Blc obiter dicta edition 7

JANUARY 2013 7th EDITION

BLC News

1

CEE National Issues

4

UK Legal Issues

18

EU Perspectives

40

International Perspectives

56

CEEMC

67

Subscribers’ contributions

73

Letter from the Editors Dear readers, Obiter Dicta has firmly established itself in the inboxes of the vast network of alumni and friends of the British Law Centre. We hope our readers find the

newsletter insightful, interesting and fun; a veritable bi-annual hobby! This edition we have brought you insights into Polish property law, Bulgarian sex offences,

UK copyright, Polish gay rights, Royal prerogatives, secret courts and much more!

As the snow melts and the Spring kindles, find the time for a coffee and a good read!

THE BLC’S 20TH ANNIVERSARY AN EVENING OF REUNIONS AND CELEBRATION The grand ballroom at the Marriott hotel was the setting for the reunion of more than 200 BLC alumni, students, tutors and colleagues who gathered together to celebrate the 20th anniversary of the British Law Centre.

This celebratory social event was preceded by an academic conference hosted by the University of Warsaw, which not only brought together academics and alumni from throughout the BLC centres in the CEE region, but also identified a number of absorbing themes and challenges which will surely continue to remain pertinent in the current political and economic environment. Presentations covered wide ranging themes including comparative law and international commercial litigation, corporate and commercial law and EU employment and constitutional law. All was

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efficiently and charmingly presided over by the Lord Robert Carnwath, who is both a member of the UK Supreme Court and the Chairman of the members of the managing charity of the BLC (Juris Angliae Scientia Ltd (JAS)). Saturday evening, however, was unashamedly dedicated to the past.

Alumni, tutors, lecturers joined together in reliving their time at the BLC or the Central and Eastern European Moot Competition (whether as judges, organisers or competitors) recalling iconic moments from the past, ably assisted by a slideshow of collected images running throughout the evening.

BLC NEWS

Whether sitting together with their colleagues at a table reserved by one of law firms sponsoring the BLC, or with colleagues from their year of study or current practice, the anniversary offered that rarely realised, but greatly appreciated, opportunity to enjoy a reunion with treasured friends and colleagues.

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Tribute was paid to Professor William Cornish (who together with Judge George Dobry) was a founding partner of the BLC and continues to serve as a director of the charity. Speeches were also given by Professor Richard Fentiman and Dr Jonathan Morgan, respectively the longest serving visiting lecturer to the Warsaw centre and former BLC tutor (both current directors of JAS and faculty members of the University of Cambridge).

Not surprisingly festivities continued into the early hours of Sunday morning…..with a shared wish that the next reunion and celebration would not need to wait as long as 20 years.

Of course the CEEMC was only founded two years later than the BLC… so ….

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Professor Bill Cornish at the Anniversary Gala dinner

BLC NEWS

Speakers at the Anniversary conference: two decades of change in the UK and Central and Eastern Europe

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Attendees of the Anniversary Gala having a good time

All participants at the conference gathered for a photo-op

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The New Polish Development Act Challenges for Developers?

Anna Jankowiak

CEE National Issues

2nd year BLC Student, Poznań Centre

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The Act on Protection of the Rights of a Purchaser of a Dwelling Unit or a Detached House (Dz. U. No. 232, item 1377), so-called ”The Development Act” (hereafter „The Act” entered into force on 29th April 2012). This Act aims to determine the legal nature of the development contract or rights and obligations of the developers. The Act dispels doubts that arose around the issue of the development contract, both in doctrine and judicature, and defines the term development contract, as well as specifying relevant contractual provisions.

Since then, customary and thus ambiguous use of the term ”development contract” has become obsolete. A Polish legislator has introduced the statutory protection of the rights of the people purchasing properties from development companies, defining the duties of the contracting parties, the manner of the contract execution, as well as the responsibility of the parties in the event of breaching the contract.

Which party does the Act favour?

Certainly the purchaser – because the development act regulation guarantees him protection, significantly more effective than the previously. What about the developers?

The developers have some obligations since the development act has come into force. The Act states pre-contractual obligations, fulfillment of

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which is a condition for the formation of the development contract. First of all, the development company is obliged to provide the persons interested in entering into a development contract an information prospectus, a standard form, concerning the development project. The information prospectus prepared by the developer cannot contain less information than in the statutory model.

What information will be included in the prospectus?

The prospectus provides detailed information about the investor and the neighborhood, that being what kind of investments the developer has already fulfilled. Moreover, it will also be discoverable if the developer has the right of ownership or perpetual usufructuary of land and whether the land is mortgaged. The prospectus will also provide more information about the location and neighborhood of the property, how the investment will be financed, the distance between the buildings, the number of buildings and floors of the property. The prospectus will also provide information to the developer of whether there are no past or present enforcement proceedings conducted for the amount above 100,000 PLN . Subsequently the purchaser will know whether the developer complied with his previous financial liabilities.

The Prospectus Form The developer shall draw up the prospectus for the development project. The prospectus and its

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annexes shall be delivered by the developer free of charge in a durable medium such as a CD or on paper. If the developer changes the information contained within the prospectus or in an annex, he has a duty to update this information and deliver this information in the form in which it was initially served. With the express prior consent of the recipient, changes to the development contract information prospectus or attachment can be delivered in a different form.

The development company will be obliged to provide the purchasers with detailed information regarding its legal and financial situation along with details of the particular property, and the model for the future development contract. Should the developer not comply and not provide the obligatory information, the purchaser has the right to withdraw from the development contract. The Act introduces criminal liability for providing untrue or concealing true information and also for the failure to prepare an information prospectus despite the obligation to do so.

A trust bank account The Act provides for opening a trust bank account and introduces an obligation to transfer the funds entrusted of the development companies to that bank account, which may be closed or open. The funds collected in an open trust account will be reimbursed to the development company as construction progresses. The funds collected on a closed trust account will be released by the bank only after the ownership right is transferred to the purchaser by the development company. That means the developer has to finance his construction independently. Subsequently, using the closed bank accounts in practice can be rare, especially in the large development projects.

A notarial deed In accordance with Article 26(1) of the Act, the development contract will have to be entered into

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in the form of a notarial deed and contain the components enumerated in the Act. The introduction of the requirement of the form of a notarial deed is of essential significance to the protection of interests of a real property purchaser. It also enables the entering of the purchaser’s claims under the development contract to the land and mortgage register maintained for the landed property connected with the project. However, failure to comply with the form of notarial deed causes the invalidity of the contract.

Polish authors have written a series of publications in which they signaled in particular, that the Development Act introduces a number of revolutionary solutions which radically change the functioning of the housing market in Poland. Of course, it also has some negative impacts.

Unfortunately, the cost of these new legal and financial solutions, such as the establishment and maintenance of the trust accounts, the notary costs and the development of the information prospectus will increase the burden on the purchaser leaving the developers in an advantageous position.

No extension of Professional Privilege to the PRU! Should the right to refuse to disclose documents be extended to an Insurance company? This was the issue before the UK Supreme Court who were being asked to extend Legal Professional Privilege to the Prudential insurance company which wished to refuse the disclosure of tax related documents.

On a majority of 5-2 the Court held that this was a solely a right for the legal profession, in the words of its President, Lord Neuberger confirming that the rule applied “ even where that advice is legal advice which that professional person is qualified to give’.

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Bulgarian Criminal Law: Changes to Bulgarian Sexual offences Sylvia Petkova 2nd year student, Sofia Centre

Bulgarian criminal law distinguishes between the two aims of protecting the individual and protecting social morality. The law aims to secure the inviolability of the person, free formation of will, honour and dignity of the individual through the criminalization of acts which are considered a violation of the person. Similarly, the law seeks to uphold social relations and moral standards set down by the legislator. Bulgarian criminal law is particularly observant of social relations with regard to sexual offences and this paper seeks to consider to what extent new criminal legislation alters the traditional approach of the Bulgarian legislature when addressing sexual offences. Current Bulgarian legislation provides a detailed framework of sexual offences in the Criminal Code (CC) and has also addressed sexual offences in the draft for a new Criminal Code (The Draft).

Art.5, para.3 of the Constitution of the Republic of Bulgaria finds that one of the basic principles of Bulgarian criminal law, namely the principle of legitimacy of the offences. According to that text “no one may be sentenced for any action or inaction that was not legally provided for a crime when it was committed”. In order to observe this principle, the criminal law must provide clear definitions of acts which the state defines as criminal. This is achieved by the composition of the offence, by which the provisions of the Special part of the CC describe the combination of the features, which need to be simultaneously existent in order for the committed act to be defined as criminal. The features of the composition of the offence are divided by the Bulgarian criminal doctrine into four groups: 1) features, concerning the object which the offence impinges e.g. whether the offence is directed at properly or the person 2) features, concerning the objective element of the offence 3) features, concerning the offender and 4) features concerning the mental element of the offence. The direct object of the offence is a feature of the first group and consists of those social relations, which are impinged by the committed criminal act. This is the feature, which is used by the legislator as a criterion for the allocation of the offences in the sections of the law. Fundamental feature, concerning the objective side of the offence, is the conduct, which gives definition of the externally manifested actions, which need to be committed by the offender, in order for the act to be a crime. The conduct may occur in the form of action, inaction or a combination of both. It is very important to point out that an act, which does not match any of the features of the composition of the offence, described in the Special part, is not criminal.

Under the current Bulgarian Criminal Code, sexual offences are defined in Chapter II of the Special part – Crimes against the person, Section VIII – Debauchery. Bulgarian criminal doctrine divides these violations into two groups, the division of which is dependent upon the object against which the crime was committed, either the state of the individual. The first group

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includes acts that impinge social relations, which secure the inviolability of the person as well as the social relations, which guarantee the observation of sexual moral standards. These acts are lewdness, criminal sexual intercourse and criminal homosexual acts. According to Art. 157 of the current CC, a homosexual act is criminal only if it is committed with a person of the same sex by using force or threat, or by taking advantage of a position of dependency or supervision, as well as with a person deprived of the possibility of self-defence, which means that the victim has not expressed consent for intercourse or the acts of sexual satisfaction. The acts in the second group impinge only those social relations, which refer to the sexual moral standards. These are procuring or the persuasion of an individual to practise prostitution and pornography.

The new Criminal Code, currently in draft form, takes a similar approach to sexual offences as the current law. The intriguing difference in comparison with the current CC is the more precise allocation of these violations in chapters and sections. Thus, criminal sexual intercourse, lewdness and criminal homosexual actions are regulated in Chapter XV of the Special part – Crimes against sexual inviolability, as offences with basic object of impingement - the social relations, which secure the freedom of will of the individual for sexual intercourse. Pornography and procuring, on the other hand, are regulated in Chapter XXIX - Crimes against social order. Section II of the draft code addresses crimes against social morals, as offences relating to social relations, which guarantee the observation of moral standards, as established in the community.

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Under the current law, the act of procuring sexual acts for reward is defined in art. 155 and is a good example of a law, the object of which is the upholding of social morals rather than a crime against an individual per se. In the Draft this offence is regulated in art. 416, which is systematically placed in the section entitled “Crimes against social morals”. Procuring is defined in both the current and the draft legislation as the matching of the will of two or more persons in order to commit sexual acts with each other. The general term “sexual acts” is used in the Draft, while the current law takes a more narrow approach, listing the acts procurement of which are criminalized. The current law lists these acts as lewdness and sexual intercourse. Under Art.149 of the current law, the act of lewdness, consists of performing an act for the purpose of arousing or satisfying sexual desire, without copulation, while the sexual intercourse consists of penetration of a male sex organ into a sex organ of a female . The current law does not extend the law surrounding lewdness to homosexual acts. The draft code will seek to extend this offence to include homosexual acts through the use of more general language which will cover all sexual acts. The Draft gives a legal definition of the term “sexual act” as ”an act that causes sexual arousal or sexual satisfaction, as well as lubricious live or real-time display of human genitals” (Additional provision, § 1, s. 23).

Another area of criminalization in Bulgarian criminal law covers the persuasion of an individual to practise prostitution. This offence focuses upon the psychological impact of an act upon a person which has the aim of inducing a person to enter into prostitution. Bulgarian law does not give a legal definition of the term “prostitution”, but it can be defined as participating in sexual acts in exchange for profit, monetary or otherwise. It is irrelevant whether the person, who has been subject to the persuasion, has consented to enter into prostitution. It is necessity for a distinction to be made between procuring of and trading in prostitution. The latter is an entirely new

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composition, introduced by the Draft. There are three forms of this form of crime as regulated by art. 419, para. 1, s. 1-3 of the new code.

The first form of the conduct is regulated in Art. 419, para. 1, s. 1 and relates to the assistance of prostitution, defined as giving support to a person in order to facilitate their participation in sexual acts in exchange for gaining a profit. Acts such as arranging a partner for the commission of prostitution or providing premises for the act constitutes a multiple crime under Art. 416, Para. 1 and Art. 418 respectively of the draft code. The second form, protection includes patronage over one who is involved in prostitution during participation in sexual acts or in relation to such participation (Art. 419, para. 1, s. 2). The third form of the conduct, the systematic receiving of material benefit, applies when the offender has received three or more times a material profit from the person involved in prostitution (Art. 419, para. 1, s. 3).

An important feature, which distinguishes the procuring of prostitution from trading in prostitution, is that for the latter, the person who is participating in sexual acts should do it in exchange for a material benefit, while in art. 416 there is no such requirement.

Another essential difference between the two compositions is that the offender in art. 416 can be any person who is capable of bearing criminal liability, while art. 419 requires a special offender – a fit for work adult. A person is “fit for work� when they are objectively able to perform labour, while a person is an adult when they are at least 18 years old (Art. 2 of the Law on the persons and the family).

Another innovation, introduced in the draft which relates to procuring can be found at Art. 417, para. 4. This article provides for a more severe penalty in cases when procuring of sexual acts and

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the persuasion of an individual to practise prostitution with the aim of gaining material profit. In this instance a prison sentence of three to twelve years, a fine of ten to twenty thousand Bulgarian Levs (approximately 10,000 Euros) and a confiscation of not less than one half of the offender’s property may be handed down to the convicted.. Additional aggravating features may lengthen the sentence. These features include the involvement of organised crime, when the act is directed towards a person under the age of 18 or towards a person, who does not understand the nature and meaning of the act (Art. 417, para. 1-3) or when the acts are committed through the use of coercion. The provision of these circumstances as aggravating features preclude the possibility of the application of the multiple crime rules, unlike the CC in force, where these rules will apply if the offence in art. 155, para. 1 is committed by the use of coercion.

