tolerating complexity I – on tackling Part A of the Tort Law examination…

https://www.rogerebert.com/reviews/bad-samaritan-2018

This academic year will see UoL LLB Tort students across the globe tackle Professor Mulheron’s Modern Law Review article entitled: “Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015” and having had an host of students ask me how to tackle the Part A it seemed a good as time as any to put pen to paper and try to ease this rite of passage.

I propose to do it in two bites; firstly I’ll provide some advice about reading articles in general, generic advice if you will, and secondly try and tackle Professor Mulheron’s piece in more detail.

The first thing I’m inclined to say; is just enjoy the ride. If you have even more than a passing interest in matters legal, then you should enjoy this section of the exam. It clearly doesn’t represent marks on a plate, but at least it represents potentially captive marks. At the very least you know, indeed specifically know, the subject matter on which you’re going to be examined, which differs from the rest of the essentially ‘unseen’ examination

What are the examiners setting out to achieve? Well to date Tort Law is a Level 5 subject. So that suggests they are wanting to raise the ‘ante’. The specific ability  I think they are hoping to awaken (and ultimately examine) in you, is the ability to read articles. You’ll have hopefully already been initiated in the joys of case law, and statute during your Legal Study & Methods module. Now is the turn of the humble article. Often the product of many hours, if not months and years of hard academic labour, it is your job to learn, not just how to access the targeted article, but how to to read (and for this we can substitute ‘critically read’) and to answer some set questions on this juristic product.

So it’s not rocket science.

 You need to read the article, think about the article, and ultimately ready yourself to answer some questions on said article. But while you’re at it, you may as well enjoy the process, and hopefully learn some good article reading ‘habit’s that will last you long beyond May 2019. 

The first habit is to enjoy the journey itself; so learn to tidy your desk, crack open a new jar of coffee and actually focus. No Facebook forays, Instagram intrusions and/or Wechat waffles.

But articles can be challenging; and unlike the more familiar subject guide and/or textbook, they are designed to be so. They provide spaces in which the expectation is that as many questions will be raised as answers provided. This is the paradigm shift you are being asked to negotiate. Make it and you will be making the next gearshift to becoming a real lawyer; side-step it and don’t be surprised if those 60+ (let alone 70+) marks somehow magically elude you.

Let me make this point abundantly clear. Good students read lots of articles and cases. Outstanding students read hundreds of articles and cases. It is (i’m almost afraid to say) as simple as that. 

At this stage of the year you also have one additional luxury; time. 

So read widely. Read the article, but also be sure to read as many of the articles, and indeed cases (this remains a tort Law exam, not just an exercise in critical reading) that the core article references. Why would you not. And this gives you a chance to context the author’s argument/s. Ask yourself, do you agree with what they are arguing… what other arguments could have been made… have they effectively made their case. Just because it’s a published article does not mean that you have to agree with it and/or that it’s well argued. In the year that i sat Tort, the article was so badly written (with my apologies to the usually excellent Nicholas McBride) that when Simon Askey came to summarise it (because so many students had no idea what the article meant) he actually (with my apologies to Simon Askey) came to misunderstand McBride’s fundamental position. This was ultimately only clarified by writing (in fact e-mailing) Professor McBride directly. But I hope it serves to illustrate the point.

A third thing you may think to do, is read around the subject. 

This year you are asked to consider one professor’s view view of 20 lines of legislation. But make no mistake this is just the meniscus on a very complex debate that has raged for many years if not centuries. Try (at least to a degree) to engage with it. Likely you won’t be questioned directly, on the broader implications of her analysis, nor on the underlying debate, but it will absolutely help you to anchor your critical analysis in a way that the ‘study by rote’ student will not have access to. Imagine being asked to critique Chapter 17 of Bleak House if you had no idea of who Charles Dickens was, and/or the legal/social shortfalls he was trying to address. At the bare minimum this article addresses the law of negligence, the Compensation Act 2006 and touches upon the very complex Bad/Good Samaritan debate, which has dogged the common law for centuries. Indeed the latter formed the subject of the essay i wrote some years ago now, when I first dared to enter the Bar Council’s Law Reform Essay Competition; much of the historical backdrop is covered there and it is referenced below.

complications with complexity (see below)

The image above represents nothing more, no less intricate, than the movements of one football team during a 90 minute football game. It serves to illustrate; life is complex and law particularly so. As you start to tackle Tort Law the Part A is a gentle introduction to that complexity, and a challenge to your ability to manage, tolerate and ultimately make sense of it.

Enjoy the journey and you won’t go far wrong.

References:

i. https://www.worldmarket.com
ii. https://www.academia.edu/19716278/Setting_My_Sights
iii. https://landscapearchipelago.wordpress.com/2010/11/07/complications-with-complexity/

‘unified market access test’ – a word or two…

Following Commission v Italy (trailers) the Keck exception has been completely substituted in favour of a ‘unified market access test’, at the expense of national sovereignty.

Discuss.

The heavily judicially criticised decision of Keck & Mithouard [1993] (on this see Oliver on Free Movement of Goods) was an undoubted game-changer as regards the terrain of the ‘free movement of goods’. Heavily influenced by the academic contributions of Eric White (see in particular In search of the limits to Article 30 (EEC Treaty)) there was no doubt that it was underpinned by a judicial agenda that set out to limit the numbers of cases that traders were bringing before the Court (ECJ/CJEU) following the expansive consequences of the Dassonville/Cassis de Dijon line of judgments.

It established, what in hindsight some have considered a false dichotomy, between ‘product requirements’, and ‘selling arrangements’, provided that two criteria (established in para 16) are fulfilled; these being that:

i. the measure applies to all traders
ii. and affects, in the same manner (in law and fact) the marketing of both domestic and

imported products

Though seemingly simplifying the area, and certainly formulated with the intention of decreasing the levels of litigation, it is a decision that has been heavily criticised; and even, in some eyes, overruled by in particular Commission v Italy (trailers) [2009] and (to a degree) Scotch Whisky Association [2015] (which entirely side-stepped Keck as regards ‘certain selling arrangements’) with a shift towards an ‘unified market access test’ paradigm.

This was established in para 37 of Commission v Italy (trailers) [2009] where it was stated that:

Consequently, measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, as are the measures referred to in paragraph 35 of the present judgment. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept.

The net result of this was (as the question suggests) to once more swing the pendulum back towards empowering the Court to override regulations/legislation that Member States had put in place i.e. market prioritisation at the expense of national sovereignty; carrying with it a real danger of the Court trammelling the very Member State nuances (social goals/non- economic objectives) that Keck was designed to protect.

In practice the Keck test prove difficult for the Member State/s to establish, and in many instances, matters were simply returned to the national courts for decision.

Indeed, case law has established that practically, situations are rarely as black and white as the Keck ‘dichotomy’ might suggest; with cases such as De Agostini [1995] and Gourmet [2001] affirming that in particular ‘advertising bans/restrictions’ may well impact non- domestic traders disproportionally. But with all its attendant difficulties it may still be be a potentially more sophisticated and workable formula than the ‘bulk measure’ approach of Commission v Italy (trailers) [2009] which greatly widens the scope of Articles 34/35 and places a heavy burden of provenance on the Member States.

EU law has never had the same rigid hierarchical relationship with precedence that is found in say the case law (‘common law’) of England & Wales, and this has led to something of a ‘pick and mix’ attitude by the CJEU when negotiating these paradigms.

In a 2010 essay, forming part of a collection celebrating the Classics of EU Law 50 years on from the Rome Treaty Allan Rosas noted:

“Despite the criticism expressed against Keck & Mithouard in legal literature and by some Advocate General, the subsequent case law of the ECJ has by and large applied a combination of Dassonville, Cassis de Dijon and Keck to assess alleged restrictions to the free movement of goods.”

So it seems likely that such an approach will endure, with the Court (in spite of the decisions of Commission v Italy (trailers) [2009] and Scotch Whisky [2015]) still having Keck in the armoury as and when Member State dissatisfaction (and this is as much political as it is legal) boils over.

