The legality of the “fiscal treaty”

February 29 2012

This afternoon after Prime Minister’s questions Bill Cash MP (what would we do without him?) has secured a debate in Parliament about the legality of the “fiscal treaty” – the new agreement between EU member states other than Britain (and the Czech Republic) intend to guarantee fiscal discipline in the Eurozone.

Here’s the text published on 31 January, by the way – with comments from me. Its official title will be the Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union.

Cash’s argument will surely be that the Treaty’s use of EU institutions – specifically the European Court of Justice, the European Commission and the European Central Bank, to all of which it assigns a role – is in breach of EU law. This is something the UK government initially said it would take issue with, but which it has now let drop at least unless Britain’s interests are affected.

This series of posts on the Open Europe blog gives helpful background to the “institutions” controversy, and important aspects of the argument are set out by Denis Cooper in his comments at the EU Observer, Sovereignty Bill (run by Bill Cash himself) and Douglas Carswell blogs.

The complaint is that the institutions cannot be given new tasks by this draft treaty because of Article 13.2 of the Treaty on European Union (TEU), which says

Each institution shall act within the limits of the powers conferred on it in the Treaties.

That reference to the Treaties does not include this new fiscal treaty, by the way – Article 1 of the TEU makes clear that the Treaties means the existing EU treaties, the TEU itself and the Treaty on the Functioning of the EU (TFEU). That, then, is the legal basis of the argument that’s expressed politically by saying that the institutions belong to the whole EU, and cannot be used for other purposes by some of the member states.

There are counter-arguments that the contracting states can use, though. First, they can argue that a Parliament v Council & Commission case from 1993, in which the European Parliament failed in a challenge to member state’s collective assignment of humanitarian aid tasks to the Commission, shows that member states can legally do that sort of thing.

Second, in relation to the European Court they can argue that Article 273

The Court of Justice shall have jurisdiction in any dispute between Member States which relates to the subject matter of the Treaties if the dispute is submitted to it under a special agreement between the parties

permits the use of the ECJ. The draft treaty text clearly relies on this argument: draft article 8.3 expressly refers to Article 273 and draft article 8.1 allows member states, but not the Commission, to invoke the ECJ’s jurisdiction – which is clearly designed to comply with Article 273. It’s an open question whether disputes under the fiscal treaty relate to the subject matter of the existing Treaties. On one view they do, since the Euro and budgetary discipline are covered by the TFEU; on another view, the need to draw up a new treaty shows that its subject matter goes beyond what’s in the existing ones.

A final important consideration is how the UK could take legal action to dispute the fiscal treaty – it is not in itself an act of any EU institution, and so may well be safe from annulment proceedings. There’s no issue about the member state’s external competence to conclude this treaty, since it does not involve negotiations with non-EU states (if it did, arguably only the EU itself could act), and the draft treaty is carefully worded so as to avoid any conflict with existing EU law, so it’s difficult to argue that other states by reaching this agreement have breached their duty of sincere cooperation with EU objectives.

I think all the UK would be left with would be a challenge to the actual actions of the Commission or Bank in pursuance of this treaty – although arguably nothing the draft treaty tasks them with doing amounts to more than a recommendation or opinion, and so may not be subject to legal challenge under Article 263 TEU:

The Court … shall review the legality of … acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions

Finally, rather than conferring tasks on the European Council or its President, the draft treaty has neatly created a new Euro Summit and a post of President for it. No doubt Herman van Rompuy will get that job.

An interesting technical legal debate then, about EU law – but a fairly abstract one. I don’t expect any legal challenge to the fiscal treaty – and if one was made, I doubt it would succeed.

2012-03-01T03:12:17+00:00Tags: , , , |

Spelman injunction lifted

February 24 2012

Jonathan Spelman, the 17-year-old rugby international and son of cabinet minister Caroline Spelman, obtained an injunction earlier this month restraining Express Newspapers – specifically, the Daily Star Sunday – from publishing information about him which, it was argued on his behalf, would breach his right to privacy and have a very significant harmful effect on him. Mr Justice Lindblom ruled that Mr. Spelman had a reasonable expectation of privacy about the information and that publication would not significantly advance the public interest. He concluded that it was more likely than not that his privacy claim would succeed and so section 12(3) of the Human Rights Act, which gives special protection for freedom of expression, was no bar to an injunction.

But now, following a hearing last week, Mr Justice Tugendhat has lifted the injunction.

His conclusions on the key legal points all seem directly opposed to Lindblom J’s – though to be fair, more and different evidence seems to have been before the judge this time. As far as Spelman’s expectation of privacy is concerned (para. 100) he says

I am unable to find that the applicant is more likely than not to establish at any trial that he has a reasonable expectation of privacy in relation to the First Source’s Information. Nor can I find that he is more likely than not to fail in establishing that. The likelihood of his success on this point seems to me to be somewhere between the two. Whether the Claimant has a reasonable expectation of privacy is an issue on which each side has a real prospect of success.

