The Human Rights Act 1998, which transposes the European Convention on Human Rights into UK law, is controversal in British politics: the Liberal Democrats and Labour are for the HRA, while the Conservatives are against. The Conservatives want to bring in a British Bill of Rights, but it has never been spelt out what this means in practical terms. Will it contain less rights than the ECHR? More? Would the UK leave the ECHR (and therefore the Council of Europe - which only junta Greece has ever done)?
BBC Radio Four has produced an interesting programme this week on Britain and Human Rights, and what the practical legal implications of moves to change it are. You can listen to it here.
If the link doesn't work, try looking the programme up on the BBC Radio Four website - though you have to be in the UK to use the iPlayer, but I've been able to listen to BBC radio programmes through their websites from outside the UK before.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Thursday, 10 November 2011
Wednesday, 1 July 2009
The Commission and the Smoking Ban: Should Commission announcements be given a health warning?
You may have heard that "Brussels" would like an EU-wide smoking ban:
Predictably, it's got a strong reaction from some:
I've also seen the words "Big Brother" being bandied about. Of course, this all assumes that the EU (or the Commission) has the power to bring in such a ban. It doesn't.
First of all, all the Commission is proposing is a Recommendation, which would call on member states to make the changes themselves. The recommendation would have to be passed by the Council, and wouldn't be legally binding - article 249 EC* states that "Recommendations and opinions shall have no binding force." Basically, all it would do is say "The EU thinks that..."
Even if the Commission wanted to propose a legally binding smoking ban, it couldn't - the EU doesn't have the competence. Article 152 EC outlines the extremely limited competence of the EU when it comes to health - 152(4)(c) states that the EU can adopt "incentive measures designed to protect and improve human health, excluding any harmonization of the laws and regulations of the Member States." [emphasis mine].
There's also case law on the legality of legislation concerning the tobacco industry (mainly laws on labeling and advertising). Tobacco Advertising (Case C-376/98) and Tobacco Advertising II (Case C-380/03) in particular illustrate the limited extent of EU competence when it comes to health: the ECJ said (as a crude summary) that other legal bases [treaty articles] cannot be used to circumvent the express exclusion of the harmonization of laws in the health area, and that health aspects can be taken into account when shaping legislation as long as health isn't the primary purpose behind the legislation (i.e. legislation affecting the free movement of goods and the ability of magazines with tobacco ads in them to circulate freely in the single market).
So if the EU can't enact such legislation, then why is the Commission making such a big fuss? EUobserver hints at it:
The Commission is jumping on the bandwagon and trying to look as if it's doing something useful and popular - and this gives the impression that the Commission is more powerful than it really is. It will convince Eurosceptics (further) that the Commission is an extremely powerful body that can interfere with practically anything, while it's likely that most pro-Europeans will have doubts about whether the EU should have such competence in this area. And those neutral to the debate? They probably won't notice it much, but it confuses further the question of who has responsibility for what. David Keating has a good article on the Commission's opportunism and how the announcement could affect perceptions of the Commission.
The trouble is that the Commission is inflating expectations of what it can do without having the power to influence the outcome, so that whatever the result, the Commission is likely to annoy people and loose support and make it look big, powerful, interfering and incompetent, rather than making itself appear a pro-active force acting in the citizens' interests. Perhaps the tendency to make such announcements is linked to the top-heavy nature of the Commission?
There should probably be health warnings for Commission statements in the future, such as:
"Warning: this statement contains irrelevant political blather."
"Warning: this statement could lead to legislation."
"Warning: this statement could be a product of boredom and should not be taken seriously."
*Treaty Establishing the European Community
"The commission is suggesting the bloc's 27 member states agree smoking in "enclosed public places, workplaces and public transport" be banned by 2012, while children's exposure to tobacco should be specifically tackled and "efforts to give up tobacco use and pictorial warnings on tobacco packages" should be encouraged."
Predictably, it's got a strong reaction from some:
"The UK Independence Party says it will further harm UK pubs and accused Brussels of crossing the line.
"Nobody pretends that smoking is a good thing, but it is legal," said UKIP MEP Godfrey Bloom.
