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Labour rights reporting: Is a new era in sight?

MDX academic explains how British firms will have to comply with new EU corporate laws covering a range of social and environmental issues

Greenwashing is the exaggeration of a company’s impact on the environment and society. Unlike financial information, companies are not required to comply with reporting standards concerning environmental, social and governance (ESG) information.

It is, therefore, perhaps not surprising that companies report their behaviour favourably without divulging the challenges or adverse impacts of their operations. This has cast a shadow over the credibility of ESG reports and their contributions to corporate accountability.

Furthermore, our research shows that companies struggle to report accurate information about workers along their value chains. Many companies agree with the general principles of labour rights, but they often fail to provide specific information supported by statistics, any steps they take to uphold labour rights, or their interactions with key stakeholders. Instead, they tend to provide general narratives which exaggerate their efforts.

The UK Modern Slavery Act (2015) has not improved the situation much. It is a relatively soft law and carries no penalties. There is very little political appetite in Britain to take on board recommendations to improve labour rights reporting.

All this may have to change in the face of new developments in the EU. The Corporate Sustainability Reporting Directive (CSRD) is a new Directive marking the beginning of a new era for reporting on a broad range of social and environmental issues, including labour rights. Given that Britain is the third largest trading partner in the EU, many British companies will have to comply.

The CSRD will mandate companies to report ESG information to the new European Sustainability Reporting Standards (ESRS). There will be penalties for non-compliance. ESRS will require companies to report on their endeavours to uphold labour rights of their employees and the workers along their value chains. ESRS requirements are closely aligned with those of the Global Reporting Initiative (GRI) standards. However, ESRS will evolve over the coming years and it’s yet to be seen if they will surpass the GRI standards in quality and adoption.

The CSRD will be implemented gradually from 2024 to 2029, starting with large EU companies, followed by listed small- and medium-sized enterprises and at the end, major non-EU companies.

While the accounting profession is gearing towards the upcoming changes, companies and local authorities need further support and guidance on how to uphold labour rights at the bottom end of value chains in the UK. It remains to be seen how far down the value chains companies can go to report accurate information and provide assurance on the absence of modern slavery.

Dr Sepideh Parsa is Associate Professor of accounting at Middlesex University Business School. Sepideh has been appointed by the Global Sustainability Standards Board (GSSB), GRI’s independent standard setting body, to serve on the GRI Labor Project Advisory Group to revise and develop the Labor related GRI topic standards.

Photo by Benjamin Child on Unsplash

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Editors Picks Law & politics

Why Russia’s invasion of Ukraine is not the end of the UN Charter system

Destroyed buildings in Kharkiv (Deposit Photos)

MDX legal expert Dr Giulia Pecorella explains why international courts and the UN Charter will still be crucial in peacefully resolving the conflict

Russia’s invasion of Ukraine is a serious violation of international law and the UN Charter. It is an act of aggression which also involves violations of international humanitarian law as civilian and protected objects have been targeted and attacked, as well as human rights law.

Some fear this is the end of the security system created by the UN Charter more than 75 years ago. This is because Russia, as a permanent member of the UN Security Council, has blatantly violated the cornerstone principle of the Charter. It prohibits the use of force and only allows such military action with the express approval of the UN Security Council on the grounds of self-defence.

In so doing Russia has inevitably damaged the legitimacy of the UN Security Council as the body that according to the UN Charter has got primary responsibility in the maintenance of international peace and security.

But still, from an international law perspective, I would be more inclined to see the bright side even in such dark times as now.

Resolving the war in courts

First, while Ukraine has been under attack and used military force on the grounds of self-defence, they are still determined to rely on peaceful means such as negotiations to solve their dispute with Russia.

The Ukrainian government has moreover initiated diverse proceedings before international courts, showing a remarkable positive attitude towards what the UN Charter considers another method of solving a dispute peacefully, that is, judicial settlement.

They are relying on different courts, including the European Court of Human Rights and the International Court of Justice in The Hague, as well as, they are showing great support to the investigation undergoing within the context of the International Criminal Court.

Scholars usually look at the limits of the system and the flaws of the international courts and tribunals, but I believe it is significant at this stage the Ukrainian government is still seeking to resolve their disputes through judicial settlement acting within the limits of the UN Charter.

Rescuers dismantle a destroyed residential building in Kharkiv (Deposit Photos)

At the same time, international courts have reacted very quickly, confirming they are effective and proactive means to resolve international disputes.

Moreover, States have decided to respond to the Russian aggression through acts adopted by different International organisations, including but not limited to, the Council of Europe, the UN General Assembly and the UN Human Rights Council.

This is a very interesting trend that contrasts to what we have witnessed in the last decade, when international organisations and courts have been criticised as useless, biased and ineffective, and several states threatened to leave or actually left them (think about, for instance, Brexit or the Trump Administration’s attitude towards the World Health Organisation during the pandemic, or the International Criminal Court).

Second, the strong condemnation of this aggression by the international community provides further evidence to confirm that under both customary international law and the UN Charter unilateral humanitarian interventions (that is, the use of force for humanitarian reasons by a state, a group of states or an international organisation, such as NATO or the African Union) are not allowed.

This image has an empty alt attribute; its file name is Depositphotos_551345446_XL.jpg
Refugees near the railway station of Lviv waiting for train to Poland (Deposit Photos)

Humanitarian intervention and self defence

In the last 20 years, because of the impact of human rights on international law, some states, including the UK, have argued in favour of using force whenever there have been claims of genocide, the use of chemical weapons against civilians, or other war crimes.

Even if a member of the UN Security Council vetoes such actions, the UK believe we should use force on the grounds of humanitarian intervention.

While the rights of the Russian minorities in Ukraine have been often cited by Putin, the reaction of the International community confirms that this won’t be a legal ground to justify the invasion.

Similar considerations could be made in relation to the grounds of so-called preventive self-defence, as it has been interpreted, for instance, within the context of the War on Terror.

In the last twenty years, the US has argued that when states are unwilling or unable to prevent attacks from terrorist groups based within their territory, the use force on the ground of self-defence is allowed, even when the threat to the security of other states is not imminent.

While the legal grounds for Russian intervention have not been clearly submitted, which is possibly another reason to condemn it, among their arguments there is also the need to prevent further threats from a militarised Ukraine. They are calling on Ukraine to demilitarise and this intervention is a way of preventing future threats.

