European Public Law

EUROPEAN PUBLIC LAW

Volume 15 March 2009 Number 1

Rapports BELGIUM The Brussels-Halle-Vilvoorde Question: A Linguistic Trap Patrick Peeters, Jens Mosselmans 5

ISRAEL The Governmental Commission of Inquiry for the Second Lebanon War, 2007 Suzie Navot 17

SCOTLAND Scotland’s Constitutional Future Tom Mullen 33

Scrutiny Beyond Participation: Administrative-Law Type Mechanisms in Global Environmental Governance. Toward a New Basis of Legitimacy? Francesca Spagnuolo 49

Articles Evidence and National Security: ‘Belief Evidence’ in the Irish Special Criminal Court Liz Heffernan 65

A New Status for the ECHR in Italy Silvia Mirate 89

‘Free Speech is not Valued if only Valued Speech is Free’: Connolly, Consistency and some Article 10 Concerns Paul Wragg 111

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It is with deep regret that the journal announces the untimely death of Professor John Usher. Professor Usher was a member of the International Advisory Board of European Public Law since the journal’s inception in 1995. Legal scholarship has lost a great ﬁ gure in European Law and the journal a great friend. — The Editor

Rapports

BELGIUM

The Brussels-Halle-Vilvoorde Question: A Linguistic Trap

Patrick Peeters and Jens Mosselmans*

1. Introduction

Just before the 2003 federal parliamentary elections, the federal electoral code was amended to establish broader electoral constituencies for the House of Representatives. Constituencies by district were replaced with larger electoral units based on the division of Belgium into provinces. There remain, however, two important exceptions. Namely the legislature refrained from changing the bilingual electoral district of Brussels- Halle- Vilvoorde (BHV) and the electoral district of Leuven. The Constitutional Court held in a much debated judgment of 26 May 2003 that the newly introduced system, which provides for common electoral lists for Dutch-speaking candidates for both districts, violates the Belgian Constitution. However, the Court granted the federal legislature a period of four years within which to come up with adequate remedies. During the 2003-2007 administration, several bills were introduced into the federal Parliament in an attempt to implement the Constitutional Court’s aforementioned BHV judgment. However, by the end of this administration, it became clear that a ‘negotiated’ solution would not be found. In order to avoid new criticism from the Court and pass the thorny BHV issue on to the next administration, the federal government took care to ensure that the 2007 parliamentary elections were held on 10 June 2007, just one week before expiry of the four-year period granted by the Constitutional Court. Immediately after the federal elections of 10 June 2007, the Flemish and French- speaking political parties brought new bills before the newly composed Parliament. The parliamentary Internal Affairs Committee, which, as will be explained below, was not bound by coalition solidarity since the federal government had not yet been formed, adopted the bills which called for a split-up of BHV. It should be noted, however, that the French-speaking members of the committee left the room before the vote. With the

* Patrick Peeters is professor of constitutional law, Law School, University of Leuven; Jens Mosselmans is attorney at law at the Brussels bar.

Peeters, Patrick and Jens Mosselmans. ‘Belgium – The Brussels-Halle-Vilvoorde Question: A Linguistic Trap’. European Public Law 15, no. 1 (2009): 5-16. © 2009 Kluwer Law International BV, The Netherlands 6 EUROPEAN PUBLIC LAW exception of a single member of the Groen/Ecolo group who abstained, the Flemish parties passed the bills unilaterally. The day after the vote in the committee, the French Community Parliament fi led a motion, raising a confl ict of interest. The French Community Parliament deemed that the French Community’s interests were harmed by the bills. The motion was passed unanimously the next day. As a result, the discussion of the bills in the federal Parlia- ment has been suspended and a complex consultation procedure implemented. This consultation procedure has failed to achieve any results thus far. In order to further hold up the bills in Parliament, the Commission of the French Community has also raised a confl ict of interest, which has given rise to a new round of consultation. This procedure can still be used by the parliaments of the Brussels-Capital Region and the Walloon Region. Due to these consultation procedures, the bills can be placed on the agenda of the House of Representatives no earlier than mid-October 2008. In this way, some time has been bought to seek a ‘negotiated’ solution to the BHV problem. Most likely, a solution will be sought within the broader framework of a new state reform.

2. Origins of the BHV Debate

The origins of the BHV issue are not particularly clear but probably date back to at least 1962, when Belgium was split into three linguistic regions (Dutch-, French- and German-speaking) and the bilingual Brussels-Capital Region.1 Belgium’s constitutional, administrative and judicial organization is based on a territorial division along linguistic lines. The country’s electoral districts are also based on this division. An exception is made for the electoral district of BHV, which spans two linguistic regions including the bilingual Brussels-Capital Region, and thirty-fi ve municipalities in the Flemish Region (Flanders). Owing to this division, the French-speaking parties can canvas for votes with their leading politicians in federal and European elections in the thirty-fi ve Flemish municipalities. In return, Flemish residents of Brussels can vote for Flemish candidates in Halle-Vilvoorde. In order to prevent ‘encroaching Frenchifi cation’, the Flemish Community has repeatedly called for the splitting up of the BHV electoral district. This division would result in three electoral districts: Flemish Brabant (consisting of Halle-Vilvoorde and Leuven), Walloon Brabant and Brussels. These requests have so far fallen on deaf ears. The split-up of BHV would not mean, however, that French-speaking parties would no longer be able to present candidates on lists in Halle-Vilvoorde. The only consequence of this division would be that leading French-speaking federal politicians would no longer be eligible to stand for election in Halle-Vilvoorde. This would mean that they

1 S. LINDEMANS, ‘Het probleem Brussel-Halle-Vilvoorde – Analyse van een staatsrechtelijke doos van Pandora’, Jura Falc., 42 (2005-2006): 473, Ch. 4. BELGIUM 7 would lose the approximately 75,000 votes of French-speaking residents in the peripheral Flemish municipalities bordering Brussels. Indeed, past regional elections have shown that ‘local’ French-speaking parties are not very successful in Halle-Vilvoorde without their national ﬁ gures (cf. the Union Francophone).2 Another consequence of the split-up of BHV would be that federal MPs elected in Halle-Vilvoorde would necessarily be considered to belong to the Dutch linguistic group rather than the French-speaking group, even if they were actually French speakers. This division along linguistic lines is important for the adoption of legislation that requires a special parliamentary majority. In order to pass such legislation, not only is an overall 2/3 majority required, but also a majority in each linguistic group. This division is also important for the so-called alarm-bell procedure (see below). Although the Flemish political parties have been calling for the split-up of the BHV electoral district for decades, it should be noted that the band between Brussels and Halle-Vilvoorde is also of the essence for Flemish residents of Brussels. Without this band, these residents would be even more marginalized and could even end up without any representation in the federal and European parliaments.

3. The Constitutional Court’s Judgments of 26 February and 26 May 2003

In a decision of 22 December 1994, the Constitutional Court indicated that the existence of the BHV electoral district does not violate the Belgian Constitution. The Court found that: preservation of the Brussels-Halle-Vilvoorde electoral district is based on the need to achieve an essential balance between the interests of the communities and the regions in the Belgian state (…).3 The Constitutional Court reached a turning point in its judgments of 26 February and 26 May 2003, however.4 The background to these judgments can be summarized as follows. In April 2002, the Verhofstadt I administration reached a political compromise, which was converted into the Elections Act of 13 December 2002. The most important feature of the Elections Act is the introduction of provincial electoral districts. The former electoral constituencies based on districts were abolished and replaced with provincial5 districts. Nevertheless, the BHV electoral district remained unchanged. In the former province of Brabant, the province of Walloon Brabant and the constituency of Leuven are separate electoral districts besides BHV (see ﬁ gure). Moreover, the legislature introduced a system of common electoral lists for Dutch-speaking candidates in the BHV and Leuven electoral districts.

2 In the 2003 federal elections, French-speaking parties garnered 73,000 votes in Halle-Vilvoorde, while the Union Francophone, that is, a grouping of major political parties without leading national ﬁ gures, obtained only 36,000 votes in the regional elections. 3 Constitutional Court, 90/1994, 22 Dec. 1994, B.5.8. 4 Constitutional Court, 30/2003, 26 Feb. 2003 and 73/2003, 26 May 2003. 5 Belgium has ten provinces: Flemish Brabant, Walloon Brabant, Antwerp, East Flanders, West Flanders, Limburg, Namur, Liège, Hainaut and Luxemburg. 8 EUROPEAN PUBLIC LAW

Figure. Division of Belgium in Provinces

FLANDERS ANTWERP Antwerp Bruges Ghent LIMBURG WEST FLANDERS EAST FLEMISH BRABANT FLANDERS Leuven Hasselt

Waure WALLOON BR. Liege HAINAUT LIEGE Mons BRUSSELS Namur (CAPITAL REGION and CITY) NAMUR

LUXEMBOURG

WALLONIA Arlon

It came as no surprise that Flemish opposition parties contested the Elections Act, claiming that the legislature had been inconsistent in its redrawing of the electoral land- scape. They did not understand why Flemish Brabant (including Halle-Vilvoorde and Leuven) could not be a single electoral district, as Walloon Brabant had become. The legislative history to the Elections Act referred to the abovementioned case law (case 90/1994) of the Constitutional Court to justify the decision to keep the BHV electoral district intact. The Constitutional Court held that the newly introduced system of common electoral lists for Dutch-speaking candidates in BHV and Leuven violates the Constitution since the elected candidates could not be considered truly representative of either district. In addition, there is no guarantee that the number of elected candidates in these districts corresponds to the actual population, as required by Article 63 of the Constitu- tion.6 By way of a judgment of 26 February 2003, the Court suspended application of

6 Article 63 of the Constitution provides as follows: §1 The House of Representatives shall have 150 members. §2 Each constituency (electoral district) shall have a number of seats equal to the number of times its population meets the federal electoral quota. The federal electoral quota is obtained by dividing the population of the Kingdom by 150. The remaining seats shall be allocated to the districts with the highest population surplus not yet represented. §3 The King shall allocate seats in the House of Representatives to the constituencies (electoral districts) based on their population. The population of each electoral district shall be determined every ten years by means of a census or by any other means provided for by law. The King shall publish the results within six months’ time. Within three months from the aforementioned publication, the King shall determine the number of seats to be allocated to each electoral district. The new allocation shall apply as from the next general elections. BELGIUM 9 the common electoral lists. As a result, the parties had to prepare new electoral lists only three months before the elections. The system of common electoral lists was fi nally set aside altogether by the Court in its judgment of 27 May 2003. The Court also reviewed the difference in treatment between candidates in the nine provincial electoral districts, on the one hand, and candidates in the electoral districts of BHV and Leuven, on the other hand. According to the Court, this difference in treatment is discriminatory since candidates in BHV must compete with candidates who are also standing for election in districts other than BHV. In addition, candidates from Leuven are treated differently than candidates in the BHV electoral district. While it was possible to maintain the BHV electoral district in accordance with the Constitution in 1994, the Court found that this is no longer the case. The Court indicated that it is of course necessary to preserve an essential balance in the federal state, but that a mere reference to case 90/94 does not suffi ce to do so. According to the Court, this balance is not immutable. A situation in which the BHV electoral district is preserved, while the rest of the country is divided into provincial electoral districts, is unconstitutional. The Court emphasized that it would be putting itself in the legislature’s position and usurping the legislature’s powers if it were to decide to immediately put an end to a situation which had been approved by the latter. Moreover, the Court held that it cannot resolve all problems which the legislature ought to solve in order to preserve community peace. The Court could have decided to set aside the relevant provisions of the Elections Act while maintaining, on the basis of Article 8 of the special majority act on the Con- stitutional Court of 8 January 1989, the legal effects of these provisions for a certain period of time. In this case, however, the Court chose not to set aside the provisions. On the other hand, the Court declared only the difference in treatment unconstitutional and urged the legislature to rectify the situation within a certain period of time. The Court was most likely concerned that if it were to set aside the provisions and a new Elections Act did not enter into force, elections would become impossible. The Court seems to have been infl uenced by a technique applied by the German Constitutional Court, which waives, in particular cases, its right to set aside an act or fi nds that the act complies with the constitution but urges the legislature to amend it within a certain period of time.7 The German Constitutional Court mainly applies this technique when an act initially complies with the German Constitution but later is found to violate the Constitution due to changed circumstances or a change in the court’s case law.8 The Constitutional Court did not expressly state when the abovementioned four- year period should come to an end. In the government’s view, the deadline was 19 June 2007, that is, four years after the appointment of the co-opted members of the Senate

7 J. C. SCHOLSEM, ‘Des principes et de l’usure du temps’, J.L.M.B., 27(2003): 1174 et seq.; Y.Choi, Die Pﬂ icht des Gezetzgebers zur Beseitigung von Gesetzmängeln, Hamburg, 2002, 61-62 (). 8 J. C. BEGUIN, Le contrôle de la constitutionalité des lois en République fédérale d’Allemagne, Economica, Paris, 1982, 266 et seq. 10 EUROPEAN PUBLIC LAW during the parliamentary elections of 18 May 2003 (see Article 105 of the Elections Act). In the government’s opinion, any elections held after that date should thus be deemed unconstitutional. Once it became clear that the legislature would not reach a solution by 19 June 2007, a compromis à la belge was deemed necessary. Since the judgment did not exclude the possibility of early elections, the elections were advanced from 24 June to 10 June 2007. In this way, the government tried to avoid claims of unconstitutional elections and to pass on the BHV question to the next administration. According to several scholars, advancing the elections to 10 June 2007 did not make them constitutional. In their opinion, the four-year period (within which the government was supposed to ﬁ nd a solution to the BHV question) started to run on 18 May 2003, that is, the date of the last parliamentary elections. Therefore, any elections organized after 18 May 2007 should be deemed unconstitutional. Even if this interpretation of the Court’s judgment is correct, however, it should be noted that it does not make any difference in reality, since the newly formed parliament has not decided that the elections were in fact unconstitutional.

