts control executive actions, either according to common law principles or statutory provisions, and the legislature can enact measures to override common law principles or to oust the jurisdiction of the courts. Both Parliament and the courts have a role to play in determining how legislation is recognised, and in assessing what is meant by ‘parliamentary sovereignty’ when expressed as a legal principle. Whilst most English courts are courts of inherent jurisdiction, Parliament could still place judicial power on a statutory basis, determining its confines.

HS2 and the EU

It is easy to find references to a potential acceptance of constitutional pluralism in the, probably already seminal paragraphs of Lord Reed and of Lord Neuberger and Lord Mance. All argue that the relationship between EU law and national law is a matter for UK constitutional law, to be determined by the UK courts. This is true for conflicts between EU law and UK statutes and for conflicts between EU law and UK constitutional principles. Lord Reed states that the issue as to whether a Directive should override national law ‘cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act’ [79]. Further, [i]f there is a conflict between a constitutional principle … and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom.’ [79] For Lord Neuberger and Lord Mance ‘[u]nder the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law’ [206]. As regards a potential conflict between EU law and national constitutional principles, ‘[i]t is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation’ [207].

Constitutional pluralism is also illustrated in the way in which all of the members of the Supreme Court interpret the requirements of the Directive. There is recognition of potential problems with its interpretation. This is analysed not just from a perspective of national constitutional principles. The Supreme Court looks at the separation of powers, a constitutional tradition shared by the Member States. EU scholars who advocate constitutional pluralism draw on its ability to encourage judicial dialogue and to act as a mutual check. In particular, national courts can point out when decisions of the CJEU may challenge national constitutional principles – and vice versa – helping to alleviate concerns that arise when the CJEU has been overly teleological or purposive in its interpretation of EU law. Constitutional pluralism at the EU level does not just involve the courts. National courts look to national law – including legislation. Member State governments can contribute third-party interventions to the CJEU.

Constitutional pluralism in the UK

Lord Reed, Lord Neuberger and Lord Mance all refer to constitutional principles. For Lord Reed, article 9 of the Bill of Rights 1689 ‘embodies’ a constitutional principle. If a statutory principle can embody a constitutional principle, then this would appear to suggest that this constitutional principle exists independent of its embodiment. It also raises questions as to whether constitutional principles can also be embodied in the common law. Lord Neuberger and Lord Mance also refer to fundamental principles ‘enshrined’ in the Bill of Rights. In addition, ‘[t]he common law itself also recognises certain principles as fundamental to the rule of law’ [207]. They also refer to ‘constitutional statutes’ and ‘constitutional instruments’, both of which appear to be different from ‘ordinary statutes’ and potentially different from one another.

To delineate between different levels of statutes in this manner adds to the confusion already created by the classification of some statutes as ‘constitutional’. Academic debate continues as to what, if anything, is meant by a ‘constitutional statute’ and recent decisions of the Supreme Court appeared to downplay their importance. Rather than adding to the confusion, it may be better to recognise that the English law recognises constitutional principles which can be embodied in statutes – whether classified as ‘constitutional statutes’ or ‘constitutional instruments’, embodied in the common law, or which can act as background principles used when interpreting the common law, actions of the administration and legislation.

To read the decision in this manner is to recognise another example of constitutional pluralism. Parliament enacts the law. Courts interpret its provisions. Parliament can enact legislation embodying constitutional principles. Courts can embody constitutional principles through developing the common law. Courts may also refer to constitutional principles when interpreting executive acts and legislation. In doing so, both the courts and Parliament can check on the potential excesses of the other in a manner similar to the Member States and the CJEU. This is not to argue anything novel – if anything it is to state the obvious. What needs to change is our analysis of constitutional decisions according to a bifurcation between parliamentary and judicial sovereignty and accept that both may assert sovereignty, but neither really is supreme.

 Alison Young is a Fellow and Tutor in law at Hertford College, University of Oxford.

Suggested citation: A. Young, ‘Wilkommen zum Constitutional Pluralism’ U.K. Const. L. Blog (17th February 2014)  (available at  http://ukconstitutionallaw.org/)

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Filed under European Union, Judicial review, UK Parliament, Uncategorized

Alison Young: Horizontality and the EU Charter

young_alison-l2Concerns are often raised as to the impact of EU’s human rights provisions in English law, particularly concerning the impact of the EU’s Charter of Fundamental Rights and Freedoms. How far does the Charter apply and, in particular, can this be used in purely horizontal situations – i.e. where a dispute arises between two private parties and EU law is sought to be used, in and of itself, to impose an obligation on an individual they would not otherwise have but for the effect of EU law? The UK government is currently carrying out a review on the balance of competences between the EU and its Member States. Unfortunately the call for submissions on the EU and human rights closed before the decision of the Grand Chamber of the Court of Justice of the European Union in C-176/12 Association de médiation sociale v Union locale des syndicats CGT (AMS) was delivered on 15 January. Whilst the decision does provide some answers to the complex nature of the application of the Charter in national law, it raises more questions than it resolves.

 AMS concerned the appointment of Mr Laboudi as the local CGT union representative at AMS. AMS is an association in Marseille that implements social mediation measures and measures for the prevention of crime in Marseille. The French law implementing Directive 2002/14, which establishes a framework for informing and consulting with employees, required Unions to designate a representative for firms with 50 or more employees. However, in calculating the number of employees, the French law did not take account of apprentices.  AMS employed 11 full time members of staff and employed between 120 and 170 individuals on ‘accompanied employment contracts’.  AMS argued that those employed on ‘accompanied employment contracts’ were apprentices. Therefore, it had less than 50 employees and CGT were not able to insist on the appointment of a Union representative at AMS. CGT argued that the French law was contrary to the Directive and Article 27 and that they were able to insist on the appointment of Mr Laboudi as their representative. Two questions arose. First, does Directive 2002/14, either by itself or as interpreted in line with Article 27 of the Charter require that those employed on ‘accompanied employment contracts’ be counted as employees for the purposes of the Directive? Second, could the Directive, interpreted in line with the Charter, be used in a dispute between private parties so as to exclude national law?

The first issue was relatively straightforward. The court concluded that the Directive does not permit Member States to exclude certain categories of employees from its provisions. The second issue was more complicated. The provision of the Directive was sufficiently clear and precise to have direct effect. But, as a Directive, it was not capable of having horizontal direct effect: As the union and AMS were both private parties, the Directive could not be relied on. Nor was it possible to interpret the French law in line with the Directive. Any duty to interpret national law in line with Directives reaches its limit when it would require a contra legem interpretation, as would be the case here. The question remains, however, whether Article 27 of the Charter, protecting the worker’s right to information and consultation, could nevertheless apply to this dispute between two individuals.

For the Charter to apply, two hurdles need to be cleared. First, as established in C-617/10 Åkerberg Fransson, it has to be demonstrated that the situation before the court is ‘governed by European Union law’ as the Court of Justice of the European Union ‘has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law’. [paragraph 19, Fransson]. As the French law in question was designed to implement Directive 2002/14, then the case clearly was one that was governed by European Union law. Second, it needs to be established whether the Charter was able to have horizontal direct effect. The answer given is ‘yes – but not always and not in this specific case’. Article 27 requires that ‘[w]orkers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.’. The Court concluded that ‘for this article to be fully effective, it must be given more specific expression in European Union or national law’. [AMS paragraph 45]. Therefore, the Charter could not be invoked in this instance to exclude the operation of national law in a dispute between parties. Nor could the Charter and the Directive operate together to grant horizontal direct effect to the Charter provision and exclude the operation of national law in a dispute between private parties. If the Charter did not have the ability to apply in this manner in and of itself, then it could not acquire this ability by being combined with the Directive [AMS paragraph 49]. So, the only remedy available to the applicant is to invoke the principle of state liability, established in C-6/90 Francovich, to claim damages from the French state for its failure to implement the provisions of the Directive. What is important here is what is not said. At no point did the Grand Chamber state that the provisions of the Charter, like Directives, cannot have horizontal direct effect. This leaves open the possibility that the Charter could be used in and of itself to exclude the application of national law in a dispute between private parties when the Charter provision did not need to be given more specific expression in European or national law.

Which Charter provisions can have horizontal direct effect?

The judgment leaves open more questions than it answers: although we know that the Charter can exclude the application of national law in a dispute between parties, it is hard to know which Charter rights will do so. What we do know from the judgment is that Article 27 is an example of a Charter provision that does not have horizontal effect, whereas Article 21(1) of the Charter, as applied in C-555/07 Kücükdeveci is provided as an example Charter right that is capable of having such an effect [see AMS paragraph 49].

