Category Archives: European Union

by Constitutional Law Group | May 2, 2013 · 8:15 am

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

The 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).

Leave a Comment

Filed under European Union

Tagged as EU Accession to ECHR, European Court of Human RIghts, European Union, Interaction of the European Court of Justice and the European Court of Human Rights

by Constitutional Law Group | March 1, 2013 · 6:35 pm

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).

3 Comments

Filed under European Union

Tagged as European Union

by Constitutional Law Group | January 31, 2013 · 6:35 pm

Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

Countries that are used to referendums on constitutional matters use them sparingly. The UK has no such constitutional requirement, but faces the possibility of having to deal with two such referendums within the spate of a few years. The first referendum could see Scotland break away from the United Kingdom, the second could see the United Kingdom (which by then may or may not include Scotland) break away from the European Union.

The common issue to both Alex Salmond and David Cameron is political sovereignty. They both want more of it; Salmond wants to claim it from the UK, Cameron wants to claim it from the EU. In that narrow sense, they are both nationalists; Salmond a Scottish one, Cameron a British one. Both also want, they claim, to be good European citizens but have to contend with the problem that the European club they want to be members of has rules which conflict with their visions of the idealised club they imagine it should be. And the promotion of this idealised vision to their voters leads them both to political positions which are incoherent.

For the SNP which was, until the advent of devolution in 1999, a minority fringe party, the ‘Independence in Europe’ policy was never subjected to serious examination. It was not much more than a political slogan used in political debate to counter the separatist charge levelled by opponents. The most that was done to develop this policy was to locate sympathetic European luminaries who gave the SNP helpful quotes asserting that upon independence, Scotland would move seamlessly into EU membership. It became an article of SNP faith that Scotland would be warmly welcomed into the happy European family, effectively countering ‘separatist’ accusations. So cemented into SNP ideology is this belief that Nicola Sturgeon, deputy first minister, told the Scottish Parliament’s European and external relations committee in December 2007: ‘It is the clear view of the Scottish National Party and the [Scottish] government that Scotland would automatically be a member of the European Union upon independence.’

The automaticity proposition founders on the rather obvious point that while the people and territory of Scotland may already be in the EU, the Scottish government is not. And the Scottish government being in the EU requires its votes in the European Council and other entitlements to be written into EU treaties which can only be done with the unanimous consent of all other member states. This remains the case. The SNP, however, refuses to acknowledge this point because it raises the vision of Scotland being outside the EU and having to bang on the door begging to be allowed in out of the cold, bringing the separatist bogey back into play.

The battle against the separatist charge has had to be fought on another front – within the UK. Unionists have alleged that independence will mean that families with members on either side of the border will become fragmented, that they and commercial trade will have to negotiate border controls at Berwick and Gretna Green, that Scotland will lose access to popular BBC shows such as East Enders and Strictly Come Dancing and so on. To counter this, the SNP has devised a new strategy – that while the political union of the UK will come to an end, the social and civil union will continue and prosper. Thus families will be just as united and able to jointly celebrate such things as the Queen’s birthdays and anniversaries as she will still be the titular head of state in an independent Scotland.

Harsh economic realities, however, have forced the extension of this soft unionism into harder areas. The stresses and strains that the Euro currency is under have made it as unattractive to Scots as it is to the English. The SNP, because of the more prosaic reality that some 60 per cent of Scottish trade is with the rest of the UK and that it makes no sense to erect a currency barrier to that trade while tearing one down to benefit the 20 per cent of Scottish trade that is with the Eurozone, decided some time ago that an independent Scotland would stick with sterling as its currency until such time as there are economic benefits to joining the euro, which would only occur after a referendum.

The travails of the euro and the proposed deeper integration remedies, however, demonstrate that such a currency union would erode Scotland’s fiscal independence. Proposed tax changes and government budgets would have to come under the tutelage of the, with independence, foreign institutions of the UK Treasury and the Bank of England. Various unionist politicians, such as Treasury chief secretary Danny Alexander and former chancellor Alistair Darling, have argued either that the UK government simply could not countenance such an arrangement, or that the arrangements would be so restrictive as to nullify the claimed gains from political independence.

The SNP’s counter to this has been to assert a rather crude truth, that as sterling is a fully tradeable currency, the UK cannot stop Scotland from unilaterally adopting the pound. This, however, looks unsatisfactory from the point of view of independence. It leaves monetary policy, the determination of interest rates, and the operation of quantitative easing in the Bank of England’s hands. The SNP also claim, rather more vaguely, that the fiscal stability pact necessary to a currency union need not be so restrictive when, in fact, the lesson of EU struggles to stabilise the euro point to tighter rather than looser centralised fiscal controls.

This puts Salmond in the odd position of being, simultaneously, a Scottish nationalist, a European federalist, and a British unionist. He wants Scotland to have untrammelled use of its own credit card to dine at the same time in the British and European restaurants, but refuses the table d’hôte menu and insists on picking from two à la carte menus which neither chefs seem willing to offer.

Cameron is in only a slightly less strange place. He wants to trade heavily on his British nationalism with his domestic audience but waves his European unionism when on the other side of the English Channel. Both audiences are, however, able to see what is being presented to the other and thus he runs the high risk of undermining his message to one by his contrary calls to the other.

In his speech on the EU on 23 January 2013, David Cameron set out his intention to renegotiate the UK’s relationship with the EU and put the terms of that changed membership to the British people in an in/out referendum by the end of 2017, subject to the Conservatives winning an outright majority in the general elections in 2015. His speech received global attention and a mixture of praise (‘agree that the EU needs to be reformed’) and criticism (‘disagree with the language of unilateral negotiations and the threat of withdrawal’). Much of the commentary, indeed much of the speech itself, is based on the dubious premise that the UK is a major player in the European Union.

On one level, the UK undoubtedly sits at the top table: it has the third largest population and the third largest economy in the EU. However, the UK already has differently negotiated relationship with the EU than the other member states. It gets a significant rebate on its financial contributions to the EU budget; it has external borders with other EU member states; it has its own currency; it did not sign the fiscal stability treaty which requires budget prudence and introduces a debt brake for the 17 Eurozone states; and it will not (unlike 11 Eurozone states) impose a financial transaction tax which is designed to discourage speculative trading. Moreover, the UK limited the justiciability of the Charter of Fundamental Rights and the way in which it may be interpreted. And its red-lines approach at the IGC in 2007 means that the UK can itself decide (by 31 May 2014) whether to implement all the European measures on police and justice (which will be subject to the jurisdiction of the CJEU) or whether to opt out of all the measures and then adopt individual measures on an ad hoc basis (subject to the consent of the other member states). (Although how exactly the latter option ‘cuts red tape’ is anyone’s guess).

If this isn’t à la carte, then what is? What more does Cameron want to renegotiate? No one knows, and no one has yet produced a checklist, although the government will be working on one until the autumn of 2014. For the time being, the Working Time Directive, the European Arrest Warrant, and a better deal on fisheries keep coming up in debate. Is it realistic to argue that powers in those areas can be returned to the member states? The practical options are the following. Either the UK tries to tackle the matter from above by reducing the law-making powers of the EU institutions (that option would require a treaty change and the unanimous agreement of the other member state which is, currently, unrealistic). Or the UK tries to negotiate a better ‘deal’ for itself (e.g. through opt outs and protocols that are attached to the Treaty). But is it credible that the other member states would grant the UK special treatment when every member state is subject to aspects of EU law of which it disapproves and would dearly like to roll back the frontiers of European law and policy? So neither option seems workable.

On a more fundamental level it seems baffling that British Euroscepticism would appear to hinge on a handful of powers that need to be ‘repatriated’. It doesn’t, and it is ludicrous to suggest that the Europhobes in the Conservative party will be placated if junior doctors work longer, and UK nationals who are wanted on charges abroad cannot be extradited (whereas, of course, UK nationals who have committed a crime in the UK but fled to another EU member state will immediately be brought back home). On fishing, where the real issue is depleted stocks through overfishing, the Commission is already transferring decision-making powers to the member states in an attempt to decentralise fishing policy and tailor it to local conditions. As Douglas Alexander put it: ‘The gap between the minimum the Tories will demand and the maximum the EU could give is unbridgeable’. These are not the fundamental issues, and any self-respecting Europhobe will not rest until the UK has exited the Union and re-attached itself to the single market like a dingy to a supertanker.

So if Cameron’s speech does not stand up to scrutiny from a European perspective, maybe its intended target was closer to home. Almost all foreign and domestic observers noted that the speech was driven primarily by domestic party politicking (UKIP) and internecine party struggles (Bill Cash). Cameron is trying to unify a fractured party in the run-up to the general elections in 2015, and UKIP and the Tory backbenchers forced his hand. But even domestically Cameron may have dealt himself a bad hand. The offer of a referendum on renegotiated membership after the next general election is subject to two known unknowns: i) the outcome of the 2015 elections; ii) the outcome of the negotiations. It is presently far from clear whether he will be successful with respect to either or both.

