European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source?

Once a legal abnormality that was criticised on human rights grounds, the closed material procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive security information in the UK. This article considers the role of European human rights law in that process. It argues that the CMP can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter‐relationship between human rights law and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.     

‘Hermann Heller and the European Crisis: Authoritarian Liberalism Redux?’

This essay tentatively buttresses Alexander Somek's view that Hermann Heller's 1933 essay, ‘Authoritarian Liberalism’, provides a useful starting point for thinking about the ongoing European crisis, in which European authorities are favouring rigid austerity and pro‐business policies while undermining basic liberal and democratic rights. Heller's unfortunate neglect, especially in Anglophone scholarship, is discussed. Nonetheless, Somek and other recent scholars who have turned to Heller to make sense of the European crisis downplay some of the tough questions raised by any attempt to apply Heller's analysis of the Weimar crisis to the contemporary setting. In particular, Heller's theory relied on a robust social democratic statism which has become increasingly unpopular even among theorists on the political left.     

Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?

Abstract: The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world's most successful experiment in the trans‐national judicial protection of human rights. The EU's much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU's interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much‐neglected question, simple to state but not so easy to answer: is the trans‐national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?     

‘Am I Free Now?’ Overseas Domestic Workers in Slavery

This article examines United Kingdom overseas domestic worker and diplomatic domestic worker visas in place since 2012. These visas tie workers to an employer by making it unlawful for them to change employer, even when seriously exploited or abused. The article presents the findings of a qualitative study of overseas domestic workers, exploring how this vulnerable and difficult (for researchers) to reach group experience these visas in practice. Workers reported instances of exploitation and abuse by the employers with whom they arrived in the United Kingdom. Having escaped, they have become undocumented, and are trapped in ongoing cycles of exploitation. The article assesses what light this empirical exploration sheds on the question of whether the visa is contrary to the prohibition of slavery, servitude, forced and compulsory labour in article 4 of the European Convention on Human Rights and the UK Modern Slavery Act 2015.     

‘Factual causation’ and ‘scope of liability’: What's the difference?

According to a dominant view, for the negligent defendant to be held liable for the plaintiff's harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non‐causal. This article accepts the basic two‐step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.     

The First Member State Rebellion? The European Court of Justice and the Negotiations of the ‘Luxembourg Protocol’ of 1971

This article delves into the history of the negotiations of the ‘Luxembourg protocol’ of 1971, which conferred jurisdiction upon the European Court of Justice (ECJ) for the interpretation of the 1968 Brussels convention. The protocol provided a preliminary ruling procedure that had undergone restrictive modifications in comparison with the European Economic Community (EEC) treaty's original (Article 177). Some have, therefore, interpreted the outcome of the negotiations as a sign that the mechanism was being criticised in national administrations. This article will, for the first time, bring to the surface archival evidence to explain why the protocol contained an altered version of Article 177 EEC. Furthermore, it will reveal that the governments' experts' intention to limit the procedure in the protocol caused serious concern inside the ECJ, of which some members consequently repeatedly urged national decision‐makers to opt for formulas identical with Article 177 EEC.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

‘You caught ’em!’…or not? Feedback affects investigators’ recollections of speech cues thought to signal honesty and deception

Purpose. When eyewitnesses to crime receive feedback about their choice of a suspect from a line‐up (or post‐identification feedback), such information can substantially alter their recollections of the witnessing experience. This study examined whether feedback exerts similar effects on investigators’ recollections of a suspect's behaviours. Methods. Participant‐investigators received training on speech cues that they were told, when present in a speaker's account, signal either honesty or deception. After hearing a suspect's account of a theft, participants decided whether the suspect was lying or telling the truth. One‐third of participants subsequently received immediate confirming feedback about their performance, while another third received disconfirming feedback. The remaining one‐third of participants did not receive feedback about their decision. Finally, participants rated the frequencies of speech cues that they had been instructed to detect in the suspect's account. Results. Disconfirming feedback significantly altered retrospective judgments about the characteristics of the suspect's account. Specifically, when told that the decision they made about the speaker's credibility was incorrect, participants judged the speaker as having exhibited fewer behaviours consistent with the credibility decision they had made, relative to those who either received no feedback or confirming feedback. Conclusions. Biases in recollections of a suspect may have consequences in real‐world interrogations wherein investigators assess credibility on the basis of numerous behavioural cues. Results are discussed in light of findings of post‐identification feedback studies on eyewitnesses.     