Article 21(1) of the Charter states:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Article 27 of the Charter states:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices

There are two obvious differences between the two Articles. First, Article 21(1) specifically prohibits certain conduct, whereas Article 27 guarantees information and consultation as provided for by Community law or national laws and practices. Second, the Articles are in different Chapters of the Charter. Article 21(1) is in the Equality Chapter and Article 27 is in the Solidarity Chapter. It could be argued that these differences point to the greater clarity and precision to be found in Article 21 as contrasted with Article 27. However it is hard to conclude that clarity is the sole distinguishing feature. Whilst Article 21 may be clearer in that it provides for the protection of a particular right – the right not to be discriminated against on the grounds lists in the Article – there is still uncertainty surrounding its scope. Does it extend to a protection against indirect and direct discrimination and how do we distinguish between these two concepts? Would it be breached if the discrimination occurred because of positive action – e.g. a policy making it easier for people of a particular social origin to enter University courses? How does the law determine the relative comparator to ensure that discrimination does not occur? The difference is perhaps better understood not as turning on the relative clarity of the Charter provisions, but, instead, as to whether the clarification of the scope of the right is regarded as better suited to the judiciary or better suited to the legislature or executive. There may also be a secondary factor of whether the right is one where there should be greater or lesser area of discretionary judgment granted to the national courts as opposed to the European Union. This stems perhaps from Article 27’s reference to ‘national laws and practices’.

Cruz Villalón AG, in his opinion, drew on the distinction between rights and principles to help determine which Charter provisions could have horizontal direct effect. Whilst Charter rights are meant to have the same legal effect as Treaty provisions, principles, according to Article 52(5) of the Charter, ‘may be implemented’ by legislative or executive acts of the Union institutions, or of the Member States when implementing European Union law and are ‘judicially cognisable only in the interpretation of such Acts and in the ruling on their legality’. However, although the Charter draws this distinction, and provides a few examples in the Explanations to the Charter, there is no precise account of this difference. Cruz Villalón AG starts his analysis by remarking that Article 27, as a social right, was a ‘right’ by virtue of its subject matter, but a ‘principle’ by virtue of its operation [paragraph 45]. He was influenced, first, by a similar distinction drawn in the constitutional documents of some of the Member States – Ireland, Spain, France, Austria and Poland – as well as concerns regarding the protection of social and economic rights, which could lead to the judicialisation of public policy. Second, referring to the language of the Charter, he argues that principles impose obligations on public authorities, whereas rights are designed to protect individuals in defined legal situations. Action is needed by the public authority to transform the principle into a defined legal right (paragraphs 50-51]. The wording of Article 27 demonstrates that it is designed to impose an obligation on public authorities. This is confirmed by its content, which is too vague to provide for the specification of a particular Act. Moreover, there were examples of this specification of Article 27 in EU legislation prior to the enactment of the current version of the Charter – including in Directive 2002/14. [paragraphs 54 and 55]. In addition, the Charter provision is found in the ‘Solidarity’ Chapter, classifying it as a social right, which leads to the presumption that the provision is a principle and not a right.  All three factors led Cruz Villalón AG to conclude that Article 27 was best understood as a principle and not as a right.

It is hard to know how much of this analysis of the AG was endorsed by the Grand Chamber. The Grand Chamber makes no reference at all in its judgment to the distinction between rights and principles. Moreover, the Court of Justice reaches an opposite conclusion to Cruz Villalón AG, who advised that Directive 2002/14 could be regarded as the specification of Article 27 by a public authority and that its provisions could then be relied upon in a dispute between private parties, in a manner similar to Kücükdeveci. Yet, despite the differences as to outcome, and the lack of reference to principles, both the court and the AG recognise that Charter rights appear to be more likely to apply to a dispute between private parties if they:

(i)              Are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority

(ii)            Can be understood as the expression of a right that can be relied upon by an individual as opposed to an expression of an obligation to be imposed on a public authority

(iii)           Are not social or economic rights

It is not clear how far any of these criteria are necessary or sufficient to determine the of horizontal application of a Charter provision. They are probably best understood as indications or guidelines.

How should the court make this assessment?

Even if we can provide some clarity as to what may influence the classification of a Charter right as one that can or cannot have horizontal direct effect, it is not clear whether these issues are discussed in the abstract or in relation to the specific facts of the case before the court. Article 27 of the Charter guaranteed worker information and consultation. Article 3 of Directive 2002/14 provides that Member States have a choice between whether the provisions of the Directive apply to firms with more than 50 employees in one Member State, or to firms with more than 20 employees in more than one Member State, and that it is for the Member States to determine how these employee numbers are to be calculated. Consequently, nothing in Article 27 or in Directive 2002/14 provided a clear answer to the factual issue before the court. In the words of the Grand Chamber:

It is not possible to infer from the wording of Article 27 of the Charter or from the explanatory notes to that article that Article 3(1) of Directive 2002/14, as a directly applicable rule of law, lays down and addresses to the Member States a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account in that calculation. [paragraph 46]

This can be contrasted with the situation in Kücükdeveci

 as the principle of non‑discrimination on grounds of age at issue in that case, (author’s emphasis) laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such. [paragraph 47]

                  This reading of the judgment of the Grand Chamber also provides an explanation for the different conclusions of the Court of Justice and Cruz Villalón AG. This, in turn, suggests that the decision of the Grand Chamber may have a wider application than at first appears. Cruz Villalón AG concluded that the Charter could have horizontal direct effect, despite its classification as a principle, because it had been given substance by the Directive. The court concluded that, given that Article 27 did not have horizontal direct effect in and of itself, it could not have horizontal direct effect when applied in combination with Directive 2002/14 [paragraph 49]. This would appear to imply that, for the Grand Chamber, a Charter provision that is not sufficiently clear and precise can never have horizontal direct effect in and of itself. Even if a Directive were enacted to implement an unclear Charter provision, the Charter, in combination with the Directive, could not have horizontal direct effect.  However, if we interpret the Grand Chamber’s comments as relating to the specific issue before the court, a different conclusion is reached. If a Directive were to add to an unclear Charter right in a manner that did provide an answer to the specific question before the court, even if the Directive did not clarify all applications of the unspecific Charter right, then it may be that the Charter as applied through the Directive can have horizontal direct effect in a manner similar to Kücükdeveci. Therefore there may be two situations in which the Grand Chamber would grant horizontal direct effect to a Charter provision:

(i)              When the Charter provision is sufficiently clear and precise

(ii)            When the Charter provision is not sufficiently clear and precise, but nevertheless the Charter in addition to a Directive related to the Charter provision provides an answer to the specific question before the court.

Is ‘clarity’ enough?

The judgment of the Grand Chamber appears to focus predominantly on whether the Charter right is sufficiently clear and precise to have horizontal direct effect. Yet, this question is relevant not just to horizontal direct effect, but to direct effect more generally. Any provision of European Union law needs to be sufficiently clear, precise and unconditional if it is to have direct effect at all. This need not mean that an assessment of whether a Charter provision can have horizontal direct effect adds nothing to our assessment of whether it can have direct effect. But it does lend further grist to the mill in support of reading the decision of the Grand Chamber as one that distinguishes between Charter provisions that require specification from further legislative acts as opposed to merely focusing on their clarity and specificity. However, there is still one assessment missing from the Grand Chamber’s assessment that is present in the opinion of Cruz Villalón AG – whether the Charter provision is one that is suitable for application between private parties. For Cruz Villalón AG this was the case for Article 27 of the Charter. Article 27 refers to worker’s rights. Therefore it is clearly suitable for horizontal application. The objective of the Article would not be achieved if private employers were not meant to be subject to its obligations, once these were fleshed out by the action of public authorities of the EU or the Member States.

This issue of ‘suitability’ for horizontal application should be a necessary, albeit not a sufficient, component of the assessment of whether a Charter provision should have horizontal direct effect. Horizontal direct effect operates to impose obligations on private individuals. It is precisely this element that creates concerns as to the horizontal application of human rights. To impose an obligation on an individual in this manner may be problematic if the individual herself has human rights that could potentially conflict with her obligation to uphold the human right of another. This is not to argue generally against horizontal direct effect of Charter provisions. Nor is it an argument against the horizontal direct effect of Charter provisions that could give rise to conflicts between different human rights. However, it is an argument for further assessment of the need for care when assessing whether a Charter provision should have horizontal direct effect. Where the imposition of obligations on individuals could give rise to human rights conflicts there may be a greater need to ensure that these potential human rights conflicts have been taken into account through the specification of particular duties on private individuals by the legislature of the EU or by the legislature or judiciary of Member States that may be more aware of the relative importance of different human rights in their particular Member State.

