A Tale of Two Referendums

Aidan O’Neill QC

Reflecting on the French Revolution in the opening lines of A Tale of Two Cities, Charles Dickens wrote:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

This passage may serve equally well as a description of the competing claims that were made by the opposing sides in this year’s Scottish independence referendum.

The pro-independence campaign claimed that voting for an independent Scotland would open the way to the best of times, to the age of wisdom, to the epoch of (self)-belief, to the season of Light, to the spring of hope, in which Scots would have had everything before them and which would lead directly to an earthly (Caledonian) paradise.

The pro-union campaign, in response, struck a primarily negative note, seeming unable to find the words to sing the virtues of a British union continuing into the future.   Instead, they said that an independent Scotland would open the doors to the worst of times, that voting in favour of separation would be an act of foolishness and of self-delusion which the voters in Scotland would live to regret in a winter of despair, with nothing before them but a road paved with good intentions and broken dreams.

I fear that similarly competing and irreconcilable claims will be made by the opposing sides in the campaign around the anticipated referendum on the United Kingdom’s continuing membership of the European Union, following the coming general election.   Those wishing the UK to break from the EU will doubtless extol the mythic virtues and heroic vigour of Albion unbound. Those advocating the UK’s continued membership of the EU – like those who campaigned for Scotland’s to stay in the (British) Union – will find it difficult to articulate a positive vision of Europe which will resonate with (particularly English) voters and will, instead, fall back on emphasising the economic dangers and market uncertainties which will come with our “turning our back on Europe” and falling prey to those vices etymologically associated with island life: isolationism and insularity. Continue reading

Not waving, but drowning ? : European law in the UK courts

Aidan O’Neill QC

The relationship between EU law and the municipal law of the United Kingdom seems to lend itself to allusions to water.   In Bulmer v. Bollinger [1974] Ch. 401 Lord Denning famously referred (at 418F) to the incoming tide of EU law, observing that “it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”   And the Factortame litigation, too, was all about water, and the right to fish in it – specifically the Treaty based rights of Spanish fishermen not to be subject to discrimination on grounds of nationality when seeking to exercise their free movement rights to trawl for fish in UK waters.

The long decade of Factortame litigation – which unequivocally established that national courts in the UK should treat EU law based rights as being of a higher normative level than Acts of Parliament and that the UK could be found liable by UK courts to pay damages to those who suffered loss from Parliament’s enactment of an EU law incompatible statute – might now be seen to represent the high-water mark of the influence of EU law on domestic law.   For tides ebb, as well as flow.   The complaints of those of a Eurosceptic ilk of the Member States being “swamped” by a tsunami of EU regulation, of business drowning in EU rules have been increasingly dominant in our political discourse.   Eurocracy is associated with ever growing popular distrust.   The binding of Europe into monetary union is now seen as an act of hubris (the Greeks always have a word for it).     Even among the Europhiles, ideals and ideas seem to have drained from their grand post-War European project.   Scripture says: “without vision the people perish; but he that keepeth the law, happy is he”.   Yet what law is to kept, as the happy certainties of post-sovereign supra-nationalism embodied in une certaine idée de l’Europe no longer command common assent and have become unhappy uncertainties ?

