Category: Event review

Event Coverage: Whatever Happened to the European Arrest Warrant?

Niall Coghlan

 

Introduction

Under the Anti-Social Behaviour, Crime and Policing (ABCP) Bill, substantial reform of the European Arrest Warrant (EAW)’s implementation in the UK is promised.[1] Simultaneously, the European Parliament is pressuring for EAW reform at the European level.[2] To analyse these reforms, a seminar chaired by John Spencer (University of Cambridge), with Anand Doobay (Peter and Peters), Libby McVeigh (Fair Trials International) and Helen Malcolm QC (3 Raymond Buildings) on the panel, took place in London on 9 December 2013.[3]

The Framework Decision on the EAW (FDEAW) attempts to simplify and streamline extradition proceedings between Member States (MS) through the principle of mutual recognition.[4] This means that an EAW must be executed within strict time limits, subject only to limited exceptions; most notably, states cannot refuse to extradite their nationals, and for 32 core offences, there is no requirement of dual criminality.[5]

Although a success on its own terms, with average extradition time falling from nine months to 43 days, the FDEAW’s mutual trust is premised on states having faith in their neighbours’ justice systems.[6]   This faith is not always justified, and judicial dialogue has become increasingly strained over two problems: first, fair trial standards in issuing states[7]; second, EAWs issued for trivial or old crimes.[8] How, though, can rights be protected without undermining the EAW’s efficiency gains and integrative aims?

The seminar began by analysing Theresa May’s reforms, contained in the ABCP and the recent Crime and Courts Act, which purport to answer this question.[9]

The Forum bar

This is the first headline reform. Under the forum principle, a state may refuse to extradite where it considers itself to be the most appropriate forum for a trial. In response to the (American) McKinnon case, the Crime and Courts Act 2013 introduced a forum bar for all extraditions, including EAW ones.[10] This does not breach the FDEAW.[11]

‘Much ado about nothing’, however, is how Spencercharacterised it. Its background arouses suspicion. In introducing this reform, the government ignored the simple forum bar enacted (but never brought into force) by Labour in 2006.[12] It further ignored the conclusions of the Scott Baker report, which it commissioned: this concluded that a forum bar would constitute a ‘backward step’, both slower and more litigious than the current prosecutorial negotiations that decide forum; nor would it have helped McKinnon.[13]

This suspicion is confirmed by the provision, which is as complex as it is weak. Both the EU and continental courts are frequently lampooned as slaves to inflexible codes of labyrinth complexity. Yet, Spencer continued, the EAW’s forum bar provision is 57 words long; the French, a mere 32; the UK’s, by contrast, contains a monstrous 1,496 words.[14] The reason for this length is its highly prescriptive and restrictive nature: it has a narrow, exhaustive list of ‘interests of justice’, requires a ‘substantial part’ of the crime to have occurred in the UK, and can be removed from the Court’s hands altogether by a non-judicially reviewable CPS certificate. It is the UK, then, whose judiciary is constrained by a code which is much weaker than it appears, where the French enjoy simplicity and significant judicial discretion.

Whilst this criticism is mostly persuasive, Doobay added one interesting caveat. The perpetual problem with a forum bar was that whilst the extraditing court may rule that the UK is the most appropriate forum, it cannot order a prosecution. If none resulted, the accused would gain de facto immunity. The CPS certificate, then, could be used to ensure extradition is not forum-barred where no UK prosecution is likely.[15]

The Proportionality bar

The EAW is not intended for trivial offences; consequently, the offence must be punishable by at least 12 months’ custody (four months for a conviction warrant).[16] Doobaypointed out, however, that this threshold can prove ineffective: theft of a pencil is theft, and so exceeds the threshold, even though extradition would be manifestly disproportionate. Similarly, whilst the Commission hopes that discretion by the issuing state can solve the problem, the reality is that prosecutors are highly uneven in their use of this discretion.[17] Executing states are growing restless at their inability to refuse plainly disproportionate warrants.[18]

Moreover, as a matter of principle some proportionality review must occur in the executing state. The public interest in extradition must be balanced against the accused’s human rights, particularly under ECHR[19] Article 8. In HH, Malcolm noted, the Supreme Court had set out how this balance should be struck.[20] Yet, Doobayargued, only the executing court can judge this: the issuing court has no knowledge of the accused’s situation. Even where the issuing state has acted properly, then, an executing proportionality bar should exist.

The UK already has a limited form of proportionality review: where the ‘passage of time’ makes extradition unjust or oppressive, it is barred.[21] May’s second headline reform would add an explicit, general proportionality bar for all accusation warrants.[22]

Whilst all agreed that a proportionality bar was necessary, the panel criticised the proposed bar. First, it is highly restrictive: only the offence’s ‘seriousness’, its ‘likely penalty’, and the availability of ‘less coercive measures’ may be considered.[23] Malcolm noted that human rights must be implied as a further consideration, else there would be nothing to weigh these factors against. For McVeigh, the list should be expanded to include the expense and human impact of an extradition. Second, it does not apply to extradition for an existing conviction: this is both unprincipled and ignores the injustice of cases like Natalia Gorczowska, a mother-of-one sought over an old suspended sentence for a minor drug offence.[24]

At the other end, it was criticised from the EAW’s perspective. First, Malcolm argued that it breached the FDEAW, except to the extent that it followed the balance struck in HH. It plainly contradicted mutual trust, with opt-in consequences that are outlined below. Second, both Doobay and Malcolm asked how proportionality could be judged without undertaking precisely the arduous analysis that the EAW aims to avoid. For instance, a crime might be more serious in a particular state, or for a particular victim. Estimating the likely sentence would presumably require expert evidence. Worst of all, only in relatively minor cases could extradition possibly be disproportionate; consequently, the new bar will make these most minor cases the most expensive, litigated and lengthy ones.