All is not lost, and the Court still has recourse to the doctrine of ‘proportionality’ to supplement the Article 36 and Cassis (‘mandatory requirements) justifications, and this has certainly been used effectively to soften the potential impact of a return to the ‘market access’ paradigm (see Case 36/02 Omega Spielhallen [2004]) allowing Member States to feel that they still have a voice that is listened to at the negotiation tables of Brussels.

a wee dram… a brief consideration of C – 333/14 + Scotch Whisky Association [2017]

 

Read the case Case C-333/14, Scotch Whisky. Explain, in short, the way in which the Court assesses justifications and proportionality. What did the national court decide (see https:// www.supremecourt.uk/cases/docs/uksc-2017-0025-judgment.pdf)?

Case 333/14 concerned a request for a preliminary ruling (Article 267 TFEU) from the Court of Session concerning the validity of the national legislation and a draft order relating to the imposition of a minimum price per unit of alcohol (‘MPU’) with respect to the retail selling of alcoholic drinks in Scotland; and as such concerned proceedings between the Scotch Whisky Association (and other interested parties) on the one hand, and the Lord Advocate and the Advocate General for Scotland on the other.

With a general consensus (para 32) that such measures amount to what Article 34 describes as ‘measures having an equivalent effect to quantitative restrictions’ (MEE) much of the judgment concerns on what grounds a Member State may seek to justify potential derogations, and by what criteria the ‘proportionality of such measures’ may be established.

Specifically concerning the interpretation of Regulation (EU) No 1308/2013 the Court were concerned to ensure “measures should be taken in a way that avoids market disturbances and that ensures equal access to the goods and equal treatment of purchasers”.

On 25 September 2012 the Commission issued its opinion, that the national measure concerned constituted a quantitative restriction within the meaning of Article 34 TFEU which could not be justified under Article 36 TFEU; seemingly closing the door on legislative measures for fixing minimum retail prices, when other permissible fiscal measures were already available.

justifications:

At 12 (3) we see the Court beginning to explore the ‘protection of human health’ justification, and the extent to which national courts are at liberty to consider “information, evidence or other materials”.

Whilst at 12 (4) we see the Court openly wondering:

under Article 36 TFEU, to what extent is the national court required, or entitled, to form — on the basis of the materials before it — an objective view of the effectiveness of the measure in achieving the aim which is claimed; the availability of at least equivalent alternative measures less disruptive of intra-EU competition; and the general proportionality of the measure?

With questions (5) and (6) concerning respectively ‘justification’ and ‘proportionality’.

We see in the Court’s answer to question 1 (at para 29) that it sets the stage for a consideration of these matters in greater depth when it states:

Consequently, the answer to the first question is that the Single CMO Regulation must be interpreted as not precluding a national measure, such as that at issue in the main proceedings, which imposes an MPU for the retail selling of wines, provided that that measure is in fact an appropriate means of securing the objective of the protection of human life and health and that, taking into consideration the objectives of the CAP and the proper functioning of the CMO, it does not go beyond what is necessary to attain that objective of the protection of human life and health.

At para 33 we see the Court (referring to Case 456/10 ANETT [2012]) establishing orthodoxy where it states:

“a measure having equivalent effect to a quantitative restriction on imports can be justified, for example, on grounds of the protection of the health and life of humans, under Article 36 TFEU, only if that measure is”:

  1. appropriate (‘suitability’) for securing the achievement of the objective pursued and
  2. does not go beyond what is necessary (‘necessity’) in order to attain it

At para 35 we see the Court clarifying the scope of Article 36 TFEU suggesting: “it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they wish to assure.” (Case 170/04 Rosengren and Others [2007])

With para 37 further clarifying:

“that a restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner” (Case 161/09 Kakavetsos-Fragkopoulos [2011])

proportionality:

Para 40 affirms that even if a measure is deemed both ‘appropriate’, and of reasonable ‘scope’ (criteria ii. above) such a measure needs to be ‘proportionate’.

This subject is considered in more detail in the Court’s answers to questions 4 and 6; with para 53 establishing the principle:

that [any legislation] is [required to be]:

i. necessary in order to achieve the declared objective, and
ii. that that objective could not be achieved by prohibitions or restrictions that are less

extensive, or
iii. that are less disruptive of trade within the European Union

paras 54/55 establish the burden of proof:

(54) the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and specific evidence substantiating its arguments (Case 42/02 Lindman)

(55) that burden of proof cannot extend to creating the requirement that, where the competent national authorities adopt national legislation imposing a measure such as the MPU, they must prove, ‘positively’, that no other conceivable measure could enable the legitimate objective pursued to be attained under the same conditions

Para 59 helpfully clarifies:

It follows from the foregoing that Article 36 TFEU must be interpreted as meaning that, where a national court examines national legislation in the light of the justification relating to the protection of the health and life of humans, under that article, it is bound to examine

objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO.

With Para 66 answering the question outlined in 12 (3) above:

Consequently, the answer to the third question is that Article 36 TFEU must be interpreted as meaning that the review of proportionality of a national measure, such as that at issue in the main proceedings, is not to be confined to examining only information, evidence or other material available to the national legislature when it adopted that measure. In circumstances such as those of the main proceedings, the compatibility of that measure with EU law must be reviewed on the basis of the information, evidence or other material available to the national court on the date on which it gives its ruling, under the conditions laid down by its national law.

“you’ve gotta ask yourself one question…”

‘the purpose of competition law has never been to achieve optimal market outcomes, but to preserve the ability and the incentive of firms in the marketplace to outperform their rivals.’

Pablo Ibanez Colomo

 

Article 102 of the TFEU could not be plainer; it reads:

“any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.”

But as with all legislation,  just what any provision means, and perhaps more importantly just how far it ‘reaches’ remains, until the court decides, something of a mystery. As regards Article 102, and the specifics of the recent Google anti-trust deliberations, its meaning is only too apparent:

€2 424 495 000

Though facing two further investigations (concerning the Android OS and AdSense) this particular investigation concerned Google’s use of its high degree of EU market dominance, to unfairly advantage one of its other ‘products’, a ‘comparative shopping’ tool which started life as Froogle, now known to most as Google Shopping.

Just how this was achieved is not difficult to grasp. and can perhaps be best considered visually:

Let’s take a simple example to clarify.

My father, based in Norwich UK, decides to visit me in Shanghai, China, and being the tech-savvy 88 year old he is, he whips out his i-pad and opens up Google to try to find the best price for a round trip airplane ticket. He punches in “Shanghai flights”. What happens then is not visible at what is often called the ‘front end’ of the website, but in simple terms a formula (known as an ‘algorithm’) is applied, and moments later your ‘search’ page appears.

 

 

What Google was accused of doing, was essentially manipulating that ‘search’ (i.e. modifying their algorithm) in two fundamental ways:

  1. prominent placement – obviously of their own ‘comparative shopping’ service and
  2. ‘demoting’ their rivals – once again there are various ways to do this, but on average competitor services were appearing no higher than page 4 of any Google search.

Well, imagining you are just that, a ‘rival’, what are the implications for your business?

Well with Google already controlling over 90% of the ‘search’ market share (a ‘dominant position’ on any reading of Article 102) it effectively means commercial death. The European Commission ‘fact sheet’ on the case further clarifies:

“even on desktops, the ten highest-ranking generic search results on page 1 together generally receive approximately 95% of all clicks on generic search results (with the top search result receiving about 35% of all the clicks). The first result on page 2 of Google’s search results receives only about 1% of all clicks. The effects on mobile devices are even more pronounced given the much smaller screen size.”

And that is exactly what was seen to have happened, with enormous growth in Google Shopping traffic (up to 45 fold in the UK alone) with evidence of “sudden drops” of traffic to rival services (up to 92% in Germany).

So coming under increasing pressure from the European Parliament to close the case, in particular given the speed of the ICT (information and communication technology) industry, and the fact that the investigation stretches back to 2010, that is exactly what they did.