Our courts are, of course, not insensible to this shift, this seeming turning of the political tide.   Recent judgments of the UK Supreme Court, in particular, have marked an increasing turn inward, as the continental is abandoned for the insular and the primacy of national constitutional fundamentals are re-emphasised over the provisions of international Treaties. But what “constitutional fundamentals”, you might well ask ? Classically, the only constitutional fundamental which existed in the UK under the Diceyan analysis of the constitution was the sovereignty of Parliament – and that has been considered and dealt with in Factortame.   What, then, is left within the UK constitution after Factortame ?  The judicial and extra-judicial writings of Sir John Laws seem to provide the beginnings of an answer. In R v Lord Chancellor Ex p Witham [1998] QB 575 he noted (at 581) that “in the unwritten legal order of the British state” it is “the common law [which] continues to accord a legislative supremacy to Parliament”. He also observed that the courts should recognise certain fundamental rights at common law whose “existence would not be the consequence of the democratic political process but would be logically prior to it”. In Thoburn v. Sunderland Council [2003] QB 151 he noted (at 185) that “the traditional doctrine [of Parliamentary sovereignty] has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle” by the recognition of certain statutes as “constitutional” in the sense that, while not being entrenched, their provisions were not subject to implied repeal by later “ordinary” Acts of Parliament.   Parliament could modify their terms, but only expressly.   In Jackson v. Attorney General [2006] 1 AC 262Lord Steyn went further, suggesting (at § 102), that there might be some constitutional fundamentals “which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.   Despite some initial scepticism about the need or utility for reliance upon notions of common law constitutionalism in a post HRA/post EU Charter era (see for example Watkins v. Home Office[2006] UKHL 17 [2006] 2 AC 395 per Lord Bingham at § 29 and per Lord Rodger at §§ 59, 61) the ideas of Sir John Laws appear now to have triumphed into the new constitutional orthodoxy.     They were certainly central to the finding of the UKSC in Axa General Insurance Company Ltd v Lord Advocate [2011] UKSC 46 [2012] AC 868 that statutes of the devolved legislatures were subject to a form of common law review (for breach of the rule of law and/or fundamental common law rights).   In Kennedy v Charity Commission [2014] UKSC 20 [2014] 2 WLR 808 Lord Toulson at § 133 regretted what he saw as “a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.”   In R (Buckinghamshire County Council) v Transport Secretary [2014] UKSC 3 [2014] 1 WLR 342 Lord Neuberger and Lord Mance – in rejecting what looked like a fairly clear line of CJEU case law on the issue of what might properly be expected in and of a Strategic Environmental Assessment for large infrastructure projects (such as HS2) – suggested that there may be constitutional fundamentals which even EU law could not overcome.   As they noted (at § 207) that

“the United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”

And in R (Osborn) v Parole Board [2013] UKSC 61 [2013] 3 WLR 1020 the UKSC emphasised (in Lord Reed’s judgment at § 62) that the starting point in fundamental rights cases should be “our own legal principles rather than the judgments of the international court”. Thus is the common law is resurrected, statutes and ancient charters deemed “constitutional”, old legal rules become fundamental principles, and rights discourse is de-Europeanised, re-patriated and re-branded as embodying the une certaine idée de l’Angleterre (or sometimes, even, de l’Ecosse). Continue reading

Scotland, independence and the EU: the Sturgeon response

Aidan O’Neill QC

In the wake of yesterday’s Statement to the Scottish Parliament by Scotland’s Deputy First Minister, Nicola Sturgeon MSP, responding to the Barroso intervention which suggested that an independent Scotland would automatically leave the EU and would have to apply for admission as a new Member State, a number of legal questions arise.

The first issue is whether, in the period before Scotland formally leaves the British Union, the EU and the Scottish government can lawfully enter into any negotiations regarding the terms upon which an independent Scotland might be recognised as a Member State of the European Union.    The answer to this legal question depends ultimately on whether the Court of Justice of the European Union (“CJEU”) would consider Scotland after a positive vote in favour of independence but before it left the British Union, to already be a “European State” for the purposes of Article 49 of the Treaty on European Union (“TEU”).   To predict how the CJEU might determine that question requires some understanding of that court’s approach to textual interpretation, particularly Treaty provisions.  Continue reading

Scotland, independence and the EU: the Barroso intervention

Aidan O’Neill QC

The President of the European Commission, José Manuel Barroso, has responded to an invitation from the House of Lords Economic Affairs Committee for the European Commission to contribute to the committee’s inquiry into “The Economic Implications for the United Kingdom of Scottish Independence”.    Surprisingly perhaps, his response does not, however, deal with any economic issues should the 1707 Treaty of Union be dissolved and Scotland become an independent State, but rather with legal ones. Mr. Barroso’s first degree is in law, and he undertook postgraduate studies in economics and in international relations. It is to be expected that his views will be legally informed and clearly reasoned. The relevant paragraphs of his letter to the House of Lords on the issue states as follows:

(1)  “The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them.

(2)  If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory.