4. Search for a Solution

During the 2003-2007 administration, several bills were introduced into the federal Parliament in an attempt to carry out the Constitutional Court’s BHV judgment. The majority of these were either deemed unconstitutional or held up by various means. In fact, none of these bills went farther than preliminary discussions in the Internal Affairs Committee. Every vote calling for swift action was rejected by both houses. From early March to mid-May 2005, a number of high-ranking politicians made a ﬁ nal attempt to reach an agreement. However, after weeks of negotiations, the Verhofstadt administration failed to ﬁ nd a solution. Shortly after the elections of 10 June 2007 and even before the new administration (Leterme I) came to power, new bills were introduced regarding BHV. Most of these are identical to those introduced during the previous administration.9 These bills develop a wide variety of proposals to execute the Constitutional Court’s BHV judgment of 27 May 2003. One of these bills proposes a return to the situation prior to the 2002 electoral reform, that is, going back to a system of district constituencies rather than provincial constituencies. This would mean in fact a return to a situation on which the Constitutional

9 Bills of Annemans et al., Parl. Doc., House of Representatives, 2007-2008, nos. 52-27/1 and 28/1; Bills of Dedecker, Parl. Doc., House of Representatives, 2007, nos. 52-31/1 and 52-32/1; Bill of Bonte and Tobback, Parl. Doc., House of Representatives, 2007-2008, no. 52-33/1; Bill of De Crem, Devlies, De Wever, Doomst and van Rompuy, Parl. Doc., House of Representatives, 2007-2008, no. 52-37/1; Bills of Somers et al., Parl. Doc., House of Representatives, 2007- 2008, nos. 52-38/1 and 52-39/1; Bill of De Crem et al., Parl. Doc., House of Representatives, 2007-2008, no. 52-133/1; Bill of De Giet et al., Parl. Doc., House of Representatives, 2007-2008, no. 52-153/1; Bill of Arens et al., Parl. Doc., House of Representatives , 2007-2008, no. 52-158/1; Bill of Bacquelaine, Parl. Doc., House of Representatives, 2007-2008, no. 52-169/1. These documents can be consulted at . BELGIUM 11

Court has already rendered a judgment (case 90/94 of 22 December 1994). In this decision, the Court held that: preservation of the Brussels-Halle-Vilvoorde electoral district is based on the need to achieve an essential balance between the interests of the communities and the regions in the Belgian state (…)”.10 There is no reason why the Court would change this point of view, since all other constituencies would also be based again on a division in districts. In the event the legislature should, on the other hand, decide to preserve the current provincial constituencies, this decision must be carried over and applied to the electoral districts of BHV and Leuven. This would result in a re-division of BHV into two constituencies (one for the Brussels-Capital Region and one for Flemish Brabant). In this scenario, BHV would obviously be split up. The Constitutional Court has indicated (case 73/2003) that the federal legislature is entitled to provide in this case for ‘special conditions’ in order to safeguard the ‘legitimate interests of the Dutch-speaking and French- speaking residents of the former province of Brabant’11 In this scenario, Article 63 of the Constitution could be revised in order to incorporate these ‘special conditions’ into the Constitution. It should be noted, however, that the declaration of revision of the Con- stitution of 1 May 2007 provides only for the possibility to amend Article 63(1) to (3) during the current administration. According to some academics, however, the legislature is not obliged to amend the Elections Act in order to comply with the Constitutional Court’s decision. This argument is based on the fact that the Constitutional Court did not formally fi nd the Elections Act to be unconstitutional. The legislature could thus merely furnish adequate reasons to maintain the constituencies of BHV and Leuven. This reasoning could point out that the legitimate aim is to the protect the interests of the Dutch-speaking minority in Brussels and safeguard the interests of the French-speaking population in municipalities on the linguistic border. It should be noted, however, that the Legislative Division of the Council of State does not agree with this point of view. In an opinion rendered further to an amendment to the bills, the Council of State found that: no justifi cation can be found in light of Articles 10 and 11 of the Constitution12 to preserve the current rules since the Constitutional Court has set aside certain provisions of the Act of 13 December 2002. The mere fact that the Constitutional Court granted the legislature a period of time within which to fi nd a solution, implies that the current rules cannot remain valid after expiry of this term.13

10 Constitutional Court, case 90/1994, 22 Dec. 1994, B.5.8. 11 The former province of Brabant is now two provinces, namely Flemish Brabant and Walloon Brabant. 12 I.e. the constitutional principles of equality and non-discrimination. 13 Council of State, Legislation Division, 22 Oct. 2007, Parl. Doc., House of Representatives, 2007-2008, no. 52-37/5, 8. 12 EUROPEAN PUBLIC LAW

5. Management/Escalation of the Political Crisis

As pointed out in the introduction, shortly after the federal parliamentary elections of 10 June 2007, two bills regarding the split-up of BHV were adopted on 7 November 2007 by the Internal Affairs Committee of the House of Representatives.14 At the time, the outgoing Verhofstadt government was a lame duck and could exercise only ‘restricted transitional powers’. The new federal government under Leterme would only be sworn into ofﬁ ce some time later, that is, on 20 March 2008, and the vote of conﬁ dence in the House of Representatives passed two days later, that is, on 22 March 2008. It should be noted that during this transition period so-called coalition solidarity did not apply. Coalition solidarity only applies when the federal government, in which both Dutch- speaking and French-speaking parties are represented, can exercise its full powers. The absence of solidarity in the present case made it possible for the abovementioned bills to be adopted in the committee by the Flemish parties alone. The bills call for the split-up of BHV with respect to elections for the House of Representatives. Halle-Vilvoorde would be consolidated with the electoral district of Leuven, and Halle-Vilvoorde and Leuven would collectively form the provincial electoral district (constituency) of Flemish Brabant. Brussels would form a constituency of its own. For elections to the European Parliament and for the direct election of senators, Halle- Vilvoorde would form part of the Flemish constituency. The Brussels-Capital Region would form a constituency of its own. Due to the disadvantages that a split-up of BHV would entail for the Flemish parties in Brussels (they would be cut off from the Flemish electorate in Halle-Vilvoorde and could only canvas for votes from the Dutch-speaking minority in Brussels), the possibility of forming political alliances (apparentement)15 is maintained. Via this system it would be possible to link a Brussels electoral list with a Flemish Brabant list, on the one hand, and a Walloon Brabant list, on the other hand. The political alliances would be based on the allocation of votes in the former province of Brabant. The legislative history to the bill indicates that: a system of political alliances will be of the essence for Flemish electoral lists in Brussels. Without such a system, the Flemish lists will not stand a chance, unless a system of guaranteed representation or counting of the votes per linguistic group is set up; even if such a system were to be set up, the number of seats that the Flemish parties could obtain in Brussels would be too small to give traditional parties a chance. The Flemish parties in Brussels would thus be forced to form a coalition. With a system of political alliances [apparentement], the votes could be carried over to another constituency.16

14 Bill of De Crem et al, Parl. Docs. House of Representatives, 2007-2008, no. 52-37/7; Bill of Somers et al., Parl. Docs. House of Representatives, 2007-2008, no. 52-39/5. 15 This system of political alliances allows candidates on a list to declare, prior to the elections, that, for the purpose of allocating seats, they ally themselves with a list proposed in another electoral district in the same province. Under this system, the votes they win are added up for an additional allocation of seats at the provincial level, which takes place after an initial allocation at the level of each electoral district. In order to prevent smaller parties from taking undue advantage of this system, only alliances between lists that achieve a number of votes equal to 66% (for the House of Representatives) or 33% (for the Senate) of the ‘electoral divisor’ in at least one electoral district are taken into account in determining the additional allocation of seats, cf. A. Alen (ed.), Treatise on Belgian Constitutional Law (Mechelen: Kluwer Law, 1992), 69. 16 Parl. Doc., House of Representatives, 2007, 37/1, p. 6. BELGIUM 13

Electoral alliances between Flemish-Brabant and Walloon Brabant are not currently possible. It is unclear whether the Constitutional Court will consider a system of political alliances to be an acceptable ‘special condition’ to preserve the legitimate interests of the Dutch-speaking and French-speaking minorities in the former province of Brabant. However, the question arises as to whether the bills will ever become law. As explained above, the French-speaking parties are willing to use all available means at their disposal in order to prevent the ‘diktat’ of the Flemish majority and to reach a ‘negotiated’ solution to the BHV confl ict. One of these instruments is the confl icts-of-interest procedure. A confl ict of interest is deemed to arise whenever the federal government, a Community or a Region hinders the interests of another entity. In this regard, confl icts of interest should be understood to be purely political in nature, without there necessarily being any violation of the rules on separation of powers. The Senate plays an important role in preventing and settling such confl icts of interest. The procedure in this regard is set forth in Articles 32 to 33bis of the Institutional Reform Act of 9 August 1980. The day after the bills were passed by the Internal Affairs Committee, the French Community Parliament fi led a motion, raising a confl ict of interest. The Parliament of the French Community claimed that the Community’s interests had been harmed. The next day, the motion was carried with 83 votes (with only 3 abstentions); in other words, the two-thirds majority required by Article 32 61bis of the Ordinary Institutional Reform Act was met. The adoption of the motion suspended the discussion of the BHV bills in the House of Representatives for sixty days (Article 32 §1ter of the Institutional Reform Act). During this sixty-day period, consultation took place between the House of Representatives and the parliament of the French Community, but no agreement was reached. Subsequently, the confl ict was brought before the Senate (Article 32 §1quater of the Institutional Reform Act). The Senate had to issue a reasoned opinion within thirty days to the Consultation Committee, which in turn was obliged to take a unanimous decision within thirty days’ time. In accordance with the principle of linguistic parity, this committee is composed of six members of the federal government, two members from the Flemish government, one member each from the French Community government and the government of the Walloon Region and two members from the government of the Brussels-Capital-Region. Since neither the Senate nor the Consultation Committee was able to fi nd a solution to the confl ict of interest, the suspension should in principle have been lifted and discussions before the House of Representatives resumed. However, the French-speaking parties, through the Commission of the French Community, brought a new confl ict-of-interest procedure in order to buy time.17 Furthermore, the parliaments of the Walloon Region and the Brussels-Capital Region can still lodge, at the appropriate time, confl ict-of-interest procedures against the pending bills.

17 The Commission of the French Community, strictly speaking, lacks the power to lodge a conﬂ ict-of-interest procedure in this case since it is not acting as a parliament. The Commission is only considered a parliament if Art. 138 of the Constitution applies (cf. Art. 32 of the Institutional Reform Act). Since the Elections Act is undeniably federal legislation, Art. 138 of the Constitution does not apply in this case. 14 EUROPEAN PUBLIC LAW

If it turns out that a ‘negotiated solution’ cannot be reached to the BHV confl ict after exhausting all confl ict-of-interest procedures, the French-speaking parties can still rely on the notorious alarm-bell procedure. This is yet another protective mechanism which can be used by the French-speaking minority in both houses of Parliament. Whenever a language group in a House of Parliament, in this case the French-speaking language group, is of the opinion that a bill introduced by either the government or an MP (with the exception of budgets and special majority legislation) is likely to seriously impair relations between the Flemish and French Communities, it can start the alarm- bell procedure by means of a properly reasoned motion signed by at least three quarters of the members of the language group in question. The motion will result (yet again) in the immediate suspension of parliamentary debate. The Council of Ministers must then submit its fi ndings on the motion and ask the House to take a decision, either on these fi ndings or on the possibly amended bill. The confl ict will therefore either be resolved in the Council of Ministers (which has an equal number of Dutch-speaking and French- speaking ministers) or result in the resignation of the federal government.

6. Conclusion

In light of the foregoing, it follows that the legislature has – to date – been unable to implement the Constitutional Court’s judgment. In the meantime, several bills have been passed by the Flemish parties in the House of Representative’s Internal Affairs Committee to split up the bilingual electoral district of BHV. However, these bills will most likely never become law since the French-speaking parties will use all means at their disposal (namely confl ict-of-interest and alarm-bell procedures) to prevent the legislation from being adopted. It is becoming increasingly clear that a ‘negotiated’ solution to the BHV confl ict will have to be sought within the broader framework of a new state reform In this context, the Flemish parties are once again seeking to broaden the powers of the Communities and the Regions. In this regard, the extension of the fi scal and fi nancial autonomy and accountability of the Communities and the Regions and the devolution (transfer) of additional powers in the fi elds of healthcare and employment to the Regions and the Communities are key. Proposals to introduce a ‘federal electoral district’ are also being discussed. The introduction of such a constituency would lead to the increased legitimacy of a limited number of federal representatives. Finally, proposals seek for a shift of the federal government’s residual powers to the Communities and the Regions and a revamping of the community and regional fi nancing systems. The discussion with respect to BHV has reached practically international propor- tions. Certain French-speaking parties view the efforts by Flemish political parties to split up BHV as part of a larger strategy to align, within the framework of a secession scenario, the Flemish linguistic border with the geographic border of Flanders. The linguistic border would thus become the prefi guration of the future state border. Hence, they are BELGIUM 15 requesting the establishment of a ‘corridor’, that is, a physical connection between the Walloon Region and the Brussels-Capital Region, in order to safeguard the interests of a future state consisting of Wallonia and Brussels (also referred to as Wallobrux). To this end, it is for instance proposed that Flanders cede all railways, highways and water- ways that connect Brussels to Wallonia. In this way, a territorial unity could be created between Wallonia and French-speaking Brussels, without actually enlarging the territory of Brussels. On the other hand, some academics and politicians are pushing for the creation of an urban area (a so-called zone urbaine) which would extend beyond the existing nineteen municipalities of Brussels. This area would be a form of economic cooperation amongst the three Regions with the aim of boosting Brussels’ economy and would con- sist of Flemish, Brussels and Walloon municipalities. The urban area would have clearly defi ned powers, its own fi nancing mechanisms and decision-making bodies with equal linguistic representation. However, such an urban area would most likely come under fi re for circumventing rather than solving community diffi culties. Whether the BHV issue will lead to a division of Belgium along linguistic lines and the creation of separate states (Flanders; Wallobrux) is diffi cult to say. For the time being, scenarios regarding the split-up of Belgium still seem far-fetched. Party leaders have once again initiated an ‘exploratory’ discussion in order to try to fi nd a solution for BHV. Prime Minister Leterme has indicated that more clarity will be provided with respect to the fate of BHV on 15 July 2008, at the latest.

ISRAEL

The Governmental Commission of Inquiry for the Second Lebanon War, 2007

Suzie Navot*

On 12 July 2006 Hezbollah forces opened fi re on Israel with a barrage of missiles targeted at Israeli northern settlements. Concurrently, the organization infi ltrated the northern border, kidnapped two I.D.F. soldiers from Israeli territory to Lebanon, killed eight soldiers and wounded several more. Israeli government immediately convened an emergency meeting in which it decided on an Israeli military response. The fi ghting that ensued in the wake of these events lasted thirty-four days during which hundreds of missiles were fi red upon Northern Israel. It terminated on the morning of 14 August 2006, when the ceasefi re decided upon by the Security Council of the U.N. came into force. The war took a death toll of one hundred and fi fty Israeli soldiers and citizens. The war evoked a sharp sense of failure among the Israeli public and the feeling that overall, the war had been grossly mismanaged. As if to highlight the war’s misman- agement, it took the Government an additional half a year to even offi cially declare that the military operation in Lebanon had actually been a ‘war’.1 And so, immediately after the ceasefi re, a public campaign began, calling upon the Government to establish a state commission of enquiry to investigate the failures of the war, and demanding the resignations of the national leadership: the Prime Minister, the Minister of Defense, and the Chief of Staff. After much hesitation, the Government decided against the establishment of a state commission of enquiry, deciding instead to set up a ‘governmental commission of inquiry’ to examine the conduct of the political and military levels at all stages of the war. The commission was headed by a retired district court judge, E. Winograd (hereinafter referred to as the ‘Winograd Commission’). The circumstances surrounding the Commission’s establishment generated expecta- tions for the Government’s resignation in its wake, and accordingly for over a year the Israeli public waited impatiently for its conclusions. As mentioned, the public feeling was that the war had been a dismal failure, the like of which compelled the politicians involved

* Professor of Law, Head of Public Law Division, School of Law, College of Management – Academic Studies, Rishon Lesion, Israel. I wish to thank Sivan Mizrachi for her excellent research work. 1 On the 25 Mar. 07 the Government decided that the military campaign that had been conducted in Lebanon in 2006 would be called ‘The Second Lebanon War’.

Navot, Suzie. ‘Israel – The Governmental Commission of Inquiry for the Second Lebanon War, 2007’. European Public Law 15, no. 1 (2009): 17-32. © 2009 Kluwer Law International BV, The Netherlands 18 EUROPEAN PUBLIC LAW to acknowledge their personal responsibility and declare ‘I failed, I made mistakes and I vacate my position:’ Regarding personal responsibility the public view was that everything had been put on hold, pending the conclusions of the Winograd Commis- sion. This feeling was reinforced when the Commission issued a partial- interim report after some months, a report that was perceived as laying the groundwork for the personal conclusions in the fi nal report. The background for the public anticipation was the precedents of past commissions which culminated in the resignations of Israeli leaders. Accordingly, it came as a great surprise when the fi nal report lacked personal conclusions relating to specifi c individuals and omitted, intentionally, personal recommendations regarding the continued service of the senior offi ce holders involved and responsible for the failures of the war. Public consternation as a result was intense, because the matter of personal responsibility was at forefront of public interest. The public feeling was that the Commission had severely failed in properly discharging its mandate due to its refusal to demand that those responsible for the failures of the war take personal responsibility. This article examines the various aspects of the Winograd Commission. Firstly we will present the tools provided by Israeli law for the investigation of wars and the history of commissions of enquiry. In this context we will explain existing distinctions between a state commission of enquiry and the Winograd commission, which was set up as a ‘governmental commission of inquiry’. Then we will analyze the ongoing accompaniment-supervision of the Israeli Supreme Court, from the time of the commission’s establishment until the submission of its fi nal report.