After reviewing over 5.2 Terabytes of data (amounting to approx. 1.7 billion search queries) on 27 June 2017, the judgment (yet to be published in full) was released. Google has 90 days (from the ‘decision’) to cease its illegal conduct, whilst the fine was calculated on the “basis of the value of Google’s revenue from its comparison shopping service in the 13 EEA countries concerned.”

Commissioner Margrethe Vestager, in charge of ‘competition policy’, clarified:

“Google has come up with many innovative products and services that have made a difference to our lives. That’s a good thing. But Google’s strategy for its comparison shopping service wasn’t just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors.

What Google has done is illegal under EU antitrust rules. It denied other companies the chance to compete on the merits and to innovate. And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation.”

At the core of the decision is consumer protection, and this has/is always been the goal of EU competition law, as opposed to protecting competitors and as such the decision seems reasonable, and was well received – “firm and fair’ the Guardian Editorial described it.

Struggling to remember where the article’s title comes from, well a quick Google search will give you the answer, and the quote in full:Well 27.6.2017 seems to mark the day when, at least to a degree, Google’s run of European ‘luck’ might have just started to dry up; and given the tone surrounding the two pending investigations we can presume Vestager may well have a bullet or two left in her considerable Commission armoury.

References:

  1. Pablo Ibanez Colomo, Discriminatory Conduct in the ICT Sector: A Legal Framework, in: G. Surblyte (ed.), Competition on the Internet, pp. 73-74
  2. “is 2.42 billion euros a lot” image: http://blogs.lse.ac.uk/businessreview/2017/07/08/the-european-commissions-google-decision-will-affect-competition-law/
  3. http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/565870/EPRS_BRI(2015)565870_EN.pdf
  4. https://www.theguardian.com/commentisfree/2017/jun/27/guardian-view-eu-google-judgment-fair-fine
  5. http://www.imdb.com/title/tt0066999/quotes

 

 

 

 

United States of Europe – transcript

Winston Churchill – speech delivered at the University of Zurich, 19 September 1946:

Mr. President, ladies and gentlemen, I am honoured today by being received in your ancient university, and by the address which has been given to me on your behalf, and which I greatly value. I wish to speak to you today, about the tragedy of Europe, this noble continent, comprised of the fairest and the most cultivated regions of the earth, enjoying a temperate and equitable climate, is the home of all the great parent races of the Western world. It is the fountain of Christian faith, and Christian ethics, it is the origin of most of the culture, arts, philosophy and science both of ancient and modern times. If Europe were once united in the sharing of its common inheritance, there would be no limit to the happiness, to the prosperity and the glory which its 300 or 400 million people would enjoy. Yet it is from Europe that has sprung that series of frightful nationalistic quarrels, originated by the Teutonic nations in their rise to power, which we have seen in this 20th century and even in our own lifetime wreck the peace and mar the prospects of all mankind.

And what is the plight to which Europe has been reduced? Some of the smaller states have indeed made a good recovery, but over wide areas a vast, quivering mass of tormented, hungry, careworn, and bewildered human beings, gape at the ruins of their cities, and their homes, and scan the dark horizons for the approach of some new peril, tyranny or terror. Among the victors there is a Babel of voices, among the vanquished the sullen silence of despair. That is all that Europeans, grouped in so many ancient states and nations, that is all that the Germanic races have got by tearing each other to pieces and spreading havoc far and wide. Indeed, but for the fact that the great republic across the Atlantic ocean has at length realised that the ruin or enslavement of Europe would involve their own fate as well, and has stretched out hands of succour and of guidance, but for that the Dark Ages would have returned in all their cruelty and squalor. Gentlemen, they may still return.

Yet all the while there is a remedy which, if it were generally and spontaneously adopted by the great majority of people in many lands, would as if by a miracle transform the whole scene and would in a few years make all Europe, or the greater part of it, as free and as happy as Switzerland is today. What is this sovereign remedy? It is to recreate the European fabric, or as much of it as we can, and to provide it with a structure under which it can dwell in peace, in safety and in freedom. We must build a kind of United States of Europe. In this way only will hundreds of millions of toilers be able to regain the simple joys and hopes which make life worth living. The process is simple. All that is needed is the resolve of hundreds of millions of men and women to do right instead of wrong and to gain as their reward blessing instead of cursing.

Much work, ladies and gentlemen, has been done upon this task by the exertions of the Pan-European Union, which owes so much to Count Coudenhove-Kalergi, and which commanded the services of the famous French patriot and statesman Aristide Briand. There is also that immense body of doctrine and procedure which was brought into being amid high hopes after the First World War – I mean the League of Nations. The League of Nations did not fail because of its principles or conceptions. It failed because these principles were deserted by those states who had brought it into being, it failed because the governments of those days feared to face the facts and act while time remained. This disaster must not be repeated. There is, therefore, much knowledge and material with which to build and also bitter, dear bought experience to spur the builders.

I was very glad to read in the newspapers 2 days ago that my friend President Truman had expressed his interest and sympathy with this great design. There is no reason why a regional organisation of Europe should in any way conflict with the world organisation of the United Nations. On the contrary, I believe that the larger synthesis will only survive if it is founded upon coherent natural groupings. There is already a natural grouping in the Western Hemisphere. We British have our own Commonwealth of Nations. These do not weaken, on the contrary they strengthen, the world organisation. They are in fact its main support. And why should there not be a European group which could give a sense of enlarged patriotism and common citizenship to the distracted peoples of this turbulent and mighty continent? And why should it not take its rightful place with other great groupings and help to shape the onward destinies of man?

In order that this should be accomplished there must be an act of faith in which millions of families speaking many languages must consciously take part. We all know that the two World Wars through which we have passed arose out of the vain passion of a newly united Germany to play the dominating part in the world. In this last struggle crimes and massacres have been committed for which there is no parallel since the invasion of the Mongols in 14th century, and no equal at any time in human history. The guilty must be punished. Germany must be deprived of the power to rearm and make another aggressive war. But when all this has been done, as it will be done, as it is being done, then there must be an end to retribution. There must be what Mr Gladstone many years ago called a “blessed act of oblivion”. We must all turn our backs upon the horrors of the past, we must look to the future. We cannot afford to drag forward across the years that are to come the hatreds and revenges which have sprung from the injuries of the past. If Europe is to be saved from infinite misery, and indeed from final doom, there must be this act of faith in the European family, and this ‘act of oblivion’ against all the crimes and follies of the past. Can the free peoples of Europe rise to the height of these resolves of the soul and of the instincts of the spirit of man? If they can, the wrongs and injuries which have been inflicted will have been washed away on all sides by the miseries which have been endured. Is there any need for further floods of agony? Is the only lesson of history to be that mankind is unteachable? Let there be justice, mercy and freedom. The peoples have only to will it and all will achieve their heart’s desire.

I am now going to say something that will astonish you. The first step in the re-creation of the European family must be a partnership between France and Germany. In this way only can France recover the moral and cultural leadership of Europe. There can be no revival of Europe without a spiritually great France and a spiritually great Germany. The structure of the United States of Europe, if well and truly built, will be such as to make the material strength of a single State less important. Small nations will count as much as large ones, and gain their honour by their contribution to the common cause. The ancient states and principalities of Germany, freely joined together for mutual convenience in a federal system, might take their individual places among the United States of Europe.

I shall not try to make a detailed programme for hundreds of millions of people who want to be happy and free, prosperous and safe, who wish to enjoy the four freedoms of which  the great President Roosevelt spoke, and live in accordance with the principles embodied in the Atlantic charter. If this is their wish, if this is the wish of Europeans in so many lands, there is no need to say so, and means can certainly be found, and machinery erected to carry that wish to full fruition.

But I must give you a warning, time may be short. At present there is a breathing space. The cannons have ceased firing. The fighting has stopped. But the dangers have not stopped. If we are to form the United States of Europe, or whatever name it may take, we must begin now. In these present days we dwell strangely and precariously under the shield, and I will even say protection, of the atomic bomb. The atomic bomb is still only in the hands of a nation which, we know, will never use it except in the cause of right and freedom, but it may well be that in a few years this awful agency of destruction will be widespread and that the catastrophe following from its use by several warring nations will not only bring to an end all that we call civilisation, but may possibly disintegrate the globe itself.