The draft provides further alteration from the current law in the area of providing premises for criminal sexual intercourse or for acts of lewdness. Currently this offence is regulated by Art. 155, para. 2 and is defined as a form of procuring, as a crime against the person. The draft legislation also defines this offence in art. 418 as a crime against social morals. This decision is justifiable, because offences against the person have an impact upon social relations.. Because of the impact upon public morality, this offence is regulated as an offence against social morals over that of being an offence against the person. According to Art. 155, para. 2, the provision of premises for sexual intercourse or for acts of lewdness is an offence of systematic commission in that to constitute a crime, this act has to be committed at least three times. The current law envisages a more severe penalty if the offender seeks to provide for himself or any other person a material benefit (para. 3). In its basic composition, the act is a crime if it is committed even without the aim to gain profit. This is different to the draft legislation in which, Art. 418 criminalizes the provision of premises for sexual intercourse or for acts of lewdness if the offender commits this act by

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“craft”. The “craft”, in its essence, suggests doing some kind of professional activity by which income is earned In the current law, repeated crime, as well as the commission in terms of dangerous recidivism, are aggravating features, explicitly mentioned in the composition of the offence. In the draft they are not explicitly mentioned. This is because the draft completely changes the philosophy of recidivism in the General part and if the act is dangerous recidivism, the penalty increases ex lege.

The current CC gives definitions for both repeated crime and dangerous recidivism and according to Art. 28, para. 1, there is a repeated crime when the offender has committed a crime following sentence for a similar crime. Dangerous recidivism is regulated in Art. 29, para. 1. and occurs when the offender commits the crime after he has been convicted of a grave intentional crime resulting in serving a prison sentence for not less than one year. An aggravating feature introduced by the draft code is the exploitation of dependent persons such as children in the commission of lewdness (art. 157 of the draft) and criminal homosexual actions (art. 163, para. 2 in relation to para. 1, s. 4 of the draft). Adding this aggravating feature of involvement of a child in the definition of the crime acts to bring Bulgarian law in line with European requirements as defined in Art. 5(i) of Directive 2011/92/EU. Interestingly, the draft code addresses the offences defined as concerning social morality which seek to secure the observance of sexual morals in the same section which addresses laws relating to animal fights, cruelty towards an animal and neglect of an animal. All these offences could be argued to be logically within the realm of acts relating to social relations , but arguably they have different social significance. The draft is a considerable step in the development of Bulgarian criminal legislation as its regulations on sexual offences would facilitate the doctrine and the enforcement of the law.

How to keep abreast of the most significant jurisprudence in the UK: LOOK AT YOUTUBE! Yes, it appears that from January 2013 the UK Supreme Court will record a short summary of each of its judgments to be posted on Youtube….!!!

For those of us who have tried to summarise a Supreme Court judgment of over 100 pages in length into a few key sentences, the challenge of ensuring that the pertinent points are included is well known. So it will be interesting to see how it is done by the experts. …

So what of other Supreme Courts: is the UK the first… or has this already been thought of by others? It will be interesting to see !

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Same-sex partners in Poland: your rights’ please Patrycja Murawska BLC Graduate, Toruń Centre

Recently the legal recognition of same-sex relationships has again garnered considerable attention in Poland. The wide debate continued due to the renewed legislative initiative of Parliament seeking to formalise hetero- and- homo- sexual partnerships. This legislative initiative comes in the wake of the latest judgment of the Polish Supreme Court extending rights of samesex partners.

Regrettably there is still no reliable data on the number of Polish citizens in same-sex partnerships. The reason for the lack of such information is that the 2002 census did not record information on same sex relationships and that the 2011 census figures have yet to be fully published.

The first milestone on the road to homosexual equality in Poland came in 1932 when homosexuality was decriminalised. The Polish Criminal Code which came into force that year did not decriminalise male prostitution as this was still perceived as a form of sexual deviance as opposed to homosexual sex itself. However, the Polish Criminal Code enacted in 1969 did decriminalize male prostitution and arguably, demonstrates that Polish criminal policy on same-sex relationships is in fact quite progressive in comparison with other European countries.

It was not until 1981 that the European Court of Human Rights in Dudgeon v United Kingdom held that criminalization of homosexual activity was an infringement of Article 8 ECHR, the right to a private family life. Following this judgments, the Parliamentary Assembly of the Council of Europe in Resolution 924(19181) recommended to the Committee of Ministers to issue the declaration that Member States should eliminate from their legal systems any legislation penalising homosexuality and to combat discrimination based on sexual orientation in the areas enumerated in the Resolution.

The next step in the development of homosexual rights in Poland came in 1997 when the new Polish Constitution granted equality before the law and forbade any discriminatory actions based on any grounds.

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The first attempt to put homosexual relationships on equal footing with heterosexual relationships took place in 2004 and was designed to formalize same- sex partnerships. The second one took place in 2011 and intended to legally recognize hetero- and –homosexual partnerships . Both of these attempts were unsuccessful. The main barrier to equality for homosexual partnerships is the definition of marriage and protection of the marriage and family established in Article 18 of the Polish Constitution . This special constitutional protection of marriage and family is based on the idea that the legal consequences of marriage understood as a union of man and woman can not be applied to any other relationships thereby excluding samesex couples from marrying in any legal sense. Article 18 of the Polish Constitution has been used to combat any legislative initiative aimed at formalising same- sex partnership. For example the latest legislative initiative in this field was responded to by the First President of the Supreme Court as being unconstitutional because the wide range of rights granted to same sex partners by the legislation in question would result in the legal position of partnerships being equal to that of traditional marriages. This response did not exclude the legal recognition of some aspects of a same-sex relationship, namely financial arrangements and the establishment of a next of kin.

Polish law does allow for some recognition of non-marital relationships through the doctrine of concubinage. In order to establish concubinage, the relationship must lack a legal, marital basis, and the lack the requirement of any formalities for the ending of that the relationship.

However, the relationship must be stable, and involve personal and financial involvement of the partners, but still only applies to couples of different sexes. Whilst the doctrine of concubinage is limited to same-sex couples, in practice this has been extended to same-sex couples at the dissolution of some relationships when it is necessary establish the ownership of property jointly held by the couple. Unfortunately there is no general rule that governs the organization and the later process of dividing the assets of the partners and every case is approached individually. One way for same -sex couples to achieve better consistency and predictability in post-relationship division of asset could be through the adoption of a contract during the relationship which would govern the later division of the assets should the relationship dissolve. Without such a contract there are still some guiding principles which may guide a post-relationship settlement for same-sex couples. For example, one partner may be entitled to seek compensation if he contributed to the enlargement

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of the other partner’s assets. Additionally, principals which govern non-commercial partnerships could be applied. Moreover, the doctrine of the unjust enrichment may prevent one partner from unfairly splitting the assets of the relationship. Whilst such doctrines may facilitate postrelationship asset division, it is apparent that same-sex partners do not enjoy the same consistent framework as divorcing heterosexual couples. The issue of inheritance law is another area which demonstrates inequality between married couples and same-sex couples. Obviously this issue does not arise when a will has been made by one of the parties but it does become significant when situations of partners dying intestate arise. The fundamental principle that governs Polish inheritance system is the estimated order of succession implied in situations of intestate death:

spouse, children, parents, siblings, grandparents, stepchildren and lastly the state. This implied hierarchy of beneficiaries of course discounts the same-sex partner.

There are some limited rights established by inheritance law that are granted to persons who were cohabiting with the deceased. Article 923 of Polish Civil Code states that spouses and other close persons to the decedent who were cohabiting with him until the time of his death are entitled to stay in the property shared with the decedent for the period of 3 months. The right can

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not be excluded or limited in any way by the pre-death wishes of the deceased. This right is mirrored in article 691.1 of the Polish Civil Code. These article entitles the tenant’s spouse (without title to rent the property), children, other persons to whom the deceased was obliged to provide financial support and persons who cohabited with the deceased, to inherit the right to the apartment rented by the deceased under the condition that they shared the apartment with him until his death. There was some legal confusion about whether these rights applied to same-sex couples as such rights are contingent upon the definition of concubents which may only apply to heterosexual partners.

The confusion surrounding the issues of whether homosexual partners are entitled to inherit the right to the rented property has been recently given by the Polish Supreme Court in the case III CZP 65/12. In this case, the Court decided that on the grounds of article 691.1 of the Polish Civil Code, homosexual partner are also granted the rights afforded to same sex couples with regard to the transfer of the lease of properties previously held by the deceased. The reasoning behind the judgment was that Article 691.1 does not mention that the deceased and the survived partner have to establish their relationship as spouses. The lacking of such a “marital attribute” was sufficient to widen the legal definition of cohabiting partners on these grounds.. The Court emphasised that article 691.1 of the Polish Civil code should be interpreted in favour of same- sex partnerships in order to fill the legal gap caused by the lack of clear regulation surrounding such relationships. The Court also referred to the European Court of Human Rights judgment in Kozak v Poland, in particular the holding that the State is under an obligation to protect a private family life and in doing so ”have to take into consideration development in the society and changes in the perception of social, civil – status and relation issues including the fact that there is not just one way or one choice in the sphere of leading and living one's family or private life.

A further significant legal situation relating to same-sex partners arises in the area of patient rights. Under Polish law and medical regulation, patients can authorise a third person to obtain information about the condition of the patient, the treatment, prognosis etc. This rule applies equally to spouses, parents, children, hetero- and homosexual partners. The authorised person will also have the right to access the patient’s medical record. This medical next of kin also applies when the patient is unconscious.

Discrimination arguably still exists with regard to the spousal privilege not to give evidence against a spouse in criminal cases. This right exists for heterosexual partners, married or not under, Article 183 of Polish Code of Criminal Procedure. This right has yet to be extended to samesex partners and many have argued that this is discriminatory and illogical as the rationale behind spousal privilege applies to any couple, whatever sex they may be.. There is also a range of other rights that could be executed by the same-sex partners that allow them to act as an union. For

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example partners can take legal actions together, they can freely transfer assets between themselves. Same sex-partners could have a joint bank account as Polish banking law entitles natural persons to share the bank account. Same-sex partners can legal change their name so as to share a surname as whilst regulation is such that they would have to prove a good reason for changing their name, the union of the partners considered as such a reason. Likewise, same-sex partners can nominate the other partner to benefit from his life insurance under Article 831.1 of Polish Civil Code.

What is apparent from comparing some of the rights afforded to married couples, heterosexual unmarried couples and same sex couples is that whilst progress has been made in Poland in combating discrimination between types of relationship, there is still some way to go before homosexual couples will not be disadvantaged by Polish law.

Where are you from when you’re born on a plane?

Ruairi O’Neill BLC tutor

On 12 January 2013 a child was born on an Armavian Airlines flight bound for the Armenian capital city of Yerevan en route from Siberia. The mother was Armenian. If the plane was enroute to the UK, what nationality do you think the child would have?

According to Article 17 of the Chicago Convention, the nationality of a plane is the country where it is registered, and by virtue of Article 18 no plane may have dual nationality. This doesn’t really help to determine the nationality of the child, though, unless the plane was over international waters at the time of the birth and Armenia, where the plane is registered, applies the principle of jus soli to the acquisition of citizenship, which it does not.

In implementing the 1961 UN Convention on the Reduction of Statelessness, the UK Parliament gave authority to the Secretary of State to assess individual applications for British nationality where failure to award citizenship would otherwise result in the child being stateless. Section 3(1) of the British Nationality Act 1981 thus empowers the UK Border Agency to consider an application for citizenship where neither parent is resident in the UK and do not possess UK citizenship. It would therefore cover a situation such as this, and is used primarily to prevent persons being born without any citizenship within the jurisdiction of British Nationality laws.

As the mother was Armenian, however, the child would authomatically acquire Armenian citizenship through the doctrine of Jus sanguinis, which is applied there, meaning that the child would automatically acquire the parent’s nationality regardless of where they were born. The Secretary of State would likely not award British citizenship to the child if it was born on a UK-bound plane. As it happens, it wasn’t. Congratulations all the same!

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Protection of Design Rights in the UK: what does the UK have in common with Estonia and Romania?

Ruairi O’Neill

UK Legal Issues

BLC tutor

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Currently at the Committee Stage in the House of Lords, the Enterprise and Regulatory Reform Bill 2012-2013 (ERR) is borne out of the rather bold objective to make it easier to do business in the UK. As far as copyright protection affects the conduct of businesses in the UK, the Bill aims to establish systems for the availability of orphan works (a protected work but where the author cannot be contacted) and collective licensing, as well as bringing the duration of protection for design rights into line with Article 1 of the Copyright Term directive (Directive 2006/116), which states that protection in an artistic work shall run for the life of the author and for 70 years after his death.

Duration of copyright in artistic works that are exploited using an industrial process Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) limits to 25 years the duration of copyright in artistic works that, with permission of the author, have been exploited by using an industrial process to make copies of the work. At present, an article that has been copied more than 50 times is not considered to be hand-made, according to Article 3 of the Copyright (Industrial Process and Excluded Articles) (No 2) Order 1989 (SI 1989/1070) (Copyright Order). It thus falls under section 52.

However, section 52(4) CDPA permits the Secretary of State to exclude certain works from the operation of this section, with SI 1989/1070 already excluding works such as book covers and calendars. The effect of the exclusions are that the duration of such protected works under Article 1 of the Copyright Term Directive, as implemented by section 12 CDPA, will last for 70 years after the author’s death.

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Changes to the law The Hargreaves Review of Intellectual Property 2011 recommended that the Government enact further derogations under the Copyright Order to the ones already in existence, and to open up access to the exception regime under the Order. Going further than the recommendations, by clause 55 of the ERR, section 52 of the CDPA will be repealed, thus removing generally the shorter duration of protection for industrially-produced artistic works. Repealing the section will also render the Copyright Order legally ineffective, eliminating any existing derogations to section 52 enacted by the Secretary of State.

Reasons for the changes The Government claims that, following the decision of the Court of Justice of the EU in Case C169/08 Flos V Semeraro, Section 52 CDPA is currently in conflict with the Copyright Term Directive. In this ruling, the CJEU stated that national law must not prevent a registered design from copyright protection (and thus protection for life plus 70 years against slavish copying of the work) when the work possesses the necessary qualities of copyright.