Thinking about this for a moment, it seems to me that by somewhere between the two Tugendhat can only logically mean he sees Spelman’s chances as precisely 50-50. On public interest he says (paras. 102 and 108)

It is not possible to discuss this issue in any detail in this open judgment. My conclusion is that the newspaper has a good prospect of establishing that if it were to publish some information of the kind that is sought to be prohibited, that would be in the public interest. Of course, much would depend upon the style of any article, and how intrusive or offensive it might be ..

.. So on the issue of public interest, again I find that each side has a real prospect of success.

He goes on to consider whether damages might be an adequate remedy in this case – and interestingly referred to a recent speech by a retired French judge outlining the approach he would take in similar cases. A rare example, this, of reference in an English court to continental legal thinking. Tugendhat J seems not to reach any firm conclusion on the adequacy of damages but does conclude (para. 119) that

Having regard to all the matters set out above, I have reached the conclusion that it is not necessary or proportionate to make an order restraining the defendant from disclosing any information relating to the Claimant of the kinds specified in the order made on 10 February …

This case is especially interesting: first, against the background of the Leveson inquiry which, some have said, has made newspapers very cautious about what print at the moment; and secondly, because some may see it as representing a slight swing back by judges in favour of freedom of expression.

I’m not sure myself that judges’ legal analysis has changed. It may make a difference, though, if judges begin to feel more doubt about the prospects of success of privacy claims – and then, applying section 12(3) and the normal more likely than not standard laid down by the House of Lords in Cream Holdings v Banerjee, deny claimants their injunctions.

2012-02-24T18:32:37+00:00Tags: , , , |

Murphy v Media Protection Services

February 24 2012

Karen Murphy outside the Royal Courts of Justice

I was at the High Court this morning to see the quashing of Karen Murphy’s conviction under section 297(1) of the Copyright, Designs and Patents Act for dishonestly receiving a broadcast with intent to avoid payment.

There was no real doubt that this had to be the outcome following the European Court of Justice’s ruling in her favour last year: the ECJ ruled that it breached the EU freedom to provide services to criminalise the showing in her pub of Greek broadcasts, rather than Sky broadcasts, of Premier League football matches. Lord Justice Stanley Burnton and Mr. Justice Barling were quite clear that they had to disapply section 297(1) in a case like this, and the private prosecutor, Media Protection Services Ltd., made no argument to the contrary.

There was quite a long technical argument about costs: Martin Howe QC, for Ms. Murphy, argued that the case should be treated as civil proceedings (because it was in the High Court) and that under the relevant provisions of the Civil Procedure Rules, costs should “follow the event” and be paid by the loser, in this case MPS. James Mellor QC for MPS argued that the case was criminal, and so under the relevant practice direction should only be payable by the prosecutor if the case has been wrongly brought – which he said could not be the case since it involved the plain application of legislation. The costs argument involved several aspects including whether there should be an interim costs order, the extent to which costs related to issues at various stages of the case (which has been before the Portsmouth Magistrates, the Crown Court, to the High Court on this “case stated” appeal and of course on reference to the European Court) could be divided up depending on which side won which issue, the relevance of insurance and whether one or the other side should have raised EU law points earlier.

Two slightly interesting things happened during this argument: first, at one point Stanley Burnton LJ put it to MPS’s counsel that his clients must have known from the beginning that real EU law issues law behind the apparently clear UK legislation here. James Mellor appeared to be saying they did not – which I find extraordinary. Second, at first Stanley Burnton LJ seemed uncertain about whether magistrates can make a reference to the European Court – they can, of course.

After all that technicality, the judges retired briefly before returning to quash the conviction – they’ve reserved judgment on costs.

There was a separate civil claim by the FA Premier League, Sky and others (the two cases were heard together in Europe), related to the intellectual property aspects of these “parallel broadcasts” – judgment was given in that case earlier this month. Stanley Burnton LJ also made clear that this judgment does not go so far as effectively repealing section 297: it still applies in the case of broadcasts sourced from outside Europe and, more prosaically, to entirely British cases in which a Sky card is obtained and used dishonestly.

But it’s clear that this legislation must be disapplied in relation to publicans who do what Karen Murphy did: they commit no offence when they show matches in their pubs sourced from licensed broadcasters based elsewhere in the EU.

2012-02-24T16:57:21+00:00Tags: , , |

Family arbitration needs a clear legal framework

February 23 2012

I’ve written a piece for the Guardian Law website today, about yesterday’s launch, by the new Institute of Family Law Arbitrators, of a scheme of binding family law arbitration. The scheme itself doesn’t worry me: I’m sure the IFLA’s arbitrators are all more than competent family lawyers who’ll do a good job. I am a bit worried, though, about the fact that, apparently, someone can just decide to start a service like this on their own initiative.

