Scotland and the EU - No.2 ~ EU membership?

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Inverness

Updated 2nd November

IF Scotland eventually leaves the United Kingdom, then would it continue to be a member of the European Union?  Further, would England/Wales/Northern Ireland (EWNI) remain a member given that it is currently the United Kingdom of Great Britain and Northern Ireland which is a member.  These questions have been under consideration for some time as is shown by Commons Library Note of 8th November 2011 - Scotland, Independence and the EU.

The Treaty on European Union (TEU):

Article 49 of TEU states:

"Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.



The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State.

This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements."

Clearly, Art 49 applies to a European state seeking membership and is silent about the position where an existing member state changes by a part of that state seceding and becomes a separate state.

The position post independence - The Commons Note November 2011:

The Commons Library Note of November 2011 sees at least three different possibilities under international law for a newly-independent Scotland: continuation and secession (the rest of the UK would retain its treaty obligations and membership of international organisations, but Scotland would not); separation (both entities would retain them); and dissolution (both would lose them).

There is no clear method of determining which possibility would apply BUT, crucially, the Commons Note indicates that the position could be negotiated between the parties prior to independence.  The Note also indicates [para. 2.4] that the general assumption within the UK is that an independent Scotland would remain a member even if detailed terms would require negotiation.  It does not follow that the EU would adopt such a view [para. 2.6].  In 2004, Eluned Morgan MEP  asked whether a newly independent region would have to leave the European Union then apply for membership afresh, and whether an application of this type would require a re-writing of the Treaties and the unanimous support of the existing Member States.  The Commission’s answer was that the newly independent state would be outside the EU and would need to apply for membership of the EU in the same way as any other non-member.

"When a part of the territory of a Member State ceases to be a part of the state, e.g. because that territory becomes an independent state, the [European] treaties will no longer apply to that territory. In other words, a newly independent region would, by the fact of its independence, become a third country with respect to the Union and the treaties would, from the day of its independence, not apply anymore on its territory."

An alternative position?  Aidan O'Neill QC ~ the Citizen's viewpoint:

On 14th November 2011, Aidan O'Neill QC published a post on Eutopia Law - "A Quarrel in a Faraway Country?: Scotland, Independence and the EU."  O'Neill suggests that, rather than analysing the matter from the classic viewpoint of public international law, the issue should be considered from the viewpoint of the individual EU citizen since nationals of member states are EU citizens by virtue of Article 20 of the Treaty on the Functioning of the EU (TFEU)

Art 20.1. "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship."  Art 20 then proceeds to give the citizen particular rights.

O'Neill then considers what possible view might be taken by the Court of Justice of the EU (CJEU) were the matter to be raised there.  Seen from that angle, the question to ask is whether the CJEU would consider that Scottish independence required that all (or any portion) of the previous UK citizenry thereby be deprived of their acquired rights as EU citizens?
Business for New Europe ~ a viewpoint:

A further document worthy of consideration was published in March 2012 by Business for New Europe -  Scottish Independence and EU Accession  A number if important areas are considered such as the Euro; EU Budget, Schengen Area and Justice matters. 

It is argued that, as a result of Article 49 TEU, Scottish accession to the European Union would require the unanimous approval of existing member states but there is less clarity, however, about the accession procedure that would be applied to a Scottish candidacy.  Would a full application process be required or might some shorter - even "fast track" - process apply?

Much might depend upon the nature of Scotland’s application – whether it was prepared to accept all membership criteria and negotiate only over institutional questions, or whether it wished to pursue specific exemptions from EU rules.  The UK currently has a number of special arrangements - e.g. the Euro; Schengen; Budget rebate etc.

The stance of the EU would also be influenced by the strength of concern about a Scottish precedent providing inspiration for secessionist ideas in other member states. This concern might also affect its willingness to permit Scottish derogations or the willingness of some member states to agree to a Scottish application.

There are substantive subjects about which an independent Scotland might wish to negotiate: the euro, budgetary contributions, the Schengen area, and justice and home affairs. In each case, Scotland’s stance is likely to be influenced by domestic politics and the need to reassure public opinion about the consequences of independent EU membership.

Any assumption of a fast track to accession is clearly premature, but it cannot be excluded either.

Summary:

It cannot be automatically assumed that Scotland would remain in the EU in the event of its secession from the UK though, as Aidan O'Neill QC argues, a good case - based on the EU citizenship of those who are now UK nationals - could be made for both Scotland and EWNI being separate members.  Also, were the question to reach the CJEU, it might be held that the Treaty on European Union Art 50 did not countenance automatic loss of EU membership but only permitted leaving on negotiated terms.

A neat and tidy public international law solution does not appear to exist.  As Aidan O'Neill QC states - Realpolitik must take over and a negotiated solution would be needed which retains both Scotland and EWNI within the EU.  Any negotiated position would seem to require the unanimous approval of existing member states.

