Cash flows?

Photo by Didier Weemaels on Unsplash

Here, in the United Kingdom, the Brexit saga seems to be drawing to the end of stage 1 i.e. ratification of the withdrawal agreement that the EU and British Government of Boris Johnson have negotiated. The European Union (Withdrawal Agreement) Bill is likely to pass through the House of Lords this week or early next week.

Meanwhile in the rest of the EU, business seems to be going on fairly normally and, it was with some relief this week that I read about a forthcoming decision of the Court of Justice concerning the operation of the Single European Market – and not about Brexit.

The Republic of Hungary, a fellow EU member state – for the present time anyway, may be on course to lose this case which, at its heart, addresses the free movement of capital. Essentially, Hungarian law may well be incompatible with the operation of the Single European Market and, as well we know, EU Law enjoys primacy over domestic law:

  • Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1
  • Case 6/64 Costa v ENEL [1964] ECR 585, 593
  • HP Bulmer Ltd & Anor v J. Bollinger SA & Ors [1974] EWCA Civ 14
  • Case 148/78 Pubblico Ministero v Ratti (1979) ECR 1629
  • Defrenne v Sabena [1976] ECR 455, [1976] ICR 547, [1981] 1 All ER 122
  • C-106/77 Simmenthal [1978] ECR 629
  • C-106/89 Marleasing [1991] ECR I-7321

‘Stop Soros’

In 2017, Hungary passed a law which compelled non governmental organisations (NGOs) to declare their sources of funding to the Government (this information would then be available via a publicly accessible website). If a group received funding from a foreign individual or organisation above the value of 500,000 Hungarian Forints (or €1500 euros), this had to be made public. Furthermore, groups finding themselves in receipt of such funding had to declare themselves as ‘organisations in receipt of support from abroad’ on their websites and in their official communications.

The measure became popularly known in Hungary as the ‘Stop Soros’ Law – a reference to the antipathy of the Government of Hungary towards George Soros, the Hungarian-American billionaire. Soros is an energetic supporter of liberal social values which are often at complete odds with the right wing and ultra conservative views of the Hungarian Government.

A link to a story about the background to the Law can be found on the Reuters’ website below:

https://uk.reuters.com/article/uk-hungary-orban-ngos/civil-organisations-in-hungary-brace-for-government-crackdown-on-ngos-idUKKBN1HW1ZL

The Advocate General’s Opinion

Advocate General Campos Sánchez-Bordona has just issued an Opinion about the legality of Hungarian law in this respect. The controversial Hungarian Prime Minister, Viktor Orbán, has long been hostile to groups in civil society who are opposed to his Government’s aims and objectives and which receive funding from abroad.

According to the Advocate General, Hungarian law potentially breaches the free movement provisions of the Single European Market in relation to capital – as well as data protection, freedom of association and privacy rules contained in the European Charter of Fundamental Rights (see Case C-78/18 European Commission v Hungary).

A link to the Advocate General’s Opinion can be found below:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=222223&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=15406

This Opinion is not the end of the matter because it is always worth remembering that the Court of Justice may not approve it when it makes its decision on the matter. As the Advocate General currently sees things, Hungarian law disproprotionately discriminates against those individuals and organisations who are not Hungarian. It is a barrier to the legitimate, free flow of capital across the borders of EU member states.

Project 1992

The Single Market (or Project 1992) came into existence on 1 January 1993. The Project saw the 12 member states of what was then the European Communities (the Coal and Steel Community, Euratom and the EEC collectively) implement ambitious plans to ensure frictionless trade. It was said that British businesses would find it as easy to sell goods or to provide services in Madrid as they presently were able to do so in Manchester.

The Single Market was based on 4 fundamental principles:

  • Free movement of persons
  • Free movement of goods
  • Free movement of services
  • Free movement of capital

Over the years, a huge amount of case law has built up around free movement of persons, goods and services, but it is rarer to see a decision of the Court of Justice regarding free movement of capital or money. Yet, free movement of capital is an essential corollary to the smooth operation of the Single Market.

How, for example, would consumers of goods and services in one member state pay for these if legitimate or honest money cannot flow back and forth across borders? Please note that I am not advocating the removal of all barriers to free movement – I am all too aware of the necessity to combat the money laundering activities of organised crime. Anyone who has read Misha Glenny’s excellent and terrifying book, McMafia: Seriously Organised Crime (2017: Vintage), will appreciate the real challenges that free movement of capital represents for law enforcement agencies across the EU.