States gets back to UN Charter

However, the way the overwhelming majority of the international community has condemned the actions by Russia shows that international law does not currently provide for a such broad exception to the prohibition to use force.

Of course, these considerations might not be sufficient to put an end to this war or the crimes committed within its context. Yet, the return of international organisations and courts for states to settle international disputes and react to violations of international law is undeniably a very positive element coming out from this hideous situation.

I am also confident that this aggression might encourage all states to reaffirm the principles of the UN Charter and reject any attempts to interpret and apply the law differently (as Russia is doing) and set dangerous precedents which could defeat a system that has survived for more than 75 years.

In this respect, international courts might also play a very significant role.

Dr Giulia Pecorella is Senior Lecturer in Law in the Department of Law and Politics, and PhD Programme Leader for Law. Her most recent work – The United States of America and the Crime of Aggression, which has been published by Routledge – is available to purchase online.

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Editors Picks Law & politics Social commentary

Russian misuse of international law is final nail in coffin of post WW2 order

Dr Elvira Domínguez-Redondo, an Associate Professor of International Law, argues the global system to prevent nuclear war is no longer fit for purpose

The intensity of the global response to the Russian attack on Ukraine has been met by some with scepticism. They view it as a manifestation of Western exceptionalism when the consequences of illegal uses of force have a direct impact on their territory. However, the express Russian threat of escalating the conflict through nuclear weapons is indeed exceptional.

Since these weapons were created, their potential for mutual assured destruction has underpinned international relations  though their destructive capability has not been explicitly articulated as a threat against other States in decades (on this threat see Lewis). Beyond the weapons, the danger posed by potential attacks to nuclear plants has also taken centre stage after the Russian military attacked an administrative building linked to a nuclear power plant in Zaporizhzhia on 4 March 2022 (see Dielnet).

The distortion of arguments based on international law and the position of those making them have, in my opinion, completed the destruction of a system no longer suitable to prevent global armed conflict. This is not – or not only – an intrinsic flaw in the system’s design, but the inevitable by-product of intentional actions carried out by those who ought to have been most interested in preserving it.

Role of Rhetoric in the Russian aggression

International law has been referenced by Russia in justifying its invasion of Ukraine. Russia has advanced every possible exception to the prohibition of the use of force in different disguises including invitation, self-defence, and humanitarian intervention (Sayapin’s summary here).

The weakness of the legal claims are reflected in the general rejection they have deservedly received.[1] Still, the Russian attempt to provide legal grounds to its actions is remarkable, going as far as recognising two new ‘states’ for the purpose of presenting the invasion as a consent-based ‘peace operation’.[2] Russia also declared that sanctions used against its economy as countermeasures are akin go an act of war, reviving legal arguments that equate use of armed force to coercive means of enforcing international law. [3]

The swift engagement and prompt response of the European Court of Human Rights, the International Court of Justice and the International Criminal Court is remarkable and a revealing testimony of the centrality of international law in the means used to address the conflict [4].

Beyond repair – (another) wake up call to replace the system

The United Nations was established in 1945 with the primary objective of protecting future generations from the scourge of war. This mission relied on two pillars: stopping the use of armed force, and creating a Security Council with unique responsibility for maintaining global peace and security. Russia (then the Soviet Union), China, the United Kingdom, France and the United States have since occupied a privileged position with permanent seats and veto powers. In practice this means that outside the confines of self-defence, the use of armed force is only legal if the States most likely to provoke a third world war are in agreement. In other words, the system is based on granting extraordinary powers to a few countries that would, in exchange, act as guardians of international peace and security.

What is often referred to as ‘paralysis’ has been the cornerstone of a system designed to prevent a third world war. As I have explained elsewhere (here and here), the legitimacy of the Security Council has been irreversibly undermined by previous illegal uses of force in Kosovo, Syria and Iraq by other permanent members of the Security Council (mainly the USA and the UK, but also France). States’ attempts to address the Russia/Ukraine conflict through dispute settlement mechanisms, with an emphasis on legal arguments manifested in an exceptionally prolific use of international courts, consolidates the strength of legal rules involved in this scenario.

However, unanimous condemnations of Russia contained in emerging decisions derived from applying standard frameworks are unlikely to stop the war. This conflict will likely end at a negotiation table, potentially with a peace agreement, hopefully in the short-term, to prevent further suffering, loss of life and weapons induced accelerated planetary destruction. The strength of the rule prohibiting the use of force is likely to rise and States that have progressively broadened the scope of exceptions to legitimise their lethal enterprises may reconsider their positions. This is not the case for the system established to monitor and guarantee compliance with the rules through the United Nations Security Council.

The destruction of the pillars on which the collective security system was built in 1945 has been completed by those who benefited most from it and who were in charge of preserving its worth as an effective mechanism to prevent a global armed conflict and total annihilation.

End of the Security Council

Whatever the outcome, it is hardly conceivable that the weakened legitimacy of the Security Council can survive this final blow in neither its current nor reformed form. Those in power will seek to in articulate and enforce rules maintaining the status quo of their privileged position. Because it requires legitimacy to be acceptable to the majority away from power, law also embeds some form of public morality and fairness.

We are at a crossroad: while the prominence of the international legal order in times of crisis has been evident, it is not possible to save the system designed to prevent and/or stop a global war only by rewriting it (as suggested by Johns and Kotova). Paraphrasing Castellino, the logic leading to the obliteration of this system has highlighted how outdated its premises are. This underscores the imperative urgent need for a radically new approach to international relations, perhaps beyond the political organisation of the state and the conception of a ‘nation’ underpinning it.

“Have confidence, have certainty that the spiritual energy of the people will prevail, the non-violent spiritual energy of people against tanks, against guns, against dictatorships, against armies, against the police, will prevail.” Colin Gonsalves.

[1] Gurmendi has compiled other States’ reactions to weakness of Russia’s legal claims here

[2] For a commentary linking the current attack and annexation of Crimea, see Roscini

[3] On reviving legal arguments that equate use of armed force to coercive means of enforcing international law see Mulder in his book Economic Weapon, Yale University Press, March 2022)

[4] Pecorella summarises the role of international law here; for the ICC prosecutions see Coleman, and Wheeler; as well as Schabas  comments on genocide and war crimes)

For a list of recent short commentaries on international law implications related to the Russian invasion of Ukraine, see Odermatt here.