The unreformed: fundamental rights

Whilst seeking to introduce a proportionality bar, the government is not legislating on an equally controversial issue: fundamental rights in issuing states. Under the ECHR, evidence of a ‘flagrant denial of justice’ in the accused’s trial is required to show this.[25] Yet, McVeighargued, this faith in Member States’ conditions was as much a myth as mutual trust: between 2007-2012, a breach of ECHR Articles 5 or 6 was found in over 500 criminal cases by the ECtHR. Again, a tension exists between mutual trust and defendants’ rights.

Overall, the UK’s reforms in these three key areas did not impress the panel. May’s more modest reforms, which follow, were more warmly received.

Other reforms: trial readiness, leave to appeal, and specialty

First, ‘trial readiness’: under UK law, a prosecution EAW must be issued for ‘the purpose of’ prosecution’.[26] This is potentially extremely wide. The Symeou case showed the dangers of this approach, said McVeigh. Symeou spent two years confined to Greece (eleven months in jail) having been extradited from Britain, before being acquitted at trial. The proposed reforms, which Doobay noted was borrowed from Irish law, allow extradition only where a decision to charge or try had been made.[27] Unlike the Irish Act, it has an exception where the accused’s absence is the sole reason they have not been charged: this author adds that this closes a loophole that would otherwise open via the Assange case.[28]

Presently, an EAW extradition order may be appealed to the High Court by right. This is subject to a strict seven-day time limit. Under the proposed reforms, leave to appeal would become required; balancing this, appeals out of time would be possible where the accused had done ‘everything reasonably possible’ to appeal in time.[29] This relaxation was necessary, said Doobay; indeed, it codified the Supreme Court’s ruling in Lukaszewski that Article 6§1 ECHR required out-of-time appeals in exceptional circumstances, whilst removing that judgment’s potentially-discriminatory suggestion that this applied only to British citizens.[30] For McVeigh, the new leave requirement was very disappointing, and the relaxation, whilst welcome, did not go far enough: the Scott-Baker report’s more flexible test should be adopted.[31]

Under the specialty doctrine, an extradited person may only be tried for the offence for which he was extradited, subject to limited exceptions. Doobay noted that under the current law, consenting to extradition constitutes a waiver of specialty.[32] This discourages accused persons from consenting where they otherwise would, causing costly delay. May’s reforms would remove this rule.[33] This author notes that this abolition is likely to breach the FDEAW, although the relevant articles are unclearly drafted.[34]

Opt-outs

Whilst the panel found parts to praise in these reforms, then, the prevailing image was negative: the forum bar was broadly bluster, the absence of a stronger fundamental rights bar was disappointing, and the proportionality bar potentially breached the FDEAW.

Malcolm argued that this last point was particularly problematic: not only might infringement proceedings against the UK be brought once the CJEU gains jurisdiction in December 2014, but more urgently the Commission might reject Britain’s application to opt back in to the EAW after exercising its mass opt-out of pre-Lisbon criminal measures in 2014.[35]

Upon leaving the EAW, the UK’s extradition framework would be entirely unclear, Malcolm continued. It might revert to the pre-EAW system, as one Parliamentary committee expected; or it might need to move straight to a successor system, as another did.[36] Spencer agreed with the latter; renegotiation with all 27 Member States would likely be necessary, and in the chaos, the UK would become a ‘new Costa Del Crime with poor weather’.

EU-level reform

Moving away from the UK’s unilateral reforms, there are two sides to the European answer to the EAW’s deficiencies. The first, McVeigh said, was harmonisation. In addition to 2013’s directive on the right of access to a lawyer, three directives on suspects’ rights were recently proposed.[37] By raising guaranteeing minimum procedural rights across Europe, these may provide one answer to the question of human rights.

The second is, like the UK’s reforms, a loosening of mutual trust. The European Parliament primarily justifies this as a question of implementation, Doobay said.[38] The UK is not the only state to deviate from the FDEAW because of proportionality and human rights concerns. Come December 2014, when the Commission can bring FDEAW-related enforcement proceedings, these contradictions will come to a head.[39] By relaxing the FDEAW’s strictures before then, these clashes might be avoided. McVeigh noted that this move away from mutual trust could be seen in the agreed text of the European Investigation Order, which includes a standalone provision on fundamental rights.[40]

For two reasons, this loosening of mutual trust might not undermine the EAW, as the Commission feared. First, asDoobay noted, some proportionality bar must exist.[41] Mutual trust, therefore, simply must yield; the only question is how far. Second, McVeigh argued that by refusing to execute a warrant for failure to reach basic fair trial standards, the executing state encourages the issuing state to reach those standards. A rights review could, then, complement mutual trust: it constituted an investment in, not a rejection of, integration.

Conclusion

In his final remarks, Spencer returned to the question of harmonisation. Britain should recognise that the EAW has revealed rather than caused these European problems. As the Confait case showed, the UK was not born free of original sin in pre-trial procedure, but has successfully improved over the years. Far from opting out of the EAW system, she ought to leadEurope in reaching the same standard.[42]

[1] Anti-social Behaviour, Crime and Policing Bill (ABCP) (HL Bill 66, 2013-14): 12/12/2013 edition, as amended in Committee, Part 12. (‘ABCP’); on promises, see HC Deb, 10 June 2013, c74-5.

[2] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-522.805+02+DOC+PDF+V0//EN&language=EN

[3] http://www.events.sas.ac.uk/events/view/14705

[4] 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States; Ibid., Recitals 5 and 6; See generally S Peers, EU Justice and Home Affairs Law  3rd edn (Oxford, OUP, 2011), pp693-710.

[5] FDEAW, Articles 1(2), 2, 3 and 4; see Peers, EU Justice (n 4), 703 for further restrictions.

[6] FDEAW, Recital 10; Peers, EU Justice (n 4), 705f, 708 and 752-753.