Put simply, the 3 more prominent freedoms of the Single Market would grind to a halt if money was subject to all sorts of unrealistic barriers e.g. member states being able to impose very restrictive limits on the amount of money citizens could move in and out of the country. With the globalisation of financial services, many of us will either have forgotten these types of restrictions – or never experienced them.

When speaking to younger people, it often strikes me that many of them, who do travel regularly to Europe, have any real concept about things like tariff barriers, currency restrictions or passport controls. Brexit (and all its ramifications) may well be something of a wake -up call.

Admittedly, the original founding Treaty of the European Economic Community or the EEC (the Treaty of Rome) did envisage free movement of capital.

One of the first cases that I remember from my studies in EEC Law was Case 286/82 Luisi and Carbone v Ministero del Tesoro [1984] ECR -00377. At that time, Italy operated currency restrictions which meant that its citizens were limited to the amount of money that they could take out of the country. Luisi and Carbone were both fined by the authorities for taking more money out of the country than they were permitted under current domestic law. They argued that Italian law was in breach of the Treaty of Rome because it prevented them from going to another member state in order to receive services (and to pay for these). The Court of Justice was of the view that the restrictions imposed by Italy were unduly excessive.

Conclusion

In the 21st Century, we often forget that restrictions on movements of people, goods, services and capital were very common place. It is the direct influence of the European Single Market that consigned many of these barriers to trade to the status of historical curiosities.

Copyright Seán J Crossan, 15 January 2020

Banning smoking in the streets of Paris …

Photo by Paul Gaudriault on Unsplash

If anyone or anything wanted to ban smoking in the streets of Paris, you would think that (logically), this would be a matter for the French National Assembly or even Paris City Council (Conseil de Paris).

… And you would be quite correct.

You might be thinking what relevance does this have to Scots or indeed English law?

The supremacy of Parliament (or its limits)

The constitutional lawyers amongst the Blog readership, however, might guess where I’m going with the title. When studying the area of Westminster parliamentary sovereignty many, many years ago, I was struck by the words of Sir Ivor Jennings QC, a very famous British constitutional lawyer.

Jennings was explaining that the Westminster Parliament, as the supreme law making body in the UK, had the power to pass any law – even making it unlawful to smoke cigarettes or cigars in the streets of Paris. Now Jennings fully appreciated that this was a slightly absurdist statement; that wasn’t his point (to which I shall return shortly).

Would our French neighbours obey such an Act of the Westminster Parliament? They would not; quite rightly recognising that such a law lacked any legitimacy in their eyes.

So, what was Jennings driving at when he uttered his remark about the scope of the law making powers of the Westminster Parliament? He was recognising that Parliament could pass any law that it wished irrespective of how absurd it was or how unlikely it was to be obeyed in practice.

The English have placed great emphasis on the notion of parliamentary sovereignty. This principle, of course, can be challenged. The American colonists who participated in the protest popularly known as the Boston Tea Party in 1773 were directly challenging Westminster parliamentary supremacy. Several years later, with the successful conclusion of the American Revolution, it would be the new legal order of the United States of America that would supplant the British parliamentary tradition and thus make it a matter of history.

In 1919, Irish Republicans refused to send Members of Parliament to take their seats at Westminster following the UK General Election of 14 December 1918. Instead 27 Sinn Fein MPs chose to sit in Dáil Éireann (effectively an embryonic Irish National Assembly) in Dublin. Highly unconstitutional in British eyes; yes but it spelled the beginning of the end for Westminster parliamentary sovereignty in 26 of the 32 counties comprising the Island of Ireland.

More recently, in 1965, the White minority Government of the former British colony of Southern Rhodesia (under the leadership of Premier Ian Smith) declared independence unilaterally from the mother country. There was very little that the Westminster Parliament and British Government could do to prevent this situation. The Rhodesian Government would ultimately be brought crashing down to earth because of the armed struggle of the Black majority liberation movement. This would eventually lead to independence and majority rule for the territory (to be known as Zimbabwe).

Brexit

To return to Sir Ivor Jennings, his remarks about smoking in the streets of Paris were brought home to me today when reading about the remarks made by Simon Coveney, the Irish Deputy Prime Minister and Foreign Minister about Brexit.

Mr Coveney was being asked about the implications of the European Union (Withdrawal Agreement) Bill – introduced in the House of Commons by UK Prime Minister Boris Johnson shortly after his Conservative Party won the General Election of 12 December 2019.

