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A few items of legal interest

<div class="separator" style="clear: both; text-align: center;"></div> <div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi-Lj08TFG9HBySQyzNe9UFd_EgJaxjWffE-acgwpdrGv2uGBsOY3-9dkNbjHVd-YOHD__fB147h1JnNw4hq5y671DgnXAlCHkCYsSowgag3qywMc8lBh2wxBSGksYVHiT4SMUb5JlqIInQ/s1600/Pendle+summit.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi-Lj08TFG9HBySQyzNe9UFd_EgJaxjWffE-acgwpdrGv2uGBsOY3-9dkNbjHVd-YOHD__fB147h1JnNw4hq5y671DgnXAlCHkCYsSowgag3qywMc8lBh2wxBSGksYVHiT4SMUb5JlqIInQ/s200/Pendle+summit.jpg" width="200" /></a></div>Whilst the impending EU referendum is dominating the news, here are some other items of interest. <blockquote class="twitter-tweet" data-lang="en"><div dir="ltr" lang="en">1) Excellent <a href="http://www.bbc.co.uk/programmes/b07cvlmb">BBC Law in Action on history of crimes against humanity and genocide as international crimes</a>. By Joshua Rozenberg. </div></blockquote>2) Julie Hambleton - The Justice Gap - <a href="http://thejusticegap.com/2014/05/hierarchy-justice-yewtree-birmingham-bombings/">The hierarchy of justice: why Yewtree but not the Birmingham bombings</a>?  .... and, it seems, <a href="http://news.sky.com/story/1705180/new-inquests-into-1974-birmingham-pub-bombings">New Inquests have been ordered</a>.    <a href="https://www.youtube.com/watch?v=m6jHGxZJe1Y">Video - Birmingham pub bombings: Inquests reopened.</a>   For a view that this can only lead to heartache see the article by Chris Mullin - <a href="http://www.theguardian.com/commentisfree/2016/jun/01/birmingham-bombings-inquest-only-bring-heartache">The Guardian 1st June 2016 </a> <a name='more'></a> My post of 26th November 2014 - <a href="http://obiterj.blogspot.co.uk/2014/11/the-birmingham-pub-bombings-1974.html">The Birmingham Pub Bombings 1974 - another day that should live in criminal infamy.</a>  In that post I looked at the case, the trial, the Royal Commission on Criminal Justice, various improvements to the law but cautioned against any complacency that miscarriages of justice cannot occur today. See also the website <a href="http://justice4the21.co.uk/">Justiceforthe21</a> In <a href="http://www.bailii.org/uk/cases/UKSC/2011/20.html">McCaughey</a> [2011] UKSC 20 the UK Supreme Court held (by a 6:1 majority) that, a Coroner holding an inquest must comply with the procedural obligation under Article 2 of the European Convention on Human Rights.  This applies even where the death occurred prior to the coming into force of the Human Rights Act 1998 (i.e. 2nd October 2000).  The McCaughey case arose from death in 1990 at the hands of British Forces in Northern Ireland. On the Coroner's decision to resume the inquests see the <a href="https://www.no5.com/news-and-publications/news/1416-nageena-khalique-qc-confirms-the-coroner-s-decision-in-the-birmingham-pub-bombing-inquests/">article by Nageena Khalique QC 1st June 2016</a>. The coroner held that the power to resume the inquest was preserved notwithstanding the changes in legislation between 1974 and 2016. It was held that the inquests were suspended and the requisite power to resume the inquest was preserved by paragraph 8, Schedule 1 of the CJA 2009. 3) The Round-up: <a href="https://ukhumanrightsblog.com/2016/05/31/the-round-up-criminal-justice-close-to-breaking-point/">Criminal justice close to breaking point</a> - UK Human Rights blog 31st May. 4) Michael Gove's new advisory panel on <a href="http://www.lawgazette.co.uk/analysis/features/criminal-justice-new-advisory-council/5055458.fullarticle">how to improve the Criminal Justice System</a> - Law Society Gazette 28th May. 5) <a href="http://www.marilynstowe.co.uk/2016/05/25/the-secret-family-courts-narrative-has-a-lot-to-answer-for/">The secret family courts narrative has a lot to answer for</a> - John Bolch on the Marilyn Stowe blog 6) Here is a useful website by Scoop It! covering <a href="http://www.scoop.it/t/children-in-law">Children in Law </a> 7) The Guardian - <a href="http://www.theguardian.com/commentisfree/2016/may/31/the-guardian-view-on-the-conviction-of-hissene-habre-africa-points-the-way">The conviction of Hissène Habré: Africa points the way </a> <script async="" charset="utf-8" src="//platform.twitter.com/widgets.js"></script>

A few items of legal interest

Whilst the impending EU referendum is dominating the news, here are some other items of interest. 1) Excellent BBC Law in Action on history ...

3:08 AM

General Election 2015 ~ Thanet South and allegations of unlawful electoral expenses