(3)  In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.

(4)  Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU.

(5)  If the application is accepted by the Council acting unanimously, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails.

(6)  This agreement is subject to ratification by all Member States and the applicant state.” Continue reading

EU Law for UK Lawyers: Review

We don’t generally use the blog to promote the editors, but this rather nice review of EU Law for UK Lawyers by Aidan O’Neill QC appeared in the Journal of the Law Society of Scotland and we thought we would share it. The book is available at all good legal bookshops and online.

EU Law for UK Lawyers

Aidan O’Neill QC

PUBLISHER: HART PUBLISHING
ISBN: 978184113046X
PRICE: £75

O’Neill opens by stating: “The European Union is based on a conviction, confirmed in and by World War II, that the experiment of the nation state had failed.”

In a legal world where specialism is seen as an end in itself, it is refreshing to have an author consider one supposed area of specialised law and demonstrate its relevance, influence and direct impact on individuals’ rights and obligations across all areas of practice: civil, commercial, criminal, employment, competition, planning, intellectual property, taxation, public procurement, health and safety, and more.

The author takes each discipline as a standalone chapter, but taken as a whole, demonstrates the full and daily impact of EU law. He does so with authority, lucidly describing the treaty base before moving to consider secondary EU legal instruments such as directives, concluding with implementation in the UK.

O’Neill anchors his belief that EU law needs to be read “in a manner which is informed by fundamental rights” by referencing each area of practice to the relevant provision of the Charter of Fundamental Rights. This is a compelling text and at this price is worthy of being in all practices.

David J Dickson, solicitor advocate

EU Justice and Home Affairs Law

Charter compatibility as interpretative aid and/or a condition of legal validity?

Aidan O’Neill QC

As I have noted in previous posts, since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments. There have already been over 300 references to the Charter in the decisions of the CJEU (including those of General Court and the Civil Service Tribunal).

One developing issue in the court’s more recent Charter jurisprudence is the manner in which the Charter is being used as an interpretative aid to other provisions of EU law.

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How the CJEU uses the Charter of Fundamental Rights

Aidan O’Neill QC

In the second of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.

No standing for Consumer Associations to challenge merger clearance decisions by the Commission

In Case T‑224/10 Association belge des consommateurs test-achats ASBLv Commission supported by Électricité de France (EDF) 12 October [2011] ECR II-nyr the General Court yet again rejected a challenge to its restrictive standing rules, this time brought by a consumer association who sought to challenge on behalf of consumers a clearance decision of the Commission allowing a merger between two undertakings to take place.  The Court rejected the consumer association’s argument that the Treaty and Charter provisions (Article 38 CFR), which require consumer-protection considerations to be taken into account in defining and implementing other EU policies and activities and for those EU policies to ensure a high level of consumer protection, meant that it should be recognised to have sufficient interest in a merger on behalf of consumers affected by it. Instead the Court stuck to its narrow definition of standing in the usual terms:

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How the CJEU uses the Charter of Fundamental Rights

Aidan O’Neill QC

In the first of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.

Introduction

Since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments.  A recent search of the CURIA database reveals that the Charter of Fundamental Rights has been referred to in Judgments of the Court of Justice and of the General Court in over 250 cases.  This does not take into account the times when the Charter has been referred to and relied upon in Opinions of the Advocates General or in decisions of the EU’s Civil Service Employment Tribunal.

It is clear therefore that any understanding of the intent and effect of EU law has now to be done against a background of an understanding of the terms of the EU Charter of Fundamental Rights, as interpreted by the CJEU.

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A Quarrel in a Faraway Country?: Scotland, Independence and the EU

Aidan O’Neill QC

Arabella Thorp and Gavin Thompson, researchers in the International Affairs and Defence Section and the Economic Policy and Statistics Section of the House of Commons Library Research have jointly authored – for the benefit of UK Parliamentarians – a short paper entitled Scotland, Independence and the EU. The authors consider the possible legal consequences for the EU and the UK of Scottish independence and state:

“This is a major question in the independence debate, and one to which there is no clear answer. There is no precedent for a devolved part of an EU Member State becoming independent and having to determine its membership of the EU as a separate entity, and the question has given rise to widely different views.”