On Thursday 9 January 2013, at a debate in London organised by the AIPPI (the UK constituent of the Association Internationale pour la Protection de la Propriete Intellectuelle), Professor Lionel Bently of the University of Cambridge branded the repeal of section 52 as “ill-considered, undesirable and illconceived� as it would now bring manufacturers who currently make use of images of design articles under increased threat of infringement proceedings. As they are currently using the design images for commercial use, they would not fall under any of the defences available in the CDPA.

He alleges that there is no need for the Government to repeal section 52 CDPA to bring national law in line with Flos as the Design Directive (Directive 98/71) gives Member States the discretion to regulate the extent of design right protection by means of national copyright law. Article 17 of the Design Directive specifically states that "A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required,

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shall be determined by each Member State" The Government also states that the change in duration of protection for design rights will help British manufacturers of classic designs, as the period will be extended to life plus 70 years for the author to object to the importation and sale of replicas of works in the UK, thus “promoting innovation amongst designers and encourage investment in new designs”.

In practice what this will mean is that manufacturers engaged in copying products which were first marketed over 25 years ago but which are still covered by copyright will no longer be able to do so without a licence.

Some people see the availability of these replicas as a good thing as it allows consumers to ‘get the look for less’. However, designers argue it undermines the integrity of the design industry and it may make British companies less willing to support long term investment in areas such as furniture design than their European competitors. This argument is supplemented by the fact that only Estonia and Romania provide different lengths of duration for protection of design rights and copyright works.

Professor Bentley claims that, as economic literature suggests that individuals do not seek returns from their patents for inventions for more than 20 years, likewise they don’t seek returns for more than 15 years into the future when they invest in a creation. As such, he says, repeal of section 52 will totally undermine the entire registered design protection regime in the UK. Whatever the reason for this change in the law, the ERR has already made it through the House of Commons and the House of Lords does not seem overly perturbed by the specific clause repealing section 52 CDPA. So unless something

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very dramatic happens in the coming weeks, the Bill will receive Royal Assent and the change to duration of design rights will be complete.

Whatever the real motivations behind this change are, one particular situation, vital to our national interest, is sure not to be repeated: the wife of the Prime Minister, Samantha Cameron, daughter of Sir Reginald Berkeley Sheffield, 8th Baronet, and Viscountess Astor, is unlikely to be vilified again by the editor of Elle Decoration magazine as being “cheap, hypocritical and fake” for buying a replica of Achille Castiglioni’s Arco lamp for £250 instead of the usual £1500 for an original.

JUDICIAL HUMOUR -“I’m not just judge but also poet so please be sure that you also know it”

The English judiciary is world renowned for introducing both humour and satire into its judgments but some have even gone further.

An example of judicial poetry to delight the BLC reader:Fisher v. Lowe (1983) was a tort action where the plaintiff alleged that the defendants’ automobile had struck her “beautiful oak tree.” Judge John H. Gills based his poetic judgment upon a Joyce Kilmer poem “Trees” :

We thought that we would never see A suit to compensate a tree.

A suit whose claim in tort is prest Upon a mangled tree’s behest; A tree whose battered trunk was prest Against a Chevy’s crumpled crest; A tree that faces each new day With bark and limb in disarray; A tree that may forever bear A lasting need for tender care.

Flora lovers though we three, We must uphold the court’s decree.

Affirmed.

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The Silent Royal Prerogative The Practical Influence of the Royal Family on developing domestic legislation Dr Steve Terrett Deputy Director, British Law Centres

Every student of English law will, at some stage, have spent some time considering the powers of the Monarchy and the various Royal Prerogatives, and students of the British Law Centres courses are no exception to this. Nevertheless, during class discussions, it is most common to hear the view expressed that, whilst possessing certain theoretical powers to interfere in political matters (such as the right to veto legislation or declare war), the English Monarch is essentially a figurehead whose primary role is to avoid political involvement and maintain neutrality in political matters. This view is reinforced by the fact that the last time a Monarch formally vetoed a piece of Parliamentary legislation was when Queen Anne vetoed the Scottish Militia Bill in 1708.

Nevertheless, recent developments in the UK have called into question the political neutrality of the Royal Household and appear to indicate that both the Queen and Prince Charles have exerted considerable direct pressure on shaping government legislation prior to its introduction into Parliament. Thus, if the Windsor family are capable of re-shaping government policy prior to the government introducing an Act of Parliament, it becomes far less surprising that the Royal veto has not needed to be exercised in over 300 years.

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The catalyst of the current constitutional debate was when John Kirkhope, a Ph.D student, sought permission to access internal government manuals describing when and how the Royal family should be consulted prior to the introduction of legislation into Parliament, in order to assess how ministers decided whether new proposed laws would affect the “…hereditary revenues, personal property of the Crown and the Duke of Cornwall [Charles] or other interests”. Kirkhope’s request was refused on the basis of s.42 the Freedom of Information Act 2000 which reads as follows: s.42 Legal professional privilege.

(1)Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.

Essentially, the government’s argument was that the pamphlet describing the government’s approach to consultations with the Royal family was prepared by government lawyers and, accordingly, was covered by “legally privilege” and exempt from disclosure. However, having performed a “balancing act” of the pamphlet’s content and concluded that the pamphlet was not “…provided in a strictly advice-giving context”, the Deputy Commissioner of the UK’s Information Commissioner’s Office (ICO) concluded that this section did not apply and that the information must be disclosed. [NB. See elsewhere in this edition of Obiter Dicta for a discussion of the overly -cautious nature of reviewing access to EU documents adopted by the EU’s General Court, in respect of access to documents of the European Central Bank and compare with the approach of the UK’s ICO.] This request took place against a backdrop of increasingly frequent allegations in the media that Prince Charles and the Queen had taken a very active involvement in numerous political affairs.

Most recently, the Queen was alleged to have expressed her desire to extradite a radical Muslim hate-preacher (Abu Hamza al-Masri) to the US for trial. Earlier, she is alleged to have influenced the decision to go to war in Iraq. In recent years, Prince Charles has also allegedly intervened directly in a wide range of matters, including architecture, “alternative” medical treatment, energy, planning, economic development and construction, marine and coastal access, and housing and regeneration. Various newspapers have also questioned the extent to which Prince Charles’ 20 charities exert political and legislative pressure on the government at his behest.

As merely one example, the Prince's Foundation for Integrated Health attempted to alter government policy on the regulation of massage, aromatherapy, reflexology and other complementary therapies and was paid £1.1m by the Department of Health to advise on the use of such alternative medical therapies in the National Health Service. It is well-known that Prince Charles is a huge supporter of such alternative treatments and any accusations that he has been able to exert pressure on the government to modify the provision of health services so as to accommodate his personal views should be taken extremely seriously. Another example saw a

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High Court judge (Vos J) refer to Charles’ reputation as “…a meddling prince…" who has intervened in debates on farming, genetic modification, global warming, social deprivation, planning and architecture. Vos J noted, in a contract law trial in which a member of the Qatari Royal family's property company was sued for breaching its contract with a partner company (by withdrawing planning application for the property development of Chelsea barracks) that the breach occurred following the personal intervention of Prince Charles, who made it clear that he was dissatisfied with the modern design of the development and desired something more traditional. Vos J said the Qatari royals immediately recognised that the prince's complaint “…raised a serious political issue that needed to be dealt with at the highest level….” and that the breach of contract was inspired because the Qatari royals were “...not happy about upsetting the Prince of Wales…”

In 2011, the Guardian newspaper used the Freedom of Information Act 2000 to discover that, since 2006, Charles had written to ministers in at least eight departments - Food and Rural Affairs, International Development, HM Treasury, Foreign Office, Work and Pensions, Education, Communities, and Culture, Media and Sport. The actual content of these letters was withheld under the FoIA 2000 but an appeal against this decision is still pending, with the Guardian arguing that the content of the "black spider memos" (known as such because of Charles’ terrible handwriting) raises important questions of a constitutional nature.

For those raised in a presidential legal system it may seem, at first glance, natural that the Head of State should interfere in national politics. However, the fundamental constitutional difference between a presidential system and the UK’s monarchical system is that of political accountability.

The UK does not hold elections for the Head of State since it is widely perceived that the very essence of this system is to maintain clear distance between the fast-moving tides of national politics and the stability and neutrality of the Monarchy. However, if the system is being used (or abused) in such a way as to allow the Monarchy to directly interfere in domestic politics whilst maintaining the illusion of political inactivity, this may call for a change to the constitutional attitude commonly found when discussing the purported neutrality of Britain’s most famous family (ignoring the Beckhams). At the very least, it may encourage an extra 5 minutes of discussion during BLC classes on the English legal system!

For the full text of the ICO decision, see: http://www.guardian.co.uk/uk/interactive/2012/ aug/31/ruling-royal-veto-guidelines.

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The Role of the Secret Advocate…Still Taking “Blind Shots at a Hidden Target”?

Denise Ashmore Director, British Law Centres

Finding a balance between the protection of national security in the public interest and the accused’s right to a fair trial continues to make headlines in the English media, with the role of the Special Advocate at the centre of the storm as a result of the British government’s plans to extend the use of the so-called Closed Materials Procedure (CMP) to civil law cases .

So what is a Special Advocate and what is the CMP? PUBLIC INTEREST IMMUNITY AND THE CLOSED MATERIALS PROCEDURE It has always been accepted that governments might wish to limit disclosure of documents in their possession where knowledge of its contents might affect the national interest; where disclosure might compromise protection of the realm etc. In the UK this issue was dealt with by the so-called Public Interest Immunity procedure (PII) where a government minister will issue a certificate claiming that sensitive information cannot be disclosed in court proceedings for this then to be reviewed by a judge.

An example of how this works can be seen in the current guidelines to the English Crown Prosecution Service (CPS) who are told (in PII procedure cases) to alert the judge of possible PII issues in an ex parte hearing (without notice to the defendant) so that the judge may take this into account in his management of the trial. At this stage the CPS need “only put such information as is necessary to enable him to properly manage the trial process or protect the public interest…. Initially, the judge should be informed only of the category of the otherwise nondisclosable material. Only such revelation as is strictly necessary to achieve the purpose should be made to the judge and only in very rare circumstances should the revelation go beyond headline material.”

A more rigorous inter parte hearing on the issue will then follow at the trial, when the defence may also make representations to the judge who will then to review all material covered by the

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PII claim so as to ensure compliance with the overriding duty to ensure fairness in the trial process. In cases where the judge is satisfied that the PII claim is justified then he may restrict the full disclosure of information at the trial. A simple example of this might be not to disclose the identity of a key witness, however the defence counsel would be given the opportunity to provide a list of questions to be put to the witness in cross examination, which would then be put to the witness by the judge in a closed ex parte hearing with the answers then read out in open court.

This procedure is still far from ideal, placing limits on both the defence and the prosecution and likely also impacting on the jury’s take on the reliability of the evidence heard.

The PII procedure does have the advantage that the judge has at least been made fully aware of all the information relevant to the case but as the judge has no way of knowing how relevant the sensitive material might be to the case of the defendant, it remains far from a complete and balanced review.

The CMP however goes one stage further, further limiting the judge’s ability to review the sensitive information claimed.

The CMP was first introduced together with the creation of the Special Immigration Appeals Commission (SIAC) in 1997. The SIAC reviews orders for detention or deportation of third national aliens and central to its procedure is the distinction between open and closed procedures and open and closed materials meaning that sensitive information affecting national security should not be disclosed in open court but would instead be labelled ‘ closed material’ and not disclosed to the defendant. The inherent injustice of this procedure was to be balanced by the appointment of a Special Advocate, a senior counsel appointed by the Attorney General (a government minister) who, after satisfying national security checks, would be given full access to this “closed material”. It would then be his/ her job to seek to persuade the court that all of the closed material or elements of it should be presented in open court. The Special Advocate would have no duty to the client but would act for the court. He would however, be able to take instructions from the client (who will remain represented by his own counsel) before being given access to the material but would not normally consult the client thereafter. There is a possibility of seeking the court’s discretion to talk to the client again after viewing the material, but this is rarely granted or sought. One Special Advocate has described the

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procedure as Kafkaesque quoting from that author’s work “the written records of the court and in particular the document recording the accusation were not available to the accused, it was not known in general or at least not exactly what the first plea had to be directed against, so really it could only be fortuitous if it contained anything of significance for the case”. It is not surprising therefore to see that the late Lord Bingham (former Lord Chief Justice) also described the procedure as “taking blind shots at a hidden target” (see title quote) Despite these concerns the CMP has since been extended from its role in SIAC to a further 21 case areas and actively used in 14 of those areas in the heightened atmosphere of security concerns present following the terrorist attacks in 2001.

IMPACT OF HUMAN RIGHTS ACT It had been thought that introduction of the Human Rights Act in 1998 would strengthen the protection of individual rights by ensuring that the European Convention on Human Rights would now be judicable in the English courts. It was not surprising therefore to see it used to challenge the CMP, seen in the cases of detention of third country nationals in the European Court of Human Rights in the Grand Chamber case of A –v- UK (3455/05 Judgment 19th Feb 2009). This concerned a number of detention orders made by the British government under the Anti-Terrorism Crime and Security Act 2011 (ATCSA) which was made in express derogation from the Human Rights Act 1998 (HRA).

The case was first heard before the Special Immigrations Appeal Committee which took the view that the provisions of the ATCSA were incompatible with the HRA and issued a statement of incompatibility, this was reviewed and overturned by the Court of Appeal but then the finding restored and upheld by the House of Lords by a majority of 8-1.

However as the declaration of incompatibility was not binding on the UK Government the detention orders remained in place which led to the detainees initiating proceedings before the European Court of Human Rights where a breach of various articles of the European Convention on Human Rights was alleged.

The judgment discussed a number of issues; including arbitrary detention and whether the government’s actions could be held to be undertaken at a time of public emergency threatening the life of the nation (para 181) in the light of the terrorist attacks in 2001. Here they agreed with the UK House of Lords that there could be a national emergency on the facts but found that the governmental measures taken were still disproportionate (para 190).