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiUeev7kx-hrIFG3H2it3mypWqFVhsny8dSz1xuJLV5ZYNiZaF48a4zYY8yKGBxPxcEeam0X60gURsck9Oe4EZ8OW6A3k-goimc_gwLFs6C1m6MxeS9ankyGb0_PUszD81uUlSAnJPG45mu/s1600/Thanet+South.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="112" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiUeev7kx-hrIFG3H2it3mypWqFVhsny8dSz1xuJLV5ZYNiZaF48a4zYY8yKGBxPxcEeam0X60gURsck9Oe4EZ8OW6A3k-goimc_gwLFs6C1m6MxeS9ankyGb0_PUszD81uUlSAnJPG45mu/s200/Thanet+South.jpg" width="200" /></a></div>The <a href="http://www.bbc.co.uk/news/politics/constituencies/E14000948">General Election 2015</a> resulted in a Conservative government and it has a working majority in the House of Commons of 17 - (<a href="http://www.parliament.uk/mps-lords-and-offices/mps/current-state-of-the-parties/">State of Parties</a>).  This was rather a surprise at the time since the majority of political commentators expected the outcome to be a "<a href="http://www.parliament.uk/about/how/elections-and-voting/general/hung-parliament/">hung Parliament</a>" with the possibility of a further coalition government.  As with all General Elections there were some notable political casualties including the UK Independence Party Leader Mr Nigel Farage who lost his seat to Conservative Mr Craig Mackinlay. <a name='more'></a> The Daily Mail 1st June 2016 reported the decision of District Judge (Magistrates' Courts) Barron at Folkestone Magistrates' Court granting the Kent Police a further 12 months to investigate allegations relating to undeclared, or improperly declared, election expenses in Thanet South during the 2015 General Election.  It appears that several other Police Forces are investigating allegations of a similar nature.  Here are some media reports of the court's decision: <a href="http://www.thanetgazette.co.uk/Kent-Police-granted-bid-extend-Tory-election/story-29348758-detail/story.html">Isle of Thanet Gazette 1st June 2016</a> The Guardian 1st June - <a href="http://www.theguardian.com/uk-news/2016/jun/01/judge-grants-extension-to-police-investigation-into-tory-election">Judge grants extension to police investigation</a> ....   <a href="http://www.dailymail.co.uk/wires/pa/article-3620308/Police-extra-time-investigate-Tory-electoral-fraud-claims.html">Daily Mail 1st June - Kent Police given more time to investigate Tory electoral fraud claims</a> <a href="http://www.telegraph.co.uk/news/2016/06/01/judge-says-nigel-farages-defeat-by-tories-could-be-ruled-void-ov/">The Telegraph 1st June</a> <a href="http://5essexcourt.co.uk/dijen-basu-qc-instructed-to-advise-on-police-investigation-into-the-election-expenses-allegations/">5 Essex Court have stated</a> that <a href="http://5essexcourt.co.uk/people/dijen-basu/">Dijen Basu QC</a> is to advise the Police in their investigation into the election expenses allegations:- <div class="x_MsoNormal">"The allegations centre on the Conservative Party’s Battlebus2015 campaign, where activists were bussed into key marginals in order to campaign in the 2015 General Election. The constituencies concerned include South Thanet, where Nigel Farage was defeated by the conservative candidate. The Battlebus2015 visited 29 constituencies and the Government’s working majority in the House of Commons is only 17."</div> Expenses limits: <a href="https://www.blogger.com/null" name="more"></a> Limits are placed on election expenses by the <a href="http://www.legislation.gov.uk/ukpga/1983/2/section/76">Representation of the People Act 1983 section 76</a> and returns relating to expenses have to be made of all election expenses incurred by or on behalf of a candidate - <a href="http://www.legislation.gov.uk/ukpga/1983/2/section/81">section 81</a>. <a href="http://www.legislation.gov.uk/ukpga/1983/2/section/176">Section 176</a> of the same Act states: "A proceeding against a person in respect of any offence under any provision contained in or made under this Act shall be commenced within one year after the offence was committed ...." Following amendment by the Electoral Administration Act 2006, the section goes on to permit a magistrates' court to extend the time limit if there are (a) exceptional circumstances which justify the granting of the application, and (b) that there has been no undue delay in the investigation of the offence to which the application relates.  Extension of time may be up to a maximum of 24 months after the (alleged) offence was committed. The District Judge concluded that there were "exceptional circumstances" - media reports note that he said "wholly exceptional".  He must have also been satisfied that there was no undue delay in the investigation.  Unfortunately, it seems that his detailed reasons are not available at the present time though the <a href="http://www.thanetgazette.co.uk/Kent-Police-granted-bid-extend-Tory-election/story-29348758-detail/story.html">Isle of Thanet Gazette 1st June 2016</a>  published a quite extensive report of the hearing. The granting of this time extension will be the only involvement of the Folkestone Magistrates' Court in this matter unless actual prosecutions are commenced in that locality. The judge also made an order under section 176 relating to retention of documents - <a href="http://www.legislation.gov.uk/ukpga/1983/2/section/176">sections 176(2C) and 2D.</a> Corrupt and Illegal Practices: The <a href="http://www.legislation.gov.uk/ukpga/1983/2/section/173">Representation of the People Act 1983 section 173</a>  provides that a person already elected to a seat in the House of Commons but who is convicted of a corrupt or illegal practice shall vacate the seat. <div class="x_MsoNormal">A person convicted of an illegal practice in an election is liable to a fine and is disqualified from voting or from holding any elective office for 3 years from conviction. A person convicted of a corrupt practice is liable to imprisonment for up to a year and is disqualified for 5 years. An MP convicted of either an illegal or corrupt practice must vacate his/her seat, prompting a by-election.</div> <div style="background: white;">Election Law and the Law Commission:</div> <div style="background: white;"></div><div style="background: white;">The <a href="http://www.lawcom.gov.uk/project/electoral-law/">Law Commission has noted that</a>:</div><div style="background: white;"> </div><div style="background: white;">"Electoral law in the UK has grown complex, voluminous, and fragmented, with many statutes and secondary legislation governing a long list of elections and referendums. The twin aims of the project are to ensure, first, that electoral laws are presented within a rational, modern legislative framework, governing all elections and referendums under statute; and second, that the law governing the conduct of elections and referendums is modern, simple, and fit for purpose."</div><div style="background: white;"> </div><div style="background: white;">The Law Commission issued an <a href="http://www.lawcom.gov.uk/wp-content/uploads/2016/02/electoral_law_interim_report.pdf">Interim Report on Electoral Law</a> on 4th February 2016 and made a considerable number of recommendations (see Appendix A to the report).  When announcing the Interim Report, the Law Commission noted that the three Law Commissions (i.e. Law Commission, Scottish Law Commission and Northern Ireland Law Commission) -</div><div style="background: white;"> </div><div style="background: white;">"are recommending that the process for challenging elections should be modernised, making it easier for parties to understand and use, and that judges be given the power, in appropriate cases, to limit the potential costs for challengers. They also recommend that existing electoral offences should be updated and made easier for the electorate, officials and prosecutors to understand, and that the maximum sentence for serious electoral offences be increased to ten years."</div><div style="background: white;"> </div><div style="background: white;">Chapter 12 of the Interim Report looks at Election Expenditure. </div><div style="background: white;"> </div><div style="background: white;">Response from Government to the Commission's report is awaited. </div>

General Election 2015 ~ Thanet South and allegations of unlawful electoral expenses

The General Election 2015 resulted in a Conservative government and it has a working majority in the House of Commons of 17 - ( State of Pa...