Until then Cameron will be seeking, not so much nouvelle cuisine as cuisine impossible, just like Salmond: untrammelled UK access to the European single market restaurant, refusal of the table d’hôte menu and insistence on the à la carte menu which is not on offer. And then he will have the nerve to ask for a rebate (i.e. other member states subsidising his dining) when presented with the bill.

Conclusion

Cameron’s policy on the EU is just as incoherent as the SNP’s policy on continuing EU membership on current terms. Cameron assumes he will win the next election, just as Alex Salmond assumes that Scotland will automatically be an EU member state. Cameron claims that he can walk into the room and negotiate a new deal (‘I am an optimist, not a pessimist’, Cameron responded to a question on this issue by a journalist after his speech). Salmond claims that he can secure Scotland’s place in Europe on current terms, i.e. by inheriting the UK’s opt outs on the Euro currency and the Schengen free travel area, which is illusory.

Moreover, a referendum (if one is to be had) needs to set out two clear choices before the referendum. The in/out referendum on the EU or the Yes/No referendums on Scottish independence do not offer sufficient alternatives. What will come after EU membership? A free trade (all pay and no say) agreement with the EU like Norway? The Commonwealth? The USA? NAFTA? The global market? Splendid isolation?

Likewise, Salmond promises continuity when any EU lawyer, politician, and bureaucrat will tell him that there is no automatic right to membership of the European Union. So, what if membership is not automatic? Will Scotland stay outside the EU? Have its application fast-tracked? Join the queue of applicant states? He also promises currency continuity within a skeletonised British union, when there are an array of economists and Treasury politicians past and present saying it either will not work or will render the gaining of political independence pointless. So what will happen then? Freelance use of the pound? Enforced joining of the euro? Invention of a Scottish currency?

The à la carte menus offered by both are, in reality, dogs’ dinner.

Jo Eric Khushal Murkens, Department of Law, London School of Economics and Political Science

Peter Jones is a freelance journalist, writing on Scottish current affairs for The Economist, the Times and The Scotsman. He is also, with Jo Murkens, a co-author of Scottish Independence: A Practical Guide, EUP 2001.

Suggested citation: J. E. K. Murkens and P. Jones: ‘Salmond and Cameron order a dog’s dinner at the EU café’ Const. L. Blog (31st January 2013) (available at http://ukconstitutionallaw.org)

2 Comments

Filed under European Union, Scotland

Tagged as European Union, Referendum on the European Union, Referendums, Scottish Independence, Scottish Referendum

by Constitutional Law Group | December 12, 2012 · 2:07 pm

Massimo Fichera and Helen E. Hartnell: All you need is law: Same-sex marriage in Italian courts

Massimo-Fichera_avatar-105x105 Helen-E.-Hartnell_avatar-105x105 The Italian Corte di Cassazione (CdC) has delivered a judgment which marks a fundamental change of direction in the treatment of same-sex marriage in the Italian legal system. Case 4184/12, decided on 15 March 2012, illustrates the piecemeal nature of legal developments affecting same-sex marriage, as well as the complex mix of issues that arise in this legal field. Same-sex marriage bridges private and public law, and implicates family, free movement, and equality (non-discrimination) rights found in national, European and international sources.

To grasp the importance of the CdC’s ruling on family rights and non-discrimination, we must first clarify what this case does not decide by distinguishing it from two earlier Italian court decisions on same-sex marriage in the context of European Union (EU) citizenship and the free movement of persons under Directive 2004/58/EC (formerly 2004/38/EC) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizens’ Directive). That Directive is silent about whether the term ‘spouse’ includes a same-sex husband or wife. Both prior Italian cases resolved this ambiguity in favor of same-sex couples.

The first case (Cass. Pen. sez. I n. 1328, 19 January 2011) concerned a non-EU citizen who was convicted by the Justice of Peace of Mestre for illegal entry and residence in Italy. On appeal to the CdC (criminal section), he argued that his marriage celebrated in Spain with an EU citizen should entitle him to EU free movement rights, even when the marriage was between two men. The CdC agreed in principle, and directed the Justice of Peace to ascertain whether Spanish legislation treats the same-sex partner as a “spouse” and, if so, to recognize the effects of the marriage in the Italian territory. This was the first time the CdC admitted the possibility that same-sex marriage could have legal effects in Italy, albeit only in regard to immigration issues falling within the scope of the EU Citizens’ Directive.

The second case (Trib. di Reggio Emilia, sez. I civ., ord. 1401/2011, 13 February 2012) concerned a marriage in Spain between a Uruguayan and an Italian man. When the couple later moved to Italy, the Uruguayan partner applied for a residence permit. Here the Italian court explicitly ruled that limiting marriage to a man and a woman contravenes the interpretation of the term “spouse” found in the Citizens’ Directive, as well as of the rights to marry and to found a family mentioned in Article 9 of the Charter of Fundamental Rights (EU Charter). The court clearly stated that once there is evidence that any marriage has been lawfully celebrated in an EU Member State, free movement rights both of the citizen and his/her family member ought to be guaranteed, regardless of the spouses’ national legislation. But this case, like the CdC’s 2011 decision, only ensures rights under Italian immigration law.

The CdC’s March 2012 decision involves a fundamentally different fact pattern from those earlier cases, and its rationale invokes different legal sources. This case involves two Italian men who went to Holland, married there, then returned home to Italy and asked the competent Italian authority in Latina to register their marriage. The Italian authority refused to register the marriage, pursuant to a 2007 Ministry of Interior circular proscribing local authorities from registering same-sex marriages celebrated abroad on ordre public grounds. On appeal, the Italian pair argued that this refusal violated their rights to marry and to have a family life, as well as the principles of non-discrimination and self-determination. Their appeal was rejected by the Tribunal of Latina, the Court of Appeal in Rome, and the Corte di Cassazione. However, the CdC’s decision breaks new ground, even though it does not go so far as to grant same-sex couples the right to marry or to have a foreign marriage registered in Italy.

Unlike the two earlier cases, this Italian same-sex couple’s goal was not limited to securing the handful of immigration rights guaranteed by the EU Citizens’ Directive. Rather, these Italian men sought full civil recognition in the form of registration of their marriage, predicated on far-reaching rights claims.

This is not to say, however, that either the Italian couple or the CdC ignored EU law entirely in the March 2012 case. On the contrary, the men argued that Italy’s failure to recognize the marriage they had concluded in another Member State impaired their rights — as EU citizens — to move freely within the EU per Article 21 (1) TFEU, and urged the Italian court to make a preliminary reference to the Court of Justice of the European Union (CJEU) seeking interpretation of Articles 9, 21, 51, 52, 53 and 54 of the EU Charter. The CdC was not persuaded, however, and refused to refer any questions to the CJEU, pointing to decisions by the ItalianCorte Costituzionale (decision 138/2000 of 2010) and by the ECJ (C-299/95Kremzow; C-328/04 Vainaj; C-400/10 McB; C-256/11 Dereci) which emphasize that the EU Charter only applies to situations that fall within the scope of EU law. On this issue, the CdC was firm: the rights to marry and to found a family do not fall within the scope of EU law, since Article 9 of the EU Charter relegates these matters to national law.

The CdC next turned to the question whether there are still reasons, in modern Italian society, to consider same-sex marriage unlawful. The CdC’s reasoning focuses on the tension between, on the one hand, the traditional concept of marriage, as derived from Roman law and enshrined in international instruments such as the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, and, on the other hand, recent trends towards giving full recognition to the legal effects of same-sex marriages.

The CdC’s decision draws upon — but ultimately surpasses — two 2010 rulings, one by the Italian Corte Costituzionale and the other by the European Court of Human Rights. Both of those earlier decisions opened the door a crack towards civil recognition of same-sex marriage, but the courts ultimately hesitated to cross the threshold. Instead, it was the Corte di Cassazione in March 2012 that stepped through the door, albeit cautiously.

In Decision 138/2012 (April 2010), the Italian Corte Costituzionale (CC) ruled that Articles 3, 29 and 2 of the Italian Constitution cannot be read to mean that the right to same-sex marriage has constitutional ranking in the Italian legal system. Rather, the CC insisted that Article 29 embodies a “naturalistic” definition of marriage that presupposes gender diversity. This interpretation was not inevitable, however, since the language of Article 29 is gender-neutral, defines “family” as a “natural society based on marriage”, and proclaims the “moral and legal equality of the spouses”. In the end, despite acknowledging that the concepts of “marriage” and “family” ought to be interpreted in line with socio-cultural changes occurring over time, the CC shied away from a “creative” interpretation that would radically modify core concepts that had never been contemplated by the drafters, and declared the aim of procreation to be inherent in marriage and worthy of constitutional protection. Yet despite its hesitation, the CC in 2010 took an important first step towards constitutionalising same-sex marriage in Italy by noting that Article 2 of the Constitution protects gay unions as “social groups” in which all people have the right to develop as individuals.

