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Comment on Britain leaving the European Union

I know that I have not updated my blog in quite some time – this past year has been by far the busiest of my life professionally, especially whilst going through the PhD thesis completion process (I am currently undertaking corrections to my thesis which will be submitted in a matter of weeks), leaving little time for additional writing such as on this blog. This is something I hope will be eased over the coming year allowing me some time to devote to it.

I could write a very large blog on the subject of this morning’s decision in the EU referendum to leave the EU, however I am already considering ways to edit an already drafted article to include discussion of this, so will leave the majority of what I could say for then.

I do want to go on record to say, however, that having taught different aspects of EU law, constitutional law, and other aspects of international law since 2007 (as well as acting as external examiner for these subjects at more than one other UK University during the past five years), I was distraught at the manner in which both the leave and remain campaign were conducted. No real factual information beyond the most basic was communicated, and each side relied on little more than who could scare the population the most into voting the way they wanted.

From a workers’ and more general human rights perspective, the so called brexit is nothing short of a disaster. The perception of many is that the EU ‘dictated’ laws to the UK – nothing could be further from the truth. The UK for decades, more specifically since the progression from EC to EU in the Maastricht Treaty, and again since the development of the current EU framework with the Treaty of Lisbon, has been fully involved in all major legislative programmes at EU Commission, Parliament, and Council level. The ordinary legislative process of the EU is also actually much more democratic than the mass media, and those with an agenda would have you believe; for example, most people do not realise that the entire Commission is accountable to the EU Parliament (the directly elected EU Institution), and this is not only a theoretical power – in 1999 the Santer led Commission was effectively forced to resign en mass; jumping before they were pushed by the Parliament. The only Commissioner that refused to resign, Édith Cresson, was taken to court in Case C-432/04 (Commission of the European Communities versus Édith Cresson), and judged to have been in breach of her obligations as a Commissioner.

The majority of EU laws from a rights perspective have been, are, and will continue to be to give a level of protection to EU Citizens; a set of minimum standards and protections that all Citizens can expect regardless of whether they are in Italy, Poland, Greece, or the UK.

These rights could be in the areas of employment and labour laws (an area I used to teach, and was still involved in external examining for until 2015, so am still very up to date with my knowledge of), or from my current professional interests’ perspective in the area of justice.

For example, one area that I did not see mentioned a single time during the EU debate was that the Victims and Witnesses (Scotland) Act 2014, a piece of legislation that gives legally binding rights to victims of crime including the right for a victim to require that a decision not to prosecute an alleged offender is reviewed by the COPFS, and also gives legal recognition to the relatives of a deceased victim to be classed as victims in their own right, as well as numerous other positive legal rights, stems directly from the Directive establishing minimum standards on the rights, support and protection of victims of crime [Directive 2012/29/EU ]. The Scottish 2014 Act was created purely to comply with our EU obligation to improve legal rights and safeguards for victims of crime; prior to this the majority of policies relating to victims’ ‘rights’ were not legally enforceable and open to alteration at any stage by our domestic legislature. Without EU protection, this important legislation could be amended or abolished at any time – and to be clear I am not saying it will be – but the safeguard in place through the EU was one that ensured any changes to victims’ rights would have to be agreed by the other Member States of the EU, and as such any reduction in rights would be incredibly unlikely. Sadly, the citizens of the UK and Scotland will in the near future no longer benefit from this safeguarded position.

Again, I do not have a lot of time right now to devote to a more full blog on this issue, but wanted to at least leave something that shows my feelings on the matter. The next question to be answered is whether or not in light of the massive division in the ideology relating to this subject between Scotland and England (for any international readers – Scotland voted 62% to 38% in favour of staying in the EU, and with all constituencies without exception voting to remain, hence complete unanimity), there will be a real push for a further Scottish independence referendum and subsequent application to Join the EU as a Member State in its own right. Scotland’s First Minister, Nicola Sturgeon, has already discussed briefly that this is ‘on the table’, but the detail remains to be seen.

Hopefully I will manage to find the time to update again in the near future.

