Lawyers Express Concerns Over Post-Brexit ECHR Commitment

A group of legal experts have expressed concerns about the UK’s future commitment to the European Convention on Human Rights (ECHR). Although the ECHR is separate from the European Union, experts have voiced concerns that the UK’s vote in favour of leaving the European Union “seriously increases” the possibility that Britain may also choose to leave the ECHR.

According to De Montfort University Professor Neil Parpworth, who specialises in human rights law, the UK’s continued commitment to the ECHR depends in large part on the question of who will be the next Prime Minister. One of the favourites to succeed David Cameron as leader of the Conservatives and current government is Justice Secretary Michael Gove, who was a prominent figure in the Leave campaign during the run-up to the referendum on the UK’s membership of the EU. While Gove has previously spoken in support of the Convention, he has also said that the UK must strive to ensure the European Court of Human Rights is reformed and that, if this did not happen, then nothing should be ruled out.

Theresa May, the current Home Secretary, has also been named as one of the favourites to succeed David Cameron. May previously spoke out in favour of abandoning the UK’s commitment the ECHR, claiming that “the ECHR can bind the hands of parliament.”

Barrister Sir Paul Jenkins QC, of Matrix Chambers, believes that the vote in favour of Brexit leads to a higher possibility of the UK also abandoning its commitment to the ECHR even though this is not part of the European Union. Sir Paul said: “In law and in logic the two are not linked but I think the political reality is that if the public saw a vote to leave as a step towards reclaiming our independence as a British nation why wouldn’t they at the same time want to reclaim our independence on Strasbourg?”

Parpworth expressed similar sentiments. If the next Prime Minister does decide to pursue the possibility of exiting Britain’s current commitment to the ECHR, he suggested, they might frame this as a means of “taking back control” – a phrase which was one of the key mantras of the campaign to leave the European Union.

In response to Theresa May’s previous statements in favour of abandoning the ECHR, Bella Sankey of campaign group Liberty said “the convention doesn’t bind parliament and – despite Theresa May’s best efforts at mud-slinging and myth-spreading over the years – the case for remaining a signatory is unequivocal.”

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Finland to Relax Tough Alcohol Laws

DrinkingThe government of Finland has confirmed that it will loosen up the country’s tight alcohol laws. The country is notoriously strict in its regulation of the advertising and sale of alcohol products.

The Finnish government, which is a coalition of three parties, has now said that it intends to reform the regulations surrounding alcohol, which are largely defined by the country’s Alcohol Act. According to the National Coalition Party, speaking to the Finnish press, the new approach will be “less patronising, more sense.”

The change that will perhaps make the biggest difference to individuals on a night out will be the removal of a restriction on the amount of alcohol that can be purchased in a single transaction. Currently, an individual is only allowed to buy one portion of alcohol at a time in a bar or restaurant. This has prevented any one member of a group from buying a round of drinks for their friends, but with the restriction removed this practice will become possible.

Other restrictions on the purchase of alcohol in bars and restaurants will also be lifted. This will allow people to do various things they cannot do under the current system such as buy drinks to take home and paying for alcohol with a credit card. The minimum drinking age will also be reduced from 18 to 16, provided that somebody is present to provide appropriate supervision, for example a parent.

Retailers will also gain additional freedoms in how and where they supply alcohol. Currently only the Alko off-licence chain, which is owned by the state, is able to sell drinks that contain more than 4.7% alcohol by volume, but this is due to change with corner shops being able to sell drinks with strengths up to 5.5%. Micro-breweries will gain the ability to sell drinks that contain more than 5.5% alcohol by volume on-site, and events such as music festivals will gain more freedom for the provision of beer tents.

Outi Makela, deputy chair of the National Coalition Party, published the full list of upcoming amendments to the Alcohol Act on her blog. The reaction from the Finnish people has been largely positive, with many pointing out that the reforms will bring the legal situation regarding alcohol in Finland much closer to that found in most other European countries. Some, however, have criticised the loss of restrictions which they see as safeguards against underage drinking, while others claim that the new laws do not go far enough in providing the freedoms available in many other nations.

