Tonight’s crunch vote on the Lisbon Treaty referendum

March 5 2008

All the interminable committee debates on the EU (Amendment) Bill come to a head tonight, with a debate and vote on the Tories’ amendment, which would require a referendum – though they may withdraw this and back Labour backbencher Ian Davidson’s compromise offering both a Lisbon and an “in-or-out of the EU” referendum.

It’s this last scenario that’s most dangerous for the government, I’d say: they should be safe on the Tory amendment, even with some Labour backbenchers rebelling, because the LibDems are being three-line-whipped to abstain on it, extraordinarily. But if the LibDems and Tories could agree to support Davidson – who knows? If that came about, it’s just possible this could be an important night in politics, and the commitment of those Labour rebels might be severely tested.

If it doesn’t happen, the LibDems are likely to be the big losers – some of them are determined to stick to their old commitment to a referendum, and may have to resign tonight. Let’s see. I must get home to watch the fun on BBC Parliament. I really hope Bill Cash doesn’t go on and on about Lord Denning and the McCarthays v Smith case again as he seems to have done for two evenings running.

2008-03-05T17:46:00+00:00Tags: , |

Mayr v Flöckner: pregnancy, discrimination and IVF

March 5 2008

A remarkable ruling last week from the ECJ in case C-506/06 Mayr v Flöckner, which extends the concept of sex discrimination under the Equal Treatment Directive, 76/207, to cover unfavourable treatment of a woman because she is absent while undergoing IVF treatment.

Sabine Mayr worked as a waitress at Flöckner’s Konditorei in Salzburg, and was having IVF treatment. At a key stage of the process, she took a week’s sick leave to have the fertilised eggs reimplanted – but her employer (obviously a pretty harsh lot) sacked her by letter as soon as she went off sick. She claimed this was contrary to the Pregnant Workers Directive, 92/85.

The ECJ didn’t go along with this: Mayr was about to become pregnant when her employer sacked her, but because at the time her fertilised egg was still in vitro, she was not, in legal terms, pregnant. That Directive didn’t protect her.

But she was protected by the Equal Treatment Directive. Just as (before the existence of the Pregnant Workers Directive) the ECJ ruled in the past that dismissal on grounds of pregnancy was unlawful discrimination, since only women could be subject to the unfavourable treatment – see case C-177/88 Dekker – similarly, dismissal essentially because of IVF treatment was also discrimination: only a woman would be absent because of undergoing it.

An interesting extension of sex discrimination law, this. The court might have taken the kind of approach it adopted in cases like C-179/88 Hertz and C-400/95 Larsson, and said that a dismissal for sickness absence outside, i.e. in this case before, any period of pregnancy and maternity leave, even if the sickness or absence is pregnancy-related, is analogous to dismissal of a man for sickness absence and so not discrimination. In a sense that would have been logical given the approach in those cases to pregnancy-related illness. But it chose not to: here, the link to future pregnancy was held all-important. Why?

I agree with the court’s ruling actually, and I think the key differences from cases like Larsson are first, that Mayr’s week off was a foreseeable, normal part of what is now a fairly common way of getting pregnant – not an unusual supervening occurrence. And second, there must be a suspicion that the dismissal was not simply because of the five-day absence alone (surely, I think, that must be an unfair dismissal anyway under Austrian law?) but must in part have been motivated by the knowledge that Mayr was going to be taking maternity leave in the future. In a sense, it’s a bit like dismissing a woman if she’s openly trying for a baby: the employer seems to have been trying to get round the Pregnant Workers Directive and Dekker by getting his retaliation in first.

2008-03-05T16:32:00+00:00Tags: , |

Saadi v Italy: UK defeated on deportation of terror suspects

March 4 2008

Last week the UK failed in its attempts to reopen and change the approach of the European Court of Human Rights to the deportation of terror suspects: in the case of Saadi v Italy, in which the UK intervened, the Grand Chamber strongly and unanimously endorsed the Court’s approach in Chahal v UK, reaffirming that deportation is in breach of article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment, where there are substantial grounds for believing the person in question is at real risk of being subjected to such treatment in their home country.