Photo by Ahmed Zalabany on Unsplash

Categories
Law & politics Social commentary

Burqa bans and gender (in) equality

Dr Erica HowardErica Howard is the author of a report for the European Commission on ‘Religious clothing and symbols in employment’ and a book on ‘Law and the wearing of religious symbols’ as well as a number of articles on this subject. Here, Erica shares her views on the recent banning of clothing which covers the face in public spaces by the Danish parliament.

Last week, the Danish parliament voted for a ban on covering the face in public. The ban will come into force on 1 August. Denmark follows France, Belgium, Austria and Bulgaria, which all have enacted legal bans on the wearing of face-covering clothing in public places (Religious clothing and symbols in employment). Such bans also exist at local level in some European States. Like in these other countries, the Danish ban is couched in neutral terms and prohibits the wearing of all clothing that covers the face in public spaces, but the bans are usually referred to colloquially as ‘burqa bans’, which indicates the real target of such bans: women who wear burqas – a long loose robe that covers the female from head to toe with the exception of the hands with gauze covering for the eyes – or niqabs – a veil that covers the head and face with the exception of the eyes. Although these bans are often referred to as ‘burqa bans’, very few women in Europe actually wear a burqa; the vast majority of women wearing face-covering veils in Europe wear the niqab or similar type veils.  The Independent reported on the Danish law with the headline: ‘Denmark becomes latest European country to ban burqas and niqabs’, again showing the real target of the ban.

So there are now 5 EU countries that ban face-covering clothing in all public places. This is so, despite the fact that the number of women in Europe who wear the niqab or burqa is very small. A  Danish research report from 2013, estimated that about 150 women in Denmark wore the niqab, half of which were ethnic Danish converts to Islam. This corresponds to about 0.1 or 0.2 percent of Muslim women in Denmark. These figures tally with current rough estimates of face veil wearing women in other European countries.

Image by Aslan Media (CC2.0)

Secular and democratic values

The reasons given for enacting the ban are the upholding of Danish secular and democratic values.  Supporters of the ban have also raised the issue that the veil is a form of female oppression as will be clear from the Independent and other press reports (see e.g. here and here) on the Danish ban. This is the argument I discuss in this blog post. The argument is based on the assertion that women wear burqas and niqabs because they are made to do so by men, be it spouses, family or religious leaders. These veils are thus seen as going against a woman’s fundamental rights and freedoms. The same argument has been put forward for bans on Muslim headscarves.

However, this is based on a very stereotypical view of Muslim women who are seen as the victim of a gender oppressive religion, who need to be rescued from this oppression and who need to be emancipated. Research in five European countries – Belgium, Denmark, France, the Netherlands, and the UK – showed that many of the face veil wearing women interviewed in the research emphasized that they wore the face veil of their own autonomous personal choice, often in spite of disapproval of parents or other close relatives (E. Brems (ed.) The Experience of Face Veil Wearers in Europe and the Law, Cambridge University Press, 2014).

There are many reasons why women wear face veils and the research did not deny that some women are indeed pressured to do so. But, would the fact that some women are under pressure, even if it is a small number, be a sufficient reason for a ban? I would argue that, whatever the number that is under pressure, it is not sufficient to justify a ban. Bans are not only unnecessary, but they are also counterproductive in achieving emancipation for women who are under pressure to wear the face-covering veil. Bans could very well lead to these women not being allowed to go out of the house at all and thus not being permitted to go to school, university or work. Rather than hindering their emancipation, allowing this group of women to wear face veils would promote their emancipation because it might well be the only way they can go outside the home to study and work. Banning the wearing of face veils in public places would also lead to the exclusion of these women from society and would thus punish the victims. Allowing face veils would thus give this group of women a chance to gain equality through work and education.

Paternalism or free choice?

There are two more problems with using gender equality as a reason for banning face veils. First of all, this is based on the view that Islam is a paternalistic religion where men determine what women should wear. But the accusation of paternalism can just as well be levelled at the people using the gender equality argument to support bans and at the state for enacting such bans: banning women from wearing face veils is just as paternalistic because it is another form of prescribing what women should or should not wear. Both sides here ignore a woman’s fundamental human right to autonomy and free choice.

The second problem with using the gender equality argument to support bans on face-covering clothing in public spaces is that the European Court of Human Rights has rejected this argument in a case challenging the face-covering clothing ban in France. In S.A.S. v France, the Court held that a state cannot invoke this argument in order to ban a practice that is defended by women such as the applicant in this case (paragraph 119).

Despite this rejection, the gender equality argument for enacting bans keeps cropping up in debates in many European countries about whether such bans are necessary, as it did in the Danish debates, and the stereotype of the Muslim woman as oppressed persists.

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Law & politics

3 steps to save the European Court of Human Rights

European Court of Human Rights - Strasbourg, France. An international court established by the European Convention on Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols.

On 15 December 2017, Judge Paulo Pinto de Albuquerque spoke to students and staff at Middlesex University about reforming the European Court of Human Rights. Alice Donald and Philip Leach (Middlesex University School of Law) summarise and discuss his principal points.

Judge Pinto de Albuquerque was elected as a judge at the European Court of Human Rights in 2011. Prior to his election, he served as a judge on several different courts in Portugal between 1992 and 2004. Since 2015, he has been Professor Catedrático of Criminal Law at the Law Faculty of the Catholic University of Lisbon.

In his presentation, and in the Q&A which followed, Judge Pinto de Albuquerque discussed a number of the critiques which have been made of the Court by politicians and commentators, who have challenged it for allegedly exceeding its mandate and interfering unjustifiably in domestic democratic decision-making. He described these critiques as based on false premises, while observing that they had brought the Court to ‘rock bottom’.

European Court of Human Rights – Strasbourg, France.

Judge Pinto de Albuquerque also highlighted the legal uncertainty and abdication of judicial power which in his view has been the result of the trend in the Court’s case law, when it is considering whether a national law violates human rights, to assess the process by which the law was made rather than the substance and impact of the law – and to defer to some national authorities more than others. Judge Pinto de Albuquerque ventured that by engaging in procedural rather than substantive review of the human rights compatibility of national laws, the Court risks creating ‘47 different ways of applying the Convention’, with the consequence that the 47 states of the Council of Europe could end up with highly variable standards of human rights protection. He argued that this puts at risk the basic aspiration to equality before the law, as well as promoting a retrogressive agenda, especially in the field of economic and social rights, regarding the protection of minorities, migrants and the dispossessed in general.