[7] C-396/11 Radu; C-399/11 Melloni; http://ukconstitutionallaw.org/2013/05/22/dorota-leczykiewicz-melloni-and-the-future-of-constitutional-conflict-in-the-eu/

[8] Minister for Justice and Equality v Ostrowski [2013] IESC 24 (Ire), espJudgment of MacMenamin J. See generally Peers, EU Justice (n 4), 705-9.

[9] ABCP (n 1); Crime and Courts Act 2013,.

[10] Crime and Courts Act 2013, s50.

[11] FWD Art 4, Art 4(7)(a)

[12] Police and Justice Act 2006, Sch 13.

[13] 6.28-6.30, 6.68 on prosecution (but cf 6.43), and 6.77-80 conclusions; in a striking parallel, s43 of the same Act alters self-defence law in a way that would not have affected the Martin and Hussain cases underlying calls for reform.

[14] FWD Art 4, Art 4(7)(a); Code de procédure pénale Art 695-24 alinéa 3o, 4o; Crime and Courts Act, Sch 20; NB the 2006 bar was just 138 words.

[15] Mr Doobay’s interpretation is reinforced by the specified considerations under s19D.

[16] FDEAW, Article 2(1).

[18] See Minister for Justice and Equality (cited above, n 8).

[19] European Convention on Human Rights

[20] [2012] UKSC 25, esp paras 27-34, 44-48 and 79, cited by Helen Malcolm QC.

[21] Extradition Act (EA) 2003, s11(1)(c), s14; EA 2003, s11(1)(b), s13;

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:0430:FIN:EN:PDF, p182.

[22] ABCP, Clause 145.

[23] ABCP, Clause 145, inserting s21A(3).

[25] ECtHR, Othman v UK (2012) 55 EHRR 1, §§259-261; Janovich v Prosecutor General’s Office Lithuania [2011] EWHC 710 (Admin); cf AG Sharpston’s rejection of this standard in C-396/11 Radu, at 82-5.

[26] FWD A1(1); Extradition Act 2003, s2(3).

[27] ABCP, Clause 144; s11(3) European Arrest Warrant Act 2003 (Ire).

[28] Julian Assange v Swedish Prosecution Authority, [2011] EWHC 2849 (Admin), paras 148-154.

[29] ABCP, Clause 148

[30] [2011] UKSC 177, paras 32-40; see criticism of this approach in the (concurring) judgment of Hale LJ, paras 51-54

[31] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf 11.75-11.84: presumably, in particular, the 14-day limit, the lack of a court fee requirement, and the extension where the appellant has provided inadequate grounds.

[32] EA 2003, s45(3) for EAW; s128(5) for non-EAW.

[33] ABCP, Clause 151

[34] FDEAW, A13 and A27(3)(e); see S Peers, EU Justice and Home Affairs Law  3rd edn (Oxford, OUP, 2011), p704.

[35] https://www.gov.uk/government/publications/the-2014-decision

[39] Protocol 36 of the Lisbon Treaty, Article 10.

[41] Above, ‘Proportionality bar’.

[42] R v Lattimore, Salih and Leighton (1975) 62 Cr App R 53; Report of an Inquiry by the Hon. Sir Henry Fisher into the circumstances leading to the trial of three persons on charges rising out of the death of Maxwell Confait and the fire at 27 Doggett Road, London SE 6 (H.C.P. 90 of 1977-78).

Europe in Crisis: King’s Policy Institute on Democratic Legitimacy in Europe

Ermioni Xanthopoulou and Adrienne Yong

PhD Candidates in EU Law at King’s College London

 

As part of the continuing “Europe in Crisis” project (kicked off by the UKAEL Annual Lecture by Sir Nigel Sheinwald, a review of which was done earlier on this very blog) on November 12, 2013 an extremely lively panel of three Europe experts debated the question of the democratic legitimacy in Europe. Held by the King’s Policy Institute and chaired by Professor Anand Menon, the public lecture attracted a range of different attendees, from students and professors to practitioners from the Foreign Office and the like. Undoubtedly, the very topical title was a draw in itself, and the debate certainly did not fail to impress. With the personalities of the panellists clashing professionally, a heated and animated discussion fostered an exciting atmosphere for all those present to immerse themselves in, leaving everyone with food for thought as it concluded.

 

John Peet

The first panellist was John Peet, the Europe Editor of The Economist. Given his long serving background in the civil service, it was apt he began with establishing when the notion of a ‘democratic deficit’ was first spoken of. He cites 1979, which presents an interesting juxtaposition with how it may be perceived now. Indeed, this author was under the impression that perhaps the idea of democratic legitimacy would not simply be an institutional question. However, it was this route which the discussion followed hence the solution considered throughout was the directly elected European Parliament. Materialising itself in 1979, it persisted to be the discussed solution to the democratic deficit throughout the 1970s until the 1990s. Peet argues that whilst it was a resolution at the EU level, it was inherently unsatisfactory hence in 2013, the question would still be put forward to the public in a lecture held by King’s.

 

Peet argues that it was unsatisfactory for 3 reasons – firstly, the Council did not answer to national Parliaments. There was a dissonance with the national Parliaments, as they were hardly even interested. Secondly, by the 1990s, the European project had shifted away from federalising the EU and towards handing power back to national governments. Finally, and this would later be contested by the second panellist, the European Parliament never acquired legitimacy despite being directly elected. This was evident from the fall in voter turnout for the Parliament, as many in the EU still questioned the EU. Admittedly, the Eurocrisis had made everything worse. It encouraged increased intrusiveness into national legal orders somewhat by necessity, leading to Peet asking the question “Who elected Ollie Rehn?”[1]

 

Ultimately, Peet concludes by arguing that there needs to be a bigger role for national Parliaments considering that the European Parliament fails to resolve anything in terms of democratic legitimacy. The money in the EU is national, thereby encouraging a greater role for them in terms of their input. Germany truly believes this, given their accountability in terms of the Eurocrisis. More subsidiarity needs to be shown. Peet argues that even a return to pre-1979 may be desirable, scrapping the direct elections completely.