"These bullies seem to have no truck with freedom, liberty or tolerance. Well in that case we shall have to take it back. And if that means a certain level of civil disobedience, well so be it," Mr Bloom added."
I've also seen the words "Big Brother" being bandied about. Of course, this all assumes that the EU (or the Commission) has the power to bring in such a ban. It doesn't.
First of all, all the Commission is proposing is a Recommendation, which would call on member states to make the changes themselves. The recommendation would have to be passed by the Council, and wouldn't be legally binding - article 249 EC* states that "Recommendations and opinions shall have no binding force." Basically, all it would do is say "The EU thinks that..."
Even if the Commission wanted to propose a legally binding smoking ban, it couldn't - the EU doesn't have the competence. Article 152 EC outlines the extremely limited competence of the EU when it comes to health - 152(4)(c) states that the EU can adopt "incentive measures designed to protect and improve human health, excluding any harmonization of the laws and regulations of the Member States." [emphasis mine].
There's also case law on the legality of legislation concerning the tobacco industry (mainly laws on labeling and advertising). Tobacco Advertising (Case C-376/98) and Tobacco Advertising II (Case C-380/03) in particular illustrate the limited extent of EU competence when it comes to health: the ECJ said (as a crude summary) that other legal bases [treaty articles] cannot be used to circumvent the express exclusion of the harmonization of laws in the health area, and that health aspects can be taken into account when shaping legislation as long as health isn't the primary purpose behind the legislation (i.e. legislation affecting the free movement of goods and the ability of magazines with tobacco ads in them to circulate freely in the single market).
So if the EU can't enact such legislation, then why is the Commission making such a big fuss? EUobserver hints at it:
"...a large majority of Europeans favour smoking ban in the workplace (84%), restaurants (79%), as well as also bars, clubs and pubs (65%)."
The Commission is jumping on the bandwagon and trying to look as if it's doing something useful and popular - and this gives the impression that the Commission is more powerful than it really is. It will convince Eurosceptics (further) that the Commission is an extremely powerful body that can interfere with practically anything, while it's likely that most pro-Europeans will have doubts about whether the EU should have such competence in this area. And those neutral to the debate? They probably won't notice it much, but it confuses further the question of who has responsibility for what. David Keating has a good article on the Commission's opportunism and how the announcement could affect perceptions of the Commission.
The trouble is that the Commission is inflating expectations of what it can do without having the power to influence the outcome, so that whatever the result, the Commission is likely to annoy people and loose support and make it look big, powerful, interfering and incompetent, rather than making itself appear a pro-active force acting in the citizens' interests. Perhaps the tendency to make such announcements is linked to the top-heavy nature of the Commission?
There should probably be health warnings for Commission statements in the future, such as:
"Warning: this statement contains irrelevant political blather."
"Warning: this statement could lead to legislation."
"Warning: this statement could be a product of boredom and should not be taken seriously."
*Treaty Establishing the European Community
Tuesday, 12 May 2009
Council of Europe Reform and Protocol 14
The Council of Europe, which the European Court of Human Rights belongs too, is likely to proceed to implement reforms to the court system, despite the failure of Russia to fully ratify the reforming protocol necessary to achieve this (protocol 14 was originally proposed in 2004).
The reforms will try to free up the backlog of cases to the ECHR by having the admissibility of cases to the court ruled on by a single judge, rather than a panel of three judges, and by having routine cases ruled on by panels of 3 judges (rather than the current 7). The necessity of the reforms were caused by the accession of Russia, Ukraine and Romania to the European Convention on Human Rights, precipitating a flood of applications to the court. The UK was previously a source of many complaints to the court until the Human Rights Act 1998 was introduced; this meant that human right cases are usually resolved in the national court system before they have a chance to progress to the ECHR in Strasbourg.
Foreign ministers meeting in Madrid will vote on implementation of the reforms, which, if passed, will create a 2-tier system within the ECHR. However, it will be a great improvement to the system and will boost the effectiveness and credibility of the court.
A case from Ireland concerning abortion is seeking to be heard at the ECHR before going through the national court system. The main argument against this is the need to exhaust all national remedies first, and the need to protect the ECHR from being overwhelmed with applications. It will be interesting to see if these reforms will have an impact on the court's approach.