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The court also considered the role of the Special Advocate in the procedures adopted In the SIAC and found that the Special Advocate “could perform an important role in counterbalancing the lack of full disclosure and the lack of a full adversarial hearing”. It continued that this could however only ever be the case when the detainees had been provided with sufficient information of the charges against them to give the Special Advocate effective instructions and added that general assertions would never be sufficient to ensure the procedure fairness the hearing required (para 220) .

The decision therefore was far from a resounding endorsement of the CMP or its inherent fairness particularly when we see the Court making it clear that enhanced disclosure of the gist of the security sensitive information was always necessary to ensure that an effective challenge could be mounted by an individual to allegations made against him.

THE CURRENT POSITION AND THE JUSTICE AND HOME AFFAIRS BILL 2012 Perhaps not surprisingly however, the British government continues to favour the CMP procedure over the PII and seeks to further extend the areas in which it can be used. This has led to media headlines such as “Secret Justice: the dark corners of the British legal system” or “…Secret court, torture and avoiding embarrassment”.

So what has caused the spotlight to shine so brightly again in 2012 on the CMP? In 2011 the Supreme Court blocked a government attempt to introduce the CMP into a civil claim which had been initiated by various detainees against MI5 and MI6 seeking compensation for abuse, alleged unlawful imprisonment and the facilitation of their extraordinary rendition in the case of UK –v- al-Rawi. The security services sought to argue that there was a common law power to rely on the CMP rather than the traditional PII procedure, the court disagreed stating that “trials should be conducted and judgments given in public….The open justice procedure is not a mere procedural rule. It is a fundamental law principle.”) The Supreme Court concluded by stating that such a change could only be made by Parliament.

The Government immediately adopted the Court’s suggestion, countering by introducing the Justice and Home Affairs Bill in May 2012, which, if adopted in its original form, would not only enable the CMP decision to be made by a government minister, but would also greatly widen the ambit of public interest reasons including grounds such as “causing damage to the interest of the international relations of the UK (section 14(3)”.

The consequent media reaction to the potential erosion to natural justice and the fair trial that would follow from adoption of such a Bill is far from an isolated voice. It has not only received support from traditional libertarian bodies such as Liberty but also from more weighty bodies

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including the Joint Committee on Human Rights and from Special Advocates themselves.

In their 2012 review the Judicial Committee on Human Rights reported that “special advocates have no means of gainsaying the Governments assessment that disclosure would cause harm to the public interest” and concluded that the current regime of special advocates and closed materials “is not capable of ensuring the substantive measure of procedural justice that is required.”

Of the Special Advocates themselves, a number have already resigned concerned at their inability to play an effective role in challenging the CMP, whilst a joint statement was issued on behalf of Special Advocates in response to the new Bill, both challenging and contradicting the government’s assertion that the Special Advocate provided a successful balance to the use of the CMP, concluding that:The proposal to extend the use of CMP in a civil trial was unsupportable That consideration be given to adopting an alternative system to deal with sensitive material, using directly instructed security -cleared lawyers so providing a “substantially greater measure of fairness”

A determined government may however still push on with its plans riding over these concerns if it feels it has the required public support. Perhaps more effective as a brake will not therefore be the expert view of those involved in the process; such as the judiciary or special advocates, but rather the adverse publicity it receives. With an extraordinary feel for timing, January 2013 saw the release of a story showing how the CMP had restricted the disclosure of material showing evidence of torture on Afghan detainees by British soldiers which lawyers argued was highly relevant to the case at the time. They further argued that the use of the CMP had been to prevent politically embarrassing material being disclosed not sensitive material.

The argument is of course moot, as the label may depend very much on context and subjective opinion at the time. The real issue is whether the CMP should become a standard feature in the British courts… the Justice and Home Affairs Bill has now passed through the House of Lords and is currently at committee stage….

How does your country deal with this issue, do you agree with the stance taken by the UK government, has it got the right balance? We would be very interested in your views!

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Prison Warehouse or Prison Factory? How a New Titan Prison Could Greatly Increase Recidivism Cerian Griffiths BLC tutor

Britain has more people in prison per capita than any other country in western Europe, an embarrassing accolade by anyone’s standards. However, this appears to be changing as crime figures are reducing and future projections for the number of prisoners predict just over 90,000 people will be imprisoned by 2017, 5,000 fewer than predicted a year ago. In the middle of an increasingly desperate economic climate in the UK, a fall in crime rates is almost miraculous and is something about which the current government ought to be shouting.

However, in an unusual move, the Lord Chancellor and Minister for Justice, Chris Grayling has ignored the successes in crime reduction and instead called for a replacement of a number of old, small prisons with a new super prison which will hold over 2,000 prisoners. Such colossal prisons are not a new idea and were suggested in 2009 by the then Home Secretary, Jack Straw in the form of “Titan Prisons”. Experts and Parliament alike roundly dismissed the introduction of such

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prisons and Grayling, having taken it upon himself to resurrect the Titan prison, has left politicians and prison reform activists thoroughly bemused.

The demolishing of crumbling Victorian prisons which hold too many inmates in decrepit conditions is rightly being met with applause from both sides of the Commons. These prisons were spread across the UK from Shrewsbury to Hull and have been in need of extensive modernising for many years. As Grayling appears to have identified, it will be more cost efficient to build new facilities rather than try to patch up prisons, including one of which was built long before Queen Victoria came to the throne. Rather predictably Grayling has focused his justification for the closure of such prisons not on arguments relating to financial efficiency rather than the desperate need for better facilities for the inmates but whatever his motivation, the closing of such prisons can only be welcomed.

Unfortunately Grayling has not proposed that facilities near these sites are built but rather has opted to take all of these 2,600 inmates and put the majority of them into one colossal prison warehouse. Grayling, again focusing on the bottom line, believes that the use of a Titan prison will be cost effective, making savings of £63 million. Ostensibly this is a logical conclusion as such facilities require fewer prison guards per inmate and as the building will be new, it will be cheaper to maintain. Unfortunately Grayling’s narrow view may well end up costing a great deal more than he saves.

Grayling appears to be ignoring all of the benefits of modern, smaller prisons. Such prisons do indeed require more guards and staff per inmate than larger prisons but with the result that these guards can at least name the inmates they work with on a daily basis. This allows guards to build relations with the inmates which not only improves prisoner behaviour but which also contributes to the guards’ well-being and job satisfaction. Perhaps more importantly, more staff per inmate allows far more recreational and vocational activities which are at the centre of prisoner rehabilitation. Even in a country such as the UK where the use of prison as a criminal sanction is an automatic response for many judges,

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the majority of people have accepted that rehabilitation is essential to reducing recidivism. For all the rhetoric, when Grayling claims that a Titan prison will require less staff he clearly does not envisage a prison offering the tailored and personal training and rehabilitation facilities smaller prisons can provide.

With less rehabilitation will come higher recidivism and the government’s current success of lowering crime will be washed away in a sea of public money being wasted on rising police, courts and eventually, incarceration costs.

Another loss to crime prevention which such a Titan prison would introduce comes in the location of this vast prison. At present a number of sites have been considered by the Ministry of Justice including London and North Wales. Undoubtedly whatever the location eventually agreed upon it will benefit through boosting the local economy but again. Grayling has taken too narrow an approach. The small prisons being shut down are spread across the country and so current prison staff are unlikely to move their families, potentially hundreds of miles away, to work in the new prison. This will result in redundancy for dozens, if not hundreds of prison staff with redundancy pay-outs coming out of the public purse and with nothing to show for it than rising unemployment rates. The removal of smaller, local prisons will also make it increasingly difficult for the families of prisoners to visit, arguably leading to a further alienation from society for prisoners which again, is a cause of recidivism.

In a country with an excruciatingly large prison popular and 70% recidivism rate, Grayling would do better to build on the success of the crime reduction of recent years rather than focus upon short-term savings he claims a Titan prison could achieve.

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Judicial Solidarity ...

When the Hungarian government reduced the retirement age for judges to 62, it found itself in Luxembourg in November 2012 on a case brought by the European Commission alleging age discrimination and concerns of a challenge to the independence of the judiciary.

The Judges at the Court of Justice to the EU agreed with the Commission and found in favour of their Hungarian colleagues agreeing that this was a case of unjustified discrimination on the grounds of age‌.!.

One Small Step for Welsh Devolution, One Giant Leap toward a Constitutional Court?

Cerian Griffiths BLC tutor The legality of the first bill passed by the Welsh assembly under new law-making powers was challenged by the Government in the autumn of 2012.

The bill was the first to be passed by the Assembly since it gained law-making powers without the need for reference to Westminster following the March 2011 referendum. Sections 6 and 9 of the bill were to allow Welsh councils to make byelaws without ministerial confirmation or confirmation from the Secretary of State. The Secretary of State agreed to section 6 of the bill but refused to agree to section 9.

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The England-Wales border The Welsh Assemble introduced the entire bill in spite of the Secretary of State’s refusal to accept section 9 and this bill was unanimously passed in the Welsh Senedd. The Attorney General, Dominic Grieve intervened before the Act could receive Royal assent asking the court to decide whether parts of the bill are beyond the Assembly's powers.

Since devolution there has been little or no role of UK ministers in connection with Welsh byelaws and it was the view of the Welsh government that the provisions of the bill to localise procedures for making, confirming and enforcing local authority byelaws brings the bill within the legislative competence of the National Assembly for Wales.

The Attorney General claimed the Local Government Byelaws Bill went beyond devolved powers and requested the UK's highest court to overturn them.

The Attorney General argued that the law doesn't just remove the rights of Welsh ministers, it also takes away a part, albeit small, of the Welsh secretary's powers. And this, said the Attorney General, went beyond the powers given to the Welsh government by the Yes vote in the referendum and so was unlawful.

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The Welsh government was however adamant that it did not and defended the Welsh position to the Supreme Court. This appeal to the Supreme Court was not about Welsh local issues but was rather, a fundamental constitutional and legal argument over how far devolution has gone. It is likely that the AG believed this bill to be the thin edge of the wedge with regard to future Senedd legislation. There are far bigger, more complex and controversial pieces of legislation scheduled to be considered in the near future, such as the Organ Donation Bill and this decision decides the scope of devolved powers in the future.

On the 21st of November 2012, five Supreme Court Justices heard the Government’s case, unanimously finding in favour of the Welsh Assembly. The court, led by the President of the Supreme Court, Lord Neuberger, held that the Assembly had the legislative competence to enact clauses 6 and 9 of the Bill. Clause 6’s removal of the Secretary of State’s confirmatory powers was incidental to and not the primary purpose of removing the need for confirmation of byelaws by Welsh Ministers.

Confirmatory powers were only given to the Secretary of State if no other statute gave this power to any other body. The practical consequence of this is that the Welsh Assembly will be able to make and unmake byelaws with no recourse to Westminster.

Whilst the case itself is important, the significance of this judgment has far wider constitutional implications not only for Wales but for the Supreme Court itself. As Supreme Court Judge, Lady Hale said with regard to the Welsh byelaws case: "Constitutional adjudication is a new animal for us... [This case] comes before the [supreme] court, not in a concrete case, but as pure constitutional review along continental lines. This is, as far as I know, the first case in which this has happened. We are not used to deciding cases in the abstract, without reference to a particular set of facts”.

As ever, the English media may have paid little attention to the developments in Welsh devolution which has led many to miss the fundamental shifting of the focus of the Supreme Court. However, there can be little doubt that the Supreme Court is taking on a more constitutional role in a modern United Kingdom which is no bad thing considering the speed at which national identity and democracy is fast developing.

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Barristers are specialist legal advisors and courtroom advocates. They typically are self-employed, but organised into “chambers.” It is not usual for a client to consult a barrister directly, they usually work exclusively on the instructions of a solicitor, who will be instructed by the client. Barristers are generally regarded as the cream of the English legal profession, and positions are highly competed-for.

QUALIFYING LAW DEGREE This is a standard 3-year academic English law degree complying with standards set by the Law Society and the General Council of the Bar.

NON-LAW DEGREE If the candidate does not possess a qualifying law degree, it is necessary to first complete a GDL. This is a 1-year course which provides sufficient academic knowledge of the core fields of law.

BAR PROFESSIONAL TRAINING COURSE (BPTC) In order to embark upon barristerial training, a candidate must be accepted as a member of one of the four “inns of court.” In a 1-year course, training primarily focuses on practical skills including advocacy and court procedure. A part of this training is the “12 dinners” requirement.

Traditionally this meant that all trainee barristers had to attend dinners in their inn of court on at least 12 occasions. Now this requirement can be met in the alternative by attending additional training seminars. Upon completion of this course the candidate is “called to the bar.”

PUPILLAGE: “FIRST SIX” This is the first six months of the pupillage, where the pupil barrister will observe and assist a “pupil master/mistress.” Upon satisfactory completion of this period, the pupil is awarded a certificate entitling them to work unaided.

PUPILLAGE: “SECOND SIX” During the second six months of the pupillage, the pupil barrister may take on their own cases and clients, while still being able to rely upon the support and advice of their senior colleagues in chambers.

TENANCY Upon completion of the pupillage, the pupil must apply to chambers for membership of that chambers as a self-employed barrister. This is known as “tenancy.” Completion of a pupillage at a particular chambers does not guarantee that the pupil will be accepted into that chambers.

QUEEN’S COUNSEL A limited number of senior barristers receive “silk” as a mark of outstanding ability. This entails entitlement to use the honorific “QC” and wear a silk gown in court. Many senior judges today were formerly QC’s.

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NO MORE CABS FOR YOU- THE FEES DISPUTE Denise Ashmore Director, British Law Centres In the red corner: SOLICITORS - In the blue corner: THE BAR Another long held tradition to hit the dust….

BLC students may recall the following two traditional rules from their studies of the English Legal Profession: No contractual relationship exists between a Barrister and the instructing Solicitor, The so-called Cab-Rank rule - Only QC not junior barristers technically were able to refuse to accept instructions from a solicitor.

A battle of wills has been raging since 2008 between the two professions to win the right to amend the current professional, if somewhat archaic, rule that no contract or enforceable legal relationship exists between the barrister and his instructing solicitor leaving the former in a vulnerable position in case of late or non-payment of agreed fees; no direct legal relationship or privity, of course, existing between the barrister and the client. As the courts could not enforce payment, the only route was by making a professional conduct complaint.

