Why the Supreme Court is wrong on conditional intention

 

JohnChild
John Child

Within the landmark case of Jogee [2016] UKSC 8, the Supreme Court has fundamentally restructured the law on secondary liability (ie, the criminality of those who aid, abet, counsel or procure the crimes of another). Correcting a legal ‘wrong turn’ from some thirty years previous, tre headlines in relation to the current law: (1) that so-called joint enterprise (or parasitic liability) no longer represents a separate route to complicity; and (2) that the mens rea (or mental element) of complicity should be narrowed to require intention (including conditional intention) from the defendant. The second of these, which is my focus in this post, is presented as an essential clarification to avoid the over-extension of complicity liability, and to avoid potential for ‘the striking anomaly of a lower mental threshold for guilt in the case of the accessory than in the case of the principal’ [84]. By definition, the role of an accessory will always be categorically different from that of a principal: the latter commits the principal offence directly (eg, murder by killing the victim), whereas the accessory’s contribution is indirect (eg, assisting the principal by supplying a weapon). With this in mind, whatever mental state is required of the principal offender, it is logical to limit the extension of liability to the accessory/defendant by requiring intention, correcting the law pre-Jogee that had allowed for liability where a defendant merely foresaw that the principal might offend.

Despite the clarity of the headlines in Jogee, however, and despite the explicit break from the last thirty years of jurisprudence, sections of the judgment seeking to clarify the law moving forward are much more problematic, and seem hesitant and conflicted in their application of the new intention standard. This should be no surprise. Complicity pre-Jogee had become a major route to liability for some of the most serious offences, particularly murder, and so although the court are clearly convinced of the need to restrain its application, they are also sensibly conscious of what the impacts of narrowing the law might be: impacts in terms of appeals from previous convictions (from those convicted following the legal wrong turn), as well as impacts in blunting a popular and powerful prosecutorial weapon. It is a policy conflict within the judgment that leads the court into two significant errors in their treatment of intention. First, a lack of clarity as to what a defendant must intend for complicity liability; and second, a misinterpretation of conditional intention. In what follows, I summarise the first, before focusing on the second.

 

What must an accessory intend?

There are two limbs to the mens rea of complicity: the first is the defendant’s mens rea as to the effects of her own conduct, and the second is the defendant’s mens rea as to the principal’s future offence. On the first of these, Jogee is clear that a defendant must intend her conduct to assist or encourage the principal’s offence. This provides useful confirmation following some inconsistency in previous case law, and brings complicity into line with inchoate assisting or encouraging (Serious Crime Act 2007, s44). So far so good, perhaps, but subject to the court’s definition of intention discussed in the next sub-section.

Despite relative clarity on the first limb, however, the court provides little guidance on what mens rea is required of a defendant as to the principal’s future offence. The omission is surprising, as it was this second limb that was central to debate within previous cases and reviews, and it was confusion here within the previous law (culminating in the identification of a foresight standard) that led the court in Jogee to identify a wrong turn to begin with. At this point we might accuse the Supreme Court of conflating the two limbs of mens rea in a manner that is not at all uncommon among both courts and commentators, but this is not strictly the case. Rather, the court in Jogee provided a few fleeting references to mens rea as to the principal’s offence – stating that the defendant must intend the principal to act with mens rea [10], and at other points that the defendant must know the elements of the principal’s offence [9] – but such references are not fully worked through, and are anyway inconsistent with examples of complicity provided elsewhere in the judgment. The danger, of course, is that without an established requirement that the defendant must intend the principal’s offence, or at least have knowledge of it, the courts will be encouraged to interpret the law (as previously) to require wider standards of mens rea such as belief, or even simple foresight. Despite the headlines of intention within Jogee therefore, and despite the apparent aim of requiring a parity of culpability between defendant and principal, the reality is a vulnerable state of legal uncertainty.

 

Misinterpretation of conditional intention

Having narrowed complicity to require intention, at least to some extent, the Supreme Court go on to explain the application of this standard within a series of hypotheticals [90-95]. It is here, particularly in the court’s treatment of conditional intention, that the policy conflict introduced above becomes most apparent, and (I contend) most damaging to the court’s reasoning. For the court,

 

‘… it will … often be necessary to draw the jury’s attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional.’ [92]

 

Conditional intention remains a problematic and contested concept, but it is possible to identify rules for its consistent and coherent application (J.J. Child, ‘Understanding ulterior mens rea: future conduct intention is conditional intention’ (2017) Cambridge Law Journal 311). To do so, conditional intention should be defined as synonymous with future conduct intention, with a defendant’s decision at t1 to perform certain conduct at t2. Thus, for example, where a defendant decides to commit an offence if certain conditions arise (eg, a plan to assault V if she fails to pay-up), her conditional intention can be interpreted as a valid intention to commit assault, just as it would be if no conditions were explicitly considered. This definition is central to our application of all offences where a defendant must intend future conduct, including, for example, incomplete attempts, section 9(1)(a) burglaries, certain conspiracies, and so on. However, crucially, this interpretation will never apply within complicity: within complicity a defendant’s intention to assist or encourage relates to present conduct, and her intention as to the principal offence relates to the conduct of another. Application of conditional intention here would represent a significant, and I will argue inappropriate, extension of the law.

In order to understand the court’s misuse of conditional intention in Jogee, two groups of cases/hypotheticals should be distinguished. In the first, our defendant intends to assist or encourage a principal to commit Crime A, and Crime B if necessary.

