Can a notification under article 50 be unilaterally withdrawn?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“that notice under Article 50(2)… cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn” (at [26]) although, as Lord Carsworth noted in his dissenting judgment, this assumption is “possibly controversial” (at [261]).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.

Trump’s immigration ban and Europe: the courage to raise a mirror and look beyond it

NunoFerreira
Nuno Ferreira

Since President Donald Trump issued an Executive Order on 27 January 2017 entitled ‘Protecting the Nation from Foreign Terrorist Entry into The United States’, traditional media outlets and social media have been in a frenzy of activity. Protests have taken place around the world and there have been reports of dramatic scenes at airports. Indignation against the Executive Order was understandable: although couched in the language of prevention of terrorism and protection of national interest, the discriminatory and arbitrary character of the measure was apparent. Indeed, the Executive Order suspended the issuance of ‘Visas and other Immigration Benefits to Nationals of Countries of Particular Concern’, namely Libya, Iran, Iraq, Somalia, Sudan, Syria and Yemen. Moreover, the Executive Order suspended the U.S. Refugee Admissions Program (USRAP). Such discrimination against Muslim-majority countries and arbitrary refusal of refugees rightly appalled politicians and civil society alike in countries around the world – especially when considering this measure in the context of all Donald Trump’s initiatives, statements and background of a discriminatory and bigoted character. This original Executive Order has been in the meantime suspended by a US federal judge, following a string of lawsuits and on the basis of a range of legal grounds. Yet, a revised, softer version has been issued on 6 March 2017, which predictably prompted immediate academic criticism and judicial actions. And whilst most people – including myself – may find these orders abject measures and a violation of international and human rights law, including children’s rights and refugee rights, I cannot help but looking around me and wondering how much better Europe is faring in dealing with its borders, its migration policy, and its international protection obligations.

Looking in the mirror and dealing with the reflection

In the midst of these events, a question kept cropping up in my mind: how different are we, in Europe, really? In Calais, a wall has been built with British funds. In Hungary, a wall prevents refugees from reaching the country and seeking asylum, and all asylum seekers are to be automatically detained, despite not having committed any criminal act. In Greece and Italy, ‘hotspots’ aim to ‘assist frontline Member States which are facing disproportionate migratory pressures at the EU’s external borders’, but the system has been accused of instead ‘abusing, misleading and expelling’. Refugees are reported to be currently dying of cold across Europe. EU resettlement programmes have been accused of cynicism and of being disgraceful. Australian-style proposals to ‘offshore’ EU asylum have been rightly labelled as ‘mass expulsions’ and ‘fiscally irresponsible, morally bankrupt, and increasingly unsustainable politically’. The EU-Turkey agreement to resettle thousands of ‘irregular migrants’ reaching Europe has been widely criticised as a source of human rights violations, and illegal and ineffective. The cooperation agreement with Libya has been criticised for endangering human rights. After only resettling 350 children from Calais to the UK out of the 3,000 expected, the UK will end the Dubs scheme. Europe’s own visa policies have long been accused of being inherently discriminatory. The list is endless.

Other commentators have not failed to notice this shocking state of affairs in our own backyard: Nikolaj Nielsen, for example, writes about European Union’s hypocrisy. This is in no way downplaying the seriousness of Donald Trump’s Executive Order – it is clear that it is a blunt instrument, with no appropriate reasoning sustaining it. And this criticism does not aim either at equalising the way European leaders and Donald Trump deal with such matters – evidently, there are significant differences in form and content. Nonetheless, that does not make European policy unproblematic. In fact, there is much to be done to render European law and policy more humane.

Looking beyond the mirror

This is not to say that European organisations and countries have ignored their human rights and international protection obligations completely. So, credit where it is due. Germany has taken more than its fair share of refugees in the European context. European Union institutions have pursued relentlessly a refugee relocation ‘burden-sharing’ deal on the basis of the principle of solidarity. The European Commission, in particular, has frequently put pressure on Member States to act upon their solidarity obligations in the field of migration. Furthermore, Advocate General Paolo Mengozzi, in an Opinion to the Court of Justice of the EU, has argued in favour of public authorities in the EU having to issue visas on humanitarian grounds to fulfil their international protection obligations. Although the Court of Justice eventually decided against the existence of this obligation under EU law, the debate that this case prompted was very positive. Nonetheless, economic pressures, populist movements across Europe and lack of political solidarity between European countries are preventing us from fulfilling our obligations in a comprehensive and timely fashion. Crucially, any progress we have made on this front is constantly under threat.