Conclusion

The decision of the Grand Chamber in AMS paves the way for the potential horizontal application of Charter provisions, with the possible disapplication of national laws in disputes between private parties when these disputes occur within the sphere of European Union law. It is not clear from the decision whether this will apply to the vast majority, or merely a minority of Charter provisions. I would argue that Charter provisions should be capable of having horizontal direct effect, but that this should be limited to Charter provisions that:

(i)              are suited to imposing obligations on private parties, and

(ii)            are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority, or

(iii)           are sufficiently clear and precise when applied in combination with a Directive to provide a clear answer to the specific issue before the court

It remains to be seen how far the decision in AMS will be applied in the future; but the case does illustrate the potential for the Charter to play a more important role in the protection of human rights than the Human Rights Act 1998, in particular as the former may provide for the disapplication of legislation whereas the latter does not. Whether this will occur in practice remains to be seen.

Alison Young is a Fellow and Tutor in law at Hertford College, University of Oxford.

(Suggested Citation: A. Young, ‘Horizontality and the EU Charter’  U.K. Const. L. Blog (29 January 2014) (available at http://ukconstitutionallaw.org).

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Mark Elliot: Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified primacy of EU law

mark1Earlier this week, the UK Supreme Court gave judgment in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3. A good overview of the issues at stake in the case can be found in the Court’s press summary, as well as in a post by David Hart on the UK Human Rights Blog. This post is concerned only with one aspect of the decision, and with some very interesting dicta concerning not only the relationship between UK and EU law, but the nature of the UK’s constitutional order itself.

The issue raised by the case that is of relevance to this post can be stated (for these purposes) relatively straightforwardly. EU Directive 2011/92/EU lays down requirements concerning the way in which Member States must make certain decisions, including the decision concerning the construction of the proposed “HS2” high-speed rail network. The question for the Supreme Court was whether the process to be adopted in relation to the HS2 project will be compliant with the Directive—and, in particular, whether it will facilitate the degree of public participation called for by the Directive. Unusually, the decision concerning HS2 is to be taken not by administrative means, but by way of the enactment of a “hybrid Bill” (which is now before Parliament). Lord Reed—whose judgment on this aspect of the case commanded the support of the other six Justices—explained what is meant by a “hybrid Bill”:

The Speaker has defined a hybrid bill as “a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class” (Hansard (HC Debates), 10 December 1962, col 45). This hybrid character influences the Parliamentary procedure: a hybrid bill proceeds as a public bill, with a second reading, committee report and third reading, but with an additional select committee stage after the second reading in each House, at which objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the bill and be heard. Parliamentary standing orders make provision for those persons who have standing to lodge a petition.

Whether this process passed muster according to the Directive appeared to require the Supreme Court to assess the adequacy of parliamentary procedure, using the Directive as a benchmark. Lord Reed observed that such scrutiny of the legislative process might impinge “upon long-established constitutional principles governing the relationship between Parliament and the courts, as reflected for example in article 9 of the Bill of Rights 1689”. In fact, Lord Reed concluded that the Directive did not require scrutiny of a constitutionally-problematic kind, but he went on to consider (briefly) what would have happened if that Directive had called for such scrutiny. He concluded that objections to the constitutional propriety of close judiciary scrutiny of the legislative process would not be capable of being resolved simply

by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the [European Communities Act 1972]. If there is a conflict between a constitutional principle, such as that embodied in article 9 of the Bill of Rights, and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom. Nor can the issue be resolved, as was also suggested, by following the decision in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603, since that case was not concerned with the compatibility with EU law of the process by which legislation is enacted in Parliament.

At one level, this dictum merely serves as a reminder that—as section 18 of the European Union Act 2011 reminds us—the effectiveness of EU law within the UK legal system is ultimately attributable to, and a function of, the European Communities Act 1972. At another level, however, Lord Reed’s comment implies that EU law’s position within the UK system falls to be determined not only by reference to the bald terms of the ECA 1972, but also by reference to other features of the domestic constitutional landscape with which EU law might conflict, and which might therefore constrain the domestic applicability of constitutionally-suspect EU norms.

And this, in turn, suggests that the domestic status accorded to EU law is a matter which is too complex to be resolved by reference to the binary distinction drawn in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) between “constitutional” and “ordinary” legislation. According to that analysis, the fact that EU law enters the domestic system via gateway provisions enshrined in constitutional legislation secures primacy for EU in the absence of specific derogation from it in other primary legislation. But while Thoburn suggested that not all legislation is equal, it left unconfronted the question whether the hierarchy of statutes it envisaged is exhausted by the constitutional/ordinary distinction: whether, in other words, all constitutional legislation is equal in status.

The intriguing possibility that all constitutional legislation might not be equal—that there might be an ordering of constitutional norms and statutes more subtle that which is afforded by the binary framework of Thoburn—is given further succour by the joint concurring judgment of Lords Neuberger and Mance (with which the other five Justices agreed).  Lords Neuberger and Mance considered in more detail than Lord Reed the constitiutional implications of the claimants’ contention that the Directive required close judicial assessment of the adequacy of the legislative procedure adopted by Parliament, so as to bring the requirements of the Directive into tension with the constitutional principles, referred to above, concerning the proper relationship between the courts and the legislature. Lords Neuberger and Mance observed that:

Article 9 of the Bills of Rights, one of the pillars of constitutional settlement which established the rule of law in England in the 17th century, precludes the impeaching or questioning in any court of debates or proceedings in Parliament. Article 9 was described by Lord Browne-Wilkinson in the House of Lords in Pepper v Hart [1993] AC 593, 638, as “a provision of the highest constitutional importance” which “should not be narrowly construed”.

Could an EU Directive require domestic courts to set aside such a fundamental principle? Lords Neuberger and Mance doubted this. They observed that, in Factortame, the House of Lords had taken the ECA 1972 to require courts to treat as “invalid” domestic legislation found to be incompatible with EU law. (I pass over, for present purposes, fact that the House of Lords in Factortame in fact said no such thing, and merely held that domestic legislation could be disapplied to the extent of any inconsistency with EU law.) However, according to Lords Neuberger and Mance, it does not follow from Factortame that the ECA 1972 requires national courts to accord primacy to EU law over all domestic law:

The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

This analysis does not dissent from the basic idea, mentioned above, that EU law’s status within the domestic system is attributable to, and therefore determined and potentially circumscribed by, the ECA 1972. That was the point which Lord Bridge was at pains to make in Factortame, albeit that the sparseness of his analysis reduced the proposition to one of (prudent) judicial politics rather than high constitutional analysis. The Thoburn case placed some intellectual meat on the doctrinally skeletal Factortame decision by seeking to explain Parliament’s capacity to accord primacy to EU law—including in relation to legislation enacted after the ECA 1972—given its supposed inability to bind successor Parliaments. Thoburn did that by characterising the ECA as a constitutional statute that was immune from implied repeal, such that later legislation that was inconsistent (but not explicitly inconsistent) with EU law would cede priority to the ECA and hence to the EU law to which that Act gives effect.

However, the analysis of Lords Neuberger and Mance in the HS2 case goes further. It introduces the notion that not all constitutional measures are equal. (I use the term “measure” in order to encompass both constitutional legislation and common-law constitutional principles.) Instead, the analysis suggests that some constitutional measures are more fundamental than others, and that Parliament—in a given constitutional measure, such as the ECA—should not lightly be taken to have intended the abrogation of some other, perhaps more fundamental, constitutional measure. On this view, whilst—according to Thoburn at least—ordinary legislation will always (unless explicitly inconsistent) yield in the face of constitutional legislation, the relationship between constitutional statutes is a complex one that turns upon the fundamentality of the norms they respectively enshrine. Equally, on this view, the constitutional nature of a statute should not be taken to establish that it necessarily prevails over a common-law constitutional principle, the fundamentality of which might outstrip that of the constitutional statute (or, more precisely, the relevant provision contained in the statute).

This analysis has practical implications for the primacy of EU law. It has always been clear that that primacy is qualified in the sense that, as a matter of domestic constitutional law, Parliament is free to derogate from EU law provided it makes its intention sufficiently clear. However, the views advanced by Lords Neuberger and Mance in HS2 suggest that the primacy of EU law within the UK system may be more qualified than has so far been appreciated. In particular, it suggests that the “constitutional” status of the ECA does not conclusively establish that EU law prevails over everything except an explicitly-inconsistent Act of Parliament. Instead, the extent of EU law’s qualified primacy is, on this analysis, delimited by other constitutional measures—including (some) other “constitutional” legislation, and perhaps (some) common-law constitutional rights and principles—whose claim to constitutional fundamentality may prove more compelling than that of the ECA itself.