I must now sum up the propositions which are before you. Our constant aim must be to build and fortify the strength of the United Nations Organisation. Under and within that world concept we must recreate the European family in a regional structure called, it may be, the United States of Europe, and the first practical step would be to form a Council of Europe. If at first all the States of Europe are not willing or able to join the Union, we must nevertheless proceed to assemble and combine those who will and those who can. The salvation of the common people of every race and of every land from war and servitude must be established on solid foundations, and must be guarded by the readiness of all men and women to die rather than to submit to tyranny. In all this urgent work France and Germany must take the lead together. Great Britain, the British Commonwealth of Nations, mighty America – and, I trust, Soviet Russia, for then indeed all would be well – must be the friends and sponsors of the new Europe and must champion its right to live and shine.

And therefore I say to you “Let Europe arise!”.

“written constitutions do not happen by accident”

“written constitutions do not happen by accident”

Adam Tomkins – Public Law

Alongside its “inescapably political” nature (Adam Tomkins), the contours of our ‘constitution’, and hence its abiding ‘regimes’ of Administrative and Public Law, have always been highly ‘contested’ (Mark Elliott), and nowhere is that aspect of our legal/political life more apparent than when we focus on the ‘codification’ debate.

From Montesquieu and Voltaire, through Bagehot to the the fictitious Mr. Podsnap our ‘supposed’ constitution has hitherto (or so the British would want to believe) attracted a great deal of admiration but with recent (post June 23 2016) events at the forefront of all commentators minds, it would not be stretching the point to say that said ‘admiration’ has been/is being tested if not shadowed by as Dicey put it that “dark saying” of De Tocqueville . [A ‘supposed-ness’ that “forced from De Tocqueville, in a moment of irritation, the impatient aphorism that there is no constitution in England: “elle n’existe point”].

With a constitution cobbled together by what Sidney Low (The Governance of England 1908) once called ‘tacit understandings’, the question on everyone’s lips has to be what happens (to paraphrase Low) when “those understandings are no longer understood”.

‘Constitutional reform’ is once again very much in vogue and as such it is inevitable that the very question this essay poses is once more centre stage.

It is not a new question and as with all lego-political conundrums it is arguable from both sides; “deservingness cannot be determined a priori” to quote Dominic Grieve.

“Unnecessary and unjustifiable” on the one hand; “long overdue” (in the name of ‘certainty’) on the other; with both sides (most likely) acknowledging the need for reform, yet it would seem disagreeing fundamentally as to how that change is to be secured.

Vernon Bogdanor has long argued that the case for ‘codification’ is an intellectually strong one (mainly focussing on certainty) but nonetheless it still involves negotiating, and more importantly ‘justifying’ negotiating, Hume’s (is-ought) guillotine; whilst others (Low and Tomkins) amongst them have suggested that in fact the differences between written (codified) and unwritten (un-codified) constitutions is much exaggerated, an argument that may give weight to the ‘business as usual’ (as opposed to ‘radical reform’ argument). But why if Tomkins is correct would the decision to ‘codify’ (as put forward by Gordon Brown PM in his Governance of Britain 2007 Green Paper) be any more ‘radical’ than simply effecting those changes through the more familiar (to the British) process of ‘incremental change’.

Bogdanor once again has the (or at least an) answer; captured in his pithy aphorism: “what the Queen in Parliament enacts is law”.

At the core of the British constitution is the notion of Parliamentary sovereignty; and this in and of itself is in tension with any ‘project’ that may be advanced to ‘codify’ what he once called our ‘indistinct, indeterminate, and unentrenched’ constitution; regardless of the type of codification (be it a ‘lawyers’ constitution’ as per India or a ‘peoples’ constitution as per USA) adopted.

Different from Bentham’s fears of ‘ancestor worship’ (inevitable to a degree) this is not exactly a small detail. A codified constitution by its very nature, to a degree supplants Parliamentary sovereignty (witness the very different roles of the 1689 Bill of Rights (essentially asserting the rights of Parliament against the king) and its American equivalent). And if Miller/Santos [2016] is anything to go by (with both sides attempting to make use of Parliamentary sovereignty to buttress their Article 50 claims) it is less than clear that the time has arrived where such a radical departure from our constitutional tradition has yet arrived; in spite of the turmoil that has ensued following the unexpected referendum outcome.

This shifts the paradigm.

So much has been made of the ‘constitutional moment’; that quintessential game changing set of events (be it war/revolution/independence) that sets the scene for seismic constitutional reform, but much less analysis has been given to the nature of the impetus, the ‘constitutional momentum’ if you will.

Bogdanor has written extensively about the post-1997 constitutional ‘reforms’ (of which he lists 15 in his 2007 paper “Should Britain have a written constitution”), the constitutional independence of the Bank of England, the rise in the salience of referendums, devolution, electoral reform, the Human Rights Act 1998, the Freedom of Information Act 2000, the Constitutional Reform Act 2005 to name just a few; and just prior to the 2015 election he wrote of the “concatenation” of a whole variety of unresolved questions the constitution faces (the English Question/Asymmetrical Devolution/Crisis of Representation) wondering whether a game-changing ‘constitutional moment’ had or had not arrived. Well factor in Brexit and the threat of ‘indyref2’ and surely there has to be enough.

But there’s the rub.

The riposte may well be couched in terms of ‘unnecessary and unjustifiable’ but the key question will (as in all areas where law and politics interface) be, is there adequate political will; enough ‘constitutional momentum’ so to speak.

This takes as back to Gordon Brown. He was an undoubtedly a great thinker and few can doubt Bogdanor’s credentials in this area; but Brown was not a Margaret Thatcher or a Tony Blair. And in this Bogdanor is yet again very near the truth. To effect these kind of changes political will is just not enough any more (if it ever was). You need political ability. Specifically the ability and foresight to not only see the advantages that a codified constitution would bring but the capability of mobilising the ‘populus’ as you attempt to align constitutional ‘form’ with political ‘force’.

It was exactly what Cameron failed to do with regard to Brexit; as he clamoured to play a party political ‘card’ (appeasing the Eurosceptics) at the same time as (unsuccessfully) persuading the nation to vote Remain; never once seeming to connect his endless anti-Strasbourg rhetoric (prisoners’ votes etc.) with the rising pre-Brexit tide.

A constitutional ‘moment’ has certainly materialised but whether it will be enough to tip the balance in favour of a coded constitution remains to be seen. I am rather doubtful.

Parallels have been drawn with the 1830s (which spawned the Great Reform Act) and the first decade of the 1900s (which yielded the Parliament Act 1911). Well we have Theresa May’s Great Repeal Bill to look forward to, and it may be all that we can expect (even deserve) at this stage. If Scotland does finally secede and perhaps even Ireland reunite, it is not inconceivable that then, but only then, in the spirit of ‘damage limitation’ that Gordon Brown’s Charter 88 idea of `not just tidying up our constitution but transforming it’ will finally be taken seriously.

As John Locke established (Two Treatises of Government), though it may be in large part illusory we have an emotional stake in our constitutions, Bolingbroke articulated this in terms of constitutions having ‘values’, ‘goals’ as Tomkins puts it; at least for the time being the British remain attached to the ‘comfort blanket’ of Parliamentary sovereignty. As and (only) when the connection between this essentially anti-constitutional notion, and the escalating executive hegemony the last two decades has witnessed is made, may adequate constitutional ‘momentum’ be found to effect a change that in terms of constitutional ‘certainty’ and true popular democracy is long overdue.

“but for your fault…”

“Although, therefore, mesothelioma claims must now be considered from the defendant’s standpoint a lost cause, there is to my mind a lesson to be learned from losing it: the law tampers with the ‘but for’ test of causation at its peril.”