This Bill will has just passed through the Commons and will now go on to the House of Lords (where it will pass) and receive the Royal Assent in the next week or two. The exit of the UK will happen by 31 January 2020.

Mr Coveney was not taking exception to this development: in fact he was pointing out some hard realities for the British Prime Minister. The easy part of Brexit will have been completed, but the harder part remains: concluding a trade deal between the UK and the EU by the British Government’s self-imposed deadline of December 2020. Needless to say, but this has not been accepted by the remaining 27 EU member states.

Mr Coveney noted that a provision of the European Union (Withdrawal Agreement) Bill (currently Clause 33) prohibits the UK Government from extending negotiations with the EU 27 in order to obtain a trade agreement if one is not concluded before the end of 2020:

“I know that Prime Minister Johnson has set a very ambitious timetable to get this done. He has even put it into British law, but just because a British parliament decides that British laws say something doesn’t mean that that law applies to the other 27 countries of the European Union and so the European Union will approach this on the basis of getting the best deal possible – a fair and balanced deal to ensure the EU and the UK can interact as friends in the future. But the EU will not be rushed on this just because Britain passes law.”

Conclusion

When Sir Ivor Jennings made his oft quoted remark about parliamentary legislative powers, he was acknowledging the theoretical supremacy of Westminster. I also believe that he used the particular example of banning smoking in the streets of Paris to demonstrate the clear limits of Westminster supremacy: practical and political realities will often combine to frustrate the will of Parliament.

In speaking today in the terms that he did, the Irish Deputy Prime Minister clearly recognises this reality.

Does the UK Government?

A link to an article on the Sky News website about Simon Coveney’s remarks can be found below:

http://news.sky.com/story/eu-will-not-be-rushed-in-post-brexit-talks-irish-deputy-simon-coveney-warns-11907060

Copyright Seán J Crossan, 12 January 2020

Enemies of the people?

Photo by Fred Moon on Unsplash

Have British judges become too politicised?

Michael Howard, former UK Conservative Party Leader from 2003 until 2005 (and, somewhat ironically, an unelected member of the House of Lords) certainly thinks so – and he hasn’t been afraid to make his views known on the subject during the last few days.

A link to an article in The Independent discussing Mr Howard’s remarks can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.291219/data/9262576/index.html

In an interview on the BBC’s Today programme, Mr Howard posited the question as to whether the law should be made by “elected, accountable politicians, answerable to their constituents and vulnerable to summary dismissal at election, or by unaccountable, unelected judges who can’t be removed”.

Sour grapes?

To some extent, we could accuse Mr Howard of sour grapes or dissatisfaction with a number of recent legal judgements which have gone against the express wishes of the previous UK Conservative Government (2017-19) which wished to prioritise the exit of the UK from the European Union (Brexit).

It is also worth remembering that Mr Howard’s tenure as British Home Secretary (the Minister of the Interior) from 1993 until 1997 was characterised by conflicts with judges who often ruled against Government policy when making decisions about applications for judicial review.

Brexit

As a long established Eurosceptic (and as one of the suspects for membership of group of of “3 b*stards” in former Prime Minister John Major’s cabinet (1992-97), you would not really have expected Mr Howard to be terribly happy about the lack of progress on Brexit (some three and a half years on from the Referendum of 23 June 2016).

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the former Prime Minister, Theresa May was forced to concede that she personally could not trigger Article 50 of the Treaty on European Union in order to begin the process of the UK’s withdrawal from the European Union. Brexit wasn’t going to ‘get done’ without first having undergone a series of confirmatory votes in both Houses of the Westminster Parliament. The use of the Royal prerogative (the ancient powers of the Monarch) by the then Prime Minister to ignore Parliament was not an appropriate legal action in a modern democracy.

In Wightman and Others (Notification by a Member State of its intention to withdraw from the European Union – Judgment) [2018] EUECJ C-621/18 (10 December 2018), the Court of Justice of the European Union, in a preliminary ruling, stated that a member state which had initiated Article 50 proceedings to leave the EU could reverse its decision unilaterally without first seeking the consent of all the other member states.

The request for the preliminary ruling (in terms of terms of Article 267: Treaty on the Functioning of the European Union) had been submitted by the Inner House of the Court of Session; but critically the action had been initiated by a group of democratically elected politicians (in the main).

In R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41 (On appeals from: [2019] EWHC 2381 (QB) and [2019] CSIH 49), the proverbial really hit the fan when the UK Supreme Court ruled (unanimously) that the decision by current UK Prime Minister, Boris Johnson to suspend or prorogue the Westminster Parliament for 5 weeks was nothing less than unlawful.