Moreover, the HS2 analysis has implications extending well beyond our understanding of the status of EU law within the UK legal system. In the judgments of Lords Neuberger and Mance and (to a lesser extent) Lord Reed, we find the seeds—at the highest judicial level—of a vision of the British constitution substantially at odds with Diceyan orthodoxy. Dicey—who famously said that “neither the Act of Union with Scotland nor the Dentists Act 1878 has more claim than the other to be considered a supreme law”—envisaged a constitutional landscape of unrelenting normative flatness, in which hierarchical considerations were limited to the purely formal (Acts of Parliament prevailing over the common law, primary legislation over secondary). In contrast, the HS2 judgment envisages a far richer constitutional order in which the differential normative claims of constitutional and other measures fall to be recognised and calibrated in legal terms. None of what is suggested in HS2 is wholly novel: it is over a decade since Thoburn introduced the notion of constitutional legislation, and the idea of common-law constitutional rights has been around for substantially longer. Nor can the inchoateness of the constitutional vision presented in HS2 be denied. It is, nevertheless, highly significant that a seven-Justice Supreme Court has endorsed an analysis of the constitution that is so un-Diceyan. Some will see HS2 as a judgment that puts EU law in its proper constitutional place. But by putting the constitution itself in its proper place—as a subtly-ordered body of law that occupies a distinctive position within the hierarchy of legal norms—the implications of HS2 may have more profound implications.

Mark Elliott is Reader in Public Law at the University of Cambridge. This post originally appeared today on Dr. Elliot’s blog Public Law for Everyone.

Suggested citation: M. Elliott, ‘Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified primacy of EU law’  U.K. Const. L. Blog (23rd January 2014) (available at http://ukconstitutionallaw.org).

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Nick Barber: After the Vote

Nick1At 650 pages Scotland’s Future  is not a light read.  It stands as the Scottish Government’s manifesto for a yes vote in the independence referendum.  The volume ranges from profoundly important questions relating to currency and Scotland’s membership of the European Union, right down to weather-forecasting and the future of the National Lottery.  Though it is likely many copies of Scotland’s Future will be printed, it is unlikely many will be read from cover to cover.  Its authors probably do not regret its length: by its very heft, the volume seeks to rebut claims that the consequences of independence have not been carefully thought through.  This post considers the immediate constitutional consequences of a yes vote in light of Scotland’s Future.  Its central argument will be that the timescale proposed by the Scottish Government for independence following a referendum is unrealistic, and may work against the interests of an independent Scotland.

Scotland’s Future sees a rapid move to independence after the vote.  The referendum will be held on the 18th of September 2014, and negotiations with the UK and the European Union will start shortly after.  The Scottish Government foresees that these negotiations will be completed by March 2016, 18 months later, and has picked 24th March 2016 as the day on which Scotland will become sovereign.   The first elections in an independent Scotland will be held on 5th May, 2016.  This is the date on which elections for the Scottish Parliament are to be held under the current devolution settlement.

So the key dates are:

18th September 2014: Referendum

 7th May 2015: Likely Date of General Election in United Kingdom (including Scotland)

 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5th May 2016: Elections to Scottish Parliament

There are two groups of negotiations that Scotland will need to engage in before March 2016: with the UK and with the European Union.  Each of these will be considered in turn.

Negotiations with the UK

The first question to be asked is who, exactly, will negotiate on behalf of the two territories.  The answer for the Scottish side is comparatively easy.  The Scottish White paper specifies that there will be a ‘negotiating team’ appointed, which will be led by the First Minister and include members from a number of political parties in Scotland and ‘public figures’ (p.72).  The Scottish Parliament will scrutinize the process as it progresses – a scrutiny that may complicate matters if, or rather when, difficult concessions need to be made.

Whilst there are still questions to be answered about the composition of the Scottish negotiating team – about the manner of their selection, approval, and, indeed, how this group of previously antagonistic politicians will manage to work as a ‘team’ – these can probably be resolved relatively quickly.  The United Kingdom’s representatives may prove harder to organise.  The principal, but not sole, reason why this may prove tricky is the General Election that will be held in May 2015.

The United Kingdom’s 2015 General Election is likely to impact on negotiations in a number of ways.  First, it makes it unlikely that much serious negotiating will be undertaken in the period between the referendum and the election.  The politicians responsible for the negotiations are likely to be distracted.  The Coalition Government will probably become weaker and more fragmented as the Conservative and Liberal parties seek to present distinct political identities to the public.  It will become steadily more difficult for the UK Government to act in a coherent manner. The looming election will also make meaningful compromise harder: no English politician will want to be seen making concessions to Scots just before an election.  But even more importantly, it will be the 2015 General Election that will determine which party, or parties, will lead the negotiations.  Whilst the negotiators for the UK are likely to be drawn from across the party spectrum, negotiations will be led by a representative of the governing parties: the Prime Minister will probably assume ultimate responsibility for the process.  Furthermore, just as the Scottish Parliament will review and, ultimately, approve the agreement on the Scottish side, the UK Parliament will play a similar role on the UK side.  Under our existing constitution, the final decision about Scottish independence rests with the UK Parliament, which will confer sovereignty on Scotland through a statute.  The agreement reached between the Scottish and UK negotiators must be one each Parliament is willing to endorse.  The political complexion of the 2015 Parliament may, then, be crucial in shaping the course and outcome of negotiations.

The 2015 General Election may raise further difficulties for the course of the negotiation.  Whilst it would make sense for negotiations to be held between Scotland and the remainder of the UK (that is, the UK less Scotland), no such constitutional entity exists.  The UK side of the negotiations will – nominally – include Scotland.  The 2015 UK Parliament will still represent, and sometimes legislate for, the whole of the UK.  The 2015 UK Government will still be responsible for the well-being of the whole of the state.   This will not prove a significant problem if the 2015 election produces a Government with a majority in England.  Then these constitutional conundrums can be ignored: Scottish MPs will have only limited impact in the UK Parliament, and negotiations can continue as if the UK representatives acted for those parts of the Union outside of Scotland.  Far more difficult, though, if after the 2015 election Scottish MPs hold the balance of power in the House of Commons. It could be that, for instance, Labour will gain a majority of seats in the Commons because of the support of Scottish Labour MPs.  If so, the conduct of the UK side of the negotiation may be partly, if indirectly, determined by Scottish MPs, and the product of the negotiations may require the support of Scottish MPs to become law.     And this balance of power would, of course, provide a further incentive for the UK representatives to slow down the pace of negotiations: once Scotland became independent, Scottish MPs would cease to sit in the UK Parliament.  If the governing party required the support of these MPs for its majority, it would lose control of the Commons and could, potentially, either be compelled to stand aside or hold a further election.

Perhaps in response to these worries the SNP has suggested that the UK General Election be postponed for a year.  This is a constitutional possibility, though a tricky one.  Postponing the election would require Parliament to repeal or circumvent the Fixed-term Parliaments Act 2011 and the support of the Commons alone would not be enough as the bill could still be vetoed by the House of Lords.  Parliaments have extended their own lives in the exceptional circumstances of World War I and World War II, but it is doubtful that the Scottish independence referendum – important though it is – presents a crisis of this intensity.  Furthermore, even if the General Election were postponed by a year, there is no guarantee that negotiations would be concluded within this timeframe.

A second reason why the negotiations will probably take longer than the Scottish Government hopes is that the UK side lacks an incentive to speed the process along.  Reading Scotland’s Future it is hard not to be struck by how many issues will need to be negotiated.  Once negotiations start, Scotland will be dealing from a position of comparative weakness.  The two things that Scotland will need in order for independence to be a success in the short and medium term – use of sterling as a currency and membership of the European Union – are both in the gift of the UK.  The UK ought to conduct negotiations in a positive and generous manner – it is in everyone’s long-term interest that Scotland becomes a prosperous and stable country after independence – but it should also ensure that the result protects the interests of those UK citizens outside Scotland.  Scotland’s Future proposes that the Bank of England will become Scotland’s lender of last resort, set the interest rates for both Scotland and the remainder of the UK, and determine monetary policy for the area.  Scotland would then require a share of ownership and control over the Bank.  Though Scotland’s Future suggests otherwise, it is likely that a corollary of this is that a great deal of financial regulation will also be undertaken at the British level: if the Bank of England is to act as lender of last resort, it will also want to have some control over financial regulations that mitigate the risks run by Scottish institutions.  Whilst the Bank of England might be the most important institution an independent Scotland would hope to share with the rest of the UK, it is not the only body that SNP plans to retain.  The Scottish white paper also suggests that around 30% of cross-border bodies will continue to provide services in Scotland (p. 363): once again, Scotland will wish to exercise a share of control over them.     Though it is plainly in the interests of Scotland to retain the pound and make use of the Bank of England and these other bodies, it is harder to see why it would be in the interests of the remainder of the UK to allow this.  Allowing Scotland a share in control of these bodies will reduce the control that citizens of the UK can exert over them: it is an open question why the UK should, or, more importantly, would, accept such a limitation on its sovereignty.  The two key cards held by the Scottish negotiators – allowing nuclear weapons to remain in Scotland and taking a share of the national debt – will need to be judiciously played.