The UK government has long been frustrated about this: ultimately, this block on deportation of terror suspects to North African and Middle Eastern Countries (together with a lack of admissible evidence with which to charge them with any offence here) is what led the government to detain foreign terrorists without trial in the UK, and now to subject them to control orders. Tony Blair mentioned the case, and the need to test the legal point again, in this statement in 2005; and the government has been looking for a chance to take its argument to Strasbourg since then. It looked as though it would get its opportunity in a Dutch case, Ramzy – but the Saadi case came up for hearing first.

I always thought this was a hopeless windmill-tilt, and so it’s proved, in what’s a complete and pretty humiliating defeat for this strand of the government’s strategy. The UK argued (see paras. 117-123 of the judgment) that the risk of torture should be balanced against the danger to the community of the suspect’s continued presence, and that where there is evidence he represents a danger, this should affect the standard of proof he has to adduce of the likelihood of his being tortured, so that he should have to prove it is likelier than not. The court says (paras. 137-149) that the UK’s approach is incompatible with the absolute nature of article 3, and that its argument for balancing the risk of torture against the risk of harm to the community is misconceived. It gives short shrift to the argument about the standard of proof, too.

The Slovenian Judge Zupancic is scathing about the UK’s argument for balance, in his concurring opinion: he says it represents “police logic” which “does not hold water”, and he goes on to call the argument about the standard of proof “intellectually dishonest”. Strong stuff. Judges Myjers and Zagrebelsky also give a concurring opinion which is my view is marred by a lurch into policy discussion, when they agree with the view of the former French Justice Minister Robert Badinter that restricting liberty in pursuit of security against terror is counter-productive. It seems to me this is a question for politicians and citizens, not for judges. But they’re right that only one answer is possible in this case, legally: and the court has given that answer in a way that shows any belief British ministers had that they might change its approach was hopelessly unrealistic.

Tony Blair, in that statement I linked to earlier, suggested the government might amend the Human Rights Act to deal with this if it couldn’t win in Strasbourg – another hopeless idea, as it’s the ECHR itself that needs to be amended if the UK is to deport without breaching international law. I doubt Gordon Brown and Jacqui Smith are silly enough to go down that route.

2008-03-04T12:42:00+00:00Tags: , |

Atkins v Coyle Personnel

February 29 2008

Something else I missed last week was this interesting Employment Appeal Tribunal case, dealing with the fairness of a dismissal during paternity leave. I spotted it because of a note posted at Lexology by Louise Fernandes of Field Fisher Waterhouse.

I’m a bit concerned about this ruling. Surely but for the paternity leave, the employee would never have had the heated row with his boss. Isn’t that causal enough for the EAT?

2008-02-29T17:35:00+00:00Tags: , |

Case 2/06 Willy Kempter: reopening decisions in the light of ECJ judgments

February 29 2008

EU Law Blog has an interesting post about this case, which more or less says anyone can get an administrative decision reopened and changed following a subsequent ECJ judgment that shows it’s wrong: the only limit is that member states can lay down reasonable time limits for applying for a reopening, in the interests of legal certainty, so long as they are not liable to render practically impossible or excessively difficult the exercise of rights conferred by Community law – in other words that they do not make the interested person’s legal remedy ineffective.

Interesting, this, if lawyers here try to use it creatively. Does it means, say, that a pharmaceuticals firm turned down a marketing authorisation by the MHRA on the basis of the current ECJ case law (say on balancing the rights of innovator firms against generic manufacturers) could, if the balance shifted in later cases, come back and judicially review the refusal even years later? If the normal judicial review time limit was seen as a bar, would that satisfy the effectiveness test?

2008-02-29T16:54:00+00:00Tags: , |

Dominic Grieve’s dodgy French

February 27 2008

It’s Groundhog Day again, as I watch yet more debate on the EU (Amendment) Bill. Early this afternoon the debate was about climate change and the environment, and was blissfully light on Europaranoia.

But this evening Dominic Grieve, shadow Attorney General, whose French is very good, nonetheless is making a fool of himself. He’s quoting the French text and on the basis of that, arguing that the provision in the Lisbon Treaty that would insert into the Treaty on European Union as article 8c,

National Parliaments contribute actively to the good functioning of the Union

could impose an unique legal obligation on the UK Parliament in European law, thereby infringing its independence and privileges.

Honestly.

The provision started off saying National Parliaments shall contribute, which is what started off this totally misconceived idea. Unfortunately the European Scrutiny Committee picked up on it, the government achieved a pacifying change, and yet still we end up with this sort of time-wasting debate.