Basic fairness to the population surely requires some clearer view of the position regarding the EU before votes are cast and this position could be clarified by negotiation between the interested parties.  Furthermore, greater clarity is needed on the fine detail of EU membership post Scottish independence.  Numerous matters come into question including the euro; existing UK opt-outs; the existing UK rebate etc.  There will also be particular difficulties between Scotland and EWNI in relation to matters such as defence, north sea oil etc.

Even negotiation is fraught with peril including the possibility that negotiating with the EU might result in membership but on much less favourable terms.  However, that is a political dilemma.


Other materials:

Political Studies Association - Scottish independence - Media briefing pack  Interesting viewpoints from Charlie Jeffery (University of Edinburgh), Michael Keating (Aberdeen), Dr Nicola McEwen (Edinburgh) and Dr Karen Henderson (Leicester).

Scotland and the EU - No.1 ~ Does legal advice exist? 

Update 2nd November:

The Guardian 1st November - Westminster rejects Alex Salmond claim on Scotland's EU membership
The article states - The UK government says an independent Scotland would have to apply as a new member state to join the European Union, with uncertain consequences.

In a brief statement issued on Thursday, Westminster hinted strongly that its legal advice directly contradicted the claim by Scotland's first minister, Alex Salmond, that, if Scotland voted for independence, it and the rest of the UK would need to reapply to join the EU as newly formed states.

The UK government statement stressed that, unlike the Scottish government, it had obtained formal advice from its law officers and that Scotland would have to negotiate the terms of its EU membership with the UK and all other 26 member states.

It said: "This government has confirmed it does hold legal advice on this issue. Based on the overwhelming weight of international precedent, it is the government's view that the remainder of the UK would continue to exercise the UK's existing international rights and obligations and Scotland would form a new state.

"The most likely scenario is that the rest of the UK would be recognised as the continuing state and an independent Scotland would have to apply to join the EU as a new state, involving negotiation with the rest of the UK and other member states, the outcome of which cannot be predicted."

Referring to statements by European commission president, José Manuel Barroso, and his deputy, Viviane Reding, that a newly independent country would be seen as a new applicant, it added: "Recent pronouncements from the commission support that view."

Sunset over Oban

Enhanced Criminal Records Certificates

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The Administrative Court has decided R (Application of J) v Chief Constable of Devon and Cornwall [2012] EWHC 2996 (Admin) Foskett J.  The application concerned an Enhanced Criminal Records Certificate which the Police were proposing to issue in respect of a nurse seeking employment.

The leading case in this area is R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis [2010] 1 AC 410, a decision of the Supreme Court given in October 2009.

Enhanced criminal record checks are carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults, for various gaming and lotteries licences, for registration for child minding and day care or to act as foster parents or carers.


The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant's criminal or other behaviour which have not been tested at trial or led to a conviction. If the information satisfies the tests that [the relevant statutory provision] lays down, it must be given to the Secretary of State and the Secretary of State for his part must include it in the ECRC.

Clearly, the inclusion of allegations (not tested at trial) will be likely to damage the employment prospects of those requiring these certificates and it is possible to challenge a proposed certificate on Article 8 (Right to respect for private and family life) grounds.

J's case does not seem to strike any new law but is an example of the approach to be adopted in deciding whether particular material should be included in a certificate.  Here, the Police had concluded that allegations made against J in 2007 and in 2011 should be included.  In the court, Foskett J disagreed and declared that the disclosure breached J's Article 8 rights.

Foskett J said of the 2007 allegation - Applying the general approach to the issue of proportionality set out in L by Lord Neuberger .... , looking at the material about the incident as a whole, I do not consider that it possessed such intrinsic gravity that demanded disclosure in an ECRC bearing in mind the weight, on the other side of the scale, of the Claimant's Article 8 rights.   See judgment paras. 54-58.

In 2011 there were 3 allegations on record.  Foskett J said - "Again, applying the approach suggested by Lord Neuberger, the balance, in my view, would be decidedly against disclosure if the 2011 allegation (or indeed allegations) stood alone."  Judgment paras. 59-68.

However, did the two sets of allegations gain a weight tilting the balance in favour of disclosure [69].  At [73] Foskett J concluded that, whilst it was correct to review the 2007 matter in the light of the 2011 allegations, it was very difficult to see how the latter allegations, which were unproved and unsubstantiated in the sense of establishing any wrongdoing on the Claimant's part, could give credence to the allegation made in 2007 which, if made initially, was never sustained or pursued. Indeed it was effectively withdrawn."

Thus, J won the application.  At [75] Foskett said - " ... I do not consider that the risks generated by the possibility of occasional heavy-handedness (the suspicion of which has been raised by the allegations) outweighs the Claimant's right to respect for private life under Article 8."

However, Foskett J also noted [76] that J may "face the possibility that these matters will be referred to in confidential references, but that is a different matter."