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Greece Could Take Legal Action to Remain in Eurozone

As the problems in Greece continue to deepen, the possibility has emerged that the country could be forced out of the Eurozone if it should fail to secure a deal for the repayment of its debts. A prominent Greek politician has suggested that if events reach a stage where this looks likely, the country could seek legal action to prevent such a forced exit.

Since the creation of the euro, no country has yet left the common currency either voluntarily or otherwise. However, in recent months Greece has been having problems with repaying the debts it was left with after high-profile bailouts. This, combined with the anti-austerity stance of the country’s current government, is leading to significant and sometimes heated talks between the Greek government and its creditors in an attempt to renegotiate the terms of the debt and secure a more manageable deal. Most recently, Greece has made it clear that it will not be able to meet its latest repayment to the International Monetary Fund – 1.5 billion euros or over £1.06 billion – by today’s deadline. As well as requiring the country to default on its payment, this puts future instalments of bailout funds at risk.

Over the weekend, talks neared the point of collapse when the Greek government rejected a potential deal. The deal in question would have seen Greece receive much-needed money, but would have required the country to introduce austerity measures. Rather than rejecting the terms of the potential deal outright, the government agreed to hold a referendum on Sunday.

A number of European leaders urged Greek voters to accept the terms, saying that voting against the deal would amount to voting against Greece retaining its place in the Eurozone. However, the situation did not look promising. The Greek public voted the current government into power on the back of its anti-austerity platform just a few months ago, and after the referendum was announced protesters took to the streets with banners urging people to reject the deal.

Regarding the prospect of a forced exit from the eurozone if it cannot meet its repayment obligations, the Greek government has said threatened a legal battle to try and hold onto its membership of the common currency. According to Yanis Varoufakis, Greece’s finance minister, “the Greek government will make use of all our legal rights.”

Varoufakis continued: “We are taking advice and will certainly consider an injunction at the European Court of Justice,” and pointed out there are no provisions made in EU treaties for a situation where a country refuses to exit the eurozone.

“Our membership is not negotiable,” he said.

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International Bar Association Defends Trade Treaty

The Transatlantic Trade and Investment Partnership came under fire from various sides including a number of political parties recently through election amnifestors. David W Rivkin, president of the International Bar Association (IBA), has now come to the defence of the proposed treaty in a statement in which he aimed to rectify misconceptions about the nature of the agreement.

Among the parties who hit out at the treaty in their manifestos are the Green Party, the Scottish National Party, Plaid Cymru and UKIP. Rivkin, who is also a partner at prominent New York legal firm Debevoise & Plimpton, said that critics of the potential trade agreement were “subverting debate” through the use of inaccurate information. In particular, he said, incorrect claims were being made about matters of investor-state dispute settlement (ISDS) contained within the treaty’s terms.

As a result of such erroneous claims about the agreement, Rivkin said in his statement: The IBA Arbitration Committee and I are concerned that the discussions about ISDS in the Transatlantic Trade and Investment Partnership and the Trans-Pacific Partnership are being compromised.”

ISDS is the process through which businesses can make complaints against nation states. Through ISDS, the businesses in question can undergo a process of arbitration through which they can have their complaints examined and the dispute settled.

The arbitration committee of the IBA, Rivkin said, is now going to analyse the matter of ISDS in depth. The committee will look at the full range of criticisms and concerns being raised about the Transatlantic Trade and Investment Partnership’s treatment of the matter, as well as the proposed benefits of ISDS. The aim will be to identify which criticisms of ISDS are substantiated in fact, and which are untrue or based on misconceptions.

Among the complaints being made about ISDS in the Transatlantic Trade and Investment Partnership which Rivkin claims to be misconceptions are:

  • Investors Win Every Time: In fact, Rivkin says, a greater proportion of cases have been won by states than by investors. Around a third of all cases have come to an end with investors and states reached a settlement.
  • ISDS is Guarded From the Public Eye: Another prominent complaint being made against ISDS is that proceedings rarely come under scrutiny from the public. The IBA, however, says that the majority of awards are published and that some proceedings are even streamed live online. Furthermore, a number of recent investment treaties allow for public attendance at proceedings.
  • States are Forced to Change Laws Through ISDS: It has been claimed that ISDS can force states to change laws and policies against their will. However, the truth is that “States subject to investment treaty arbitration cannot be ordered to amend their laws or change their policies, and awards issued by investment tribunals do not order states to change their policies or laws.”