This debate aside, Judge Pinto de Albuquerque made a robust and formidable defence of the Court. Having explained why he considers the Court to be an absolutely essential element in the protection of human rights across Europe, he went on to set out a series of specific reforms – by way of ‘three steps’. He emphasised that his proposals should be viewed in the light of his robust case in support of the critical work which the Court continues to do. This blog concentrates on his specific reform proposals; readers are referred to the relevant Articles of the Convention and Rules of Court.

The three steps advocated by Judge Pinto de Albuquerque were built around the principles of independence, transparency and accountability. Applying these principles, the Judge posited a series of specific recommendations for reform, which are outlined below.

Independence

Judge Pinto de Albuquerque argued that the following steps should be taken in order to strengthen the independence of the Court:

  • the rotation of the presidency of the Sections of the Court, as in many Constitutional and Supreme Courts (the Court’s 47 judges being divided into five Sections);
  • the adoption of a ‘rule of silence’: that cases should only be discussed by the judges in the court room, and not externally (see Article 21(3) ECHR and Rules 4, 22(1) and 28(2) of the Rules of Court);
  • judges should be ineligible to apply for posts within the Registry (which provides legal and administrative support to the Court) for a period of five years after their mandate has ended; an equivalent rule should apply to Registry staff as regards applying for judicial posts at the European Court; and
  • judges should also be ineligible to apply for certain state positions for a period of five years after their mandate has ended; an equivalent rule should apply to the holders of those state positions as regards applying for judicial posts at the European Court.

Transparency

Judge Pinto de Albuquerque argued that these reforms should be introduced, so as to improve institutional and substantive transparency:

Institutional transparency

  • judge rapporteurs (who are assigned – anonymously – to preside over the processing of each case) should be publicly named, and their appointment should be based on objective, publically available criteria and procedure (see Rules 48-50 of the Rules of Court);
  • identify the judges who form the majority and minority in inadmissibility decisions (that is, decisions as to whether applicants meet the Court’s conditions of admissibility so that the merits of their case can proceed to be examined);
  • determine the composition of each Chamber (see Article 25(b) ECHR and Rules 25(3) and 26 of the Rules of Court) and each Grand Chamber (see Articles 26(4) & 26(5) ECHR and Rule 24(e) of the Rules of Court) in accordance with objective, publically available criteria and procedure.

Substantive transparency

  • provide sufficient (and non-formulaic) reasoning for single judge decisions on inadmissibility and for decisions of the Grand Chamber panels to reject a request for a case to be reheard by the Grand Chamber and publish these decisions with their reasoning (under Article 43(2) ECHR, cases are referred to the Grand Chamber when they raise a serious question affecting the interpretation or application of the Convention or a serious issue of general importance);
  • allow for separate opinions in inadmissibility decisions;
  • make public all the sources of information relied on by the Court, including that provided by the Jurisconsult (a member of the Registry who advises the Court so as to ensure the quality and consistency of its case law), international and comparative law reports of the Research Division and third party interventions (submissions made by states or organisations that are not party to a case in order to assist the Court in its adjudication) (see Article 36 ECHR and Rule 44 of the Rules of Court). The Court’s default position is that all documents submitted to the Court are public (see Rule 33 of the Rules of Court); however, that is quite different from making documents such as third party interventions available on the Court’s website.

Accountability

The accountability of the Court should be developed by making the following changes:

  • judges should have input into recruitment and career progression decisions within the Court Registry (including a right of veto) (see Article 25(e) ECHR);
  • the election of judges should involve an intensive public vetting process, without the involvement of the ‘home state’ (for the website of the Committee on the Election of Judges to the European Court of Human Rights, see here);
  • there should be full publicity about the ‘off-the-bench’ engagements of judges (including details about travel sponsored by the member states);
  • prior to the adoption of the Council of Europe’s budget each year, a detailed annual report should be presented by the Court to the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, with information on past results and future, expected results;
  • a ‘situation room’ should be established within the Court to provide internal supervision of the development and follow up to inter-state and pilot judgments (a procedure developed by the Court to respond to structural or systemic violations of the Convention which give rise to multiple applications; see Rule 61 of the Rules of Court) and ‘quasi-pilot judgments’ (in which the Court stipulates individual and/or general measures to remedy structural or systemic violations without invoking the formal pilot judgment procedure). This body would enable the Court to assess the development of these cases and impact of such judgments.
  • the member states should be given more input into the adoption of the Rules of Court.

Comment

We are extremely grateful to Judge Pinto de Albuquerque for putting forward such an interesting series of very specific proposals for reform, which has provided much food for thought.

Some of the Judge’s proposals arise in essence from the internal workings of the Court (such as the need to avoid ‘voting blocs’) on which it is rather difficult to comment. Other suggestions, such as the need for a judicial ‘rule of silence’ seem eminently sensible, if they are required.

Long gone are the days when it was quite common for states to put forward former government agents (who represent the state before the Court) for election as judges; however, former state officials of one sort or another are still often put up for election, and we are also aware of the disquiet which has, on rare occasions, been caused by the movement (or the prospect of movement) of individuals from the Registry to the Bench, and vice versa – so a five year ‘restrictive covenant’ could indeed address any risk of perceived lack of independence.

Of the transparency proposals, the stand-out idea is to allow separate judicial opinions in decisions on inadmissibility. No doubt, this would be rarely invoked in practice, but it is suggested that for exceptional cases where critical, new or difficult points of admissibility are being decided, this would be a significant, positive reform which could enhance our understanding of the incremental development of the case-law relating to the admissibility criteria.

In some instances, the Strasbourg judicial election process continues to prove problematic, with lists of judges from certain states being repeatedly rejected – this was the subject of recent scrutiny by the Open Society Justice Initiative and the International Commission of Jurists. The primary problems remain the lack of independence and transparency of the state selection processes; so, Judge Pinto de Albuquerque’s advocacy of limiting the influence of the ‘home state’ is understandable.