The issue is one of proportionality:


It will be clear enough from this judgment that the "balancing approach" (Disclosure v Article 8) is not only a difficult exercise but is likely to produce different decisions depending on the decision-maker, the factual matters taken into account and the weight given to those matters.    

In a nutshell,  the issue is one of proportionality - [Lord Neuberger in L's case at para 82].

The L case also indicates that, normally, protection of Article 8 rights would require that the applicant be given a  fair opportunity to answer any allegation involved in the material concerned.  Where the material has potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included.

Notes:

The relevant statutory provision for the purposes of the present case is section 113B of the Police Act 1997, inserted by section 163(2) of the Serious Organised Crime and Police Act 2005. It does not differ in any material respect from its predecessor, section 115 of the 1997 Act, to which the judgments in L related. (The section has been amended again with effect from 10 September 2012.)

Criminal Records Bureau - from 1st December merges with the Independent Safeguarding Authority to become the Disclosure and Barring Service.

Child protection ~ Challenge to the CSOD Scheme

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In March 2010 the Home Secretary issued non-statutory guidance entitled Child Sex Offender Disclosure Guidance (CSOD Guidance ) - see Home Office.   In X (South Yorkshire) v Home Secretary and Chief Constable of the South Yorkshire Police [2012] EWHC 2954 (Admin), this guidance came under challenge.

The claimant (X) had convictions in 1990 of indecent assault on a child and in 1996 for 4 further similar offences.   X was placed on the Register of Sex Offenders and will remain on it for life, subject to being able to make from 2013 an application for removal under the new legislative provisions which came into force on 1 August 2012.



At the end of March 2010, the defendant (the Home Secretary) promulgated the CSOD Guidance.   The scheme became available for voluntary adoption by any Police Force in England and Wales from 1st August 2010.    The scheme enables members of the public to ask the police to provide details of a person who has some form of contact with children with a view to ascertaining whether that person has convictions for sexual offences against children or whether there is other relevant information about him.

South Yorkshire Police adopted the CSOD Guidance in February 2011 and they wrote to X to inform him that the scheme might affect him.  X brought proceedings to have the guidance quashed. He was partially successful in his challenge.  X argued that:

1. The guidance did not recognise the need for the police to consult individual offenders prior to any disclosure

2.  The guidance (in its opening paragraphs) provided for a presumption in favour of disclosure and the guidance did not emphasise the need for a balancing exercise to be conducted prior to any decision to disclose being taken.

The court accepted point 1.  The guidance should have included a requirement to request representations [para 41] and the court said that whilst each case depends on its own facts, it is difficult to foresee cases where it would be inappropriate to seek representations, unless there was an emergency or seeking the representations might itself put the child at risk.

On point 2 - the guidance - on a careful reading - contained a requirement that the Police carry out a balancing exercise taking into account the rights of the sex offender not to have the information disclosed and the need to protect individual children from harm.

The guidance was not quashed since to do so might bring the CSOD Scheme to a temporary halt, it would be disproportionate and risk harm to children to declare the CSOD Scheme unlawful and quash it.

A reading of the judgment is instructive because the court considers the common law and various protective measures for children which are available.  The court concluded with a plea:

"there would seem a great deal to be said for producing one document dealing with the disclosure of the convictions of and other information about a sex offender. What is needed is practical guidance covering the various schemes. There is much less of a risk of the right process not being applied if there is one document which carefully explains the circumstances in which each scheme should be used and provides for more "joining up" of the schemes. We would also observe that it should be possible to do this in a much shorter form than the current guidance."

Legal materials have an unfortunate tendency to accumulate as amendments are made.

Links:

An interesting post on this case is on the Panopticon blog 24th October 2012. 

Earlier reference to CSOD - 30th March 2011

Parents  Protect

Scotland and the EU - No.1 ~ Does legal advice exist?

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Union Street Gardens, Aberdeen

Update 30th October: First Minister Alex Salmond shuns Scottish Parliament EU legal advice debate

I have always thought that the best answer to the Scottish Independence question would be for the United Kingdom to continue intact but internally change itself into a Federation.  Of course, such a solution is not without problems of its own but the possibility is not recognised by the recent Edinburgh Agreement which will offer the Scottish people a straightforward Yes/No vote on independence.

Previous posts at Scotland - Constitutional Futures Forum 2nd October 2012

A Federal solution might have the potential to avoid a very serious issue which could have massive impact not only on the people of Scotland but also on the people's of the remainder of the U.K. This is the important question of whether Scotland would remain a member of the European Union should independence come about.

Under the Treaty of Accession it was the United Kingdom of Great Britain and Northern Ireland which acceded to the European Communities from 1st January 1973.  Great Britain is England, Scotland and Wales.

It does not seem to automatically follow that an independent Scotland would continue as a member state of the European Union - see The Future of Scotland.