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E-Trial Experiment Hailed as Success

Electronic TrialAn experimental mock e-trial has been conducted by a collection of judges from three different continents in order to assess whether digital courts might have a future. The concept is considered to have particularly strong potential in the arena of international dispute resolution, but is not being ruled out for criminal and civil cases either.

The experiment, which has been hailed as a success, saw participants viewing the trial on two screens. One was used to display live video of the trial, while the other displayed documents relevant to the case. The trial was hosted by CaseLines, a UK-based company specialising in electronic court bundling.

The mock trial that was conducted in order to test the e-trial setup was chaired by a British judge from the Birmingham Civil Justice Centre, His Honour Simon Brown. South Eastern Circuit Judge John Tanzer also participated in the role of the apellant’s counsel.  The appellant was played by Herbert Dixon, a Superior Court judge from Washington, USA. The role of the counsel for the defendant, meanwhile, was filled by New Zealand judge David Harvey.

According to Brown, both time and money could be saved if the digital system is adopted in some cases to replace the “inordinately” long paper process that is currently used. He also pointed to the Mitchell regime and its tightened interpretation of issues related to cost budgeting, suggesting that this made the need for such cost-saving measures particularly strong. Brown also added that, in monetary terms, the system would be within the reach of small businesses.

Harvey expressed similar opinions on the e-trial concept and the results of the mock e-trial itself. He stressed the potential for cost-saving in the resolution of international disputes, as well as the potential for “considerable advantages” in some domestic cases.

Tanzer was also positive about the system, suggesting that it could result in “better use of judicial and practitioner time” when compared to the current system. He also said that many already recognise that such remote access systems could make justice more accessible in criminal cases.

Tanzer went on to point out that a large part of the necessary hardware is already in place or accessible. He added that “This is something you can use through a mobile phone. The video technology might even be better than using some computers.”

Brown, meanwhile, suggested that early adoption of such systems “could put Birmingham [Civil Justice Centre] on the map,” and all that would be needed is for the necessary Wi-Fi  connection to be provided by HM Courts and Tribunal Service.

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President of UK Supreme Court Enters European Law Debate

The most senior judge in Britain, Lord Neuberger, has given his opinions in the ongoing debate surrounding the role of European courts in the UK. In particular, he has described the concept of such courts overruling UK parliamentary decisions as “little short of offensive.”

The statements came in a speech regarding the way many Britons resent interference in UK affairs from European bodies. The speech particularly highlighted UK antagonism towards the European Court of Human Rights (ECHR) and its judges.

Lord Neuberger described court interference in parliamentary decisions of any kind as being “little short of offensive to our notions of constitutional propriety.” He said the fact that the courts in question were “not even British” made this even more true. He was referring to certain powers belonging to the Luxembourg Court and the Strasbourg Court.

While Lord Neuberger was willing to state some of his opinions categorically, he ultimately avoided choosing a side in the debate.

Lord Neuberger highlighted that the British seemed to be more resentful and suspicious of pan-European bodies and their role in national affairs than those in other EU countries. He suggested that this particular distrust and dislike could be at least partly rooted in historical grounds. Neuberger pointed out that the UK has not been occupied by a foreign power in the last 950 years. His belief is that this means that British people have less of a grasp than their European counterparts on “the need to lose a degree of autonomy for the sake of increasing the prospects of peace in Europe.”

He also suggested that the idea of courts interfering in national affairs was considered more offensive by British people than by those in other nations. The UK’s concepts of parliamentary sovereignty and the fact that Britain has no written constitution has prevented courts in the past from delivering judgements that contradict parliamentary affairs. The result, Lord Neuberger says, is a distinctly British concept that “it is unacceptable for ‘unelected judges to impose a diktat’ on a democratically elected parliament.” By contrast, Lord Neuberger states that most countries accept the idea of independent judges acting as a control on legislation sometimes, especially since they have no need to worry about being re-elected.