They note that there are at least three different possibilities under international law:

(i)              Scotland is to be regarded as a wholly new State, with the remaining Union of England Wales and Northern Ireland (EWNI) being treated in international law as a (territorially decreased) continuation of the UK. The authors cite the precedents of the 1947 partition of India and the creation of Pakistan, and of the 1962 translation of Algeria from a series of départements integrated into metropolitan France to an independent State.

(ii)            Scotland and EWNI are each to be regarded as successor States to the divided UK.   The authors refer in this context to the de-merger of the short-lived United Arab Republic (1958-1961) back into its original constituent States of Syria and Egypt

(iii)          neither Scotland or EWNI are to be regarded as successor States to the dissolved UK.   The authors here allude to the birth, in 1993, of two wholly new States, Slovakia and the Czech Republic, from the territory of the former Czechoslovakia.

On the first scenario (which Thorp and Thompson term “continuation and secession”) EWNI as the “continuing UK” would retain the UK’s pre-secession treaty obligations and its membership of international organisations, including the EU and NATO, the Council of Europe, the UN and the IMF.  Scotland would start with a blank slate in terms of treaty rights and obligations, and would have to apply to be admitted in its own right as a new member of all and any international organisations.

On the second scenario (which they call “separation”) Scotland and EWNI would each succeed to the UK’s existing international commitments, and would each automatically accede to the international organisations of which the UK was a member, but now as two States rather than as one.

On the third scenario (which the authors describe as “dissolution”) neither Scotland and EWNI would succeed to any of the UK’s international obligations or memberships. Both States, newly independent of each other, would have to sign anew any treaties they wished to be bound by, and enter into negotiations with any international organisations they wished to be members of.

Of course, as the precedents of the break-up of the former USSR and the break-down of the former Yugoslavia show, the reality is likely to be more complex and one which may change over time. In international politics, just as much as international law, context is everything. Thus, some States and international organisations may choose to recognise EWNI as the “continuing UK”, or as the sole successor State to the UK.  Others might prefer to hold both EWNI and Scotland to the UK’s prior obligations and memberships.  And yet others could seek to take advantage of what they would characterise as the “dissolution” of the UK to escape the international obligations formerly owed to it, and/or to declare the UK’s previous membership of international organisations to be void.  This is, in a sense, where international law runs out and international Realpolitik takes over.  Everything depends on the particular terms of constitutions of international organisations, the extent of international recognition and the degree to which an international consensus is reached as to the status to be accorded to an independent Scotland and/or to a continuing UK shorn of its northern territories.

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Publish and be Sued: But Where?

Aidan O’Neill QC

If defamatory material has been published on the Internet where can the defamed individual bring an action, and what law applies? These are the questions posed of the CJEU by the German Federal Court of Justice (the Bundesgerichtshof) and by the Tribunal de Grande Instance (Paris) in two cases – respectively eDate Advertising GmbH v. X, C-509/09 and Martinez v. Mirror Group Newspapers Limited, C-161/10  – which were heard and decided on together by the Grand Chamber of the Luxembourg Court on 25 October 2010.

The eDate Advertising case was brought in Germany against an Austrian domiciled company by a convicted murderer in respect of a cached website news report which named the murderer and his brother (who had been convicted along with him of the same crime), briefly described the crime of which they had been convicted, and noted that they had both lodged appeals against their convictions with the German Federal Constitutional Court (the Bundesverfassungsgericht). The matter at issue was whether or not the German courts had jurisdiction to hear and determine the brother’s application for an order restraining the Austrian company (in accord with German law) from giving his full name in its report.

The Martinez case was brought in France by a French actor and his father against a UK company, complaining that the web-publication by a British newspaper, the Sunday Mirror, of an article in English, with accompanying photographs, headlined “Kylie Minogue is back with Olivier Martinez” breached their privacy rights as guaranteed them under French law.

The issues of EU law for the CJEU to determine in each case involved the interpretation of provisions of the Brussels I Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and of Directive 2000/31/EC on the “free movement of information society services”.

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