The decision of the European Court of Human Rights (ECtHR) in Schalk and Kopf v. Austria (June 2010) was more daring than the one reached by the Italian Corte Costituzionale, but the ECtHR also held back from the interpretive brink. Reading Article 12 of the European Convention on Human Rights and Article 9 of the EU Charter together, the ECtHR stated that it no longer considered that the “right to marry … must in all circumstances be limited to marriage between two persons of the opposite sex.” Still, the ECtHR was unwilling, given the lack of consensus in favor of same-sex marriage, to impose this interpretation on the Contracting States. Thus in the end, the ECtHR’s conclusion was similar to that reached by the Corte Costituzionale, namely that the issue falls within the Member States’ margin of discretion, and it is up to their legislative organs to regulate the matter.

The March 2012 decision of the Corte di Cassazione (civil law section) moves a decisive step closer to full recognition of same-sex marriage. While the CdC did not overturn the outcome of the case and allow the marriage to be registered, it did reject the lower court’s reasoning, which had denied registration on ordre publicgrounds. Instead, the CdC refuses recognition for the technical reason that the marriage is unable to produce legal effects in the Italian legal system. By doing so, the CdC departs from its previous stance that gender diversity was a prerequisite to a legally valid marriage. The CdC also abandons as untenable the position that same-sex marriage is “non-existent”, in view of the fact that some countries now allow same-sex marriage.

Yet however important those steps may be, the real novelty of the CdC’s 2012 decision lies elsewhere. The Corte di Cassazione states clearly that gay couples have a right to family life on the basis of the equality/non-discrimination provision in Article 3 of the Italian Constitution, which entails treating them on an equal footing with married couples, and that this right can be judicially protected, even absent any action by the legislature. Thus, Case 4184/12 constitutes a major step in the evolution of the concept of family in the Italian legal system, even while falling short of a breakthrough constitutionalisation of same-sex marriage.

A more detailed analysis of the Italian developments, including comments on stirrings in the Italian legislature, is available here.

Massimo Fichera is a Post-Doctoral Fellow, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity Research, funded by the Academy of Finland.

Helen E. Hartnell is a Professor of Law, Golden Gate University School of Law (San Francisco) and Fulbright Core Scholar, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity (Fall 2012).

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

Leave a Comment

Filed under European Union, Human rights

Tagged as European Court of Human RIghts, Homosexual Rights, Italy, Same-Sex Marriage

by Constitutional Law Group | November 14, 2012 · 4:35 pm

Tom Hickman: The Return of Abu Qatada (to the streets of London)

The Abu Qatada saga is proving to be a very expensive and very embarrassing headache for the British Government. Following his narrow victory in Strasbourg in January, in which he succeeded only under Article 6, many assumed that the Government would secure the necessary concessions from the Jordanian Government that would enable him to be returned. Instead, yesterday he was back on the streets of London rather than the streets of Amman, on bail, after SIAC ruled on Monday that any return to Jordan would still violate Article 6.

Abu Qatada’s victory has left the Home Secretary—who rashly stated in April that Abu Qatada would soon be on a plane back to Jordan—with egg on her face. The Government has said it will appeal SIAC’s ruling and the Prime Minister has lamented that he believed his Government had obtained the “right assurances” from the Jordanian Government.

Apart from the cost and the embarrassment, the saga is of great importance in constitutional terms because it poses one of the most significant threats to the UK’s human rights legislation, prompting calls for scrapping the Human Rights Act and re-defining our relationship with the Strasbourg Court.

Although such calls have been noisily repeated since Monday, SIAC did not decide any issue of principle, nor indeed did the case turn on assurances given by the Jordanian Government (no matter what the Government says).

The point at issue was very narrow. There was no dispute as to the legal test to be applied: it was agreed that the Commission should ask itself whether there is a real risk that evidence derived from torture would be used upon retrial of Abu Qatada in Jordan (It will be recalled that Abu Qatada was convicted in his absence of involvement in a series of explosions in 1998 and a foiled conspiracy in 2000 both against Western and Israeli targets in Jordan). There was no dispute that there would be a retrial in Jordan. There was no dispute that there was a real risk that the statements made by two individuals who had been co-defendants in the proceedings had been given under torture. The question purely and simply boiled down to whether there was a real risk that those statements would be admitted in the retrial.

Thus, one of the most important and high profile human rights cases turned entirely on one of the most arcane issues of recent years: a question of Jordanian criminal procedure on the admissibility of evidence of co-defendants in the Jordanian State Security Court.

Questions of foreign law are becoming increasingly prevalent in public law cases. Foreign law issues have in the past mainly been confined to private law disputes, where contract or tort actions are pursued in the UK courts but where foreign law applies. UK courts and tribunals are perfectly comfortable examining foreign law and there are very well established ways of doing it.

SIAC considered expert evidence from two Jordanian lawyers. The UK Government relied upon a lawyer who used to practice in the State Security Court. Abu Qatada’s legal team relied upon expert evidence from the most senior serving member of the State Security Court. The court accepted the evidence of the latter.

There were two material points. On point one, SIAC held that the two former co-defendants could not give fresh evidence under oath in the State Security Court but that their previous statements to the Jordanain prosecutor could be adduced under the Article 148 of the Jordanian Code of Criminal Procedure in the retrial (“CCP”) (These are the statements which it is said were made under torture.)

On the second point, SIAC held that the prevailing approach of the State Security Court to exclusion of evidence which is claimed to be the product of torture is to require individuals to prove it. An amendment to the Constitution in 2011 prohibiting reliance on evidence obtained by torture had not altered this approach (it would, SIAC held, probably require a decision of the Court of Cassation for the approach to change). There was thus at least a real risk that the statements would be admitted because the passage of time meant the burden of proof would be “difficult to discharge” and allegations of torture had previously been rejected, despite significant evidence to the contrary.

On this basis SIAC ruled against the Home Secretary, and then released Abu Qatada on bail given the absence of any reasonable prospect of imminent removal.

Questions are being asked. The most immediate is: can the Government appeal? The answer is: with great difficulty. In English law questions of foreign law are treated as questions of fact. Appeal from SIAC lies only on questions of law. Not only was SIAC rigorous in its approach to the foreign law issue, the Government can hardly have been confident about its expert evidence. As SIAC recorded, the arguments advanced by the Government’s expert had not been included in his evidence to the Strasbourg Court and the opinions of his on which the Government relied had been “formed relatively recently”, i.e. conveniently since Strasbourg’s ruling. The Government’s expert also acknowledged that other defence lawyers that he had consulted did not share his views, and they were untested and not representative of past practice. By contrast Abu Qatada’s expert, apart from being better qualified and well regarded by the British Government, had consistently propounded his views as well as, remarkably, having provided “unstinting assistance” to the British Government since the Strasbourg ruling.

It should also be emphasised that the only other issue in the case was an assessment of risk based on the expert evidence, and questions of risk are also questions of fact.

In short, whilst it is not inconceivable that a question of law might be found here, the judgment provides thin gruel for the Government’s lawyers. SIAC took a conventional approach to making findings of foreign law on which the case turned.

The next question is: how can Abu Qatada be returned? The answer to this question is that it would require an amendment to the CCP to alter the burden of proof. The Government is not in a particularly strong position to press for this given that the position of Jordanian law as it stands is not significantly different from the approach contended for by the Government and accepted by the House of Lords in A (No 2) [2006] 2 AC 221, that is to say, proof of torture on balance of probabilities. The only other options appear to be an undertaking by the prosecutor not to rely on the evidence of the two former co-defendants or not to re-try Abu Qatada. Both these options would also require amendments to the CCP and may be unrealistic.

Given the limited options, the next question is: is there a problem with human rights law? There is no doubt that in this exceptional case the Government is stuck between a rock and a hard place. Some may question Strasbourg’s decision in Abu Qatada v UK that the use of evidence obtained by torture automatically constitutes a flagrant denial of justice in a foreign state irrespective of the significance of the evidence to the trial and the legal protections in the country to ensure that such evidence is excluded. Prior to Abu Qatada v UK, the Strasbourg Court’s position was that the use of such evidence “raises serious issues as to the fairness of the proceedings”. The further step taken in Abu Qatada v UK, that its use is inevitably a flagrant denial of justice, however it comes about, results in the paradox that a person has a right in this country not to be subject to a trial in a foreign state in which there is a real risk that evidence deriving from torture will be deployed; whereas a person in this country has no equivalent right in respect of a trial in this country, that is to say, it is not the law here that a hearing is automatically unfair if there is a real risk that evidence obtained by torture would be admitted. The fact that the Strasbourg jurisprudence may be moving towards recognising the latter right does little to reduce the oddity, not least because it still gives rise to the question of how ‘domestic’ and ‘foreign’ rights could be the same.