So what is preventing us from doing much better? The usual: lack of political will and leadership. As there is no magic solution to improve those, it is important to discuss other possible, more immediate solutions. Although there may be plenty of room for improvement of the Common European Asylum System (CEAS), the greatest causes for concern seem to relate to the ways the system is (mis)implemented. For example, the Dublin regulation mechanism does allow for countries to process asylum requests even when they are not the EU member state the claimant first reached (as asserted by the Court of Justice of the EU in NS v SSHD); yet, the Commission has proposed resuming transfers to Greece, ignoring the extremely poor reception conditions in Greece and the need to pursue ‘burden sharing’ policies instead. So, the Dublin regulation mechanism needs to be applied more sensibly. The current CEAS could be complemented with greater economic support for EU member states accepting to process applications of asylum seekers who first reached the EU through another member state – not that they should be doing it for economic benefits alone, as humanitarian and legal grounds should suffice, but greater economic support could help some member states become more supportive of greater application of the principle of solidarity amongst EU member states.

Moreover, if we are not to throw away what CEAS has achieved and simply improve the way it is implemented, we need to ensure that any implementation measure is compliant with the highest human rights standards. Working closely together with the Council of Europe and ensuring absolute respect for the minimum standards established by the European Court of Human Rights is essential in this context. Although accession by the EU to the European Convention on Human Rights is on hold since the Court of Justice of the EU issued its Opinion 2/13, there is still plenty of room for close collaboration with the Commissioner for Human Rights and the other Council of Europe bodies concerned with asylum related matters. This should most likely lead to the suspension of the agreements with Turkey and Libya, mentioned above. Although much more contentious, perhaps the EU should also consider a much stronger stance with regard to member states ferociously undermining asylum-seekers’ right to international protection, such as Hungary (discussed above). As a last resort, this could mean triggering Article 7 of the Treaty on the European Union, which could lead to the suspension of the voting rights of the member states in question in the European Union bodies. Admittedly, this is the least palatable measure, especially considering that this provision has never been used and that we are living in the midst of Brexit. The EU would perhaps not wish to poke the pride and sovereignty of any member state, in an attempt to avoid more exits. And yet, in the long run, tolerating club members that are in many respects not worthy of membership to the club only serves to denigrate the reputation of the club itself.

Whether we call it a ‘crisis’ or not, the truth remains that the right to international protection of thousands, if not millions, of individuals is being violated. The EU and its member states need to act swiftly. Focus and resources should be redirected from protecting ‘Fortress Europe’ to safer and more human rights compliant alternatives, such as allowing refugees to fly away from persecution and reach Europe through resettlement programmes. The causes of refugee movements should also be addressed more forcefully, by tackling head-on military conflicts and humanitarian crises pushing people out of their houses. None of this is to soften condemnation of Donald Trump’s immigration ban in all its ugliness. Yet, it is essential that Europeans across the whole continent remain alert and engaged: we are failing in our human rights and international protection obligations as well. Perhaps not to the same extent. Perhaps not so blatantly, arbitrarily or idiotically. But still, we need to do a lot more for all refugees in Europe and those trying to reach Europe, if we wish to be able to criticise other countries with a clear conscience. So, whilst remaining united and active against any measures such as Donald Trump’s immigration ban, let us keep working for a better deal for refugees knocking at our own door as well. Donald Trump’s immigration ban is a massive wake up call to all of us on how human rights anywhere are so fragile. To make it worse, Donald Trump’s extreme right-wing views are offering an extra boost to the already growing Europe’s own extreme right wing movements. Greater humaneness across all policies must be the European answer. Individuals and NGOs around the world have already showed us the power of their voices. Now political leaders across Europe need to also do the same – and in actions, not just words.

Nuno Ferreira is a Professor of Law at the University of Sussex. A previous and shorter version of this blog post has been published in the Forced Migration Forum on 6 March 2017, and can be found on https://forcedmigrationforum.com/2017/03/06/trumps-immigration-ban-and-europe/. Many thanks to Carmelo Danisi, Moira Dustin, Nina Held, Paul Statham and Alex Aleinikoff for their comments on previous drafts.