The reforms will try to free up the backlog of cases to the ECHR by having the admissibility of cases to the court ruled on by a single judge, rather than a panel of three judges, and by having routine cases ruled on by panels of 3 judges (rather than the current 7). The necessity of the reforms were caused by the accession of Russia, Ukraine and Romania to the European Convention on Human Rights, precipitating a flood of applications to the court. The UK was previously a source of many complaints to the court until the Human Rights Act 1998 was introduced; this meant that human right cases are usually resolved in the national court system before they have a chance to progress to the ECHR in Strasbourg.
Foreign ministers meeting in Madrid will vote on implementation of the reforms, which, if passed, will create a 2-tier system within the ECHR. However, it will be a great improvement to the system and will boost the effectiveness and credibility of the court.
A case from Ireland concerning abortion is seeking to be heard at the ECHR before going through the national court system. The main argument against this is the need to exhaust all national remedies first, and the need to protect the ECHR from being overwhelmed with applications. It will be interesting to see if these reforms will have an impact on the court's approach.
Tuesday, 17 March 2009
UK: What's in a Constitution?
In the UK there is a certain pride in their legal traditions, but there seems to be a confusion about what it all means - the concepts of referenda and parliamentary sovereignty are increasingly uttered in the same breath, seemingly without the speakers' awareness of how much these concepts are incompatible. The UK is famous for its unwritten constitution. Of course it has a constitution, but it's not codified - and a lot of people don't seem to know what it is, exactly. And the bigger question is: is the old constitution, favoured for its flexibility, up to the task of serving today's Britain?
There are many factors to be considered in UK constitutional law, but the most famous one is the doctrine of Parliamentary Sovereignty (PS). PS basically means that parliament is all-powerful, just like god.* According to constitutional theory, if the Westminster Parliament repealed the India Independence Act 1949 tomorrow, then India would revert back to British control (who says constitutional law has to make sense? Or even be practical?).
The UK constitution is just made up of acts of parliament (so it can be changed by a simple majority vote in parliament). Parliament can do whatever it wants (except anything that restricts its ability to do whatever it wants in the future). PS also means that parliamentary Acts are superior to judge-made Common Law, which is quite sensible in a democracy. The problem is that PS rests on its recognition by... judges. Because the doctrine of PS is in itself a judge-made concept.
Confused? Well, it dates back to the Civil War and the Glorious Revolution,** the end result of which is that the King/Queen had the powers of an absolute monarch, provided that the Parliament was the only body that could exercise them. What parliament is, is the King, just divided up among several hundred people. It just happens to be the case that the lower House, the elected one, is now the most powerful part of the Parliament.
So the UK has a constitution which is at odds with the more modern idea of popular sovereignty (the idea that the people are sovereign, and delegate their power upwards), because it is based on the sovereignty of the monarch, which was essentially (though not completely) stolen by parliament. Referenda go, therefore, against constitutional theory in the UK.
The UK has only ever had one referendum: over EEC entry (referendum introduced by Labour).
Now the constitution of the UK is largely a political one: it depends on the political culture for its continued existence since it is built on custom and tradition, and because any parliament could overturn the entire constitution at a stroke with a simple majority (which, under First Past the Post, might only have the support of a third of the electorate). The political culture of the UK has changed a lot over the last century, and it is doubtful that the current constitution is suitable for the modern UK. The issue of Europe in British politics shows the gap in the current political culture from constitutional theory: that the Conservatives, (the traditionalist, constitutional-upholding party) are demanding a referendum suggests that they have lost all respect for the constitution - and yet are not putting forward recommendations for constitutional reform.
There are a number of issues that make constitutional reform more pressing; chief among these is devolution and human rights. Devolution has raised the well known question over English self-rule,*** and human rights has raised questions over how much the parliament should be able to overturn such rights at a whim - or even without meaning to under the doctrine of implied repeal.****
While there have been a few suggestions on these issues (mainly just the Conservatives demanding that only English MPs should be allowed to vote on legislation affecting only England - in my opinion this will just make the system more messy), but no serious attempt at a systemic overhaul. Until this is done, and until popular sovereignty is made part of the UK constitution, Eurosceptic demands for a referendum will ironically attack the British idea of sovereignty more than the EU does (Factortame resolves the tension between PS and the ECJ's doctrine of supremacy of Community law).