 

‘The group of young men which faces down a rival group may hope that the rivals will slink away, but it may well be a perfectly proper inference that all were intending that if resistance were to be met, grievous bodily harm at least should be done.’ [92]

 

I agree that intention may be properly inferred here, but not conditional intention. We intend a result (x) where we act because we believe that doing so might cause x, or if we recognise that x is a virtually certain consequence. In this example, we are assuming that the defendant has acted to assist and encourage other members of the gang, and has done so in order to influence those other members both to confront the opposing gang and to cause serious harm if necessary. In this manner, both parts of the defendant’s foresight are motivating their present conduct, and both parts are therefore standardly intended. Our defendant is not conditioning his current conduct (ie, it is being performed), and he is not conditioning his future conduct (ie, his future conduct is irrelevant here), and so although intention should be found, talk of conditional intention is misconceived.

Although the first group of cases/hypotheticals present a mislabelling of intention, the second group is considerably more dangerous. In this group, conditional intention is identified where a defendant intends to assist or encourage Crime A, foreseeing that the principal will or may perform an unwanted Crime B if necessary. This approach is not explicitly endorsed within Jogee, but it is arguably implied from the court’s examples involving escalating violence, and certainly left open from the use of vague language such as ‘scope of the venture’ and ‘tacit agreement’. Indeed, the potential for conditional intention to apply to Crime B in this kind of example has been endorsed in case law post-Jogee, including Johnson and Anwar, as well as some academic commentary. The reason this is dangerous is because the potential assistance or encouragement of Crime B, and the principal committing Crime B, are not motivating factors in the defendant’s conduct, and are not foreseen as a virtually certain consequence either. Therefore, simply put, the courts are wrong to label the defendant’s mental state as a form of intention (conditional or otherwise), and in doing so they are collapsing the concept of intention into recklessness.

In the context of complicity, and cases previously analysed within joint enterprise, the result will be business as usual: applying a pre-Jogee foresight standard, simply with a new label. As stated clearly in Anwar, ‘… the same facts which would have been used to support the inference of mens rea before the decision in Jogee will equally be used now’ [22]. So too within more standard complicity cases, where a wide net of liability will also be maintained. Indeed, this is probably the only way to reconcile one of the courts more problematic examples (where they would find liability):

 

‘D2 supplies a weapon to D1, who has no lawful purpose in having it, intending to help D1 by giving him the means to commit a crime…, but having no further interest in what he does, or indeed whether he uses it at all.’ [90] (Emphasis added).

 

In cases of this kind, the defendant can only be said to ‘intend’ the principal offence if we read down intention into a form of recklessness. The headline narrowing of complicity within Jogee becomes illusionary.

Our problems do not end here, however. As a mens rea term of general application, the view of conditional intention set out in Jogee has the potential to impact other areas of liability as well. To provide just one example: within the inchoate offences of attempts and conspiracy, the concept of conditional intention has occasionally been used to try and introduce a recklessness standard into the law. Using this approach, sexual touching without knowledge of consent can be interpreted as a conditional intention to assault; and handling unknown property can become a conditional intention to launder goods. However, crucially, such usage has been consistently resisted by both courts and commentators. The interpretation of conditional intention in Jogee would allow intention to be found in all such cases, significantly expanding the boundaries of criminal liability.

It is concluded that the concept of conditional intention has no appropriate role to play when analysing intention for complicity liability, either as to the effects of the defendant’s conduct, or as to the potential conduct of the principal. Rather, within both limbs of mens rea, we must only inquire whether the result motivated the defendant’s present conduct or whether she foresaw it as a virtually certain consequence of that conduct. This approach will significantly narrow the law of complicity, but is the inevitable outcome of applying a genuine intention standard. To the extent that such narrowing is not desired, and parity of culpability between accessory and principal is not desired, then a lower standard of men rea should be explicitly applied.

John Child is a Senior Lecturer at the University of Sussex.

Any reform to the law on Official Secrets must provide robust protection for public interest disclosures and open justice

 

judith
Judith Townend

 Judith Townend, together with Lorna Woods and  Lawrence McNamara, comment on the Law Commission’s proposals to reform ‘Protection of Official Data’. This blog post accompanies their submission to the Law Commission’s consultation, and is part of our series documenting the submissions.  

With the election now in the past, the wheels of government are beginning to grind again. While most eyes are on Brussels, it is important that the bright lights of Brexit do not draw attention away from other work that is resuming and ongoing. Among it, the Law Commission will continue its project that considers the revision of the laws on Official Secrets, with its final proposals expected later this year.

The initiative to consider existing law on the ‘Protection of Official Data’ – primarily the Official Secrets Acts 1911-1989 – began with the Cabinet Office when it referred the project to the Commission in 2015. A 315-page consultation paper with provisional recommendations was published by the Commission in spring 2017. It will be the Government that will decide how to proceed, and whether to introduce new draft legislation, once the final recommendations are made.  (No reference to Official Data or Official Secrets was made in the Queen’s Speech).

The Law Commission, which came under – perhaps unanticipated – fire from the media and NGOs for the nature of the proposed reform plans and a perceived lack of consultation before the first report was published, has since been engaging with a wider range of groups and individuals through in-person meetings. It has also published a ‘myth-buster’ on Twitter in response to some of the reports, and shared more explanatory material ahead of meetings.

However, this has not assuaged concerns, with strong reservations about the proposals expressed in a range of written industry and third sector written submissions, a number of which are available online.