Trump is right: stories will dry up if the press can’t use anonymous sources

Judith Townend, University of Sussex and Richard Danbury, De Montfort University

Donald Trump has declared war on anonymous sources and wants to ban their use by journalists. In a speech at the Conservative Political Action Conference (CPAC) on February 24, he said: “You will see stories dry up like you have never seen before.” The Conversation

He’s right. If such a restriction is imposed then stories would dry up. He is very wrong to demand it though. Such a restriction on journalism would have devastating effects for democracy and the flow of information in the public interest, as courts have repeatedly recognised.

But in his first few weeks as president, Trump has shown himself to be no friend to press freedom. Hours after his CPAC speech, the White House barred several news organisations, including the Guardian, the New York Times, Politico, CNN, BuzzFeed, the BBC, the Daily Mail and others from an off-camera press briefing, or “gaggle” conducted by press secretary Sean Spicer. Additionally, he announced that he will not attend the White House correspondents’ dinner in April. Building relationships with the press is not a priority for this new administration.

Banning the use of confidential sources denies a core principle reflected in media ethics codes from around the world and flies in the face of the First Amendment to the United States constitution and rights to free speech. Protecting journalists’ confidential sources is deemed essential to freedom of expression, public interest journalism and holding power to account. It is held as sacred, to be interpreted rigidly – even in the face of criminal prosecution.

The principle is deep-rooted and recognised in the jurisprudence of the European Court of Human Rights (which has found against the UK on this issue, on more than one occasion), formal commitments by the Committee of Ministers of the Council of Europe, the United Nations Human Rights Council and the European parliament.

But successfully protecting a confidential source has always required a careful balance. Protections exist in law but they must be skilfully navigated and practical steps taken to maintain confidential communication between journalist and source. This careful balance was never easy to achieve, but it is becoming increasingly difficult, as we show in our recent report “Protecting Whistleblowers and Sources in a Digital Age” – the result of a research initiative supported by Guardian News and Media, publisher of the Guardian and the Observer newspapers.

Our research presents the views and experiences of 25 investigative journalists, specialist lawyers, academics and representatives from NGOs, shared at a meeting hosted by the Institute of Advanced Legal Studies in September 2016.

We identify that a powerful combination of legal and technological threats now jeopardise source confidentiality. A journalist may assure a source of anonymity but that promise is not an easy one to keep unless the source has taken precautions when making contact from the very beginning of their communication.

Even for a source such as former NSA contractor Edward Snowden, well versed in encryption and security techniques, maintaining confidential channels of communication was tricky when he decided to leak documents revealing the nature and scale of the NSA’s international surveillance programmes in 2013. Most sources may not take important precautions, nor wish to disclose their identity, as Snowden eventually did. They won’t necessarily have the technical ability of Snowden, the mind-set of Deep Throat, nor necessarily even think of themselves as a source or a whistleblower.

Blowing the whistle

In tandem, legal threats abound. The government has claimed, during the passage of the Investigatory Powers Bill in 2015-16 and in response to our report, that it has strengthened protections for whistleblowers in legislation, but we remain unconvinced.

The Investigatory Powers Act was an opportunity to create a robust and independent process for authorising the state’s interception of journalistic material. In the event, despite the introduction of a judicial approval stage, journalists and their sources are left vulnerable with no requirement for notification to the affected party – and protections that fall short of their equivalent in the Police and Criminal Evidence Act (PACE) 1984.

More recently, the Digital Economy Bill 2016-17 posed a new threat. In its original form, Part V introduces new criminal offences for disclosure of public authority and government data with no specified protection for public interest journalism.

Thanks to the intervention of the National Union of Journalists, the Media Lawyers’ Association and the News Media Association, the government has introduced an amendment which offers a defence for public interest journalism.

Nonetheless, there is still a question mark about the effectiveness of this defence and the extent to which it will protect journalists and their confidential sources. How will it be interpreted by the courts?

It is a thorny legal problem about what should be considered as “journalism”, and so it is difficult to predict who – or what activity – will benefit from this defence. Additionally, even if journalists are better protected in law, we must not neglect the question of whether sources and whistleblowers are adequately protected.

In the public interest

The latest issue to garner attention is the Law Commission’s new consultation on the protection of official data. Preliminary proposals on reform to the law on official secrets and espionage have been severely criticised by a number of media organisations and civil society organisations.