As Baroness Hale, President of the Supreme Court, stated:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

The Human Rights Act 1998

The mask really slips from Mr Howard’s face (possibly revealing something of the night about him?) when he turns his ire upon the effect of the Human Rights Act 1998. He begins by acknowledging that the UK Parliament conferred powers on senior judges to determine whether UK legislation was human rights compliant and then blames the judges for this situation! As a former barrister, Mr Howard really should know better.

Opponents of human rights legislation have always beaten the drum that the discretion given to (unelected) judges to attack or strike down laws which are deemed not to comply with those parts of the European Convention are a threat to British democracy. In the febrile atmosphere of Brexit, judges are now acutely aware that they can and will be accused of meddling in politics.

As I have previously remarked, statements such as Mr Howard’s recent remarks are factually incorrect when viewed through the prism of Westminster legislation. It soon becomes apparent that his arguments are highly misleading because all that superior court judges can do is to issue a declaration of incompatibility if a particular law or legal provision is found not to comply with the Human Rights Act 1998.

The declaration of incompatibility is like a football referee issuing a yellow card: foul play is being acknowledged, but the player remains on the field … for now. It will then be over to the Westminster Parliament (as the highest legal authority in the land) to bring in corrective measures to ensure that the law is changed, but this is Parliament’s decision alone

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the Supreme Court’s decision in R (Nicklinson) Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Judicial Review

It is also apparent that Mr Howard is not a big fan of judicial review: he obviously thinks that this area of the law has expanded. True, it has but this is because the role of Government across the UK has dramatically expanded since the Second World War. This is due to a large part with the expansion of the Welfare State. Government policies which affect education, employment, health, immigration, taxation etc can be challenged by members of the public via an application for judicial review before either the Court of Session (Scotland); the High Court (England and Wales); and the High Court (Northern Ireland).

Conclusion

The UK has an unwritten Constitution – unlike other countries which have written constitutions (France, Germany, Italy and the USA). In political systems with a written constitution, there are often very clear rules governing the conduct of elected politicians.

This does not mean that, in political systems with written constitutions, the courts have no role to play. Of course they do.

It is an accepted part of the political culture of these countries that a Supreme Court or a Constitutional Court will be the final arbiter of very thorny legal and political issues e.g. the role of the US Supreme Court in legalising abortion (Roe v Wade 410 U.S. 113 (1973)) or same sex marriage (Obergefell v Hodges576 U.S. ___ (2015)). They may be controversial in nature and generate heated debate for decades to come, but very few US citizens would contest the right of the Supreme Court to make such judgements.

As a point of contrast, note the hysteria which was generated when judges of the English High Court permitted Gina Miller’s action to succeed in blocking former Prime Minister Theresa May’s attempt to trigger Article 50 of the Treaty on European Union without, first, securing UK parliamentary approval (see R (Miller) Secretary of State for Exiting the European Union [2017] UKSC 5). 

The UK tabloid newspaper, The Daily Mail ran an astonishing front page on 4 November 2016 branding the judges “enemies of the people”. More prosaically, the High Court’s judgement (later approved by the UK Supreme Court in early 2017) was merely clarifying the law surrounding the Prime Minister’s use of the Royal prerogative in foreign affairs. You would not have thought this from the media and political reaction in certain quarters.

Governments, just as much as individuals, should think themselves to be above the law. The rule of law in a democratic society is a principle worth hanging on to.

Copyright Seán J Crossan, 31 December 2019

Club rules (or the Hotel California syndrome)

Photo by Sara Kurfeß on Unsplash

Just in case you were in any doubt about the status of British membership of the EU, I’ve got a shock announcement to make:

Brexit is still not finished business and this country remains very much a member state with all the legal obligations this status entails.

The UK was supposed to leave the EU by 31 October 2019, but the British Prime Minister was forced by the Westminster Parliament to seek an extension as a result of the EU Withdrawal (No. 2) Act 2019. (aka the Benn Act). Parliament had passed this legislation in order to prevent the UK crashing out of the EU without a proper divorce or withdrawal agreement.

That brings me on to a recent development which highlights this situation perfectly.

Yesterday, Sky News reported that the European Commission is to take infringement proceedings against the UK for breach of Article 50 of the Treaty on European Union (TEU).

Every EU member state must nominate an individual to the Commission. The UK has failed to do this and the Commission has deemed this failure as a breach of the TEU.