 
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Posted by on June 24, 2016 in Uncategorized

 

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Scottish Independence TV Debates – What I would have done

After watching both of the main tv debates on Scottish Independence between the leaders of the respective ‘Yes’ and ‘No’ campaigns, Alex Salmond and Alistair Darling, I was left utterly bemused and disappointed at what I was watching.

Let us take the most recent of these two poorly produced and structured events:

  • A few minutes each to set out their introductory case
  • A few minutes each to cover important issues such as the economy and Scotland’s place in the world
  • About 12 minutes to ‘cross examine’ each other (this was the most embarrassing and cringe-worthy, unprofessionally managed piece of political nonsense I think I think I have ever seen with each just talking over the other and playing ‘tit-for-tat’ points scoring’.
  • A few minutes for each to sum up their entire case for independence.

A few minutes, A few minutes, A few minutes….

It seems that this is all that the life and future changing event is worth; a few minutes, on barely a handful of the dozens if not hundreds of major issues of relevance.

To make matters worse was the audience. The odd relevant and thought provoking question aside, the vast majority were simply loaded questions from one side of the divide (because it now clearly IS a divide with a gulf of polar opposite opinion between the two sides) or the other.

The whole thing was an absolute shambles that pandered to the worst aspects of modern society. In particular, feeding the ‘I want everything NOW, and in 140 characters or less’ aspect of society, where if it can’t be said in a matter of minutes then it can’t be worth it.

Well shame on you, the producers and broadcasters of this meaningless trash. You have had years to prepare for this, months to work out a reasonable format, whilst not bowing to the notion that everything must be covered ‘on the quick’. Because to cover the issues that needed to be covered properly, it is literally IMPOSSIBLE to do with the format that was utilised. Again – shame on you. You failed in what I personally believe was an absolute DUTY to get this right.

I belive that Scotland is worth more than this, and I believe that hundreds of thousand, if not millions of people living in Scotland (and indeed the rest of the UK and world) would have been interested in seeing the debates on crucial issues carried out in a competent and more balanced way – yes, even if this meant taking a bit more time to do so.

So having thoroughly criticised what WAS shown, if I was given the responsibility to plan the TV part of the referendum build-up, how WOULD I have done it? Well here is what I would have done, and what I think SHOULD have been done by any producer with an ounce of common sense:

  1. Realise that the necessary issues could not be covered in the course of two programmes alone, and demand more airtime. This should not have been even a slight problem given the magnitude of the issue – what controller or scheduler would want to go on record saying that such a massive political event should not be given maximum attention?
  2. Schedule a two hour slot once a week for the 8-10 week run-up to the election.
  3. For each event, here is what the format should have been:
    1. ONE area covered per debate (say, week one – the economy, week two – education, week three – NHS etc. etc.)
    2. Main panel consisting of EITHER Salmond and Darling, OR appropriate representative from each side such as cabinet member or shadow cabinet member responsible for the area in question currently.
    3. Alongside those indviduals, also having one academic expert on the area in question on each side such as a professor or author in that area who is willing to discuss their researched opinion.
    4. Moderator in the middle.
    5. PART ONE: Each side has 30 minutes to present their arguement on the area in question in the form of a lecture or presentation with any visual aids necessary – and here is the important part – ENTIRELY UNINTERRUPTED BY THE OTHER SIDE.
    6. PART TWO: 40 minute Audience Q&A. Another part of the televised debates that irritated me was that the audience was ONLY populated by random everyday people. I would have 50% of the audience  being workers FROM THE AREA RELEVANT TO THE DEBATE IN QUESTION at each debate. So for the debate on NHS, 50% of the audience should be Doctors, Nurses, Health board workers, researchers etc.. The first 20 minute Q&A would come solely from these people who would be best placed to ask specific questions relevant to the area in question. The final 20 minute Q&A would then come from the other 50% of the audience, who would be the equal share of everyday people asking general questions on the area in question.
    7. PART THREE: Back to the panel – each side has 10 minutes to sum up and conclude their argument. AGAIN UNINTERRUPTED!
  4. The final show, having in the weeks preceding covering important issues such as the economy, NHS, education, international issues, industry etc. would then be the full blown debate between the leaders. In this show, each side would have the opportunity (again, guess what – uninterrupted), to present for 30 minutes rebutting any perceived spin etc. seen over the preceding weeks from the opposing side. There would then be a final 30 minutes each to sum up the entire campaign of debates, positives for their side and reason why you should vote YES / NO. No Q&A for the final debate.