The Law Commission has indicated that these are merely proposals – and they, to a large extent, are an attempt to codify and update existing laws, but these points do not alleviate our concern about their effect on whistleblowing and source protection.

A consolidating act that replicates the deficiencies of already existing law would be no improvement on the existing law – and the absence of a public interest defence in actions that relate to whistleblowing of officially secret material is a significant omission.

And as Trump’s comments at CPAC indicate, a larger sociopolitical threat looms. The new president takes an unprecedented approach to his dealings with the media and his use of social media. Events – such as the disclosures leading to the resignation of US national security adviser Michael Flynn – highlight the value and importance to democratic debate of whistleblowing in the public interest.

This demonstrates quite how important it is that journalists who receive such material are able to protect their sources. If this were not the case, the public would not see material that helps provide a clearer and accurate picture of important contemporary events – particularly vital when the US administration continues to express such overt hostility to the mass media.

Judith Townend, Lecturer in media and information law, University of Sussex and Richard Danbury, Principal Lecturer in Investigative Journalism, De Montfort University

This article was originally published on The Conversation. Read the original article.

What does open justice actually mean?

Judith Townend
Judith Townend

The notion that justice must be seen to be done needs little introduction to either a lay or legal audience,  but its familiarity belies an underlying complexity. See, for example,  PNM v Times Newspapers, to be heard by the Supreme Court this week.

The court will hear an appeal against the Court of Appeal’s decision to allow reporting of information about a person named in open court, but not charged with any offence, nor a witness or party to the case, in which seven people were convicted of serious sexual offences – including rape and conspiracy to rape children, trafficking and child prostitution.

As Hugh Tomlinson QC notes in a preview on the Inforrm blog, it’s a ‘difficult’ case, ‘which is likely to produce a definitive restatement of the principles which apply when a party is seeking to derogate from the principles of open justice’.

Plans to modernise the courts system throw up new problems for open justice and privacy rights, which I’m not wholly confident are being fully considered in the context of digital technology and competing individual and organisational interests (I hope I’m wrong).

All this is something I’ve written about for the Justice Gap’s new issue of Proof Magazine, which offers a wide range of (and more expert than me) perspectives on access to courts, and includes a new charter for open justice, focusing on access to information in criminal trials, led by the Centre for Criminal Appeals.

My article is uploaded here and a version appears below:

Justice Must Be Seen To Be Done … But What Does That Mean?

It was something of a shock to the handful of people writing about the Court of Protection when a ‘Transparency Pilot’ was announced in November 2015. Lucy Series, an academic researcher who studies the Court, remarked on a ‘dramatic shift in policy’ and the ‘radical approach’ taken.

That was not to say that some opening up of the Court, which hears cases relating to individuals’ mental capacity and welfare, was not welcome. Its followers were simply taken aback: the pilot did not merely allow accredited press access, as is the case in the family courts, but opened cases to public view, albeit with strict reporting restrictions.

Since the pilot appeared to have been launched with no public consultation, what was the prompt? The press release alludes to transparency, ensuring wider understanding, and seeing justice being done. It is the latter sentiment that is deeply embedded in legal practice. Even people with little legal knowledge are likely to have heard that frequently repeated trope, that justice must be seen to be done. It runs deep in British culture, found in crime dramas and tabloid newspapers, not only in the law reports.

The open justice principle is often rationalised in various ways: to allow scrutiny of proceedings to ensure proper judicial conduct and a fair trial, to enhance public confidence, to deter future offences, and to inform the public about matters in the public interest. Some justifications are more persuasive than others; evidence to support the deterrence argument is weak in civil and criminal contexts, and especially in unusual cases where a repeat crime by the offenders or others is highly unlikely.

In truth, very few people sit in the public gallery. Instead, we rely on proxies to report courts for us, most usually, the press. Regular court reporters are dwindling in number too, however. Their physical absence does not make the right of access redundant: many would argue it is the possibility that the press or public might attend court that is part of an open justice approach. Nonetheless access could be improved, with better digital communication of proceedings, including explanation to the public of what is taking place.

Too often, the dissemination of courts data is an after-thought. Take a revealing interaction at a Public Inquiry in 2012 considering the death of Azelle Rodney, who was found to have been unlawfully shot by police. The Inquiry chair, Sir Christopher Holland, asked the Inquiry counsel about what had been, and what would be, uploaded to the website.  Holland commented that it had ‘never occurred’ to him that a particular exhibit would be ‘public and go on a website’.