Are There Methods of Reasoning on ‘Meta‐Legislation’? The Interpretation of Legislative Competence Norms within the Methodology of European Constitutional Law

Legislative competence norms are paradigmatic elements of European constitutional law and the supranational, post‐federal era. The article aims to address legislative competence norms from the viewpoint of methodology by considering significant features of reasoning on European legislative competence norms. The discussion will be based on understanding legislative competences as ‘meta‐legislation’. That concept encompasses a substantive rather than formalistic, and a politically informed rather than strictly positivist account of legislative competences and their methodology. Against that background, the interpretation of competence norms is assessed. Subsequently, the process of interpretation is discussed according to judicial practice, constitutional theory and general legal methodology. A consideration of the significance of the—usually vast—wording of competence norms completes that discussion. Finally, consequences about the political inclusiveness of interpreting competence norms and the issue of ‘clarity’ are drawn. A conclusion summarises the results.     

European Citizenship and the Right to Reside: ‘No One on the Outside has a Right to be Inside?’

This paper deals with the question: Who ought not to be excluded from the enjoyment of European citizenship rights? Recently, the Court of Justice has ruled that, in exceptional situations, the ‘genuine enjoyment of the substance of rights attaching to European citizenship’ can be invoked in order to also extend legal protection to specific categories of third country nationals. I will argue that the ‘genuine enjoyment’ formula is not only setting an innovative jurisdictional test concerning European citizenship rights, but that it is also highlighting how the traditional account of citizenship (from status to rights) can be conceptually reversed. This happens in threshold cases, where the tenability of the schema of distribution of rights, agreed within a political community, depends on the possibility to readjust the boundaries of political membership.     

The European Commission's Guidance on Article 102TFEU: From Inferno to Paradiso?

The European Commission has for the first time issued a document expressing its official position on the enforcement of Article 102TFEU which prohibits the abuse of a dominant position on the Common Market. The Commission Guidance on enforcement priorities in applying Article 102TFEU to exclusionary abuses (adopted in December 2008) has ended a review of about four years. Given the increased enforcement of Article 102TFEU at the European level and the fact that many national provisions in the EU on unilateral conduct are modelled after Article 102TFEU, how the Commission intends to enforce Article 102TFEU is crucial for the application of competition law and the undertakings subject to it under European and/or national laws. The review period was preceded by severe criticisms of the Commission's approach to Article 102TFEU for protecting competitors instead of competition and for being insufficiently grounded in modern economic thinking. At the heart of the review and the discussions surrounding it lay the question of the objective of Article 102TFEU. Some, including the Directorate General for Competition claimed the objective to be ‘consumer welfare’, whereas some argued that ‘consumer welfare’ cannot be adopted as the objective at the expense of the protection of the competitive process. This article critically reviews the Commission Guidance, with an eye to assessing the ultimate objective of and the test of harm under Article 102TFEU. After discussing whether the Guidance indeed sets priorities, it examines the general approach of the Guidance to exclusionary conduct. It points out that despite there being some welcome novelties in the Guidance, there are also suggestions therein whose legitimacy and legality are questionable. Reflecting on the Guidance as a soft‐law instrument, the article argues that although regarding the objective of Article 102TFEU, the Commission's apparent tendency towards ‘consumer welfare’ is not unlawful, the reform of Article 102TFEU to bring it more in line with modern economic and legal thinking seems to be far from complete.     

The Reverse Majority Voting under the ‘Six Pack’: A Bad Turn for the Union?