The Legal Services Board has now entered the fray and condoned the right of the Bar to revise the terms of its relationship with the Solicitor’s profession. Despite the continuing reservations expressed by the Law Society, from the 1st February 2013 the Bar can now ask solicitors to accept the Bar Council’s new standard contractual terms of business. This will not only give the Bar the right to sue but will also require payment within 30 days of invoice irrespective of whether solicitors have themselves received the funds from the client and the placement of the solicitor’s firm on a Withdrawal of Credit list if payment is not received on time. Not surprisingly the new terms are also seen as favouring the Bar by also including exemption clauses and the right to set higher fees, leading to the Law Society’s warning to solicitors to “Beware”.

And the cab rank rule… well if a solicitor does not agree to the new terms of business (which remains possible in theory at least) then the Bar can refuse to accept instructions… and the cab rank rule will cease to apply!

Where did my cab get to…Taxi!

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Solicitors are the core of the legal profession in England and Wales. They provide legal advice and legal services to the public. A member of the public may consult a solicitor on any matter, from the sale of a house, to legal advice on drafting a contract, to seeking representation in court against another party. They are typically organised in firms which specialise in a few areas of law. There are several different routes available to qualify:

QUALIFYING LAW DEGREE ROUTE This is a standard 3-year academic English law degree complying with standards set by the Law Society and the General Council of the Bar.

NON-QUALIFYING DEGREE ROUTE This may be any bachelor’s degree, which could be in a topic completely unrelated to law.

NON-DEGREE BASED ROUTE

MEMBERSHIP IN THE INSTITUTE OF LEGAL EXECUTIVES (ILEX)

COMMON PROFESSIONAL EXAMINATION (CPE / GDL) This is a 1-year course which aims to provide sufficient academic knowledge of the core fields of law to enable students to go forward to the LPC.

Members of ILEX (known as “legal executives”) are most ofLEGAL PRACTICE COURSE ten employed in law firms and/ (LPC) or undertaking legal work.

This is a 1-year qualification They must complete various which focuses on the practical courses whilst working to enaelements of legal practice, for ble them to retain and develop example procedural matters, their ILEX status. Those that skills and solicitors’ duties. wish to progress to become solicitors must pass higher-level LEGAL PRACTICE COURSE ILEX courses to be eligible for TRAINING CONTRACT AND this route.

PROFESSIONAL SKILLS COURSE TRAINING CONTRACT AND The final stage of training is to undertake a position in a law firm known as a “training contract.” This is a two-year period of work as a “trainee solicitor.”

During this period, the trainee solicitor must periodically attend modules for the professional skills course.

SOLICITOR Following successful completion of the training contract, the candidate is entered onto the roll of solicitors.

PROFESSIONAL SKILLS COURSE

COMMON PROFESSIONAL EXAMINATION

SOLICITOR

LEGAL PRACTICE COURSE

PROFESSIONAL SKILLS COURSE

SOLICITOR A solicitor’s full title is “Solicitor of the Senior Courts of England and Wales.” It is also possible for solicitors to take a further qualification to become “Solicitor Advocates.” This allows them to appear as advocates before the higher courts.

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Smart Grids and Smart Metering:

powering up the European Union’s future Piotr Pilarowski 1st year BLC student at the Warsaw Centre

EU Perspectives

Introduction

OBITER

DICTA

European’s Union ten-year growth strategy, Europe 2020, sets clear priorities. The current recessionary state of the European Union’s economy (which has subsisted since the crisis began in 2007) has required a new approach that would not only overcome the crisis and it’s repercussions which continue to afflict many of the Member State economies, but also one that would address the shortcomings of the current growth model. Such a preventative approach has resulted in adoption of a model based on three presumptions regarding future growth – it should be smart, which is to be achieved by further investment in innovation, research and education, it should be sustainable and it should be inclusive. This approach is meant to be achieved by realization of five main goals in the area of employment, innovation, education, poverty reduction and climate/energy.

For such scenario to be fulfilled it is absolutely obligatory that the European Union’s economic growth is achieved by the increase in innovation in both products and services, which is especially important in the fields of climate and energy as efficient and sustainable use of natural resources are currently among the most important challenges to be faced by the European Union.

The European Commission, in its Europe 2020, has set three main objectives (known as the ’20-20-20’ targets) for the energy sectors, namely: 1. a 20% reduction in the overall European Union’s greenhouse gas emissions from 1990 levels, 2. raising the share of the European Union’s energy consumption produced from renewable resources to 20%, 3. a 20% improvement in the European Union’s energy efficiency, which if disobeyed and not approached via innovation may result In lack of required modernization in existing grids and metering, as well as the decrease in renewable energy generation and no further development may result in the networks being compromised. Yet most importantly, the opportunity for energy saving and efficiency might be missed.

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For this not to happen, technological adaptation and further implementation of both Smart Grids (to some extend) and Smart Metering is obligatory.

Smart Grids A Smart Grid is an electricity network that can cost-efficiently integrate the behaviour and actions of all users connected to it – generators, consumers and those that do both – in order to ensure economically efficient, sustainable power system with low losses and high levels of quality and security of supply and safety. Smart Grids allow – due to the two-way energy and information transmission regarding the consumption and the generation of the energy – the integration of actions of every field, i.e. mass generation, distribution, transmission, operators, prosumers (consumers that produce energy as well) and others with the purpose of delivering the electric energy in a economical, safe and secured way.

Benefits brought by the development and implementation of Smart Grids receive an increasing appreciation not only from grid users (generators, consumers, storage owners) point of view but

also from the network operators (network operators: transmission and distribution system/ network operators - TSOs and DSOs/NSOs) point of view and even other markets actors (I.e. suppliers or aggregators). Such solution brings possibilities that were unobtainable before, for example – consumers receive an opportunity to directly control and manage their consumption (by tracking – thanks to smart metering – their patterns of electricity usage in a way that not only benefits their bills at the end of the month, but also mitigates the disproportion of the energy flow in the grid by smart usage of the existing sources (also potentially thanks to the prosumers – consumers generating energy for themselves with a potential surplus that can be transferred back to the grid itself). This concept also allows the energy in the grid to become improved and more targeted, thus making the grid itself more secure (vide later) and cheaper to operate (at least

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under a long term condition – the initial cost for smart grid implementation might be quite high).

Such a solution, thanks to the possible usage of renewal energy as a source of spread energy generation – which is meant to be parallel to the existing structures in the future (this includes sharing some of the existing pre-upgraded infrastructure) – is intended to be responsible for a major contribution to fulfilling all three ‘20-20-20’ targets in terms of climate and energy changes.

This scenario matches the Europe 2020 goals (at least in theory) and by integration of the both onshore and off-shore renewable energy and electric vehicles will maintain availability for conventional power generation and system adequacy.

Furthermore, by setting high standards and requirements in The Third Package provisions – especially the Electricity Directive (2009/72/EC with Annexes), the European Commission has shown to make a wise step in the direction of the proclaimed post-crisis smart, sustained and inclusive growth strategy that also – as a side effect – provides Europe increased competitiveness and thus may even result in presumed leadership in the EU technological providers (as not only energy market participants contribute to the concept of Smart Grids and Smart Metering, but also – and mostly when considering the economical income – the IT sector) that might lead in an overall increase in the quality of the market.

The Electricity Directive (2009/72/EC) obliges all Member States to launch the Smart Metering systems as preparation for the implementation and development of full Smart Grid and Smart Metering systems in the future. It also requires that, prior to 2020, Member States must fulfill obligations regarding the promotion of energy efficiency, as well as to reach consensus under the European’s Union Emission Trading System (EU ETS) by providing a grid that is build up from both the regular energy sources (i.e. Poland’s coal power plant system) and renewal energy

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sources, thus providing enough emission allowances (companies receive or buy emission allowances which they can trade with one another as needed) within each country for it not to violate European Commissions carbon limits. Consumers benefit from the concept – on the basis of the Energy End-Use Efficiency and Energy Services Directive (2006/32/EC) for metering – thanks to the accuracy of the consumption and generation information (which include actual time usage due to the fact that the information are transferred in real time) provided by the intelligent, two-way system.

This concept, inevitably, would be impossible to achieve without the further ongoing implementation of Smart Metering systems.

Smart Metering The first part of the implementation – which is successfully taking place throughout the European Union – and is meant to secure European Commission’s wishful thinking in regard to the ’20-2020 targets’ is based on the implementation of Smart Metering systems. The Advance Metering Infrastructure (hereinafter: AMI) allows for the two-way information exchange in real time regarding the usage/generation of the electric energy and the recipe/ generation of power that occurs between the intelligent house and the grid itself.

Data that comes from AMI is valuable in many different ways. By having the access to the factual usage of the energy they allow for billing the receiver for an actual amount of energy that he used. They also offer receivers clear and full information about their daily (weekly/monthly/ etc.) management of the energy which may help them to rationalize and reduce unnecessary energy usage. Also by providing such information, companies help to build their image as trustworthy partners and even may be useful for the lowest income consumers by helping them to manage their financial liquidity. Smart metering systems are also beneficial for the energetic companies themselves as they allow them to adjust tariffs to the customers’ individual needs. By doing so they not only help to manage the energy production and distribution in a more stable and safe way, but they also may result in an overall reduction in energy usage or carbon emissions. Polish energy system also provides them with a change of reducing their costs which otherwise would be considered as a consequence of bad prognosis.

The European Union hopes to realise the benefits provided by smart grids and smart metering systems. To make those benefits obtainable for the market on a legal basis, the European Commission decided to provide the CENELEC (European Committee for Electro-technical Standardization), ETSI (European Telecommunications Standards Institute) and CEN (European Committee for Standardization) with a special mandate that would be kept in frames of the

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following directives: 1. Measuring Instruments Directive (2004/22/EC) 2. Directive on energy end-use efficiency and energy service (2006/32/EC) 3. Directive for the Internal Electricity Market (2009/72/EC) 4. Directive for the Internal Electricity Market (2009/73/EC) By doing so, the European Commission allowed for further standardization (which is mandatory for any technical development that is supposed to take place in many different countries) and thus provided the market with tools that allowed not only more ideas to be created, but also made them possible to implement. Especially important was the 2004/22/EC directive on measuring instruments that set the essential legal requirements for the meters providing fair billing concept.

Such solutions have thus proven to work in practice as well as in theory. For example, in the United Kingdom, the ‘AlertMe’ project which allows customers to turn off appliances by web interface using mobile appliances was apparently responsible for saving roughly 40% of individual users’ electricity needs during an 8-month time period. Similar results were achieved in the USA by means of a pilot project called Smart Grid City. Implementation of a program that was built on the basis of AMI led to a 90% reduction in voltage problems, which in fact reduced the overall power requirements by 3-5% in a city of 100,000 people.

Voltage problems are another, next to the information exchange, benefit of the Smart Metering systems. Thanks to the fact that everything happens in real time, AMIs are able to monitor the tensions characteristics or frequencies (the problem of how to, for example, achieve a stable frequency throughout the whole grid is a different and more technically complicated matter that is hard to address by current means; If not solved it may result in problems similar to those that are currently happening in Germany, where the spread of renewable energy sources are slowly being reduced), as well as to notify disruptions or interruptions in the power supply.

Conclusion Assessing the value of this unique system in theory leaves no doubt regarding the future of Smart Grids and Smart Metering – its implementation should be conducted as fast as possible to provide the market with the all of the perceived benefits. However, theoretical aspects of the presented solution have several flaws (at least currently) that may be hard to overcome when considering the practical aspects of implementation and development of Smart Grids and – to a lesser extent – Smart Metering.

A system that is based on a significant amount of spread energy sources, especially renewal energy sources, that are connected to regular energy sources provides standardization and continuity issues. A situation – such as, under Polish realities - where the spread energy generators (i.e. on-shore and off-shore wind farms) in the north part of the country do not generate enough energy (keep in mind that wind-based power plants are in operation for up to 60% of the year) and as such energy to be provided by the coal generators situated mostly in the south part of the country requiring high amount of funds and time spent on starting (or cooling down when wind farms start to work properly again) the blocks, thus creating the risk of central

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systems deregulation which may result in lack of energy provided to the northern parts of the country. Matter presented above becomes even more problematic in relation to the industry sector which is highly dependent on a continuous energy supply.

Addressing those problems should be the main priority for markets participants that are responsible for development and implementation of Smart Grids and Smart Metering. Without such an investment, proved not only in theory but also in practice, further progress in the process of meeting the Europe 2020 growth strategy goals regarding the climate and energy might be impossible to achieve.

The Law Society Gazette published the 2012 statistics of a legal helpline charity (LawCare) which showed that:  

 

 



Depression and alcohol were the next most frequently problems reported by lawyers Of the lawyers who identified a specific cause of their problem, workload (28%), financial problems (19%), disciplinary issues (14%) and bullying (14%) were the most frequently cited.

Other reasons cited were ethical issues (8%), redundancy (7%) and relationship problems (6%).

Lawyers working in litigation accounted for the highest number of calls (17%), followed by commercial (15%) and high street and private client (12%). Family lawyers and conveyancers each accounted for 10% of calls.

The data shows that 62% of callers were female and 38% male, and just over a third (35%) were trainees or had been qualified five years or less.

Among callers reporting problems with alcohol misuse, 87% had been qualified for 10 years or more, compared with 37% of those complaining of stress that had been qualified for more than a decade.

The words to linkLawCare report suggests that the figures indicate that new lawyers start drinking to alleviate the stress and then later find themselves addicted.

LawCare’s freephone helpline is 0800 279 6888 NB. These figures reflect only a small fraction of lawyers who actually call LawCare (378 cases in 2012 and 392 in 2011) so one cannot be sure of the extent to which they reflect the profession as a whole. Are the vast majority of lawyers who don't call LawCare happy and content, too busy to call, or too stressed/drunk to remember the LawCare telephone number?

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Is a President a “citizen” for free movement purposes in EU law?

Dr Steve Terrett Deputy Director, British Law Centres

In one of very few cases brought by one EU Member State against another, Hungary brought an action against the Slovak Republic (on the basis of Article 259 TFEU) for refusing to permit the Hungarian President to enter Slovakia. The Hungarian President (Mr Laszlo Solyom) had been due to visit the Slovak town of Komarno on 21 August 2009 to participate in a ceremony inaugurating a statute of Saint Stephen (the founder and first king of the Hungarian State).