1. Investigation of a War by Way of a State Commission of Enquiry

1.1. The normative framework

The central tool in Israel for the examination of an incident of national and public dimensions such as war is a state commission of inquiry, pursuant to the Commissions of Inquiry Law, 1968. State inquiry institutions have their source in the Mandatory law, and the format of the Israeli Commissions of Inquiry Law resembles that of the Com- mission of Inquiry Ordinance of 1921,2 in England, which enabled the establishment of Tribunals of Inquiry. Nonetheless, in Israel the institution developed independently, reﬂ ecting Israeli political culture. Under section 1 of the Commissions of Inquiry Law, the establishment of a state commission of enquiry is a governmental decision, whereas its members are appointed by the President of the Supreme Court.3 The commission is head by a practicing or retired judge of the Supreme or District court; thus ensuring the commission’s freedom and

2 Tribunal of Inquiry (Evidence) Act, 1921. 3 In comparison with other states, the President of the Supreme Court has exceptional powers with respect to determining the composition of the commission. In those states which have a parallel institution (e.g., England, Canada, Australia, New-Zealand and India) the body giving the instruction to establish a commission of inquiry is also the one that appoints its members, as is the case with a governmental commission of inquiry in Israel (and this was the manner of appointment and personal composition of the Winograd commission). ISRAEL 19 its independence from the executive branch. The severance of the government from the commission members ensures public trust in the commission’s conclusions. The law provides the commission with extensive powers, inter alia, the power to force witnesses to testify, to submit documents and other exhibits. By law, the commission is vested with all the powers of a regular court, including the power to impose sanctions for perjury, and an independent network for collecting evidence required for investigation. The commission generally comprises three members, and in exceptional cases, a larger odd number of members. The hearings of a state commission of inquiry are usually public, although it is permitted to conduct the whole or a part of a hearing in camera if necessary in the interests of state security etc.4 The government is under no statutory obligation to accept the conclusions of a state commission of inquiry (which relates to clarifi cation of facts), or its recommendations, but the practice that has developed in Israel is for the government to accept and implement the commission’s personal recommendations. At all events, a government decision to reject or not to comply with the commission’s recommendations is subject to Supreme Court judicial review. To date, Israeli governments have not ignored the recommendations of the commissions of inquiry that were established and for the most part governments have accepted the commission’s recommendations on the personal level too (including a recommendation to remove a person from offi ce etc), whereas the structural-institutional recommendations, despite their formal acceptance, are generally not implemented, remaining on paper alone. For example, the Agranat commission, which will be discussed below, recommended the dismissal of a number of senior offi cers, including the Chief of Staff. These recommendations were implemented, but the institutional recommendations pertaining to the relations between the military and political levels and the intelligence bodies remained on paper alone. As of today, 15 state commissions of inquiry have been established concerning a broad range of matters. Two of the commissions were established in the aftermath of wars – the Agranat Commission (1973) after the Yom Kippur War, and the Kahn Commission (1982), to investigate the Sabra and Shatilla massacre that occurred in the course of the fi rst Lebanese war. Our comments below focus on both of these commissions.

1.2. The history of investigation of wars

The Agranat commission for the investigation of the Yom Kippur War was established in circumstances similar to those that lead to the establishment of the Winograd Commission, making it a valuable source of comparison. On 18 November 1973 the Government appointed a state commission of inquiry to investigate the intelligence failure that preceded the Yom Kippur War. The commission was also requested to investigate the I.D.F. (Israeli

4 Section 18 of the Commissions of Inquiry Law. For example, the Or commission that investigated the security forces ﬁ ring on Arab citizens in the course of the October riots in 2000. This commission conducted its hearings in public, apart from certain testimonies, such as those of G.S.S. (General Secret Service) personnel which were given in camera. 20 EUROPEAN PUBLIC LAW

Defense Forces) preparations for war in general, its readiness for war in the days immediately preceding the Yom Kippur War, and the measures adopted until the arresting of the enemy’s offensive. Then President of the Supreme Court, Dr Shimon Agranat, appointed a committee, headed by himself. Following the publication of its fi rst interim report Prime Minister Golda Meir resigned along with all the members of her government.5 Another state commission of inquiry was established on 1 November 1982 in order to ‘investigate the facts and circumstances surrounding the atrocities perpetrated by the Lebanese forces on the civil population in the Sabra and Shatilla refugee camps’ following the Israeli operation in Lebanon. The commission was headed by then President of the Supreme Court, Yitzchak Kahn, who was accompanied by Supreme Court Jus- tice Aharon Barak, and General (reserve) Yona Efrat. The commission was established to investigate the Israeli failure to prevent the atrocities. A number of Knesset members opposed the commission’s establishment, arguing that it was pointless, and according to some, contrary to the national interest, to investigate acts in which Israel was not directly involved. The Commission concluded that the Lebanese Phalangist forces were directly responsible for the massacre and that the State of Israel and its representatives bore no direct responsibility. Nonetheless, the Commission faulted the conduct of the political and military echelons. Its conclusion was that had Prime Minister Menachem Begin taken greater interest in the events following the Phalangist entry into the camps, it would have stimulated the awareness and adoption of the anticipatory preventative measures on the part of the Defense Minister and the Chief of Staff Nonetheless, the Commission decided to avoid imposing direct personal responsibility on the Prime Min- ister. It did however fi nd fault in the conduct of Defense Minister, Ariel Sharon, who, in allowing the Phalangists to enter the refugee camps, failed to consider the possibility that the latter would seek to avenge the murder of President Elect, Bashir Gamail. As a result, he failed to adopt appropriate measures for preventing a blood bath or to reduce the danger. The Commission recommended that Minister Sharon draw personal conclusions, and he was in fact removed from offi ce, although he continued to serve in the Govern- ment as minister without portfolio. In addition, the Commission criticized the decision making process as it related to Sabra and Shatilla, including the absence of appropriate reporting and recording procedures.

2. The Decision of the Israeli Government Regarding the Investigation of the Second Lebanon War: Governmental Commission of Inquiry

Even though the results of Second Lebanese War compelled an investigation of its conduct on both the political and military levels, Ehud Olmert’s government decided to sufﬁ ce with the appointment of a governmental commission of inquiry. This decision both surprised and incensed the Israeli public, insofar as the substantive and perceived differences between a state commission of inquiry and a governmental commission of

5 Uri Milstein, ‘The Agranat Commission’, Theory and Critique, 12-13 (1998) (In Hebrew), pp. 241-250. ISRAEL 21 inquiry render the latter signifi cantly weaker in terms of its public standing, its ability to investigate and the political-legal signifi cance of its conclusions. A governmental commission of inquiry is established pursuant to section 8A of Basic Law: The Government, 2001: Where a Minister appointed a commission for the examination of a particular subject or event within the realm of his responsibility…. and the commission is headed by a retired judge, the Minister of Justice may, at the request of the Minister in charge and the approval of the government, determine that such committee will have the authorities of a commission of inquiry pursuant to sections 9-11, and 27 (b) of the Commissions of Inquiry Law … The commission is established by the prime Minister or a minister who then choose the members of the committee, hence enabling the executive branch to directly determine the character of the commission. This stands in sharp contrast to a state commission of inquiry, whose members are appointed by the President of the Supreme Court, that is, an external body that is not part of the government. The law does not stipulate who the commission is headed by, nor does it require that it be headed by a judge or stipulate other guidelines regarding its composition. It prohibits the appointment of a member suspected of confl icting interests between his roles in the commission and any other role that he fi lls, or any other matter related to him. A commission established under the Government Law does not have the broad investigatory powers conferred to a state commission of inquiry under the Commissions of Inquiry Law, but when headed by a judge, the Minister of Justice may, with the government’s approval, confer it with powers similar to those of a state commission of inquiry. With the establishment of the Winograd commission, and pursuant to the provisions of its letter of appointment, the Commission was vested with additional powers, similar to those conferred to a state commission of inquiry. Accordingly, it was permitted to authorize those qualifi ed to do so to collect the material required for the inquiry and to assist it in its task (section 13 of the Commissions of Inquiry Law); it was permitted to submit an interim (partial) report, and it was obliged to publish its reports (as per section 20).6

6 H.C.J 6728/06 Amutat Ometz v. Prime Minister (not yet published), hereinafter ‘Amutat Ometz’, at the beginning of page 28, per Rivlin J. See also comments of Court President Beinisch, in H.C.J 258/07 M.K. Zahava Galon v. Govern- mental Commission of Inquiry (hereinafter:‘H.C.J 258/07’): In H.C.J 6728/06, the aforementioned Amutat Ometz, this court noted that in view of the nature and the scope of the issue that the Winograd Commission was charged with examining, the Government decided to grant the Commission, in its letter of appointment, additional powers and authorities that were not enumerated in the Government Law, in order to enable the Commission to undertake a comprehensive investigation of a subject of major national importance and signiﬁ cance such as the combat in Lebanon. Among other things, the Commission was conferred the central powers of a state commission of inquiry pursuant to sections 9-11 of the Commissions of Inquiry Law – the authority to subpoena witnesses, and to compel them to testify, or to present documents … in H.C.J 6728/06 the State even agreed that for purposes of the Winograd Commission, an arrangement based on the provisions of section 15 of the Commissions of Inquiry Law should be implemented in respect of giving the opportunity of presenting claims to persons liable to harmed by the Commission’s conclusions. In fact, the representative of the State declared that the Commission was authorized to send ‘warning letters’ and to make recommendations regarding personal conclusions, similar to a state commission of inquiry. In fact, the State’s position in H.C.J. 6729/06 Amutat Ometz, can be interpreted as equating the powers of the Winograd Committee with those of a state commission of inquiry, being distinguished from it purely in respect of the entity that appointed it. 22 EUROPEAN PUBLIC LAW

The law does not determine a procedural format for the commission’s hearings, granting it discretion to determine its own work procedures. The High Court of Justice therefore dismissed a petition7 to obligate the Winograd Commission to publish the minutes of its proceedings retroactively. However, as we will presently see, the High Court of Justice did obligate the commission to publish the testimonies of senior office holders, even prior to the submission of the partial report, and it likewise established principles governing the publicity of hearings which were to guide the Commission’s work in the future.8 Notably, the hearings of the Agranat committee, which investigated the Yom Kippur War over thirty years ago, were conducted in camera. Pursuant to a statutorily based government decision a sweeping gag order was issued regarding its hearings. The Kahn Commission hearings were likewise conducted in camera.9 The Winograd Commission was authorized to investigate, establish ﬁ ndings, and draw conclusions, as well as to submit recommendations at its discretion, pertaining to the conduct of the political echelons and the security network10 with respect to the battle in its entirety. It was decided that the Commission would have all the authorities of a commission of inquiry under sections 9-11 and 27 of the Commissions of Inquiry Law, including full discretion in establishing the order of hearings and other work procedures. Furthermore, its hearings would be public or in camera at its discretion,11 and hearings would not be public on matters liable to jeopardize state security or its foreign relations, or for any other legally sanctioned reason. It was further determined that the prime Minister and the members of government, civil servants and I.D.F. personnel and the various branches of the security establishment would appear before the Commission at its behest, providing it with any information or documents requested. The Com- mission was requested to expedite its proceedings and the subsequent report given the critical need for prompt preparation and drawing of conclusions in anticipation of the threatening scenarios currently confronting the State of Israel. It was further determined that should the Commission deem it necessary, it was permitted to submit an interim

7 H.C.J. 258/07, ibid. 8 In its decision the Supreme Court ruled that the testimonies would be publicized but without the inclusion of details which ‘would with a high degree of probability gravely impair State Security’. 9 H.C.J 258/07 supra n. 6, at p. 16 (end). See also ss 48-50 in the fi rst chapter of the partial report, at p. 18. 10 Section 41, p. 41 of the fi nal report: ‘… for our purposes the political level includes the Prime Minister, the Defense Minister and the Foreign Minister, but also additional ministers in the areas of their responsibility, as well as the Seven Minister Forum and the Ministerial Committee for Matters of National Security (the cabinet), the Government Plenum and even the Knesset and its committees, the military level. For our purposes, the military level includes commanders from the Chief of Staff downwards, until the rank of brigade and even regiment commanders …’ 11 The Commission agreed that the rule of publicity of hearings was applicable. See also H.C.J 1999/07 M.K. Zahava Galon v. Governmental Commission of Inquiry for the Examination of the Events in the Campaign in Lebanon 2006, TAK-EL 2007 (2) 551 (19.4.07)( hereinafter ‘H.C.J. 1999/07’), the court ordered the Commission to comply with this principle and to publish the main protocols. ISRAEL 23 report,12 regarding matters in which there was an urgent need for the implementation of its conclusions and recommendations. The Commission’s report would be submitted to the Prime Minister and to the Minister of Defense, who would then present it to the Government, and the report would be made public. The Winograd Commission’s establishment was accompanied by harsh public criticism, primarily due to the Government’s refusal to establish a state commission of inquiry. The question was whether the Government could be ‘obligated’ to take the same path as previous governments, compelling it to set up a state commission of inquiry. As a matter of course, governments will not hasten to appoint state commissions of inquiry. Some of the state commissions of inquiry were the product of intense public pressure despite the government’s initial attempts to suffi ce with governmental commissions of inquiry.13 While the Knesset may demand that government establish a state commission of inquiry, it cannot compel it to do so, and thus far the court has avoided ordering the government to establish a state commission of inquiry or to refrain from doing so. The court ruled that establishment of a commission of inquiry is a broad, governmental prerogative and consequently it will only intervene in ‘exceptional and rare cases, the like of which have not, and probably will not come before the court’. Nonetheless, there were those who felt that the case at hand, that is, investigation into the failures of the Lebanon war, was precisely the kind of extreme case that demanded judicial intervention. Accordingly, with the establishment of the Winograd commission, a petition was fi led to the Supreme Court, requesting to disqualify it, inter alia on the grounds of it being a governmental commission of inquiry as distinct from a state commission of inquiry.

3. The Judicial ‘Battle’ over the Winograd Commission

As stated, the Government’s decision to establish the Winograd Commission triggered a petition to the High Court of Justice,14 entreating the court to instruct the Government to appoint a state commission of inquiry pursuant to the Commissions of Inquiry Law, and to annul the decision to appoint the Winograd Commission. This petition was one of the most blatant gestures of public ire in the face of the Government’s decision to appoint a governmental, and not a state commission of inquiry.