You can see the press release issued by the Commission concerning infringement proceedings against the UK by clicking on the link below:

https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_19_6286/IP_19_6286_EN.pdf

A link to the Sky News story can be found below:

http://news.sky.com/story/eu-legal-case-against-uk-over-failure-to-name-commissioner-11861369

When the European Council agreed to extend the period by which the UK would remain a member state, it explicitly stated:

“This further extension cannot be allowed to undermine the regular functioning of the Union and its institutions. Furthermore, it will have the consequence that the United Kingdom will remain a Member State until the new withdrawal date, with full rights and obligations in accordance with Article 50 TEU, including the obligation to suggest a candidate for appointment as a member of the Commission.”

A link to the Decision of the European Council of 28 October 2019 in this regard can be found below:

https://data.consilium.europa.eu/doc/document/XT-20024-2019-REV-2/en/pdf

This is like Groundhog Day: the UK thought that Brexit would be concluded before the date of the European Parliament elections on 23 May 2019. The Government of former Prime Minister Theresa May miscalculated and the country had to hold these elections in accordance with our EU membership obligations.

It would seem that there’s still plenty of life in the Greek politician and economist, Yannis Varoufakis’ statement likening the EU to the Hotel California: “You can check out any time you like, but you can never leave!”

The basic line is that, when you’re a member of the club, you obey the rules until you leave; if you can …

Copyright Seán J Crossan, 15 November 2019

A hard day’s night …

Photo by Xi Wang on Unsplash

What has European Union law done for workers in the UK?

This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.

The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.

The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.

It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.

The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.

There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.

The basic rights and protections that the Regulations provide are:

  • a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
  • a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
  • a right for night workers to receive free health assessments (Regulation 7)
  • a right to 11 hours rest a day (Regulation 10)
  • a right to a day off each week (Regulation 11)
  • a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
  • a right to 5.6 weeks (or 28 days) paid leave per year

Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.

It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.

If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.

Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.

What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.

No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.

Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.

One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.

A link to the story about working conditions in China can be found below:

Amazon Echo devices made by Chinese teens ‘working through night’ – reports

Copyright Seán J Crossan, 23 October 2019

Stop the coup …?

Photo by Samuel Zeller on Unsplash

On 28 August 2019, the UK Prime Minister, Boris Johnson MP announced that he would seek the permission of Queen Elizabeth II, the British Head of State to prorogue (suspend) the sitting of the Westminster Parliament between 10 September and 14 October 2019. The Queen duly acceded to this request – though in her defence she could not really refuse being a mere ceremonial Head of State i.e. without possessing real executive powers

The Prime Minister has argued that there was nothing untoward or sinister about this development and that it was a necessary step to introduce a new Queen’s Speech which would set out the priorities of the Government which he leads.

This did not convince opposition politicians (Jeremy Corbyn, Nicola Sturgeon and Jo Swinson et al) who predictably labelled the move a “coup” i.e. an unlawful seizure of power and the undermining of British democracy. They argued that the move to suspend Parliament for 5 weeks was more about the Prime Minister driving his Brexit agenda through without proper parliamentary scrutiny – not about a new legislative programme.

In any event, the courts have now become involved in the matter: 78 British parliamentarians (representing all strands of political tradition) petitioned Scotland’s Court of Session to have Prime Minister Johnson’s action declared invalid.

A preliminary hearing took place last week and the judge, Lord Doherty was refused to grant the petitioners an interim interdict (a temporary court order) preventing the Prime Minister from carrying out his intention to prorogue the UK Parliament. A full hearing of the Court followed on Tuesday 3 September in Edinburgh, where both sides (the petitioners and the UK Government) set out their respective legal arguments in full.

As of this morning (Wednesday 4 September 2019), Lord Doherty has made his decision whereby he has declined to uphold the petition to prevent the Prime Minister from proroguing Parliament.

A link to Lord Doherty’s opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh70.pdf?sfvrsn=0

The underlying rationale of Lord Doherty’s judgement seems to be that this political and not a legal matter. In other words, it will be for members of the UK Parliament – or ultimately the British electorate – to sort out this matter.

A link to the Evening Standard’s website containing video footage of Lord Doherty delivering the substance of his opinion can be found below:

https://www.standard.co.uk/news/politics/scottish-courts-throw-out-challenge-to-boris-johnson-proroguing-parliament-a4228621.html

This will not be the final word on the matter – there are bound to be appeals against Lord Doherty’s judgement (and he may well be relieved to be exiting stage left). I would not be surprised if this matter ultimately proceeds to the UK Supreme Court for a definitive judgement.