 

Simon Hix

Simon Hix, Professor at LSE on European and Comparative Politics, vehemently protested, ‘disagreeing with everything’ his previous panellist has said. He began by noting that democratic accountability today was important only to a small group of academics given that the Eurocrisis had lead to re-distributional outcomes. Accountability, however, was important because the EU was about the market, primarily. He equates democracy with legitimacy; there was some winners and ultimately and unavoidably, some losers. It was insufficient to rely solely on the national level to provide this accountability. Hix argued that unanimous agreement amongst governments would be better to achieve this.

 

Hix was famously named as one of the last people to believe in the European Parliament. Pre-1979, national MPs were not useful checks on the government, it were the independent MEPs who were more effective. Hix declared himself a European Parliament supporter because the Council was non-transparent in their decision making. This seemed hypocritical to him – it was supposedly the best representative of the citizens but their debates on legislative amendments were not openly available thus far. Transparency was crucial for him; national Parliaments needed to increase the scrutiny of the Council.

 

There were two different checks and balances with the advent of the Council and the European Parliament. As the Commission makes political choices, they must be more democratically political elected. He argues that there is potentially a need for a choice of Commission President in this sense as well. As for the position of the UK, there is also a need for a UK referendum because the EU is so different now. The UK did not sign up to this current architecture, and the question remains do we want to be isolated in the EU, or isolated outside it?

 

Vijay Rangarajan

Vijay Rangarajan, of the Foreign and Commonwealth Office then asserted that democratic legitimacy is a shared problem across Europe as it is primarily an issue of contact between citizens and governance. Moreover, people do not know their rights at the EU level. However, he noticed, as the other speakers also did, that the Eurozone countries are those particularly concerned about the decision-making which concerns them. He interestingly proclaimed that the new European Parliament will have a ‘significant psychotic element’ and he stressed the need for national parliaments’ further involvement. National parliaments in particular need to work together and ‘put a break on efficiency’ when it is necessary. He argued this could possibly enhance democratic legitimacy issues.

 

Later on, Rangarajan referred to the ‘yellow card procedure’, which national parliaments can issue to the Union legislature, requiring the institutions to reconsider a proposal. According to Article 7(2) of the Protocol on the Application of the Principles of Subsidiarity and Proportionality,[2] the draft must be reviewed where ‘reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of the votes allocated to the national parliaments’ whereas the threshold is much higher for draft legislative acts submitted on the basis of Article 76 TFEU on the Area of Freedom, Security and Justice (AFSJ). In this second case, the threshold should be a quarter. Concerns have already been expressed on the operation and the effectiveness of this procedure, which he reiterated by reminding us that a plethora of national parliaments have voted against the Proposal for a Regulation on the Establishment of the European Public Prosecutor’s Office. Furthermore, he stressed that the Council should determine and clarify what its position is and noticed again that the legitimacy has been undermined by the call for efficiency.

 

Questions

What was really intriguing was the discussion that followed when the audience was given the time and chance to ask the experienced panel various questions. It was a very stimulating opportunity for everyone there. The questions ranged from the different perceptions of democratic legitimacy across countries, the impact of the CJEU rulings on decision making to the information deficit in the concept of a ‘European demos’.

 

Concerning the various experiences of democratic deficit across Member States, Hix mentioned that the countries facing financial and social crises feel more strongly the imbalances of power and the lack of democratic legitimacy. Peet stressed that the problems are huge in the South Mediterranean countries as people feel that they have lost control of the decision making which concerns them directly. He recommends that national parliaments should have a bigger role because people tend to vote on national issues and on the basis of national parties.

 

Regarding the CJEU and its potential role in legitimacy, after pointing out the significance of the division of power principle, the well-established Economist journalist stated that the Court is a rather ‘ignored’ institution and suggested that people should probably have more interest in who is appointed as a judge, given the importance of the case law. Hix then indicated this institution is interesting regarding the issue of democratic legitimacy, as it has been found that the Court quite frequently takes into account to Member States perception and tilts the balance towards a decision considering national perceptions, providing as an example the Tobacco Advertising case.[3] The need for the appointment of real judges and not diplomats or lawyers has been also underscored by Peet, after being hinted at by the bright audience.

 

As a final point of discussion the panel was asked to provide its opinion on whether there is potential for a European demos, consisting of the European youth and the emerging generation. This is indeed a very interested topic considering the common financial and social problems faced by youths’ experiences of crises. There are serious limitations on their freedoms. Hix claimed that a European demos would be the result of a European democracy, and not the prerequisite. However, it should be mentioned that, contrary to Hix’ final argument, for democracy to exist, there should be a demos to rule and that European citizens, albeit unaware of the very existence of it, might actually constitute a European demos concerned with a plethora of common social and financial problems at the transnational level of the EU.

 

Conclusion

Although the Eurozone financial crisis has recently dominated the debates in relation to EU affairs and EU law, as it was noticed by the panel speakers and by EU lawyers, the discussion on the lack of democratic legitimacy in the EU is always a stimulating topic. The problem is far from resolved. It could be said that this topic is enlightened by the changes brought by the Lisbon Treaty with regard to new powers allocated to European Parliament and to national parliaments. Hence, the debate seeks new direction in view of the social and financial problems that the EU countries have recently faced. Those concerns have particularly become greater recently as the people of Europe feel disconnected from the decision-making on tough policies and laws, despite the admittedly enhanced inter-institutional balance, for which there is still much room of improvement. It has been a pleasure to attend such a great discussion, which definitely gave its audience ample food for thought. Although Euro zone financial crisis has recently dominated the debates in relation to EU affairs and EU law, as it was noticed by the panels and by EU lawyers, the discussion on the lack of democratic legitimacy in the EU is always a stimulating topic. Moreover, the problem is far from resolved. It could be said that this topic is enlightened by the changes brought by the Lisbon Treaty with regard to new powers allocated to European Parliament and to national parliaments. The debate however seeks new direction in view of the social and financial problems that the EU countries recently have faced. Democratic legitimacy concerns have particularly become greater recently as the people of Europe feel that are disconnected from the decision-making on tough policies and laws, despite the admittedly enhanced inter-institutional balance, for which of course there is still much room for improvement. It was a pleasure attending such a great speech and discussion which definitely gave its audience food for thought.