12 On 30 Apr. 2007 the Commission submitted a Partial Report (about nine months before the publication of the ﬁ nal report). The Commission decided to separate between the various parts of the report, motivated by its desire to quickly expose the facts and to make its recommendations for institutional improvements which were of critical importance (in view of the disturbing phenomenon of ‘waiting’ for the Commission prior to rectifying defects that had already surfaced). Furthermore, the Commission had decided to conduct an independent examination of the decisions relating to embark on war. 13 For example, the Landau Commission for the Examination of the G.S.S. Interrogatory Methods. This commission was established when the committees set up to examine the functioning of the G.S.S. as exposed in the cases of Bus No. 300 and Izzaat Nafsu, failed to uncover the truth. In addition, the Or Commission was set up in the wake of public pressure, primarily of Arab citizens, even after various clarifying committees had been set up by the Government. 14 Amutat Ometz, supra n. 6. 24 EUROPEAN PUBLIC LAW

The petition raises the question of whether the Government’s decision regarding the manner of examination is even ‘justiciable’.15 In other words, is it appropriate for the court to intervene in a government decision adopted within the framework of its authority? The question however is broader. Its scope extends beyond the question of judicial intervention in a particular government decision, which prima facie is a question of policy not appropriate for judicial review; it also involves the appropriate interpretation to be given to the Commissions of Inquiry Law. In the latter, broader context, the petitioners claimed that the war in the north was a matter of ‘vital public importance’ within the meaning of section 1 of the Commissions of Inquiry Law, and that as such, the establishment of a state commission of inquiry is the proper tool for its investigation. They further argued that both in principle and in the case at hand, only an independent commission, free of any extrinsic interests, could merit public trust. In addition, the practice that had evolved in Israel was for war-related questions to be submitted to a state commission of inquiry, such as the Agranat Com- mission in the case of the Yom Kippur War and the Kahn Commission in the matter of Sabra and Shatilla. The petitioners also made the particularly interesting claim that the appointment and manning of the Commission by the Prime Minister (in the sense of the person being investigated appointing his investigators) created a problem of confl icting interests, which would erode public trust. The Supreme Court’s decision to appoint a seven justice panel to adjudicate the petition refl ects the importance of the subject16 and in a long, reasoned judgment the court dismissed the petition by a majority of four against three. The majority ruled that the Government was authorized to appoint a governmental commission of inquiry, and that its decision to do so should stand. Even so, all of the justices stressed that judicial non-intervention did not refl ect judicial ‘approval’ of the decision, or that the decision was even a good or appropriate one. The court only ruled that decision ‘was not illegal’ to an extent warranting intervention. In principle, the majority ruled that the limited scope for judicial intervention in the Government’s decision to conduct an examination proceeding was dictated by the principle of separation of powers.17 The Court would only intervene in governmental decisions in particularly exceptional cases. The law establishes a number of paths for the

15 According to the ‘non justiciability’ approach, the resolution of disputes bearing a political character is the task of a political organ and not the judicial branch. Involving the judiciary in disputes of this nature violates the principle of separation of powers in a democratic regime, in which political decisions are adopted by the elected political authorities, and is also detrimental to the courts themselves. The judge’s basic instinct should therefore be to distance himself from decisions of a political nature. President Aharon Barak (ret) of the Israeli Supreme Court classifi ed ‘justiciability’ as one of the legal tools utilized by the court to close its gates to actions which are not suited for judicial resolution. A ‘non- justiciable matter’ is a matter for which there are no legal criteria upon which a judicial resolution can be based, or a problem which is not suited or appropriate for the resolution of the judicial branch. According to Israeli approach, the political nature of an act does not negate its legal nature, but the legal character of the executing body will affect the nature of the rules applied by the court, meaning the Court may act with ‘judicial self restraint’. 16 The Supreme Court generally presides in panels of three judges but is authorized to preside in panels comprising a larger, odd number of justices. 17 Amutat Ometz, supra n. 7, p. 16. ISRAEL 25 investigation of governmental activities and of matters within its responsibility,18 which may or may not overlap. The government has broad discretion to choose one of the paths stipulated by law,19 and its choice is a governmental and not a judicial prerogative.20 The minority’s view was that the appointment of the commission of inquiry was tainted by a number of fl aws, which cumulatively should dictate the appointment’s annulment. It argued that the correct interpretation of section 8 of the Government Law dictates the conclusion that a governmental commission of inquiry is not authorized to preside over national issues of vital public importance, such as in the case at hand. According to the minority justices, it was unacceptable for a commission of inquiry established by and at the Government’s initiative, to be the body investigating the acts of the government itself, that is, the very same body that appointed it. This kind of appointment raises the specter of confl icting interests.21 The prime concern however is that the government’s selection of the commission’s members may fatally harm the public trust in the commission’s freedom and the independence of its members’ discretion.22 Regarding the alleged confl ict of interests, the majority ruled that this argument did not constitute grounds for judicial intervention,23 because in principle, the political level is authorized to appoint committees to examine its own actions; such authority is recognized and accepted in other legal systems too, and in certain systems is the exclusive approach. A governmental inquiry under section 8A has its parallel in section 4 of the English law24 which authorizes a minister to appoint the members of the committee and to determine the subjects and the scope of the examination. Similarly, in New- Zealand and in Australia the executive branch controls the appointment of commissions of inquiry.25 As such, the prevailing approach is that the appointment of a commission by the executive branch does not detract from the commission’s independence. As mentioned, the petition against the establishment of the Winograd Commission was dismissed, and an application to conduct a further hearing by an expanded judicial panel was rejected.

18 Amutat Ometz, supra n. 7, p. 9 at end of Rivlin J’s opinion. 19 H.C.J. 6001/07 Amitai v. Prime Minister, Tak-El 97 (3) 27, p. 28, held that ‘Even when a matter is of vital public importance, and even where an investigation is called for, the government still has the discretion not to appoint a commission of inquiry.’ 20 Ibid., p. 573 ‘… we observed that the government has broad discretion, which applies not only to the specifi c decision to investigate, but also to the manner of investigation … Accordingly, where the government decides to investigate a particular matter in a particular manner, whether by a commission of inquiry or any other manner, the court’s tendency will be to avoid instructing the government regarding a specifi c manner in which the matter should be investigated. 21 This was because the Winograd Committee, which was appointed by the Government, in additional to the examination of systemic, ministerial matters, was also supposed to examine the aspects of personal responsibility of Governmental decision makers connected to the events of the war. 22 Amutat Ometz, supra n. 6, para. 56, p. 60 in Proccaccia J’s opinion. In substantiating her position regarding the prohibition of confl icting interests, Proccaccia J. relied on the comparative law of the U.S.A, England, Australia and Canada. 23 Amutat Ometz, supra n. 6, para. 10, beginning, p. 110. According to Gabrin J, it is problematic that the members of the governmental commissions of inquiry are appointed by the body being investigated. 24 Inquiries Act 2005. 25 In New Zealand by force of the Commissions of Inquiry Act 1908 and in Australia by force of the Royal Commissions Act 1902. 26 EUROPEAN PUBLIC LAW

4. The Winograd Committee and the Supreme Court Supervision

The Winograd Commission began working, its establishment having been confi rmed by a bare majority of one in the Supreme Court, but nonetheless its actions continued to be closely scrutinized by the Supreme Court by force of petitions concerning the aspects of its work. As it transpired, not only the establishment of the committee was problematic in eyes of the Supreme Court, despite its decision not to intervene; its proceedings too were found to be problematic by the Supreme Court. The Winograd Commission decided to conduct its hearings in camera, insofar as the question of the hearings’ publicity was left to the Commission’s discretion. This decision landed it in a confrontation with the Supreme Court following the predictable fi ling of a petition requesting that the Commission be instructed to open its deliberations and hearing of testimony to the public.26 Supreme Court President Beinisch ruled that the quasi-judicial powers of the Commission required it to confer signifi cant weight to the principle of the publicity of its hearings.27 As a public authority, it was also subject to the duty of disclosure regarding information submitted to it, as well as the duty to accommodate the public right to know. The considerations supporting the publicity of its hearings resembled those applying to a state commission of inquiry and the Court therefore ruled that the Commission was bound by the general norms regarding the publicity of the deliberations (as anchored in section 18 of the Commissions of Inquiry Law) and freedom of information.28 In this context, the Court instructed the Commission to strike a balance between two fundamental values: state security and the need for publicity of hearings and the protection of the public’s right to know. However, the petition was only fi led after the overwhelming majority of the testimonies had already been heard, and as such the question of the public hearing of those testimonies was no longer relevant. On the other hand, regarding the testimonies to be heard after the Court’s decision, the Court ordered the Commission to act in accordance with the aforementioned. Regarding the publication of the minutes of the Commission’s meetings, the Court ordered the Commission to meticulously examine all the minutes and decide specifi cally in respect of each testimony whether there were grounds for prohibiting its publication. In addition to the dispute over whether to publish the minutes, the question of when to publish them was also disputed. The Commission argued before the Court that the minutes should only be published after the submission of its fi nal report to the Government, but the Supreme Court rejected this position. It ruled that in view of the

26 H.C.J. 258/07, supra, n. 6. 27 Section 3 of Basic Law: The Judiciary; section 68(a) of the Courts Law [Consolidated Version] 5743-1984; and see also s. 18 (a) of the Commissions of Inquiry Law, which applies the principle of the publicity of deliberations to commissions of inquiry. Even though this section did not apply directly to the Winograd Commission, it was ruled that the considerations regarding the publicity of the Commission’s hearings are essentially similar to those of a state commission of inquiry, due to its special character and the particular powers conferred it. See para. 5 of Beinisch J’s judgment; paras 1 and 10 of Justice Procaccia J’s judgment, where she dwelt on the Commission’s status as a quasi-judicial body. 28 Ibid., paras 6 and 7, pp. 10-12 in the judgment of Beinisch J; and para. 1, pp. 20-22 of Proceccia J. judgment. ISRAEL 27 singular importance of principle of public deliberations, the public’s right to know, and the intense public interest in the speciﬁ c matters being deliberated on by the Com- mission, all rendered it unreasonable to delay the publication of the material until the submission of the ﬁ nal report.

5. The Interim Report and the Final Report

In April 2007 the Commission presented its partial report to the Government,29 having heard dozens of witnesses and examined the extensive documentation submitted to it. The introduction to the Report states that the Commission members deemed it necessary to present a partial report to the Government, in view of the ‘urgency attaching to the implementation of our conclusions and recommendations’. The Partial Report contains a chapter covering the situation prevailing in Northern Israel before the war (2000-2006), and a central chapter dealing with the beginning of the Lebanon war, focusing specifi cally on the fi rst fi ve days (from 12 July to 17 July, 2006). The following statement of the Commission appears at the beginning of the second chapter of the report: We fi rstly wish to stress that our principal goal is to examine what happened, so as to make our contribution to ensuring that the defects revealed are redressed urgently. At the same time, in the event of there being outstanding personal responsibility for defects or failures, the unequivocal determination of this Commission constitutes an integral part of any process of rectifi cation… In this report, which addresses the prevailing conditions on the eve of the campaign, and the decisions pertaining to embarking on a war, we will also include our fi ndings and conclusions regarding specifi c persons, but we will not include personal recommendations. We will reconsider the question of personal recommendations in the fi nal report30 It bears note: The Commission of Inquiry stipulated three stages for its work: The fi rst was that of determining fi ndings, including the basic facts and their interpretation in the light of the documents and testimonies heard by the Commission; the next stage was that of drawing conclusions, the thrust of which was an evaluation of the fi ndings ‘in view of relevant criteria’ (e.g., the conclusion that a particular person failed in the discharge of his duties). In this context, the Report stressed that ‘the criteria relate not only to the functioning of particular individuals, but also to the functioning of entire systems’.31 The third stage is of recommendations, which may be systemic or personal (such as the determination that it is inappropriate for a particular person to continue serving in a particular position). The Commission avoided making personal recommendations in its Partial Report, stating that: The Commission is authorized to point out failures in the conduct of any person (public servant or publically elected) from both the political and military levels), to criticize

29 The Commission of Inquiry into the Events of the Military Campaign in Lebanon 2006 – Partial Report (hereinafter – Partial Report). 30 Ibid., p. 21. 31 Ibid., p. 22. 28 EUROPEAN PUBLIC LAW

his conduct, and to draw conclusions regarding it. It is even authorized to make personal recommendations, such as recommending that a particular person not continue serving in his position. Even so, we believe that particular caution is required regarding recommendations of this kind. In principle, it is undesirable to substitute the discretion of those charged with decisions of a personal nature with our own discretion. Not by chance, this authority was conferred by law to the Minister of Defense and the Chief of Staff in all matters concerning army personnel; to the Government and primarily the Prime Minister and the Minister of Defense, with respect to the Chief of Staff; to the Prime Minister and to the Knesset in all matters concerning the Government (by way of elections and no-confi dence, respectively)… All the same, caution and respect for these branches does not mean the eschewal of personal recommendations should they be required, and in this context there is no difference between the political level and the professional-military echelons, although importance does attach to differences in the nature of the position, the manner of appointment or election, and the source of authority… …in exceptional, outstanding cases, the Commission is authorized, and even obligated not to suffi ce with drawing conclusions; it must also complement them with explicit personal recommendations. Against the background of all the above, we will avoid an advance declaration to the effect that we will not make personal recommendations, for occasionally there is no real possibility of making the necessary and urgent changes without replacing those who served in those key positions during the events being examined. Summing up: Our decision of whether to make personal recommendations, on the political or the military levels will only be made after examination of the campaign in its entirety, and within the framework of the fi nal report.32 The interim report contained harsh determinations concerning the failures of the Prime Minister, the Chief of Staff, and the Minister of Defense. The Report stated that their decision to go to war was adopted in a rash and irresponsible manner, and that they also failed in the management of the Lebanon War. Specifi cally regarding the Prime Minister, the Report found that his decisions connected to the immediate intensive military strike, was rushed and injudicious, and not based on a careful study of the Lebanese arena. Nor was it based on a proper assessment of the battlefi eld, and it lacked a comprehensive, detailed, thought out military plan-plan and clear strategic guidelines. The battle’s goals were not clearly and carefully defi ned, nor had there been any examination of whether the declared aims would actually be attained by the measures adopted. The cumulative result of all of these was a serious failure in the exercise of discretion, responsibility, and caution. The Partial Report elicited harsh reactions from the political establishment. Imme- diately after its publication there were ministers in the Government who gave notice of their resignation, and they were joined by Foreign Minister, Tzipi Livni who called upon the Prime Minister to resign. The Minister of Defense, Amir Peretz was running for leadership of the Labour Party on the eve of the Report’s submission. After losing the

32 Ibid., pp. 25-26. ISRAEL 29 primaries – conducted two months after the Report – he also resigned from his position as Defense Minister. The Chief of Staff also resigned. The result was that the public ire now focused exclusively on the Prime Minister, and calls for his resignation intensifi ed in the wake of the resignations of the Defense Minister and the Chief of Staff. On 3 May 2007, a public rally of 100,000 people called for the Government’s resignation. Polls conducted after the publication of the Partial Report indicted low levels of support for the Prime Minister and his ministers and a clear public yearning for his resignation. At the end of the day, in the absence of a clear ‘legal’ determination on the Commission’s part, the Prime Minister refused to resign from his position in the wake of the Partial Report, undertaking that he and his government would rectify the fl aws. In the aftermath of the Partial Report, its harsh, conclusions and the Government’s refusal to ‘draw conclusions’, public attention and anticipation re-focused on the publication of the fi nal report, especially regarding personal recommendations. The public felt that it must now wait for the fi nal report, particularly in view of the Commission’s statement of its intention to return to the subject of personal recommendations in the fi nal report. However, the public expectation proved to be premature when towards the end of its work the Commission declared that it did not intend to publish personal conclusions and recommendations in the fi nal report. From the Commission’s perspective, publication of personal conclusions and recommendations would have necessitated sending letters of warning to those liable to be harmed by the report, to enable them to exercise their right to appear before the commission and present their claims prior to the publication of the report. This would signifi cantly delay completion of the Commission’s work and the submission of its long awaited report. The absence of conclusions and recommendations on a personal level obviated this need, enabling the publication of the report by the end of 2007. The Committee’s declaration was received with shock, particularly in view of its explicit statements in the interim report. On 30 January 2008 the Commission’s fi nal report was submitted. The Commission examined six main subjects: The beginning of the offensive; the management of the war (at both the political level and the senior command level of the army; the preparedness of the army and its fi ghting capacity; the campaign itself and military achievements; handling of the home-front; the termination of the war. In addition, the Commission addressed background conditions (public opinion and media), which had a certain effect on the course of the war. As mentioned, the Commission deigned not to include personal conclusions or recommendations, not wanting to rivet public attention primarily on the issue of personal responsibility and away from the systemic failures that were revealed and the urgent need to rectify them. All the same, the Commission stressed that the failure to ascribe personal responsibility did not mean that such responsibility did not exist. Rather, the Commission felt that these failures should be addressed via the public, democratic networks, and that it was not the Commission’s role to recommend the replacement of 30 EUROPEAN PUBLIC LAW the Prime Minister or the Minister of Defense. The Commission perceived its goal as the exposure of defects, criticism, and recommendations regarding decision making processes and institutional aspects. In the Commission’s conception, it was inappropriate for it to don the hat of the investigated body and make operative decisions in its place. In addition, its avoidance of personal recommendations also stemmed from the fear of imposing excessively ‘harsh’ punishment which deviated from the principle of proportionality. Such a consequence may have been excessive insofar as the norms serving as the basis for the recommendations are usually vague. Furthermore, in contrast with the judgment of a court, there is no right of appeal against the Commission’s recommendation.33 On the political level, the publication of the Report met with the renewal and intensifi cation of demands for the resignations of the Prime Minister Olmert and the new Defense Minister, Ehud Barak. The ministers of Olmert’s Kadima party expressed support for him and the Minister of Defense decided to remain in Olmert’s government, and not to leave it, despite the undertaking to the contrary that he had given following the publication of Interim Report.