This, of course, is one of the problems with having an unwritten British Constitution. In other countries, which have written constitutions (France, Germany, Italy and the USA), there are very clear rules about suspending Parliament or the national legislature. Only last week in Italy, the prominent politician Matteo Salvini withdrew his party (the Northern League) from the Government in an attempt to force fresh, national elections. Mr Salvini miscalculated because the Italian President (the Head of State) decided not to dissolve Parliament and call new elections. Rather the President gave Salvini’s ex-coalition partner, the 5 Star Movement, and the Democratic Party an opportunity to form a new government (which they have duly managed to achieve). President Mattarella was clearly entitled to take this action under the relevant Articles of the Italian Constitution.

This does not mean that, in political systems with written constitutions, the courts have no role. Of course they do. It is an accepted part of the political culture of these countries that a Supreme Court or a Constitutional Court will be the final arbiter of very thorny legal and political issues e.g. the role of the US Supreme Court in legalising abortion (Roe v Wade 410 U.S. 113 (1973)) or same sex marriage (Obergefell v Hodges 576 U.S. ___ (2015)). They may be controversial in nature and generate heated debate for decades to come, but very few US citizens would contest the right of the Supreme Court to make such judgements.

As a point of contrast, note the hysteria which was generated when judges of the English High Court permitted Gina Miller’s action to succeed in blocking former Prime Minister Theresa May’s attempt to trigger Article 50 of the Treaty on European Union without, first, securing UK parliamentary approval (see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

The UK tabloid newspaper, The Daily Mail ran an astonishing front page on 4 November 2016 branding the judges “enemies of the people”. More prosaically, the High Court’s judgement (later approved by the UK Supreme Court in early 2017) was merely clarifying the law surrounding the Prime Minister’s use of the Royal prerogative in foreign affairs. You would not have thought this from the media and political reaction in certain quarters.

In such circumstances, it’s hardly surprising that Lord Doherty is only too happy to pass the buck to the politicians … for now anyway …

Watch this space.

Postscript

The Inner House of the Court of Session (consisting of Lords Carloway, Brodie and Drummond Young) will now hear an appeal by the petitioners against Lord Doherty’s judgement. This is scheduled to take place the week beginning Monday 9 September 2019.

In a separate, but connected, legal challenge, the English High Court rejected a bid by the campaigner, Gina Miller, to have the prorogation of Parliament declared unlawful. Leave to appeal to the UK Supreme Court has been granted.

Copyright Seán J Crossan, 4 and 6 September 2019

A fishy tale …

Photo by chuttersnap on Unsplash

Alexander Boris de Pfeffel Johnson (or just Boris if you’re one of his legions of adoring followers) has been caught out yet (again) when pontificating about the UK’s unbalanced relationship with the European Union (see my previous blog “Private prosecutions” published on 29 May 2019).

The man most likely to be the next British Prime Minister May have thought that it was very clever (and theatrical no doubt) to brandish a kipper during a final hustings event of Conservative Party members in his pitch to win the Party’s leadership campaign.

By using the kipper, Mr Johnson wanted to make a broader point about the apparent interference of the EU in Britain’s laws. Now, I often teach students about the supremacy of EU law in the UK by dint of the fact that the Westminster Parliament passed the European Communities Act 1972, but if Mr Johnson had been one of my students he would have failed his EU Law exam.

Why?

Firstly, the kipper originated from the Isle of Man – which although a British Crown dependency – isn’t technically part of the UK and, therefore, not part of the EU.

Secondly, the food safety rules which govern items like kippers (which are deemed to be preserved rather than fresh fish) fall within the legislative competence of the UK – not the EU. Although the Isle of Man is not part of the UK, the UK Food Standards Agency would regulate the product since it is being sold in this country.

It would seem that Mr Johnson was either unaware of these facts or simply chose to ignore them.

Then again, Mr Johnson has a long track record of EU bashing from his time as a Brussels based journalist with The Daily Telegraph, so it would seem that he is doing what, for a long time, has just come naturally to him.

On a serious point, however, interventions by individuals such as Mr Johnson make it very difficult for the public to have an informed debate about the UK’s relationship with the EU. This is a state of affairs that we may come to regret given the predictions by the UK Office of Budget Responsibility of the grim consequences if this country crashes out of the EU without a proper and effective withdrawal agreement.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/eu-exposes-johnsons-kipper-red-tape-claim-as-nonsense-11765805

Copyright Seán J Crossan, 19 July 2019