However, this date is also a politically sensitive one in Slovakia, since on 21 August 1968 the armed forces of five Warsaw Pact countries (including Hungarian troops), invaded Czechoslovakia. Wishing to prevent Mr Solyom from entering or being in Slovakia on that sensitive date, the Slovakian authorities sent a note verbale to the Ambassador of Hungary in the Slovak Republic in which it prohibited the President of Hungary from entering Slovakia.

Slovakia appeared to justify the refusal of entry on Directive 2004/38/ EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the “Citizens’ Rights Directive”, hereinafter the CRD).

Although the Hungarian President did not attempt to enter Slovakia following receipt of this note, the Hungarian authorities argued that the CRD offered no legal basis on which to justify this exclusion. Hungary sought the EU Commission’s opinion on the situation and the latter acknowledged that Slovakia’s refusal to admit Mr Solyom appeared to be both disproportionate and contrary to the rule in Article 30 CRD that any exclusions to the free movement of persons must be based on the personal conduct of the individual concerned.

However, the Commission did not consider that the CRD was applicable to the case at hand since, as Head of State, Mr Solyom’s visit was not in the capacity as an ordinary EU “citizen” and therefore fell outside the scope of the CRD altogether. Continuing with this line of argument, the

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Slovak Republic argued that the CJEU had no jurisdiction to hear Hungary’s claim, since EU law was inapplicable to the present facts.

Having rejected Slovakia’s inadmissibility arguments, the CJEU nevertheless supported the thrust of the Commission’s opinion and concluded that, although Mr Solyom is a Hungarian nationality and unquestionably enjoys the status of EU citizenship, customary rules of general international law and those of multilateral agreements (such as the New York Convention of 14 December 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents), indicate that Heads of State enjoys a particular status in international relations which entails, inter alia, privileges and immunities. Visits by Heads of State cannot be compared with visits by “ordinary” EU citizens since the presence of a Head of State on the territory of another Member State imposes on that latter State the obligation to guarantee the protection of the Head of State, irrespective of the capacity (i.e. whether public or private) in which his stay takes place. This justified a distinction between the treatment of Heads of State and other EU citizens, meaning that their access to the territory of another Member State is not governed by the same conditions. Accordingly, the CRD was inapplicable to visits by Heads of State and Slovakia was wrong to have cited the CRD as the basis for its refusal to allow entry.

Nevertheless, the mere fact of Slovakia having incorrectly relied upon the CRD did not mean that the President of Hungary was entitled to rely on this piece of EU law. In fact, it was deemed totally inapplicable to the facts of the present case. In short, despite holding citizenship of the EU, a visiting Head of State will fall outside the scope of the Citizens’ Rights Directive and refusal of entry will not give rise to State liability.

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EU Transparency and Public Access to Documents Surrounding the Economic Crisis: does the rhetoric exceed the reality?

Dr Steve Terrett Deputy Director, British Law Centres

“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.” (John F. Kennedy) Despite the aforementioned quote, this article does not purport to address the issue of State secrecy in the United States of America. Indeed, most readers would instantly recognise a distinction between the high rhetoric of Kennedy’s quoted words and the low reality of secret prisons and other aspects of the “Secret State” which abound in America and elsewhere in the world. Instead, this article aims to discuss a recent case which raises the issue of whether the EU’s rhetoric of transparency and open government, found throughout the Treaties, secondary legislation and Charter on Fundamental Freedoms, is any closer to reality than Kennedy’s lofty proclamations in the last century.

This discussion takes place against case T-590/10 (Gabi Thesing and Bloomberg Finance LP v European Central Bank), decided on 29th November 2012, in which the seventh chamber of the General Court of the European Union (formerly known as the Court of First Instance) was asked to review a decision of the European Central Bank (hereinafter ECB) to deny access to certain documents to a journalist who wished to write a story on the EU economic crisis and, more specifically, the economic situation in Greece.

Ms Gabi Thesing, a journalist working for Bloomberg Finance LP, requested that the ECB grant her access to document SEC/GovC/X/10/88a, entitled ‘The impact on government deficit and debt from off-market swaps. The Greek case’ (‘the first document’), and to document SEC/GovC/ X/10/88b, entitled ‘The Titlos transaction and possible existence of similar transactions impacting on the euro area government debt or deficit levels’ (the second document). Those documents concerned the use of derivative transactions in financing deficit and in government debt management. The applicants sought this information for the purposes of writing an article which would discuss the true level of debt of the Hellenic Republic and the question whether the Greek authorities provided complete and correct information to Eurostat as regards this debt level, including the off-market swap operations. This followed an earlier report by Eurostat (entitled ‘Report on Greek Government deficit and debt statistics’ of 8th January 2010) which noted the persistent weaknesses of Greek fiscal data and instances of the Greek authorities misreporting deficit and debt data.

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The applicant’s request was rejected by the ECB’s Director-General of the Secretariat and Language Services and, following Ms Thesing’s request that the ECB’s Executive Board review the rejection decision, the refusal was confirmed by the ECB’s Executive Board. Such refusal was stated to be based on public interest concerns relating to the economic policy of the EU and the Hellenic Republic (Greece) and to protection of the ECB’s internal deliberations and consultations.

Such public interest considerations were said, by the ECB, to be justified by a Decision of the European Central Bank of 4th March 2004 on Public Access to European Central Bank documents (2004/258/EC), the full text of which is available from: http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=OJ:L:2004:080:0042:0044:EN:PDF). The ECB relied, in particular, on the following articles of that Decision: Article 4: Exceptions 1. The ECB shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards: — the confidentiality of the proceedings of the ECB's decision-making bodies, — the financial, monetary or economic policy of the Community or a Member State, — the internal finances of the ECB or of the NCBs [i.e. National Central Banks], — protecting the integrity of euro banknotes, — public security, — international financial, monetary or economic relations; (b) the privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data; (c) the confidentiality of information that is protected as such under Community law.

2. The ECB shall refuse access to a document where disclosure would undermine the protection of: — the commercial interests of a natural or legal person, including intellectual property, — court proceedings and legal advice, — the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.

3. Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBs shall be refused even after the decision has been taken, unless there is an overriding public interest in disclosure.

4. As regards third-party documents, the ECB shall consult the third party concerned with a view to assessing whether an exception in this Article is applicable, unless it is clear that the document shall or shall not be disclosed.

5. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

6. The exceptions as laid down in this Article shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years unless specifically provided otherwise by the ECB's Governing Council. In the case of documents covered by the exceptions relating to privacy or commercial interests, the exceptions

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may continue to apply after this period.

Refusal of access to the first document was justified by the ECB on the basis of the second indent of Article 4(1)(a) and Article 4(3), whereas an additional ground for refusal was provided as regards the second document, namely the protection of the commercial interests of a natural or legal person, under the first indent of Article 4(2).

The applicants claim that the General Court should: annul the contested decision; and order the ECB to grant the applicants access to the documents at issue; and order the ECB to pay the costs.

Having ordered the ECB to produce the two documents at issue, and stated that they would not be disclosed to the applicants, the General Court reviewed the contents of those documents and handed down a judgment in favour of the ECB. The details of the general Court’s approach to the 3 separate elements of the applicant’s claim are discussed in further detail below.

Inadmissibility of the applicant’s request for the General Court to order the ECB to grant the applicants access to the documents at issue Although this was the applicant’s second claim, the Court dealt with it first, since it was fairly uncontroversial and could be disposed of briefly. In essence, the Court denied that it had the power to issue and such order to the ECB, or indeed to any other EU institution, since this would be exceeding the Court’s constitutional role in reviewing disputed decisions. The Court’s role is, in many respects, similar to that of a Constitutional Court in many of the EU Member States – i.e. although it may declare a particular decision to be invalid, it may not substitute its own decision for that of the appropriate decision-maker. That would be to confuse the boundaries between constitutional review (a judicial function) and decision making -per se (an executive function).

Accordingly, the Court held that: “…the Court is not entitled, when exercising judicial review of legality, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before it, including those concerning access to documents…. When the Court annuls an act of an institution, that institution is required, under Article 266 TFEU, to take the measures necessary to comply with the Court’s judgment.”

Inadmissibility of the applicant’s request for the General Court to order partial access to the documents at issue The General Court also briefly disposed of an additional argument raised by the applicants – namely that the ECB should have granted at least partial access to the documents at issue, pursuant to Article 4(5) of the Decision, quoted above. However, the applicant’s claim in this respect ran into a procedural barrier found in the General Court’s rules of procedure. Article 44(1) (c) of those rules, read in conjunction with Article 48(2) thereof, state that the original application must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. Since the applicant’s original claims did not include an allegation that the ECB should have ordered partial disclosure of the documents (this argument was only raised by the applicants in reply to the ECB’s defence submissions), it was effectively too late to introduce this argument once the proceedings

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had begun. Accordingly, the Court briefly concluded that “…the applicants’ arguments concerning Article 4(5) of Decision 2004/258 are inadmissible, given that they were not relied upon in the application. Moreover, it must be pointed out that those arguments do not constitute an amplification of the pleas set out by the applicants in the application… [T]he subject-matter of the proceedings and the summary of the pleas in law must be stated sufficiently clearly and precisely to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. In order to ensure legal certainty and the sound administration of justice it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, but coherently and intelligibly, in the application itself.” Having failed to mention this claim in the original application, the applicants were effectively estopped from relying upon it at a later date.

Refusal to annul the contested ECB decision The applicant’s first claim sought to annul the ECB’s decision to refuse access to the disputed documents. They put forward three pleas in law in support of their action. The first plea alleged infringement of the second indent of Article 4(1)(a) of Decision 2004/258 – the applicant argued that the ECB had incorrectly interpreted the exception to the right of access relating to the protection of the public interest so far as concerns the economic policy of the Union and the Hellenic Republic. In essence, the applicant argued that the ECB incorrectly based its refusal to grant them access to the documents at issue on the exception to the right of access provided for in that provision, since disclosure of those documents would not undermine the protection of the public interest, so far as concerns the economic policy of the Union and the Hellenic Republic.

The Court began first by noting the EU’s commitment to ‘transparency’, as shown in Article 1 TEU (which speaks of “…a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen) and Article 15 TFEU, the relevant parts of which are reprinted below: Article 15 TFEU 1. In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible. […]

3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph. The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.

Furthermore, in Joint Declaration relating to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30th May 2001 regarding public access to European Parliament, Council and Commission documents, the European Parliament, the Council and the Commission call on the other institutions and bodies of the Union to adopt internal rules on public

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access to documents which take account of the principles and limits set out in the Regulation.

Public access to ECB documents was accordingly revised and the “old regime” (ECB Decision ECB/1998/12 of 3rd November 1998 concerning public access to documentation and the archives of the European Central Bank) was replaced with the “new regime” (i.e. Decision of the European Central Bank of 4th March 2004 on Public Access to European Central Bank documents 2004/258/EC) under consideration in the present case. The 2nd recital in the preamble to ECB Decision 2004/258/EC clearly states that its aim was to ensure “wider access to ECB documents, while at the same time protecting the independence of the ECB and of the NCBs, and the confidentiality of certain matters specific to the performance of the ECB’s tasks.”

The primary obstacle to such access is Article 4 of the decision, quoted above, which clearly required interpretation by the General Court. As an “exception” to the general rule of public access, the Court confirmed that is must be interpreted and applied strictly. The first practical manifestation of such strictness is that the ECB is required, in principle, to explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception upon which it is relying. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical, although the ECB enjoys a wide discretion for the purpose of determining whether disclosure could undermine the public interest and the Court’s scope for review of the legality of such a decision is limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers. This fairly weak test of constitutionality is one that has been applied consistently by both the CJEU and the General Court when reviewing decisions of EU institutions (see, for example, Case C-266/05 P Sison v Council [2007] ECR I-1233) and, in practice, tends to make it extremely rare that the decisions of those institutions are found to be unlawful.

The General Court noted that Article 4(1)(a) places the ECB under a duty (“shall”) to preclude the disclosure of documents which would undermine the protection of the public interest and that no consideration must be given to counter-arguments of an ‘overriding public interest’ to justify public access. Accordingly, the applicants’ arguments (attempting to establish a greater public interest in disclosure) were rejected. In this author’s opinion the Court too readily and dismissively rejects the proposed “balancing act”, whereby the respective weight of public interest arguments for and against disclosure are weighed, in favour of an overly semantic approach to the Article in question. The Court’s reference to the ECB’s obligation (“shall”) must be viewed in the context of the remainder of that part of Article 4, which creates such an obligation only in the event that “…disclosure would undermine the protection of the public interest”. Logically, the prerequisite of undermining public interest must be met before the obligation referred to by the Court arises and any assessment of whether public interest is undermined or advanced by disclosure demands an assessment of the type which the Court cursorily rejects.

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The ECB had justified its initial refusal inter alia on the basis that the requested document contained assessments and views of ECB staff members regarding the impact of off-market swaps on government deficit and on government debt with a particular view to the case of the Hellenic Republic. Such views were given on the partial data available at the time the document was drafted in order to give a snapshot of the situation in March 2010. In the ECB’s submission, the information contained in that document was outdated at the time of the request for access, so disclosure of that information would bear the substantial and acute risk of severely misleading the public in general and the financial markets in particular. In a very vulnerable market environment, that disclosure would affect the proper functioning of the financial markets. Thus, disclosure of the information contained in that document would undermine public confidence as regards the effective conduct of economic policy in the Union and the Hellenic Republic.

Moreover, as an additional element, the ECB noted, by way of justification for the refusal to grant access to that document, that the issues examined in the document at issue were then part of a thorough examination by the Commission in the framework of the excessive deficit procedure, and that the result of that examination would be published in due time.

The Court concluded that, since the first document therefore dealt with aspects relating to the economic policy of the Union and the Hellenic Republic, it clearly fell within the scope of the exception provided for in the second indent of Article 4(1)(a) of Decision 2004/258; indeed, this was not contested by the applicants. Furthermore, given the fragility and volatility of the EU, and particularly Greece, economic markets at the time of the request, it was clear that market participants could use the ECB information, which is considered a particularly important and reliable source of information, to assess current and prospective financial market developments.

Moreover, the ECB was entitled to find that public confidence is an essential element affecting the proper functioning of the financial markets. The ECB was not indeed contradicted in this respect by the applicants.