Finally, we note the proposal to establish a separate unit within the Court enabling it to track the implementation of pilot judgments and quasi-pilot judgments which focus on structural and systemic human rights violations. This could be an important initiative in assisting the Court in its assessment of the follow up to such cases – especially, for example, in analysing the adequacy (or otherwise) of newly established domestic procedures of redress, created in response to an earlier Strasbourg decision (in this connection see, especially, the recent judgment in Burmych and Others v Ukraine). The potential creation of such a unit would be a logical extension of the Court’s increasing engagement with the implementation of its own judgments and interaction with the Department for the Execution of ECtHR Judgments under the Committee of Ministers, the inter-governmental arm of the Council of Europe, which is formally tasked with monitoring the implementation of judgments. Careful coordination would be required, however, to ensure that any unit established within the Court did not duplicate the work of the Execution Department.

These are our initial thoughts on the interesting range of proposals put forward by Judge Pinto de Albuquerque – please contribute to the debate by commenting below. (And read a parallel debate about reform of the Court of Justice of the European Union here)

Dr Alice Donald and Professor Philip Leach are currently carrying out research on the implementation of human rights judgments, as part of the ESRC-funded Human Rights Law Implementation Project.

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Law & politics

The (not so) Great Repeal Bill

The Great Repeal Bill is intended to convert all existing EU law into UK law. The aim is to provide legal certainty after Brexit Day and to enable the government to repeal aspects of EU law afterwards. However, Dr Joelle Grogan, Lecturer in EU law and Sticky Tricky Law founder, argues the proposed Brexit Day division will still create a great deal of legal ambiguity.

The outcome of the General Election will dictate the type of Brexit that the UK will aim to negotiate with the EU. It will also determine how the UK legal system will be reformed to reflect UK withdrawal. This will have consequences far beyond Brexit Day and the deal (or no deal) negotiated with the EU.

The Conservatives have outlined the process of legal separation and reform which will follow from ‘Brexit Day’ when the UK ceases to be a Member of the European Union in the Great Repeal Bill White Paper. Ostensibly aiming to balance the need for legal certainty with political expediency, the Great Repeal Bill proposes (1) to repeal only the European Communities Act 1972; (2) to convert EU law ‘as it stands at the moment of exit’; and (3) to create powers for Government to make secondary legislation which will ‘enable corrections to be made to the laws that would otherwise no longer operate’. [1.24]

The White Paper briefly outlines some considerations for the devolved legislatures and overseas territories, though does not address substantial issues arising from their distinct legal and constitutional structures, EU citizens’ rights, or borders with EU Member States (these last two issues are to dealt with by the Withdrawal Agreement with the EU).

In Part One of this post, I focus on the repeal and conversion of EU law, and show how the White Paper proposals create more issues for legal certainty than they resolve. In Part Two, I look at the delegated powers.

Schrodinger’s cat. Image: Jie Qi via a CC BY 2.0 licence

1. Repeal

The ‘Great Repeat Bill’ is a misnomer, as it will not repeal all EU law in the UK. In fact, the only element of repeal in the Great Repeal Bill will be the repeal of the European Communities Act 1972 [ECA 1972]. The ECA 1972 is the UK act which gives effect and supremacy to EU law in the UK, and underlies a significant corpus of law in the UK by incorporating the acquis of EU membership, notably the EU Treaties and the EU Charter of Fundamental Rights, into UK law. Two immediate issues to highlight are the uncertainty with regard to the status of EU law in the UK, and the impact on fundamental rights protections in the UK as a result of the Great Repeal Bill proposals.

Schrodinger’s supremacy: The status of EU treaties and EU law post-Brexit

The doctrine of supremacy means that in the event of conflict between EU law and national law in a situation which is governed by EU law, the EU law must be applied and national law must be set aside (please note, this does not mean strike down – the national law will apply where EU law does not). The doctrine aims to guarantee uniformity in the application of law throughout the EU: Member States cannot pick and choose which EU laws to apply and which to ignore, and so a ‘level playing field’ in the single market is assured.

The White Paper states (in bold) that the ‘Great Repeal Bill will end the supremacy of EU law’ in the UK. [2.19] However, in the next sentence it acknowledges that, in the event of conflict, converted EU law will continue to take precedence over pre-Brexit national law – i.e. the supremacy of EU law remains. Similarly, while the content of the EU Treaties will be ‘irrelevant’ post-Brexit [2.9], provisions of the EU Treaties may still serve to assist in the interpretation of converted EU law by the UK courts. [2.10] EU Treaties and converted EU law will therefore exist in a strange state of both having and not having supremacy over pre-Brexit law. It would be left to the observation of the Courts as to when the precedence of converted law does (or does not) exist.

The UK’s ‘leading role in advancing human rights’: removing the EU Charter of Fundamental Rights

The EU Charter of Fundamental Rights codifies fundamental rights, including ‘first-generation’ rights of life, liberty and the prohibition on torture and the death penalty, as well as ‘third-generation’ rights such as the protection of personal data. The EU Charter can be relied upon in national proceedings when the subject-matter of the litigation falls within the scope of EU law. As the Charter has equal legal status to the Treaties, a violation of a right protected by the EU Charter requires the disapplication of the violating national law or practice. The repeal of the ECA 1972 aims to end the effect of the Charter of Fundamental Rights in the UK and to remove the oversight of the Court of Justice of the EU in the areas of law which fall within the scope EU law, including Charter rights.

The White Paper declares that the EU Charter should not be used to ‘bring challenges against the Government, or [to strike down] UK legislation’ [2.23], and so the Charter and the rights codified within it will not be converted into UK law. Strangely, the White Paper then asserts that this will not undermine ‘substantive rights’ which otherwise have existed and exist elsewhere in EU law, and thus will be converted into UK law. The White Paper references these as ‘underlying rights’ which will be relevant to the interpretation by the UK Courts, even when interpreting references to the Charter in converted case law. [2.25] The confusion of what constitutes an ‘underlying right’ when we have to ignore the codified account of them creates significant legal uncertainty, and undermines codified rights (ie data protection in the age of information) which do not exist at common law or in other rights instruments.