“But for your fault, it would not have happened” is the characteristically to-the-point way that Lord Denning first articulated the ‘but for’ rule of ‘factual’ causation in Cork v Kirby MacLean [1952]. It’s wide-scale adoption, both across criminal and tort law would suggest that in spite of its rather awkward ‘counterfactual’ construction (on this see: Richard Epstein – A Theory of Strict Liability) at the very least, it has a practical application, and captures something of the everyday way in which we construct notions of ‘causation’ and ultimately ‘culpability’ in our lives. But factual matrices are complex, and at times, this perhaps over simplistic paradigm, constructed as it is on ‘necessity’ rather than ‘sufficiency’ (on this see Allen Beever – Rediscovering the Law of Negligence), has threatened to disrupt ‘normative’ notions of ‘fairness’. And so, in what has been essentially a ‘three-stage process’ (as Lord Brown outlines in Sienkiewicz v Greif (UK) Ltd [2011]) in certain, though carefully prescribed scenarios, the courts have been willing to countenance other ways to conceptualise ‘causation’, and so ultimately apportion liability. This ‘departure’ from ‘but for’ causation has met with mixed responses both academically and judicially which is the subject of this essay.

As Lord Hoffmann established in Gregg v Scott [2005], the world, at least in legal terms, is bound by the laws of causality. “Everything ha[s] a determinate cause, even if that cause [is] unknown”; but as Spencer v Wincanton Holdings [2010] clarifies, the law has needed to draw a line under potentially infinite chains of causation, when ultimately it would be “unfair to let it continue”. Historically it has used ‘but for’ causation (coupled with the civilian ‘balance of probabilities’ standard) as one means to achieve that end.

Within even Epstein’s simplest example of tortious causation: ‘A caused B harm’, there is some room for ‘speculation’. Would the patient in Barnett v Chelsea and Kensington Hospital Management Committee [1969] definitely have died if the negligent doctor had in fact attended, could a ‘competent rescuer’ have changed the outcome in the Ogopogo [1971]. Both claimants (McWilliams v Sir William Arrol [1962]/Chester v Afshar [2004]) and defendants (Bolitho v City and Hackney HA [1998]) may behave unpredictably.

But as soon as we start to consider ‘multiple defendants’ (Cook v Lewis & Akenhead [1952]), ‘consecutive causes of the same damage’ (Baker v Willoughby [1970]/Jobling v Associated Dairies [1982]) and ‘damages for loss of a chance’ (Hotson v East Berkshire

Health Authority [1987]/Gregg v Scott [2005]) things start to become much more complex.

But even here the courts have tended to favour ‘certainty’, as they have attempted to weigh up ‘just how certain can we be’ against a required ‘burden of proof’. In most instances the civil ‘balance of probabilities’ sufficed, with the doctrine of ‘novus actus interveniens’ proving adequately ‘robust’ to balance out absurdity and justice (McKew v Holland & Hannen & Cubitts [1969]/Wieland v Cyril Lord Carpets [1969]). Though it too was sorely tested at times (Reeves v Commissioner of Police of the Metropolis [2000]/Corr v IBC Vehicles [2008]).

Malignant Mesothelioma has proven to be the straw that broke the camel’s back:

Itself a condition of inordinately complex ‘pathogenesis’ (on this see: Fairchild v Glenhaven Funerals Services [2002]), it was almost inevitable, that as its connection with certain kinds of asbestos exposure were unravelled, it would impact the way in which the courts considered ‘causation’, and consequently allocated liability for damages.

The story predates Fairchild [2002] and we can see at least two ‘departures from’ perhaps better consider ‘modifications to’ the ‘but for’ test:

A. The ‘material contribution to the harm’ modification

A ‘material contribution to the harm’ as developed in Bonnington Castings Ltd v Wardlaw [1956] was a first step in the direction of current day practice, when classic ‘but for’ causality could not be used to provide Mr. Wardlaw with ‘justice’; there being a fundamental uncertainty as to whether his pneumoconiosis (as an ‘accumulative’ condition) had been caused by ‘tortious’ or ‘non-tortious’ dust exposure.

B. The ‘material increase in risk’ modification

These uncertainties were to become even greater in McGhee v National Coal Board [1973], where much as in mesothelioma, just how dermatitis came about had not been definitively established; and in what can be seen as essentially a ‘benefit of the doubt’ exercise, the court established that it was ‘sufficient’ for a plaintiff to show that the defendant’s breach of duty made the ‘risk of injury’ more ‘probable’ even though it was ‘uncertain whether it was

the actual cause’. McGhee was however distinguished in Wilsher v Essex Area Health

Authority [1988] where the ‘multifactorial’ nature of causation regarding ‘retinopathy of prematurity’ was used to negate ultimate liability.

Thereafter, Lord Brown’s three-stage process (as outlined in Sienkiewicz [2011]) proceeds as follows:

• Fairchild v Glenhaven Funerals Services [2002] • Barker v Corus UK Ltd [2006]
• Compensation Act 2006 (section 3)

Fairchild v Glenhaven Funeral Services [2002] represented a trio of appeals to the House of Lords, and resulted in a lengthy and complex judgment. With three complainants and a series of successive potential tortfeasor employers, the court wrestled to provide a coherent rationale to their decision, in particular regarding awards. Ultimately, the court followed the McGhee ‘approach’ (though as had been discussed in Wilsher v Essex Area Health Authority [1988] the case lacked a clear ratio) of a ‘material increase in risk’, and allocated liability between the employers according to ‘joint and several’ liability.

C . Fairchild/Barker exception + Compensation Act 2006 – a true ‘departure’

Just four years later in Barker v Corus UK [2006] this would be overturned, to much consternation both academic and from concerned parties, with a return to ‘several’ liability. The condition’s peculiar pathogenesis meaning that in many instances, chasing down potential but often long gone ‘tortfeasors’ proved to be a fruitless task.

So soon after, Parliament intervened and (as Lord Brown explained) Section 3 of the Compensation Act 2006 was enacted, in what might be considered a true ‘departure’ from the ‘but for test, with the “sole effect [being] to reverse the House’s decision in Barker’s case on the issue of quantum”; resulting (when coupled with the Fairchild/Barker ‘principle’) in what Lord Phillips has called ‘draconian consequences’. As Lord Brown affirmed mesothelioma claims must now be considered from the defendant’s standpoint a lost cause.

We are left to answer the all important question has this all been for the good, which was certainly the chorus after the initial Fairchild judgment, in the light of the devastating consequences of this, at the time, poorly understood condition; or is the current situation, as Lord Brown suggests entirely unsatisfactory?

But in fact this question elides three separate conundrums:

  1. the relative worth of the ‘but for’ test
  2. does ‘justice’ at times require its modification

iii. how should sufferers of ‘indivisible’ conditions such as dermatitis/mesothelioma be

compensated

The ‘test’ has been heavily academically criticised; with its potential for ‘absurdity’ (see: Richard Epstein – A Theory of Strict Liability), and Allan Beever arguing that it has little place in ‘overdetermined’ conditions such as mesothelioma. Alternative models (such as Stapleton’s targeted ‘but for’ test and Richard Wright’s NESS test) do exist, but the common law is slow to incorporate ideas that are not its own ‘offspring’, and Lord Brown’s defence of ‘but for’ causality resides in the “clarity, consistency and certainty in its application”. A closer reading of his judgment, reveals that his principal concern is in fact damage allocation (‘aliquot’ as opposed to ‘in solidum’), and how “quixotic the path by which [the current day position] has been arrived at”.

One senses he feels that Section 3 Compensation Act 2006 has robbed the common law of some of its flexibility and nuance, and he is consequently ‘obliged’ to decide the case in a way that goes against his better judgement. Citing that both Bonnington Castings and Fairchild, in fact did not consider ‘apportionment’ he goes on to suggest that on the facts, Greif’s liability (prior to the 2006 Act) would not have been held to be absolute. Fairchild already represented a ‘rock of uncertainty’ and the law would not benefit from any further ‘anomalies in the system’ (Lord Brown having in mind the “supposedly critical distinction between so-called ‘single agent’ and ‘multiple agent’ cases”).