But an exploration of the pros and cons of the Strasbourg position would require a much more thorough analysis than can be given here. The Strasbourg jurisprudence is aimed at real and practical problems in respect of states in which torture is a deeply ingrained part of the system, and known to be so by the UK and other Contracting States. From SIAC’s account of the evidence against Abu Qatada in Jordan it seems doubtful that even a higher threshold would much assist the Government in his case. The confessions of the two former co-defendants would, it seems, form a central part of the case against Abu Qatada and there are very serious question marks indeed over those statements, which, nonetheless, are probably now beyond resolution one way or the other. Insofar as Abu Qatada remains at risk of a trial in which those statements are deployed as the case against him it is difficult to object to a human rights law which refuses to deport him. Objecting, nonetheless, is what many people are doing.

Tom Hickman is a barrister at Blackstone Chambers and a Reader in Law at University College London.

Suggested citation: T. Hickman, ‘The Return of Abu Qatada (to the streets of London)’, UK Const. L. Blog (14th November 2012) (available at http://ukconstitutionallaw.org).

2 Comments

Filed under European Union, Human rights, Judiciary

Tagged as Abu Qatada, Article 6 ECHR, European Court of Human RIghts, Human Rights Act, Human Rights Act Reform, Relationship Between European and National Law, SIAC

by Constitutional Law Group | July 16, 2012 · 7:34 am

Anitta Hipper: In Hungary’s Footsteps: Different Victor, Same Strategy

On January 1, 2012 with an amended Constitution in place, a once praised EU accession candidate, Hungary, proved that rule of law and consolidated judicial institutions are not at all irreversible. A new shift of power allowed Viktor Orbán, the Hungarian Prime Minister and the FIDESZ government to silence the Hungarian Constitutional Court, one of the strongest and most active Courts in Central and Eastern Europe.

It does not come as surprise, when Romania, considered by EU officials a laggard in fulfilling EU’s conditions for membership, goes along the same path as Hungary, by depriving the Romanian Constitutional Court of its powers. Unlike Hungary, which was considered a role model in Central and Eastern Europe due to its independent and efficient judiciary, Romania remained a concern for the EU despite considerable progress in reforming its judiciary as its political system is plagued by a chronic lack of consensus, with personalized institutional appointments and a judiciary that was not allowed to reach the same level of independency from the executive as in Hungary. Furthermore, skeptics of Romania’s readiness to join the EU both from the political praxis and academia were proven right when Monica Macovei, a disputed Minister of Justice at home, but considered a reformist force by Brussels, was dismissed from her office after the country joined EU in 2007.

Since Romania’s application for EU membership on June 1995, the judiciary suffered from continuous institutional redesign and personnel change according to the interests of successive governments. An overly rapid legislative process relied upon a ‘copy and paste’ method of transplanting Western legislative and institutional models and complex reform packages into the Romanian legal system. These were adopted by subsequent governments in a hasty manner, using votes of confidence and emergency ordinances. This eliminated the possibility of critical discussion and limited the chances of building political consensus over the quality of the reforms.

The instrumentalization and politization of the judiciary is not a novelty in Romania, which has remained trapped in this legacy since Communism. In the current political crisis, rule of law institutions are kept hostage in order to prepare the political battle between the Prime Minister Ponta and the now suspended President Traian Basescu. The tense relationship between the Prime-Minister and the President Basescu has been repeatedly put to the test due to Romania’s unclear semi-presidential system and Basescu’s desire to be an ‘active’ president. This escalated into an open conflict on 27 June 2012, when the Romanian Constitutional Court was called to decide if the President or the Prime Minister has the right to represent Romania at the European Council’s meetings. The RCC decided in favor of President Basescu. Prime Minister Ponta’s accusations that President Basescu had overstepped his powers and influenced the judiciary triggered a vote in the Parliament in which the leftist Social Liberal Union (USL) succeeded in suspending the President and requiring a referendum to be held on 29 July 2012. According to Article 96 (1), the Chamber of Deputies and the Senate may decide the impeachment of the President of Romania for high treason, in a joint session, based on the votes of at least 2/3 of the number of deputies and senators (Romanian Constitution 2003). In the vote on President Basescu, the measure of impeachment was overwelmingly decided with 256 of the votes for and 114 against.

According to Article 95, the president may be suspended only after consultation of the Constitutional Court (RCC). The RCC’s consultation role has been changed from a simple advisory one in 2010 (due to an amendment to Article 95 proposed by Dan Sova, a Social Democrat senator) into an obligatory consultation. Accordingly, the RCC’s consultation on the constitutionality of the Parliament’s law and ordinances transformed the RCC into a last institutional filter on the decision of the impeachment of the President. The amendments envisaged by USL intended to remove this filter by depriving the RCC of its right to rule on the constitutionality of the Parliament’s decisions and amended through an emergency ordinance (EO 38/4 July 2012) on 5 July 2012 the Law on the organization and functioning of the Constitutional Court (Law 47/1992).

While according to the Constitution, amendments to complex and fundamental laws such as the Law on the organization and functioning of the Constitutional Court are prohibited from being passed through emergency of ordinance, the USL has succeeded in limiting the independence of the rule of law through several measures:

1. The replacement of the People’s Advocate Gheorge Iancu (the Ombudsman) with a former counselor of the president Iliescu, Valer Dorneanu. The Romanian Ombudsman acts as an institutional filter that could stop the emergency of ordinance to impeach the president, as he has the right to notify the Constitutional Court to adjudicate on the constitutionality of laws of the government before their promulgation by the Parliament (Art. 146a Romanian Constitution 2003);

2. The replacement of the President of the Senate, Vasile Blaga (National Liberal Party) with Crin Antonescu. According to Art. 98 (1), the president of the Senate serves at the interim President (Constitution of Romania 2003). Hence through the successful suspension of President Basescu, and the replacement of Blaga, as of July 3^rd 2012 Romania has a new interim president, the President of Senate, Crin Antonescu.

3. The replacement of Roberta Anastase, the President of the Chamber of Deputies.

4. The Romania’s National Ethics Committee has been disolved, while still debating charges of plagiarism against Prime Minister Ponta. Ponta has been accused of plagiarism by a scientific journal, which claimed that more than half of his PhD thesis consists of copied pasted work.

Further, the removal of President Basescu occurred through an emergency ordinance, which changed Art. 10 of the Law 3/2000 on the referendum law, and loosened the impeachment procedures of the president. The previous provision of half plus one of all voters registered on permanent electoral lists has been changed to half plus one of those who are voting on the referendum day set on July 29, 2012 to be sufficient for a valid referendum.

On July 10, 2012 the RCC declared the decision to impeach the president constitutional, but maintained the provision that half plus one of all registered voters on electoral lists (around 9 million voters) as valid, supporting the previous position, opening a gate for Basescu on July 29 2012 to become reelected. The RCC, while admitting the constitutionality of the removal of both presidents of the Parliament, Blaga and Anastase, defended its right to decide upon the constitutionality of the Parliament’s laws and ordinances by stating that “the legislative solution that excludes the Parliament’s decisions from the constitutional control and impacts on values and constitutional principles is unconstitutional”.

Is Romania following in Hungary’s footsteps? According to Prof. Scheppele, as Ponta did not take over the presidency and the RCC yet, as opposed to Hungary, where the Constitution has been already rewritten and the institutions silenced, there is still a chance that the RCC will survive these attacks. There is no doubt, however, about the speed of the political crisis and the fact that the USL’s legislative proposals are severe violations of the Constitution. On the other side, the increasingly unpopular President Basescu considered an active veto-player in political battles is not at all uninvolved in the political crisis and in the fight over the institutions. The call for normality intensifies, as Romanian experts argue that the political struggle between the government and the opposition is causing massive damage to the quality of Romanian democracy and its international credibility as the constant institutional redesign and misuse of the judicial institutions for political purposes continues.

Anitta Hipper is a PhD candidate at the International Relations Department, University of Freiburg.

A version of this post originally appeared in the Verfassungsblog, and it is reposted here with thanks.

Leave a Comment

Filed under European Union

Tagged as Judicial Independence, Romania, Rule of Law

by Constitutional Law Group | June 21, 2012 · 7:13 pm

Dorota Leczykiewicz: The ‘national identity clause’ in the EU Treaty: a blow to supremacy of Union law?

The provision generally referred to as ‘the national identity clause’ is located Article 4(2) of the Treaty on European Union (TEU). It says:

The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

Article 4(2) replaces a more modestly formulated provision of Article 6(3) of the pre-Lisbon Treaty. It is now situated between a provision laying down the principle of conferral (according to which competences not conferred on the Union in the Treaties remain with the Member States) and that laying down the principle of sincere cooperation. The full significance of the provision has not yet been explored in the case law. Three scenarios come to mind, in which the ‘national identity clause’ might prove significant. First of all, the clause may be invoked by the Member States challenging validity of an EU act, either independently or in conjunction with an argument based on the principle of subsidiarity. Here, it will relate to the question of when and how the EU should exercise its competences, especially those of a more general character, such as Article 114 TFEU, which enables the Union to adopt harmonising measures to improve the functioning of the Internal Market. Secondly, Member States may invoke national identity as a justification for a failure to fulfil obligations stemming from EU law. The Court of Justice, as an institution of the Union, will have to show respect to national identities by allowing national authorities to derogate from, for example, free movement provisions. Finally, Article 4(2) TEU could be seen as codification of the case law of national constitutional courts, who often claim that EU law supremacy is only conditional. Whether it is the protection of human rights or the preservation of the essential structures of national constitutionalism, they cannot, the argument goes, be overridden by EU law.