[1] Ollie Rehn is the Vice President of the European Commission, and the European Commissioner for Economic and Monetary Affairs. He has outwardly supported fiscal austerity as to the only way out of the Eurocrisis.

[2] Protocol on the Application of the Principles of Subsidiarity and Proportionality [2004] 310/207

[3] Case C-380/03 Tobacco Advertising [2006] ECR I-11573

UKAEL Annual Lecture 2013 – Sir Nigel Sheinwald on ‘Britain and Europe: A New Stage in an Old Debate’

Adrienne Yong

PhD Candidate at King’s College London

 

A year ago I wrote on the Annual Lecture Lady Justice Arden gave on proportionality. This year I had the pleasure of attending the UK Association of European Law (UKAEL)’s Annual Lecture chaired by Prof. Sir Francis Jacobs (President, soon to be succeeded by Prof. Sir Alan Dashwood) and presented by Sir Nigel Sheinwald, the previous British Ambassador to the United States and British Permanent Representative to the EU. Needless to say, his ex-civil servant status under the auspices of the Foreign and Commonwealth Office held him in good steed to be discussing the relevant pros and cons of Britain remaining a EU Member State (MS) in light of the proposed referendum by the Conservative Party (should they remain in government come 2017).

 

Sir Nigel began with the caveat that his background was not in law therefore the talk would be on Europe, as opposed to European law. For a European law researcher, this political aspect was a refreshing break from the convoluted doctrinal analysis that takes up most of a legal researcher’s time. He explained that whilst recognising the Britain-Europe discussion was not novel, the stage the discussion is reaching now is becoming more so. The EU is changing, and these changes are affecting British membership. Sir Nigel broke his argument down into first discussing British exceptionalism, the changes the EU is facing, the international reaction to the UK and his conclusions on British membership of the EU.

 

British exceptionalism

The main event that Britain found itself lucky to have escaped was the Eurocrisis. It had always been “stubbornly negative” about the EU, but the choices made in regards to opting out of the single currency seemed to bear fruit in terms of escaping the main crisis befalling the EU at present. Its strong sense of Parliamentary sovereignty as well as common law traditions in Britain were two reasons it opted out to begin with.

 

However, Britain did sign up to membership of the EU for a good reason. Sir Nigel cites Dean Acherson, ex-US Secretary of State, and his lesser known quote about the UK’s roles in both the USA and commonwealth nations. He stated that in both areas, the UK’s role was “about played out.”[1] It would seem that the EU would have been the best next course for the UK, remaining in the mainstream but negotiating special arrangements for themselves considering their relative uncertainty at the outset. Membership was thus “conditional”. Modern EU conditions should seem more acceptable to the UK now, however, one must nonetheless tread lightly given the changes it is undergoing presently.

 

Changes in the EU

As mentioned, the Eurocrisis is the most obvious change the EU has gone through, which has severely impacted many opinions in the UK as to the value of the remaining in the EU. There is a close relationship between monetary integration, democratic legitimacy and national Member State control, rendering upholding the Eurozone and single market a more difficult task. Sir Nigel toyed with the idea that perhaps now it is not credible to be excluded from the euro given the solidarity demonstrated therein. However, the Eurocrisis left a bad impression on the UK. The EU will have to do the most they can to stabilise the crisis, with efforts focused there rather than with any other issues the UK has prioritised. Being excluded from these crucial tasks and discussions will have the negative effect of widening gap between the UK and its allies.

 

He also argues that it is unclear if eurosceptics have reflected the population’s sentiments accurately, leading onto the international reaction to the UK’s apparent disdain. Clearly, given the changes the EU is undergoing, stakes are higher if Britain decides to withdraw. However, the more important issue remains that the potential is more real now of this withdrawal. Interestingly, for governments in the Eurozone, survival is most important. The risk of withdrawal of the UK is peripheral in comparison. However, there is still time before this exit is decided with both European Parliament and UK elections a way off. Sir Nigel highlights that the EU may want to consider certain reforms, with the Working Time Directive and tougher action on benefit fraud given the growth of free movement of persons among his suggestions. However, convening an Intergovernmental Conference (IGC) which would be necessary to make the changes the UK so desperately wants, cannot feasibly be done in the time before the referendum.

 

International Reaction to the UK

The most poignant reaction comes from President Obama of the USA, and his piece of advice to David Cameron as to the UK’s membership, stating that it would be a mistake for the UK to leave the EU.[2] Similarly, the Australian government wrote to William Hague, Foreign Secretary of the UK, on this very topic on February 14 also urging reconsidering leaving the EU. These strong sentiments came off the back of David Cameron’s own speech on January 23 where he asserted that the EU was to ‘secure prosperity’[3] and that there should be a maintained role for the UK. Additionally Sir Nigel emphasised that the Japanese memo to the UK reviewing the UK’s balance of competence between itself and the EU[4] also strongly discouraged leaving, for it would negatively affect the Japanese’s entry to the EU market. Germany has begun to overtake the UK in being the key location for new inward investment projects especially from Japan, thereby incentivising the UK to consider remaining in the EU for trade reasons.[5]

 

Value of British Membership to the EU

If these compelling arguments in terms of the international reaction were not enough, Sir Nigel continued on to state his position believing in the benefits of the UK remaining the EU. Though quality of membership would diminish as the euro diminishes in importance, many other areas would remain unchanged. The single currency is but one of the EU’s projects. He described it as a long and winding road. The Eurocrisis may accelerate, but otherwise development in the EU will benefit the UK. The arguments to stay in are compelling and even on a business level, institutions such as the Confederation of British Industry (CBI) agree that withdrawal would be detrimental. Exports to the EU are even larger than those of growing emergent economies.