We are among those who have met with the Law Commission since publication of its report, and in our written submission we focus on aspects of the consultation that relate to freedom of expression and the public interest: the public interest defence; the Independent Statutory Commissioner model; and access to court proceedings. We also address the related issue of the conduct of trials.

In important respects our position on these issues is often substantially at odds with the Law Commission’s provisional views. In summary:

  • We reject the Commission’s view that the difficulties surrounding a public interest defence outweigh its benefits. We recommend that there should be a public interest defence in official secrets offences for all those engaged in journalism in the public interest, including sources;
  • We recommend that any reformed system should not rely solely on an independent Statutory Commissioner (as the Commission suggests). It should instead adopt the Canadian model of an Independent Commissioner in addition to a public interest defence for official secrets offences;
  • We agree that the Commission’s proposed test of necessity for closing public access to proceedings is an improvement on the current law, but we argue that the proposed change alone falls short of what is required to adhere to the rule of law;
  • We disagree with the Commission’s tentative suggestion that the availability of closed material procedures in civil cases, now permitted under the Justice and Security Act 2013, should prompt a wider review of the ways that fair trial rights and safeguarding of secrets is balanced in criminal cases. On the contrary, there is no good reason at this point in time to embark on a wider review of criminal process and national security issues.

Our full submission can be read at this link.

As a research exercise, independent from the official consultation, the Information Law and Policy Centre at the Institute of Advanced Legal Studies is continuing to publish submissions on this topic: if you or your organisation would like to share yours in this way, please contact Dr Daniel Bennett at daniel.bennett@sas.ac.uk.

Lorna Woods is professor in law, University of Essex; Lawrence McNamara is a reader in law, University of York and senior research fellow at the Bingham Centre for the Rule of Law; and Judith Townend is a lecturer in media and information law at the University of Sussex.  They are also affiliated to the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. The views expressed by the authors in this report are made in a personal capacity and do not represent the views of the ILPC. This post first appeared on the Information Law and Policy Centre’s blog.

Eligible legal aid clients left without local representation – one reason we’re taking part in the Brighton Legal Walk

judith
Judith Townend

You might think that those asylum seekers and immigrants who qualify for state-funded legal advice and representation, following cuts to the scope of legal aid in 2013, are the lucky ones.

But even where legal aid is still available for asylum applications and some other cases, such as those involving domestic violence and victims of trafficking, clients face difficulties in securing representation.

In Brighton and Hove, for example, there is now only one organisation offering legal aid funded representation in asylum cases – Brighton Housing Trust. The only other firm in the city holding a legal aid contract for immigration and asylum services has recently decided it will no longer continue state funded work in this area.

It has left those adults entitled to legal aid with limited local representation, as owing to stretched resources and the high number of child asylum seekers, Brighton Housing Trust is currently prioritising cases involving children.

As Catherine Brown, caseworker at the charity Brighton Voices in Exile explains: ‘We currently have no legal representation for our destitute clients who are entitled to legal aid – both those who are facing appeals with short notice and those who are in the early stages of their asylum claim.’ BVIE are trying to secure legal aid representation out of the area, without success.

According to Brown: ‘Without representation at appeal their chances of a successful outcome are clearly diminished.’

Earlier this year the University of Sussex Clinical Legal Education programme facilitated a meeting of stakeholders at Brighton Town Hall to assess local immigration and asylum needs. The startling revelation that adults eligible for legal aid may not be able to access it locally was one of the many concerns that came to light.

It’s clear, from talking to local communities and individuals in need of legal support, that there’s a local crisis in immigration advice and representation.

A law clinic may only provide a ‘sticking plaster’ as one attendee described it. It’s true that the local and national crisis cannot be solved with the development of a student law clinic.

Nonetheless, a sticking plaster is better than no assistance at all, and we believe it’s important that a range of law clinics support local needs, however they can, while contributing to a broader debate on national legal funding and services.

It’s our hope that by securing relevant practitioner support and the necessary financial assistance we will be able to develop a service in this area.

This is just one reason that colleagues at the University of Sussex School of Law will be walking with a range of legal organisations on 26th June 2017 to raise funds and awareness of legal needs in East and West Sussex.

  • You can support us by donating at this page here
  • More about Sussex Clinical Legal Education here
  • Find out more about Sussex Law School at the Sussex Community Festival on 25th June 2017
  • If you have concerns about local legal provision in this area, or can offer assistance to a student law clinic, please contact the project lead: Professor Nuno Ferreira

Judith Townend is a lecturer in media and information law at the University of Sussex and a volunteer with Sanctuary on Sea and the Brighton Syrian community group. This post first appeared on the Justice Gap blog and on the Brighton & Hove News website.  

No Pain, All Gain: The Case for Farming Organs in Brainless Humans

by Ruth Stirton and David Lawrence

RuthStirton
Ruth Stirton

It is widely acknowledged that there is a nationwide shortage of organs for transplantation purposes.  In 2016, 400 people died whilst on the organ waiting list.  Asking for donors is not working fast enough.  We should explore all avenues to alleviate this problem, which must include considering options that appear distasteful.  As the world gets safer, and fewer young people die in circumstances conducive to the donation of their organs, there is only so much that increased efficiency in collection (through improved procedures and storage) can do to increase the number of human organs available for transplantation. Xenotransplantation – the transplantation of animal organs into humans – gives us the possibility of saving lives that we would certainly lose otherwise.

There are major scientific hurdles in the way of transplanting whole animal organs into humans, including significant potential problems with incompatibility and consequent rejection.  There is, however, useful similarity between human and pig cells, which means that using pigs as the source of organs is the most likely to be viable.  Assuming, for the moment, that we can solve the scientific challenges with doing so, the bigger issue is the question of whether we should engage in xenotransplantation.