Accordingly, the ECB did not commit a manifest error of assessment in considering that disclosure of the information contained in the first document would specifically and effectively undermine the public interest so far as concerns the economic policy of the Union and the Hellenic Republic. The Court also rejected the applicant’s arguments that, since the information contained in the document was valid only as of February 2010 – 7 months prior to the request – the risk of investors and market analysts relying on such information postOctober 2010 was theoretical or minimal.

The second document contained the ECB’s staff assumptions and views regarding the ‘Titlos’ transaction – a special purpose financial vehicle created on 26th February 2009 by the National Bank of Greece which issued a certain amount in euro of asset-backed securities due in September 2039. The ECB’s reasoning for refusal stated that, since that document was closely connected with the first document, it also fell within the exception to the right of access referred to in the second indent of Article 4(1)(a) of Decision 2004/258. Again, the Court concluded that the refusal was not vitiated by a manifest error, since disclosure of the information contained therein might have influenced the financial markets and their assessment of the situation regarding the government

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deficit and the government debt of the Hellenic Republic in the same manner as disclosure of the first document ECHR arguments The applicants claimed that Article 4 of the decision should be interpreted in a manner compatible with Article 10 ECHR (concerning the right to freedom of expression, which includes the right to receive and impart information and ideas without interference by public authority). However, as the Court rightly noted, even the ECHR does not state this as an absolute right and indicates that it may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence. The Court went on to note that Article 10 ECHR corresponds to Article 11 of the EU Charter on Fundamental Freedoms and that, pursuant to Article 52(3) of the latter, the meaning and scope of the rights contained in the Charter are to be the same as those laid down by the ECHR, unless Union law provides more extensive protection.

The Charter contains a provision dealing specifically with access to EU documents (Article 42) which states that: “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.” Nevertheless, the applicants based their arguments not on this lex specialis but rather on the broader principle of freedom of expression, found in Article 11 of the Charter. They also relied on a number of cases of the European Court of Human Rights – Társaság a Szabadságjogokért v. Hungary; Kenedi v. Hungary; and Gillberg v. Sweden.

However, the Court distinguished each of those cases form the case at hand. In Kenedi v. Hungary, the ECtHR found that there had been an infringement of Article 10 ECHR on the ground that the measure in question in that case was not prescribed by law, whereas the refusal in the present case was based on Article 4(1)(a) of Decision 2004/258, which in itself was adopted on the basis of other EU legislation. As regards Gillberg v. Sweden, the Court noted that the documents concerned in that case were not the property of the person who refused to grant access to them, whereas the documents sought by the applicants in the present case were the property of the ECB. Furthermore, in Gillberg v. Sweden the refusal to grant access to those documents was contrary to a court decision ordering that access be granted, which was clearly not the case here. As regards Társaság a Szabadságjogokért v. Hungary, the facts from those of the present case to the extent that they concerned a refusal to communicate information relating to a constitutional complaint brought by a public figure on the ground of the their personality rights. By contrast, the present case did not concern alleged private data of a public figure.

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Again, it may be argued that the Court adopted an overly formalistic approach when approaching the ECHR case-law relied upon by the applicant. Whilst it is undeniable that certain factual differences exist between the cited cases and the proceedings before the General Court, this is virtually inevitable given the multifarious situations in which freedom of expression cases arise.

Such slight differences should not detract from the essence of the ECtHR’s judgments, which is that the freedom of expression requires precisely the “balancing act” of competing public interest arguments which the General Court sought to avoid. Perhaps one key difference which deserves mention here is the fact that, whilst the ECtHR consistently refers to a “margin of discretion” to be given to States when applying the ECHR, this falls some way short of the discretion afforded to EU institutions which, following the test deployed by the CJEU and followed by the General Court, will only be exceeded in “manifest” cases. If the EU remains committed to the goal of transparency, it is difficult to see how it can maintain such a flimsy test for assessing the validity of decisions made by its institutions. Whilst it is true that the events discussed herein took place at a time of extreme turmoil in the Greek and other EU economies, it is precisely in times of crisis – whether military, political or economic – that human rights, and the freedom of expression, are in the greatest need of protection and, without a fundamental shift in attitude from the EU’s judicial bodies, such protection is unlikely to be guaranteed.

Thoughts on the English Legal System Lord Denning MR on the duties of a barrister: “He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that is fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. “

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THE INTERNATIONAL CONVENTION ON THE LAW OF THE SEA IN FOCUS: AN OCEAN OF LEGAL TERMS! Inconsistent terminology related to marine environment management and its implications for effective enforcement of relevant legal regulations Marta Skorek

International Perspectives

2nd year student, Gdansk Centre

OBITER

DICTA

“…the problems of ocean space are closely interrelated and need to be considered as a whole…”

The Preamble to the United Nations Convention on the Law of the Sea, 1982 (UNCLOS)

Adopted in Montego Bay in 1982, the UNCLOS has laid the foundation for the protection and preservation of the marine environment. Although the Convention does not include any provisions directly relating to the planning, management or governance of marine areas and their resources, it imposes on the State Parties the obligation to cooperate globally and regionally to promote the aims of the Convention. In this article an attempt will be made to present the terminology of international maritime law with respect to marine environment management, and to underscore its inconsistent use which frequently results in terminological confusion. Furthermore, the article will highlight the implications of such a confusion for international cooperation in this multidimensional and interdisciplinary area.

Magnitude of the issue Marine environment management appears to be one of the most pressing world issues, requiring cross-border, international and multi-faceted cooperation. As large, life-supporting, ecosystems, the world’s oceans and seas play a crucial role in regulating our climate and providing livelihoods. However, there is no escaping the fact that they fall prey to human-related activities that generate pollution and pose a serious threat to the biodiversity and long-term sustainability of the oceans.

Fortunately, the issue of marine environment management has been gaining prominence for some years and at virtually every level of

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cooperation. There is a growing awareness that the freedom of navigation as well as social and economic interests appear to be incompatible with the international obligations under the UNCLOS to protect and preserve the marine environment, which may lead to irreconcilable conflicts of use. This can be illustrated by the case of offshore wind farms planned to be built in environmentally sensitive zones or shipping lanes running through areas with offshore oil platforms. Therefore, in order to protect them from overexploitation and contamination, the world’s oceans and seas have to be zoned, planned and managed in an integrated, interdisciplinary and inter-sectorial manner. It is at this point that marine spatial planning and ocean zoning becomes invaluable as tools for ecosystem-based management that takes into account the fragility and interconnectedness of marine environment. Maritime spatial planning is also a key instrument for the Integrated Maritime Policy of the European Union. However, both governments and scientific communities are faced with the problem of inconsistent use of terminology used to refer to marine environment management, which seriously hampers legal communication.

Multitude of legal terms and their inconsistent use There are many terms used to convey the meaning of marine environment management: marine spatial planning, maritime spatial planning, marine area spatial planning, integrated coastal zone management, integrated marine spatial planning, sea use planning, ocean governance, ocean zoning, or ocean management. The list is by no means exhaustive. While some of the terms refer only to marine waters, others cover both the marine and coastal (terrestrial) components of marine environment. It is generally accepted that this terminological mess stems from the fact that there are problems with clear and precise definitions of the abovementioned terms: “Due to the relative novelty of the concept of comprehensive Spatial Planning in the marine field, there are yet no commonly agreed definitions or standards for the subject.� As a result, the terms are very often used inconsistently as well as synonymously and interchangeably despite academic discussions and the fact that some countries have already started to implement their own maritime policies. Since the scope of marine spatial planning has not been clearly defined, marine stakeholders prefer to use some of the following terms while finding others unacceptable. For ease of reference, the terms have been grouped into three categories of marine areas, coastal areas and global oceans: 1. Marine areas The aim of marine spatial planning is to plan and regulate human-related activities at sea while protecting marine environment. There are different terms used to describe the process of designating particular areas of the marine environment for specific uses: marine spatial planning, area-based management, ocean zoning or sea-use planning. They seem to

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denote different concepts to different stakeholders. Many of them are not fully descriptive of the systems they are intended to describe. Some experts suggest the term ecosystem-based marine zoning as conveying the true intent of the system. While in the US and Canada the term marine spatial planning is used, the European Union recommends the following: maritime spatial planning: “The term maritime spatial planning will be used throughout the document even though different terms tend to be used synonymously, e.g. by Member States, in current practice. The term maritime spatial planning is favoured over marine spatial planning to underline the holistic cross-sectoral approach of the process.”

The above examples show that views vary greatly as to the concept and scope of marine spatial planning as well as its links to existing approaches.

2. Coastal areas (at the land-sea interface) The governance and management of human activities in coastal zones is no exception to the problem of terminological inconsistency. The terms used to convey the meaning of coastal area management include: coastal zone management, coastal area management, shore management, coastal resources management, coastal management, cross-sectoral integrated coastal area planning.

However, the terms ‘integrated coastal zone management’ (ICZM) and ‘integrated coastal area management’ (ICAM) tend to be preferred by academics and practitioners. The terms appear to be synonymous, yet there are some differences in terms of approach and practice.

While in Canada and the US the term ICZM is used, certain UN organizations select ICAM. As for integrated coastal zone management (ICZM) and integrated coastal management (ICM), there is a move away from coastal ‘zone’ management toward ‘integrated’ coastal management. For some experts, ICM is a concept or a field of study, whereas ICZM is used to refer to a programme aimed at defining the boundaries of the coastal zone. Although the term ICM is said to be more acceptable and commonly used, in Australia the term ICZM is preferred.

3. The Global Ocean Chapter 17 of Agenda 21 of the UN Conference on Environment & Development (1992) constitutes a policy framework on ocean governance that underscores the need for “integrated management and sustainable development of coastal areas”, “marine environmental protection”, “sustainable use

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and conservation of marine living resources of the high seas and [those] under national jurisdiction” and “strengthening international, including regional, cooperation (...).” However, there is no common all-encompassing definition of the term. It has only been loosely defined despite many attempts undertaken to stress its complex and multidisciplinary approach to the management of coastal and marine environment and its resources.

Causes and implications of terminological confusion It may be argued that the terminological problems stem from different legal practices and cultures that promote their own methods and approaches. Therefore, it is extremely challenging to convey complex concepts using an accessible and consistent terminology. Undoubtedly, the legal terms are system-bound, culture-specific and conceptually incongruent, which leads to terminological confusion and results in the use of many overlapping terms. The terminological and conceptual non-correspondence contributes to the lack of clarity or transparency.

Furthermore, there are no applicable legal definitions, which forces linguists, lawyers and other marine stakeholders to make arbitrary terminological choices. A good illustration of this problem is the process of planning that is very often confused with management and governance, which has serious terminological and conceptual consequences. It is worth remembering that the terms have a different scope of meaning. Furthermore, there is a risk that due to the terminological inconsistencies the interdisciplinary field of marine environment management will not be treated seriously.

Possible solution There is no denying that an interdisciplinary terminological project highlighting the need for common terminology would be of importance not only to linguists or translators but also to lawyers, decision-makers and marine experts. Firstly, the research project would analyze the terminology used at international, supranational, regional, national and local levels. Once the meaning of the relevant terms has been established in English, then it would be possible to translate them into other languages, thereby facilitating legal communication. Secondly, the research work would focus on six English-speaking countries: the United Kingdom, Ireland, the United States, Canada, Australia, and New Zealand. It goes without saying that each national legal system has “its own terminological apparatus and underlying conceptual structure, its own rules of classification, sources of law, methodological approaches and socio-economic principles”, which makes uniform interpretation and application of law extremely difficult. However, these countries share the same language as well as can boast considerable experience in the area of marine environment management. Despite some apparent differences they share a common legal tradition. Such a selection also underscores the role of the English language as a lingua franca in the modern world. Thirdly, the project would take into account the nature of legal language in which one term should ideally refer to one concept. The harmonization of legal language needed in this field requires that the same words cover the same concepts. However, it is worth

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remembering that it may be a difficult task even where the countries in question share the same language. Then, the research work would involve carrying out in-depth comparative law analyses in order to arrive at conclusive terminological solutions. Finally, the project would cover a research work in the area of terminology related to marine environment management based on the assumption that finding the exact terminological equivalent may prove extremely difficult and that sometimes only partial correspondence may exist between legal concepts. While the need for precision of legal language is its key feature, even within the same language system one term may cover different concepts in different legal systems. On the whole, it is crucial to remember that the terms used to convey the meaning of marine environment management are not interchangeable.

In fact, there is a hierarchy of terms. Both precision and consistency in the use of the legal terms and concepts would facilitate the creation of effective procedures and increase their transparency.

Conclusion This article does not aspire to provide any clear or conclusive solutions to the terminological and conceptual problems relating to marine environment management. In fact, it contains more questions than answers. The aim of the article is to shed some light on certain terminological problems that constitute a barrier to legal communication in the area of marine environment management. Unfortunately, to the best of my knowledge, there are no comprehensive publications on the terminology of marine environment management that would offer conclusive terminological and conceptual solutions. Once there is a broad consensus on the meaning and use of these English terms, it will serve as a basis for further translation into other languages, which will hopefully have a positive impact on the creation and enforcement of relevant legal regulations in general, and on the protection of marine environment in particular.

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Human Rights’ Watch: “Involuntary sterilizations of Roma women in the light of the European Court of Human Rights’ jurisdiction” Asia Kisielinska BLC Graduate from the Nicolaus Copernicus University , Toruń

Involuntary sterilization is one of the most egregious forms

of

discrimination

against women. The issue of involuntary sterilizations arises in connection with a multitude of health and social

policy

Examples situations

matters. include

involving

HIV

status such as in the case F.S. v. Chile, currently pending before the Inter-American Commission on Human Rights, and ethnicity, such as in N.B. v. Slovakia heard before the European Court of Human Rights and A.S. v. Hungary heard before the United Nations Committee on the Elimination of Discrimination Against Women. On 8th November 2011 the ECtHR gave a judgment in the case V.C. v. Slovakia. The Court held unanimously that the respondent State was in breach of Article 3 and Article 8 of the European Convention on Human Rights (ECHR). This judgment was longawaited by human rights activists and is a step forward for efforts to bring justice to the potential thousands of Roma women who were sterilized without their consent in Central and Eastern Europe.