The ‘six‐pack,’ a set of six Union legislative acts that was adopted in November 2011, was one of the main Union responses to the current sovereign debt crisis. Aware of the weak performance of the Stability and Growth Pact and of the underlying design faults of the Treaty provisions on the coordination of Member States' economic policies, in particular the multilateral surveillance procedure (Art 121 TFEU) and the excessive deficit procedure (Article 126 TFEU), the legislators were determined to strengthen the means of surveillance in this policy field. One step considered necessary to achieve this end was the introduction of reverse majority voting in the Council when the latter has to adopt, for example, sanctions in above procedures. This article will examine whether this voting method is compatible with the Treaties.     

Towards ‘Accountable Independence’? Parliamentary Controls of the European Central Bank and the Rise of a New Democratic Model

The independence of the European Central Bank is legally defined in very clear and strict terms. Although most scholars in economics describe this status as a crucial condition of the Bank's efficiency, it is frequently criticised by politicians and political scientists as a contradiction to democratic theory. This paper will examine the emerging practice of parliamentary control of the ECB, from its installation until September 1999, in order to understand which kind of ‘accountability’ is elaborated in this unprecedented relationship between ‘politicians’ and lsquo;technocrats’. It will first show that MEPs have rejected all forms of parliamentary control based on a logic of constraint. It will then describe the numerous institutional links created between the Bank and the EU political organs to favour their cooperation. Finally it will analyse the recent initiatives taken by MEPs to influence central bankers and to convince them to submit their decisions to public debates. The hypothesis developed from these empirical analyses is that a new kind of ‘accountability’ is emerging in the EU. From a horizontal point of view (inter‐institutional controls), it is based on influence rather than traditional parliamentary constraint. From a vertical point of view (accountability to citizens), it focuses on responsiveness rather than on classic responsibility.     

The Conservative Project to ‘Break the Link between British Courts and Strasbourg’: Rhetoric or Reality?

The Conservative party has repeatedly pledged to replace the HRA with a British Bill of Rights, with the aim of ‘breaking the link’ between domestic courts and Strasbourg. This article examines the implications of this proposal, the nature of the current relationship with the European Court, and the extent to which the link has already been weakened. It considers the bases of the Conservative proposal, and the options available in breaking that link in a Bill of Rights, taking account of the potential introduction of limitation clauses and the possibility of according Strasbourg judgments against the UK an advisory status only. Finally, taking account of the European Court's recent movement towards ‘enhanced’ subsidiarity, it will examine the consequences for the protection of human rights of reliance on a Bill of Rights intended to be interpreted and applied independently of Strasbourg influence.     

‘Inheritance Families of Choice’? Lawyers' Reflections on Gay and Lesbian Wills

This article presents the findings of research about the will‐writing practices of gays and lesbians. It develops a conversation between sociological literature about ‘families of choice’, which is silent about inheritance, and socio‐legal research about ‘inheritance families’, which is relatively silent about sexuality. It demonstrates how research with lawyers can contribute to thinking about inheritance and complement historical archives about personal life and sexuality. Focusing on funeral rites, partners, ex‐lovers, friendships, children and godchildren, and birth families, the findings reveal how gay men and lesbians have used wills to communicate kinship practices in ways that both converge with and differ from conventional testamentary practices. Examining the findings through the concepts of generationality, family display, connectedness, and ordinariness, and locating them within the recent history of social and legal changes, it complicates and troubles both anti‐normative and individualistic readings of the choices gay and lesbians make in constructing their ‘inheritance families’.     

Eliminating Poverty? ‘Financial Inclusion’, Access to Land,and Gender Equality in International Development

The UK White Paper on International Development published in 2009 explicitly links access to financial services with poverty reduction. In doing so, it echoes the policies the World Bank set out in its 2008 Policy Research Report on Finance. This paper offers a detailed analysis of these development policies and connects the current plans for the expansion of financial sectors in the developing world with policies that promote the acquisition of formal land title. The paper argues that as asset‐backed lending expands, commercial banks will come to play an increasingly important role in third world economies. In light of this, it reviews important first‐hand accounts of the difficulties of drafting legislation to protect women's access to land in the face of opposition from commercial lenders, using Tanzania and Uganda as illustrative examples. The paper assesses the implications of expanding access to credit for gender equality and concludes that it is difficult to reconcile the promotion of financial inclusion with the aim of international development to end poverty.     

‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

People of non‐ideal‐weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self‐motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.