Category Archives: European Union

Colm O’Cinneide and Kate Malleson: Are quotas for judicial appointments lawful under EU law?

malleson-photo-2010a_ocinneide

In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

In the 2012 case of O’Brien v Ministry of Justice, the CJEU indicated that it was a matter of national law as to whether judges should be classified as being in an employment relationship, but made it clear that their status would have to be ‘substantially different’ from that of employees before the relevant provisions of EU employment law would not apply – in this case, the Directive relating to the treatment of part-time workers. Subsequently, when this case was remitted back to the national courts, the UKSC decided that Recorders were in an employment relationship and therefore the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applied. Although Recorders work on a part-time, fee-paid basis and are not permanent judges, the logic of the Supreme Court’s approach in O’Brien would suggest that a similar approach would be applied in general to their full-time, salaried equivalents, who are therefore likely to be classified as being in an employment relationship for the purposes of national and EU employment law.

However, a different conclusion could be reached in respect of Supreme Court Justices, given their particular constitutional role. In many European states, constitutional court judges are not considered to be employees: the view is taken that such a status would be incompatible with their status as holders of a high office of state. Furthermore, as the report makes clear, sensitivity surrounds the issue of whether EU law can or should impact on national constitutional arrangements relating to the status of constitutional courts. These considerations suggest that both the UKSC and the CJEU might be reluctant to hold that the Supreme Court was subject to EU employment law. It would certainly have been very unlikely that members of the Appellate Committee of the House of Lords would have been deemed to be in an employment relationship. The same view could be taken of the Supreme Court given that its role has not significantly changed, despite no longer being structurally part of the legislature. (The interesting question of whether the Supreme Court could legitimately decide whether its own members are employees or not will have to be left to a future blog post, if and when the issue arises).

The current position therefore seems to be that, while O’Brien does not settle this issue definitively, it is likely that members of the judiciary in general will be regarded as ‘employees’ for the purposes of EU law: the status of Supreme Court judges remains less clear. In turn, this means that the provisions of EU gender equality law, in line with the provisions of Article 1 of the Recast Gender Equality Directive 2006/54/EC, would apply to conditions of ‘access’ to that employment, including the judicial selection process.

If so, this gives rise to the question of whether quotas for women and BAME candidates would be lawful within the framework of EU gender equality law. The Monaghan and Bindman report concludes that they would. Given that European law in this context is relatively unsettled and that no cases have been considered by the CJEU specifically on quotas for judicial appointments, some elaboration of the report’s conclusions is required.

The legitimacy of positive action involving preferential treatment of women is well recognised in EU law, as reflected in the provisions of Article 157(4) of the TFEU (formerly Article 141(4) TEU) and Article 3 of the Recast Gender Equality Directive 2006/54/EC.  It is generally accepted that such preferential treatment will be lawful if it is justified and proportionate – i.e. the usual proportionality test is applied. However, the CJEU initially took a restrictive approach in applying the proportionality test in this context, ruling in the case of Kalanke in 1995 that quota systems involving automatic preference for female candidates constituted a violation of the principle of equal treatment as between men and women. In the case of Abrahamsson in 2000, the CJEU similarly ruled that preferential treatment can only be applied to compensate for existing disadvantage as a ‘break factor’ between ‘equally qualified’ candidates, and that an individual merit ranking system has to be initially applied to rank candidates before any automatic preference could be given to members of an underrepresented group. However, this case law has attracted strong academic criticism for imposing excessive constraints on the use of positive action. (See in general C. O’Cinneide, ‘Positive Action and the Limits of the Law’ (2006) Maastricht Journal of European and Comparative Law 351-365.) More recently, the Court has not applied the proportionality test in such a restrictive manner in relation to other situations where women benefited from preferential treatment designed to compensate for established inequalities. For example, in the case of Lommers in 2002, the Court considered that a child care scheme which gave priority to women was compatible with the principle of gender equality, on the basis that the scheme in question was intended to address the under-representation of women.