However justice, just as it requires “clarity, consistency and certainty” does require a modicum of flexibility. Epstein has the ‘luxury’ if you will of being able to criticise the ‘but for’ test, in the ‘certain’ knowledge he achieves his ‘certainty’ through strict liability. Whilst it is worth remembering that at the other end of the doctrinal spectrum (tortious negligence) Cork v Kirby MacLean [1952] though known for the birth of the ‘but for test’,

was also every bit a case concerning ‘remoteness’ and the ‘fairness’ of damages allocation in the light of the Law Reform (Contributory Negligence) Act, 1945.

Shifting a causal paradigm from a ‘balance of probabilities’ to a ‘might have caused’ is no small thing; and the Fairchild ‘exception’ has recently (in Heneghan v Manchester Dry Docks Ltd [2016]) been extended to cover ‘asbestos induced’ pulmonary carcinomas. But there is a danger that in the form of Section 3 Compensation Act 2006, Parliament has gone that little bit too far, robbing the common law of some of its nuance (say in the form of Lord Bingham’s 6 carefully crafted Fairchild criteria), that also afforded defendant employers a certain degree of necessary protection.

Wherever this debate ends, and it appears to be very far from over, there can be little doubt that mesothelioma (and the hugely raised awareness in relation to the condition) has impacted the judiciary’s thinking in relation to causality just as much as it has blighted the lives of those who were, or indeed are, unfortunate enough to have been exposed to its horrors. However it is approached there are no easy answers. At one end of the equation we have the victims and/or relatives of a devastating, relentlessly fatal condition possibly ‘caused’ many years before; at the other employers facing almost certain liability, following anything more than a minimal degree of negligent exposure to asbestos fibres. But it is arguable that in terms of judicial notions of ‘causality’, certainty has come at a cost; ‘aliquot’ apportionment might have been one way to resolve this conundrum without unnecessarily sacrificing one of the common law’s most loyal workhorses, in the form of ‘but for causation’, on the altar of certainty.

to tweet or not to tweet…for now at least that remains the question

 

 

If (as Sir Ivor Jennings said) “conventions… provide the flesh that clothes the dry bones of the law”, then for any UoL examiners (and at this stage of my law studies I can only imagine) it must surely be apposite, relevant cases that make their day, as they wade through script after script, in those nerve wracking weeks that occupy the interregnum between completing an exam and finding out just how badly or well (remaining optimistic) we as students have performed.

So imagine their joy at a brand new, as yet to be decided, case.

Just such an opportunity has been given to all tort students, as the media is awash with the libel case that is unfolding between @MsJackMonroe and @KTHopkins. I have knowingly used the Twitter monikers of the parties, otherwise known as food writer and ‘campaigner’ Jack Monroe, and Mail Online columnist Katie Hopkins, as much if not all of the case will focus on what constitutes libel on the social media platform Twitter.

The facts are not disputed.

The Twitter feed (following an incident in which memorial to the women of the second world war in Whitehall was vandalised with the words “Fuck Tory scum” during an anti- austerity demonstration) ran as follows:

@KTHopkins: Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?

@MsJackMonroe: I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You’re a piece of shit.

followed by a second message:

@MsJackMonroe: Dear @KTHopkins, public apology + £5K to migrant rescue and I won’t sue. It’ll be cheaper for you and v satisfying for me

Hopkins deleted the first tweet but responded with:

@KTHopkins: Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @MsJackMonroe.

The significance of @PennyRed is that this was a case of mistaken identity.

Minutes previously Laurie Penny, a columnist for the New Statesman, had tweeted from her account @PennyRed that she “[didn’t] have a problem” with the vandalism as a form of protest, as “the bravery of past generations does not oblige us to be cowed today”; Hopkins had crossed her wires and the rest of the exchange is history.

Now any tort student will be aware of the basics when approaching a defamation case, and a large number of answers will open in the following way:

Winfield defined defamation as “The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.” to which must be added the requirement for ‘serious harm’ as per s.1 Defamation Act 2013 etc.

But here it is likely that even the more seasoned commentators will begin to run dry. The generalities may well flow; with even the Ministry of Justice (quoting Eric Brendt) acknowledging that prior to reform:

“the previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate.”

but just how this particular case will be decided remains in the balance with Mr Justice Warby reserving judgment until later this month.

With Hopkins’ counsel trying to diminish the impact of the events, likening Twitter to the ‘wild-west’ of social media; William Bennet (Monroe’s barrister) was having none of it, actively rejecting the idea that “people don’t believe what they read on Twitter”.

Even though the tweet was deleted some 2 hours later, @KTHopkins has some 681.7 thousand followers, and is herself no stranger to actions in defamation. The Guardian confirming that “in December, Mail Online was forced to pay £150,000 to a British Muslim family over a column by Hopkins which falsely accused them of extremism after they were stopped by US immigration officials en route to Disneyland.” Few can doubt the unpleasantness of the content. Certainly lacking in any, let alone a ‘substantial degree’ of

truth, the question will certainly focus on the potential for serious harm as to Monroe’s ‘reputation’.

As her counsel stated:

“Even if Twitter is the wild west, which we dispute, that doesn’t exclude it from the operation of the law. Even the wild west had local marshals to ensure people weren’t bullied.”

The outcome will be watched carefully by all tort students and scholars, as we will get to learn whether the Defamation Act 2013 really does have adequate ‘nuance’ to protect an individual’s reputation, and/or we have moved into a new era of tweet and be damned.

Sections 2–4 of the Defamation Act 1996 might have offered Hopkins a way out. Though not strictly a ‘defence’, more a form of ‘settlement’; nonetheless this would have required her to publish a ‘correction and apology’, and to pay Monroe determined compensation and costs. With self-reflection not exactly being Hopkins’ strong suit she apparently decided to play hard-ball (see: https://www.theguardian.com/uk-news/2017/mar/01/katie-hopkins-should- pay-price-over-libel-trial-strategy-say-lawyers) it remains to be seen if such a non- apologetic strategy works in (or against) her favour.

Your thoughts on the matter would be every bit appreciated; or you could just tweet me at @markpummell if you think that advisable.

Happy Studies

 

 

 

“just keep swimming…”

 

 

Remember, remember the Fifth of November,

the Gunpowder Treason and Plot,

I see no reason why Gunpowder Treason should ever be forgot.

Guy Fawkes, t’was his intent to blow up King and Parliament.

Three score barrels were laid below to prove old England’s overthrow;

By God’s mercy he was catch’d with a dark lantern and lighted match.

Holloa boys, holloa boys, let the bells ring.

Holloa boys, holloa boys, God save the King!

Hip hip hoorah!

If not quite being asked to walk on water, current Public Law students (of which i am one) are at the very least being asked to negotiate some fairly choppy, constitutional seas; and wherever you look, the prospect of that changing in the immediate future, seems extremely remote. The roots of our current ‘crisis’ stretch back decades, some may even say centuries, but however constitutional history comes to be told, June 23 2016, will perhaps like November 5 1605 (which the oft quoted folk-poem above commemorates) ’[n]ever be forgot’.

But the truth is that history does have a tendency, if not to rewrite itself, then to be rewritten; and I will return to the Guy Fawkes analogy to illustrate the point somewhat later. Prior to the ‘Brexit’ (and even in that name resides a tale, for in fact it concerns the fate of the entire United Kingdom) referendum, few had heard of Article 50, the legal pink ribbon (to stay with the maritime analogy) required to launch the United Kingdom into ultimate ‘independence’ from the European Union. Even fewer, could have imagined the extent of the legal ramifications that would flow from the debate, let alone the ultimately legal challenges (in the form of McCord re: Judicial Review [2016] NIQB 85 and Miller/Santos v Secretary of State for Exiting the EU [2017] UKSC 5 to name just two) as to ‘just who’ gets to cut said ribbon.

New articles appeared on the UK Constitutional Law Association like starlings around a newly dug flower bed, seventeenth century cases were dusted off, and new principles formulated, in an attempt to un-puzzle this particularly intricate Gordian knot; our very own Brexit ‘discussion forum’ thread reaching some 145 posts.