Scotland’s negotiating position will be further harmed by its commitment to a rapid agreement.  The remainder of the UK could happily continue negotiating for years, Scotland’s Future proposes an agreement within 18 months.  Deadlines can be a useful part of a negotiating process, but only if both sides agree to adhere to them.  If – as is probably the case – an agreement takes longer to reach, the Scottish Parliamentary Election of 2016 presents a further challenge.  It is the looming presence of this election that may explain the SNP’s desire for a hasty settlement.  The 2016 election could complicate matters by returning a different government to Scotland – perhaps even a government that no longer supported independence.  This might provide an incentive for the UK negotiators to delay an agreement, hoping, perhaps, for an easier negotiating partner.  On the other hand, this risk may induce the Scottish team to make concessions to secure a quick agreement.

Negotiations with the European Union

In the previous section I noted that Scotland’s membership of the European Union would depend, in part, on the support of the UK.  The UK – like all other members of the EU – would possess the power of veto over Scotland’s application.  It is not in the UK’s long-term interests to deny Scotland membership of the EU, but its support cannot be assumed: Scotland’s membership of the European Union will be an important part of the negotiating process.

The relationship of a newly independent Scotland to the European Union is far from clear.  Whilst there was some early talk that Scotland would automatically become part of the EU on independence, Scotland’s Future accepts that there will need to be an amendment of the treaties for Scotland to join.  The normal processes through which a country applies for membership of the EU are found in Article 49 of the Treaty on European Union.  Scotland’s Future argues that this would be an inappropriate process to impose on Scotland, contending that Scotland, and its people, are already within the Union.  If Article 49 were insisted upon – either by the EU institutions or by any of the Member States – it seems that Scotland would have to gain independence before applying to join.  There would then be a problematic gap between independence and membership of the EU.  Scotland’s Future contends that, instead of Article 49, Article 48 would be the more appropriate mode to amend the Treaties to enable Scotland’s membership.

It is worth looking at Article 48 in a little more detail.  It reads, so far as is relevant:

 Article 48:

 1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

 Scotland’s Future claims that this process could be undertaken and completed within 18 months.

A number of points arise out of Article 48.  The most striking point is that, on the face of it, Article 49 would appear the more appropriate mechanism for Scotland’s application.  Article 49 deals with new countries wishing to join the EU, Article 48 relates to treaty amendments that alter the powers of the EU. Even if Article 48 is used, however, it is likely that the process of treaty amendment would still be a lengthy one.

First, the Scottish Government would have to secure the competence to negotiate with the EU, and perhaps other Member States, from Westminster.  Second, the Scottish Government, whilst Scotland was still a part of the United Kingdom, would have to persuade the Council that it was entitled to make use of Article 48, despite Article 48 being confined to governments of Members States.  Then, thirdly, preliminary negotiations would begin with the European institutions, and Member States, before a formal proposal was presented to the Council.  Fourthly, the Council, in its turn, would then send the proposal to the European Council (comprising the Heads of State of the Member States and the President of the European Council) and notify the European Parliament.  Fourthly, if a majority of the European Council were disposed to consider the amendments further, the proposal would be put to a Convention or directly to a Conference consisting of representatives of the governments of Member States.  The former, the Convention, is used if the amendments seem of wide significance, and would require assembling representatives from a broad range of institutions to deliberate and debate the proposals.  The latter, the Conference, can be engaged directly if the reforms are more limited.  It is likely that Scotland’s application – which would affect the composition of the European Parliament, the Commission, and the Court – would require the summoning of a Convention.  In any event, the proposal would then have to be agreed by a Conference of representatives of the governments of Member States.  Fifthly, and finally, the amendments would then have to be ratified by those Member States.   This would probably require a referendum in France and perhaps in some other states too.  Most Member States would require that the amendments be ratified by their legislatures before becoming effective. Then – after the amendments had been ratified by all of the Member States – Scotland would be able to join the European Union.

The last paragraph made for heavy reading.  I do not claim to be a specialist in European Law, but to assume that the Article 48 procedure could be completed within 18 months seems laughably optimistic:  three or four years seems a more plausible timeframe.  Even this makes a number of assumptions.  It assumes that the difficult issues that Scotland must negotiate are quickly agreed.  It assumes that other countries – in particular Spain – do not block or slow Scotland’s application.  And it assumes that the EU is willing to undertake a discrete treaty amendment process to speed Scotland’s membership – and does not seek to include Scotland in the next round of EU expansion.

Whilst the timeframe of Scotland’s Future is unrealistic, it is highly likely that Scotland would be able to join the EU before 2020.  It is in no-one’s interest to exclude Scotland from the Union.  If, as is almost certainly the case, Scotland cannot complete the Article 48 process before the 2016 deadline, it is conceivable that some sort of international agreement could be reached between Scotland and the EU to preserve Scotland’s legal position.  Perhaps Scotland would then be treated a little like Norway: possessing many of the privileges and duties of EU membership, but not able to return MEPs to the European Parliament or appoint Commissioners.

Conclusion

The contention of this post has been that the timescale set by Scotland’s Future is unrealistically tight, and likely to harm Scotland in a number of ways.  There would be benefits to a slower process of negotiation, one which was planned to last four or five years.  Aside from giving Scotland more leeway in negotiations with the UK and more time to allow the treaty amendment process to run its course in Europe, this would also permit Scotland to start the process of formulating a new constitution prior to independence.  Scotland’s Future proposes that a Constitutional Convention be held sometime after the first elections in 2016, following independence.  But if Scotland waits for independence to begin this process it is likely that many of the fundamental aspects of the new Scottish Constitution will have been settled – Scotland’s currency, aspects of its economic policy, and its relationship with the EU are only the most obvious of the questions that will have been resolved by this point.  Other matters that a Convention might want to consider – the role of the Queen and the continuation of the Human Rights Act, for example – will already be part of Scotland’s provisional constitution, and may prove hard to shift.  There is a danger that, like Israel before it, Scotland will find it easier to muddle through with this provisional constitution rather than produce a fresh constitutional document.

Finally, a benefit of running these three processes in parallel is that a further referendum could then be held prior to independence. This second referendum would stand as a ratification of the agreement with the UK (a ratification that, the Constitution Unit argues, is needed to approve the deal), as a vote to join the European Union, and, finally, as an approval of Scotland’s new constitution.  Each of these three issues presents a strong argument for a second vote.

Nick Barber is University Lecturer in Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the  Vote’  U.K. Const. L. Blog (14th January 2014) (available at  http://ukconstitutionallaw.org).

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Scott Stephenson: The Future of Rights Reform in the Age of the Referendum

stephenson_scottIn the last fortnight, two major pieces of constitutional reform returned to the political agenda. The House of Commons considered Conservative MP James Wharton’s private Member’s Bill that would provide for a referendum on whether the UK should remain a member of the EU. The Bill, according to Prime Minister David Cameron, will have ‘the full support of the Conservative Party’. Several days later, senior members of the Conservative Party made statements indicating that the Party would make ‘wholesale changes’ to the country’s system of human rights protection if it obtains a majority in Parliament at the next election. Proposed changes include repeal of the Human Rights Act and withdrawal from the European Convention on Human Rights. In this post, I consider whether the former might have implications for the latter—whether the rise of the referendum could and/or should affect the future of rights reform in the UK.

As is well known, no special procedure is required to amend the UK’s constitutional system. Even significant changes, such as curtailing the House of Lords’ powers and subjecting UK law to European Community law, can occur by ordinary legislative enactment. As a matter of formal law, this position continues undisturbed. Yet the referendum is now a prominent feature of the country’s constitutional landscape. As Wharton told the House of Commons on 5 July, ‘we live in the age of the referendum’. Since the 1970s, referendums have been held on a range of areas of significant constitutional reform: membership of the European Community, devolution, local government and the electoral system. Political imperatives typically lie behind the announcement of a referendum—to maintain party unity, to secure the agreement of a coalition partner, to appear to be taking action on an issue and so forth. Nevertheless, political events can produce constitutional change (e.g. the Salisbury Convention). The UK constitution’s uncodified character renders it particularly susceptible to such modification. Has, therefore, the increasing resort to referendums shifted the normative and political benchmarks for significant constitutional reform?