3:08 AM

The Union and Devolution ~ House of Lords Constitution Committee

<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim25l5Sd9huPLlZQxicNuTIzecMBDSTpoePwSLV6QFJNALbQS52pfhaLWf34URt3wX9CJSlRGGIav_9_mfrVTP0e86l7Htp6jluGRnrUfYPETNx16aGoOZ_2OHSx6PIMAJp01HlgstLz3E/s1600/Parliament+view+across+Thames.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="149" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim25l5Sd9huPLlZQxicNuTIzecMBDSTpoePwSLV6QFJNALbQS52pfhaLWf34URt3wX9CJSlRGGIav_9_mfrVTP0e86l7Htp6jluGRnrUfYPETNx16aGoOZ_2OHSx6PIMAJp01HlgstLz3E/s200/Parliament+view+across+Thames.jpg" width="200" /></a></div>The House of Lords Constitution Committee has published its 10th report of session 2015-16 - <a href="http://www.publications.parliament.uk/pa/ld201516/ldselect/ldconst/149/149.pdf">The Union and Devolution</a> (pdf - 144 pages).  Underlying the report is concern for the future stability of the United Kingdom as a UNION in the light of devolution of power.  At the start of the report is this assertion: "The four nations of the United Kingdom are stronger united than apart. The Union has brought stability, peace and prosperity to the United Kingdom."    </div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;"> </div>Devolution <a name='more'></a>: The devolution of power to Scotland, Wales and Northern Ireland has been a feature of British politics for many years. The late 1990s saw the creation <a href="https://www.blogger.com/null" name="more"></a>of the Scottish Parliament and Administration (<a href="http://www.legislation.gov.uk/ukpga/1998/46/contents">Scotland Act 1998</a>) and a National Assembly for Wales (<a href="http://www.legislation.gov.uk/ukpga/1998/38/contents">Government of Wales Act 1998</a>).  The present Northern Ireland Assembly also dates from 1998 - the arrangements are explained at <a href="http://www.niassembly.gov.uk/about-the-assembly/general-information/history-of-the-assembly/">Northern Ireland Assembly</a>.  One of the latest developments for England is that the <a href="http://www.legislation.gov.uk/ukpga/2016/1/contents/enacted">Cities and Local Government Devolution Act 2016</a> enables devolution of far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors.  The devolution settlements have been altered from time-to-time by later Acts of Parliament such as the <a href="http://www.legislation.gov.uk/ukpga/2016/11/contents/enacted">Scotland Act 2016</a>.  The result is that a complex legal and administrative structure has been created. Risks to the Union: The report seeks to set out what the Union is for, how it has been affected by devolution and where the risks to the stability of the Union might lie. It looks at how the Union might be strengthened following the stresses of two decades of ad hoc, piecemeal devolution. A number of principles are set out which the Committee considers should underpin any further devolution of power within the UK.  The committee also proposes a number of specific measures that, if implemented by the Government, should ensure that any further proposals for devolution are dealt with in a coherent manner that strengthens, rather than destabilises, the Union. Much of the devolution legislation arises from reaction to political pressures such as the Scottish independence movement.  Stresses on the stability of the Union as a whole have resulted.  The report notes the reactive approach  taken to devolution by successive governments and expresses concern that government has not adequately considered the cumulative impact of devolution on the United Kingdom. The Committee calls on government to fundamentally reassess how it approaches devolution. What affects one constituent part of the UK affects both the Union and the other nations within the UK. 'Devolution needs to be viewed through the lens of the Union, with appropriate consideration given to the needs of, and consequences for, the Union as a whole.  Chapter 5 of the report recommends how this might be done. Funding: The "Barnett Formula" does not escape criticism.  This formula deals with the allocation of public expenditure from HM Treasury to Scotland, Wales and Northern Ireland.  A useful discussion of the formula is at <a href="http://researchbriefings.files.parliament.uk/documents/CBP-7386/CBP-7386.pdf">House of Commons Briefing Paper 7386</a> (13th April 2016) and at <a href="https://devolutionmatters.wordpress.com/the-barnett-formula-and-the-financing-of-devolution/">Devolution Matters - The Barnett formula and the funding of devolution</a>.  The Committee recommended that government reconsider its use of this formula and establish a mechanism that takes into account the relative needs of different nations and regions in allocating funds. A few other points: The report notes (para 149) that the outcome of the EU referendum could have a destabilising impact - e.g. suppose Scotland votes Remain and England votes Leave.   Changes to human rights protection could affect the devolution settlements and relations with the government (para 149).  The committee was opposed to full fiscal autonomy for any nation or region of the UK (para 267).  Federalism is rejected (para 275) - "For a federal structure, the overwhelming size of England is a major obstacle and likely source of instability ....."  Chapter 8 looks at the governance of England but an English Parliament is not seen as a viable option for the future governance of England (para 376).  A review of the procedures in Parliament for "English Votes for English Laws2 (EVEL) will come at a later date though the committee notes that this issue has not been satisfactorily resolved. (Comment: Perhaps it cannot be resolved short of there being a federal solution which is, as already noted, rejected by the committee). A short blogpost cannot do justice to this detailed report and a full reading is recommended.  It is a masterful survey of how the present situation has developed and makes sensible suggestions for the future.  Professors Mark Elliott and Stephen Tierney look at some of the main findings in the report at <a href="https://publiclawforeveryone.com/2016/05/25/the-house-of-lords-constitution-committee-report-on-the-union-and-devolution/">Public Law for Everyone blog</a>.  (They are legal advisers to the Constitution Committee).

The Union and Devolution ~ House of Lords Constitution Committee

The House of Lords Constitution Committee has published its 10th report of session 2015-16 - The Union and Devolution (pdf - 144 pages). U...