The original shall was never any kind of imperative – any more than, for instance, section 1 of the Scotland Act, which says there shall be a Scottish Parliament, imposes an enforceable obligation on anyone. You could say the Lisbon text confers a function on Parliament in EU law – the new, innovative function that the Conservatives want, of policing subsidiarity. You could, like the Liberal Democrat David Howarth, call the text “performative”: i.e. describing Parliament’s role or, more accurately, wishing it into existence.

But to think in some way that this text – which no longer includes the word shall, remember – impose an obligation on Parliament which it could be taken to the European Court for having breached… I have to agree with Patricia Hewitt: it’s a bizarre fantasy.

2008-02-27T18:05:00+00:00Tags: , |

FOI bites: ouch!

February 27 2008

This is the week the Freedom of Information Act 2000 finally bit: politicians and the public now know it’s not simply a joke but can force previously confidential information to be released. There have been two important rulings: the Information Tribunal’s decision that details of MPs’s expenses should be disclosed; and the Information Commissioner’s decision that Cabinet minutes from March 2003 relating to the decision to invade Iraq should be released.

I’ll say nothing about the expenses decision, except that I think it’s amazing MPs could think this information could or should be private. I’m with Libby Purves on this, and am glad the Commissioner and the Tribunal have forced MPs into the real world.

But I’m troubled by the Iraq Cabinet minutes decision, which I think shows the folly of the principle under the Act that there should be no “class” exemptions: i.e. that no category of information, whether information relating to the Cabinet or legally privileged information, should be exempt from disclosure. In order to be withheld the government must explain the specific harm that would result if the information requested were not released. In this case, the government has argued that release of Cabinet minutes would undermine good government and collective ministerial responsibility – but the Commissioner says in effect that those arguments are in the nature of a class exemption: the government has not justified the keeping secret of these particular Cabinet minutes in terms of the harm disclosure would do.

I accept that the Commissioner is in a difficult position, since the Act clearly precludes him from accepting an effective class exemption for Cabinet papers. I think that’s a serious problem with the Act, because in reality that means the abolition of any rule or presumption that Cabinet deliberations are confidential: they only are if their contents would be harmful, if known. I’d have preferred at least a presumption that Cabinet minutes should be confidential.

But even in that framework I don’t think the Commissioner was obliged to decided as he did, and I’m not sure he’s got it right. A health warning: he’s seen the minutes, and there may be something in them which cries out for public disclosure – evidence, for instance, that the government’s explanation for the war was a lie, say. I don’t imagine they do show that, but if they did, I’d agree that the public interest in knowing that outweighed the public interest in good and collective government.

But if not, then surely this decision means it’s open season on Cabinet minutes from now on, whatever the Commissioner says about it not being a precedent. Of course it is. Applying the principles he lays down here, the only Cabinet minutes I can see uncontroversially qualifying for non-disclosure are those relating to national security, international negotiations and perhaps price-sensitive economic policy. What possible harm could result from release of information about education policy, pensions policy, employment law policy, tax policy, environment policy or health policy – except harm to the process of government itself?

This is I fear a recipe for hole-in-the-wall, sofa government, with decisions taken not according to a sensible, recorded procedure, but instead taken in unminuted secret meetings so that the official disclosable record can be kept squeaky clean, with no sign of ministerial doubt or dissent. Not even historians would be able to access a true record after thirty years. I thought we were trying to move away from that; and I hope the government will appeal. Surely it will.

2008-02-27T14:51:00+00:00Tags: , , |

S and Marper v United Kingdom: hearing

February 27 2008

This morning the European Court of Human Rights heard this case, about the UK’s DNA database: Messrs. S and Marper argue that keeping their DNA on the database is in breach of their rights under article 8 of the ECHR to respect for their private lives (because it’s an unnecessary, disproportionate intrusion of their privacy) and under article 14, not to be discriminated against in the enjoyment of Convention rights (because their privacy is infringed more than other categories of people and the difference in treatment can’t be justified).

You can follow a webcast of the hearing at the ECHR’s website, here. It’s available from 2.30 this afternoon, the website says – which may be 1.30 UK time.

2008-02-27T14:20:00+00:00Tags: , |
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