Historically, popular fidelity to the UK’s constitutional system could not be ascribed to direct involvement in its creation and renewal (e.g. the Australian Constitution’s referendum requirement) or strong, widespread identification (e.g. perceptions of the United States Constitution as ‘our law’ or the country’s ‘civil religion’). Employing Grażyna Skąpska’s terminology, Mark Tushnet wrote that the UK offers a ‘good model’ of ‘grassroots constitutionalism’ by which he means that constitutional ‘loyalty or enthusiasm … arises from performance, not process’. ‘If comitology produces the (constitutional) goods’, Tushnet said, ‘grassroots constitutionalism posits that the citizenry will not care how that comes about’. The advent of the referendum casts doubt on this characterisation. Today, process arguably plays a substantial role in legitimating major constitutional decisions about, for instance, devolution. Could one plausibly posit that the citizenry does not care how future changes to the composition of the UK come about? Whether the Scots are given a say on Scottish independence or not? Indeed, UK governments initiate referendums precisely for their process-based qualities—that referendums are capable of engendering enthusiasm for and enhancing the legitimacy of constitutional decisions.

To be sure, a process of popular ratification does not remove performance as a source of legitimation as current debate about membership of the EU demonstrates. The 1975 referendum has not stopped citizens and politicians from seeking to revisit the issue as a result of dissatisfaction with how the EU is affecting the UK and its ability to govern. Tellingly, however, it appears that a decision to withdraw will not be made without first complying with a particular process: another referendum. It might be said, therefore, that an unwritten standard of conduct—a constitutional norm—is under development in respect of the process to be followed for future decisions of significance on devolution and EU membership.

How might, and should, the growing importance of process affect the future of rights reform? The protection of human rights is an area of constitutional law no less important than devolution or EU membership. A decision to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights could not be dismissed as a minor or technical constitutional matter. Reform may raise subtle questions of law concerning the role of courts—their powers and interpretive techniques—and the difference between UK and European forms of judicial oversight. Yet these issues are no more taxing than questions of independence, which involve a complex admixture of cultural, economic and political factors, and systems of voting, which involve nuanced differences between first-past-the-post and alternative vote.

One might argue that human rights issues should not be put to a referendum due to the risk of majoritarian abrogation of minority rights. Yet no single structure for the protection of human rights is incontrovertibly the most legitimate and effective as the debates between legal and political constitutionalists indicate. This reasonable disagreement about questions of structure counsels for, not against, a process of popular involvement. Even within the realm of judicially enforced rights instruments there is significant scope for differences of opinion—and thus democratic resolution—on the rights that should be included as well as the respective powers and responsibilities of the three branches of government.

Should the age of the referendum be viewed as a welcome development? Stephen Tierney notes that the mechanism ‘can carry very substantial risks to democratic constitutionalism itself’. He states that the power to initiate referendums can empower the executive ‘to achieve [its] political goals by manipulating an unreflective and ill-informed electorate into voting for a particular proposition’. Ireland’s current experience with the proposed abolition of its upper house demonstrates how a referendum can be used to narrow and distort the terms of debate on constitutional reform. The risks are particularly acute in the context of human rights where there is a prevalence of scare tactics and misinformation. Yet if the government proposed, or a sector of civil society campaigned for, a referendum in connection with a major decision on rights reform, it would be difficult to argue that the people do not have the right to have a say on an issue of such importance. Such arguments will become even more difficult if a constitutional norm develops requiring significant reform decisions in other areas such as EU membership to be made by referendum.

 Scott Stephenson is a J.S.D. Candidate and Tutor in Law at Yale University

 Suggested citation: S. Stephenson, ‘The Future of Rights Reform in the Age of the Referendum’ UK Const. L. Blog (17th July 2013) (available at http://ukconstitutionallaw.org)

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Dorota Leczykiewicz: Melloni and the future of constitutional conflict in the EU

leczykiewicz_dorotaConstitutional conflict is a leitmotif of the relationship between EU law and national law. Courts of EU Member States are under a dual obligation of loyalty. On the one hand, they need to apply and respect their own laws, but on the other, they also need to ensure effectiveness of norms of the EU legal order. In the event of conflict, the principle of supremacy of Union law tells them to disapply conflicting national rules. Member States’ courts to a large extent accept that obligation, although they usually exclude from its ambit conflicts between EU law and state constitutions. For this reason, the best tactic for the Court of Justice of the EU is to avoid situations where EU law would require from national courts to act in violation of the state constitution. The Court of Justice has developed various techniques to deal with such instances of potential constitutional conflict. The controversial issue may be brought outside the scope of EU law (Grogan), EU law may be recognised to protect the same constitutional right and to the same far-reaching extent (Omega Spielhallen), or the principle of respect for national identity, as laid down by Article 4(2) of the Treaty on the European Union, may be used to allow national norms to remain applicable even when they undermine effectiveness of an EU norm (as I discuss here). In a recent judgment in the Melloni case(Case C-399/11, Judgment of 26 February 2013) the Grand Chamber of the Court of Justice of the EU decided not to use any of these techniques. Instead an EU Framework Decision was held to prevail over the Spanish Constitution.

Mr Melloni, while present in Spain, was facing trial for a bankruptcy fraud before an Italian court. A Spanish court authorised his extradition to Italy but in the same time released him on bail. Mr Melloni fled and never appeared before the Italian court. The trial took place in his absence, although in the presence of lawyers that Mr Melloni had himself appointed. Mr Melloni was convicted. The decision was upheld by all levels of Italian judiciary. Some years later Mr Melloni was arrested by the Spanish police. In 2008 a European Arrest Warrant was issued by the Italian court requesting Spanish authorities to surrender Mr Melloni. The Spanish court authorised the surrender, after which Mr Melloni lodged a petition for a constitutional protection before the Spanish Constitutional Court. He claimed that if he was surrendered to Italy Article 24(2) of the Spanish Constitution guaranteeing the right to a fair trial would be violated. The right to a fair trial, as protected by the Spanish Constitution, entailed that he should not be surrendered without Spain imposing on Italy a condition that he would be able to challenge the result of his Italian trial, a possibility which did not exist under Italian law.

The right to a fair trial

Melloni may be read as a case concerning merely the scope of the right to a fair trial. Should Mr Melloni have a possibility to ask for a retrial in Italy? Does the fact that he chose his lawyers and was represented by them during a trial from which he was absent justify his surrender to Italy to execute a custodial sentence even if he was unable to ask for a retrial? The European Arrest Warrant (EAW) Framework Decision (2002/584 as amended by Framework Decision 2009/299), on the basis of which Mr Melloni’s surrender would take place, does offer some protection to the right to a fair trial. It provides that the executing judicial authority may refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence if the convicted person did not appear in person at the trial. This discretion is however excluded in three sets of circumstances, including when the person was summoned in due time and informed that a decision might be handed down if she did not appear for the trial, or she had given a mandate to a legal counsellor to defend her at the trial and was so defended. In these circumstances, the national court is under an obligation to execute the European arrest warrant and is not allowed to impose any additional conditions. In comparison, the Spanish Constitutional Court interpreted Article 24(2) of the Spanish Constitution to mean that extradition to countries which allow convictions in absentia without making surrender conditional upon the convicted party being able to challenge the conviction would be ‘an ‘indirect’ infringement of the requirements deriving from the right to a fair trial’. It follows that the protection offered by the Spanish Constitution is broader than that offered by the EAW Framework Decision. It is also worth noting that the Spanish Constitutional Court made no attempt to interpret Article 24(2) restrictively so as to avoid conflict with EU law. The direct incompatibility between the Spanish Constitution, as interpreted by the Spanish Constitutional Court, and the EAW Framework Decision meant that Spanish authorities had no way of reconciling their obligations stemming from EU law, on the one hand, and national law, on the other. The limits of the principle of EU law supremacy were to be tested once again.

Supremacy and fundamental rights, yet again…

The conflict between the EAW Framework Decision and the Spanish Constitution led the Spanish Constitutional Court to ask the Court of Justice of the EU for interpretation of obligations of national courts under EU law. Three points should be made here. First, the EAW Framework Decision harmonises exhaustively the grounds on the basis of which recognition of decisions of courts of other Member States following a trial at which the person concerned did not appear in person may be refused. Secondly, the right to a fair trial is in the EU legal order a ‘fundamental right’, now guaranteed also by the Charter of Fundamental Rights (Article 47). Thirdly, the Charter includes a provision according to which ‘Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law … and by the Member States’ constitutions’ (Article 53).