A significant challenge to this practice is that it is probably unethical to use an animal in this way for the benefit of humans. Pigs in particular have a relatively high level of sentience and consciousness, which should not be dismissed lightly.  Some would argue that animals with certain levels of sentience and consciousness – perhaps those capable of understanding what is happening to them – have moral worth and are entitled to respect and protection, and to be treated with dignity.  It is inappropriate to simply use them for the benefit of humanity.  Arguably, the level of protection ought to correlate to the level of understanding (or personhood), and thus the pig deserves a greater level of protection than the sea cucumber.  The problem here is that the sea cucumber is not sufficiently similar to the human to be of use to us when we’re thinking about organs for transplantation purposes.  The useful animals are those closest to us, which are by definition those animals with more complex brains and neural networks, and which consequently attract higher moral value.

The moral objection to using animals in this way arises because of their levels of cognition.  This moral objection would disappear if we could prevent the animals ever developing the capacity for consciousness: they would never become entities capable of being harmed.  If we were able to genetically engineer a brainless pig, leaving only the minimal neural circuits necessary to maintain heart and lung function,  it could act as organic vessel for growing organs for transplantation.  The objection based on the use of a conscious animal disappears, since this entity – it’s not clear the extent to which is it possible to call it an animal – would have no consciousness.  It is correspondingly difficult to ground an objection in the undignified treatment of the entity.  Arguments relying on dignity imply that there is a conscious entity that is entitled to be treated with respect.  Since this engineered pig has no capacity to possess consciousness or even cognition at all, it is difficult to argue that it is capable of possessing any dignity in this sense, that can or should be protected.  Since the sentience and consciousness has been prevented, the vessel is more akin to an agricultural field than it is to a ‘normal’ pig.  There is no sense in which we would object to a ploughed field being sown with crops.  It is equally difficult to see how we could object to this vessel made of organic matter which happens to be shaped like a pig being used to grow organs.

This brings us to another scientific hurdle.  While pig organs are likely to be the most compatible with the human body, they are not necessarily ideal, and many people may not be able to handle non-human organs.  The next stage is to use the organic vessel as a host to grow human organs from induced pluripotent stem cells.  The iPSCs have no consciousness or sentience that attracts moral value.  Nor does the organic vessel.  It is simply a complex collection of organic matter, grown in a machine that happens to be made of similar materials, that is more compatible with the protection of human life.  If organs were grown from iPSCs that were HLA tissue typed to the individual patient then organs would be perfectly matched and rejection would be even less likely to occur.  Experimentation into chimeric organisms that can do just this are underway and are increasingly successful, albeit in sentient creatures.

However, this process is still less than perfect.  Using a vessel that originated from pig matter is not the ideal growing medium for human organs.  It would be much more likely to be successful if the vessel came from human tissue matter.  We can apply the same reasoning as for our pig vessel, with an escalation.  The respect and moral value that human beings attract is due to their capacity for consciousness and feelings – the elements of personhood.  We nurture consciousness and intelligence, and we protect the ability to develop consciousness once an entity with the capacity to develop consciousness comes into being.  If we were able to genetically engineer brainless humans, then the reasons behind these protections no longer apply.  The object – it is not possible to call it a human being since it has no consciousness – has no capacity for consciousness, nor did it have the potential for capacity for consciousness since it would not have been created except in these circumstances.  It is at best, similarly to the vessel of pig origin, a collection of organic matter that happens to be shaped like a member of the species Homo sapiens.  The organs grown within this vessel would be the most compatible with patients, and would help to alleviate the organ shortage crisis.

In relation to both types of vessel there are challenges to be overcome with the growing phase.  They would have to be grown using ectogenesis, outside of the womb.  A living ‘mother’, whether pig or human, would be caused a great deal of pain and suffering through gestating a brainless foetus.  Furthermore, pregnancy itself is not without its physical risks, irrespective of any mental anguish that might be suffered.  Ultimately, it is not necessary to use human persons to host the organ growth vessels since the development of the Biobag, an external womb that has been used to continue gestating premature lambs.  It is within the realms of possibility that organic matter of human origin could be grown within the Biobag, and this would also avoid some of the criticisms levelled at ectogenesis regarding parental bonds.

The transplantable organ shortage is critical.  It is imperative to find new means of procuring organs in the context of an ageing population.  It is important to continue to encourage the population to sign up to donation registers, and to pursue research into how chimeras – human/animal hybrids – can reduce immunological rejection rates.  But we must recognise that our initial distaste may be preventing us from implementing other solutions that may be more effective and more efficient.  There is no good reason to ascribe any particular value to meat that has never – and could never have – suffered, regardless of its appearance or genetic origin.  If we can do an immense good, by reducing suffering and saving the lives of the 400 people a year who die in the UK waiting for a transplant, all whilst not causing any harm or disrespect to another creature, is it right that some sense of discomfort should prevent us from doing so?  We say no, discomfort is not a good enough reason.  Further, if we were to follow this path, it is imperative to do it in the way that has the most chance of success, the creation of genuine human organs which will avoid all the scientific issues of xenotransplantation.  It is not enough to grown organs in brainless animals.   We should go further and grow human organs in organic vessels of human origin.

We do not suggest that this is the only solution or even the right one. However, the organic vessel of human origin serves to illustrate that even those methods we may have dismissed out of hand are no longer necessarily repugnant nor even morally problematic.