3:07 AM

UK and the EU (9) - A monumental referendum - Information to assist

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgMPmii_rSlhyxMS3Y4lPIAC8rnNvoSe0MHRCXBaoq8KDmBzsxL-l9j97W9Te56TqvLczj-pGdQ85wftdFPsx89RBHfQKvP2CH_82YAx-YqTnW4VORREztNm8321zltIEGF9jEmb1jF_y1Y/s1600/EU+Economy.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="100" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgMPmii_rSlhyxMS3Y4lPIAC8rnNvoSe0MHRCXBaoq8KDmBzsxL-l9j97W9Te56TqvLczj-pGdQ85wftdFPsx89RBHfQKvP2CH_82YAx-YqTnW4VORREztNm8321zltIEGF9jEmb1jF_y1Y/s200/EU+Economy.jpg" width="200" /></a></div>The monumental EU Referendum on 23rd June is undoubtedly the most important decision the British electorate will ever make.  It is also a very complex matter.  The outcome will determine the UK's future for many years (perhaps decades) to come.  Several vital questions lie at the heart of the issue.  The economy is the central question: will it prosper more within the EU than outside? <a name='more'></a> Many voters wish to make an INFORMED decision rather than rely on the barrage of often exaggerated claims from politicians on both sides of the argument.  At present, there are no absolutely clear cut answers to some of the questions raised but there is also a great deal of misinformation.  This post offers links to referendum-related material that has become available but it is by no means a comprehensive selection.  The reader should consider the extent to which the material offered is reliable and objective. <a href="https://www.blogger.com/null" name="more"></a> <div style="text-align: center;">: European Council - Settlement for UK in the EU : </div> Although there has been little recent mention of it, the terms negotiated by the Prime Minister and set out in the <a href="http://www.consilium.europa.eu/en/press/press-releases/2016/02/19-euco-conclusions/">European Council Conclusions of 19th February 2016</a> are important since votes in the referendum are cast against the background of those terms - see discussion at Law and Lawyers - <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit Referendum: a few points</a>.  In claiming that the Conclusions are legally binding within the EU, the government relied on this <a href="http://www.hendersonchambers.co.uk/wp-content/uploads/2016/02/Sir-Alan-Dashood-QC1.pdf">Opinion by Sir Alan Da</a><a href="http://www.hendersonchambers.co.uk/wp-content/uploads/2016/02/Sir-Alan-Dashood-QC1.pdf">shwood QC </a>- 20th February.  The Conclusions contain important statements regarding the UK and "ever closer union" and UK and the Eurozone. Here are two assessments of the settlement - Open Europe - <a href="http://openeurope.org.uk/today/blog/what-did-the-uk-achieve-in-its-eu-renegotiation/">What did the UK achieve it i</a><a href="http://openeurope.org.uk/today/blog/what-did-the-uk-achieve-in-its-eu-renegotiation/">ts EU renegotiation</a>?   Chatham House - <a href="https://www.chathamhouse.org/expert/comment/cameron-s-incomplete-negotiation-complicates-eu-vote#">Cameron's incomplete negotiation complicates EU vote</a> <div style="text-align: center;">: Information from Parliament : </div> Parliament - <a href="http://www.parliament.uk/business/publications/research/eu-referendum/">The UK's EU Referendum 2016 explained</a> and  <a href="http://www.parliament.uk/mps-lords-and-offices/offices/commons/commonslibrary/commons-library-news/eu-referendum-page/">EU Referendum: impartial information to help you decide</a> Parliament - <a href="http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7213">Impact of an EU exit in key UK policy areas </a> <div style="text-align: center;">: Balance of Competencies Review :</div> A review of the balance of competencies between EU and UK took place from mid 2012 to the end of 2014 and <a href="https://www.gov.uk/guidance/review-of-the-balance-of-competences">resulted in 32 reports</a>. <div class="MsoNormal"> </div> <div style="text-align: center;">: Referendum Act information : </div> The Government was required by the Referendum Act to publish certain material- "<a href="https://www.gov.uk/government/publications/the-best-of-both-worlds-the-united-kingdoms-special-status-in-a-reformed-european-union">The best of both worlds: the UK's special status in a reformed EU</a>" and - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf">Alternatives to membership: possible models for the UK outside the EU</a> and <a href="https://www.gov.uk/government/publications/rights-and-obligations-of-european-union-membership">Rights and Obligations of EU Membership</a> <div style="text-align: center;">: Scottish Parliament : <div style="text-align: left;"><a href="http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/90965.aspx">EU reform and the EU referendum: Implications for Scotland</a> </div></div> <div style="text-align: center;">: Wales :</div> Cardiff University - Wales Governance Centre - <a href="http://sites.cardiff.ac.uk/wgc/eu/">Wales and the EU Hub</a> <a href="http://gov.wales/funding/eu-funds/?lang=en">EU funds in Wales</a> <div style="text-align: center;">: Northern Ireland :</div> Parliament - Northern Ireland Affairs Committee - <a href="https://www.parliament.uk/business/committees/committees-a-z/commons-select/northern-ireland-affairs-committee/inquiries/parliament-2015/eu-referendum/">Northern Ireland and the EU</a> Mr Bertie Ahern (Former Taoiseach) on the need to impose Border controls in the event that UK leaves the EU - <a href="http://www.theguardian.com/politics/2016/jun/04/bertie-ahern-uk-reimpose-irish-border-after-brexit-eu-northern-ireland?CMP=share_btn_tw">The Guardian 4th June 2016</a>   The border between the Republic of Ireland and Northern Ireland would be the only land border between UK and EU.  The implications of UK leaving the EU for the <a href="http://www.citizensinformation.ie/en/moving_country/moving_abroad/freedom_of_movement_within_the_eu/common_travel_area_between_ireland_and_the_uk.html">UK - Republic of Ireland Common Travel Area</a> will have to be considered. <div style="text-align: center;">:Independent analysis :</div> The following claim to contain independent analysis: a) <a href="http://ukandeu.ac.uk/">Changing Europe</a> - analysis on UK-EU relations - e.g. video  <a href="http://ukandeu.ac.uk/multimedia/eu-referendum-get-informed-get-the-facts/">EU Referendum - Get informed. Get the facts</a>. b) BBC - <a href="http://www.bbc.co.uk/news/uk-politics-eu-referendum-36027205">EU Referendum issues guide: Explore the arguments  </a> c) Fullfact.org - <a href="https://fullfact.org/europe/">Europe</a> - Fullfact states that it is - "the UK’s independent, non-partisan, factchecking charity. We check claims made by politicians, the media, pressure groups, and other voices in public debate, and push for corrections where necessary. We also work with government departments and academic research institutions to improve the quality and communication of technical information at source, and campaign for greater transparency in the public arena." d) Cambridge Law - a series of short videos by academics from the University of Cambridge and beyond seeks to shed light on the key issues to be considered in the run up to the upcoming referendum on the UK's membership of the European Union -e.g. - <a href="https://www.youtube.com/watch?v=_d6DW6qzK1A&feature=youtu.be&list=PLy4oXRK6xgzG7gC4lAVrYli7sv-C07Mwz">EU Referendum: Free movement of workers</a> - <a href="https://www.youtube.com/watch?v=bJE8tt-oNrc&index=1&list=PLy4oXRK6xgzG7gC4lAVrYli7sv-C07Mwz">EU Criminal Law</a> - <a href="https://www.youtube.com/watch?v=QM0t3bSpmWo&list=PLy4oXRK6xgzG7gC4lAVrYli7sv-C07Mwz&index=5">Free Trade</a> - and others  e) Matrix Chambers - <a href="https://www.matrixlaw.co.uk/practice-areas/eu-law/">EU Law - Countdown to the Referendum</a> - a series of articles. f) Professor Vernon Bogdanor - <a href="http://www.gresham.ac.uk/lectures-and-events/learning-from-history-the-1975-referendum-on-europe">Learning from History - The 1975 referendum on Europe</a> g) Professor Michael Dougan -<a href="https://www.youtube.com/watch?v=USTypBKEd8Y"> University of Liverpool - 14th June 2016 </a> h) Francis Fitzgibbon QC - <a href="http://www.lrb.co.uk/v38/n12/francis-fitzgibbon/if-we-leave">If we leave </a> i) Lallands Peat Worrier - <a href="https://lallandspeatworrier.blogspot.co.uk/2016/06/what-would-brexit-mean-for-devolution.html?showComment=1466445739615#c3891152541445880142">The impact of Brexit on Devolution</a> <div style="text-align: center;">: The economy :</div> a) CBI - <a href="http://news.cbi.org.uk/business-issues/uk-and-the-european-union/">UK and the EU: The economic case for remaining</a> b) Institute of Economic Affairs - <a href="http://www.iea.org.uk/policy-areas/european-union">European Union </a> c) <a href="http://www.res.org.uk/view/searchresults.html?search=European+Union&submit_search=Go">Royal Economic Society - various articles</a>  including <a href="http://www.res.org.uk/details/mediabrief/6052141/ECONOMIC-BENEFITS-FROM-MEMBERSHIP-OF-THE-EUROPEAN-UNION-New-estimates.html">Economic Benefits from Membership of the European Union: New estimates</a> d) The Guardian 28th May 2016 -<a href="http://www.theguardian.com/politics/2016/may/28/economists-reject-brexit-boost-cameron">Economists overwhelmingly reject Brexit in boost for Cameron</a>   e) The Bank of England has published a report showing how membership of the European Union (EU) affects the Bank of England’s ability to fulfil its mission to promote the good of the people of the United Kingdom by achieving its statutory objectives.  