Freedom of Information request and decision:

The precise legal position is not crystal clear and a Member of the Scottish Parliament (Catherine Stihler MEP) applied to the Scottish Information Commissioner (Rosemary Agnew) to seek confirmation whether or not the Scottish government had sought legal advice on the question of EU membership in the event of independence coming about.  On 6th July 2012 the Commissioner issued decision notice 111/2012 "Legal Advice: Scotland's membership of the EU."

In May 2011, Ms Stihler asked the Scottish Ministers (the Ministers) whether they had taken legal advice on the status of Scotland within the European Union (EU) should Scotland choose to break away from the United Kingdom and, if so, whether she could be provided with a copy. However, the Ministers refused to reveal whether they had such legal advice. Following a review, Ms Stihler remained dissatisfied and applied to the Commissioner for a decision.  The Commissioner found that the Ministers had failed to deal with Ms Stihler’s request for information in accordance with Part 1 of [Freedom of Information (Scotland) Act 2002], by failing to reveal whether, as at the date they received her request, the legal advice existed or was held by them. If the information exists or is held, she required the Ministers to either provide the information to Ms Stihler or to issue a refusal notice, in terms of section 16 of FOISA, explaining why it is judged to be exempt from disclosure. If the information does not exist or is not held, she required the Ministers to notify Ms Stihler, in terms of section 17 of FOISA, that they do not hold the information.

The Commissioner found that the Scottish Ministers (the Ministers) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Ms Stihler. The Commissioner has found that the Ministers were not entitled to refuse to reveal, in terms of section 18(1) of FOISA, whether the legal advice in question exists or is held by them. The Commissioner therefore requires the Ministers to reveal to Ms Stihler whether the legal advice she requested existed or was held by them when they received her request. If the information was held, she requires the Ministers either to provide that information to Ms Stihler, or to issue a refusal notice in line with the requirements of section 16 of FOISA. If the information was not held, she requires the Ministers to issue a notice in line with the requirements of section 17 of FOISA.

For now, the matter rests there since an appeal - on points of law - is possible to the Court of Session.  Scotland's First Minister has indicated that it will be next year before the position regarding the EU is set out - Herald Scotland 13th September 2012. 

Serious Questions ~ few answers:

Would a federation enable the EU question to be avoided?

Would an independent Scotland have to apply for EU membership?

What are the implications for what remains of the UK following Scottish independence?

An interesting article is Professor Neil Walker's "Beyond the black and white of legal advice"

Doubtless, subjects to which we shall return.

Union Street Aberdeen, 1964

Prisoner Voting ~ The battle lines are drawn

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Update 31st October: The Guardian "Let's not let popularism masquerade as sovereignty on prisoner votes"


Update 30th October: Head of Legal blog - Prisoners' votes: what's the government up to?  Are they missing a trick?

Update 29th October:  The Guardian (Sunday 28th October) - Prisoners to launch legal action on voting rights

Post updated 26th October  to include video of the Attorney General at the House of Commons Justice Committee.

The Prime Minister (Rt. Hon. David Cameron MP) said that serving convicted prisoners will never get the vote under this government.  The Attorney-General (Rt. Hon. Dominic Grieve MP QC) - the Senior Law Officer of the Crown - argues that the United Kingdom will lose respect in international circles if it fails to comply with the ruling of the European Court of Human Rights.  Grieve however acknowledges that whether prisoners are permitted to vote is essentially a matter for Parliament which is "sovereign."  On the differences between Cameron and Grieve see the article in The Guardian by Joshua Rozenberg.

Let's be clear right away.  The European Court of Human Rights came down against the blanket, disproportionate, ban on voting imposed by the UK.  The court did not rule against a ban in all circumstances.  It is entirely possible that a ban could be maintained in relation to prisoners serving sentences for very serious offences and, ironically, any such ban could (if Parliament were to so decide) include prisoners sentenced for offences similar to those committed by John Hirst (Manslaughter) and Greens (rape).


As Adam Wagner points out (UK Human Rights blog) - More shenanigans on prisoner votes:

"It is important to remember that in Hirst No. 2 the Court criticised the automatic and indiscriminate ban on convicted prisoners voting. That was the rationale, not that all prisoners were banned from voting"

and

" ... the Court has recently reiterated that it will give states a wide discretion as to how many prisoners it will allow to vote. The Court’s outgoing British president made this point powerfully in yesterday’s Independent."


In May 2012, after Scoppola v Italy No. 3 (link to post on UK Human Rights blog), the UK was given a further (and perhaps final) 6 month period to take action toward implementation of the judgment against the UK in Hirst No.2.  Suppose we get to 22nd November and the government has done nothing toward amending the law.  In this event, there would be a prima facie case of breach of Convention obligations [Art. 46.1] by the UK but what might happen?  Article 46 of the European Convention on Human Rights applies.