Ruth Stilton is a Lecturer in Health Care Law at the University of Sussex, and David Lawrence is a Postdoctoral Fellow at Newcastle University. This post first appeared on the Journal of Medical Ethics Blog

Where did all the privacy injunctions go? A response to the Queen’s Bench ‘Media List’ consultation

According to the latest official statistics on privacy injunctions in January to December 2016 there were just three proceedings where the High Court considered an application for a new interim privacy injunction. Two were granted, one was refused.

Two appeals were heard in the Court of Appeal against a granting or refusal of an interim injunction (the refused application mentioned above) before it went to the Supreme Court, where the injunction was upheld until trial or further order (though the case isn’t identified, we can safely assume this is the well publicised case of PJS v News Group Newspapers).

This data has been collected for the past six years as a result of the Master of the Rolls’ report on super injunctions, conducted in the wake of the super injunction furore of 2010-11.

Following his recommendation that HMCTS and the MOJ investigate the viability of data collection on privacy injunctions, a new Civil Practice Direction was introduced to ensure judges recorded data relating to specified cases. These include civil proceedings in the High Court or Court of Appeal in which the court considers applications, continuations and appeals of injunctions prohibiting the publication of private or confidential information (the scheme does not include proceedings to which the Family Procedure Rules 2010 apply, to immigration or asylum proceedings, or to proceedings which raise issues of national security).

Prior to the introduction of this regime, it was impossible to say how many ‘super’ or anonymous injunctions had been granted historically, as the MR (then Lord Neuberger) conceded at the time.

But how accurate is the Ministry of Justice data? According to the Inforrm media law blog, not very. Although the data purports to show fluctuation and an overall decrease in injunction applications since a peak in January to July 2012, the Inforrm blog has shown these statistics are “clearly incomplete”. The evidence is incontrovertible: there are public judgments in five privacy injunction applications in 2016. Furthermore, there have been press reports of other proceedings with no published judgments.

Inforrm remarked: “It is difficult to ascertain the true figure as many injunctions are never the subject of publicity – often because they relate to threatened ‘privacy disclosures’ by private individuals who subsequently agree to permanent undertakings. It seems likely that there were at least four times as many applications for privacy and confidentiality injunctions in 2016 than those recorded [by the] Civil Justice Statistics Quarterly. The reasons for this under reporting are unclear.”

It was worth remarking, as the judge in charge of the Media and Communications List at the Royal Courts of Justice, Mr Justice Warby, has now launched a short consultation for practitioners and other court users.

Among other questions it asks users whether they agree that (a) collection of statistics is worthwhile, and (b) whether they think the current system is adequate.

On behalf of The Transparency Project, Paul Magrath (ICLR), Julie Doughty (Cardiff University) and I (University of Sussex) have responded: answering that (a) yes, collection of statistics is worthwhile, and (b) no, the current system is inadequate. Our submission can be downloaded here [PDF].

There is no official space for extra comment, but we offer the following observations and hope there will be an opportunity to engage further with the judiciary and the Ministry of Justice on this issue, and broader points about access to the courts (there is, for example, a problem about access to information about reporting restrictions and defamation cases, as I have previously written about here and here).

We welcomed the Master of the Rolls’ recommendation in 2011 for HMCTS to examine the feasibility of introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.

Prior to this, there had been much confusion in the media and on social media about the number and type of injunctions that had been granted. There was some criticism of media exaggeration and distortion but at the same time, no reliable source of information existed with which to check the claims that were being made. 

At a press conference marking the launch of the release of the Master of the Rolls’ report, Lord Neuberger said he ‘would not like to say precisely how many’ super injunctions or anonymous injunctions had been granted since 2000. The number could not be ascertained because no reliable records had been kept.

It is our view that it is wholly unacceptable that no reliable information exists for how many injunctions were granted historically. We were pleased therefore when the Ministry of Justice began publishing results twice a year. However, we do not think the system is reliable or complete, as has recently been observed on the Inforrm media law blog. It is worrying that HMCTS and the MOJ did not appear to notice the incompleteness of the data.

We recommend that judges should record all interim and final non-disclosure orders, including super injunctions and anonymised injunctions and relating to publication of private and confidential information (by mainstream media organisations or other publishers including individuals) – as defined in Practice Direction 40F.

We have two concerns about the process to date despite the PD being in force:

First, that not all such orders have been recorded. We do not know the reason for this. It is important that PD 40F is followed and enforced. Although we ticked option 5b, we do not think the judge’s completion of the form should rely solely on legal representatives prompting the judge to complete the form as they may have no incentive to do so. HMCTS should also ensure that the data has been correctly completed by the judge. Therefore, as part of the data collection exercise, HMCTS should have an audit procedure for ensuring data is being correctly and systematically collected.

Second, we do not think that the format of the data is accessible or as useful as it could be. We think that the anonymised case names should be published alongside the statistics to allow for verification of the data and cross-referencing with any published judgments (there would be rare exception where a ‘true’ super injunction was in force). We think the MOJ and HMCTS should also collect information relating to the eventual outcome: when an order is discontinued or expires, for example.

Given the narrow remit of this consultation, we will keep these comments brief. However, we have other ideas for how transparency and access to information in media proceedings could be improved with view to improving public understanding and education in these types of proceedings. We would welcome the opportunity to discuss these with you and would like to join any future meeting and discussions of users of the Media and Communications List.