As such, the legal position in EU law relating to positive action measures designed to redress under-representation of women remains unsettled. The same is true as regards positive action measures directed towards addressing the under-representation of BAME groups: no European case-law exists on this point yet.

However, as noted in the Monaghan and Bindman report, the CJEU in assessing the proportionality of a quota system being used in the UK judicial appointments process is likely to take into account the continued lack of progress on diversity in this context, as evidenced by the recent Council of Europe statistics which show the three UK judiciaries languishing at the bottom of the league table for the proportion of women judges – beaten to the bottom only by Azerbaijan and Armenia. This context makes it more likely that the CJEU would be prepared to uphold a quota scheme as a proportionate response to this ongoing problem, especially given the failure of other less radical policy approaches to address the problem of female and BAME under-representation in the senior ranks of the UK judiciary. It is also arguable that the special constitutional and social importance of the judicial selection process might lead the CJEU to depart from the stricter Abrahamsson approach and to adopt the looser standard of review adopted in Lommers, especially given its preference for non-intervention in national constitutional issues.

To summarise: If judicial selection falls outside the scope of EU law, then it has no effect on any quota system. However, if, as is likely, judicial selection (at least in respect of appointments below the level of the Supreme Court) comes within the scope of EU law, then the legality of the quota system will depend on whether the CJEU adheres to the restrictive approach it adopted in Kalanke and Abrahamsson, or whether it adopts a looser, more accommodating standard of review as it did in Lommers. Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law.

Colm O’Cinneide is a Reader in Law at University College London.

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

 

Suggested citation: C. O’Cinneide and K. Malleson, ‘Are quotas for judicial appointments lawful under EU law?’ UK Const. L. Blog (12th November 2014) (available at http://ukconstitutionallaw.org)

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Sionaidh Douglas-Scott: British withdrawal from the EU: an existential threat to the United Kingdom?

Sionaidh-Douglas-Scott-avatar-1409859580-96x96The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, as Roger Masterman has already pointed out on this blog, ‘It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.’ But the European Union is very much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain’s EU membership cannot be renegotiated. With UKIP support gaining in the polls, pressure is growing on other parties to support an EU in-out referendum. There is a realistic prospect that the UK may leave the EU.

There are many arguments that can be made as to why the UK should remain within the EU. This posting addresses just one: the serious constitutional consequences for both the constituent parts of the UK, and the UK as a whole, should there be a ‘Brexit’. Given that the UK has just survived perhaps the most serious threat ever to its constitutional existence, in the form of a very closely run Scottish referendum on independence, and given the fervent and almost desperate nature of the ‘Vow’ made by all three party leaders to accord greater powers to Scotland if necessary to maintain the Union, the risk of such further constitutional instability should be taken seriously.

At first it might seem that Scotland’s ‘No’ vote for independence would lessen the chance of EU secession, given the relatively greater pro-EU vote in Scotland (‘relatively greater’ because UKIP did gain one constituency in the Scottish European parliament elections of 2014). How each constituent part would vote is not certain, but according to 2013 House of Commons figures, 53% of Scots said they would vote to stay in the EU, compared with a third who said they would vote to leave. This was in contrast to attitudes in England, where 50% said they would vote to leave the EU compared with 42% who would vote to stay in. At the last European Parliament elections in May 2014, UKIP gained the largest percentage of votes in the UK overall, with 27.5%, but in Scotland only 10.46% of the vote. Furthermore, EU regional funding tends to benefit Scotland, Wales and Northern Ireland more than it does England. Wales and Northern Ireland are net recipients from the EU Budget, and in particular, Northern Ireland stands to lose significant sums if the UK withdrew from the EU. Likewise, to the extent that the devolved nations have access to EU institutions in areas of devolved competence, they enjoy an international presence that would be difficult to replicate through country-specific diplomatic missions. So there are distinct advantages to be lost by an EU exit.