There is much useful information within the report - <a href="http://www.bankofengland.co.uk/publications/Documents/speeches/2015/euboe211015.pdf">EU Membership and the Bank of England</a> f) London School of Economics - Centre for Economic Performance - <a href="http://cep.lse.ac.uk/pubs/download/EA022.pdf">The economic consequences of leaving the EU.</a><a href="http://cep.lse.ac.uk/pubs/download/EA022.pdf"> </a> <div style="text-align: center;">: Taxation :</div> <a href="http://eur-lex.europa.eu/summary/chapter/taxation.html?root_default=SUM_1_CODED%3D21">A summary of the EU's role in taxation</a> Tax policy in the European Union (EU) has two components: direct taxation, which remains the sole responsibility of Member States, and indirect taxation, which affects free movement of goods and the freedom to provide services in the single market. With regard to direct taxation, the EU has however established some harmonised standards for company and personal taxation, and member countries have taken joint measures to prevent tax avoidance and double taxation. On indirect taxation, the EU coordinates and harmonises law on value-added tax (VAT) and excise duties. It ensures that competition on the internal market is not distorted by variations in indirect taxation rates and systems giving businesses in one country an unfair advantage over others. <div style="text-align: center;">: Viewpoints :</div> Some issues on which there is common misunderstanding or inaccurate information. <div style="text-align: center;">: The EU is undemocratic :</div> Note the <a href="http://europa.eu/pol/pdf/consolidated-treaties_en.pdf">Treaty on European Union</a> Title II - Provisions on Democratic Principles <div class="MsoNormal"><a href="http://europa.eu/about-eu/institutions-bodies/index_en.htm">Overview of the EU Institutions</a> </div>Criticism about the EU lacking democracy is commonly made but the critics do not consider the extent to which the British governmental system is also undemocratic - e.g. the House of Lords is not elected;  the executive has considerable control over the business conducted within the House of Commons; many appointments are within the gift of the Prime Minister etc.  Within the EU there have been marked improvements especially regarding the role of the directly elected European Parliament.   The <a href="http://europa.eu/about-eu/institutions-bodies/european-council/index_en.htm">European Council </a>comprises Heads of state or government of EU countries, European Commission President and the High Representative for Foreign Affairs and Security Policy.  Hence, the British Prime Minister represents the UK at the European Council.  The <a href="http://www.consilium.europa.eu/en/council-eu/">Council of the European Union</a> is made up of Ministers from the member states.  The European Parliament was last elected in 2014 and the next elections are in 2019 - <a href="http://www.europarl.org.uk/en/your-meps/european_elections.html">European Parliament elections</a>.  The UK elects 73 Members of the European Parliament.  The powers of the Parliament (and all the other institutions) are contained in the European Treaties - <a href="http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.3.2.pdf">European Parliament powers</a>.  Also see - <a href="http://www.europarl.org.uk/en/your-meps.html">MEPs from the UK</a>. <div class="MsoNormal">The <a href="http://ec.europa.eu/about/index_en.htm">European Commission</a> is made up of one Commissioner per member state.  The UK's Commissioner is<a href="https://en.wikipedia.org/wiki/Jonathan_Hill,_Baron_Hill_of_Oareford"> Lord Hill of Oareford</a> who was nominated by the Prime Minister in 2014.  Critics might well think that the UK itself could come up with a more democratic process for nominating its Commissioner - e.g. Parliament making the nomination etc.  How a member state selects its commissioner is not a matter for the EU. The candidate for President of the Commission is proposed to the European Parliament by the European Council that decides by qualified majority and taking into account the elections to the European Parliament.  The Commission President is then elected by the European Parliament by a majority of its component members (which corresponds to at least 376 out of 751 votes).  Following this election, the President-elect selects the 27 other members of the Commission, on the basis of the suggestions made by Member States. The final list of Commissioners-designate has then to be agreed between the President-elect and the Council. The Commission as a whole needs the Parliament's consent. Prior to this, Commissioners-designate are assessed by the European Parliament committees. The current Commission's term of office runs until 31 October 2019. Its President is <a href="http://ec.europa.eu/commission/2014-2019/president_en" title="Jean-Claude Juncker.">Jean-Claude Juncker.</a> The <a href="http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm">Court of Justice of the EU</a> has 28 judges and 11 Advocates General.  They are not elected but are appointed "by common accord of the governments of the Member States" for a term of 6 years. The judge from the UK is Christopher Vajda QC who was <a href="https://www.gov.uk/government/news/uk-candidate-for-european-court-of-justice-judge-confirmed">nominated by the British government</a> in 2012.  Following the domestic selection process, nominations are forwarded to the panel established under Article 255 of the Treaty on the Functioning of the European Union for further scrutiny, following which nominations are agreed by common accord of all Member States.  The Advocate General from the UK is Eleanor Sharpston QC. The remit of the Article 255 panel is to give an opinion on candidates' suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the governments of the Member States make the appointments. The panel consists of seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence, one of whom was proposed by the European Parliament. Lord Mance (Justice of the Supreme Court of the UK) - <a href="https://www.supremecourt.uk/docs/speech_111019.pdf">The composition of the European Court of Justice</a> - 19th October 2011 <div style="text-align: center;">: The UK may veto various proposals :</div> Requirements for voting within the EU to be unanimous have reduced and, in particular, since the Single European Act 1986 - - <a href="http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/overview/britain-and-eec-to-single-european-act/">Parliament - The EEC and the Single European Act</a> The <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1987:169:SOM:EN:HTML">Single European Act </a> (SEA) 1987 amended the Treaty of Rome. Its aim was to create a single internal market, which had been proving difficult under the existing Treaties. The SEA replaced many unanimous decision-making processes with Qualified Majority Voting (QMV), in order to facilitate the adoption of a raft of EU legislation by the end of 1992. Today, unanimity is required in some areas - e.g. accession of a new member State - see <a href="http://www.consilium.europa.eu/en/council-eu/voting-system/unanimity/">Council of Europe voting</a>. </div><div style="text-align: center;">: The EU Budget :</div> For a look at the total EU Budget and how it is spent see <a href="http://ec.europa.eu/budget/index_en.cfm">Europa - EU Budget</a> The <a href="http://europa.eu/about-eu/facts-figures/administration/index_en.htm">EU spends around 6% of its annual budget</a> on administration and maintenance of buildings <div style="text-align: center;">: EU Membership costs to UK :</div> The actual position is quite complex since account has to be taken of monetary flows in both directions.   A "membership fee" of £350m per day has been claimed.  This is not an accurate figure though the actual sum is substantial.  