Though the digital publication of materials during this Inquiry and others is to be commended, the exchange suggested a lack of a policy and prior discussion about how digital materials should be handled. Furthermore, public access may require the intervention of media organisations, which cannot be guaranteed if a case is not deemed newsworthy.

A more recent example is the confusion that followed the trial of Ben Butler for the murder of his six year old daughter, Ellie.  After Butler’s conviction in 2016, relevant judgments in the family court were made public but it proved impossible for non-accredited journalists to check the terms of the reporting restrictions without making a potentially expensive application to the court, as the barrister Lucy Reed documented on her blog.

The issue does not just concern public facing data, it affects internal practice as well. In February 2016 the Court of Appeal judges considering the continuation of reporting restrictions in the Incedal trials (see Ian Cobain in Proof) expressed consternation that they were not able to consider closed judgments that may have been relevant to their decision because no records of such judgments were kept.

The open justice principle is often spoken about as if it is a universal. In reality, it is not. At the practical level, practice greatly varies between courts. Certain courts conduct the majority of their work in private. These courts include the Investigatory Powers Tribunal (IPT) and the Special Immigration Appeals Commission (SIAC). Until recently, the public and press were excluded from family proceedings, but accredited media representatives are now presumptively permitted in to most, but not all, types of hearings.

Even within courts that are by rule open to public visitors, there is great variance in the handling of restrictions and accessibility. It is much easier to access copies of court listings, ie. a list of the cases being heard in a given week, at some local crown and magistrates’ courts than others.

At the theoretical level, open justice is also understood variously, as is evident in many early decisions on reporting access and restrictions, some overturned at appeal. In 2016, Mr Justice Globe was not persuaded by the ‘deterrence’ argument in naming two teenage girls found guilty of the murder of Angela Wrightson; in contrast, in 2014, Mr Justice Coulson considered that naming a 15 year old convicted of the murder of his teacher Ann Maguire ‘had a clear deterrent effect’.

By observing these discrepancies, I am not making the case for the universal application of open justice. Rather, that principles of openness should be fairly and consistently applied in different sorts of courts, based on clearly written and publicised guidance for physical and digital dissemination of material. Open justice can take different forms in different contexts, but it is crucial that underlying procedure is transparent, even if some information is legitimately withheld.

This guidance must be based on public consultation and ideally, independent research, which secures the views of all types of court users, especially in relation to rehabilitation, privacy and data protection in online environments. In the Court of Protection this could include ‘P’, the usually anonymised individual at the centre of cases, whose voice is rarely heard. As Julie Doughty and Paul Magrath recently argued, ‘the vital piece in the picture is whether P and their families have a sense of intrusion’.[viii]

This exercise would also help detach media interests from other interests. It can interrogate whether it is necessary to reveal the names of participants in particular cases and why. Journalists have argued that such specific detail allows them to make the story engaging, and more importantly, tell it in a humanising way that aids public understanding of the whole case background. Less credible are arguments that centre on the financial viability of newspapers, especially when pitted against the rights of individuals in the family courts and Court of Protection who are concerned about press intrusion.

Any consultation must also consider notification of the media and members of the public about forthcoming court proceedings, reporting restrictions, and court results.  The current system is astonishingly ad hoc and over reliant on third parties to seek out information. A commercial service run by the Press Association is used for notifying the media of some types of injunction applications but not all, and not all media organisations are subscribers.

Perhaps most crucially, the way in which information is restricted must be more systematically monitored. Very little to no data exists on this. During a media frenzy over privacy injunctions in 2011 it became apparent that nobody knew exactly how many super injunction type orders had been granted. In response, a new practice direction was issued instructing judges to notify the Ministry of Justice of relevant cases, and since then some data has been published. However, this practice direction has lapsed, making record keeping even more haphazard.

At a time when the government is investing over £700 million in courts modernisation, there is a great opportunity for improving public scrutiny and understanding of the courts. At the same time, the judiciary and courts service need to properly consider how personal data generated in the courts process should be digitised and disseminated through global media platforms.

Judith Townend is a lecturer and researcher based at the University of Sussex and a member of the Transparency Project core group. This blog post is based on an article that first appeared in Proof Magazine, Issue 2, January 2017.