This is how I would have arranged the televised debates. Treating the electorate with respect, and providing them with a substantial amount of uninterrupted information from each side of the debate in a number of the most crucial areas relevant to the independence issue. Carrying out the programming in this way would have ensured that major issues were covered in detail (I think I heard circa 40 seconds on education in totality between both actual ‘debates’), and ensured that people who watched would then be able to make an informed decision.

It is such a shame that the reality of what we got was nothing short of a disgrace.

 

Please note, the above is my personal opinion as a qualified and experienced academic in various areas of domestic and international law including Constitutional Law, Administrative Law, EU Law, Criminal Law, and Employment Law and not the opinion of my employers.

 

 
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Posted by on August 29, 2014 in Uncategorized

 

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Charities call for age of criminal responsibility to be raised in Scotland

First non-HEA post in a while, but I simply had to take a few minutes to comment on this news I have seen today. 12 charities have called on the Scottish Government to make provision to have the age of criminal responsibility raised from 8 to 12 in line with the age of criminal prosecution (which was raised as a result of the Criminal Justice and Licensing (Scotland) Act 2010, from 8 to 12 three years ago).

See the report at :

What angers me about this is the ignorant misunderstanding about how youth justice actually works in Scotland, and the call itself demonstrates that senior figures in these charities simply do not have a clue how the law is applied in this area.

To clarify – and it really is incredibly simple which is why I have a real problem with such a call being made – we currently have a two tier approach to youth justice in Scotland which can be separated into two distinct age groups:

1. Children aged 12 and over.

These children can be prosecuted in the adult courts and be given a criminal record if appropriate. However it has to be pointed out that up until the age of 16, the vast majority of children between 12 and 16 are not in fact prosecuted in this way. Over 95% of children in this age bracket are dealt with by the children’s hearing system (more about that below). It is only those very rare and gravely serious offences such as murder and rape where a child offender is actually dealt with in the adult courts, and even then there are various safeguards put in place as the child offender is legally classes as a vulnerable witness. In fact, beyond the age of 16, if a child is a repeat offender who has had a previous care package in place then they can actually remain in the children’s hearing system until the age of 18.

2. Children between the ages of 8 and 12 (8, 9, 10 & 11)

Until 2010, the age of criminal responsibility and prosecution in Scotland was simply 8, and it was changes made as a result of the Criminal Justice and Licensing (Scotland) Act 2010 that created the two tier system we currently have. Now, those children in this age bracket (8, 9, 10 & 11) cannot be prosecuted and can only be dealt with via the children’s hearing system. Again, it has to be pointed out, that prior to these changes there was a misconception that many children were being hauled in front of the adult courts. This could not be further from the truth. In fact less than 0.5% of offences committed by children in this age bracket were dealt with by the adult courts. The other 99.5% were dealt with by the children’s hearing system. Again, of course, these were only the very most serious of offences.

As a result of the changes made in 2010, the only real difference is that the discretion within this age range as to how a child of this age can be dealt with has been taken away and now they must be dealt with only in the children’s hearing system.

One thing I have to point out here, is that if a Thompson and Venebles type situation were to happen in Scotland now where two 10 year old children were to intentionally kill a younger child, we no longer have the option to prosecute even if it can be established beyond doubt that in reality those offenders knew and understood the consequences of their actions. Just a thought.

In any case, regardless on your opinions on the above, just to clarify the role of the children’s hearing system, where currently all offenders in this age bracket must be dealt with. It is not a punitive system and never has been. There is no criminal record attributable to a child who has been in the system. Instead, it is a purely welfare based approach that is taken based on what is in the best interests of that child. The result of a child being found to be responsible for their actions is that a care package is put in place that could involve social work intervention, counselling etc. Regardless of what care package is put in place, it is all about helping that child, to enable them to create a brighter future for themself, and most certainly is NOT about stigmatising, punishing or belittling them.