Binding force and execution of judgments




Thus, the Committee of Ministers would first refer the matter back to the court which must rule on breach.  Much would depend here on precisely what was expected by the phrase "refuses to abide by a final judgment in a case to which it is a party ..."

Assuming the likely scenario that the court finds that the UK is not abiding by the judgment then the Committee of Ministers has to consider the measures to be taken.  What then is possible?

Enforcement of judgments:

The mechanisms for enforcement are the Achilles Heel of the Convention arrangements.  The Statute of the Council of Europe Article 8 enables suspension from rights of representation for serious violation of human rights.  Whether denial of voting rights amounts to a serious violation is a moot point.  Furthermore, Art 8 makes possible the removal of a member State but this has never happened and, to be frank, many current member states have far worse human rights abuses than the UK - (e.g. abuses of Article 3). 

Short of loss of representation rights or removal, the process for enforcement lies in persuasion and perhaps embarrassment of the government of the State in question.  There is also the possibility that the Parliamentary Assembly becomes involved in holding the defaulting state to account.

The Brighton Declaration 2012 rejected a proposal that fines might be imposed for non-compliance.

Much detail relating to enforcement is to be found in The execution of judgments of the European Court of Human Rights - Council of Europe 2002 and The effectiveness of the Committee of Ministers in supervising the enforcement of judgments of the European Court of Human Rights by Philip Leach [2006] Public Law Issue 3.  There are many other articles touching upon enforcement.

Embarrassment of the UK or worse?

The government possibly considers that any damage to the UK by non-implementation of prisoner voting will be minimal.  Of course, this may prove to be right.

It is commonly accepted that the effectiveness of the enforcement process is critical to public perceptions of the Court’s authority and the credibility of the system.  The effectiveness of institutions at the European level depends substantially upon the capability and willingness of national bodies to respond appropriately and adequately.

A refusal to implement a judgment carries the possibility that the UK's standing as a nation to be trusted in international law will be harmed.  The UK is a major player in international affairs (e.g. UN Security Council Permanent Member etc).  Harm to the nation's standing might result in unforeseen and possibly more serious consequences - e.g. in relation to adherence to treaties generally or to the willingness of other nations to enter into treaty obligations with the UK.

A further point is that by not adhering to responsibilities in international law, Ministers would place themselves in breach of their own Ministerial Code which contains an overarching duty to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life.


Here are the key points from Dominic Grieve's evidence to the justice committee about prisoner voting - from Politics Live: Prisoner Voting row
.
• Grieve said that Britain should abide by the European court of human rights ruling saying the blanket ban on prisoner voting should be lifted.

The decision by the [European court of human rights] ... places a duty on the United Kingdom as a signatory to the Council of Europe and the European convention to implement change to the Representation of the People Act in this area. Actually what the United Kingdom should do is not specified and it is quite clear that there is a great deal of latitude in respect of what the United Kingdom can do in respect of implementing the Scoppola judgment ...
The United Kingdom government is adherent to the convention. The convention is one of our international legal obligations. And successive governments, including this one, have always put a great emphasis on the observance of our international legal obligations. We live in a world where international law matters increasingly ... We do observe international obligations that are imposed on us.

• He said Britain's reputation would suffer if it ignored the ruling.

The issue is whether the United Kingdom wishes to be in breach of its obligations, and what that does reputationally.
Inevitably, if we were to be in default of a judgment in the European court of human rights, whilst clearly there would be some people who could put forward logical arguments as to why we should be, equally I have absolutely no doubt that it would be seen by other countries as a move away from our strict adherence to human rights laws.

• He said there was considerable flexibility in how the ruling could be implemented.

There are numerous ways in which government or parliament might, could, if it wished to, approach the issue of change to the blanket ban, and that that approach need not necessarily be entirely in the direction that we have got to give more convicted prisoners the vote. There is an inbuilt flexibility in the Scoppola judgment which wasn’t really present in [an early judgment from the court in this case].

• He refused to say whether there would be a draft bill published on the matter.
• He said that ultimately parliament could decide to ignore the European court if it wanted.

It is entirely a matter for parliament ultimately ... to determine what it wants to do. Parliament is sovereign in this area. Nobody can impose a solution on parliament.

• He said ministers were obliged under the ministerial code to honour their international legal obligations.

But, as I say, the accepted practice is that the United Kingdom observes its international obligations. And that is something that is spelt out in a number of places, including the ministerial code.

• He rejected a suggestion from the Tory MP Nick de Bois that nothing would happen to the UK if it ignored the European court. In theory, the UK could even be thrown out of the Council of Europe, he said.

I’m not in a position to speculate one way or another what the outcome would be if the United Kingdom government and parliament decided not to respond to the Scoppola judgment. What would happen in practice is a matter of speculation ...
As to what the end game would be, whether it would mean that the United Kingdom decided to leave the Council of Europe, or be expelled from the Council of Europe, I don’t think I would wish to hazard a guess. But it is at least technically possible that a country that is in breach of its obligations can be removed.