Ultimately, Lord Neuberger expressed little in the way of a definite position for or against the idea of courts playing a role in parliamentary affairs at times. However, he did seem to suggest that it should not be dismissed as something automatically to be avoided. Lord Neuberger said. “Our legal story is not one of splendid isolation but rather of splendid synthesis. The flow of legal ideas and concepts between Britain and mainland Europe has been and is a two-way process.”

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Hubert Legal Calls for Justice and Autonomy for All EU Member States

There was a warning made by Hubert Legal, about the eroding autonomy of member states. In the European Union. Hubert Legal is the senior legal adviser to the 28 EU member states and has expressed its concerns to the European commission about messing with justice.

He made his comments at a small private dinner in November 2013 where he called for humility. The dinner was hosted by Viviane Reding, the vice-president of the commission who is responsible for justice and fundamental rights.

1Mr. Legal is an example of nominative determinism in the law since the retirement of Lord Judge. He has been providing legal counsel to the council of the European Union. The council of the European Union needs to be differentiated from the Council of Europe. It is the body where the representatives of the national governments sit.

He warned people during a two-day public conference about the future of the justice in the EU. Legal has French origin but speaks fluent English since he has served as a judge at an European Union court.

According to him, the European Commission should be cautious in its goals to bring the justice systems of EU states closer together. There is a real risk of global degradation of the quality of justice. The traditional guarantees offered by the judicial systems of the member states would be eroded by loss of their autonomy when it lack an equally coherent structure to make up for the losses.

It is important for the commission and its members to keep in mind that they are not missionaries who have to explain forcefully the fundamental rights to its people.

It will be helpful if humility, history and desire to learn are taken into consideration when someone tries to speak to nations about the fundamental rights on which their societies rest. Legal emphasized that his comment is purely theoretical.

Legal said that in his opinion “justice is not an imperfect science; it is an exact art”. Therefore, before any major changes are made, its cultural impact needed to be considered.

When we think about how justice works, we need to think about the legitimacy of a judge and what it consists of. In his view, legitimacy was based on the ability of the judge to deliver socially accepted.  Therefore, it is important for judges to be sensitive and educated towards the needs of the people on whose behalf they judge.

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Social Networking Companies may Regret Dublin Choice

The decision by Google, Facebook and Twitter – three of the main players in the social networking phenomenon – to set up their European bases in Dublin may backfire on them, a leading libel lawyer has warned. The problem, it seems, is that they may be open to EU defamation and privacy laws thanks to their location. Abuse using online media such as Facebook is rife, and the belief is that lawyers will be able to sue the companies on behalf of individuals who have been harassed by anonymous people.

1Paul Tweed, a Belfast based expert in libel law, is the man who has made the warnings, and he believes that there is potential for serious problems ahead. His firm has been involved in action against bloggers and tweeters who have abused politicians and celebrities online, and he also warns that the law will not only be directed at the individuals, but at the companies hosting their comments.

Take Down Notices

Tweed, who has represented the likes of Hollywood actor Harrison Ford and Jennifer Lopez, explained the process:

“We will send a ‘take down’ notice to either Google, Facebook or Twitter and we get various responses. Two or three years ago our demands for ‘take down’ notices were largely ignored by the likes of Google who are based in Seattle and could quote us back the American constitution. In those days we used to tell our clients ‘look, even if we get a judgment we are not going to be able to enforce it’. Because US courts would not enforce them and our clients basically had to turn the other cheek.”

He went on to explain that things are very different now:

“Now the whole landscape has changed. The massive game-changer is that the likes of Facebook, Twitter and Google have established European headquarters in Dublin and in doing that they have subjected themselves not only to Irish defamation and privacy laws but also those EU laws on libel and privacy. That means they are potentially a target because they are providing anonymous abusers on line with a platform.”

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