6. Concluding Comments

As a member of the commission, looking back from the vantage point of the war’s second anniversary, I am struck with a sense of regret at what Israel failed to achieve.34 More than anything else, these comments express the public’s sense of failure and frustration in the aftermath of Commission’s work and its conclusions. Past precedents and the explicit demand for the drawing of personal conclusions by those who failed in the management of the war generated public anticipation that the Commission would ‘supply the goods’ and impose personal responsibility for the war’s failures on the Prime Minister, the Defense Minister and the Chief of Staff, and recommend that the Prime Minister draw conclusions on a personal level.35 And yet, despite its length, the report did not even contain a detailed analysis of the speciﬁ c personal responsibility of the Prime Minister, the Defense Minister and the Chief of Staff, much less make recommendations on a personal level. The Commission’s failure to make personal recommendations was therefore cause for intense disappointment and the assessment that the Commission had not discharged its duty. Before the establishment of the Winograd Commission, a state commission of inquiry pursuant to section 1 of the Commissions of Inquiry Law was the central method for investigating a war, being a matter of vital public importance as deﬁ ned in the law. The establishment of the Winograd Commission, and the Supreme Court’s

33 Ibid, paras: 48-53, at pp. 63-65. 34 Prof. Yehezkel Dror, member of the Winograd Comission, in an article published on 2 Jul. 2008 in the Jewish Daily FORWARD ( last visited 30 Jul. 2008). 35 .By the time the Final Report was published, both the Minister of Defense and the Chief of Staff had already resigned, and hence there was no expectation for the Commission’s personal recommendations concerning them in its Final Report. ISRAEL 31 non-intervention in response to the petition contesting its establishment created a new precedent. It enabled the setting up of a ‘governmental commission of inquiry’ which apparently, for the most part, would be immune to judicial review. The Winograd precedent is liable to circumvent the resort to a state commission of inquiry in cases in which the government has neither the desire nor the interest in their establishment, despite public pressure. In the Supreme Court’s view, the creation of a governmental commission of examination that also enjoys the principal powers of a (state) commission of inquiry (as was the case in the Winograd Commission) minimizes the differences between a commission of inquiry and a commission of examination. The main difference between the two bodies lies in the identity of the body that appoints it.36 On the other hand, it is likely that had the Supreme Court accepted the fi rst petition, and the Government been compelled to establish a commission of inquiry instead of a commission of examination, it would have frustrated the goal of submitting its fi ndings at the earliest possible time (which was the requirement of the letter of appointment). In other words, the duration of the Commission’s work would have been considerably longer, even to the extent of rendering its fi ndings irrelevant by the time the report was submitted. Apparently, this was also an additional consideration in the Commission’s decision to avoid making personal recommendations in its reports. This too was a new precedent, as opposed to the Kahn Commission and the Agranat Commission, both of which handed down personal recommendations and personal conclusions. Regarding the relations between the Supreme Court and the Government, it would seem that the Supreme Court’s refusal to intervene in the Government’s decision derived from its concern for the principle of separation of powers, and the fact that government has broad discretion for matters within the areas of its responsibility. In exercising that broad discretion, and provided that its decision does not exceed the limits of its responsibilities, within the margin of reasonableness, the Supreme Court will not intervene. The implication of this approach is that even had the Government failed to appoint any kind of commission to investigate the war, the Court would not have intervened. Its reasoning would have been that ultimately the Government’s decision should be judged by the public, and that it was not the Court’s role to force the Government to establish a commission. In contrast to its non-intervention with the Government’s decision, the Supreme Court displayed a greater willingness to intervene in the Commission’s decisions and the manner of its conduct. As detailed in our comments above regarding the ongoing Supreme Court supervision of the Commission, the Court provided the Commission with basic principles and parameters concerning the publicity of its hearings, the publication of its minutes, and a time table for the various stages of its work. This was a form of minimal supervision intended to ensure that the Commission conducted itself

36 As stated, in the High Court of Justice it was claimed that the fact that the body being investigated was appointing the investigating body indicated a defect in the independence of the Commission’s discretion. On the other hand, it was argued that this was standard practice in other states too, and that from the moment of its appointment, the Commission is totally independent and is not dependent upon the body that appoints it. 32 EUROPEAN PUBLIC LAW in a manner beﬁ tting state commissions of examination and made appropriate use of its statutory tools. The problem caused by the absence of recommendations and the resultant public disappointment is primarily rooted in the Israeli political culture. The legal-public pres- tige of commissions of enquiry endows their recommendations with the aura of a legally binding document. In the public eye, a Commission determination of responsibility means that the person concerned is ‘guilty’ and failure to ascribe responsibility indicates his ‘innocence’. Indeed, immediately after the Final Report’s publication much of the public discourse focused on the Prime Minister having been ‘exonerated’ or ‘acquitted’ by the Commission. Instead of fostering richer, more nuanced and complex conceptions of responsibility, and encouraging the criticism of other bodies in the political system such as the Knesset itself, the Commission of Inquiry is perceived as the substitute for all these, and as the panacea for the evils being examined. The expectation was that the Commission would single out the guilty parties and when it failed to do so, there was no adoption of other avenues for exercising public responsibility. The legal norm thus replaced the norms of a culture of government. The Winograd Commission assumed that the other democratic systems would operate instead of, or at least in the interstices of the legal system. Ultimately, this assumption proved to be mistaken: As a member of the commission, I expected that the Cabinet would resign or be dismissed after the interim report appeared. Indeed, the chief of staff honorably resigned, and the minister of defense was made to leave. The prime minister, however, did not resign, nor was he forced to leave. I do not think this would have happened in any other parliamentary democracy.37

37 Yehezkel Dror, supra n. 34. SCOTLAND

Scotland’s Constitutional Future

Tom Mullen*

1. Introduction

The outcome of the elections to the Scottish Parliament in May 2007 which resulted in the Scottish Nationalist Party winning the largest number of seats and forming a minority government has put the future of the United Kingdom and Scotland’s role within it back on the political agenda.1 The SNP victory meant that, for the fi rst time since devolution of legislative and executive power in 1999, devolved government was in the hands of a nationalist party rather than unionist parties. Both the previous elections (in 1999 and 2003) had resulted in a coalition partnership between the Scottish Labour and Liberal Democrat parties. This report will deal fi rst with how the SNP has governed since taking offi ce, and second with the issue of the future constitutional status of Scotland, but before that it is worth giving a brief summary of the key elements of the system of devolved government.

2. Devolved Government

The current scheme of devolution2 was set up by the Scotland Act 1998 and comprises: – a Scottish Parliament elected by proportional representation; – a Scottish Executive consisting of a First Minister and other Ministers; – the Parliament has extensive legislative powers and limited tax-varying powers; – devolved functions are funded by block grant from Westminster and (if used) the limited tax-varying powers conferred on the Parliament;

* University of Glasgow 1 The distribution of seats was as follows: Scottish Nationalist Party (47); Scottish Labour (46); Scottish Conservatives (17); Liberal Democrat (16); Green Party (2); Others (1). 2 For an overview of devolved government, see J McFadden & M Lazarowicz, The Scottish Parliament: An Introduction 3rd edn (Edinburgh: LexisNexis Butterworths, 2003).

– the Parliament’s and the Executive’s powers are limited by the Scotland Act 1998. The 1998 Act follows the ‘retaining’ model of devolution under which the competence of the Scottish Parliament and Government extends to all matters not speciﬁ cally reserved to the UK Parliament and Government. However, it is important to realize that the devolution of power has not divested the UK Parliament of legislative competence: it continues to have full legislative competence for Scotland. Having said that, it is constitutional convention (‘the Sewel Convention’) that the UK Parliament does not legislate for Scotland without the consent of the Scottish Parliament.3 The details of the distribution of functions are discussed in more detail in section 6 below.

3. The SNP in Government

A number of factors had combined to ensure that devolved government operated fairly smoothly between 1999 and the 2007 election with relatively limited confl ict between the UK Government and Parliament and the devolved institutions. First, and perhaps most importantly, the same party was in power in London and Edinburgh. The UK government has been a Labour government since 1997, and in both the 1999-2003 and 2003-2007 Parliaments, the Scottish Executive was a Labour-Liberal Democrat Coalition in which the Liberal Democrats were clearly the junior partner. Secondly, the boundaries of devolved competence closely followed the pre-devolution responsibilities of the Scottish Offi ce which was then a territorial department of the UK government responsible for a wide range of functions within Scotland. There was, therefore, considerable continuity of administration with the Scottish Offi ce in effect transforming itself into a devolved Scottish Administration whose Ministers were now responsible to a Scottish Parliament rather than to the UK Parliament. Thirdly, the bulk of the period between 1999 and 2007 showed substantial growth in real terms in public expenditure so the Scottish Executive and Parliament were not faced with diffi cult and divisive decisions on cutting public services. In fact, the Parliament was even able to adopt new policies different from those applying in England which involved substantial new spending commitments, notably postponing payment of student tuition fees till after graduation,4 and free personal care for the elderly.5 As a consequence, the provisions of the Scotland Act designed to deal with competence were relatively little used. The great majority of

3 Ibid., pp. 61-62. 4 Education (Graduate Endowment and Student Support) (Scotland) Act 2001. 5 Community Care and Health (Scotland) Act 2002. Personal care is available without charge for everyone in Scotland aged 65 and over who has been assessed by the local authority as needing it. Free nursing care is available for people of any age. SCOTLAND 35 challenges to the competence of executive acts or legislative measures were based on claims of incompatibility with the rights guaranteed by the European Convention rather than relating to the division of competence between the UK and devolved levels of government.6 The election of an avowedly nationalist government was a circumstance that might have been expected to test the strength of the devolution settlement. The SNP leadership are well aware that only a minority of the Scots favour independence with opinion polls in recent years tending to show support at around 25%-30%.7 Its strategy is, therefore, to try to build support for independence while carrying out its responsibilities as a devolved government within the existing constitutional structure. As to the former, the SNP has launched a ‘national conversation’ on Scotland’s constitutional future constitutional status which is discussed in more detail below. As to the latter, the aim has been to show that it can deliver competent and effective devolved government whilst at the same time showing that having an SNP government makes a difference to Scotland.8 The SNP’s ability to show that it is making a difference is constrained by the fact that it does not command a majority of the seats in Parliament and any new legislation requires cross-party consent. However, the SNP has been able to present itself as offering something different from previous governments by promoting legislation which can command cross-party support, and by maximizing the use of ministerial powers to take policy decisions not requiring parliamentary consent. Examples of the former include, abolishing tolls on major road bridges and the abolition of the graduate endowment for students which relieved students of the obligation to repay the cost of university tuition after graduation.9 The only other primary legislation passed by the Parliament at the time of writing have been formal measures such as the annual Budget Act10 and uncontroversial measures already in preparation before the election (Glasgow Commonwealth Games Act 2008, Public Health etc. (Scotland) Act 2008). Examples of the latter include the reversal of earlier decisions by local health boards to close accident and emergency services at two hospitals, and cancellation of a proposed rail link between Edinburgh and its airport. Efforts to differentiate the SNP from previous administrations and to build support for the cause of independence have been as much at the symbolic as the practical level. The new government immediately began referring to itself as the ‘Scottish Govern- ment’ rather than using the statutory terminology of ‘Scottish Executive’ and ‘Scottish Ministers’.11 The title better reﬂ ects the nationalist aspirations of the party, however, the statutory expressions must continue to be used for all formal legal acts such as pursuing or defending litigation, executing deeds and making subordinate legislation.

6 T. Mullen, J. Murdoch, S. Craig & A. Miller, ‘Human Rights in the Scottish Courts’, Journal of Law and Society 32 (2005): 148. 7 Robert Hazell, ‘Rites of Secession’, The Guardian, 29 Jul. 2008. 8 Commentary in 78 Political Quarterly (2007) 341. 9 See the Graduate Endowment Abolition (Scotland) Act 2008. 10 Budget (Scotland) Act 2008. 11 See Scotland Act, s. 44. 36 EUROPEAN PUBLIC LAW

The First Minister has also used every opportunity to draw attention to areas where the current allocation of power prevents the SNP from pursuing policies which it might wish to and which might have popular support and which might, therefore, lead to confl ict between devolved and UK government. Examples include the conclusion of an agreement between the UK and Libya on release of prisoners which covered the man convicted of the Lockerbie bomber,12 negotiation of Scottish fi shing quotas, treatment of asylum seekers held in Scotland, building of new nuclear power stations and the possible replacement of the Trident nuclear missile system (for which the submarines are based in Scotland). In fact, there is substantial support within the Parliament for the SNP’s positions on some of these issues and a Labour administration might have taken the same view on some of them. However, the SNP has a much freer hand than would a Labour administration in what it can say publicly about policy on reserved matters, and is in the advantageous position of being able to present any policy differences with Westminster as being the consequences of the election of an SNP government. However, although the SNP has adopted some new policies on devolved matters and highlighted differences with Westminster on a range of reserved matters, it has not sought to provoke a constitutional crisis, for example, by promoting legislation relating to reserved matters which would, therefore, be ultra vires. It remains to be seen how it will take forward key elements of its election manifesto which are within devolved competence but on which it cannot be sure of the support of other parties. One example of this is local government taxation. The SNP proposes to replace the current Council tax with a local income tax (discussed in more detail below). The Scottish Liberal Democrats are broadly supportive of this but Labour and the Conservatives are opposed to the proposals. Any Parliamentary votes on the principles or on important details of the policy might be very close. If it were to become clear that legislation did not enjoy suffi cient support from MSPs to be passed by the Parliament, the SNP would have to consider whether it was appropriate to proceed with a Bill, which consideration would, no doubt, include a political calculation of whether being defeated in Parliament would diminish its standing with the Scottish people or assist its strategy of building support for independence by giving the impression that pro-Union parties in opposition were obstructing fulfi lment of the wishes of the Scottish people. In summary, therefore, the transition to its fi rst nationalist government has been a relatively smooth one for the devolved system of government, and the experience of the SNP’s fi rst fi fteen months in offi ce reminds us that minority governments are not necessarily weak governments.