Judith Townend is a lecturer and researcher based at the University of Sussex and a member of the Transparency Project core group. This post first appeared on the Transparency Project blog.

Public procurement, Brexit and the WTO GPA

Kamala Dawar
Kamala Dawar

In a recent briefing paper, I illustrate that the sheer value of public procurement contracts makes them important both economically and for providing society with essential public goods, services and infrastructure. In 2013/14, the UK public sector accounted for 33% of UK public sector spending and 13% of GDP3 – so ensuring good public procurement policy is beneficial to markets and taxpayers.

Currently, the UK’s procurement laws fall under the application of the EU’s 2014 Procurement Directives for Goods and Services, Utilities and Concessions. The EU has also negotiated the coverage of the WTO Government Procurement Agreement (GPA) on behalf of all 28 EU Member States and various PTAs, most recently the EU-Canada CETA, which includes a comprehensive chapter of public procurement provisions. The Great Repeal Bill aims to revoke the European Communities Act 1972 and to incorporate current applicable EU law into an Act of Parliament. Additionally, following the Devolution Settlement of 1998, certain competences – including public procurement – were devolved to Northern Ireland, Wales and Scotland . So, unless the laws affecting devolved issues are unilaterally scrapped by Westminster as a consequence of Brexit, the Great Repeal Bill will result in decentralising government procurement legislation. This could potentially fragment a coherent UK-wide procurement strategy towards the WTO GPA, as well as in its PTAs.

From a negotiator’s perspective, a prerequisite to repositioning the UK’s trade terms post-Brexit is therefore going to involve establishing the UK’s Most Favoured Nation commitments under
the GATT and GATS, with all the other 164 or more Members – including the EU. Some commentators have argued otherwise – that the UK is already a WTO Member with independent rights and obligations, including those relating to its MFN coverage in goods and services. This seems an optimistic and overly simplistic interpretation
 in the case of services markets committed under the GATS schedules, where the UK’s commitments are set out both independently
and jointly with the EU. The UK will need independently to set out its GATS Schedule whether or not it is certified by other WTO Members, because the UK needs a schedule upon which to trade. So, it is not until the UK has formally determined its MFN coverage under the WTO that the UK can seek to negotiate a more favourable trade agreement with the EU or other 3rd parties. After Brexit, a pragmatic short-term solution would be
to retain current regulations for the award procedures under the Great Repeal Act, but without conferring their benefits to suppliers from third parties without reciprocal arrangements. The freedom from the imposition of EU Procurement Directives will have implications for the
 UK’s internal procurement policy.

As a consequence of
the devolution settlement of 1998, public procurement became an area of responsibility for the devolved governments of Northern Ireland, Scotland and Wales. Following Brexit, the different parts of the UK will no longer be forced to apply the same public procurement rules, and different policy objectives are likely to appear in the award of procurement contracts, promoting different local economic development and social goals.

In 2013/14, the UK public sector spent a total of £242 billion on procurement of goods and services. There is political pressure to use this sum to pursue a variety 
of public policy aims, such as promoting small and medium-sized enterprises (SMEs) or encouraging local growth. Indeed, both of these objectives were stated
aims of the UK’s coalition government of 2010-2015, which in 2013/14, set a target for central government to procure 25% of goods and services by value from small and medium-sized enterprises. The 2015 Conservative manifesto included a pledge to increase the percentage spent with small and medium-sized enterprises to a third.

Recent WTO disputes indicate that procurement policies promoting industrial or environmental policies are actionable under various multilateral agreements, even if they have been exempted from the WTO GPA commitments. The UK will need to ensure that horizontal policy objectives implemented through devolved procurement awards are in compliance not only with the WTO GPA, but also under other multilateral rules including the WTO Agreement on Subsidies and Countervailing Measures, the GATT, GATS and the TRIMs.

The Court of Justice of the EU (CJEU) also issued a revised interpretation of the concept of an undertaking for the purposes of the application of EU competition law to encompass economic agents engaging in a combination of both economic and non-economic activities. In the EasyPay case, the CJEU determined that an activity will be considered as economic – unless it has links with another activity that fulfils an exclusively social function – based on the principle of solidarity and entirely non-profit making. Moreover, such an activity must, by its nature, aims and the rules to which it is subject, be ‘inseparably’ connected to its social function.

The EasyPay Judgment was significant in departing from existing case law to confirm that for the purposes of
the application of EU competition law, an undertaking is
any entity – even a procurement agency – engaged in an economic activity, irrespective of its legal status and the
way in which it is financed. And further, that any activity consisting in offering goods and services on a given market is an economic activity. Of additional relevance here is
the 2014 High Court in England ruling on the application of the UK competition rules to tender design of an exclusive concessions contract tendered to Luton Operations to run
a bus service between the airport bus terminal and central London. In this case, the contracting authority was found to have abused its dominant position by negotiating a seven- year deal with the successful bidder when there would have been sufficient capacity for a second operator after three years. The long exclusivity generated a higher return for Luton Operations, which was held to be bad for consumers and an abuse of dominance in the buying market.

Promoting this integrated approach to implementing competition and public procurement law and policy may also be helpful in counterbalancing the centrifugal forces of devolution, undermining the benefits of competition
in public procurement. For example, this could involve centralised monitoring of horizontal policy objectives through procurement awards in the different regions of
the UK, following a similar assessment and surveillance system. This would also provide a more transparent, coherent and competitive framework for potential bidders, which would be of particular benefit to SMEs that wish
to enter these lucrative markets. Currently the EU has 
one of the most developed State aid control systems
in the world. The UK is likely to continue to apply some form of State aid control following Brexit. Providing the
 UK competition authority with the mandate to oversee 
the monitoring and enforcement of competition law, State aid control and public procurement rules would help to ensure that decentralised legislation conforms to WTO commitments towards non-discrimination and subsidy control. Such centralised supervisory powers could also act as a counterweight against legal fragmentation, which could disproportionately undermine economies of scale
as well as the benefits of competition and value for money in public procurement following the devolution of these competencies.