 

Sir Nigel thus emphatically put his position across that the UK should remain in the EU, and whilst the old debate has seen certain quite significant changes, the position – both in terms of the UK’s membership and one’s opinion as to the benefits of the UK’s membership – should remain unchanged.

 

 

REVIEW: EU Law Panels at the International Graduate Legal Research Conference (IGLRC) 2013 at King’s College London, 8-9 April 2013

Christy Burzio and Adrienne Yong
PhD Candidates at King’s College London

 

It was a great privilege for the authors of this post to have been present for the seventh annual IGLRC held at King’s College London on the 8-9 April 2013. Indeed, the panels were sure to provoke a lot of great discussion chaired by Professor Alex Türk, both in the realm of the tense political, social side of the Union and in the midst of the tough economic times Europe faced and still faces. As greatly varied subjects within EU Law itself, there were two panels split accordingly, the first discussing the EU’s modern social side including issues on identity, fundamental rights and political undertones of judicial review and revocation and the second primarily focused on the financial side of the EU in austerity, agencies and supervisory authorities in banking.

 

The first panel consisted of Eleni Frantziou (University College London), Ana Júlia Maurício (Cambridge) and Erin O’Leary (Liverpool John Moores). It was interesting that whilst the topics of each presenter did vary greatly on the face of it, it would ultimately emerge that they all voiced a commonality. Some presented it as a concern, others as an issue to be acknowledged. They all came back to the same point regarding the un-reconciled status of the EU as lacking coherence in terms of its policy and direction. However, whilst pessimistic in nature on the outset, the three presenters each demonstrated a keen desire for there to perhaps be more room for constitutionalism within the EU legal order and structure. The presence of this trend was an interesting one to note and one certainly considered as being characteristic of the EU generally. The themes were presented from the point of view of fundamental rights and horizontal effect, from national final administrative acts and revocation and from a more socio-legal linguistic identity point of view.

 

The first panel began with a refreshing reference to artistic culture, entitled ‘The constitutional value of the Charter of Fundamental Rights after Lisbon: The importance of being earnest’, analogising Oscar Wilde with the constitutional value of the Charter of Fundamental Rights. After an update on the status of fundamental rights under Lisbon, the sensitive issues were tackled. The fact that there was an undermining of the Charter’s constitutional impact was lamented, which hindered the consolidation of a European identity. This was due to excessive reliance on general principles of EU Law as opposed to the Charter in governing how citizens enjoy rights. It was argued that the Court of Justice of the European Union (CJEU) had to be earnest about their direction for the Charter before it could be clearly stated exactly what their intentions were. The perspective advanced was that there needed to be a new methodology for the application of human rights following the Lisbon Treaty, placing the Charter first, then the ECHR, and following that, general principles to aid in correct interpretation. This interesting methodology instigated a lively debate considering its merits and demerits leaving great food for thought as we then delved into a more technical topic.

 

The provisions and conditions regarding revoking national final administrative acts could be described as a niche area, certainly the thoughts of this author when reading the title of the second presentation, ‘National final administrative acts contrary to EU Law: A critical analysis of the Court of Justice’s case law’. The speaker considered the political relationship between remedies and behaviour of MS in complying with EU law. Though a topic clearly outside many of the attendees’ remit of knowledge, clarity in both delivery and content aided the audience in comprehending the specific topic separated into two parts, firstly aid (state and national aid) and then in regards to the free movement of persons. The presentation and discussion both centred round the stark difference in treatment concerning the treatment of both by the CJEU. Highlighted were the exceptional cases,[1] which seemed to be at odds with the prior line of reasoning. It was commendable to the speaker that though her topic was not widely understood before the day began, she certainly shed some light on the matter by the end of it. Ultimately again, the theme emerged of the divergence rife within the Union’s constitutional decisions. Her focus on this idea contextualised her area of expertise with that of the previous in term of the delicate balance required in both because of the EU’s constitutional nature.

 

The panel rounded off with a non-lawyer’s perspective on the hypocrisy in the EU’s motto in her take that it was more akin to being ‘United in diversity: the lesser of two evils’. As highlighted, to hear a fresh non-legal perspective of an idea of predominantly considered in the legal sphere was a welcome and indeed interesting debate. From a largely linguistic point of view, the notion of the diversity of languages and its consequences for the united Union was considered. The large number of both languages and cultures in the EU contribute to the difficulty in becoming such. This was due to the inherent connection between the two and the undesirability to have a lingua franca for the Union. It perpetuated the idea that there has been a failure to achieve equality, which means there is also legal certainty compromised. It seemed that there was an inevitable sphere of linguistic uncertainty. Again, identity was a key issue given that without an agreement as to one, there would constantly be a tension in the supranational order. Whilst there was significant criticism advanced as to the lack of a clear answer for why there is such hypocrisy and tension within the Union, it only served to emphasise again that this characteristic of the EU would be here to stay, and likely the source and subject of many a debate to come.

 

The second panel was an opportunity for one of the authors to dig deeper into a relevant debate, of which topics and presentations on offer didn’t disappoint. The EU has been epitomised in recent months as an unpredictable political playground. Solidarity and austerity are seen as two conflicting schools of thought, with a line being firmly drawn between the two. The solidarity of many countries has faltered under immense economic pressure. Germany’s resistance to guarantee funds to enable further bailouts and the UK’s proposed attempts at future renegotiations and referendums have spurred a culture of countries looking from the outside at the problems facing the EU from within. The term ‘austerity’ has become taboo to many EU citizens and only the most daring of us would ever utter these words in order to raise a debate. Luckily for us, the speakers were not worried by such a fear.