However, the relatively lower eurosceptic vote in the devolved nations would not make a great impact on an EU in-out referendum overall, given that (according to the Office for National Statistics) the population of the devolved nations eligible to vote is small compared to that in England. How much does this matter? It matters a great deal if the vote in the devolved nations is of a less eurosceptic complexion than the English vote in an EU in-out referendum.

Destabilising devolution

It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Should devolved nations be able to host separate referenda?

Would it be possible for the devolved nations to demand their own referenda in the event of a Westminster mandated EU in-out referendum? In the frenzied last days before the Scottish independence referendum, there was talk of moves towards a ‘federal’ UK. This does not seem very likely now, and whatever recommendations the Smith Commission will deliver later this year (which are likely to include more financial, welfare and taxation powers for the Scottish Parliament) they are unlikely to include greater autonomy in foreign affairs. However, as many areas of EU competence are devolved matters, and continued Scottish membership of the EU was a concern in the event of Scottish independence, the matter is likely to be of great interest in Scotland. Notably, between the 2015 UK general election and the promised 2017 EU in-out referendum will come another election – the 2016 Scottish parliamentary elections. The SNP may perform well in that election, bolstered by the 45% vote in the independence referendum and progress toward ‘devo max’. In which case, the Edinburgh government – which is generally of a more pro-European and social-democratic hue than Westminster – might call for a new independence referendum if there were a serious prospect of a 2017 referendum leading to a UK EU exit, presenting such a further independence referendum as Scotland’s means of remaining within the EU. And given this change of circumstances they might gain over 50% of the vote. This would not find favour in London, which would almost certainly not accord a repeat referendum the sanction of legitimacy accorded to the 2014 vote. However, regions have been willing to go ahead with referenda even without a constitutional sanction – such as Catalonia this November.

In the face of such a prospect, should a potential EU in-out referendum be required to take on a different constitutional form to past UK-wide referenda? Should a requirement be set for a majority of exit votes in each of the devolution jurisdictions before UK withdrawal is possible? Or perhaps each of the devolved nations should be able to hold its own in-out referendum, and a ‘federal’ standard set whereby UK withdrawal is only possible if a majority of the devolved nations vote to exit? 

Scotland and the sovereignty question

A British exit from the EU is sometimes justified in terms of the maintenance of parliamentary sovereignty, which presently must concede the supremacy of EU law (acknowledged both in ECJ caselaw such as Costa v ENEL, and s 2(4) ECA). However, the Diceyan orthodoxy of parliamentary sovereignty has never held as much weight north of the border. In the 1953 case of MacCormick v Lord Advocate in the Court of Session, the Lord President, Lord Cooper, (a former Conservative and Unionist politician and eminent legal historian) contested the Diceyan orthodoxy thus:

‘The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England.’

Linda Colley’s well-known work, Britons: Forging the Nation, reminds us that both the British state and the British national identity were ‘forged’ by the Acts of Union of 1707. The United Kingdom is only 300 years old, not an ancient natural phenomenon, and it may be undone. Given that the Union of 1707 brought into being the British state, ought we not give this historical event of the Acts of Union its due as a keystone of the British constitution, rather than the Diceyan mantra of parliamentary sovereignty? In which case, perhaps we should recognise that the British constitution is not simply the English constitution, and that Scottish constitutional principles (and Northern Irish, and even now nascent Welsh – given the recent ‘Welsh Bye-laws case) play their part in a multiple constitutional order, and may be of particular salience at times of crisis or ‘constitutional’ moments, such as the issue of whether to withdraw from the EU. Scottish intellectuals, lawyers and politicians of many different political persuasions stand by an indigenous Scottish tradition of popular sovereignty that is claimed to date back to the Declaration of Arbroath in 1320. They hold that, before the 1707 Act of Union, sovereignty resided in the Scottish people – and that it still does so, in spite of the claims of Diceyan parliamentary sovereignty.