The Erratic Present, and Unpredictable Future, of the Legal System under Trump

Nick Beard
Nick Beard

It would be foolish not to begin this blog with a note that President-elect Donald Trump has often been proved to be erratic and difficult to predict.  Accordingly, any forecasts of his decisions while in government should be judged with a healthy scepticism and a caveat that during his presidential campaign, Donald Trump has changed his position on several issues likely to be adjudicated during his presidency – abortion rights, funding by wealthy corporations, marriage equality and free access of the press.

Throughout the campaign, the prerogative of the next president to elect at least one member of the Supreme Court was widely discussed.  While President Obama appointed Merrick Garland to fill the vacancy left by the death of Antonin Scalia, the Senate has successfully prevented the hearing to confirm Garland to this position and seems unlikely to continue to block this appointment until the end of Obama’s term.  It was often touted as a major reason that Americans affiliated with a political party and uncomfortable with their party’s nominee should still vote for them.  President Clinton or Trump would provide the nominee to fill Scalia’s seat and with only one justice currently under the age of 60, any slots made available by retirement of a justice over the next four to eight years.

Donald Trump has released a list of potential justices he would consider elevating to the Supreme Court: all 11 were appointed by Republican politicians, all 11 are white and 8 of the 11 are men.  Interestingly, he had previously cited his sister, Maryanne Trump Barry (considered to be a broad defender of abortion rights) as a possible Supreme Court nominee.  This is particularly significant, as Trump has identified abortion as one of the most pressing current topics facing the Supreme Court.  The leading case, Roe v. Wade, which allows women the right to privacy in order to access a termination in the first trimester of their pregnancy, has been restricted by Planned Parenthood v. Casey, to allow restrictions to be placed on abortion access, as long as these restrictions do not place an undue burden on the woman.  This was reinforced in the recent Whole Woman’s Health v. Hellerstedt case (in a 5-3 decision determined after Scalia’s death), where the majority of the Court argued that the onerous restrictions on abortion clinics were not intended to safeguard women’s health, but to make abortion access more difficult.  Proponents of abortion rights are concerned that a change in the make up of the Court would allow abortion access to be steadily chiselled away through increasing unrealistic requirements for women’s health centres.

Another Supreme Court case which was discussed widely during the 2016 election was Citizens United v. FEC.  The 2010 case, decided 5 to 4, has prevented the Federal Elections Commission from limiting the amount of money which could be raised and spent as part of presidential campaigns, leading to the accusation that candidates were indebted to wealthy donors and their agendas .  Donald Trump, throughout his campaign, bemoaned the role of financial lobbying in presidential election.  As part of his populace platform, he often cited the corrupting influence of large campaign donations and claimed that due to his large personal fortune, he would be able to self-fund the majority of his campaign.  Trump did, however, receive large individual and corporate donations and despite promises to “drain the swamp” of money in Washington,  has already hired former lobbyists to aid his transition team, as well as hiring a recent president of Citizens United (the lobby group which brought the relevant court case) to serve within his campaign.  This would indicate that while Trump has been publicly critical of the decision, he has made no tangible policy proposals for campaign finance reform.

Donald Trump will definitely have the task of appointing one judge to the Supreme Court and depending on future retirement of justices, up to four vacancies.  His position on constitutional law seems to be uneven and erratic, without thoughtful contributions as to the role of the judiciary.  Perhaps as he assumes the role of the President, his exposure to the original American concept of judicial review and the importance of judicial oversight of congressional and executive action will increase – but as always with Donald Trump, who can guess?

Nick Beard is a PhD Student and Scholar at the School of Law, University of Sussex

Access to information should not be an after-thought in plans for ‘transforming our justice system’

Judith Townend
Judith Townend

Cross posted with permission from The Transparency Project

On 15th September 2016 the Ministry of Justice opened its consultation into “Transforming Our Justice System”. The 36 page document, accompanied by a statement by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, sets out a “vision” for a radical overhaul and major financial investment in courts and tribunals in England and Wales. The plans for reform include more use of case officers for routine tasks, more decisions made “on the papers” (where a judge can consider representations without a physical hearing), more virtual hearings, and more cases resolved out of court.