‘National identity’ case law

Looking at the case law (both of the Court of Justice of the EU and of national constitutional courts) we can see the use of the ‘national identity’ clause in all three contexts. In Spain v Eurojust Spain was challenging calls for applications issued by Eurojust, which demanded the submission of the application form in English. While Spain relied on the concern for the protection of their language independently, and not as part of their national identity, AG Maduro in his opinion did draw the connection, which indicates that national identity may be relevant for cases in which the validity of EU acts is at stake.

More interestingly, in two cases the Court of Justice confirmed that the ‘national identity clause’ may play an important role in the context of Member States’ derogations from EU law. In Sayn-Wittgenstein the Court had to decide whether an Austrian administrative decision correcting the surname of the applicant in the register of civil status by removing from it elements which referred to a title of nobility was compatible with EU law. The Court held that the matter fell within the scope of EU law because the applicant was an EU citizen who had exercised the right to free movement (she resided in Germany). Because of a confusion and inconvenience which were liable to arise from a divergence between the name she would use in Germany (which included the element referring to the tile of nobility) and the one she would have to use in Austria (deprived of that element) the decision of Austrian authorities was regarded to be an obstacle to free movement and thus in need of justification. In assessing this latter issue the Court held: ‘in the context of Austrian constitutional history, the Law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons recognised under European Union law.’ It follows that Article 4(2) TEU was used as an element of the proportionality review in order to strengthen the claim that national authorities should enjoy a broad margin of administrative discretion where ‘the status of the State as a Republic’, as an element of Austrian identity, is at stake.

In Runevič-Vardyn, the applicant challenged the spelling of her name adopted by Lithuanian authorities. The applicant was of Polish ethnicity and wanted her first name and surname to be spelt according to the rules of the Polish language. Her predicament was moreover deepened by the fact that her Polish marriage certificate used the Polish spelling for her husband’s and now also her surname. By changing the spelling also of her married name Lithuanian authorities made her bear a different name from that of the applicant’s husband. The Court of Justice held that EU law ‘[did] not preclude the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend the surname which one of its nationals had prior to marriage and the forename of that person, where those names were registered at birth in accordance with those rules’. However, the Court declined to rule conclusively on the question of whether Lithuanian authorities could be regarded to have breached EU law when they refused to amend the part of applicant’s name which she shared with the husband. If a violation was found, a question of justification would arise, and in this context the Court invoked the ‘national identity clause’ to point out that protection of the official national language by imposing the rules which govern the spelling of that language, constituted, in principle, ‘a legitimate objective capable of justifying restrictions on the rights of freedom of movement and residence provided for in Article 21 TFEU and [might] be taken into account when legitimate interests [were] weighed against the rights conferred by European Union law’. What is very interesting about this ruling is that the ‘national identity clause’ is held to possess a double function. First, it can act as an objective which prima facie justifies a restriction of an EU right (i.e. a derogation from an EU obligation imposed on the Member State). Secondly, the same concern may additionally play a role when the national court is balancing the concern in question against an EU right. This double function of the ‘national identity’ concern suggests that a reliance on it weighs very much in favour of national rules and against the right which an individual derives from EU law. If this is the case, and despite a seemingly more modest formulation used by the Court, the ‘national identity clause’ might actually have a trumping effect.

This goes in line with what AG Maduro observed in his opinion in Michaniki:

“The preservation of national constitutional identity can … enable a Member State to develop, within certain limits, its own definition of a legitimate interest capable of justifying an obstacle to a fundamental freedom of movement.”

However, he does not quite want to accord the ‘national identity clause’ the trumping effect which the Court’s ruling in Runevič-Vardyn suggests. He held:

“[R]espect owed to the constitutional identity of the Member States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become instruments allowing Member States to avoid Community law in given fields. Furthermore, it could lead to discrimination between Member States based on the contents of their respective national constitutions. Just as Community law takes the national constitutional identity of the Member States into consideration, national constitutional law must be adapted to the requirements of the Community legal order.”

‘National identity clause’ and constitutional conflict

So the tension remains. National constitutional rules and practices can be invoked as expressions of values forming ‘national identity’ but there are limits to when such arguments are going to be conclusive. The best illustration that the Court of Justice of the EU will indeed look for an appropriate scope for the application of the ‘national identity clause’, bearing in mind its, in practice, trumping effect, is a recent ruling in a UK case – O’Brien v Ministry of Justice. The applicant, a part-time judge employed on a fee-paid basis and a barrister, tried to rely on an EU Framework Agreement on part-time work to assert his right to retirement pension calculated as a proportion pro rata temporis of that which a full-time Circuit Judge would be entitled to if he had retired on the same date. The Lithuanian government argued that the effect of the ‘national identity clause’ is that EU law simply could not apply to the judiciary. The Court of Justice did not agree with this proposition. It held:

“[T]he application, with respect to part-time judges remunerated on a daily fee-paid basis, of Directive 97/81 and the Framework Agreement on part-time work cannot have any effect on national identity, but merely aims to extend to those judges the scope of the principle of equal treatment, which constitutes one of the objectives of those acts, and to protect them against discrimination as compared with full-time workers.”

The EU Court is clearly assuming the competence to decide when the application of EU law should be seen as affecting national identity. Arguably, once it is accepted that national identity is being affected, the trumping effect of Article 4(2) TEU will be activated.

What is slowly emerging from the case law is that the ‘national indemnity clause’ could contribute to the resolution of the constitutional conflict in the EU, but only in a partial way. As we know, the constitutional conflict in the EU concerns a series of issues, ranging from the acceptance of the principle of supremacy, its limits and the basis on which national courts should disapply conflicting national law, to the discussion of who is the final arbiter of constitutionality in the EU, the Court of Justice of the EU or national constitutional courts. Finally, there is a difficult question of how standards of constitutional review are to be constructed. Should EU acts be reviewed in the light of national standards or should it absorb those standards and in this way preserve its supremacy over national law? A direct reference in the EU Treaty to ‘national identities’ and the imposition on the European Union an obligation to respect them should be seen as way of softening the edges of EU law in both ways. On the one hand, reliance on ‘national identities’ is grounded in EU law and the Court of Justice of the EU is very much in control when the argument will succeed. It allows the concern for national identity to play a role, but within the limits it delineates. The German Federal Constitutional Court, on the other hand, maintains that Article 4(2) TEU is recognition of a national constitutional court’s power to safeguard national constitutional identity by carrying out review of EU acts by that court (the Lisbon judgment). If an EU act does not respect national identities national courts will have the power to resist the obligations stemming for the state from the act. What ‘national identity’ encompasses will for this purpose be determined by the national (constitutional) courts. If so, supremacy of EU law may have suffered a serious blow.

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

Leave a Comment

Filed under European Union

Tagged as European Law, European Union, Lisbon Treaty, National Identity Clause, Relationship Between European and National Law

by Constitutional Law Group | June 15, 2012 · 12:44 pm

Cormac Mac Amhlaigh: W(h)ither Sovereignty?

Harbingers of the demise of sovereignty are not new. At least since Karl Marx prophesized the withering away of the state, the heralding of the end of sovereignty has been an almost recurrent theme in political theory. In recent times, however, these prophecies have become increasingly insistent and have, perhaps for the first time, emanated predominately from the field of public law. In the European context, the debate about whether and to what extent EU membership compromises state sovereignty has been a central preoccupation of scholars of European integration for a generation, a debate which has intensified in the aftermath of the Euro crisis. In the U.K., a host of developments, both European and domestic, continue to fuel the discussion as to whether Parliament is indeed still sovereign, a notable recent catalyst being the ECtHR’s role in clipping Parliament’s wings over issues such as immigration and prisoner voting.

The concept of sovereignty, including its institutional expression in parliament in the UK constitution, provides part of the deep grammar of public law. Thus for public lawyers, the question of the fate of sovereignty is of central concern to our discipline. However, if it is a commonplace that sovereignty is somehow affected by recent political developments, what is less clear, is how. Logically speaking there are three possible answers to this question: sovereignty hasn’t changed, is undergoing a slow and steady demise or is evolving and adapting to new realities. Holders of the no-change position have disputed that sovereignty has changed at all. They rely on Schmittian scenarios of unilateral Member state withdrawal from the EU, or repeal of the various ‘constitutional statutes’ of which a substantial part of the UK constitution is apparently made, if for no other reason than to allow Parliament to flex its sovereign muscle, to argue their case. Others dispute the continuing relevance of sovereignty to the contemporary world, seeing demise as the only possibility. Given the supposedly categorical nature of the concept – either you have it or your don’t – then the notion of sovereignty evolving rather than simply being surrendered doesn’t make sense, and so we must get used to our new post-sovereign realities, recalibrating our practices, including public law, accordingly.

