Big public law issues have come thick and fast this week, so today Charon QC and I talk about what happens now to the Lisbon Treaty, after the Irish “No”: what the options are, and what I think should happen. You can listen here.
I’m sorry to say the new Pakistani government has been dragging its feet about restoring the judges deposed by General Musharraf last November – but I’m glad to say the lawyers’ movement is keeping up the pressure with a big demonstration over the last couple days they call the “long march”. Here are reports about it from AP and the BBC. I’m sorry the new coalition is bickering about this – and I have to side with the PML-N, who as I understand it want immediate restoration by an executive order. There must be no further delay.
I’ve not posted yet on this important case from the US Supreme Court: I’m sorry, there’s just been too much fun happening in the British Isles this week. But I mustn’t keep you from the judgment itself; here’s a New York Times editorial about it, an opinion from this side of the water from Victoria Brittain, analysis from Beth Van Schaack at the fun-sounding IntLawGrrls and a whole load of articles at Opinio Juris.
Don’t say I don’t link you to stuff.
It is No, then. I’m pleased, I must say. It’s not that I’m a Eurospectic: I’m not. Actually I think most of the content of the Treaty is perfectly reasonable. Why I would have voted no, and why I’m glad this has happened, is because I’m deeply frustrated by the arrogance of the leaders of the EU – Tony Blair, Jacques Chirac, Gordon Brown, Nicolas Sarkozy and the rest – in seeming over the last three years to want to press ahead with the Constitution regardless of the wishes of the people they serve. The only leaders I’d acquit of this arrogance are the Spanish: they put the Constitution to a referendum and the Spanish said yes.
It’s high time that European leaders realised that these No votes are the result of people’s feeling that they have no influence over Europe: they are lashing out and punishing the politicians for not listening to them before now. They are demanding that politicians come to heel, in effect, and recognise who’s the boss. So will they? I’m not a conservative, but I have to admit that David Cameron, in his reaction to the news from Dublin, seems to have understood what’s happening and is reacting appropriately. This is now an ex-Treaty and should be buried. It is absolute nonsense to say the EU will seize up without Lisbon – it won’t. Laws are still being made in Brussels as we speak.
If politicians now refuse to accept this completely, then opposition, resentment and anger toward the EU will increase and deepen, and frankly I fear for the future of the Union because I think it would make the eventual departure of some member state – maybe the UK, maybe France, maybe Ireland – more likely. Today will be a truly great day for Europe if politicians get the message, stop empty rhetoric about bringing Europe closer to its people and do something to make that a reality.
In practical terms? I don’t think it matters whether the UK ratifies or not; declining to would show a correct understanding of what’s happening, but the Treaty can’t come into effect, so it’s irrelevant. Anyone who talks of a second Irish referendum is endangering Europe’s future: anyone who suggests it an arrogant fool, and no real friend of European integration. The best thing would be for EU leaders simply to draw a line under this – not contemplate negotiated alternatives or “ways forward”, all of which sound like a desire to ignore the Irish – abandon the Treaty and have a period of silence on Treaty change. Ten years would be a good round period for that I think although if politicians begin to act more humbly people may be able to accept modest proposals before then.
As for Treaty change some time in the future? I think any future changes should be made piecemeal: each specific reform – changing voting weights, for instance – needs to be put to all the people of Europe individually, and get assent from a majority in every member state. Yes, it sounds demanding, but then democracy is demanding. It’s the only way to create a really democratic Europe and stop the growing Euroresentment that’s far from just a British or Irish phenomenon.
If this is right, it’s astonishing news, and Europe will be pitched into crisis again. I can understand how Irish voters came to say No: as Michael Portillo said on telly last night, simply the knowledge that the French, Dutch and British had been denied a vote is enough to make you vote No. Europhiles may be frustrated, but only when people feel their view is being sought honestly and that it will be decisive – as in a general election in their own country – will they be able to approach these questions without a reservoir of hostility to leaders and their elite EU project.
How European leaders react may determine attitudes to the EU for years. Are they listening?
Now that Dominic Grieve has been promoted to David Davis’s old job, legal nerds like me wonder who’s going to get his role as shadow Attorney General. The simplest, quickest thing might be to give it to Edward Garnier, who’s done the job before. Otherwise, Jonathan Djanogly could be promoted from shadow Solicitor General or Henry Bellingham could be moved from the Justice team.
I spoke to Charon QC earlier about the 42 days, the government’s grubby deals, prospects for the Counter-Terrorism Bill in the Lords, and a bit about the Irish referendum on the Lisbon Treaty, too. You can hear the podcast here.