The briefing paper concludes by hoping that what could be a relatively straightforward discussion concerned with improving transparency, competition and value for money when awarding public procurement contracts, is not overshadowed by complex sequencing of negotiations, intra-UK jurisdictional divergences, and intractable political legacies with the EU.

Kamala Dawar is a Lecturer in Commercial Law at the University of Sussex. The briefing paper was published for the UK Trade Policy Observatory on 28 March 2017. The opinions expressed are those of the author alone and do not necessarily represent the opinions of the University of Sussex or the UK Trade Policy Observatory.

Can a notification under article 50 be unilaterally withdrawn?

Paul Eden
Paul Eden

Now that the European Union (Notification of Withdrawal) Act has received Royal Assent, the UK government is on track to meet its deadline of invoking Article 50 of the Treaty of European Union (TEU) by the end of March. Whilst it seems inevitable that the UK will indeed invoke Article 50 a key question that remains is whether we can change our minds and stop the whole process, perhaps when we are a year down the line or if there was a change in government in the UK.

In the Miller case it was common ground between the parties “that notice under Article 50(2)… cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn” (at [26]) although, as Lord Carsworth noted in his dissenting judgment, this assumption is “possibly controversial” (at [261]). This blogpost addresses the possible legal basis of any unilateral right to revoke a notification of a notice of withdrawal made in accordance with Articles 50(1) and 50(2) TEU by examining, first, the potential applicability of Article 68 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Secondly, the blogpost examines Article 50 TEU to determine whether the express wording implicitly excludes the right of unilateral revocation of notification of intention to withdraw from the EU. Finally, the blogpost argues that even if the other members of the EU unanimously agreed to allow the United Kingdom to revoke a notification of withdrawal, this might amount to an amendment of Article 50 TEU and present practical problems for Member States whose national law requires specific constitutional obligations at a national level for amendments to EU Treaties to take effect.

The applicability of the Vienna Convention on the Law of Treaties

The 1969 Vienna Convention on the Law of Treaties is a multilateral treaty governing the law relating to the key aspects of treaty conclusion, application, interpretation and termination. It is only binding with regard to treaties concluded between states that are parties to the VCLT but many of its provisions are regarded as reflecting customary international law and are binding on parties and non-parties to the VCLT alike.

The starting point for many of the arguments that a notice of withdrawal made in accordance with the provisions of Article 50 TEU can be unilaterally revoked appears to be Article 68 VCLT which states that

A notification or instrument provided for in Articles 65 or 67 may be revoked at any time before it takes effect. [Emphasis added]

The italicised words are often omitted in discussions about the applicability of Article 68 VCLT to the Article 50 TEU debate. Article 65 VCLT is concerned with the procedure to be followed where a party to a treaty invokes either a defect in its consent to be bound or a ground for impeaching the validity of the treaty. Article 67 VCLT is concerned with the modalities of this particular notification process. As the proposed British withdrawal from the European Union is not based on either a defect in its original consent to be bound or on an assertion that the treaties on which the EU is based are invalid, there does not appear to be a basis for the application of Article 68 VCLT unless, as has been asserted in a House of Commons Library Briefing Paper, “it is a general principle of international law” (at page 10).

The VCLT cannot apply directly to the Treaty on European Union (TEU) because France and Romania have never been parties to the VCLT and Malta only acceded to the VCLT after the TEU was signed on 13 December 2007. In several cases, the Court of Justice of the European Union (CJEU) has acknowledged that the VCLT may still be relevant to the extent that its provisions reflect customary international law. See Case C-162/96 Racke GmbH & Co v Hauptzollamt Mainz [1998] ECR I-3688 [24] and Case C-386/08 Brita GmBH v Hauptzollamt Hamburg-Hafen [2010] ECR I-1289 [42].

Is Article 68 VCLT a customary norm of international law?

In the North Sea Continental Shelf Cases the International Court of Justice (ICJ) acknowledged that “fundamentally norm-creating” provisions of a multilateral treaty can constitute the foundation of a rule of customary international law binding on states (at [72]). It is however questionable whether the essentially procedural stipulation contained in Article 68 VCLT would fall within the category of a fundamentally norm-creating provision that can potentially form the basis of a general rule of law in any event. In the Case Concerning the Gabčíkovo-Nagymaros Project (the Danube Dam case) the ICJ noted that Articles 65-67 VCLT contained “procedural principles which are based on an obligation to act in good faith” (at [109]) and that both parties to that case were agreed that these Articles “if not codifying customary law, at least generally reflect customary international law” (ibid). It must be stressed however that it was the parties to the case and not the ICJ itself that asserted that Articles 65-67 VCLT reflected customary international law and, given the fact that there have been numerous reservations to Article 66 VCLT, this assertion of the customary status of Articles 65-67 VCLT should be approached with caution.