12 He is imprisoned in Scotland and within the jurisdiction of the Scottish Courts but the Scottish authorities were not consulted prior to the agreement. SCOTLAND 37

4. The State of the Union

The Scotland Act 1998 did not settle the question of Scotland’s constitutional future. Not only has the SNP continued to enjoy substantial electoral support since devolution became effective in 1999, but there have been regulars calls for a review of the devolution settlement from those not of a nationalist persuasion.13 Indeed each of the major parties made proposals before the 2007 elections relating to the devolution settlement, the Scottish Labour Party pointing out that the mechanisms in the Scotland Act could be used to make adjustments to the scheme of devolved government, the Scottish Liberal Democrats proposing the devolution of a range of powers and a constitutional convention to examine the best way to devolve new powers and the Scottish Conservatives expressing willingness to engage in debate about the Parliament’s ﬁ nancial accountability. There is also evidence of considerable popular support for enhancing the powers of the Scottish Parliament. It was only to be expected that the result of the 2007 election would further intensify debate on Scotland’s future. In pursuance of the strategy outlined above of trying to build support for independence while presenting itself as a competent and effective devolved government capable of acting in the best interests of the Scottish people, the SNP Government, shortly after the election, launched a ‘national conversation’ on Scotland’s future with the publication of a white paper entitled Choosing Scotland’s Future: A National Conversation: Independence and Responsibility in a Modern World.14 The white paper suggests that there are three real- istic choices for the future of government of Scotland: – retaining the existing scheme of devolution under the Scotland Act 1998 with the possibility of further evolution in devolved powers (‘the status quo’); – substantial redesign of the devolution framework including a substantial extension of powers possibly including ﬁ scal autonomy; – independence for Scotland. Independence is, of course, the preferred option of the current Scottish Government. However, the document does not explicitly make the case for independence. As its title suggests, the document presents itself as an attempt to stimulate a wide-ranging national discussion on the constitutional future. However, the document does have appended to it a draft referendum bill and it is clear that the SNP’s strategy is to work towards a referendum later in the life of the Parliament. The First Minister’s recent speech to the Parliament outlining the legislative programme for the next year states that a Referendum Bill will be introduced in 2010.15

13 See, for example, the report of the Steel Commission, Moving to Federalism - a New Settlement for Scotland (2006) suggesting a Federal structure for the UK. Available at 14 Scottish Executive, August 2007. Available at 15 Available at . See also Moving Scotland Forward: The Government’s Programme for Scotland 2008-09, available at 38 EUROPEAN PUBLIC LAW

However, the national conversation is not the only show in town. In a parallel but separate process, the Scottish Parliament in March 2008 appointed the Commission on Scottish Devolution (having resolved in December 2007 to establish an independently chaired commission to review devolution in Scotland) chaired by Sir Kenneth Calman. The UK government signalled its support for the review in a written Ministerial State- ment from the Secretary of State for Scotland on 25 March 2008. These are not only separate, but also, to some extent, mutually antagonistic proposals. The national conversation is an initiative solely of the SNP government for which they have not sought Parliamentary approval. The Calman Commission, on the other hand is being promoted jointly by the main opposition parties (Labour, Conservative, Liberal Democrat), and is viewed with suspicion by the SNP who are making no formal input into it. The terms of reference of the Calman Commission are explicitly unionist: its remit is to review the current devolution arrangements and recommend changes that would enable the Scottish Parliament to better serve the people of Scotland, improve its ﬁ nancial accountability and ‘continue to secure the position of Scotland within the United Kingdom’. Therefore it will not be considering the independence option. The Calman Commission is due to produce an interim report by the end of 2008 and a ﬁ nal report at some point in 2009,16 but no date has been set for the conclusion of the national conversation. It remains to be seen what proposals emerge from either process and the likelihood of any major change to the existing constitutional structure being made will depend upon a range of political factors. In the remainder of this rapport, I discuss a few of the issues that have been raised by these two processes beginning with the independence option.

5. The Independence Option

Choosing Scotland’s Future argues that Scotland ‘already possesses certain essential elements of Statehood: an agreed territorial extent, and an acknowledged political and institutional identity’.17 A transition to independence would require the UK Parliament and Government to cease to have legislative and executive competence in relation to Scot- land and for the Scottish Parliament to assume the full range of competence, duties and responsibilities accorded to sovereign states under international law.18 Maritime boundaries and Scotland’s share of the continental shelf would be determined in accordance with established principles of international law. The document assumes that an independent Scotland would continue to be a member of the European Union. It also states that Her Majesty the Queen would remain as Head of the State of Scotland so that ‘The current

16 The Commission’s ﬁ rst report was published in December 2008, too late for analysis in this rapport. 17 Above, n. 14, para. 3.6. 18 Ibid., para. 3.7. SCOTLAND 39

Parliamentary and political Union of Great Britain and Northern Ireland would become a monarchical and social union …’19 and that ‘Within the relationship, a broad range of cultural, social and policy initiatives would continue and it is likely that both an independent Scotland and the remainder of the United Kingdom would seek to maintain a series of cross-border partnerships and services.’20 Several issues arise from this vision, most obviously, the likelihood of its being realized, the process for achieving independence, continued Membership of the Euro- pean Union and how a ‘monarchical and social union’ would operate. As to the fi rst, this will ultimately depend upon political sentiment in Scotland. It is unlikely that a UK government of whatever political complexion would seek to retain the Union in defi ance of the clearly expressed wishes of the Scottish people. However, this raises the question of what would be the appropriate political and legal processes for establishing whether there was suffi cient support for independence and for establishing an independent Scotland.

5.1. The process for achieving independence: referendums etc.

The constitutional position is reasonably clear. The Scottish Parliament does not have competence to alter the terms of the Union, and independence could only be authorized by an Act of the UK Parliament, as was done in the case of the former UK colonies which became independent. In the absence of a codifi ed constitution, there are no special requirements for such legislation, although it is assumed that it would not be right to take such a major step without the clear evidence of popular consent that a referendum would provide, and that, in any event, it would be necessary as a matter of practical politics. However, although the need for a referendum is generally agreed, there are differences of view on the number, timing and content of such referendums. One view is that there should be two referendums:21 the fi rst on the principle of independence which would authorize the SNP to negotiate with the UK government, and a second referendum on the terms of independence once these had been negotiated. The rationale for the two referendum approach is that it is only once terms have been negotiated that the Scottish people will be able to assess the positive and negative consequences of independence.22 Key questions would include the general fi nancial settlement (including transfer of responsibility for major public expenditure programmes and division of North Sea Oil revenues and the National Debt), the armed forces including the future of nuclear bases around the Clyde estuary, and the need to a apply for membership of the European Union, there being no automatic entitlement for successor states to be admitted to membership. The principal argument against the two referendums approach is that the prospect of a further referendum might reduce the certainty of choice facing the

19 Ibid., para. 3.25. 20 Ibid., para. 3.26. 21 See, for example, Robert Hazell, above n. 7. 22 Ibid. 40 EUROPEAN PUBLIC LAW

Scottish people at a referendum on the principle of devolution and reduce the impact of the decision that they make.23 Legislation for a referendum could be passed either by the UK Parliament or by the Scottish Parliament. In the latter case, questions of legislative competence might arise. The Scottish Parliament has no power to legislate on reserved matters. To be precise, legislation would be beyond competence to the extent ‘it relates to reserved matters’.24 The reserved matters speciﬁ ed in schedule 5 to the Scotland Act 1998 include the Crown, the Union of the Kingdom of Scotland and England, and the Parliament of the United Kingdom. However, a provision for a referendum that merely authorized the Scottish Government to enter into negotiations on the terms of independence would almost certainly be regarded as within competence. However, whether a referendum will happen at all remains to be seen. Although the SNP has promised a referendum within the four year term of this Parliament, it cannot be sure of delivering this promise as the pro-union opposition parties have a substantial minority in Parliament and could block any referendum Bill.

5.2 Membership of the european union

The statement in the white paper that an independent Scotland would ‘continue in the European Union’25 has been SNP policy for some time and is clearly an essential feature of their case for independence. However, Scotland would have to apply for membership and could not claim an entitlement to admission. Admission of a new Member State would require the agreement of all the existing Member States and might be opposed by countries such as Spain, which do not wish to encourage claims from sepa- ratist movements within their own borders. Member States in general would be likely to be inﬂ uenced by the attitude of the UK to the application, and the UK’s attitude might in turn be affected by negotiations on the key questions mentioned above.26 Given that Scotland would be applying as a territorial entity which has been in the EU since 1973 and would meet or could meet without undue difﬁ culty the criteria for entry, admission seems more likely than not, but it could not be taken for granted.

5.3. A Monarchical and social union?

Amongst other things, the statements that Scotland will continue to be part of the European Union, will continue to have the Queen as head of state, and will after independence form part of a monarchical and social union with the other nations which currently constitute the United Kingdom, are designed to reassure people who might be fearful of the possible adverse consequences of independence. Given the importance

23 Choosing Scotland’s Future, above n. 14, para. 5.11. 24 Scotland Act 1998, s. 29 (2)(6). 25 Choosing Scotland’s Future, above n. 14, para. 3.21. See also SNP, Raising the Standard (2005). 26 Robert Hazell, above n. 7. SCOTLAND 41 of existing economic, cultural and familial relationships within the UK, many Scots would be unlikely to see independence as a positive step if it led to the erection of any obstacles to interaction with the rest of the UK which do not currently exist. Of course, the scope for erecting any such obstacles would be severely constrained by EU law if Scotland were admitted to membership. Nonetheless, it is a concern that must continue to be addressed by the SNP in making the case for independence. Hence the statements in the white paper that a range of cultural, social and policy initiatives would continue after independence and that the different parts of the UK would be likely to seek to maintain a series of cross-border partnerships and services. At the risk of stating the obvious, such future cooperation cannot be guaranteed by the SNP as it will depend upon the attitude of future English governments. As indicated above, there is considerable scope for disagreements to emerge given the nature of the issues that would have to be negotiated at independence and the effect that Scottish government policies might have on the interests of the rest of the UK after independence, for example refusing permission for the continuation of the nuclear submarine bases on the Clyde estuary. Such disagreements could spill-over into refusal to co-operate in other areas which had previously been uncontroversial. The overall message of the white paper (although this is not said directly) is that an independent Scotland would be able to pursue its own interests in key areas of policy without making it harder to maintain the existing close economic, cultural and familial ties that exist between Scotland and the rest of the UK. There is room for some scepticism about this.

6. Deepening Devolution

The ﬁ rst choice referred to in the white paper is the status quo option which would make use of the ﬂ exibility already built into the Scotland Act 1998. Section 30(2) of the Scotland Act permits some addition to, or subtraction from, the matters reserved to the UK Parliament to be achieved by subordinate legislation rather than by primary legislation. However, a major extension of the competence of the Scottish Parliament and the Scottish Executive (the second choice in the white paper) would require primary legislation to be enacted by the UK Parliament. Whether a major extension of devolved competence would require a referendum would be a matter of political judgment. There being, as stated above, no legal constitutional requirement for major constitutional change to be authorized by referendum.

6.1. Reserved Matters

In order to evaluate what difference further devolution of power could make, it is necessary to understand the current allocation of power. Currently the major reservations are: – Financial and Economic Matters Fiscal, economic and monetary policy, including money, taxation and ﬁ nancial regulation; 42 EUROPEAN PUBLIC LAW

– Trade and Industry Companies and business associations, insolvency, competition policy and consumer protection; – Energy Coal, oil, gas, electricity and nuclear power; – Transport Road, rail, marine and air transport; – Social Protection Employment rights, health and safety, equal opportunities, social security benefi ts, child support and pensions; – Constitutional Matters. Key constitutional matters including the Crown, the Union, the UK Parliament, and the civil service; – External Relations and Security International relations, defence and national security; – Home Affairs Immigration and nationality, elections and broadcasting.27 The Scottish Parliament and Executive, therefore, have competence in the following areas: – Health; – Education; – Local Government; – Housing; – Social work; – Economic development; – Transport;28 – Criminal law, policing and prisons, civil law and certain aspects of home affairs; – The courts and the system of justice; – Land-use, planning and the environment; – Agriculture, forestry and fi shing; – Sport and the arts. So, it is clear that the Scottish Parliament and Government have substantial responsibilities and, at least in terms of legal powers, the capacity to make a difference in a number of important areas of policy. Equally, there are many important matters which are reserved. In considering, the scope for further devolution, there are certain matters which would be regarded as essential to the integrity of the United Kingdom and which could not therefore, be expected to be included in any extended scheme of devolution. These include, most obviously, foreign affairs, defence, borders, citizenship and immigration, the UK Parliament, and the currency. However, the white paper argues that many of the areas currently regarded by the UK Government as unsuitable for devolution, could feasibly be devolved, and this would enable the Scottish Government and Parliament to pursue specifi cally Scottish priorities and achieve greater coherence of policy in certain areas. The environment provides an example of the latter. Although protection of the

27 See Scotland Act 1998, Sch. 5. The list in the text is merely a summary and not exhaustive. 28 Despite the reservation noted above, signiﬁ cant aspects of transport are devolved. SCOTLAND 43

environment is generally regarded as a devolved function, the regulation of energy which has an important impact on the environment is reserved to Westminster. Space does not permit separate discussion of each of the areas in which additional power might be devolved, but one over-arching issue which merits discussion is fi scal autonomy as the capacity of devolved government to pursue different policies for Scotland in a number of important areas is affected by the way devolved government is fi nanced, and any constraints imposed by current fi nancial arrangements would become even more signifi cant if the competence of the Scottish Parliament were extended into currently reserved areas which involve substantial spending programmes.

6.2. Fiscal autonomy in devolved government

The terms ‘fi scal autonomy’ does not have a precise meaning, but what is being referred to essentially is the extent of freedom that devolved government has to raise revenue and spend it. Complete fi scal autonomy meaning responsibility for all taxing and spending decisions would be compatible only with political independence. So, greater fi scal autonomy for devolved government would in practice mean giving devolved government more freedom than it has now over taxing and spending decisions but leaving signifi cant responsibility with the UK government. Under the current arrangements, devolved functions are fi nanced primarily by a block grant from the UK Treasury. The amount of the grant is determined in accordance with the Barnett formula, a formula originally adopted in the 1970s to ensure an appropriate allocation of public expenditure on a territorial basis across the United Kingdom. Under the formula, changes in major spending programmes relating to England and Wales automatically lead to changes in the block grant. The Scottish Parliament, therefore, saw a substantial increase in real terms in the block grant over its fi rst two terms (1999- 2003 and 2003-2007) as a consequence of the substantial growth in public expenditure implemented by the UK Labour Government over the same period. In recent years, the operation of the Barnett formula has become increasingly controversial as it delivers signifi cantly higher per capita levels of public expenditure in Scotland than in England. The Scottish Parliament also has the power to increase or decrease the standard rate of income tax by a maximum of 3%.29 However, this power has not been exercised at any point since devolution was implemented. This is in part because the block grant has enabled signifi cant growth in Scottish public expenditure over the period and in part because of other political considerations. The Scottish Parliament and Government, therefore, already have virtually complete autonomy in spending decisions within the overall ceiling set by the block grant and subject to the competence constraints in the Scotland Act, but their autonomy in raising revenue is much more limited. In effect, up till now, devolved government has been making spending decisions but not taxing decisions.