The decision (as we all know) has been handed down; Lord Sumption with a ‘sleight of hand’ (as it has been called) had introduced a new ‘source’ of domestic law (https://twitter.com/SpinningHugo), a legislatively entrenched convention remained a convention rather than becoming a legal rule (https://ukconstitutionallaw.org/2017/02/10/joe-atkinson-parliamentary-intent-and-the-sewel-convention-as-a-legislatively-entrenched-political-convention/), and Lord Reed had written a clinically perfect but perhaps ultimately unsatisfying dissenting judgment (https://ukconstitutionallaw.org/2017/01/30/patrick-obrien-all-for-want-of-a-metaphor-miller-and-the-nature-of-eu-law/).

We may agree with the decision, or not. We may agree with parts of the decision and not others. We may even be unsure how to categorise the decision ‘politically’ (progressive/conservative). Was it a pro-Brexit decision, a pro-Remain decision, or none of the above; none of this helped by the oft forgotten fact that dos Santos was in fact a pro-Remainer; never mind the copious amounts of academic and ultimately judicial disagreement, all compounded by a media, that as ever, chose to make of it, exactly what they chose.

The ‘people’ have spoken so we are told, and even commentators as eminent as Vernon Bogdanor were hailing a new chapter of ‘popular democracy’ (http://linkis.com/www.thetimes.co.uk/a/EFed3 ). But with over four million signatories demanding a second referendum (https://petition.parliament.uk/petitions/131215), grave concerns surrounding the economy (https://www.bloomberg.com/news/articles/2017-01-26/u-k-economy-dismisses-brexit-threat-as-growth-beats-forecasts), and academics as tuned-in as Mark Elliott in his recent piece for Counsel (https://www.counselmagazine.co.uk/articles/miller-and-the-modern-british-constitution) suggesting that Miller has served little ultimate purpose other than to clarify just how difficult it is to locate sources of law in our ‘ramshackle’ constitution, we might do well to remember.

Remember what, you may well ask. Well just as our Guy Fawkes poem had a far more sinister second verse, that very few may even know of, let alone recall:

A penny loaf to feed the Pope

A farthing o’ cheese to choke him.

A pint of beer to rinse it down.

A faggot of sticks to burn him.

Burn him in a tub of tar.

Burn him like a blazing star.

Burn his body from his head.

Then we’ll say ol’ Pope is dead.

Hip hip hoorah!

Hip hip hoorah hoorah!

so indeed our Brexit referendum, had a far more cynical, entirely political underbelly, than any of our politicians are/were willing to advertise. Just as did the 18 September 2014 Scottish referendum. David Cameron didn’t promote a referendum because he had the slightest interest in the ‘will of the people’, he did it to appease the increasingly vocal and ever powerful euro-sceptics in the Conservative Party, just as in 2013, Westminster (after much disagreement) had finally conceded to pass the Scottish Independence Referendum Act 2013. As regards the latter the media response was no less unreasonable (https://www.theguardian.com/commentisfree/2007/may/03/theheatofthescottishsun).

So it seems that Cameron, perhaps unwittingly, has come to light a fuse that will have every bit as big a constitutional impact as that the Catholic ‘terrorist’ Guido Fawkes, and his 12 co-conspirators had in mind some four hundred odd years ago. Whether the good ship Brexit will bring great fortune to all ‘those who sail in her’, or will founder on her maiden voyage, remains to be seen. It was certainly not Foreign Secretary Boris Johnson’s finest moment when he announced the government will make a ‘titanic success’ of Brexit, but then again, he is not renowned for fine moments (https://www.theguardian.com/politics/2016/nov/03/brexit-will-be-titanic-success-says-boris-johnson).

Yale’s Ian Shapiro (https://www.amazon.co.uk/Moral-Foundations-Politics-Ian-Shapiro/dp/8187879262/ref=sr_1_2?ie=UTF8&qid=1486790850&sr=8-2&keywords=ian+shapiro) will often be heard saying “you can’t wring the politics out of politics”, and this is never more true than today as we witness challenges to the rule of law on both sides of the Atlantic. What lessons are we to learn from all of this; well on the broader view I will have to leave it to the ‘will of the reader’, as to current Public Law students, with exams approaching fast, perhaps we have no choice but to once more learn from the ocean and ‘just keep swimming’.

Happy Studies

 

 

 

Even Homer Nods

 

In March 2012, in an article entitled ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ Baroness Hale said the following:

“Lastly, I have heard it argued that our considerable respect for the Strasbourg jurisprudence is getting in the way of our regarding the Convention as a properly British Bill of Rights, of taking its guarantees as a starting point and working out the proper balance between the competing interests for ourselves. It might even be suggested that if we had paid less attention to the Strasbourg jurisprudence, we would not have given human rights such a bad name in certain quarters, because we could be seen to be having regard to British values, British mores and British legal principles.”

She was herself making reference; generally, to a series of cases in which the Supreme Court’s decisions can be said to have ‘mirrored’ that of Strasbourg’s, and more specifically to the scholarship of Francesca Klug and Helen Wildbore, in the light of those decisions.

This paper is an attempt to revisit some of those cases, and the controversy that they have engendered, and argue that ultimately they did play a role, indeed a significant role in feeding the anti-European sentiment that made the ‘seemingly impossible’, in the form of our unstoppable trajectory to exiting the European Union (and most likely the Council of Europe if Theresa May is re-elected in 2020), a very real, if not certain outcome.

Not written in a spirit of blame, it is simply an attempt to ‘understand’ how we might have arrived at this constitutional juncture, and that to a degree, does require apportioning ‘responsibility’. I shall openly draw on the work of New York psychoanalyst Doris Brothers as I develop the idea that ‘uncertainty’, which I believe these decisions engendered, has played a large part in fuelling both societal disregard for European ‘values’, with legal values representing  just one ‘set’ of such values, and by so doing, contributing to a wider cultural ‘dysphoria’ where in Brothers’ terms, ‘complexity-reducing dualities’ can flourish.

If there is a psychological equivalent to horror vacui, it would have to be mooted in terms of ‘uncertainty’ or some such equivalent. If as Brothers suggests, trauma begets uncertainty, it doesn’t seem an enormous leap of faith to assert that uncertainty is a ‘state of mind’ that ‘we’, both as individuals, and as a society will recoil from. A noxious stimulus if you will.

And just as Brothers was able to observe in her patients, one can identify many of these ‘trauma-generated’ (or ‘attempt-to-reduce uncertainty’) patterns emerging over the last decade or so; “the transformation of certainty into certitude”, “denial[s] of sameness and difference” and “the creation of complexity-reducing dualities”. It was just this tendency, one can argue, that drove David Cameron (who purportedly wished to stay in Europe politically, but yet was unable to constrain his frustration at some of the judgments passing back and forth between the UK’s higher courts and the European Court of Human Rights) to reduce the nation’s constitutional destiny to the quintessential ‘complexity-reducing duality’,  a referendum. 

June 23 2016 saw the nation being posed a seemingly very simple question:

But with none of the ‘procedural constraints’ that would usually ‘hedge’ in such a proposition, we in true British pantomime style were simply asked whether we “believed in fairies or not”. Chaos and consternation (not to say legal ramifications) have flowed from a nation simply doing what it was told to do. In this particular instance, opting for the latter ‘leave the European Union’ option, has left the nation, and to a degree the world in a state of not entirely positive wonderment. Not I think so much at the actual decision, but at the extraordinary degree of naivety that underpinned the way that decision was arrived at.

Lady Hale’s  analysis followed on the heels of, but interestingly makes no reference to Lord Irvine’s 2011 Bingham Centre for the Rule of Law lecture, A British Interpretation of Convention Rights. Though there is a broad consensus between the two writers, there is also a detectable divergence. Lady Hale ends on a note of optimism (“we may look forward to an even more lively dialogue with Strasbourg in future”) whilst Lord Irvine’s offering has a distinct undertone of disbelief and frustration, and concludes with a velvet-gloved admonition:

“This temptation must be rejected. Section 2 of the HRA means that it is our Judges’ duty to decide the cases for themselves and explain clearly to the litigants, Parliament and the wider public why they are doing so. This, no more and certainly no less, is their Constitutional duty.”