The consultation document concentrated on some specific areas of reform including its “assisted digital” strategy (to help users access services), and online conviction and statutory fixed fine plans. The latter would allow for certain routine, low-level summary, non-imprisonable offences with no identifiable victim to be resolved entirely online, whereby a defendant would enter their plea to an online system. If that’s a guilty plea they would be able to view the penalty, accept the conviction and penalty, and pay their fine.

Responses were sought on online convictions and the “assisted digital” strategy by 10th November (extended after an administrative error). It is likely that many of the responses will focus on the access to justice issues and the risks of an online plea system; research by the charity Transform Justice, for example, indicates that “many unrepresented defendants do not understand whether they are guilty or innocent in legal terms – whether they have a valid defence – and certainly don’t understand the full implications of each option”.

However, there’s another major issue which is overlooked in the consultation, that of access to courts and tribunals by members of the public who are not necessarily directly involved with proceedings — this includes members of the media, NGOs and universities, but also ordinary people who wish to observe proceedings and access the information to which they are legitimately entitled.

Although the consultation document contains a pledge that the judiciary and government will “continue to ensure open justice”, access to proceedings and materials is not explored in any detail in relation to the specific reforms outlines on online convictions and “assisted digital”. It states the “principle of open justice will be upheld and the public will still be able to see and hear real-time hearings, whilst we continue to protect the privacy of the vulnerable” (p.5). This sentence points to a very important tension in complex digital environments, and one that needs overt recognition and detailed consideration when designing new access systems for online court procedures in both civil and criminal contexts.

There is mention of “transparency” in the joint statement (p.10) but only in relation to general data about proceedings (i.e. statistics) rather than with regard to access to proceedings. The Impact Assessment on Online Convictions mentions that “Listings and results would be published” (p.5, para 23) with no indication of whether this means to the open web (indefinitely?), or in a physical courtroom. If they intend to publish the full listings for all these summary only non-imprisonable offences to the open web, it is very important that the judiciary and MoJ consider the legal and societal implication of this — it is not something that has previously been done so systematically by the court.

Given that many major criminal convictions are unreported by the media owing to a lack of resource or interest, we could end up in a strange situation where there is greater access via online search for far less serious offences and this must be considered in the context of issues such as equal opportunities and potential barriers to work, as well as open justice and transparency. The MoJ, HMCTS and Judiciary should investigate a range of technological options for sharing data from courts and tribunals and should open these proposals to scrutiny through stakeholder research and official consultation.

In the annual University of Sussex Draper Lecture 2016 in London this week (8 November), Lord Justice Fulford (a summary of which may be found here) said that one option being considered was to provide viewing centres in public buildings, but these were early days and they were still looking for imaginative solutions. It would seem perverse, given the overall agenda of the reforms, for the courts not to consider digital access options that do not require physical travel to court.  

On behalf of the Transparency Project I have written a submission to the consultation, raising our overall concern about the lack of attention given to open justice and access to information in these initial documents. Our submission urges the Ministry of Justice and Judiciary to provide more detail on their specific plans for physical and digital access to virtual proceedings and to open these plans to further consultation. Too often, public access to courts information is an afterthought, which leads to mistakes such as the inadvertent release of sensitive and confidential data, or insufficient information and access being made available.

Judith Townend is a lecturer in media and information law at the University of Sussex and a member of the Transparency Project Core Group.

Hurrah for the judges and the rule of law

Sue Millns
Sue Millns

The judgment of the High Court of 3 November 2016 about the process that should be followed to enable the UK to leave the EU raises profound questions of constitutional significance for the United Kingdom.

At the centre of the case is the legal question of whether or not the government is entitled to trigger Article 50 of the Treaty on European Union (the exit provision under EU law) solely by the exercise of the Crown’s prerogative powers (meaning that this is purely an executive decision which can be made by the Prime Minister) or whether reference must be had to Parliament (the democratically elected, legislative body).

High Court judges wearing traditional red and white robes - photo courtesy of FruitMonkey (CC BY-SA 3.0)High Court judges wearing their traditional red and white robes. Photo © FruitMonkey (CC BY-SA 3.0)

The government, in suggesting that it could use the prerogative to put in motion the procedure contained in Article 50, relied on the suggestion that the conduct of international relations, including the making and unmaking of treaties (as is the case here), is a matter that falls within the Crown’s prerogative powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected.

The Unwritten Constitution

Putting politics to one side for a moment, which is exactly what independent judicial authority is required to do, the legal question is tricky to resolve because the United Kingdom, unlike most states, does not have a written Constitution.