Given these issues though, and the lack of political attempts at reform, it has been left to the judiciary to deal with things the best they can. And over the last 40 years there has been a weakening of the judicial deference to parliament, and even (weak) limits being imposed on PS. The famous Factortame case (no.1), which confirmed the supremacy of EU law in the UK (by cleverly saying that EU law was supreme because the UK Parliament's European Communities Act 1972 really said it was, subject to the parliament's sovereign ability to withdraw such rights. ...Yes, I know, but it has to be done in such a way in law) and the Thoburn case (which started a trend of deeming some statutes to be "more constitutional", and therefore not subject to implied repeal) are good examples of this.
In fact, in Jackson v AG, Lord Steyn in obiter***** practically served notice on PS - stating that if parliament threatens access to the courts (etc.), then the courts could just dismiss the power of parliament to do so. The supremacy of the judiciary is a general feature of democracies (supreme courts being able to rule on laws being unconstitutional, etc), and the UK could be moving in that direction, albeit very slowly, and being moved there by the judges themselves.
If nobody discusses the pressing need for constitutional reform in the UK - in fact, the basic need for a codified constitution - then the judges will just have to do the job themselves, just as they did in the past.
This post doesn't have much direction to it, I'd admit. Sorry for that. In a way, I just felt like showing what a mess I think the UK constitution really is, and vent annoyance at some UK eurosceptics' lack of basic knowledge of how their country works, and what its sense of sovereignty is (basically the sovereignty of the rulers based on their control of a territory rather than popular sovereignty). However, I think that the UK needs a constitution in the traditional, write-it-down-somewhere, sense. The current constitution is out of touch with its people (though if you really like it, perhaps you'd say it's the other way around?) - and there needs to be a big effort to confront these challenges.
And if you think all this is messed up, just take a look at land law in Ireland and the UK!
*Depending on the religion. In some cases perhaps even more powerful than god.
**Where the King was fired and Parliament bought a new one.
*** Britain (more correctly the UK) isn't a nation-state. It's a collection of nations in one (historically very centralised) state. A bit like the old Austro-Hungarian Empire.
**** Parliament can't bind successive parliaments, so if two Acts conflict, the newest one is the right one - it "impliedly repeals" the old one. For human rights this could be a bit of a problem.
*****Obiter means that the judge is just saying it - it has no legal effect. But if other judges start agreeing with it, it could find its way into the legal orthodoxy.... [I think this part of Lord Steyn's judgment is at paragraphs 90+ - of the top of my head I'd say it's at 100-110].
[Note: the links for the cases are just to their wikipedia articles, which is definitely not academic. If you actually want to read the cases they should be in the House of Lord's website, though I'd say that they're so famous (ok, famous for court judgments) that you should be able to just google them.]
There are many factors to be considered in UK constitutional law, but the most famous one is the doctrine of Parliamentary Sovereignty (PS). PS basically means that parliament is all-powerful, just like god.* According to constitutional theory, if the Westminster Parliament repealed the India Independence Act 1949 tomorrow, then India would revert back to British control (who says constitutional law has to make sense? Or even be practical?).
The UK constitution is just made up of acts of parliament (so it can be changed by a simple majority vote in parliament). Parliament can do whatever it wants (except anything that restricts its ability to do whatever it wants in the future). PS also means that parliamentary Acts are superior to judge-made Common Law, which is quite sensible in a democracy. The problem is that PS rests on its recognition by... judges. Because the doctrine of PS is in itself a judge-made concept.
Confused? Well, it dates back to the Civil War and the Glorious Revolution,** the end result of which is that the King/Queen had the powers of an absolute monarch, provided that the Parliament was the only body that could exercise them. What parliament is, is the King, just divided up among several hundred people. It just happens to be the case that the lower House, the elected one, is now the most powerful part of the Parliament.
So the UK has a constitution which is at odds with the more modern idea of popular sovereignty (the idea that the people are sovereign, and delegate their power upwards), because it is based on the sovereignty of the monarch, which was essentially (though not completely) stolen by parliament. Referenda go, therefore, against constitutional theory in the UK.