The facts of the case The applicant was a Roma woman, sterilized in a public hospital without her full and informed consent, following the birth of her second child via Cesarean section. After arrival at the hospital, V.C. signed the special consent form, but, as she was in labour, she did not understand the exact meaning of the words or that the process was irreversible. Moreover, she was told that if she had a third child, either she or the baby would die. The applicant started to cry and as she was

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convinced that her next pregnancy would be fatal and she told the medical personnel “Do what you want to do”. The sterilization of the applicant entailed tubal ligation by the Pomeroy method, which consists of severing and sealing the Fallopian tubes in order to prevent fertilization. It is obvious that V.C. did not fully understand the term ‘sterilization’ and she signed the form out of fear that there would otherwise be fatal consequences.

The Court had no doubts that signs of ethnic discrimination were clearly visible in this case. The words “Patient is of Roma origin” appeared in the record under the sub-section entitled “Social

and

working

conditions,

especially

during

the

pregnancy”. In the proceedings before the domestic civil courts, one of the doctors considered that the applicant’s situation was “the same as other similar cases”. Moreover, the patient was accommodated in a room in which there were exclusively women of Roma ethnic origin. The extent of this segregation was such that she was even prevented from using the same bathrooms as non-Roma women.

The breach of Article 3 of the ECHR In the case N.B. v. Slovakia the Court stated that “such a way of proceeding, by removing one of the important capacities of the applicant and making her formally agree to such a serious medical procedure while she was in labour violated the applicant’s physical integrity and was grossly disrespectful of her human dignity”. Art. 3 is undoubtedly one of the core provisions of the Convention. It enshrines one of the most fundamental values of democratic society, prohibiting in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour. Art. 3 is included in the list of rights detailed in Article 15(2) which are declared absolute and from which there can be no derogation. The Court found that the approach to V.C. was not compatible with the principles of respect for human dignity and human freedom. The applicant did not make her decision freely – she did not even have sufficient time to think about the procedure even though it is always advisable in such cases to give the patient a certain time to think the question over.

Numerous previous ECtHR cases have considered what treatment might be considered as “degrading” and have found that when it (the act under consideration)“arouse(s) in its victims

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feelings of fear, anguish and inferiority capable of humiliating and debasing them”. It is clear from the facts of this case that sterilization aroused such feelings in the applicant. Even where such an operation does not cause pain and suffering as traditionally conceptualized, the procedure itself constitutes a violent invasion of a woman’s physical integrity and bodily autonomy. The ECtHR has correctly adopted the approach that in V.C’s case, the ill-treatment attained a minimum level of severity and thus it fell within the scope of Art. 3. Such a level depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. The purpose of such a treatment is also an important factor to be taken into account, since it should be assessed whether it was intended to humiliate or debase the victim. However, “the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Art. 3”.

In V.C.’s case there was not a state of emergency, which could involve imminent risk of irreparable damage to life or health. It might have been a justification to decisions made by the medical staff during the applicant’s treatment.

The ECtHR noted that sterilization constitutes a major interference with a person’s reproductive health status. Sterilization effects one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family

life. The sterilization might have been also

replaced by alternative and less invasive methods, even if the third pregnancy constituted a threat to the applicant’s health. Additionally, V.C. was only 20 years old – she was deprived of her reproductive capability at an early stage of her life. It was easy to foresee that such a procedure would have an enormous impact on her future life. It should be underlined that the social and cultural construction of female identity in some ethnic groups such as for Roma people, is bound up with reproductive capacity. The WHO noticed that in some developing countries infertile women sometimes choose suicide over the mental anguish caused by infertility. This shows how serious mental effects of sterilization can be. As a consequence of the sterilization, V.C.’s husband divorced her and she was ostracized by the Roma community. Because of that she was suffering from serious psychological problems.

The breach of Article 8 of the ECHR In this case it was also held that there has been a violation of Article 8, the right to a private and

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family life, home and correspondence. A broadly interpreted notion of “private life” encompasses a person’s physical and psychological integrity, as well as personal autonomy and self determination. Ability to conceive a child and become a parent is arguably one of the most important and intimate spheres of private life. What is more, the term “private life” also includes a right to establish, sustain and develop bonds with other individuals and “applies to decisions both to have or not to have a child or to become parents”. Whilst the rights derived from Article 8 are not absolute, derogation from Art. 8 is limited in order to protect the individual from arbitrary interference by public authorities. Any derogation from Art. 8 must be justified in terms of the second paragraph – “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. It was stated in the judgment that the absence at the relevant time of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman resulted in a failure by the respondent State to comply with its positive obligation to secure for her a sufficient measure of protection enabling V.C. to effectively enjoy her right to respect for private and family life.

An international boutique legal consultancy, Omnia Strategy LLP, has become the latest business to be awarded an alternative business structure licence from the Solicitors Regulation Authority (SRA).

This may not sounds as particularly legally compelling, but since it was established an is chaired by the wife of former Prime Minister Tony Blair, Cherie Booth, a QC at Matrix Chambers, and employs the grand-daughter of the Duke of Wellington (herself a former employee of the Libyan Investment Authority) and the former in-house counsel for a prominent European oil company, the team at Obiter Dicta expect big things from this particular ABS. Prior to receiving its ABS status, Omnia hit the headlines twice in 2012: the first for advising the government of Bahrain on strategies aimed at safeguarding human rights prior to the crackdown on public protests, and, secondly, for advising the inhabitants of an oil-rich region of Nigeria on territory disputes.

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The issue of informed consent – what should the patient know?

One of the most significant issues raised by the ECHR in the judgment was that of informed consent in case of involuntary sterilizations. These procedures can be divided into two groups: coerced sterilizations and forced sterilizations. Coerced sterilization occurs when the individual does not provide free and informed consent prior to the sterilization. In the case of forced sterilization the patient does not have an opportunity to provide consent to the procedure at all.

The common tactics used in coerced sterilizations include e.g. misinformation, directive counseling or incentives which compel a person to undergo sterilization. The Convention on Human Rights and Biomedicine (CHRB) states that medical procedures may be carried out only with the consent of the patient, unless there is an emergency situation.

According to international standards, consent, in order to be valid, has to be free, full, prior and informed. The so-called “informed” consent is a fundamental element of contemporary bioethics.

The expression of “free” consent means voluntary consent “without inducement”. It should be stressed that “the more invasive the intervention is and the more severe physical, psychological or socio-economic its consequences are, the more express and formalized the consent will need to be”. A patient has to receive information, which is comprehensible, relevant, structured and individually tailored. This information must also be sufficiently clear and suitably worded for the person who is to undergo the intervention. The UNESCO International Bioethics Committee stressed the “importance of the clarity of the text submitted and its content that should include necessary and sufficient information for the decision to consent and this in a language that is accessible to the person concerned wherever consent to treatment is sought”. Additionally, “the patient must be put in a position, through the use of terms he or she can understand, to weigh up the necessity or usefulness of the aim and methods of the intervention against its risks and the discomfort or pain it will cause”.

In March 1994 the European Consultation on the Rights of Patients was held in Amsterdam under the auspices of the WHO Regional Office for Europe. The Declaration on the Promotion of Patients' Rights in Europe constitutes a common European framework for action and includes those principles, as endorsed by this Consultation. It sets forth that the informed consent of the patient is a prerequisite for any medical intervention.

The scale of the problem The United Nations treaty bodies have given their view on the issue of forced sterilizations. The

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Human Rights Committee of the UN stated that coerced sterilization violates the right to be free from torture and cruel, inhuman, or degrading treatment. Furthermore, the Committee Against Torture has emphasized that coerced sterilization is among those acts which “put women’s physical and mental health at grave risk and that constitute cruel and inhuman treatment”.

The problem of involuntary sterilizations still exists in many countries all over the world – on all continents and in different legal systems. In 1983 approximately 26% of sterilized women in eastern Slovakia were Roma. By 1987, this figure had risen to 36.6%. In 1999 nurses working in Finnish refugee reception centers informed researchers from Amnesty International that they had noticed unusually high rates of gynecological procedures such as sterilization and the removal of ovaries among female Roma asylum-seekers from eastern Slovakia.

The judgment V.C. v. Slovakia is a groundbreaking decision – it is the first ruling of this kind issued by the ECtHR. However, there are multiple similar cases pending, not only before the European Court, but also before the CEDAW. Time will tell the extent to which such judgments reduce the number of Roma women coerced into sterilization but it can be hoped that the court’s recognition of forced sterilizations as a severe human rights abuse will hopefully bring justice to victims of these illegal procedures.

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Winning Team Report of Visit to Cambridge and London University of Ljubljana

Central and East European Moot Court

Winning Team at the 2012 CEEMC

Winning the Central and East European Moot Court was an incredible experience in itself, but the award was more incredible than we could ever expect it to be.

After a long and sunny summer the day had finally come when we boarded our plane to London and began the wonderful experience that was our week in Cambridge. At the arrival to Emmanuel College we were shown, by the friendly porters, to our very own house The team alongside Baroness Hale of situated beside the college. We Richmond (centre), the only female member were welcomed to Cambridge of the UK Supreme Court

by Ms. Ann Smith and Professor William R. Cornish, who have arranged for our visit and all the included activities. We spent the first day exploring Cambridge and visiting some introductory lessons. We have also been given a tour of the Squire Law Library by the Squire Law Librarian, Mr. David F. Wills and were able to use it throughout the whole week. We were impressed by the modern architecture of the Law Faculty, the quality of its library and the boundless volumes it offers to students.

On Wednesday we visited the Supreme Court, which is a fairly new institution in the United Kingdom’s judiciary system; it was only constituted in 2009 when it replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom. We were very fortunate to be able to meet Baroness Hale of Richmond, the first and currently the only female judge at the Supreme Court. She took the time from her undoubtedly very busy schedule to talk to us, share some of her wisdom and show us around the court. It truly was an incredible

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experience. We finished the visit to London with a quick tour of central London and headed back to Cambridge where the next two days were more academically colored.

We spent most of the Thursday and Friday at the Faculty of law, where we got the opportunity to sit in on some of the lectures, some under- and other postgraduate. We were also very lucky to have been invited to the Trinity College where we were hosted

by Professor Catherine Barnard, who also very kindly took the time for us and we joined her for lunch and a tour of perhaps the best known college in Cambridge.

We got to see the apple tree under whose ancestor Newton sat when he discovered gravity, discovered that Christopher Robin was a student in Trinity and saw the manuscript of Winnie the Pooh.

On Friday evening we were invited to a formal dinner at Corpus Christi and Magdalene College, so two of us attended the Corpus Christi on invitation of Dr Jonathan Morgan and two joined Professor William Cornish for dinner at Magdalene. It was a unique insight into traditions still held and valued at Cambridge University.

We left England on Sunday full of wonderful memories and impressions.

We would like to take this opportunity to thank Professor Cornish for inviting us to Cambridge and enabling us to experience this wonderful opportunity, Ms. Ashmore and Ms. Smith for all their work and kindness in organizing the trip, Baroness Hale of Richmond for a unique insight into a day of a Supreme Court justice and of course Professor Barnard and Dr Morgan for hosting us at lunch and dinner respectively and for showing us the ins and outs of their Colleges.

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AND INTRODUCING‌ THE CENTRAL AND EASTERN EUROPEAN MOOT COMPETITION 2013 HOSTED BY THE SUPREME ADMINISTRATIVE COURT OF THE CZECH REPUBLIC IN BRNO

Each year at this time, potential teams and coaches for the annual Central and Eastern European Moot competition are waiting eagerly to find out the subject and venue of this year's competition knowing that the question and bundle are published by January of each year.

The possibility of arguing a case before experts in the field with judge led by an Advocate General of the Court of Justice certainly will present a challenge, but what a feeling of achievement and exhilaration to see them engage in discussion with you and even more so when you not only reach the semi-finals, finals but win the competition or are the prize of Best Speaker! The opportunity a moot gives to students to develop and improve

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presentational and legal skills is unparalleled, and on top of that it can also be a lot of fun, particularly in the supportive and friendly environment of the CEEMC as you will see from the 2012 CEEMC winner’s report by the team from the University of Ljubljana!

The 19th CEEMC will take place in Brno, Czech Republic and focus upon the area of justice and home affairs, looking in particular at the European Arrest warrant as well as considering in more depth the wide out options allowed to some member states and the impact this will have upon mutual recognition and the protection of fundamental rights offered by amendments to the EU Treaties (post-Lisbon).

AT E T I S B E W W E N E ‌ H O T F T N I U E O R K MO R CHEC O F K U .

C.CO M E E C .

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And here is an extract of the 2013 CEEMC moot problem: Sheldon is an 18 year old national of Nitpo (a Member State of the European Union). At a young age Sheldon was diagnosed as suffering from an extreme form of autism, causing him to prefer his own company whilst growing up and resulting in him developing few social skills. He did however demonstrate extraordinary computer skills from an early age which his parents were happy to encourage by enrolling him on a computer programming course. ……. ….

Lacidar duly copies the information, which casts doubt on the accuracy of banking information disclosed by the Tuotpo banking sector to date and sends it anonymously to a national newspaper, which then publishes the information in its next edition. The next day the story is headline news throughout Tuotpo, leading to questions in parliament as regards the government’s economic policies in relation to banks. The immediate investigation that follows identifies the source of the leak and leads the Tuotpo police to Lacidar, who is duly arrested and questioned. He immediately accepts full responsibility for being the source of the leak. At the same time he implicates Sheldon as the designer of the computer software programme he used.

The Police Commissioner gives an interview to the national press in which he states “My main priority in 2012 will be to ensure that each and every person involved in these disastrous events will be prosecuted to the fullest extent allowed by the law, whoever and wherever they may be, irrespective of their level of involvement !”

————————————————————————————————————--] Extract from questions referred to Court of Justice: 5.

Should the principles of mutual recognition and mutual trust, enshrined in Article 82 TFEU, recitals 2, 6, 10 and Article 1(2) EFD be interpreted: a) in the light of Article 4 and 51(1) of the Charter of Fundamental Rights, as allowing a Member State to provide in its national law, which transposes the Council Framework Decision, that the execution of a European arrest warrant shall be refused where there has been a manifest breach of, or a manifest risk of breaching, the suspect's fundamental rights in the issuing Member State? c)) as being applicable with regard to a Member State which has not accepted the powers of the Court of Justice of the EU under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon and which has indicated its intention to exercise its right under Article 10(4) of the Protocol n° 36, following which all acts of the Union in the field of police cooperation and judicial cooperation in criminal matters cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 2 of the same Article?

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