 

The first speaker was Luca Lionello, (Catholic University of Milan) with a presentation entitled ‘Austerity Measures, Shift of Sovereignty and Democratisation of European Institutions’. The title was intriguing given its boldness in tackling austerity and sovereignty in the same sentence. Aren’t these terms a modern day juxtaposition? The presentation dug deeper into the reality of austerity measures and the impact they have on country independence. He tackled the recent adoption of the Euro plus pact, the Six Pack and the Treaty on Fiscal Stability, as several EU members have adopted austerity measures to respect the new rules on fiscal integration. However, the question on everyone’s lips was; are these measures legitimate and can they solve anything? Luca raised three main points to question the legitimacy of the measures (1) as fiscal policy is a core competent of national sovereignty, the development of a strong European supervision on national budgets will probably oblige members states to reform their own constitution, (2) the new economic governance is managed by intergovernmental bodies that dont directly respond to the citizens in contradiction with the EU’s democratic principle and (3) the adoption of austerity measures under the new rules on fiscal integration has caused the violation in many member states of social and labour rights. The tone of the talk was hopeful that the way to remedy these illegitimacy’s was providing European institutions with the competence and the appropriate means to guarantee social protection of the EU according to the principle of subsidiary. However, with recent economic catastrophes, like that seen in Cyprus, it seems principle of subsidiarity may take a backseat on the EU agenda while we ride through the storm.

 

With subsidiarity at the forefront of the audiences mind, we were greeted by Pieter Van Cleynenbreugel, (University of Leuven) with a presentation entitled ‘Between Delegation and Attribution: Article 114 TFEU, Integrated Administration and the Constitutional Circumvention of the Meroni-judgement on the Establishment of new EU Regulatory Agencies’. The cynical tone of the speakers’ thoughts was presented by the notion that the Meroni judgment [2] is still repeatedly invoked to curb the regulatory powers of independent EU agencies. This powerful debate has been made even more relevant by the introduction of the institutional set up and decision-making powers of the new European Supervisory Authorities (ESA’s) in financial markets regulation. A decisional tug of war is ongoing at EU level between the Meroni delegation limits with the EU treaties’ competence attribution framework. It seems the EU has been rather inventive in delegating power as the incorporation allows it to partially circumvent traditional Meroni delegation limits and to re-qualify them as novel, thus enabling and restraining instruments governing the process of agency establishment in general rather than agency delegation in particular. After a discussion on the relevant case law and highlighting Articles 114 and 291 TFEU, the line of reasoning given by the EU was adamantly and persuasively criticised by the speaker, leaving many thinking, where do we go from here?

 

It was with bated breath that the audience waited for the last speaker on the Panel. Gianni Lo Schiavo (King’s College London) presented on ‘The European Financial Supervisors: A true constitutional challenge in the aftermath of the European Crisis’. This was clearly the hot topic of the panel with many audience members having prepared questions in advance for the speaker to answer. The speaker took a novel approach to his presentation and made a clear case for the introduction of the macroeconomic layer into the European economic constitution established by the Maastricht Treaty. The issues raised by the speaker covered not only the economic crisis but the underlying constitutional crisis as well.  Whilst the new European Financial Supervisors were shown to be important improvements, Gianni spent no time getting to the harsh questions of these entities. The first problem was the shaky ground that these entities seem to have been built upon. The new European delegated governance is being shaped, but it is unclear whether their role will be enhanced as standalone bodies. Secondly, and importantly, the discussion turned to sovereignty; how do these bodies relate to national authorities and their powers, could this indicate a real ‘top down’ process of market regulation and control? The presentation ended stressing the urgency of the need for clear answers of effectiveness and shared responsibilities.

 

Both panels presented papers that prove themselves in both relevance and content. They raised significant issues, but more importantly current issues, and like with any conference by the end both authors found themselves with more questions than they started with as to the future of the EU’s plans in many aspects, on their direction in future development on fundamental rights, identity and that ever tricky balance between sovereignty and supranationality, and on economic recovery and the agencies that could aid in its implementation.

[1] C-119/05 Lucchini [2007] ECR I-6199; C-249/11 Byankov [2012] judg of 4 Dec 2012, nyr.

[2] Case C-9/56 and 10/56, Meroni v High Authority [1958] ECR I-0133

UKAEL Annual Lecture 2012 – Proportionality: the way ahead?

Adrienne Yong

LL.B (Hons), Dunelm; LL.M (Hons), Lond.


PhD Candidate, the Dickson Poon School of Law, King’s College London

 

Under our humble repertoire at King’s College London we boast the high profile UK Association of European Law (UKAEL). This year we were honoured to have Rt. Hon Lady Justice Arden join us on Monday, November 12 to speak about a highly relevant and wide-reaching European topic: proportionality. As one of the most controversial and powerful principles covering all aspects of EU law, Lady Arden described it as ‘impeccable and irresistible’. She would focus on three areas in which proportionality played the most interesting roles. These are its role in the European Court of Human Rights (ECtHR), its role in Court of Justice of the European Union (CJEU) and its role in the domestic courts of the UK. Cases cited provided plentiful food for thought as it has come to light that the EU is being moulded more and more differently by the coming into force of the Lisbon Treaty in 2009.

Before beginning, it was pertinent to define proportionality. Those familiar with the principle can understand how difficult this could be, hence the use of ‘badges’ of proportionality rather than concrete statements of its definition. It would turn to be uncovered what these ‘badges’ are in the three differing areas, how they are applied and how they should be interpreted.

Proportionality derives from 19th century administrative law in Prussia, mainly from the notion of necessity. It was adopted by many, having realised its potential to be a simple yet complex and flexible principle. Lady Arden stated that it was relevant and useful because it could test constitutionality of interference with human rights. Proportionality then branched out to become understood in terms of suitability alongside necessity and with considerations of striking a fair balance also in play. These understandings of proportionality are still used today.