The Court’s judgment in Melloni is clearly motivated by the desire to protect the EAW regime and its effectiveness. The Charter right to a fair trial is interpreted narrowly to ensure that the regime is compatible with it. The objective of the EAW Framework Decision, which is the improvement of mutual recognition of judicial decisions, is held to justify the restrictions imposed on national courts’ competence to refuse the execution of a European arrest warrant in a situation where the person being surrendered is unable to apply for a retrial. Yet, this conclusion is reached by the Court without any proportionality review, which raises questions as to compatibility of the Court’s reasoning with Article 52(1) of the Charter. The standard of protection of the Charter right to a fair trial is in this context the same as that defined in the Framework Decision. National constitutions are denied any role in the interpretation of the Charter right. According to the Court, national authorities and courts can apply national standards of protection of fundamental rights, a possibility envisaged by Article 53 of the Charter, only is so far as ‘the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law [were] not thereby compromised’. This means that EU secondary law prevails over state constitutions. Whenever application of national constitutional standards would affect effectiveness of an EU act national courts have to refrain from using them. Member States’ courts are effectively prohibited from ‘casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision’.

The future of constitutional conflict

The significance of the Melloni judgment should not be underestimated. While its immediate effects could be restricted to the particular EU legislative act in question, the judgment sends a very worrying message about the way in which the Court of Justice sees its role as a constitutional review court. The starting assumption of the Court is not only that the EU legislator has respected fundamental rights but also that the scope of protection of fundamental rights, including those recognised in the Charter, should be determined on the basis of an act of secondary law. If this method was applied more broadly, an EU act could never be found invalid for breaching fundamental rights. The judgment in Melloni is also a step towards the centralisation of standards of fundamental rights protection in the EU, at least in areas where Member States’ authorities are implementing EU acts. When such assiduous centralisation leads to the lowering of protection which national courts are allowed to offer further instances of constitutional conflict are only a matter of time.

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.

Suggested citation:  D. Leczykiewicz: Melloni and the future of constitutional conflict in the EU U.K. Const. L. Blog (22nd May 2013) (available at http://ukconstitutionallaw.org).

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Christina Eckes: One Step Closer: EU Accession to the ECHR

ChristinaThe final version of the draft accession agreement was concluded on 5 April 2013. It will allow the EU to become a contracting party to the European Convention on Human Rights (ECHR), arguably on more than equal footing with the other Contracting Parties, which are all States.

The EU’s accession to the ECHR is a long and on-going journey. Indeed, accession has been subject of political discussion since the 1970s. The early debate culminated in 1994 with the Court of Justice terminating all accession attempts under the old Treaty framework. However, the situation changed fundamentally on 1 December 2009 with the entry into force of the Lisbon Treaty. Accession has not only become possible, it has become an obligation. The conclusion of the draft accession agreement is an important step, but it is by no means the last. Next, the Court of Justice of the European Union will give its opinion on the compatibility of the accession agreement with EU law.

The EU’s Privileges Pre- and Post-Accession

Even before the EU’s accession, the ECtHR deals implicitly or explicitly with EU law more often than one would expect. To give the gist of the relevant case-law of the ECtHR: Member States retain responsibility for their acts, including those adopted within the context of EU law, but acts adopted by the EU institutions proper fall outside of the ratione personae of the Convention. For instance, as things stand at present Member States remain responsible for primary EU law as the consequences of a treaty, in the adoption of which they have been involved. It is, further, possible to bring an application against a (particular) Member State for implementing EU law, irrespective of whether that state has had any margin of discretion in implementing EU law. If the state has had no margin of discretion, a rebuttable presumption of equivalent protection applies which leads the ECtHR to exercise full judicial review only if the protection under EU law has proved in the case before it to be ‘manifestly deficient’ in the individual case (the Bosphorus presumption). The presumption of equivalent protection in Bosphorus has placed the EU for many years in a privileged position as compared to its Member States, even without being a party to the Convention. The ECtHR does not review the compliance with the Convention of EU Member States’ acts implementing EU law in the ordinary case. The accession agreement recognises the EU’s special position and in a different way codifies and institutionalises it, but it takes away the Bosphorus privilege.

A central concern in the negotiation of the draft agreement was the Court of Justice’s judicial autonomy and indeed even monopoly to interpret EU law.  The core threat of EU accession for the Court’s autonomy to interpret EU law emanates from two situations: first, the ECtHR might determine who the right respondent is in any given case; and second, the ECtHR might attribute responsibility to and apportion it between the EU and its Member States. In both events, the ECtHR would simply not be able fully to disregard the power division between the EU and its Member States – both in law and in practice. The complex and dynamic task division between the EU and its Member States could lead the ECtHR to offer an interpretation of substantive EU law binding on the Court of Justice. The EU is a compound legal order consisting of numerous international actors and the largest share of EU law is implemented or applied by national authorities. This means that it requires national support and involvement in order to become effective. As a consequence, if the ECtHR’s interpretation extends to who is responsible the potential challenge to the judicial monopoly, and ultimately the authority, of the Court of Justice is of a different quality than any potential challenge presented by the judicial authority of a national court. Furthermore, the authority of the Court of Justice depends much on the support of national courts. This becomes particularly apparent in the preliminary ruling procedure (Article 267 TFEU), under which most of the fundamental judicial decisions were taken that integrated the EU legal order. Ultimately, this discussion on the EU’s autonomy boils down to the question of how integrated and irreversibly interlocked the EU and national legal orders and judicial systems really are in the face of an external challenge, such as confirmation by a well-respected external judicial authority that the EU breaches human rights. Will such a finding of the ECtHR flare up resistance towards EU law by national courts or public opinion?

The co-respondent mechanism with the prior involvement procedure is aimed to protect the autonomy of the EU legal order and of the Court of Justice in particular. It stipulates that: ‘[w]here an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.’ The Union has further made a declaration that it ‘will request to become a co-respondent to the proceedings’ if these requirements are met. Additionally, if the Court of Justice has not previously ruled on the matter, the agreement is that the ECtHR should request the Luxembourg Court to do so before giving its own ruling. The co-respondent mechanism permits the ECtHR to refrain from determining who the correct respondent is or how responsibility should be apportioned. Indeed, the draft agreement  declares joint responsibility of the respondent and co-respondent to be the common case: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.’ This will for most cases unburden the Strasbourg Court from the task of assessing the distribution of competences between the EU and its Member States. However, it does not rule out the possibility that the ECtHR chooses to apportion responsibility in the individual case. Furthermore, while no High Contracting Party may be compelled to become a co-respondent, the Strasbourg Court may terminate the participation of the co-respondent. Both actions of the ECtHR imply a prior decision on how the responsibility should be apportioned or attributed. Hence, the co-respondent mechanism tries to strike a balance between not limiting the formal competences of the ECtHR but determining how these competences are usually exercised in practice. In any event, in view of the rather cautious approach of the Strasbourg Court in the past it can be expected that it will not meddle with the complex and dynamic division of powers between the EU and its Member States where this is not judged absolutely necessary.

The special position accorded to the Court of Justice should be seen both as accommodating the Court’s concern with its judicial autonomy and acknowledging the particularities of the EU legal order and the judicial power in the EU.  The classic division of tasks between the legislating EU and implementing Member State can for instance result in a situation where EU law is implicitly or explicitly challenged in Strasbourg in the context of an alleged violation through a national act of implementation before any Court at the EU level has been consulted. This also justifies involving a court at the EU level before ruling on the compliance of EU law with the Convention. It will certainly force the Court of Justice to deliver in the individual case, rather than being able to hide behind a general presumption of equivalent protection. After receiving the Court of Justice’s opinion, the Strasbourg Court will have to scrutinise and rule whether the Convention has been breached. It can only find the specific opinion either correct (offering equivalent protection; no violation) or incorrect (misinterpreting the Convention; violation). It cannot hide behind general considerations of the human rights protection in the EU legal order. The times of Bosphorus are over.