He said that this had only happened once, to Greece in the 1960s, after the military staged a coup. [See my note below]

• He said ignoring the ruling would be "costly" to the government.

There’s an issue, I think, that has been canvassed previously, that there would be damages claims stacking up against the United Kingdom government in respect of individual prisoners who would claim that their right to vote had been denied them. Therefore that would be costly to the United Kingdom government, unless it chose not to pay those, in which case that would be a further breach of its international obligations.

Note: Greece was run by the military in the period 1967 to 1974 and the regime came under criticism within the Council of Europe.  In December 1969, Greece withdrew voluntarily from the Council.  The UK wished Greece to continue in membership - mainly for strategic military reasons connected with NATO.  The article by Thomas Hammarberg (18th April 2007) - "The Greek case became a defining lesson for human rights policies in Europe" - is well worth reading.


A video of the Attorney General before the House of Commons Justice Committee on 24th October. Discussion of prisoner voting commences at about time 46 minutes.

Community sentences ~ Prisoner votes ~ European matters ~ Police Commissioners

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Toughening Community Sentences:

The Ministry of Justice has brought forward proposals aimed at Toughening Community Sentences   A fuller explanation of the proposed changes has also been published - Community Sentences to deliver proper punishment.    The government's ideas will be brought into law via the Crime and Courts Bill which is currently before the House of Lords.  The detail of the changes may be seen in the various Bill documents - Amendment Papers.  The changes proceed, as is so often the case, by technique of "cutting and pasting" new sections into existing Acts.

Prisoner Voting:

Permitting serving prisoners to vote is anathema to many politicians (including the Prime Minister who is made "physically sick" by the idea) and members of the public. Against that,
others see that permitting some serving prisoners to vote will perhaps assist in any rehabilitative process - perhaps, for instance, allowing prisoners serving less than 4 years to vote.  The European Court of Human Rights came out against the present blanket ban which denies the vote to all serving prisoners other than those on "remand."  Today, it is reported that Ministers are in talks about this issue.  Some proposal or other must emerge in the next few weeks.  BBC 24th October.  It is unlikely that the British government will wish to be seen to be in open defiance of the court's ruling.

In December 2010 the government announced its intention to bring forward legislation to permit voting by prisoners serving under 4 years but this fell by the wayside after The Commons voted decisively in February 2011 to retain the ban.

It is the Committee of Ministers of the Council of Europe which is tasked with monitoring implementation of decisions of the European Court of Human Rights.  The CoE is NOT the EU.

Prisoner Voting - Parliament - Briefing Paper 

Joshua Rozenberg - Prisoner votes row will lose the government respect - The Guardian 24th October.

Defending the European Court of Human Rights:

The retiring President of the European Court of Human Rights (Sir Nicolas Bratza) has robustly defended the court - see The Guardian' report which ends:

Would [Sir Nicolas] apply for one of the three vacancies for justices advertised this week by the UK's supreme court? "I have been out of the UK as a judge for 14 years," he said. "So the idea of going back where I would have a maximum of two and a half years [on the bench before retirement] to pick up the threads in the UK … would not really be advisable. I have made my judicial career here and that's probably where it will end. I have adored it. It's been a wonderful job."

The European Union ~ some updates:

The Foreign Secretary (William Hague) has made an interesting speech pointing to a changed relationship between the UK and Europe.   He said:

"This Coalition Government is committed to Britain playing a leading role in the EU but I must also be frank: public disillusionment with the EU in Britain is the deepest it has ever been. People feel that in too many ways the EU is something that is done to them, not something over which they have a say. The way in Britain Lisbon was ratified without any consultation of the voters has played a part in that. People feel that the EU is a one way process, a great machine that sucks up decision-making from national parliaments to the European level until everything is decided by the EU. That needs to change. If we cannot show that decision-making can flow back to national parliaments then the system will become democratically unsustainable. Subsidiarity must really mean something."

This speech is a follow on from an announcement in July - Review of the Balance of Competencies between the UK and the EU.  Government Departments are drawing up reports over the next 2 years.

Mr Hague also said - "We are also looking at the right balance on Justice and Home Affairs given our distinct legal tradition."  This refers to the possible UK "opt-out" discussed in Opt Outs and the EU - Friday 19th October.

2012 is the 20th Anniversary of the so-called "Single Market" and a major initiative in the EU is the Single Market Act II.   This will build on Single Market Act I (April 2011). 

The week just gone (15-20 October 2012) was Single Market Week.  Under the theme "Together for new growth", a week-long series of events took place across the EU to enable policy-makers and citizens to discuss the achievements and challenges of the single market and come up with new ideas.