The shadow Home Secretary David Davis has astonishingly announced he will resign his seat in East Yorkshire and force a by-election on the single issue of liberty: he sees it as a personal campaign to stop the government’s erosion of civil liberties, not just in the Counter-Terrorism Bill, but more broadly. It seems from what Nick Robinson’s been saying on telly that this move is not approved by David Cameron.
This is really extraordinary. I expect Davis to win: his main opponents in Haltemprice and Howden are the LibDems, who may agree to stand aside for him. In any case they can hardly oppose him on the issue he’s chosen, or if they do oppose, they have no chance of upstaging him. Labour would need a miracle, a local uprising in its favour, to defeat him. But I doubt the strategic wisdom of this move. It won’t prove much unless he gets something like 80% of the vote, and I don;t think it’ll destabilise the government. If it’s true that he’s done this in spite of David Cameron’s disagreement, then you have to wonder what Davis thinks he’s up to. Don’t the Tories need discipline and focus just now, rather than Quixotry?
The only way this kind of stunt would have really helped them would have been if, say, a dozen Tory MPs in marginal seats all over the country had resigned on the Lisbon referendum issue. That might seriously have shaken the government.
Some people have suggested that when the House of Lords becomes our Supreme Court in just over a year, it should abandon the practice of judges giving individual judgments, sometimes disagreeing with each other, which means lawyers have to work out exactly who’s won, and on what points. The suggestion is that the new court should adopt a single, agreed judgment, like the European Court of Justice does. There is a reformist, liberal trend in legal thinking in this country that seems always to think what’s done on the continent is better; it’s not always based on any actual knowledge or experience of the rest of Europe. As it happens, reformists elsewhere often hold up the British model as the ideal – only a few weeks ago I read a letter in the Austrian press from a lawyer arguing that their constitutional court judges should give individual judgments, as they do in England and the US.
If you need to be warned about the dangers of judgment written by committee, look at yesterday’s Lords judgment in O’Byrne v Aventis.
A child suffered brain damage and through his mother is suing the firm who made the vaccine they think is responsible, under legislation giving effect to the Product Liability Directive. But due to a simple mistake, initially the claim was made, in 2000, against the UK subsidiary Aventis Pasteur Ltd., which technically was only the UK distributor; the actual manufacturer was Aventis Pasteur SA, the French parent company. No problem there – the Civil Procedure Rules permit substitution of a new defendant where there’s been a simple mistake like that. Except that Aventis objected, arguing that the Directive precludes this. Article 11 provides a long-stop limitation period: after a product has been marketed for ten years, the manufacturer is safe from action except from those who’ve already commenced proceedings against them. So, Aventis argues, since O’Byrne only commenced against the distributor, and the ten years have now expired… article 11 bars the claim.
So, the court made a reference to the European Court asking in effect whether the Directive permits correction of a mistake like this. The ECJ gave its judgment over two years ago – the only problem being that it’s difficult to tell what answer it gave. It’s for the UK to determine whether one party can be substituted for another, it said; but it also said the Directive lays down an exhaustive list of who is to be regarded as the manufacturer, and national courts must have due regard to the scope of the Directive. It’s an opaque, unhelpful and self-contradictory ruling, showing what can happen when a judgment is cobbled together in negotiations rather than being the product of one mind.
The Lords have found themselves unable to give effect to the ECJ’s judgment because they don’t know what it means. They’ve therefore referred the questions again to the ECJ for clarification. So another few years will be added to the length of this litigation, and the family will be forced to live with this for so much longer than necessary. What an indictment of the Dickensian state of law today.
Apart from the shameful role of the ECJ in this, I also wonder what our courts have been up to in referring this, to be honest. In my view, purposive interpretation of the Directive – which plainly aims at consumer protection and striking a fair balance of risk between consumer and producer, and which also clearly aims at freeing claimants from choosing between potentially liable defendants – cannot result in a reading that precludes substitution. I find it difficult to see how any court could think otherwise or need to ask the ECJ. But the machine rolls on.
I’m enjoying watching Lord Goldsmith, who’s Andrew Neil’s guest on the Daily Politics today. He’s a serious chap more suited to Newsnight or Today than to joshing about the way Andrew Neil does – but he’s doing his best.
He thinks the Counter-Terrorism Bill may only be properly debated by the Lords in the autumn. He also made the very good point that 42 days detention isn’t necessary for public protection – if a suspect had to be released at 28 days, he could immediately be made subject to a control order.