For a proper assessment see Office for National Statistics <a href="http://visual.ons.gov.uk/uk-perspectives-2016-the-uk-contribution-to-the-eu-budget/">UK perspectives 2016: The UK contribution to the EU budget</a> and The Independent - <a href="http://www.independent.co.uk/voices/how-much-does-membership-of-the-eu-actually-cost-the-uk-a6972976.html">How much does membership of the EU actually cost the UK</a>. Treasury Committee 27th February 2015 - <a href="http://www.parliament.uk/business/committees/committees-a-z/commons-select/treasury-committee/news/eu-budget-report/">Treasury committee publishes report on UK's EU Budget contribution</a> Telegraph - EU facts - <a href="http://www.telegraph.co.uk/news/newstopics/eureferendum/12176663/EU-Facts-how-much-does-Britain-pay-to-the-EU-budget.html">How much does the UK pay</a> <div style="text-align: center;">: Are the EU's accounts properly managed : </div><a href="http://ec.europa.eu/budget/index_en.cfm"></a> The question of auditing of accounts is frequently raised by those favouring leaving the EU and claims are made that they have not been audited. Fullfact.org <a href="https://fullfact.org/europe/did-auditors-sign-eu-budget/">Did auditors sign off on the EU budget</a> - The European Court of Auditors (ECA), an EU body set up to examine the accounts of the Union, <a href="http://www.eca.europa.eu/Lists/ECADocuments/auditinbrief-2014/auditinbrief-2014-EN.pdf#page=10">signed off</a> on the 2014 accounts as reliable - something it's done for every set of figures since 2007. But it did find that payments made were materially affected by error. The <a href="http://www.eca.europa.eu/en/Pages/ecadefault.aspx">European Court of Auditors</a> are guardians of the EU finances.  See also <a href="http://www.eca.europa.eu/en/Pages/AuditReportsOpinions.aspx">ECA Reports and Opinions</a>. The <a href="http://www.europarl.europa.eu/aboutparliament/en/20150201PVL00005/Budgetary-powers">European Parliament has significant powers in relation to the budget</a>. <div style="text-align: center;">: Immigration :</div> Fear of large scale immigration resulting from EU freedom of movement has been exploited by the leave campaign- e.g. <a href="http://www.bbc.co.uk/news/uk-politics-eu-referendum-36407447">BBC 29th May.</a> The House of Commons has published a Briefing Paper SN06077 dated 26th May - <a href="http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06077">Migration Statistics</a> Fullfact 26th May - <a href="https://fullfact.org/immigration/eu-migration-and-uk/">EU Immigration and the UK</a> - In 2015, an <a href="http://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/may2016#immigration-to-the-uk">estimated</a> 270,000 citizens from other EU countries immigrated to the UK, and <a href="http://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/may2016#emigration-from-the-uk">85,000 emigrated</a> abroad. So EU ‘net migration’ was around 185,000. Estimated non-EU immigration and net migration has always been higher, though the gap is narrowing due to large increases in EU immigration over the past few years, and the two are now at similar recorded levels. Whether immigration would be reduced in the event of the UK leaving the EU is not entirely easy to answer since the situation would seem to depend on what arrangements the UK enters into with the EU.   Possibilities are looked at in  <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf">Alternatives to membership: possible models for the UK outside the EU</a>- (the alternatives document).  Looking at the situation of Norway is instructive.  Norway is in the European Economic Area (EEA) but not the EU.  This gives considerable access to the EU market but, as a price for such access, Norway has had to accept many obligations of membership including free movement of people. The position of Switzerland is also addressed in the Alternatives document - (starting at para 3.27).  Switzerland has a complex series of bilateral agreements with the EU.  Again, it has had to accept free movement. This is contentious within Switzerland - see para 3.36 of the Alternatives document. See also London School of Economics - Centre for Economic Performance - <a href="http://cep.lse.ac.uk/pubs/download/brexit05.pdf">Brexit and the Impact of Immigration on the UK </a> <div style="text-align: center;">: Will the EU get larger : </div> As things stand, the answer is YES though timescales for the accession of various applicant States are not clear.  A number of countries are <a href="http://ec.europa.eu/enlargement/instruments/overview/index_en.htm">receiving pre-accession assistance</a>.  This is intended to help those States achieve the accession criteria. One question often asked is when might Turkey join the EU - <a href="http://www.bbc.co.uk/news/uk-politics-eu-referendum-35832035">BBC 17th March</a> and see <a href="http://ec.europa.eu/enlargement/pdf/key_documents/2015/20151110_report_turkey.pdf">Report by the EU Commission on Turkey's accession</a>.  The present UK government supports the accession of Turkey though it is doubtful whether the British people (if asked) would agree.  It is disingenuous for politicians to suggest that when the time comes the UK could vote against Turkey's accession though it is correct to say that the European Council has to be unanimous in order for a State to accede to the Union. More detail about accession is at - <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=URISERV:l14536&from=EN">EU Accession Process</a> <div style="text-align: center;">: Employment Rights :</div> The view of some legal experts is that Employment Rights could be at risk if the UK leaves the EU.  See the <a href="https://medium.com/@seanjones11kbw/i-logged-into-twitter-and-someone-had-posted-this-image-into-my-timeline-5596de6f6311#.xp8w3p353">view of Sean Jones QC</a> (May 2016) and <a href="https://www.tuc.org.uk/sites/default/files/Brexit%20Legal%20Opinion.pdf">Worker's rights from the EU: The impact of Brexit</a> - Michael Ford QC (Advice to the TUC - 10th March 2016). <div style="text-align: center;">: The National Health Service :</div> According to Fullfact.org, EU immigrants make up under 5% of NHS staff.  See their <a href="https://fullfact.org/immigration/immigration-and-nhs-staff/">article here</a>. <div style="text-align: center;"></div> <div style="text-align: center;">: Miscellaneous :</div> a) <a href="http://www.lawyersforbritain.org/">Lawyers for Britain</a> -  a campaigning group which brings together lawyers interested in Britain’s relationship with the EU. They believe that there needs to be a fundamental change in Britain’s relationship with the EU. This cannot be achieved unless we vote to leave the current Treaties, and then build a new and constructive relationship which preserves our trading links but restores our ability to be governed by our own laws.  (Whether a new relationship can be built and the form such a relationship might take is considered in the government's Referendum Act information - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf">Alternatives to membership: possible models for the UK outside the EU</a>). b) <a href="https://leave.eu/">Lea</a><a href="https://leave.eu/">veEU campaign</a> and <a href="http://www.strongerin.co.uk/">Britain Stronger in Europe </a> c) Institute of Directors - <a href="http://www.iod.com/influencing/policy-news/eu-referendum">Institute of Directors</a>  d) <a href="https://inews.co.uk/opinion/brexit/">A Commonwealth view</a> by Dr Joseph Muscat (Prime Minister of Malta) - "If those advocating Brexit claim they are doing so on behalf of the Commonwealth, I respectfully say: “please don’t.”  The Commonwealth has no desire to see Britain withdraw from being a leading player in Europe. It is neither in the interests of Britain nor the Commonwealth." e) <a href="http://www.debatingeurope.eu/debates/">Debating Europe</a> - a website looking at various EU-related topics. f) <a href="https://constitution-unit.com/">The Constitution Unit </a>- many articles on the EU referendum. <div dir="ltr"><div class="MsoNormal"></div><div class="MsoNormal"> <div style="text-align: center;">: Earlier posts in this series :</div></div></div> <div class="MsoNormal"><div class="MsoNormal"></div> 20th February - <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a> - including link to the deal secured by the Prime Minister UK and the EU (1) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-1-history-and-background.html">History and Background</a> UK and the EU (2) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-2-eu-treaties-key-points.html">The EU Treaties - key points</a> UK and the EU (3) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-3-parliament-commission-and.html">The Parliament, the Commission and the Court</a> UK and the EU (4) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-4-freedom-of-movement-of.html">Freedom of movement of persons</a> UK and the EU (5) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-5-referendum-people-need.html">Referendum - People need facts not slogans (Lord King)</a> UK and the EU (6) -<a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-6-will-brexit-be-simple.html">Will Brexit be a simple process?</a> UK and the EU (7) -<a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-7-your-rights.html">Your Rights</a> UK and the EU (8) - <a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-8-trading-bloc-or-emergent.html">Trading bloc or emergent State </a> <a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-8-trading-bloc-or-emergent.html"></a> </div>