Many Scottish unionist politicians accept the doctrine of Scottish popular sovereignty. It was this doctrine that pervaded the Claim of Right for Scotland in 1989, which was signed by the great majority of Scotland’s MPs and many of the leaders of Scottish civil society. The draft Constitution for an independent Scotland, published earlier his year, stated that ‘the fundamental principle’ that ‘the people are sovereign…resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country’.

Therefore, meditation on the entirety of the Union, and its constitutional basis, poses the question of whether, at least in Scotland, the doctrine of popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. If Scotland chose to remain, and England to leave, the scope for constitutional crisis would be extreme.

Impact on Ireland and the Northern Ireland peace process

Lastly, the impact on the island of Ireland of a UK exit from the EU should be considered. It could well be source of great instability. Although Ireland itself is clearly a separate state, and has long since left the UK, it is nonetheless in a somewhat different relationship to the UK than the other current 26 members of the EU. Section 2(1) of the Ireland Act 1949 (the British Act of Parliament passed to deal with the consequences of the Irish Republic of Ireland Act 1948) declared that, even though the Republic of Ireland was no longer a British dominion, it would not be treated as a ‘foreign country’ for the purposes of British law. Irish and UK history are much intertwined and, were the UK to exit the EU, it would mean an external border of the EU would run through the island of Ireland. The shared border with the Republic of Ireland has long been of enormous symbolic and practical importance. What would happen to the Common Travel Area between the two islands if the UK exited the EU? Would visa requirements and customs duties be imposed?

The Belfast or ‘Good Friday’ Agreement of 1998, an international treaty signed by the UK and Republic of Ireland, enshrined North-South and East-West co-operation, effected constitutional changes and established cross-border bodies. It includes many provisions concerning EU and ECHR law, and the status of the UK and Ireland as EU member states is woven throughout the Agreement. Indeed, the section entitled ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ speaks of ‘close co-operation between (the) countries as friendly neighbours and as partners in the European Union’. The Good Friday Agreement required the British government to incorporate the ECHR into Northern Ireland law. Any amendment through changes to either the Human Rights or Northern Ireland Acts which did not meet the human rights commitments in the agreement would be incompatible with this international treaty. The peace process in Northern Ireland is unfortunately not irreversible, but it has been unforgivably ignored in UK discussion on whether to withdraw from the EU. It is also likely to be ignored in Brussels, where there is some impatience with British demands in any case.

In March 2012, a joint Statement by Taoiseach Enda Kenny and Prime Minister David Cameron set out a programme to reinforce the British-Irish relationship over the next 10 years. It emphasised the importance of shared common membership of the EU for almost forty years and described them as ‘firm supporters of the Single Market’. However, a UK EU exit would have consequences for the future of the Belfast agreement and in particular implications for Anglo-Irish co-operation in dealing with cross-border crime and terrorist activity. To give just one example: the UK and Ireland make frequent use of the European Arrest Warrant (EAW). Figures indicate that since the EAW entered into force, the great majority of requests made by Northern Ireland for surrender of persons have been to Ireland. Prior to the introduction of the EAW, a number of European and domestic measures in the UK and Ireland regulated extradition proceedings, and resurrecting these would be a painful process, fraught with difficulties and uncertainties and potential for endless litigation. While the EAW has not always functioned ideally, a return to bi-lateral extradition conventions and other measures would be very undesirable. (Although the UK’s current plans are to exercise a block opt-out from over 130 EU Justice and Home Affairs measures, the apparent intention is to opt back in to the EAW immediately).

In conclusion, a British exit from the EU risks undermining the very self-determination and national sovereignty that its adherents believe it will bring about. This is because it risks shattering the fragile balance and stability of the UK by threatening the peace settlement in Northern Ireland and raises the possibility of a further independence referendum in Scotland. Surely such constitutional risks are not to be taken on lightly? But at present, there is little indication that anyone calling for an EU exit is giving them much thought. 

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

 

(Suggested Citation: S. Douglas-Scott, ‘British withdrawal from the EU: an existential threat to the United Kingdom?’ U.K. Const. L. Blog (13th October 2014) (available at http://ukconstitutionallaw.org).

 

 

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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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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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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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