It was not until the Single European Act, SEA (1986) that a deadline of 1992 was set for the full completion of the single market. This involved: the removal of barriers to movement of people; the harmonisation of national standards; rules on how governments buy services and goods; the liberalisation of financial institution; the setting of more standard Value Added Tax (VAT) rates, and European business laws. In 1992, the Maastricht Treaty began the final leg - Economic and Monetary Union. This came into being in 1999.   For many, monetary union is a step too far.

Police and Crime Commissioners:

Meanwhile, back home,  the elections for Police and Crime Commissioners are about 3 weeks away.  The New Statesman has published - Ten Reasons why police commissioner elections leave us cold.  This is a "flagship" law and policy of the present government which appears to have been particularly badly implemented.

2nd December 2010 - Elected Police Commissioners: is this a good move?

Assault on Goalkeeper

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The match between Sheffield Wednesday FC and Leeds United FC on 19th October was played at Sheffield Wednesday's home ground - Hillsborough. The match was a 1-1 draw but was marred by an ugly incident when 21 year old Aaron Crawley assaulted the Sheffield goalkeeper - Chris Kirkland.   Sitting at Sheffield Magistrates' Court - District Judge (Magistrates' Courts) Naomi Redhouse sentenced Crawley to 16 weeks imprisonment and imposed a Football Banning Order for 6 years.  Crawley is described in some media reports as an unemployed labourer.

A short video of the incident is at The Guardian 21st October. 



Crawley - so it is reported - told Police that he did not remember joining a pitch invasion and pushing Kirkland since he had drunk several cans of lager, three-quarters of a litre of vodka and up to 10 pints of cider.  However, according to this report, it appears that he only realised what he had done when other people told him and he saw himself on TV. He immediately made contact with police.  In court, he entered a guilty plea to common assault.

Unfortunately, there are no published sentencing remarks from the judge.  In Magistrates' Courts, publication of sentencing remarks is the exception rather than the rule.  The publication of such remarks would probably improve public confidence in sentencing generally.  At the very least, the public would have access to the factors taken into account as opposed to, for example, media reports which rarely seem to mention important details such as the precise charges.

Sentencing ~ Guidance:

The CJA 2003 sets out the purposes of sentencing (section 142); determining seriousness (section 143); reduction in sentence for guilty pleas (section 144); general restrictions on custodial sentences (section 152) and general restrictions on length of custodial sentences (section 153). 

The latest guidelines for Common Assault are in the Magistrates' Courts Sentencing Guidelines (page 213).  These are newer guidelines applicable from June 2011.  The reader will find it instructive to follow the guidance through and see what kind of sentence is arrived at.

The guidance requires the sentencer to decide which category - 1, 2 or 3 - the case falls into.  Here, I would think that the judge decided Category 1 (Greater harm and higher culpability).  Greater harm because, for one thing, Kirkland required medical attention.  The culpability is clear and is high even though Crawley claimed to have been unaware of what he did.  (Whether the judge actually believed that story is not known).

For Category 1, the starting point for sentencing is a High Level Community Order with a range from low level community order to 26 weeks custody.  Aggravating features in this offence would include: the location (a football ground where an incident might ignite further trouble); commission of the offence under the influence of alcohol or drugs (Crawley admitted to drinking a very considerable amount); failure to comply with any court orders.  There appears to be little here to reduce the seriousness of the offence apart, possibly, from the fact that the violence was basically a single push.  It is unlikely that this would weigh very much in the mind of the sentencer in this case.

Applying the "custody threshold" to all of this then the judge was almost certain to conclude that  the offence was so serious that neither a fine alone nor a community sentence can be justified.  The judge chose to go to the maximum end of the custody range (24 weeks or 6 months) and then reduce it by one-third for Crawley's guilty plea - hence a sentence of 16 weeks custody.  An entirely well merited sentence.

Football Banning Orders:

Football Banning Orders were the subject of a separate post back in February.  It appears that Crawley had received such orders in the past and is, since this case, subject to a 6 year order.   Media reports are not particularly clear as to whether he was actually on such an order at the time of this match.  (Again, a good reason to have court reasons published).  In this case, a 6 year order is the minimum which could be imposed under the Football Spectators Act 1989 s.14F and a 10 year order could have been made.

(Breach of a football banning order is an offence punishable with up to 6 months imprisonment.  It is to be noted that where a Magistrates' Court deals with two or more summary imprisonable offences on the same occasion, the maximum custodial sentence is limited to 6 months.  The separate sentences are not accumulated).

Surcharge?:

From 1st October 2012, the Criminal Justice Act 2003 (Surcharge) Order 2012 came into force.  Where an immediate custodial sentence is imposed of 6 months and below, the Order seems to mandate a surcharge of £80.  However, this will (for the moment) only apply if it is the Crown Court which imposes the sentence.  The government intends to legislate to make this applicable to Magistrates' Courts.