Even where the aim is to remove the rights and protections guaranteed by the EU Charter, the White Paper argues that Brexit will not change the UK’s ‘leading role in protecting and advancing human rights’ [2.21] as the Charter is only ‘one element in the UK’s human rights architecture’. [2.22] It identifies the European Convention on Human Rights [ECHR] and mentions (without identification) UN and international treaties as part of this architecture. [2.22]

The distinction between the normative clout of the ECHR and the EU Charter is striking. The ECHR is operative in the UK through the Human Rights Act 1998. Under the 1998 Act, where a law violates an ECHR right to such a degree that it is not possible for the Courts to interpret the law in a way which does not violate that right, the most serious consequence is the issuing of a declaration of incompatibility. Such a declaration is a signal to Parliament that it should consider amending the legislation to take account of violated right. I am unaware of any UN or international rights instrument which has been incorporated into UK law, or can result in substantive remedies. Both the ECHR protections and international conventions starkly contrast with the protection afforded by the EU Charter of Fundamental Rights. Where a law violates a right falling within the scope of the EU Charter, that law must be set aside.

The EU Charter will not be converted, uncertainty of ‘underlying rights’ introduced, and any substantive protections will be removed or weakened. What this leads to is the question of exactly what sort of ‘leading’ role in human rights is envisioned by the authors of the Great Repeal Bill.

2. Conversion

It is not possible to repeal the ECA 1972 without undermining large areas of the law, and creating an unstable situation whereby the rules under which individuals and businesses are operating have no legal basis. The resolution proposed is the complete conversion of EU law into UK law on Brexit Day. This is aimed to guarantee a degree of legal certainty, and allow time for the reform of the law in the months and years (perhaps decades) which will follow.

The task of conversion is complicated by the diversity of EU law norms within the UK legal system: some primary acts are directly based on EU obligations (ie Equality Act 2010), while others are sourced in directly effective EU law, or in secondary legislation. Similarly, the acquis of EU law, including the jurisprudence of the Court of Justice of the EU (CJEU) has formed part of the way in which domestic law has been interpreted. EU law directly relates to areas of UK law as diverse as competition, agriculture, trade, energy, and telecommunications. To give examples from the last week of the wide scope of EU law, compensation to passengers for the cancelled British Airways flights, and the end of roaming charges are based on EU law.  While there will be many issues critically raised by complete conversion, I highlight two broad issues here: the fossilisation of EU law, and the weakening of protection for workers, consumers and the environment.

Set in stone (and fossilised): case law of the Court of Justice of the European Union

Understanding that CJEU judgments form a significant part of UK law as regards the interpretation of EU law, the White Paper proposes that ‘historic’ CJEU case law will be given the same status as binding precedent in UK courts as decisions of the UK Supreme Court. The Great Repeal Bill will not provide any future role for the CJEU in the interpretation of converted law, nor require domestic courts to consider its jurisprudence. [2.13] In essence, this will mean that case law decided after Brexit Day will have no recognised status in the UK. Leaving to one side the kind of pressure that will now be placed on the Courts by practitioners to either expedite proceedings or delay them indefinitely, the Brexit Day division raises as many issues from the perspective of legal certainty as it designs to resolve.

Judgments of the CJEU are relevant where they aim to guarantee uniformity in the application of law throughout the EU: Member States cannot pick and choose which interpretation of a law they would prefer. Fossilising the case law on Brexit Day would leave UK law based on EU norms static and of limited use in cross border matters where the law in the EU-27 is subsequently changed or repealed by the EU legislator, or reformed and clarified in a subsequent case by the CJEU.

For expedience and practicality, it may be good practice for legal practitioners to continue to argue post-Brexit Day CJEU case law as persuasive precedent in cases involving concomitant converted law to minimise divergence. This would, however, only apply in cases where there is no prior judgment in a UK court or where the Parliament has legislated in the area. The Great Repeal Bill leaves no place for the CJEU post-Brexit, but this will be a key issue for the negotiation as the EU will aim to guarantee the uniformity of application of its law and guarantee the rights of its citizens.

Rights, right here, right now: workers’ rights, environmental and consumer protection

The White Paper recognises that a significant source of rights in the UK has been the EU Treaties, and recognises worker and consumer rights as well as environmental protection. [2.17] It underlines that in many areas, UK employment law sets higher than minimum standards, and reasserts a commitment to continuity of these rights – for example, stating that the Equality Act 2006 and Equality Act 2010 will continue to apply though they are based on EU obligations. [2.17] From the perspective of environmental protection and consumer rights, the White Paper emphasises continuity of the established frameworks and rules.

The important element is to highlight that a guarantee of continuity of existing rules is not the same as entrenching these rights. Currently, membership of the EU demands certain minimum standards of protection in these areas, and this requirement will end on Brexit Day. The right to complain to the Commission for a violation of these standards, or for the Commission to bring proceedings in the Court of Justice for a violation of environmental, consumer or workers’ rights will end. Consumer, worker and environmental rights will become (as they have already) a political, rather than legal, issue. They would continue post-Brexit, unless it became politically expedient for them (for example, for trade deals) not to.

Only uncertainty is certain

The White Paper for the Great Repeal Bill sets out the Conservatives’ proposals for the process of separation, reform and revision which will follow Brexit. The repeal of the ECA 1972 and the conversion of EU norms into UK law on Brexit Day aimed to deliver both the legal separation of UK law from the EU but also a degree of legal certainty. In effect, it compromises both and achieves neither. This is not even, however, the most concerning part of the Great Repeal Bill White Paper. In Part Two I consider how Government intends to quickly ‘correct’ EU-derived primary and secondary law through delegating power to Government to change the law with little scrutiny or constraint – a Henry VIII power of unprecedented scale and scope.

This article originally appeared on LSE’s Brexit Blog

Categories
Law & politics

Human rights: tackling non-implementation

European Court of Human Rights James Russell Flickr, creative commons 2.0
European Court of Human Rights (Image: James Russell CC2.0)

Alice Donald Middlesex UniversitySenior Lecturer Dr Alice Donald, co-investigator in the Human Rights Law Implementation project, explores the difficulties of implementing judgments of the European Court of Human Rights.

Slow, partial or sometimes even non-implementation of judgments of the European Court of Human Rights is the Achilles heel of the European Convention system. The latest annual report of the Council of Europe’s Committee of Ministers attests to some positive trends — a record number of cases closed in a single year and a decrease in the number of pending cases revealing systemic or structural problems — yet still 9,944 judgments remain unimplemented. While this is the first time since 2010 that the figure has dipped below 10,000, it remains a substantial caseload for the Committee of Ministers, the body formally tasked with monitoring implementation.

How, then, to tackle the problem? A thought-provoking contribution to this debate has been made by Kanstantsin Dzehtsiarou and Fiona de Londras in their article, ‘Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights’.