An emerging more nuanced view is that sovereignty is indeed evolving but not to such an extent that it is no longer relevant. This ‘late sovereignty’ position holds that the concept still retains its purchase on law and politics, both domestic and supranational, but that its has evolved from the Westphalian paradigm of hermetically sealed sovereign states to incorporate transnational actors such as the EU and ECtHR and their influence on domestic public law. This evolution denotes a change in the nature of sovereignty claims from categorical to more relative claims of authority such that simultaneous sovereignty claims, both national and supranational, are not incommensurable.

This more nuanced account which views sovereignty in phases from early, high to late forms, implicitly relies on a conception of sovereignty which is flexible and context-specific, rather than immutable and rigid meaning the same thing in all times and places.

As the grammar of public law, the concept of sovereignty entails a series of rules governing the idea of ultimate authority in legal and political practice providing the ground rules of ‘sovereignty games’. The constitutive rules of sovereignty games constitute the actors participating in the game, that is those agents which makes ultimate authority claims, as well as providing the primary indicator that a particular ‘game’ is being played – that a sovereignty game and not some other sort of game, such as post-sovereignty, is being played. The regulative rules provide standards against which to measure how well the game is played and as such provide criterion for what constitutes a ‘good’ or legitimate claim to ultimate authority. It is the evolution of this grammar, the constitutive and regulative rules of sovereignty games, which mark the passage from high to late sovereignty.

The rules of sovereignty games played during the high sovereignty era, then, were played primarily by sovereign states, making claims to ultimate authority over a territory and people (the constitutive rules of high sovereignty), justified according to notions of constituent power, popular sovereignty, divine right or even mere convention (the regulative rules of high sovereignty). In late sovereignty games, the grammar has evolved such that the constitutive rules of late sovereignty games relate not, or not exclusively, to territory and people, but to functional domains such as trade, the environment or human rights. Furthermore the constitutive rules of late sovereignty games imply that the actors making such claims to ultimate authority no longer fit the mould of the sovereign state. Thus, the EU makes claims to ultimate authority over certain sectorally defined functions without being, or claiming to be, a sovereign state.

The regulative rules of late sovereignty games, that is, the criteria for what constitutes a ‘good’ sovereignty claim, have also evolved. First of all, the repertoire of reasons that count as ‘good’ or legitimate claims to ultimate authority has expanded beyond those of high sovereignty. For example, the justification of ultimate authority claims by the EU over specific functional domains does not rely on constituent power or popular sovereignty, the reason of choice in the high sovereignty era, but rather on grounds of functional necessity. Thus, the paradigmatic EU late sovereignty claim, the claim to the primacy of EU law by the ECJ, was justified, not according to the will of a European people(s) but with reference to the need to achieve the objectives and aims of the EU Treaties. In this way, the reasons which justify and legitimate late sovereignty claims have expanded beyond popular sovereignty to include what Fritz Scharpf has called ‘output legitimacy’.

Moreover, conventional justifications of ultimate authority in particular contexts have also shifted in the era of late sovereignty. Whereas the vestiges of high sovereignty are still traceable in the sovereignty claims of EU Member states, they are arguably not unaffected by the transition from high to late sovereignty in Europe. This is because the conventional justification for sovereignty in a specific national context in the high sovereignty period no longer provides the justification for national sovereignty in late sovereignty. Two examples of recent EU Member state sovereignty claims serve to illustrate this point; the German Federal Constitutional Courts (GFCC) Lisbon decision and the UK Parliament’s European Union Act 2011, both of which have received attention in previous posts on this blog.

In June 2009, the GFCC handed down its decision on a challenge to German ratification of the Lisbon Treaty of 2008 finding that such ratification would not per se violate the German constitution. Significantly, the Court found that, notwithstanding the constitution’s ‘openess’ to European integration, that there were absolute limits on the level of integration possible under the German constitution. The rationale for this conclusion was based on a strong assertion of German sovereignty, references to which were littered throughout the judgment. In particular the court justified German sovereignty according to the principles of constituent power, popular sovereignty and the self-determination of the German people which created a particularly robust constitutional identity reflected in the provisions of the German constitution. This identity set absolute limits to the level of integration possible under the constitution. Nothing, not even the constitutions ‘openess’ to European integration, could undermine this identity.

Similarly, the European Union Act of 2011, can be read to entail sovereignty claims on behalf of the UK vis-à-vis European integration. In particular two features stand out in this regard, the s. 18 ‘sovereignty clause’ which states that EU law falls to be recognised and available in law in the United Kingdom only by virtue of Acts of Parliament as well as the various ‘referendum locks’ triggering a referendum inter alia whenever further powers are transferred to Brussels. In terms of justifications of these claims to UK sovereignty, the sovereignty clause has been justified according to nebulous references to the common law’s recognition of Parliamentary sovereignty, whereas the referendum locks are implicitly invoking the will of the people and theories of popular sovereignty and constituent power.

On an initial reading, these assertions of national sovereignty by Germany and the U.K. are unremarkable. They seem to be rather typical assertions of national state sovereignty according to the classic tropes of high sovereignty games. A closer reading, however, shows that given the context within which they were made, are better understood as forms of late sovereignty claims prompted by the process of European integration.

Firstly, with respect to the GFCC’s Lisbon decision, the assertion of German sovereignty based on the people and a German constituent power marks a shift from the conventional justifications of German state sovereignty in the post-war era. In the reconstruction of post-war Germany, and particularly in the drafting of the new constitution, the previously unhappy experiences with popular sovereignty based on a constituent power were suppressed in favour of a strong assertion of the rule of law and the supremacy of the constitution over the political process, which was instrumentalized by a powerful Constitutional Court which frequently undid the will of Parliament. As Christoph Mollers has argued, this was copper-fastened in the basic law itself through an absolute prohibition on the holding of referendums or plebiscites. It was also explicitly recognized by the GFCC itself in the Lisbon decision where it found that:

‘The [post-war constitution] … breaks with all forms of political Machiavellianism and with a rigid concept of sovereignty which until the beginning of the 20^th century regarded the right to wage war – even a war of aggression – as a right due to sovereign state as a matter of course’ (para. 199).

Thus, the post-war German constitutional landscape was marked by a ‘constitutional patriotism’ crystallizing around the constitution and the rule of law rather than strong assertions of popular sovereignty or constituent power. Against this background the justificatory claims of German sovereignty in the Lisbon decision, mark a shift from the constitutional patriotism which has underpinned and justified German sovereignty in the post-war era in the light of the integration experience to an assertion of constituent power and popular sovereignty in the late sovereign period. Similarly in the UK, the sovereignty clause and the referendum locks in the European Union Act 2011 mark a shift in conventional justifications of UK sovereignty. Conventionally, UK Parliamentary sovereignty was, as Wade argued, justified according to its social ‘facticity’ rather than by references to the common law as the Ministerial statements surrounding the sovereignty clause seem to suggest (and the Courts have recently supported with gusto). More strikingly, perhaps, however is the novel justification of UK sovereignty, not based on Parliamentary sovereignty, but by reference to popular sovereignty based on a constituent power as evidenced in the referendum locks. As Martin Loughlin has argued, the idea of a constituent power is almost completely alien to modern British constitutional practice. Thus, this shift in the justifications of national sovereignty in Germany and the UK in the face of European integration qualify these claims as ‘late’ rather than ‘high’ sovereignty claims.

Sovereignty is still prevalent in our political vocabulary and is still providing the grammar of the practices of public law. However, if we scrape beneath the surface, we can see how the grammar of this constitutive concept is itself subtly evolving. This evolution is essential for understanding constitutional change in the contemporary world.

Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.

3 Comments

Filed under European Union, UK Parliament

Tagged as European Union Act 2011, Lisbon Case, Parliamentary sovereignty, Relationship Between European and National Law, Sovereignty

by Constitutional Law Group | May 2, 2012 · 4:08 pm

Carol Harlow: Surveillance and the Superstate

For a society as devoted to secrets and privacy as the British are traditionally supposed to be, however, the law possesses surprisingly few protections for the communications of its citizens. True, phone hacking has become a criminal offence under the Regulation of Investigatory Powers Act 2000 and the creation and retention of citizens’ data is now regulated by the Data Protection Act 1998 but there is no right of privacy per se at common law and resort is consequently to a haphazard and fragmentary set of common law rights of action, which protect person, property and dignity in limited situations [See Lord Bingham, ‘Tort and Human Rights’ in P Cane and J Stapleton (eds), The Law of Obligations (Clarendon Press, 1998)].