Reasons:

I keep "banging on" about reasons and make no apology for it.  They are required by the Criminal Justice Act 2003 s.174; they inform the offender, witnesses, victims and the general public; they build confidence and accountability.

As to how extensive reasons must be has been the subject of some case law which is helpfully summarised in a recent judgment of the High Court - R (Aitchison) v Sheffield Crown Court [2012] EWHC 2844 (Admin).  This issue in the High Court hearing was whether, on an appeal from Magistrates to the Crown Court, the reasons given by the Crown Court for a finding of guilt were adequate.  The High Court said that the Crown Court's reasons need not be lengthy or elaborate. "The Crown Court judge giving the decision of the court upon the appeal must say enough to demonstrate that the court has identified the main contentious issues in the case, and how it has resolved them…. The reasoning required will depend on the circumstances. In some cases the bald statement that the evidence of a particular witness is accepted may be sufficient."  The same would apply to reasons issued for convictions in the Magistrates' Court and, similarly, only brief reasons would need be given to indicate why a particular sentence has been chosen.  To that would be added any requirement under section 174 for any explanation about matters such as breach of orders.

As a final observation.  It is irresponsible drinking like that of Crawley which has led to demands for minimum pricing for alcohol.  The effectiveness of this idea is debatable.  Irresponsible drinkers always seem to find the money somehow.  Although Crawley is described as an unemployed labourer, he seems to have had plenty of cash to spend on his drinking.

Lord Neuberger on Thomas Erskine

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It is rare that on a Monday morning one comes across a speech which is such a pleasure to read as the Seckford lecture by the President of the Supreme Court (Lord Neuberger) at Woodbridge School 18th October - Lord Erskine and Trial by Jury  (Acknowledgment: Supreme Court - Speeches)

Lord Neuberger reminded us of many things which are particularly precious in our system of law and his lecture contains many interesting and pertinent observations relating to the independence of the judiciary (an independence referred to by Erskine as "sacred"); the benefits which life outside the law bring to advocacy [14], the courage and judgment possessed by only the best advocates [22], styles of advocacy [27] - Erskine's was "rhetorical, even orotund and extravagant" and would not go down well today; why cases take much longer in modern times [28]-[30]; a plethora of statutes not being conducive to the rule of law [31]; judgments [31] and that the law is becoming obscure, uncertain and forbidding.  He (rather mischievously) notes that "equity barristers are now used to public speaking" [43] and that the best barristers give the impression that the judge or jury is hearing a first class point from a third class advocate.  A comment related to sentencing is at [44]

"The Gordon Riots themselves emphasise that, viewed through the prism of history, the recent Tottenham riots were not as extraordinary as they seemed at the time. And hanging many of the rioters can be contrasted with the four year prison sentences for some of the Tottenham rioters. Our sentencing of criminals may be markedly more severe than in most of the rest of Western Europe, but we have come a long way since the 18th century."

Next, Lord Neuberger touched upon protest [46] and the need to balance the public interests involved.

.  At [53] Lord Neuberger reminds us of what Erskine said at the trial of Thomas Paine about the role of the advocate:



‘I will for ever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will, or will not, stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the Judge;..."

and at [55]

There is perhaps a tendency to underplay what it means to have – and why we need – an independent Bar. Erskine’s decision to proceed with Paine’s defence meant that he lost a lucrative position [as Attorney-General to the Prince of Wales] and could well have lost future work. If he had had a purely commercial approach or was answerable to shareholders, he may well have had second thoughts and handed back the brief. He only had his conscience and his duty to ensure that justice was done to concern him.

and at [56]

It is not a case that an advocate defends the guilty. Guilt is a question for the court, and in important criminal trials, the jury. It is not for an advocate to presume to determine guilt, to set aside the presumption of innocence. Just as importantly it is not for the advocate to connive in the subversion of the rule of law, which he would do if he refused or was able to refuse to defend. The rule of law is only meaningful if it applies to all of us, even those accused of the most offensive of crimes. If it does not apply to all then we have sacrificed justice for caprice and tyranny. Erskine’s defence of his duty – not his right, but his duty – to defend Paine is a defence of a duty owed to us all by the State: a right to impartial justice.

At [60] Lord Neuberger turns to the importance of the jury.

" ...  Erskine explained why an independent jury is such an important element of a just society. He said this, ‘Criminal justice in the hands of the people is the basis of freedom. While that remains there can be no tyranny, because the people will not execute tyrannical law against themselves.  Whenever it is lost, liberty must fall along with it. . . ’



This is a light-hearted speech delivered with humour and which contains a serious message - Please read the speech in full - Lord Erskine and Trial by Jury





Thomas Erskine - 1st Baron Erskine - 1750-1823 

R v Baillie  1778

Trial of Lord George Gordon

Thomas Paine



This post was kindly published by Legal Week - Legal Village on 25th October 2012.