Some commentators are doubtful that Article 68 VCLT can be considered customary law (see, for example, A Tzanakopoulos “Article 68” in The Vienna Convention on the Law of Treaties: A Commentary Volume II (O Corten and P Klein (eds)) (OUP, 2011) 1565) but, even if Article 68 VCLT is to be regarded as a customary norm, its customary status must been seen in the context of the “complex and inter-related” (Sir Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP, 1984) 159) provisions contained in Articles 65-68 VCLT. Put simply, Articles 65-68 VCLT contain an obligation subjecting a particular class of treaty withdrawals to a dispute settlement process. The outcome of this dispute settlement process may well be the realisation that the withdrawing state’s consent to be bound was not in fact defective and/or there were in fact no valid grounds for impeaching the treaty. Consequently, it is entirely appropriate to give effect to the possible success of a dispute settlement process held in accordance with Article 66 VCLT by expressly providing that the original instrument of withdrawal can be revoked in Article 68 VCLT.

What is generally agreed is that Article 68 VCLT reflects procedural principles stemming from an obligation to act in good faith and, in the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt Advisory Opinion, the ICJ stressed the need to “have reasonable regard to the interests of the other part[ies] to the treaty” (at [47]) when exercising a right of withdrawal from a treaty.

Interpreting Article 50 TEU

Even if no right to revoke a notification of an intention to withdraw from the EU can be found in customary international law, such a right might be found, expressly or impliedly in the wording of Article 50 TEU itself. Alternatively, if one believes that Article 68 VCLT embodies a general principle of customary international law that permits the revocation of a notification of withdrawal at any time before it takes effect, the wording of Article 50 TEU may implicitly exclude the application of this alleged general principle.

A recent legal opinion entitled In the Matter of Article 50 of the Treaty on European Union, written by five eminent QC’s including a former Judge of the Court of Justice (Sir David Edward) and a former Advocate General (Sir Francis Jacobs), argues that

The language of Article 50 does not require a Member State’s decision to withdraw from the European Union to be irrevocable or unconditional prior to it being notified. The use of the word ‘intention’ in Article 50(2), and the present tense ‘which decides’, rather than ‘has decided’, allows for the possibility that a Member State may change its decision and, therefore, its intention. [49(ii)]

It is equally true to say that Article 50(2) TEU does not expressly permit a conditional or revocable notice of withdrawal and there is no evidence to suggest that the United Kingdom intends to submit a conditional notice of withdrawal in any event. Further, as the TEU is equally authentic in 23 languages (Article 55 TEU), any argument entirely premised on the use of the present tense of the verb “decides” in the English text of the TEU is rather less than convincing.

As the European Union (Notification of Withdrawal) Act satisfies the constitutional conditions laid down by the UK Supreme Court in the Miller case, the UK has satisfied the obligation contained in Article 50(1) TEU that any decision to withdraw from the EU must be in accordance with the withdrawing state’s constitutional requirements. Professor Paul Craig (‘Brexit: a drama in six acts’ (2016) 41 European Law Review 447, 464) has argued that if a Member State subsequently changed its mind

it could be argued that if this occurred there would then no longer be a valid decision to withdraw, since the original decision had been changed in accordance with national constitutional requirements.

This argument cannot be reconciled with the doctrine of inter-temporal law that acts should be judged in the light of the legal position at the time of their creation. Even if the European Union (Notification of Withdrawal) Act had contained a provision giving both Houses of Parliament the right to veto any withdrawal agreement (the so-called “meaningful vote” amendment inserted by the House of Lords but rejected by the House of Commons), Article 27 VCLT embodies the customary norm that a state “may not invoke the provisions of its internal law as justification for its failure to perform a treaty” and thus any such provision could not be invoked as a justification to revoke a notice of withdrawal unless there was a pre-existing right in either general international law or specifically provided for by the wording of Article 50 TEU.

Does Article 50 TEU embody a right to revoke a notification of withdrawal from the EU?

The key problem with the argument that a right to revoke is implicit in the wording of Article 50 TEU is that Article 50(3) TEU provides that, in the absence of a withdrawal agreement, “[t]he treaties shall cease to apply to the State in question…. two years after the notification [of intention to withdraw]…, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” The requirement that an extension of the two-year period requires unanimous consent is in sharp contrast to the qualified majority required for the withdrawal agreement under Article 50(2) TEU. Further, Article 50(5) TEU makes it clear that any state that has withdrawn from the EU under Article 50 that wishes to re-join must make a new application under Article 49 TEU. The wording of Articles 50(3) and 50(5) TEU taken together support the conclusion that the unilateral revocation of a notification of withdrawal is not permitted. As noted above, the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt Advisory Opinion is authority for the proposition that the United Kingdom has an obligation to have reasonable regard for the interests of the other Member States of the EU when exercising its right of withdrawal under Article 50 TEU. Any unilateral right to revoke a notice of withdrawal would not have reasonable regard for the interests of the other Member States of the EU given the wording of Articles 50(3) and 50(5) TEU.

Conclusion

While there is no doubt that the other Member States of the EU could unanimously agree to allow the United Kingdom to revoke a notification of withdrawal, if the Court of Justice of the European Union (CJEU) did not accept that the Member States implicitly possessed this power under the current wording of Article 50 TEU, this magnanimous act would amount to an amendment of Article 50 TEU and this might present practical problems for Member States whose national law requires specific constitutional obligations at a national level for amendments to EU Treaties to take effect (such as referendums etc.).

 

Paul Eden is Senior Lecturer in Law at the University of Sussex. This  article was originally published in the UK Trade Policy Observatory’s blog. The opinions expressed are those of the author alone and do not necessarily represent the opinions of the University of Sussex or UK Trade Policy Observatory.