UK and the EU (9) - A monumental referendum - Information to assist

The monumental EU Referendum on 23rd June is undoubtedly the most important decision the British electorate will ever make. It is also a ve...

3:07 AM

Da Silva v United Kingdom ~ European Court of Human Rights 30th March 2016

<div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiTG1dOrWdZEiyQ-ZU_hYw1XXP26yHXsPQG-p6MtOGz6SzDPi05DmP92aED1L6HqATbdWgucxj6cPn1HKZSJg_fY2AixlxjRpcOBZrcSPFlw_Tw2fUF0zPmVO3nygA24juPzsPBPuH43ojT/s1600/European+Court+of+Human+Rights.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiTG1dOrWdZEiyQ-ZU_hYw1XXP26yHXsPQG-p6MtOGz6SzDPi05DmP92aED1L6HqATbdWgucxj6cPn1HKZSJg_fY2AixlxjRpcOBZrcSPFlw_Tw2fUF0zPmVO3nygA24juPzsPBPuH43ojT/s1600/European+Court+of+Human+Rights.jpg" /></a></div>The European Court of Human Rights has handed down judgment in the case of Da Silva v United Kingdom.    Charles de Menezes was shot dead at Stockwell underground station (London) on 22nd July 2005, soon after he had been mistakenly identified as a suicide bomber just 2 weeks after the 7 July <a class="u-underline" data-component="auto-linked-tag" data-link-name="auto-linked-tag" href="http://www.theguardian.com/uk/london">London</a> bombings in which 52 people died. <a name='more'></a> The court's judgment was the culmination of a seven-year legal battle in a case first lodged with the Strasbourg court in 2008 by de Menezes’s cousin, Patricia Armani Da Silva, who was living with him in London at the time of his death. <a href="https://www.blogger.com/null" name="more"></a> <div class="MsoNormal">Ms Da Silva, complained that the State had not fulfilled its duty to ensure the accountability of its agents for his death because the ensuing investigation had not led to the prosecution of any individual police officer. </div><div class="MsoNormal"> </div><div class="MsoNormal">Having regard to the proceedings as a whole, the Court found that the UK authorities had not failed in their (procedural) obligations under Article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of identifying and – if appropriate – punishing those responsible. In particular, the Court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated. Both the individual responsibility of the police officers involved and the institutional responsibility of the police authority had been considered in depth by the Independent Police Complaints Commission (IPCC), the Crown Prosecution Service (CPS), the criminal court and the Coroner and jury during the Inquest. The decision not to prosecute any individual officer was not due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute.</div><div class="MsoNormal"> Realistic prospect of conviction: The E Ct HR noted (para 228) that in the period 1990-2014 there had been 55 deaths caused by Police shootings in England and Wales but no criminal convictions even where an inquest jury had returned an unlawful killing verdict.  From 1993 to 2005 there had been 30 fatalities but only 2 prosecutions of Police Officers.  Did this point to the "realistic prospect of conviction" test being too strict?  The court noted (para 217 that: <div class="ECHRPara"> </div><div class="ECHRPara">" ... the Government submitted that in England and Wales the threshold evidential test had been the subject of frequent and anxious consideration through public consultation and political scrutiny. Detailed reviews of the Code were carried out in 2003, 2010 and 2012 and during those reviews the threshold evidential test had not been subject to substantive criticism by the Equality and Human Rights Commission (“EHRC”) or any of the human rights organisations with an interest in criminal law. In the 2003 review the then Attorney General specifically considered whether a lower threshold should apply to deaths in custody but found little, if any, support for such an approach as it would be unfair - and inconsistent - to subject potential defendants in such cases to the burden of prosecution in the absence of a realistic prospect of conviction. Public confidence was maintained by prosecuting where the evidence justified it, and not prosecuting where it did not.</div><div class="ECHRPara"> </div><div class="ECHRPara">and, at 218: </div><div class="ECHRPara"></div><div class="ECHRPara">In light of the fact that the threshold evidential test had been given careful and anxious scrutiny, the Government argued that it should be accorded a significant margin of appreciation in assessing the appropriate evidential thresholds for the initiation and continuation of criminal proceedings in all cases.</div><div class="ECHRPara"> The statistics undoubtedly give rise for concern.  However, the court (at para 276) concluded - " ... the Court does not consider that the threshold evidential test applied in England and Wales constituted an “institutional deficiency” or failing in the prosecutorial system which precluded those responsible for the death of Mr de Menezes being held accountable." Self-defence: The E Ct HR considered the law on self-defence and at 251 said: <div class="ECHRPara">"It is clear both from the parties’ submissions and the domestic decisions in the present case that the focus of the test for self-defence in England and Wales is on whether there existed an honest and genuine belief that the use of force was necessary. The subjective reasonableness of that belief (or the existence of subjective good reasons for it) is principally relevant to the question of whether it was in fact honestly and genuinely held. Once that question has been addressed, the domestic authorities have to ask whether the force used was “absolutely necessary”. This question is essentially one of proportionality, which requires the authorities to again address the question of reasonableness: that is, whether the degree of force used was reasonable, having regard to what the person honestly and genuinely believed (see paragraphs 148-155 above)."</div><div class="ECHRPara"> </div><div class="ECHRPara">and at 252: </div><div class="ECHRPara"></div><div class="ECHRPara">"So formulated, it cannot be said that the test applied in England and Wales is significantly different from the standard applied by the Court in the McCann and Others judgment and in its post-McCann and Others case-law (see paragraphs 244-248 above). Bearing in mind that the Court has previously declined to find fault with a domestic legal framework purely on account of a difference in wording which can be overcome by the interpretation of the domestic courts (see Perk v. Turkey, no. <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#%7B%22appno%22:[%2250739/99%22]%7D">50739/99</a>, § 60, 28 March 2006 and Giuliani and Gaggio, cited above, §§ 214 and 215), it cannot be said that the definition of self-defence in England and Wales falls short of the standard required by Article 2 of the Convention."</div><div class="ECHRPara"> </div><div class="ECHRPara">There is little doubt that the judgment will receive considerable scrutiny by lawyers and the legal test for "self-defence"is a subject to which we shall doubtless return.  </div></div><div class="ECHRPara"></div></div><div class="MsoNormal"><a href="http://hudoc.echr.coe.int/eng-press?i=003-5338286-6656072#{%22itemid%22:[%22003-5338286-6656072%22]}">Here is the court's press release</a>.  The <a href="http://www.bailii.org/eu/cases/ECHR/2016/314.html">JUDGMENT of the COURT</a> (via Bailii)  and for an excellent summary see Doughty Street Chambers - <a href="http://www.doughtystreet.co.uk/news/article/grand-chamber-judgment-in-jean-charles-de-menezes-case">Grand Chamber judgment in Jean Charles de Menezes case</a> </div><div class="MsoNormal"> </div>Previous post - 8th June 2015 - <a href="http://obiterj.blogspot.co.uk/2015/06/jean-charles-de-menezes-to-be-heard-at.html">Da Silva v United Kingdom</a>  (Case No. 5878/08). Justicegap - Oliver Carter - <a href="http://thejusticegap.com/2016/04/jean-charles-de-menezes-strasbourg-finds-no-violation-right-life/">Jean Charles de Menezes:one more chance for justice denied</a>

Da Silva v United Kingdom ~ European Court of Human Rights 30th March 2016

The European Court of Human Rights has handed down judgment in the case of Da Silva v United Kingdom. Charles de Menezes was shot dead at...