Infringement proceedings under Article 46(4) of the Convention were introduced by Protocol No. 14 to the Convention in order to provide a means of increasing pressure on obstructive states short of the extreme sanction of suspension or expulsion. This — as yet unused — mechanism empowers the Committee of Ministers to refer a state back before the Court if it refuses to implement a judgment.

Dzehtsiarou and de Londras argue that invoking Article 46(4) would be ‘futile and counterproductive’ because, among other reasons, it risks overburdening the Court (specifically its Grand Chamber, which would consider any referrals) and further delaying implementation while proceedings are pending. Moreover, they venture, infringement proceedings would do nothing to address the root causes of non-execution and could provoke a backlash by impugned states, potentially damaging both the effectiveness and legitimacy of the Convention system.

Image: European Court of Human Rights James Russell Flickr, creative commons 2.0

Root causes

The causes of non-execution are identified as falling into two categories: ‘principled’ and ‘dilatory’ non-execution. ‘Principled’ non-execution, the authors suggest, occurs (rarely) when states resist execution because of ‘deep-seated politico-philosophical disagreements with the Court’s interpretation of a particular provision, or with the concept of international supervision per se’. The UK’s protracted resistance to implementing judgments requiring reform of the blanket ban on the right of convicted prisoners to vote is presented as a paradigmatic example of principled non-execution.

‘Dilatory’ non-execution, on the other hand, covers a much broader category of cases in which there is no dispute as to principle but rather ‘problematic attitudinal and/or organisational resistance’ to implementation and failure to organise the organs of the state in an ‘effective, accountable, and rights-respecting way’. Azerbaijan is identified as a quintessentially dilatory state. This category is, I submit, overly broad to have explanatory force since it includes a spectrum of cases from wilful and persistent failure (or refusal) to implement through to slow or partial implementation which may be attributable to a state’s lack of capacity or resources and/or the sheer complexity of the measures required. The term dilatory implies a more casual approach to implementation than warranted by the outright obstructiveness and manipulation of the Strasbourg system evinced by the Azerbaijani authorities in case after case.

I wish in particular, however, to take issue with the notion of ‘principled’ non-execution identified by Dzehtsiarou and de Londras — and to suggest that the questionable nature of both categories means that their caution about the potential use of infringement proceedings is overstated.

‘Principled’ non-execution – wrong in principle

The authors acknowledge that the mere fact that non-execution emanates from principle (as they see it) ‘does not rid it of its deeply problematic nature’. I would go further and argue, first, that the concept of principled non-execution is unhelpful as an explanatory category and, secondly, that it risks dignifying behaviour which is severely and insouciantly corrosive of respect for the Convention system.

On the first point, Dzehtsiarou and de Londras appear to overlook the emerging consensus in empirically-informed academic debate which argues that states are not unitary actors when it comes to the implementation of international human rights norms. To be sure, executives are the principal interlocutors of supranational human rights bodies. Yet research informed by the disciplines of international law, international relations and political science (for example, here and here) reveals that states are, in reality, collections of actors which, through their relative strengths and interactions, both collaborative and competitive, determine whether, and to what extent, implementation occurs. If we wish to understand the causes of slow, partial or non-implementation, this insight is crucial — and points to the conclusion that states, as such, are incapable of reaching a stable, ‘principled’ view of whether a judgment is unreasonable to the extent that it should not be implemented.

To take prisoner voting as an example, while a backbench parliamentary vote defied the Strasbourg judgments, and successive UK governments have failed (without definitively refusing) to implement them, the majority report of the cross-party parliamentary committee formed to scrutinise draft legislative proposals advocated implementation — and proposed a specific remedy. The Joint Committee on Human Rights has also repeatedly called for implementation (as far back as 2006 (paras 1.40–1.42) and as recently as 2015 (paras 3.15-3.26)). Organisations including Her Majesty’s Inspectorate of Prisons, the Prison Governors’ Association, the crime reduction charity Nacro and a range of other civil society and faith groups have called for at least some convicted prisoners to be enfranchised in keeping with the judgments.

In such instances, in which the domestic forces ranged against implementation have thus far prevailed over pro-implementation actors — but are not monolithic — can the protracted failure to implement be labelled as ‘principled’, as opposed to simply the outcome of political bargaining at a particular point in time? Let us not forget the many judgments in the Court’s history that provoked controversy at the time, even though the principles they enshrined later gained wide acceptance (such as those challenging the criminalisation of homosexual acts and inhuman and degrading interrogation techniques in Northern Ireland).

Moreover, how — within a system of 47 states at uneven levels of democratic development — are we to distinguish behaviour which is truly ‘principled’ from that which is opportunistic? Are only certain states capable of acting on principle, and if so, which ones? The authors appear to acknowledge the difficulties implied by these questions when they observe that the law which permits Russia’s Constitutional Court to declare rulings from international human rights bodies impossible to implement in Russia due to their incompatibility with the Constitution is intended to ‘provide the appearance of a principled non-execution’ (my emphasis).

Parochialism

On the second point, the dictionary definition of the term ‘principled’ is ‘acting in accordance with morality and showing recognition of right and wrong’. Thus, it is incapable of having a pejorative meaning. To be clear, Dzehtsiarou and de Londras do not advocate non-execution on the basis of principled disagreement. Yet the mere use of this term inescapably lends such behaviour legitimacy, even if it is acknowledged to have negative consequences for other states and for the Convention system (as the UK’s stance on prisoner voting undoubtedly has).

Unsurprisingly, when the notion of principled non-execution surfaced in the context of inter-governmental discussion about reform of the Convention system, it was comprehensively rejected since it would ‘involve problems of incompatibility with the principle of the rule of law’ (see here, para 42). This reminds us of the damage done by parochially developed notions of ‘principled’ resistance when transposed to the international level. Defiance of the Court’s adjudicatory authority ignores the collective value of Convention standards, enriched by the Court’s case law, which binds states to a body of law reflecting common European standards. There is a consequent obligation on states to constrain their own power in the interests of strengthening the system overall, since the legitimacy of domestic political institutions, severally and collectively, depends upon that outcome.

Infringement proceedings – misplaced caution?