The (Un-)Likeliness of an Open Conflict

After accession, the ECtHR’s decisions will be formally binding on the Union as a matter of international law. This could in an extreme case result in a finding of non-compliance if the Court of Justice rejects an interpretation of the ECtHR of internal matters of EU law. Whatever status the Court of Justice will give rulings of the ECtHR after accession, it is difficult to see in practice how the Court of Justice could in a ‘Union of law’ follow an argument or give a ruling that openly clashes with the protection of human rights given by the ECtHR. This would be problematic both before and after accession, and irrespective of whether the EU is a party to the case. At the same time, the justification deficit would be much lower if the Court does not accept the ECtHR’s position on competence matters of internal EU law that has no substantive impact on human rights protection. We may conclude that the risk of a potential conflicting interpretation of the ECHR and the Charter would not increase through accession. With the co-respondent mechanism with the prior involvement procedure it will be lower than at present. Pre-accession it is conceivable that a national court delivers a decision based on a preliminary ruling of the Court of Justice and that this decision (after national remedies have been exhausted) is taken to the ECtHR which might decide that the country has violated the ECHR. The ECtHR’s ruling on the case could entail the conclusion that the preliminary ruling of the Court of Justice conflicts with the ECHR, without further involvement of the EU institutions.

The EU as an International Actor with Internal Tensions

Accession will advance the Union’s ambitions as an international actor separate from its Member States. The EU will become a ‘state-like´ party to the Convention in the sense that it will be ‘on equal footing with the other Contracting Parties’, which are all states. At the same time, the EU and, in particular its Court of Justice have been given an exceptional position within the Convention system. From the perspective of the EU, this primus inter pares position appears to be the best solution: having all the duties of states, but more rights and influence – both during the negotiations and before the Strasbourg Court. This special position is a recognition of the EU’s particularity and success as an integration organisation. At the same time, the discussion’s focus on the EU’s and the Court of Justice’s autonomy raises doubts about the EU’s maturity as an integration organisation. Accession will bring the test of whether the EU has reached the necessary maturity. Is it sufficiently integrated to join the ECHR on an equal footing as the other Contracting Parties, or will it become the victim of its own success because despite all integration it cannot endure the internal tensions that might result from joining an external human rights regime?

In the light of the Court of Justice’s far-reaching interpretation of the duty of cooperation and in the light of the Union’s new role in Strasbourg Member States will be subject to new European law constraints in relation to the ECHR. Furthermore, accession will substantively contribute to the on-going process in which European systems of human rights protection become increasingly interwoven and interlocked. It will allow the Court of Justice and the ECtHR to enter into a formal judicial discourse. Indeed, within the ever increasing scope of EU law, the Court of Justice will take the role of the national courts in international human rights discourse. However, it would be wrong to think that the Court of Justice and the ECtHR are the only two European courts. Both depend on the support of the national judiciary. Resistance towards external human rights constraints has flared up in several EU Member States, including the UK. Accession and the shift of the discourse from national courts to the Court of Justice is unlikely to have a calming effect. Indeed, the question of which public authority – Brussels, Strasbourg or the national capital – may decide the applicable standard will become even more controversial with accession.

An extended discussion of the EU’s accession to the ECHR was published in the Modern Law Review < http://www.modernlawreview.co.uk> in March 2013.

Christina Eckes is Associate Professor at the Amsterdam Centre for European Law and Governance, University of Amsterdam

Suggested citation: C. Eckes, ‘One Step Closer: EU Accession to the ECHR ‘ Const. L. Blog (2nd May 2013) (available at http://ukconstitutionallaw.org).

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De Baere and Eeckhout et al: Europe, the Prime Minister, and the facts – seven questions for David Cameron

Dear Prime Minister,

Much has already been said about your speech on ‘the future of Europe’, delivered on Wednesday 23 January at Bloomberg, and much more remains to be said. As academics in the fields of EU law and international law, we express our hope that the debate on whether or not the UK should remain in the EU will be conducted on the basis of as complete and accurate a set of facts as possible. We would like to ask you a number of questions with that in mind.  They are questions which you have left unanswered, despite the crucial importance of such answers for the debate.

What would “a new settlement in which Britain is at the forefront of collective action on issues like foreign policy and trade” entail? Will you be advocating the repatriation of some of the EU’s trade competences to the Member States, thereby allowing the UK and others to take individual or collective initiatives in that regard? Conversely, will you be arguing in favour of reinforcing the EU’s single voice in external trade, which has enabled it to create a more level playing field in trade negotiations from Washington to Beijing? Would more collective action in the field of foreign policy entail more initiatives such as the military operation in (or above) Libya, which was indeed collective, but mostly outside the framework of the EU? Or would it entail a reinforcement of the European External Action Service, headed by Baroness Ashton? Does the repeated blocking by the UK of collective EU statements in the UN (as reported in The Guardian ) represent the UK being at the forefront of collective action?

Can your proposal to “work together against terrorism and organised crime” be squared with your avowed desire to opt out of a great number of EU measures put in place precisely to combat cross-border crime? The potentially self-defeating effect of such an opt-out has been highlighted a number of times by British former or current officials (see the Financial Times).

What do you mean when you ask the British people not to be “misled by the fallacy that a deep and workable single market requires everything to be harmonised”? Incidentally, you are absolutely right that complete harmonisation is not desirable, which is of course why the Commission abandoned the idea in its 1985 White Paper  on completing the internal market. It is also why the European Court of Justice, which you accuse of having “consistently supported greater centralisation”, has introduced the principle that Member States can keep their own product regulations, which must be recognized by other Member States.

What are the “huge number of expensive peripheral European institutions” and in what way is the Commission getting “ever larger”? Surely the London branch of the Unified Patent Court, for which you fought so hard, cannot be an example of an “expensive peripheral European institution”? And would the amazing expanding Commission be the same that has proposed a 5% cut in staff combined with an increase in weekly working hours and lower salaries in certain areas?

In what way does the EU not have “enough focus on controlling spending” and what “programmes that haven’t worked” do you want to shut down? It is of course perfectly true that the budget is large: 140 billion euro in 2011 to be precise.  Nevertheless, the EU budget represents around 1% of EU-27 GDP whereas Member States’ budgets account for 44% of GDP on average. The average EU citizen in most Member States has to work well into the spring and summer until they have paid their tax contribution, while he or she has to work only four days to cover his or her contribution to the EU budget.

In light of your wish to address ‘the sclerotic, ineffective decision-making that is holding us back’, can we ask whether you are in favour of more majority voting?  That has always been the key to more effective decision-making.  Or is there some other solution of which we are unaware?

In what way is the “more flexible, more adaptable, more open” European Union you advocate different from today’s EU?  The UK, as you rightly point out, is not in the Eurozone, or in Schengen, and is capable of opting out of EU policies in matters of international crime and immigration.  It has not signed the fiscal compact (even if the current government is just as austerity-minded as Germany).  Is the EU not adaptable, if one looks at the numerous Treaty changes there have been?  Is it not open, having expanded so dramatically?

It would not be correct for us to ask you these questions without at least helping out with answering some of yours. Let us start with one: “And I would ask: when the competitiveness of the Single Market is so important, why is there an environment council, a transport council, an education council but not a single market council?” Well indeed why not. The answer, it turns out, is rather simple. There is an internal market council. It was integrated with the industry and research council configurations in June 2002, in what is called the  ‘Competitiveness Council’.

As you accurately put it: “It is time for the British people to have their say.” We hope that they will get the opportunity to do so on the basis of facts.  We hope you may be able to answer our questions, so that everyone – including other member States – develops a better understanding of what kind of EU reform you are advocating.

Yours sincerely,

Anthony Arnull (Birmingham)     Catherine Barnard (Cambridge)

Andrea Biondi (King’s College London)     Hugh Collins (LSE)

William Cornish (Cambridge)     Nicola Countouris (University College London)

Paul Craig (Oxford)     Egle Dagilyte (King’s College London)

Geert De Baere (Leuven)     Piet Eeckhout (University College London)

Pavlos Eleftheriadis (Oxford)     Amandine Garde (Durham)

Markus Gehring (Cambridge)     Alicia Hinarejos (Cambridge)

Angus Johnston (Oxford)     Claire Kilpatrick (European University Institute)

Panos Koutrakos (City University London)    Maria Lee (University College London)

George Letsas (University College London)     Virginia Mantouvalou (University College London)

Cian Murphy (King’s College London)     Ronan McCrea (University College London)

Eva Nanopoulos (Cambridge)     Niamh Nic Shuibhne (Edinburgh)

Federico Ortino (King’s College London)     Robert Schütze (Durham)

Joanne Scott (University College London)     Eleanor Spaventa (Durham)

Anne Thies (Reading)     Alexander Türk (King’s College London)

Lorenzo Zucca (King’s College London)

Suggested citation: G. de Baere and P. Eeckhout et al, ‘Europe, the Prime Minister, and the facts – seven questions for David Cameron’  UK Const. L. Blog (1st March 2013) (available at http://ukconstitutionallaw.org).

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