29 Scotland Act 1998, Part IV, ss 73-80. 44 EUROPEAN PUBLIC LAW

Accordingly, one of the key questions in discussions of fi scal autonomy, is what additional taxing powers devolved government might have? Two main reasons have been advanced for giving greater fi scal autonomy to Scottish Parliament and Government. The fi rst is the general argument for freedom to make policy that advances the interests of the Scottish people. The second – an argument increasingly made by economists and politicians – is that there is a severe accountability defi cit because the benefi ts of devolved public expenditure are enjoyed by the Scottish public whereas the costs are borne by the UK taxpayer. The Scottish Parliament and Government are accountable to the former, but not the latter. However, as Heald and McLeod have pointed out,30 it cannot automatically be assumed that greater fi scal autonomy leads to improved accountability. This is partly because the term ‘fi scal autonomy’ is capable of covering such a wide variety of arrangements, and partly because of the complexities involved in designing and operating some of the options. A fl avour of the diffi culties that might be involved in negotiating new arrangements for raising revenue is given by examining one of the SNP’s current proposals. In fact, the current structure of devolution does not reserve the entirety of the tax policy to the UK government and Parliament. There is a specifi c exception for ‘local taxes to fund local authority expenditure’.31 Local authority expenditure forms a substantial proportion of total ‘devolved’ public expenditure as local authorities are responsible for key public services including education (excluding further and higher education), housing and social work. Local authority expenditure is currently fi nanced by a combination of grants from the Scottish Executive (paid out of the block grant), rates on non-domestic property (i.e., business rates) and the Council Tax. The latter is a hybrid of a property tax and a personal tax as it is levied on houses but discounted by 25% for houses occupied by a single person and 50% for empty houses. Whereas the level of non-domestic rates is centrally controlled, each local authority fi xes its own Council Tax levels. Because of the relatively high gearing (grants and non-domestic rates are centrally controlled and supply most of the funding), relatively modest changes in a local authority’s expenditure can result in large changes in the Council Tax level required to balance a local authority’s accounts. As well as being prone to year on year fl uctuations within any local authority, there may also be large variations in tax levels between neighbouring local authorities because (even without considering the effects of political choice) wealthier areas tend to have both lower social expenditure and a higher tax base (value of domestic property in relation to population size) than do poorer areas. For these and other reasons, the Council Tax is not a particularly popular tax and opinion poll evidence suggests that a clear majority of the Scottish electorate would favour replacing the council tax with a tax based more directly on ability to pay.

30 David Heald & Alasdair Mcleod, ‘Fiscal Autonomy Under Devolution: Introduction to Symposium’, Scottish Affairs 41, no. 5 (2002). 31 Scotland Act 1998, Sch. 5, Part II, head A1. SCOTLAND 45

Accordingly, the SNP proposed in its 2007 election manifesto to replace the Council tax with a local income tax. The SNP’s current proposal is that all local tax payers pay a fl at rate 3% of their income.32 As a minority government, the SNP would have to obtain support from other parties. The Scottish Liberal Democrats support abolition of Council Tax and its replacement by a local income tax but, given that Labour and the Conserva- tives are opposed to the proposals, they would be dependant on the support of the minor parties and a vote might be very close. There are also signifi cant differences between the SNP and Liberal Democrat positions with the latter proposing that each local authority be able to levy its own rate of tax. Perhaps more problematic, the proposals would require the cooperation of the UK Government as it is envisaged that the tax would be collected by Her Majesty’s Revenue and Customs through the Pay-As-You-Earn (PAYE) system for employed persons. The proposals have also raised the question of what happens to Council Tax benefi t. Poorer householders receive a full or partial rebate on the Council Tax in the form of Council Tax Benefi t. Since devolution the expenditure on Council Tax benefi t has fallen within the Scottish block. However, in March 2008, a UK Minister, James Purnell, Work and Pensions Secretary suggested that the £400 million spent on Council Tax might be withdrawn if the Scottish Parliament scrapped Council Tax Benefi t on the grounds that it would no longer be necessary. Unsurprisingly, the SNP responded by saying that this money ‘belonged’ to Scotland and should remain in the block.33 The discussions over the Council Tax reform (which is supposedly within devolved competence) illustrate just how complex a process re-organizing taxing and spending arrangements between UK and devolved government is likely to be, and how diffi cult and acrimonious negotiations on these issues might become. There is also a separate constitutional issue concerning central-local relations. One of the anxieties that the devolution proposals provoked was that the new Scottish Par- liament and Executive might lead to centralization of power, that is, transferring power from the local to the devolved level of government.34 Replacing Council Tax with a new tax which is levied centrally at a fl at rate removes the last major source of income which local authorities control themselves and makes them almost completely dependent on the Scottish Government for revenue funding. This issue too can be expected to be controversial when the proposals for local income tax are being discussed.

7. Conclusions

It is only in retrospect that we will be able to determine how signifi cant the election of fi rst SNP Government of Scotland has been. It is very diffi cult to predict whether a major change in Scotland’s constitutional status is likely within the next few years.

32 A Fairer Local Tax for Scotland, Scottish Government 2008, available at 33 34 See Tom Mullen, ‘Local Government in Scotland’, European Public Law 12 (2006): 177. 46 EUROPEAN PUBLIC LAW

It seems clear that Scottish public opinion has yet to swing fi rmly behind independence and we should avoid reading too much into the election of the SNP. Aside from the obvious point that only a minority of the electorate voted for the SNP, it does seem clear even if there has been a rise in national consciousness since devolution, and that the question that more Scottish voters are asking themselves is ‘what is good for Scotland?’, that they may still consider the answer to be remaining in the United Kingdom. Also, the voters may continue to exhibit different preferences in UK and devolved elections. In short, it cannot be assumed that votes for the SNP are necessarily votes for independence. Therefore, even if the SNP gets its wish for an independence referendum within its period of offi ce, the outcome may not be a mandate for independence. What of the alternative – a major revision of the powers of devolved government possibly including important changes to taxing and spending? Suppose the Calman Com- mission were to produce a report recommending a major extension of devolution. Would this be likely to be translated into legislation? The position of the Calman Commission is somewhat weakened by the fact that the SNP declines to participate. This might not in itself be a fatal weakness. After all, the current scheme of devolution was designed and created without substantial participation of the SNP which had refused to join the Scottish Constitutional Convention which laid the foundation for devolution before the election of the Labour Government in 1997. However, the lack of SNP participation may turn out be more of a political handicap in today’s political circumstances. In any event, proposals from the Calman Commission substantially to amend the Scotland Act will not go anywhere unless they can convince the UK political parties of the merits of those proposals. It seems increasingly likely that the next UK general election will result in a Conservative Government which would then have control of the legislative agenda of the UK Parliament. The crucial difference between Labour and Conservative parties in recent years has been that Labour is heavily reliant on its Scottish seats for its majority in the UK Parliament. The Conservatives on the other hand have won either no seats or only one seat in Scotland in each of the last three UK elections and face the prospect of winning a general election without increasing substantially their representation in Scotland. Accordingly, they have far less electoral incentive to satisfy any perceived public desire in Scotland for greater powers for the Scottish Parliament. Add to that the fact that any such proposals require the resolution of other diffi cult issues, most obviously the ‘West Lothian question’ and one can see why a Conservative government might make the political calculation that it has not very much to gain from implementing any proposals which emerge from Calman, and not very much to lose from refusing to do so. The principal risk of ignoring calls to extend devolution would be stoking nationalist sentiment which might hasten the break-up of the United Kingdom. Preservation of the Union remains the policy of the Conservative party but there is room for doubt about how enthusiastically they would fi ght for its preservation. Scrutiny

Beyond Participation: Administrative-Law Type Mechanisms in Global Environmental Governance. Toward a New Basis of Legitimacy?

Francesca Spagnuolo*

1. Introduction

As rightly pointed out ‘Globalisation is, in part, an ecological fact.’1 Not only do environmental challenges span the entire globe, but also they affect the pace and pattern of globalization. Some of them are local in scope yet are encountered all across the globe (e.g., water pollution); others are planetary in scope and cannot be addressed without a coordinated multi-country action (e.g., ozone layer).2 Thus, even if national governments remain the primary actors with regulatory and enforcement powers to solve environmental problems, the multifaceted nature of ecological threats increasingly requires a global-scale approach. In fact, environmental issues are currently handled by a number of different global actors and regulators, including formal intergovernmental international organizations, transnational networks of government ofﬁ cials, hybrid public-private bodies and a variety of other global organizations. In order to boost their legitimacy and effectiveness, these global regulatory structures most frequently adopt administrative-law type mechanisms. In doing so, they perform administrative and regulatory functions typical of the State- system and closely tied to its framework. The emergence of this new regulatory dimension gives rise to a ‘global administrative space’, in which ‘the classical distribution of labour between the different levels has largely broken down when it comes to ensuring regulatory participation and accountability’.3 Are the application of procedural rights, such as the right to a hearing, the duty to provide a reasoned decision and to disclose relevant information emerging in many areas of global governance? Normally the way in which these rights are granted at the global

* Lecturer in EU Law, University of Pisa. Thanks for helpful comments are due to Klaus Jacob and the participants in the Marie Curle training course on “The Human Dimension of Global Environmental Change – Participation in Earth Governance,” Feb. 18th-27th, FREIE universität Berlin, Berlin. The usual caveat applies. 1 See D. C. Esty & M. Ivanova, Globalisation and Environmental Protection: a Global Governance Perspective, Yale Center for Environmental Law & Policy Working Paper Series, No. 0402, 21 Jul. 2004, 636. 2 See D.C. Esty, Greening the GATT: Trade, Environment and the Future, Washington DC: Institute for International Economies, 1994. 3 The quotation is from N. Krisch & B. Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’, EJIL 17, no. 1 (2006): 4. Spagnuolo, Francesca. ‘Beyond Participation: Administrative-Law Type Mechanisms in Global Environmental Governance. Toward a New Basis of Legitimacy?’. European Public Law 15, no. 1 (2009): 49-62. © 2009 Kluwer Law International BV, The Netherlands 50 EUROPEAN PUBLIC LAW level is far removed from national models. Participation in decision-making procedures, for example, while in domestic law ensures cooperation and dialogue between citizens and public authorities, giving voice to individual or organized interests, on the global plane, it serves different purposes. Firstly, participatory rights are granted not only to private parties but to national governments and global institutions as well. Secondly, participation is ensured both vertically (e.g., to private parties before a national government or global agency) and horizontally (to a national government before other national governments). Finally, the exercise of participatory rights at the global level creates links amongst different layers of government and between them and civil society, rather than between States and individuals, as in the domestic realm.4 Moreover, the adoption, by global bodies, of administrative law decision-making and rulemaking procedures distinctive of domestic administrative law raises the question of whether or not it is also possible to apply them beyond the State.5 In fact, despite a return of many forms unique to States (i.e., committee, harmonization, consultation procedures), in the global system, the structure of administration is different from its domestic archetype. The only common element is the ‘public arena’, where a plurality of public authorities and private parties interact in order to reduce or exploit differences in regulation and implement new regulatory mechanisms.6 In environmental matters, where differences amongst countries are even higher, equal participation in decision-making processes, access to justice and good governance constitute a bridge for the accountability and legitimacy of global governance. This paper presents some early ﬁ ndings from an ongoing research project on ‘administrative law type mechanisms’ in global environmental governance.7 The primary focus is to explore – without the pretence of completeness or precision – whether participation in decision-making and regulatory processes could enhance the accountability and legitimacy of global environmental governance. While acknowledging the emergence of administrative-law type mechanisms to promote good environmental governance, it advances the idea that public participation is not an end in itself and, in order to establish links between civil society and global regulators, it should be supplemented by a larger body of procedural guarantees.

2. Globalization and the Environment: Effects and Interlinkages from a Governance Perspective

The point of departure for exploring the linkages between the environment and globalization is recognizing that ecological processes have a deeper and greater impact beyond

4 See S. Cassese, A Global Due Process of Law? Paper presented at New York University, Hauser Colloquium on Globalizations and its discontents, 13 Sep. 2006. 5 See B. Kingsbury- N. Krisch- R.B. Stewart, The Emergence of Global Administrative Law, New York University School of Law, Paper No. 17, 2005. 6 See S. Cassese, Shrimp, Turtles and Procedure. Global standards for national administrations, International Law and Justice Working Papers, Global Administrative Law Series, 2004/4. 7 Here, environmental global governance means the sum of rules, processes and actors that affect the way power is exercised at global level in the ﬁ eld of environmental policies. BEYOND PARTICIPATION 51 national borders and present problems and tensions that need to be addressed by new and more sophisticated modes of governance.8 On the one hand, globalization, by affecting the scale and composition of economic activities and supporting the spread of techniques and technologies able to extract natural resources, heavily impacts on the environment. On the other hand, it is the scarcity or the abundance of natural resources that drives globalization, by inciting the supply and demand forces in the global economy.9 An understanding of the interaction between globalization and the environment (e.g., how climate change impacts upon global GDP and threatens security) high- lights the way policy-makers and regulators could respond to an ever-increasing set of global challenges, ensuring a sound environment while realizing a fair global economic growth.10 From a governance perspective, the central challenge is to revitalize decision- making mechanisms resulting from the entanglement of domestic and international regulation, managing both globalization and the environment and integrating – as far as possible – environmental policy into market and trade policies. However, when compared with other international governance regimes, the current institutional architecture for the environment appears incoherent, ineffective and inadequate.11 First of all, international environmental responsibilities are fragmented and distributed amongst different organizations and public or private-public bodies. Secondly, the proliferation of different global actors and regulators involved in environmental governance generates institutional overlap and a loss of accountability.12 Finally, and perhaps more interestingly, the system remains to a great extent State-centric, even thought neither the environmental problems nor the solutions have a national dimension. Thus, although civil society and business actors have been progressively integrated into global environmental governance, a comprehensive effort to improve the inclusiveness of the system is needed. In fact, even if national governments have the primary responsibility for environmental protection, the interconnectedness of domestic and international governance and the involvement of multiple public and private actors in regulatory processes make it necessary to ﬁ nd more effective mechanisms of coordinate action.

8 There is not unanimous consent on the defi nition of the term ‘globalisation’. For a review of main sets of defi nitions see J.A. Scholte, Globalisation: a Critical Introduction, (New York: Palgrave, 2000). 9 See A. Najam et al., Environment and Globalization: Five Propositions, (Winnipeg: International Institute for Sustainable Development, Unigraphics Ltd., 2007), 8. 10 Specifi cally on climate change see N. Stern, Stern Review on the Economics of Climate Change. Report to Her Majesty’s Treasury, Cambridge University Press, Cambridge, 30 Oct. 2006, see also C. Abbott et al., Global Responses to Global Threats: Sustainable Security for the 21st Century, (Oxford: Oxford Research Group, 2006). 11 See M. Ivanova & J. Roy, ‘The Architecture of Global Environmental Governance: Pros and Cons of Multiplic- ity’, in Global Environmental Governance: Perspectives on the Current Debate, ed. L. Swart- E. Perry (New York: UN Reform, 2007). 12 According to O. Young, Political Leadership and Regime Formation: on the Development of Institutions in International Society, International Organizations 45, no. 3 (2001): 281-308, institutional overlap is: ‘a situation where the possibility of confl ict between two or more organizations is present due to similar mandated functions’. 52 EUROPEAN PUBLIC LAW

Moreover, given the sensitivity of the subject matter, citizens and civil institutions have a strong interest in participating in decision-making, especially when decisional and regulatory authority shifts from the national to the global level. The point to be made here is that the increasing exercise of public power in multiple international organizations and global regulatory bodies, in which distant and unaccountable offi cials make policy choices, gives rise to serious concerns about the legitimacy and accountability of decision-making processes.13 To address these problems, mechanisms are emerging that seek to organize, further and support public participation in the global environmental system.14 Yet even if accountability, public participation and openness are desirable, in certain circumstances they cannot lead to suffi cient inclusiveness, resulting in ineffi ciency and seizure by particular economically powerful actors.15 Additionally, even if principles of ‘good governance’16 are important to improve the procedural fairness of the global environmental system, they in themselves do not completely resolve its ‘democratic defi cit’ nor entirely dissolve concerns about its legitimacy.17 To answer the plea for broader and more effective participation in global environmental governance, thus promoting its legitimacy and accountability, a revitalization of decision-making mechanisms will therefore be required. Particular concerns about public participation and transparency in international environmental law have been prompted by the emergence of global policy networks and subjects of global administration.18 In this new global dimension a variety of regulatory structures act by constraining the decisions of domestic administrations, especially when they are responsible for the implementation of common objectives (e.g., the reduction of greenhouse gas emissions). As Daniel Bodansky rightly pointed out ‘it has become almost a commonplace that international environmental law addresses subjects that, in the past, were addressed by national law’.19 Indeed, as States recognize that they cannot face global environmental challenges through domestic action, they agree to act collectively, by resorting to intergovernmental networks or hybrid public-private entities. The result is a growing

