Posts Tagged ‘european court of justice’
Amending the doctrine of precedent? Proposals to permit departure from EU case law
In 1966, the Supreme Court (then the House of Lords) issued a Practice Direction which asserted its authority to depart, in exceptional circumstances, from an earlier decision and thereby change what was regarded as settled law.
Occasions on which this power has been used have been rare. Between the publication of the Practice Direction in 1966 and the abolition of the House of Lords in 2009, the power was used around 25 times. And its use has been similarly restrained by the Supreme Court.
One specific context in which there can be pressure to override a precedent arises where a judgement from the European Court of Justice (or indeed the European Court of Human Rights) is incompatible with UK law.
A question which arises from the departure of the UK from the European Union is how, after the end of the transition period on 31 December 2020, UK courts should deal with cases from the European Court of Justice which will remain effective in the UK (technically known as ‘retained case law’).
The Government has announced a consultation on whether the principle that only the Supreme Court (and the High Court of Judiciary in Scotland) should have this power, or whether other courts should be given the same authority.
The Government’s preliminary view, on which the opinions of consultees are sought, is that the powers should be extended to either:
- The Court of Appeal of England and Wales, the Inner Court of Session in Scotland, the Court of Appeal Northern Ireland and equivalent level courts throughout the UK; or
- those courts plus the High Court of England and Wales, the Outer House of the Court of Session in Scotland, The Sheriff Appeal Court in Scotland, the High Court of Justiciary, and the High Court in Northern Ireland.
This raises an interesting possibility. Many years ago, the late Lord Denning argued that the Court of Appeal should have power to depart from its earlier decisions. He felt that because all the important cases went to the Court of Appeal it would be more efficient is they had the authority to make clearly needed changes to precedent, without the expense and delay of a further hearing in the Supreme Court. This view found no general support at the time.
However, if either of the Government’s options in the present consultation is taken forward, might this not lead to a revival of the views Lord Denning, which in turn could generate a somewhat wider argument about the powers of courts other than the Supreme Court to change binding precedent?
The consultation is at https://www.gov.uk/government/news/consultation-launched-on-post-eu-reforms-for-british-courts
Keeping up with Brexit
Whatever your views on the wisdom of the UK leaving the European Union, the process of leaving has started and is due to be completed by March 2019. At least, that is the date by which the European Union (Withdrawal) Bill is due to have completed its Parliamentary process. How long any transition period will be after March 2019 is not yet decided.
There is considerable debate in the media about the whole process with fierce political arguments continuing to rage about the process and what would constitute a desirable outcome.
One thing is crystal clear; the process is not going to be easy. There is a vast amount of detailed technical argument to be had before agreements are reached; and once agreements are reached a vast amount of technical work to translate the terms of those agreements into effective legal force.
It is hard for those interested in what is going on to know where to turn for information. The Government is trying to help by bringing together all the policy, future partnership and other documents it has published which relate to Brexit. A collection of these can be found at https://www.gov.uk/government/collections/article-50-and-negotiations-with-the-eu. This list will be continually added to as discussions with the EU progress.
It will be seen that there are many issues in the list of matters to be decided that will affect the English Legal System.
Of course at the moment, these documents represent what the UK Government would like to achieve. Whether it will be successful will depend on the outcome of the negotiations currently in progress.
The process seen from the EU side can be found by going to https://ec.europa.eu/commission/brexit-negotiations_en which sets out materials arising from the negotiations led, for the EU by M Barnier.
Prisoners’ Voting Rights: the view of the European Court of Justice
I have written before about the stand off between the UK Government and the European Court of Human Rights on the question of whether the UK’s policy of prohibiting any prisoner from voting is compatible with the right to vote set out in the European Convention on Human Rights. (See 5 December 2012, 17 Oct 2013 and 21 Aug 2014.)
Although the issue has been seen largely as a matter arising from the European Convention on Human Rights, the issue also raises a question of European Law – namely whether a total ban on voting infringes the rights of citizens to vote in elections for the European Parliament.
The question was raised in the UK in the Supreme Court in 2013 as one concerning the equal treatment as between EU citizens residing in Member States other than that of their nationality. However, that principle would not apply to UK Citizens being detained in UK prisons. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus, the Supreme Court held on that occasion that EU law did not apply.
The issue has come back to the European Court of Justice in a case involving France: Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde Case C-650/13. (October 2015) Here the ECJ held that a Member State can maintain an indefinite ban on voting in European Parliament elections for certain nationals of that State, although such a ban must, be proportionate. In the case, Delvigne was convicted in March 1988 of a serious crime and sentenced to a term of imprisonment of 12 years. Under the (French) law in effect at the time, this resulted in a total loss of his civic right to vote. However, after release he could apply to have his right to vote reinstated. He did this in 2012, but his application was rejected.
Despite the fact that French electoral law was amended in 1994 to limit any voting ban to 10 years, the ECJ held that the original law was proportionate and would be upheld. This result was reached following analysis of Articles 39 and 49 of the Charter of Fundamental Rights of the European Union.
There seem to be clear implications in this judgement for the UK. On the one hand, for those sentenced to substantial prison sentences, the position under the old law in France is arguably harsher than the law in the UK, where rights to vote are restored when a prisoner’s sentence is served. On the other hand, the position relating to those sentenced for shorter terms in the UK is arguably harsher than the position in France.
Of course, the ECJ ruling applies only to the right to vote in European elections. The wider limitations on prisoners’ right to vote, and the long-standing divergence of view between the ECtHR and the UK Government on the legal position in the UK, remain.
For details of the ECJ judgement see http://curia.europa.eu/juris/document/document.jsf?text=&docid=169189&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=242509
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 