Government (a.k.a the Crown) has by way of contrast traditionally been highly privileged, benefiting from the existence of a set of wide and loosely defined prerogative powers in the area of security and defence. There has never been a constitutional ‘right to know’ and access to official information was until recently narrowly restricted by draconian Official Secrets Acts, which made it an offence for any Crown servant or agent or anyone in receipt of information from a Crown servant or agent to disclose such information without authority. Although toned down by the Official Secrets Act 1989, which restricts the categories of protected information, the underlying ethos, that information in the possession of government is its private property, has not been dispelled by the first freedom of information legislation, which came into force only in 2005 and is riddled with so many exemptions as to merit the label of ‘sheep in wolf’s clothing’ bestowed on it by Rodney Austin [‘The Freedom of information Act 2000: a sheep in wolf’s clothing?’ in J Jowell and D Oliver (eds), The Changing Constitution (Oxford University Press, 5^th edn, 2004)].

In the last two decades, the relationship between state and citizen in the area of information has been complicated by the rapid evolution of information technology, globalization of communications and the multi-level nature of regulation. Many counter-terrorism measures involving surveillance emanate, for example, from the United Nations, while the European Union is starting to play a significant role in access to information and data protection. On the one hand, ICT has facilitated the accumulation and retention in government data banks of vast quantities of information, relevant and irrelevant, about its citizens. Concern over the uses to which such information would be put fuelled opposition to proposals – ultimately defeated – from Tony Blair’s government for citizen identity cards. On the other hand, easy access to the internet and rapid communication via mobile telephones, Skype, social networking sites, twittering and tweeting have worked to the benefit of citizens and rendered government control harder. This point was poignantly illustrated during the ‘Arab Spring’.

Concern, evidenced in the campaign against identity cards, has been growing at national level, over the growing use of modern technology to extend surveillance by public authorities – the proliferation of CCT cameras for crime prevention, centralized and systematic police monitoring of cameras used for traffic control for other purposes, and CCT use by the private sector, where it is barely controlled. The courts have shown themselves relatively unwilling to restrict the use of modern surveillance techniques. In Wood v MPC [2009] EWCA Civ 414, for example, the Court of Appeal rejected a claim that the filming of participants in a trouble-free demonstration and subsequent retention of the photographs was unlawful and amounted to a violation by the police of ECHR Article 8, ruling instead that the practice was a justifiable and proportionate measure for the prevention of crime. After the London riots in 2011, the Metropolitan police pressurized broadcasters to hand over videos and pictures they had taken, threatening a court production order under PACE. The press protested vigorously at the threat to freedom of speech (The Guardian 30 August 2011) but the issue remains unresolved. Similar protests met government proposals – not yet fully particularised – to extend rights of access by public authorities to electronic communications between citizens, stimulating a vigorous political response from the junior partners in the coalition government, (BBC News, 10 April 2012).

Strasbourg, interception and data protection

The interception of communications has brought the United Kingdom up against the Strasbourg Court of Human Rights on several occasions. Indeed, of the long line of cases marks the interest of the Strasbourg Court in interception of communications, data protection and surveillance, several involve the United Kingdom [ECtHR, Factsheet on data protection 2012]. In Malone v United Kingdom (1984) 7 EHRR 14, the issue was telephone tapping by the police, which came to light during Malone’s trial for handling stolen goods. When Malone sought a declaration that the practice was unlawful [Malone v. Commissioner of Police of the Metropolis (No. 2) [1979] 2 All ER 620] Megarry J. ruled (i) that the common law recognised no right of privacy on which to found an action (ii) that no actionable tort had been committed and (iii) that a claim based on Article 8 of the ECHR, which specifically protects the privacy of correspondence, must fail because the ECHR was not (at that time) directly applicable in domestic law. In reaching these conclusions, the judge remarked, however, that he found it ‘impossible to see how English law could be said to satisfy the requirements of the Convention’ and that ‘the subject cried out for legislation’. This did not prevent the British Government from arguing in Strasbourg both that the practice of requiring ministerial authorisation for all telephone tapping was sufficient to satisfy the Convention requirement that interceptions must be ‘in accordance with the law’; and also that the practice of ‘metering’ or recording dialled numbers and the time and duration of calls, fell outside the Convention right. The Government lost on both heads and the Interception of Communications Act 1985 followed.

This legislation is now taken up in the Regulation of Investigatory Powers Act 2000. RIPA’s objectives are wide: it provides for ‘the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, the use of covert human intelligence sources and the acquisition of the means by which electronic data protected by encryption or passwords may be decrypted or accessed’ for purposes of national security or investigation of serious crime by the security services and police. A warrant signed by the Home Secretary is required. RIPA also regulates ‘metering’; it requires records to be kept and made accessible on ministerial request of dialled numbers etc. A monitor in the shape of an Interception of Communications Commissioner is provided. More controversially, RIPA permits a wide range of government agencies, including the Charity Commissioners, Financial Services Authority and local authorities to indulge in similar activities, albeit in limited circumstances. Largely on these grounds, it has been widely criticised as a ‘snoopers’ charter’.

Marginal restrictions on the powers of local authorities are contained in the Protection of Freedoms Bill, currently before Parliament. Unsurprisingly, however, the Home Secretary (Theresa May) did not seize the opportunity afforded by the Bill seriously to curtail the snooping activities of public authorities. Instead, proposals to include in the next Queen’s Speech extensions to RIPA’s ambit have been announced to cover more modern forms of communication, including internet-based email, twittering and tweeting, Blackberries, Skype, mobile phone texting, social networking sites like Facebook and even online games. Proposed new legislation would, it is believed, force internet companies to install hardware enabling GCHQ on behalf of government to examine websites accessed and text messages or email sent. The proposals will in short allow police and intelligence officers to monitor a person’s contacts including websites, although the content of communications will not be accessed. Once again, the records will be available to local councils and other agencies, though in limited circumstances.

In S and Marper v. the United Kingdom [2008] ECHR 1581, the Court ruled on the taking and retention of DNA samples from persons suspected of criminal offences but subsequently acquitted. There is an implicit reproof to the House of Lords, which had ruled to the contrary in R(LS and Marper) v Chief Constable of Yorkshire [2004] UKHL 39, in the ruling that

the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences… fails to strike a fair balance between the competing public and private interests and that… the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.

Necessary changes to bring the law into line with the Strasbourg judgment are also contained in the Protection of Freedoms Bill.

Enter the European Union

But data processing, retention and protection are no longer a purely domestic matter. They are the subject of a major new initiative under the direction of EU Commissioner, Viviane Reding. This is both a necessary and welcome development in view of the vast data banks that have been built up in the EU from material contributed by member states and often widely accessible to member state authorities and officials. Until the Lisbon Treaty came into force, winding up the ‘Third Pillar’ and bringing justice and home affairs into the ambit of the Community, this was a dark and windowless area of EU law and policy. In the Community pillar, some of the sketchy and piecemeal regulation, such as the Telecommunications Data Protection Directive (Council Directive 97/66 of 15 December 1997) or Data Retention Directive (Directive 2006/24/EC of 15 March 2006), had shown a capacity to bite. In Case C-518/07 Commission v Germany [2010] ECR I-1885, for example, the Commission successfully brought Germany before the Court of Justice because its domestic data supervisory authority was insufficiently independent. But Directive 95/46 on data protection, the generally applicable legislation, contains exceptions in Article 13, which authorises Member States to restrict the scope of the rights and obligations provided in the Directive when ‘such a restriction constitutes a necessary measure to safeguard national security, defence and public security’. Similar exceptions apply to the prevention, investigation, detection and prosecution of criminal offences. The consequence was policy-making marked by a serious democratic deficit and information shortfall, culminating in the highly suspect Prüm Convention, which provided for the establishment of DNA profile databases and allows access to partner countries’ fingerprint databases, which the other contracting parties will be able to check on request not only for the purpose of preventing terrorist attacks and serious criminal activity but also in case of political demonstrations and ‘other mass events’. Similarly controversial was the agreement with the United States on the transfer of passenger name record data (PRN), successfully attacked in the Court of Justice Case C-301/06 Ireland v Council and European Parliament (10 February 2009), but now the subject of a new agreement foisted on a not-entirely willing Parliament (see http://www.statewatch.org/pnrobservatory.htm).

Coupled with the EU Charter of Fundamental Freedoms, the Lisbon Treaty (TFEU Article 16) provides a new basis for, and mandates, EU lawmaking, from which the European Parliament can no longer be excluded. A proposal from the Commission for a legislative text would provide a Europe-wide framework for data protection. This would have a major impact on private generators of electronic data, which would in future have to prove either consent of the data subject to retention or that retention was necessary. A second proposal for a directive covers processing of personal data by law enforcement authorities for purposes of crime prevention, investigation, etc. and ‘the free movement of such data’. The Commission is also reviewing the Data Retention Directive, which requires companies to store communication traffic data for a period of between six months and two years. In fact, some member states and notably Sweden have already implemented this measure.