Whilst both commentators agree (and I draw freely on the cases used by both) that there have been some more ‘progressive’ cases; it is the case line that runs Alconbury Developments, Ullah, Al-Skeini, Ambrose that oftentimes first comes to mind, that to a degree created that all important ‘first impression’ and one from which, after the media had made merry, it has proven extremely difficult (in spite of some moves in the right direction) to recover from.

The genesis of what Lord Irvine saw as an excessive ‘deference’ to the European Court, what Lady Hale saw as “getting in the way of our regarding the Convention as a properly British Bill of Rights”, may be traced to Lord Slynn’s Alconbury Developments [2003] speech when referring to s. 2 (1) of the Human Rights Act 1998, he stated:

“…although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence.”

And there you have it, the ‘confounding variable’, a ‘clear and constant jurisprudence’, had entered the calculations and to an extent it has yet to be eradicated. Only a year later, in Ullah [2004] Lord Bingham was adding the gelatin to the jam when he opined:

“it is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”

which Lord Brown made his own in Al-Skeini [2008] when he ‘respectfully suggest[ed]’:

the last sentence could as well have ended: “no less, but certainly no more….”

By the time we arrive at AF and Ambrose (2009 and 2011 respectively), a disturbing pattern of unquestioning ‘deference’ to Strasbourg, had definitely set in, and the higher courts were making decisions that even they didn’t believe in; with perhaps Lord Hoffmann’s position in AF [2009] (following just weeks after the Grand Chamber judgment in A v UK) setting the high-water mark:

“A v United Kingdom requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.”

with Lord Hope’s judgment in Ambrose leaving little room for optimism that a true ‘dialogue’ was taking place, when he stated:

“Lord Bingham’s point…was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation. That is why, the court’s task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies.”

A judgment against one’s better judgement is not what we expect from the Supreme Court and neither should it be; and Lord Irvine (who supports his position from a variety of sources including Hansard) is very clear, that perhaps more importantly, it was not what Parliament had intended.

He himself said, back in 1997, when introducing the bill to Parliament:

“[the HRA] will allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe.”

whilst Lord Bingham suggested:

“it seems to me highly desirable that we in the United Kingdom should help to mould the law by which we are governed in this area … British judges have a significant contribution to make in the development of the law of human rights. It is a contribution which so far we have not been permitted to make”

The fact this has not come to fruition, and I think it is fair to say that it has not, is perhaps all the more surprising, in that the higher courts, by the time the Human Rights Act entered into effect (2 October 2000) were no strangers to either European Union Law (through the impact of the European Communities Act 1972), nor to Convention rights; the United Kingdom having been a signatory to the European Convention on Human Rights since the early 1950s.

There had been plenty of time to adjust to Lord Denning’s ‘incoming tide’ of civilian mores; and as such, for an extended period of time, some 10-15 years there existed a very real ‘window of opportunity’ to develop a uniquely British judicial ‘take’ on the ECHR, and the Convention rights that flowed therefrom; and by so doing to make a significant contribution to how human rights developed both domestically and in Strasbourg. To establish a ‘dialogue’ with Strasbourg.

Though briefly observable in cases such as Horncastle, as it was ‘impacted’ and ultimately came to ‘impact’ Al-Khawaja, the conversation never really got started.

It is not my purpose here to look in any depth, at the reasons for this, but its effect. It created doubt, indecision and to a degree disappointment; all the hallmarks of ‘uncertainty’ in the terms of our original hypothesis. Constitutional politics entered a new era, to use Aileen Kavanagh’s term; and the ‘votes for prisoners’ prove to be the straw that broke the camels back.

Uncertainty begets uncertainty.

The nation was asked to make sense of a Prime Minister, who one the one hand, was extolling the virtues of the single market, yet with the other, was vowing to ignore the rulings of the European Court. The stage was being perfectly set for the European Union Referendum Act 2015, the disastrous lack of clarity that its ’silence’ has engendered, and ultimately the populist divisions that we are now witnessing.

By failing to truly appreciate what was being asked of them, the House of Lords, now the Supreme Court, contributed to this confusion. By failing to accurately grasp Parliament’s intent (as regard s. 2 (1) Human Rights Act 1998), and their establishment, and ultimate incorporation of of the ‘Ullah principle’ they as Lord Irvine suggested:

“elide[d] two distinct concepts. The UK Courts have no power to bind any other CoE member state, and the Strasbourg Court is of course not bound by their decisions. The domestic Courts do not interpret the content of the ECHR as an international Treaty; they interpret the Convention rights under domestic law.”

As Homer nodded so ‘uncertainty’ crept in from the cold; at best the nation faced neurotic ‘ambiguity’, at worst a schizophrenogenic/‘double-binding’ parent in the form of David Cameron. None of this helped by the complexity of the European institutions, and an executive that barely seemed to know its Strasbourg from its Luxembourg. But there you have it, and here we are.

If we have learned nothing, other than how poor Horace might have felt at times, when even the great Homer could no longer conceal his corporeal frailty; something of the fear and indignation (‘indignor’) we feel when confronted with ‘uncertainty’ from those we have appointed to be our keepers, then perhaps we have still learned something. But we can ask no more of our judiciary, than that they be human, even when they are as eminent and statesman-like, as the late great Lord Bingham, about whom Lord Irvine was originally referring. Unfortunately, to complete Lady Hale’s literary device, the net result is that ‘uncertainty’ as to quite what Argentoratum just said, or meant by what it just said, is rapidly being replaced by a very cold and certain clarity as to exactly what London has in mind; and that may well be iudicium finitum.

References:

i. indignor quandoque bonus dormitat Homerus

ii. https://www.rt.com/uk/372125-may-election-human-rights/

iii. Doris Brothers – Toward a Psychology of Uncertainty: Trauma-Centered Psychoanalysis

iv. nature abhors a vacuum

v. Miller/Santos v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) & McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) being just two examples

vi. Lord Irvine of Lairg – A British Interpretation of Convention Rights UCL Judicial Institute/The Bingham Centre for the Rule of Law

vii. R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 EM (Lebanon) v Secretary of State for the Home Department [2009] 1 AC 1198 R (G) (Adoption) [2009] 1 AC 173

viii. R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295

ix. R (Ullah) v Special Adjudicator  [2004] 2 AC 323

x. R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153

xi. AF v Secretary of State for the Home Department [2009] 3 WLR 74

xii. Ambrose v Harris (Procurator Fiscal)[2011] 1 WLR 2435

xiii. in particular the dialogue that took place concerning hearsay

xiv. Application no 3455/05

xv. see cases such as R v Secretary of State for the Home Department ex parte Brind [1991] & Derbyshire CC v Times [1993] where pre-HRA 1998 the court drew on Convention rights as a source of legal wisdom…

xvi. Bulmer v Bollinger [1974] Ch. 401

xvii. R v Horncastle [2009] UKHL 14; [2010] 2 AC 373

xviii. Al-Khawaja and Another v United Kingdom 49 EHRR 1

xix. Lord Irvine suggests: “Many of our Judges have all too easily slipped into the mind-set that the domestic Courts, even the Supreme Court, are effectively subordinate (in a vertical relationship) to the ECHR.”

xx. Aileen Kavanagh – Constitutional Review Under the UK Human Rights Act (Law in Context)

xxi. http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf

xxii. http://www.telegraph.co.uk/news/uknews/law-and-order/11911057/David-Cameron-I-will-ignore-Europes-top-court-on-prisoner-voting.html

David Howarth: On Parliamentary Silence

xxiv. https://www.sonoma.edu/users/d/daniels/laingsummary.html

xxv. Lord Bingham having sadly passed September 11 2010

xxvi. http://www.vanityfair.com/news/2017/01/hard-brexit-theresa-may