This is where the EU, the UN and all of the political commentators got it wrong when debating and creating the new laws in 2010. Sadly, this is also where ALL of these charities are also getting it wrong today in 2013. The incorrect assumption seemed to be back in 2010 that just because Scotland’s age of criminal responsibility was the age of 8, that this meant that all, or at least a sizeable number of children were actually being prosecuted. As such, a rash and needless change to the law was made. Sadly, the people calling for these changes today still just don’t ‘get it’. Again, the children they are discussing are not currently being hauled in front of the courts, quite the opposite, they are being cared for.

The thing is, this wasn’t a damaging change in 2010, as those children aged 8-11 could still be dealt with appropriately within the children’t hearing system as illustrated above. On the other hand, the potential changes being discussed today would be hugely damaging to the welfare of identifiable ‘at risk’ children in this age range, as no formal welfare based approach could be taken, and no care package put in place. Of course, there are other potential grounds for referral that could still be used in some cases (say based on truancy, or being outwith parental control etc.), but these would not be able to be used in all, or even a majority of cases in their current forms. Indeed, it may be that the ages attributed to these would end up being raised in line with the proposed changes were they to come to fruition, so we simply cannot bank on being able to use those grounds as a fall back option.

These proposed changes cannot be allowed to proceed, if they do then it is a sad day for both the law and also the welfare of children the length and breadth of Scotland.

 
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Posted by on July 1, 2013 in Uncategorized

 

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Follow up to Scottish Alcohol Bill

I’ve been asked the question relating to the Alcohol Bill, something I posted about yesterday, ‘how can Scotland introduce minimum pricing, isn’t that a breach of EU law?’. So I thought this is something I would address in brief.

The issue is discussed in the British Medical Journal this month by Bryan Christie (Scotland will set minimum price for a unit of alcohol, BMJ 2011; 343:d5869) where he mentions;

            “Although the measure will be approved in Scotland, it may still be blocked under European Union competition laws. Rules on free trade generally do not allow price fixing, which is seen as anticompetitive. In 1978 the European Court of Justice rejected minimum pricing of spirits, and the European Commission has also opposed minimum pricing on tobacco.”

However in creating the legislation, the Scottish Executive has obviously taken advice from various sources and in the Q&A section on the Scottish ‘Government’ the following is stated;

           “Isn’t imposing a minimum price illegal? The Presiding Officer of the Scottish Parliament has issued a certificate of legislative competence for the Alcohol Bill which includes minimum pricing. This means that he considers the Bill to be within the powers of the Scottish Parliament.” (Minimum Pricing – Questions Answered, Scottish Government, http://www.scotland.gov.uk/Topics/Health/health/Alcohol/minimum-pricing/Q-A)

So the Scottish Executive clearly believe that the legislation and implications of it are legal. Scottish Health Action on Alcohol Problems (SHAAP) have addressed this issue and were involved in the consultation process. Their official policy is that;

           “In the UK and at an EU level, rules on free trade generally do not allow price fixing on the grounds that it is deemed ‘anti-competitive’ and, it is argued, leads to inefficiency in the market. However, it is important to note that the law allows exceptions to these rules. Intervention in the operation of a market can legally be justified in certain circumstances on the grounds of the protection of public health.” (Legal framework for minimum pricing for alcohol, SHAAP, http://www.shaap.org.uk/pages/117,Legal_framework.html)

Now is the problem. What SHAAP are saying is indeed correct. EU law does indeed allow a margin of appreciation for Member States to derogate from certain legal principles on grounds of public health. The real question is whether it can actually justify the derogation if challenged in the European Courts. The problem here is that they are trying to invoke the right to derogate from EU law on grounds of public health for what is in reality a completely legal activity – consuming alcohol.

In my opinion we won’t actually find out the true legal position until / if such a legal challenge is mounted.

 
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Posted by on October 1, 2011 in Uncategorized

 

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