The European Data Supervisor has, however, expressed ‘serious disappointment’ with the provisions in the law enforcement area [Opinion of the European Data Protection Supervisor on the data protection reform package]. While welcoming the fact that the directive would cover domestic processing, he regrets that the level of data protection in this area would not be increased:

The main weakness of the package as a whole is that it does not remedy the lack of comprehensiveness of the EU data protection rules. It leaves many EU data protection instruments unaffected such as the data protection rules for the EU institutions and bodies, but also all specific instruments adopted in the area of police and judicial cooperation in criminal matters. [para. 443, emphasis mine]

The UK Information Commissioner has expressed similar views. He sees the Commission proposals as less ambitious than the current UK Data Protection Act and hopes that ‘the provisions will be strengthened as negotiations progress’. Clearly, we cannot rely on the European Union to halt the march towards a surveillance state.

Carol Harlow is Emeritus Professor of Law at the London School of Economics

1 Comment

Filed under European Union, Human rights

Tagged as Data Protection, European Court of Human RIghts, Official Secrets Act, Regulation of Investigatory Powers Act, Surveillance

by Constitutional Law Group | March 10, 2012 · 2:08 pm

Tom Hickman: Data Over-Protection

When my central heating boiler stopped working the other day I was expecting exorbitant costs, cold nights huddled around a hot water bottle and possibly a few hours holding on the phone to British Gas. I was not expecting an encounter with the Data Protection Act.

It happened when I was arranging an appointment with a gas boiler ‘engineer’. I was asked for my mobile telephone number so that the engineer could call me if he couldn’t find the house. I duly supplied it. At the conclusion of the call I asked the woman from British Gas if she could read my mobile telephone number back to me to check she had written it down right. “I am sorry” she replied “we can’t give out mobile telephone numbers because of data protection”. I pointed out that I had just given the number to her, but no amount of reason would prevail. The most she would do was read back the last three numbers.

This is by no means my only experience of the irrational effects of data protection laws. Many readers of this blog will have similar tales. But such experiences must not be dismissed as lighthearted examples of corporate idiocy. They are symptoms of a genuine underlying problem that can have consequences far more serious than a boiler engineer failing to turn up for an appointment.

The British Government no less than British Gas is apt to invoke data protection as a reason for not supplying information in obviously sensible circumstances. When the All Party Parliamentary Group on Extraordinary Rendition requested data about the transfer of British-captured insurgents from British forces to Afghan authorities and third nations (but not the names of the individuals concerned), as part of a project to review compliance with diplomatic assurances, the Group was met with a refusal based on the Data Protection Act. The refusal was particularly unfortunate given that the request was made to further the interests of the individuals on whose behalf the British government was invoking data protection concerns.

Yet more extraordinary was that until the morning of a hearing before the Upper Tribunal the Ministry of Defence was asserting that disclosure could not be made without the ‘explicit consent’ of each individual detainee or former detainee because the information sought was ‘sensitive personal data’ on the ground that it would be possible to infer the religious beliefs of those captured from the information: they would almost certainly be Muslim.

Then there is the case of Mr Rahmatullah. Mr Rahmatullah was captured by British forces in Iraq and handed-over to the Americans before being unlawfully rendered to Bagram airbase detention facility, where he remains. The legal charity Reprieve sought to identify him after it was discovered a British captured detainee was held at Bagram, in order to commence habeas corpus proceedings in the US. But the UK Government refused to provide his name or details because, in the absence of him having given his consent, it would breach his rights under the Data Protection Act. And so he languished in incommunicado detention. Fortunately his identity was eventually worked-out by a combination of luck and good detective work by Reprieve. [1]

Even when cases do get on foot, data protection can rear its head to make rights enforcement more difficult. It is recurring problem in litigation against both public authorities and companies that disclosable material will be redacted on ‘data protection grounds’. Moreover, in Smith [2008] EWHC 694 (Admin), Collins J depreciated the practice of public authorities in inquest proceedings to “routinely redact” the names of “any person” shown in documents which “makes it very difficult and sometimes impossible for interested parties to make preparations to deal with the evidence of a particular witness or to understand how that witness fits in to the whole picture.” He went on to note that such redaction is “taken to absurd lengths” such as by the redaction of correspondence with the family or their representatives.

The reasons for this state of affairs are more complicated than that the data protection laws are too tightly drawn. The problems also stem from the fact that the law itself is Byzantine.

Lawyers are accustomed to experiencing a sinking feeling when data protection rears its head in a case; and the first strategy is usually to try and find a way of not having to address it. The Data Protection Act is one of the most poorly drafted pieces of legislation on the statute book. It has tied the UK Courts up in knots. The consequence of the House of Lords’ judgment in Common Services Agency v IC [2008] UKHL 47, for example, is that the disclosure of information about individuals under the Freedom of Information Act constitutes processing personal data and is prima facie unlawful even if the documents are redacted so that no individual is identifiable from the information disclosed (the reason for this being that the disclosing public authority could—obviously—identify the persons from the disclosed redacted material by matching it up with the original material, which in fairness to the House of Lord is, literally, what the legislation says).

In the All Party Parliamentary Group on Extraordinary Rendition case ([2011] UKUT 153) the Upper Tribunal simply refused to follow the majority of the House of Lords in Common Services Agency on the basis that it just couldn’t possibly be right and it wasn’t absolutely on point. In a subsequent case, the High Court preferred to give such close scrutiny to the leading speech in the House of Lords that it was found to mean precisely the opposite of what it actually says: R (Dept of Health) v IC [2011] EWHC 1430 (Admin). These cases prompt one to reflect that if our highest Courts cannot make head or tail of the data protection laws then the British Government and British Gas ought perhaps to be more lightly censured.

Another problem is that the exceptions permitting processing of personal data are open-textured so that organizations cannot be sure when they are on the right side of the line. Taken together with the risk of criminal sanctions (which always leads to robust corporate compliance) and one has a recipe for irrationality and over-protection.

Let us not forget that data protection laws are supposed to enhance our human rights. They are presented as bulwarks against the surveillance society, by which I mean the ever-greater ability of companies and governments to monitor and analyse information about us.

Such is the status of data protection that the Lisbon Treaty elevated the right of data protection in the EU to the status of treaty right embedded in the EU Charter of Fundamental Rights and Freedoms.

It is thus a perverse effect of data protection laws that they often have opposite effects: negating freedom of information and reducing accountable government.

The EU Commission is currently re-drafting EU data protection laws with the aim of increasing the protection currently afforded to personal data. The restrictions on lawful processing (including disclosure) will become even more tightly framed.

It is proposed to narrow further Article 7(f) of the Data Protection Directive allowing disclosure where “necessary” for the “legitimate the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed” by removing reference to third parties (such as the All Party Parliamentary Group on Extraordinary Rendition or Reprieve). Restrictions are also proposed to the provision allowing processing in the public interest, which will only be lawful where the controller is exercising functions prescribed in legislation (draft Regulation Article 6(1)(e), (f), (3)). The exception relating to disclosure “necessary” to protection the “vital interests” of the data subject is retained but this has been interpreted very narrowly to mean life and death situations such as use of medical records after a life-threatening accident. It is not given any wider compass in the proposals. The upshot will be that work of human rights groups and human rights lawyers working to protect the interests of data subjects will be made even more difficult.

The Information Commissioner has drawn attention to some of these problems in its initial analysis of the Commission’s proposals (February 2012). The IC has stated that the terms of the draft Regulation may, “stand in the way of processing that is desirable, unobjectionable and helpful to citizens.” And the IC has called for “explicit recognition in the Regulation that processing may take place where it is clearly in the data subject’s interests and does not override his or her fundamental rights and freedoms.” It is to be hoped that such well-founded criticisms will be addressed.

In the current climate of concern about the surveillance society it is important to appreciate that the side effects of the over protection of personal data are not confined to farcical exchanges with public utilities companies: data over-protection can undermine the effective protection of human rights.

Tom Hickman is a barrister at Blackstone Chambers.

[1] http://www.reprieve.org.uk/press/2011_06_22_Fox_Hague_Yunus/. Presently the subject of habeas corpus proceedings: R (Rahmatullah) v SSFCA [2012] EWCA Civ 182 on appeal to the Supreme Court. The detective work is described in a witness statement of Clive Stafford-Smith dated 14/04/10

4 Comments

Filed under European Union, Human rights

Tagged as Data Protection, Data Protection Regulation

Category Archives: European Union

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

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

Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

Massimo Fichera and Helen E. Hartnell: All you need is law: Same-sex marriage in Italian courts

Tom Hickman: The Return of Abu Qatada (to the streets of London)

Anitta Hipper: In Hungary’s Footsteps: Different Victor, Same Strategy

Dorota Leczykiewicz: The ‘national identity clause’ in the EU Treaty: a blow to supremacy of Union law?

Cormac Mac Amhlaigh: W(h)ither Sovereignty?

Carol Harlow: Surveillance and the Superstate

Tom Hickman: Data Over-Protection

Email Subscription

Follow us on Twitter

Blogroll

Archives

Recent Posts

Categories

Tags

Follow “UK Constitutional Law Group”