European Court of Human Rights

Proportionality in the ECtHR in Strasbourg is evident because of the emphasis in the case law on striking a fair balance. This is even evident in the qualified limbs of certain of the Convention Articles, namely Article 8 on the right to private and family life, which Lady Arden quoted the second indent of:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[i]

It appeared the drafters of the Convention also envisaged a flexible out from the (at times) very strict rules laid out under the Convention. Indeed, it is well known that even the rights under the Convention are tenuous, as not all harmoniously interpret the way rights should be protected. Therefore, qualified rights such as Article 8 ECHR allow for the interests of individuals (protected in the first branch of the Articles themselves) to be balanced against the collective interests of others.

The case study chosen by Lady Arden is one of the seminal cases on blasphemy: Otto Preminger v. Austria[ii] concerning the ban on a religiously offensive film by the Austrian government. The interests in question were freedom of expression under Article 10 ECHR and freedom of religion in Article 9 ECHR. Though decided in a fairly neutral manner by reference to proportionality (leaving it up to the national court), Lady Arden’s analysis centred around dissents of the minority (those opposed to the decision of the majority). The majority of judges agreed that the ban could stand without actually being against religious debate under Article 9 ECHR. The minority disagreed with Austria prosecuting the film-makers but did note that a ban should only be proportionate if there were serious and violent attacks on religious groups. This fine distinction proves a very important one in the fair balance to be struck between freedom of expression and freedom of religion as to their proportionate intensity. The minority agreed that less restrictive measures as an alternative to a complete ban should be possible if engaging in a qualitative assessment of each right to whatever facts at hand.

In Lady Arden’s opinion, there are two steps to take in circumstances of a clash of rights. First, a qualitative assessment of the rights must be carried out and following this, an examination of how to reconcile the rights. It is not theoretical, but practical. They should apply specific facts of the case. In Axel Springer[iii] there is some guidance as to how to distribute certain rights, which Lady Arden suggested was of use. However, as ever, there is no agreement of a solution to such a sensitive problem.

Court of Justice of the European Union (CJEU)

The relationship of the Court of Justice with proportionality defined in ECHR terms is such that it was borrowed as a legitimate way to depart from Fundamental Rights or more significantly, the EU Internal Market’s fundamental freedoms. The Luxembourg court defines proportionality slightly differently, with its ‘badges’ as suitability, necessity and the least restrictive means. However, proportionality in the EU has been criticised by Lady Arden as lacking a maximum level of intensity. Indeed, the threshold for its applicability has often been that there must be a ‘manifest’ breach and she believes this is not appropriate to achieve certain aims.

The rationale behind this reasoning has been suggested as due to the judicial restraint that Luxembourg has to exercise in relation to its supranational nature as an EU institution in relation to the various national courts. There is a tendency for the CJEU to defer to the national court’s assessment of proportionate measures, such as in Omega[iv] where the German assessment of an affront to human dignity was held to be acceptable because it was felt Germans knew what was best for their citizens. Indeed, this is logical but again fails to fulfil the notion that proportionality should strive to be flexible and wide-reaching in order to protect vulnerable citizens.

Lady Arden describes proportionality in the CJEU as having many points along a spectrum. There is often a higher intensity of review in MS courts compared to the EU institutions. Additionally, there is confusion as to necessity and suitability being interchangeably used in the EU. Factors also vary greatly, such as in scientific evidential cases where the precautionary principle allows potential risk reducing measures to be proportionate. Yet again her discussion on the point summates in a lack of clear answer to addressing faults.

UK Judiciary

In the British court system, the varied influences of the definition of proportionality have created a multilevel manifestation of judging. Three recent cases cited were as follows.

In F (A Child)[v] there was a question reviewing sex offenders’ requirements for notification (to the police as to almost every move of their private lives) as being against Article 8 ECHR. Proportionality was the main driving factor in this, and the UK Supreme Court held that the legitimate aim behind such a measure was in accord with the precautionary principle for the risk of the threat that sex offenders posed. They thus rejected it appealing to the right to private life, fairly strongly asserting the definition of proportionality in the eyes of the British courts.

In Aguilar Quila,[vi] a proposal was put forward to raise the legal age of marriage in order to obtain a spouse’s visa to 21. The policy behind this was to deter forced marriages, with compassionate discretionary exceptions. It was highly controversial as one argument strongly against it was that it significantly hampered the right to unforced marriages, and under this notion the Supreme Court rejected it as a proportionate measures in regards to the four ‘badges’ of proportionality. The dissent from Lord Brown was, however, that the Supreme Court did not have perfect material to fully consider proportionality having ignored the Secretary of State’s opinion.

Finally, in the Court of Appeal judgment in Sinclair Collis[vii] on a tobacco vending machine ban and an interference with the freedom to free movement of goods, the outright ban was found proportionate in order to reduce smoking. Lady Arden, who was involved in the case, argued that ‘manifestly inappropriate’ was the level to consider the ban against because it involved EU law. Indeed, this would be a consistent interpretation with EU law, but interestingly does fully exemplify the multilevel nature of proportionality especially where sources are so varied.

Law and Politics

What Lady Arden meant to clarify was that it appeared that proportionality brings judges closer to the fine line between law and politics. This is especially so in Britain, as the her three case studies demonstrated the divergent approaches to the seemingly simply principle of proportionality. The courts must be mindful of the interaction between themselves and the decision makers, as there are often value judgments to be made. It would appear from the disparate interpretations of proportionality at the UK level that this has placed the common law at a disadvantage in relation to the separation of powers of the judiciary and the executive. It also suffers from evidential issues. Ultimately, it comes down to the question – who knew one word could cause so much controversy? This controversy will last for many years to come.

[i] Convention for the Protection of  Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 8(2)

[ii] Otto-Preminger v. Austria (1995) 19 EHRR 34

[iii] Axel Springer v. Germany (2012) 55 EHRR 6

[iv] Case C-36/02 Omega [2004] ECR I-9609

[v] R. (on the application of F) v Secretary of State for Justice [2010] UKSC 17

[vi] Aguilar Quila v Secretary of State for the Home Department [2011] UKSC 45

[vii] Sinclair Collis Ltd v Secretary of State for Health [2011] 3 C.M.L.R. 37