The UK has only ever had one referendum: over EEC entry (referendum introduced by Labour).
Now the constitution of the UK is largely a political one: it depends on the political culture for its continued existence since it is built on custom and tradition, and because any parliament could overturn the entire constitution at a stroke with a simple majority (which, under First Past the Post, might only have the support of a third of the electorate). The political culture of the UK has changed a lot over the last century, and it is doubtful that the current constitution is suitable for the modern UK. The issue of Europe in British politics shows the gap in the current political culture from constitutional theory: that the Conservatives, (the traditionalist, constitutional-upholding party) are demanding a referendum suggests that they have lost all respect for the constitution - and yet are not putting forward recommendations for constitutional reform.
There are a number of issues that make constitutional reform more pressing; chief among these is devolution and human rights. Devolution has raised the well known question over English self-rule,*** and human rights has raised questions over how much the parliament should be able to overturn such rights at a whim - or even without meaning to under the doctrine of implied repeal.****
While there have been a few suggestions on these issues (mainly just the Conservatives demanding that only English MPs should be allowed to vote on legislation affecting only England - in my opinion this will just make the system more messy), but no serious attempt at a systemic overhaul. Until this is done, and until popular sovereignty is made part of the UK constitution, Eurosceptic demands for a referendum will ironically attack the British idea of sovereignty more than the EU does (Factortame resolves the tension between PS and the ECJ's doctrine of supremacy of Community law).
Given these issues though, and the lack of political attempts at reform, it has been left to the judiciary to deal with things the best they can. And over the last 40 years there has been a weakening of the judicial deference to parliament, and even (weak) limits being imposed on PS. The famous Factortame case (no.1), which confirmed the supremacy of EU law in the UK (by cleverly saying that EU law was supreme because the UK Parliament's European Communities Act 1972 really said it was, subject to the parliament's sovereign ability to withdraw such rights. ...Yes, I know, but it has to be done in such a way in law) and the Thoburn case (which started a trend of deeming some statutes to be "more constitutional", and therefore not subject to implied repeal) are good examples of this.
In fact, in Jackson v AG, Lord Steyn in obiter***** practically served notice on PS - stating that if parliament threatens access to the courts (etc.), then the courts could just dismiss the power of parliament to do so. The supremacy of the judiciary is a general feature of democracies (supreme courts being able to rule on laws being unconstitutional, etc), and the UK could be moving in that direction, albeit very slowly, and being moved there by the judges themselves.
If nobody discusses the pressing need for constitutional reform in the UK - in fact, the basic need for a codified constitution - then the judges will just have to do the job themselves, just as they did in the past.
This post doesn't have much direction to it, I'd admit. Sorry for that. In a way, I just felt like showing what a mess I think the UK constitution really is, and vent annoyance at some UK eurosceptics' lack of basic knowledge of how their country works, and what its sense of sovereignty is (basically the sovereignty of the rulers based on their control of a territory rather than popular sovereignty). However, I think that the UK needs a constitution in the traditional, write-it-down-somewhere, sense. The current constitution is out of touch with its people (though if you really like it, perhaps you'd say it's the other way around?) - and there needs to be a big effort to confront these challenges.
And if you think all this is messed up, just take a look at land law in Ireland and the UK!
*Depending on the religion. In some cases perhaps even more powerful than god.
**Where the King was fired and Parliament bought a new one.
*** Britain (more correctly the UK) isn't a nation-state. It's a collection of nations in one (historically very centralised) state. A bit like the old Austro-Hungarian Empire.
**** Parliament can't bind successive parliaments, so if two Acts conflict, the newest one is the right one - it "impliedly repeals" the old one. For human rights this could be a bit of a problem.
*****Obiter means that the judge is just saying it - it has no legal effect. But if other judges start agreeing with it, it could find its way into the legal orthodoxy.... [I think this part of Lord Steyn's judgment is at paragraphs 90+ - of the top of my head I'd say it's at 100-110].
[Note: the links for the cases are just to their wikipedia articles, which is definitely not academic. If you actually want to read the cases they should be in the House of Lord's website, though I'd say that they're so famous (ok, famous for court judgments) that you should be able to just google them.]
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