If family lawyers can just decide to set up a scheme like this and expect to make arbitration awards binding, why can’t others set up their own schemes? What’s to stop a religious body doing so, and deciding cases according to religious principles, such as sharia? … I doubt the Archbishop of Canterbury or Lord Phillips, the current president of the supreme court, would be alarmed at the prospect. Those of us concerned about religious threats to equality under the law may feel differently.

I do think this is a suitable case for some sort of statutory control – and that MPs should do something about it.

You can read the whole piece here.

2012-02-23T13:33:27+00:00Tags: , , , , , |

Without Prejudice

February 17 2012

In Without Prejudice this week, regulars, Cat Griffiths (editor of The Lawyer) and barrister Nichola Higgins join David Allen Green, CharonQC and me to discuss:

  • “alternative business structures” for legal services
  • prayers in the council chamber and oaths in court
  • whether judges should be involved in appraising advocates, and
  • the arrests of Sun journalists, and legal blogging.

Listen to the podcast here – or or subscribe through iTunes.

2012-02-17T13:55:30+00:00Tags: |

Supreme Court judgment: Sugar v BBC

February 15 2012

The Supreme Court has today given judgment in this case, about the extent to which the Freedom of Information Act 2000 applies to information the BBC holds for journalistic purposes.

I’m afraid the case has something of the Dickensian about it: Mr. Sugar (a lawyer) asked the BBC to disclose the “Balen report” – an internal report about the impartiality of the BBC’s Middle East coverage – early in  2005. They refused. The case has since been to the Information Commissioner, to the Information Tribunal, the High Court, the Court of Appeal, the House of Lords (in 2009), then back to the High Court, back to the Court of Appeal and now finally to the Supreme Court. In the meantime, Mr. Sugar has died.

The entire dispute is about whether the Balen report had to be disclosed by the BBC under the FOI regime. Part VI of Schedule 1 to the 2000 Act provides that the concept of a public authority which owes a duty of disclosure includes

The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature.

So: was the Balen report held for purposes of journalism, or other purposes?

There’s no doubt about how the Supreme Court has disposed of the case on its facts: the Balen report, all five agree, is held for journalistic purposes, and is therefore not disclosable under freedom of information law. The Justices reach this conclusion on the basis of slightly different reasoning, though.

Lord Wilson is in a minority of one in holding that information falls outside what he calls the BBC’s FOI “designation” if it’s held predominantly for journalistic purposes. If the report had been held partly for journalistic but predominantly for other purposes, he’d have seen it as subject to a duty of disclosure.

The other four Justices base their conclusion on reasoning that seems more protective of the BBC. Lord Phillips says a purposive approach must be taken to the legislation, so that information is held for a journalistic purpose and falls outside what he calls the “definition” if its disclosure would risk interference with the broadcasting function of the BBC (para. 65). Lord Walker agreed with Lord Neuberger in the Court of Appeal, that (para. 75 of Lord Walker’s judgment, para. 44 of Lord Neuberger’s)

once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production under the Act, even if the information is also held by the BBC for other purposes.

He did though think that the directness of the journalistic purpose has to be taken into account so that information only remotely linked to journalism should be disclosable (para. 83-84).

Lord Brown (para. 104) holds that information held to any significant degree for the purposes of journalism is information held for the purposes of journalism. The fact that it may be held for other purposes too makes no difference. Lord Mance agrees (para. 111) with Lord Walker and the majority.

One interesting aspect of the judgment is Lord Phillips’ clear expression at paragraph 61 of the “matters” on which all the Justices agreed and which were sufficient to resolve the case in the BBC’s favour:

i) At all material times the Balen report was held by the BBC predominantly for the purposes of journalism;

ii) On the true construction of Part VI of Schedule 1 to the Act information held predominantly for the purposes of journalism does not fall within the definition, even if the information is held for other purposes as well.

Although this helps emphasise that the Court was essentially unanimous in ruling for the BBC, and will help BBC lawyers – however cautious they may be – identify a safe basis on which to refuse disclosure in future, Lord Phillips’s summation is I fear potentially misleading as to the true legal precedent established by the case.

The reason the BBC won is the one agreed by the majority: essentially (Lord Phillips put it slightly differently) that information held to any significant degree for the purposes of journalism is exempt from disclosure. That seems to me the ratio decidendi of the case – in other words, the principle of law the case lays down – and it would be unfortunate if lawyers and judges were to overlook that in future in favour of Lord Phillips’s summary.

Finally, Lord Phillips (para. 67), Lord Brown (para. 106) and Lord Mance (para. 112) all refer to the possibility of today’s journalistic material being tomorrow’s archive; and so at some point held for non-journalistic purposes, not exempt from the BBC’s disclosure obligations. If they’re right, then some follower of the late Mr. Sugar may one day, in spite of this judgment, be able to got back to the Information Commissioner and force the BBC to disclose the Balen report.

BBC lawyers will no doubt advise editors to keep Balen close to hand for some years.

2012-02-15T14:11:11+00:00Tags: , , , |
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