We have an unwritten system of constitutional arrangements, conventions, doctrines, some parliamentary legislation (like the European Communities Act of 1972) and case law (decisions of the judges). We do not therefore have an easily accessible text which sets out the rules of the constitutional game. Instead we are left to follow principles derived from an array of sources which have amassed over time with varying degrees of force and authority.

Resolving the thorny legal question at the heart of this dispute is exactly what the three judges of the High Court had to do in their landmark decision of 3 November.

At the heart of the legal problem lies the question of the extent of the Crown’s powers under the royal prerogative. The prerogative, which is a key aspect of the UK’s unwritten constitutional arrangements, refers to those residuary (arbitrary) powers which continue to remain with the Crown (or executive) despite the sovereignty of Parliament (which was confirmed in statute by the 1689 Bill of Rights following the Glorious Revolution).

The Crown (i.e government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative.

The government argued that it could legitimately use the prerogative to give notice under Article 50 of its intention to begin the process of leaving the EU. This process would have the effect of taking away, or putting an end to, rights derived from EU law and incorporated into domestic UK law by the 1972 European Communities Act once the process was completed.

A photo of the High Court building in LondonThe Royal Courts of Justice in London, where the High Court judges made their ruling. Photo © sjiong (CC BY-SA 2.0)

What the judges of the High Court found, however, was that the government’s argument was not supported by the constitutional law of the UK.  The most fundamental rule of the UK’s constitution is the principle of parliamentary sovereignty or legislative supremacy. This means that Parliament is the supreme law-making body in the country and that it can make or unmake any law it chooses.

The Crown (ie government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative. That would be precisely the effect were the Crown to trigger Article 50 without reference to Parliament.

The completion of the Article 50 withdrawal process would result in the loss of rights for individuals. However, what Parliament has given (through the 1972 Act) can only be taken away by Parliament. It should escape no one that the desire of those supporting Brexit – that the UK parliament should have its sovereignty better respected – is precisely the outcome of the High Court’s decision.

Respect for the Rule of Law

Much of the media commentary surrounding the decision of the High Court has been about the lack of accountability of the judges in the face of the majority victory in the referendum for leaving the EU (51.9% against 48.1%).

Who are the judges to fly in the face of the wishes of the majority who voted for Brexit? The answer to this question is that the judges, far from being the ‘enemies of the people’ as the popular press would have us believe, are the independent authority whose task it is to uphold the rule of law in the midst of a political storm.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected. The judges are there to provide independent judicial review of executive action to ensure precisely that the executive/Crown/Prime Minister act within their powers and do not act unlawfully or against the wishes of a sovereign Parliament. The judges are the guarantors of individual rights and liberties and it is absolutely their role to defend the Constitution, to defend the rule of law, against the arbitrary and unaccountable use of executive power.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers and judicial review of executive action is exactly the legal tool required in order to ensure that the use of executive power is not arbitrary, unlawful or ultra vires. This is precisely the role of the judges and the purpose of a Constitution (written or otherwise) and for that we should all be thankful.

How curious then that the Lord Chancellor and justice secretary, Liz Truss, should be so underwhelming in her endorsement of the principle of judicial independence and so lacklustre in her defence of the judiciary in the face of hostile media attacks. The Bar Council of England and Wales has lost no time in pointing out the absence of leadership shown by the Lord Chancellor and has rightly expressed concern about the rule of law being undermined in the name of press freedom.

A photo of Liz Truss, current Home Secretary, standing at a podiumLord Chancellor and Justice Secretary Liz Truss was criticised for her lukewarm response to criticism of the judiciary following the ruling of 3 November. Photo © Policy Exchange (CC BY 2.0)

Not surprisingly, the government is appealing against the judgment of the High Court with a decision expected in December. This will enable the Justices of the Supreme Court (exceptionally all of them) to consider the strength of legal argument on both sides and a further, ironic, twist in the story could then be a preliminary reference to the EU’s Court of Justice in Luxembourg for its interpretation on the matter.

What is clear is that this profoundly important judgment of the High Court will resonate for years to come and that resonance comes not so much from the political consequences of the decision, but from its statement about the boundaries and the limits of executive power.

 

Professor Susan Millns is Head of the Department of Law in the School of Law, Politics and Sociology at the University of Sussex.