To return to the issue of infringement proceedings, the practical difficulty and potential consequences of using the mechanism do, indeed, require careful consideration. Yet the hesitancy of Dzehtsiarou and de Londras is at odds with calls for the mechanism to be used — and made easier to use — by non-government organisations (see here, here and here), judges of the Court (see here, p. 148) and the Parliamentary Assembly of the Council of Europe (see here, para 49; and here, para 1.1).

The Committee of Ministers has for the first time raised the possibility of invoking Article 46(4) in respect of Azerbaijan’s protracted refusal to release opposition leader Ilgar Mammadov who has served four years of a seven year sentence following his politically-motivated prosecution for criticising corrupt officials. The Director of the Human Rights Directorate of the Council of Europe has lent his weight to the idea, while the Council of Europe’s Commissioner for Human Rights, Nils Muižnieks, stated at the recent launch of the European Implementation Network that using the infringement procedure would ‘send a very strong signal that Azerbaijan is beyond the pale’, adding that he was ‘pleased that the temperature at the Committee of Ministers is rising’ on the Mammadov case. It is indeed hard to imagine a more egregious — as opposed to merely dilatory — instance of refusal to comply for which Article 46(4) was designed.

Certainly, the mechanism is no panacea for the problem of non-implementation, since it is intended for use only in ‘exceptional circumstances’ (para. 100). Other solutions must be found, such as greater transparency and accessibility to civil society at the Committee of Ministers and the creation of an independent expert advisory group to support its work (as argued here).

Yet the efficacy of the infringement procedure can scarcely be assessed unless and until it is used. Moreover, the risk of provoking accusations of illegitimacy is surely mitigated by the fact that the 47 Council of Europe member states themselves introduced this weapon into the Committee of Minsters’ armoury (see here, para. 98), recognising the collective duty on states to ‘preserve the Court’s authority — and thus the Convention system’s credibility and effectiveness’ in cases where a state, expressly or through its conduct, refuses to comply with a judgment of the Court.

This article was originally published on EJIL: Talk!

Categories
Law & politics

The Great Repeal Bill explained in Post-its

Photo by JogiBaer2 (CC BY 2.0)
Photo by JogiBaer2 (CC BY 2.0)

Joelle GroganBritain’s decision to exit the European Union will result in many changes to the way our legal system works. The Great Repeal Bill will remove the power of the European Court of Justice in the UK but the government has to tread very carefully so as not to leave gaps or ambiguities in the law. Lecturer in EU law and Sticky Tricky Law founder Dr Joelle Grogan and her colleague Georgia Price explain the Great Repeal Bill in Post-its.

Categories
Law & politics

A milestone General Election?

Polling Station - Photo by secretlondon123 (CC BY-SA 2.0)
Polling Station - Photo by secretlondon123 (CC BY-SA 2.0)

Tim Evans, Professor of Business and Political Economy, shares his thoughts on the surprise General Election announcement by Prime Minister Theresa May yesterday.

So, Prime Minister Theresa May has called for a snap General Election on Thursday 8 June 2017. While the Prime Minister required the support of two-thirds of MPs to go to the country, there was never any serious doubt that she would receive the overwhelming support of the House of Commons for such a dramatic step in a nation’s democratic life.

Reportedly leading in the opinion polls by 15-20 percent, Theresa May and the Conservatives clearly believe that they can not only win a substantial majority in the House of Commons but that in reaffirming their mandate they can also strengthen greatly their negotiating hand with Brussels over Brexit.

Ultimately, the Prime Minister has invoked the mantle of ‘unity at Westminster’ in an attempt to move beyond a fragile working majority of just 17 in the House of Commons.

Polling Station (Image: secretlondon123 (CC BY-SA 2.0))

Riding high

Riding high in national opinion polls and polling ahead of the opposition on almost every area of substantive policy, the Conservatives are not only out to win a dramatically increased majority in the House of Commons but they also want to lay to rest an issue that has divided them – and many others in the country – for nearly half a century: the UK’s constitutional relationship with much of continental Europe.

While Labour remains ahead of the Conservatives on the NHS and social care, many in and around the Labour Party worry as to how Jeremy Corbyn’s brand of hard left ‘democratic socialism’ will go down with the electorate. Some commentators believe it will not take much for Labour, vying with a staunchly pro-EU Liberal-Democrat party, or in many heartlands a staunchly anti-EU UKIP, to lose anything up to 30 or 40 seats.

Everything to play for

Whatever the outcome, and at this stage no one can be sure, it is likely that a few on the hard left of the Labour Party will remain relaxed about the result however bad it may be. For them, changing the party’s rules, constitution and make up demands a much longer-term process. Perhaps with a revolutionary eye cast on the 2030s or beyond some in their ranks will be happy to see a number of ‘right wing Labour’ MPs leave Parliament at this election in the hope that a new cadre of hard-line socialists will follow on and eventually chime with the electorate.

Whatever the case, the longer-term direction and boundary of discourse surrounding UK politics has rarely appeared to be less predictable or more fluid.

If, on the other hand, the strongly Europhile and revitalised Liberal-Democrats do well and Labour and UKIP continue to decline then maybe this election will go down in history for having heralded a fundamental realignment of British politics away from the Tory versus Labour discourse beloved of the 20th century, back towards an older Tory versus Liberal discourse rooted in the 19th.

Whatever the case, the longer-term direction and boundary of discourse surrounding UK politics has rarely appeared to be less predictable or more fluid. Whilst most members and devotees of the established major parties will no doubt console themselves that there is ‘everything to play for’ and ‘six weeks is a long time in politics’, even if the Conservatives do win the election with an enhanced majority, the longer-term direction of discourse, policy and ideas looks far from settled.

As is the case in many other countries around the world, how the coming 4th industrial revolution makes its mark on our political economy and how this is mediated in the electoral sphere of politics, will not only be the stuff of this election but no doubt many more to come over the years and decades ahead. It is in this sense, as an inflection and punctuation point, that this election is important. For it stands as a potential milestone between the politics of the 20th century and something fundamentally different and renewed.

Categories
Law & politics

Brexit negotiations explained in Post-its

Photo by JogiBaer2 (CC BY 2.0)
Photo by JogiBaer2 (CC BY 2.0)

This week Theresa May triggered Article 50 and the process for the UK to begin leaving the European Union.

With the help of Post-its, lecturer in EU law and Sticky Tricky Law founder Dr Joelle Grogan and her colleague Georgia Price explain what the next two years of negotiations will aim to achieve.

Article 50 negotiations - Sticky Tricky Law