4:12 AM

Human Rights concerns

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjvUUE43QF6AmupY5UlZzAK3XYOY5C8u7MrOB4o9agnYzZrYIap7aBogavHGUvPXPeILdbeAjfCVM87SplbEPCzqfpoMRTVILz09eKG9LVJiAO4kP42ui62GPw1WFxhlZHaj2aW7DBb4ca1/s1600/Human+rights.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="100" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjvUUE43QF6AmupY5UlZzAK3XYOY5C8u7MrOB4o9agnYzZrYIap7aBogavHGUvPXPeILdbeAjfCVM87SplbEPCzqfpoMRTVILz09eKG9LVJiAO4kP42ui62GPw1WFxhlZHaj2aW7DBb4ca1/s200/Human+rights.jpg" width="200" /></a></div>British Bill of Rights: Things have gone quiet on the government's plans for a British Bill of Rights.  This may be due to the impending referendum on the United Kingdom's membership of the European Union.  Regular readers will no doubt recall that, back in February 2016, the Secretary of State for Justice told Parliament's EU Justice Sub-Committee that something would appear "soon." Mr Gove added that he was "at the mercy of the Prime Minister" but we would not have "too long to wait" - <a href="http://obiterj.blogspot.co.uk/2016/02/human-rights-eu-renegotiation.html">Post of 2nd February 2016</a> (see the end of the recorded session where Mr Gove responded to a question by Baroness Kennedy). Concerns about Foreign Affairs: <a name='more'></a> <a href="https://www.blogger.com/null" name="more"></a> Meanwhile, there is concern in the Foreign Affairs Committee that the Foreign Office has "downgraded" its emphasis on human rights - <a href="http://www.parliament.uk/business/committees/committees-a-z/commons-select/foreign-affairs-committee/news-parliament-2015/human-rights-report-published-15-16/">Foreign Office needs to raise the profile of human rights - Committee report April 2016</a> and <a href="http://www.theguardian.com/politics/2016/apr/05/human-rights-work-has-been-downgraded-by-foreign-office-say-mps">The Guardian 5th April 2016</a>.    "The Committee is concerned that the words and actions of FCO Ministers have generated a perception that their work on human rights has become less important, despite funding for the FCO's dedicated human rights programme, the Magna Carta Fund, having been doubled to £10.6 million.  The FCO needs to do a better job of selling its human rights work by evaluating it more effectively and presenting it in a more user-friendly fashion." The role of the European Court of Human Rights: Two recent and rather contrasting judgments involving the United Kingdom may be seen as raising the question as to what is the true role of the European Court of Human Rights. Article 19 of the European Convention on Human Rights states - "To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the protocols thereto, there shall be a European Court of Human Rights ..." The court delivered its decision in the De Menezes case - (<a href="http://obiterj.blogspot.co.uk/2016/03/da-silva-v-united-kingdom.html">Silva v United Kingdom - previous post</a>).  This decision seems to demonstrate the court taking the stance that its role is to review national law and practices against the standards set by the convention.  Assessed in this way, the actions of the United Kingdom in investigating the shooting of Mr De Menezes were held to have met convention standards.  [Justicegap - Oliver Carter - <a href="http://thejusticegap.com/2016/04/jean-charles-de-menezes-strasbourg-finds-no-violation-right-life/">Jean Charles de Menezes:one more chance for justice denied</a>]. At the end of March, a Chamber of the court gave judgment in<a href="http://hudoc.echr.coe.int/eng-press?i=003-5339058-6657306" target="_blank"> Seton v. United Kingdom</a> (application no. 55287/10).  It was held that there had been: no violation of Article 6(1) in conjunction with Article 6(3)(d) (right to a fair trial and right to obtain attendance and examination of witnesses) of the European Convention on Human Rights. The case concerned the complaint of a criminal convict about the admission of evidence of an absent witness at his trial. The Court applied the principles established in its Grand Chamber judgments in two cases concerning the absence of witnesses at a public trial, <a href="http://obiterj.blogspot.co.uk/2011/12/convicting-solely-or-mainly-on-basis-of.html">Al-Khawaja and Tahery</a> v. the United Kingdom and Schatschaschwili v. Germany (2011 and 2015 respectively). It found that the criminal proceedings as a whole had not been rendered unfair by the admission in evidence of the recordings of the absent witness’s telephone conversations, having regard to the fact that there had been other decisive incriminating evidence, and that the trial judge had applied procedural safeguards capable of counterbalancing the witness’s absence at trial. The UK Human Rights Blog 4th April 2016 has looked at the Seton judgment - see Fraser Simpson "<a href="http://ukhumanrightsblog.com/2016/04/04/upholding-fundamental-rights-or-ensuring-accurate-verdicts-the-ecthr-and-the-use-of-unchallengeable-witness-evidence/">Upholding fundamental rights or ensuring accurate verdicts? The E Ct HR and the use of unchallengeable witness evidence</a>."  Simpson concludes by saying - " .... the balancing process places an undue weight upon the existence of other incriminating evidence against the accused. The position appears to be that it is more acceptable to deny the accused the right to cross-examine a witness if the prosecution’s case against him/her is strong. This move towards focussing on the accuracy of the verdict, as opposed to upholding the rights of individuals, is a potentially worrying development. Indeed, the contemporary Strasbourg position appears, in effect, similar to  the Court of Appeal’s consideration of the safety of the conviction. <div style="text-align: justify;">It could be argued that the ECtHR may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court."</div><div style="text-align: justify;"> Selecting a Judge for the European Court of Human Rights: Some are arguing that the Secretary of State for Justice has too much power over the selection of a Judge for the E Ct HR - <a href="http://www.theguardian.com/law/2016/apr/01/gove-has-too-much-power-over-human-rights-judge-selection">The Guardian 1st April</a>.  The selection process for Britain’s next judge at the European court of human rights in Strasbourg has been passed to one of the cabinet’s leading Eurosceptics, Michael Gove.  The present incumbent, Paul Mahoney, retires in September.  The longlist of up to 10 candidates has already been handed over by the<a class="u-underline" data-component="in-body-link" data-link-name="in body link" href="https://jac.judiciary.gov.uk/vacancies/018"> Judicial Appointments Commission (JAC)</a> to the justice secretary who will reduce it down to three eligible lawyers, but critics have questioned whether he should have such powers. Mr Gove has to nominate 3 candidates.  The final choice of one is made by the Council of Europe's Parliamentary Assembly which elects the judges - Article 22 of the European Convention. </div><div style="text-align: justify;">Australia: </div> Some Australian concern regarding human rights is reflected in a post on the UK Constitutional Law Blog* - "<a href="https://ukconstitutionallaw.org/2016/04/06/george-williams-and-daniel-reynolds-the-first-four-years-of-australias-parliamentary-scrutiny-regime-for-human-rights/">The first four years of Australia's Parliamentary Scrutiny Regime for Human Rights</a>".  Australia is an exception when it comes to the legal protection of human rights. It remains the only democracy without a national human rights act or Bill of Rights.  This remains the case despite <a href="http://library.bsl.org.au/jspui/bitstream/1/1320/1/NHRC_Report.pdf" target="_blank">a national consultation recommending in 2009</a> that Australia enact a federal law based upon the Human Rights Act 1998 (UK), <a href="http://www.austlii.edu.au/au/legis/act/consol_act/hra2004148/" target="_blank">Human Rights Act 2004 (ACT)</a> and <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cohrara2006433/" target="_blank">Charter of Human Rights and Responsibilities Act 2006 (Vic)</a>. The consultation reached this conclusion after identifying a range of human rights problems and finding that a clear majority of the Australian people favour such an instrument. Instead, Australia adopted a weaker form of protection involving Parliamentary scrutiny but this is, in the view of the authors, proving to be unsatisfactory.  The authors argue that - "By giving the judiciary a role to play, the responsibility of ensuring compliance with human rights would no longer fall exclusively on the branch of government most frequently charged with breaching those rights. The recommendation of the national consultation should now be revisited, and the parliamentary scrutiny regime incorporated within a national human rights act that combines parliamentary deliberation with appropriate judicial protection for human rights." * G. Williams and D. Reynolds, ‘The First Four Years of Australia’s Parliamentary Scrutiny Regime for Human Rights’, U.K. Const. L. Blog (6th Apr 2016) (available at <a href="https://ukconstitutionallaw.org/" target="_blank">https://ukconstitutionallaw.org/</a>) <div style="text-align: justify;"> </div>

Human Rights concerns

British Bill of Rights: Things have gone quiet on the government's plans for a British Bill of Rights. This may be due to the impending...

4:12 AM