13 On accountability above the level of the nation-State, see generally R.W. Grant & R.O. Keohane, ‘Accountability and abuses in World Politics’, APSR 99 (2005): 29-44. 14 An example is the Commission on Environmental Cooperation, on which see D. L. Markell, ‘The North American Commission for Environmental Cooperation after Ten years: Lessons About Institutional Structure and Public Participation in Governance’, Loy. L.A: Int’l & Comp. L. Rev., 26 (2004): 341. See also infra §.IV. 15 See C. Harlow, ‘Global Administrative Law: The Quest for Principles and Values’, EJIL 17, no. 1 (2006): 187. 16 The debate on ‘good governance’ spans a wide array of sectors and levels of decision-making. As observed by the European Commission in its White Paper on European Governance, COM (01) 428 fi n., 25 Jul. 2001, 1 (at 10) ‘fi ve principles underpin good governance […]: openness, participation, accountability, effectiveness and coherence. They underpin democracy and the rule of law in the Member States but they apply to all levels of government- global, European, national, regional and local’. 17 On legitimacy in international environmental law see D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, AJIL 93, (3 Jul. 1999): 596. 18 On transnational networks see A.M. Slaughter, A New order, (New York: Princeton University Press, 2004). 19 D. Bodansky, Legitimacy in International Environmental Law, University of Georgia School of Law, Research Paper Series, no. 06-007, May 2006. BEYOND PARTICIPATION 53 amount of global regulatory structures which perform administrative functions even outside formally public organizations. In a recent essay, Kingsbury, Krisch and Stewart identifi ed fi ve main types of global regulatory systems, including formal international organizations, informal intergovernmental networks of domestic regulatory offi cials, domestic authorities implementing global regulatory law, hybrid public-private and purely private transnational regulatory regimes.20 Among these ideal types there are signifi cant differences; some merely provide a framework for State action, others rely on national authorities for implementation, and others bypass national regulatory authorities and establish standards for private parties. Yet while some of these regulatory systems are established by Treaty or executive agreement (e.g., the compliance mechanisms of the Montreal Protocol)21 or at least can take place in a treaty framework, others exercise public powers without explicit delegation by national governments (e.g., the International Standardization Organization). The point of the above is that the exercise of administrative and regulatory functions by these global bodies has legal consequences for individuals and civil society even if they perform beyond traditional bases of legitimacy and without direct democratic control. To take a widely quoted example, the certifi cation of Clean Development Mechanism projects under the Kyoto Protocol CDM occurs without a prominent involvement of national governments. On the contrary, a dominant role is played by business actors and private secondary market actors.22 Taking these developments into account it should be acknowledged that in the emerging global administrative space, national and transnational, and public and private are progressively more enmeshed, making it increasingly diffi cult to determine who holds decision-making authority and how it is exercised. The consequence is an urgent and increased demand for legitimacy.23

3. Legitimacy and Participation in Global Environmental Governance

Legitimacy issues have been widely debated in the environmental governance literature.24 According to Bodansky, traditionally, international environmental law has relied on two bases of legitimacy: State consent and legality.25 While the former has played a predominant role in

20 See supra, n. 5, at 20. 21 See generally M. Ehrmann, ‘Procedures of Compliance Control in International Environment Treaties’, Colo. J. Int’l. Envtl. L. & Pol.’Y., 13 (2002): 377. 22 For a more detailed analysis, see J.F. Green, Delegation to Private Actors: A Study of the Clean Development Mechanism, Paper presented at 3rd Global Administrative Law Seminar, Viterbo, 15-16 June 2007. See also G. Benecke- L. Friberg & M. Schrüder, From PPP to market: The Clean Development Mechanism (CDM) as a new mode of governance in climate protection, SFB-Governance Working Paper Series, No.10, 2007, Berlin. On the involvement of business actors in new modes of environmental governance see generally, D.C. Esty- M. Ivanova, Global environmental Governance: Options and Opportunities, Yale School of Forestry and Environmental Studies, 2002. 23 See A. Buchanan & R.O. Keohane, ‘The Legitimacy of Global Governance Institutions’, Eth. & Int’l.Aff., 20 (2005): 405-437. 24 For an overview, see S. Bernstein, ‘Legitimacy in Global Environmental Governance’, JILIR, 1 (2004-05): 139-166. 25 See supra n. 17, at 606. 54 EUROPEAN PUBLIC LAW the formation of international environmental law, ‘legal legitimacy’ has rather served as an additional criterion when authority has been exercised by institutions. From this perspective, the GATT/WTO Shrimp-Turtle dispute is emblematic; the issue at stake was whether the decisions made by the dispute resolution panels represented a legitimate interpretation of the GATT norms to which States consented or an imposition of new trade-oriented rules.26 Both these bases of legitimacy have been progressively undermined by the rise of global governance. The increased delegation of decision-making authority to global institutions and the growing distance between those exercising authority and the public has, in fact, created the need for alternative standards of legitimacy. Democracy, institutional reform, expertise and public participation have been suggested as possible substitutes. To begin with, it is worth noting that especially in global governance, there is not a single and unanimously accepted idea of what ‘democracy’ might signify.27 Some authors use the term to identify a system of government based on ‘rule by the people’; others consider ‘democracy’ as an institutional system with representative bodies popu- larly elected; some others refer to a ‘one-State-one-vote’ system.28 However, all of these usages are unlikely to offer a valid solution to legitimacy gaps of global environmental governance. In fact, global-scale elections and the creation of a global parliament seem, at the very least unrealistic, while the ‘one-State-one-vote’, approach giving disproportionate weight to States with smaller populations, is, at best, questionable. Reform of the existing international environmental institutions has also been cited by some as a means for coping with legitimacy gaps. According to Frank Biermann, the creation of a World Environment Organization, bringing together the various international environmental bureaucracies, could improve the institutional environment for the negotiation, implementation and co-ordination of environmental agreements and action programmes.29 Such an organization could also lead to a more stable and credible environmental governance and provide an opportunity to include a role for national elected ofﬁ cials. In addition, ‘the streamlining of environmental secretariats and negotiations into one body would especially increase the voice of the South’, thus contributing to a more equitable participation in global governance.30 Yet even though a new, more stable institutional design could contribute to ﬁ ll the legitimacy gaps in the global environmental system, a key element remains the political will of States to overcome the inadequacies of the existing principles and practices of inclusiveness.

26 See Earthjustice Legal Defense Fund, Comment to the Appellate Body of the World Trade Organization concerning United States – Import Prohibition of Certain Shrimp and Shrimps Products, 16 Jun. 1998, at 2. 27 See G. Sartori, The Theory of Democracy Revisited, (New York: Chatam, 1987). 28 For an overview, see Bodansky, supra, n. 17, at 612. See also D. C. Esty, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’, Yale L. J., 115, no. 7 (2006): 1515. 29 F. Biermann, Reforming Global Environmental Governance: from UNEP towards a World Environment Organization, in L. Swart- E. Perry, supra n. 11, at 103-123. See also S. Charnovitz, ‘A World Environment Organization’, Colum. J. Envtl. L., 27, no.2, (2002): 323-362. 30 The quotation is from Biermann, Ib., at 107. BEYOND PARTICIPATION 55

Another suggested basis of legitimacy is expertise. Resting on the premise that expert knowledge leads to best outcomes, scientifi c and technical skills are perceived as key factors in order to identify environmental problems, evaluate ecological risks and test proper solutions. Furthermore, since environmental decision-making frequently concerns issues that involve scientifi c assessments and competences, international regimes often refer to scientifi c evidence. An example is the Agreement on the Application of Sanitary and Phytosanitary measures (SPS Agreement), which explicitly requires of its Members that ‘any sanitary and phytosanitary measures (…) are based on scientifi c principles and is not maintained without suffi cient scientifi c evidence’.31 However, scientifi c knowledge is not incontrovertible, and to some degree uncertainty is always possible when making predictions about complex issues, such as climate change or genetically modifi ed food. In these cases, as the WTO Beef Hormones case well highlighted,32 the ultimate choice is a ‘policy matter’ rather than a scientifi c one. Besides, even though expertise can provide a baseline for decision-making, it cannot resolve confl icts among competing values. Borrowing Fritz Scharpf’s conception of ‘substantive legitimacy’, it can be inferred that legitimacy deriving from expertise depends on the perception of shared objectives and interests rather than on common values.33 It has also been observed that expertise stands in sharp contrast to public participation.34 According to this point of view, while the legitimating force of the former rests on the ability to produce desirable outcomes and, therefore, effectiveness, public participation can, under certain circumstances, result in slow decision-making and cost-ineffi ciency. In addition, whether or not public participation can lead to a higher acceptance of fi nal decisions and make decision-makers more accountable to the public, it does not necessarily enable participants to exert democratic control over fi nal results nor can it ensure compliance with fi nal decisions. However, in order to improve the quality of decision-making procedures and move to better environmental outcomes, the involvement of organized interest groups and other non-State actors (especially epistemic communities) has been proved benefi cial.35 The emergence of new forms of ‘collaborative governance’, in which the fi nding and implementation of solutions to specifi c problems include governments, international governmental and non-governmental organizations, business associations and scientifi c

31 See Art. 2.2 of SPS Agreement, 15 Apr. 1994, Annex 1A of the Agreement establishing the World Trade Organization. 32 Appellate Body Report, European Communities- Measures Affecting Meat and Meat Products (‘EC Beef Hormones’), WT/DS27/AB/R and WT/DS48/AB/R, adopted 16 Jan. 1998. 33 See F. Scharpf, Governing in Europe: Effective and Democratic?, (Oxford: Oxford University Press, 1999). 34 As Bodansky observes, see supra n. 19 (at 17):‘the goals of public participation and transparency may sometimes confl ict with the goal of effectiveness’. 35 See J. Steele, ‘Participation and Deliberation in Environmental Law: Exploring a Problem-Solving Approach’, Oxf. J. Leg. Stud., 21, no.3 (2001): 415-442. 56 EUROPEAN PUBLIC LAW communities, has also been perceived as a means to increase the inclusiveness of global institutions.36 Actually, some forms of collaborative governance and multi-stakeholder dialogue have already been experienced in the environmental realm. An unprecedented opportunity to participate in offi cial proceedings of international environmental institutions was given, for example, by both the UN Conference on Environment and Development in Rio de Janeiro (1992) and the World Summit on Sustainable Development in Johannesburg (2002). While on more institutionalized bases, civil society representatives are involved in UNEP governance.37 This broader participation of civil society organizations in global environmental governance has not, however, resulted in full inclusiveness. A ‘club atmosphere’ still remains when environmental concerns are compared with other interests.38 Nonetheless, the involvement of non-State actors in global governance mechanisms has, as well as losing the autonomous capacity of the State to effectively address a wide range of problems, leads to non-hierarchical, post-territorial and non-exclusive modes of governance, in which State and non-State actors are (more or less) equally involved.39 Still, even if they perform as co-authors and co-executors of regulation, the equality within and among States and non-State actors in the global arena remains more theo- retical than substantial.40 In environmental matters, where participation in decision-making processes is more developed than in other sectors, the relationships between State and non-State actors have changed since the 1990s, when non-governmental organizations were especially encouraged and enabled to take part in the negotiation of international environmental agreements. While before, non-State actors involved in global environmental governance were essentially environmental NGOs, as ecological problems have grown in complexity and signifi cance, actors with a variety of stakes in environmental politics have mobilized to infl uence and control the proceedings. To take one pressing example, in the climate change regime the array of NGOs involved in the Framework Convention on Climate

36 See F. Biermann & K. Dingwerth, ‘Global Environmental Change and the Nation State’, Glob. Envtl.Pol., 4, no.1 (2004): 1-22, at 12. 37 A Global Civil Society Forum was institutionalized in 2002 by the Governing Council (GC) of the United Nations Environment Programme (UNEP). Any accredited civil society representative can attend the yearly session of the Forum, submit inputs into working documents of the GC and the Global Ministerial Environment Forum and comment on draft documents of the government representatives before the fi nalization of offi cial texts. 38 See K.R. Gray, ‘Civil Society and the World Trade Organization’, in The Politics of Participation in Sustainable Development, ed. J.F. Green & W. B. Chambers, (Tokyo and New York: UN University Press, 2006), 133-152. On the ‘club model’ see R. Keohane & J.S. Nye, Between Centralization and Fragmentation: The Club Model of Multilateral Cooperation and problems of Democratic Legitimacy, J.F. K. School of Government Faculty Research Working Paper, No. 1-2004. 39 See B. C. Karkkainen, ‘Post-Sovereign Environmental Governance’, in Glob. Envtl.Pol, 4, no. 1 (2004): 72-96. 40 Specifi cally, on the involvement of Developing countries in global environmental governance, see A. Najam, ‘Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement’, International Environmental Agreements: Politics, Law and Economics 5, no. 3 (2005): 303-321. BEYOND PARTICIPATION 57

Change has dramatically changed as business actors have begun to perceive their stakes in the FCCC process.41 This rise in open-ended, informal and fl exible mechanisms of interaction between States and non-State actors has moved global governance into a new stage of development. As Rittberger observes, the policy interdependence among private and public actors, as well as the scarcity of resources available to the public sector and the increased power of business actors in world affairs are all possible explanations of the inclusion of new actors in policy deliberations and decision-making procedures.42 Even so, the involvement of private actors in global governance is not untrammelled, but refl ects the political will of the States to take advantage of the contribution that civil society representatives or business actors can bring to the solution of specifi c problems. From this perspective, participation of private or hybrid public-private actors in global governance institutions is expected to result, if ever, in greater effectiveness rather than in greater legitimation.43 The point to be made here is that public participation alone, as well as the other suggested bases of legitimacy, is unlikely to be an antidote to legitimacy gaps. In fact, not only is the involvement of relevant stakeholders in global governance instrumentally restricted, but the lack of a global constituency also makes it diffi cult to clearly determine who should better represent citizens’ interests at the global level.44 Hence, to build and maintain legitimacy, additional criteria should be carefully considered.

4. Participation and Good Environmental Governance: The Road Ahead

It has been observed that principles of administrative law – which have been used in domestic settings to legitimate regulatory decision-making (e.g., fairness, participation, deliberation, transparency and accountability) – should be deployed more systemati- cally in the global context, where their legitimacy-enhancing potential takes on special signiﬁ cance.45 Put another way, if ‘much of global governance can be understood as regulation and administration’,46 the development, at global level, of administrative-law type mechanisms might promote procedural legitimacy and strengthen the acceptance of decisions.

41 The Framework Convention on Climate Change (FCCC) was negotiated as part of the 1992 United Nation Conference on Environment and Development (UNCED) and took effect in 1994. The main goal of the FCCC is to prevent dangerous human interference with the climate system. On the involvement of NGOs in climate change regime see generally K.Raustiala, Nonstate Actors in the Global Climate Regime, in UCLA School of Law Pubblic Law & Legal Theory Working Paper, No. 07-29, 2007. 42 See V. Rittberger, ‘Inclusive Institutions for Governance in the Global Political Economy’, Paper presented at the annual meeting of the ISA’s 49th annual convention, bridging multiple divides, San Francisco, USA Mar. 26, 2008. 43 Quoting again Rittberger, Ib., a single type of actor, public or private, does not possess all the necessary regulatory, material, organizational and epistemic resources to effectively address trans-sovereign problems, therefore ‘only if all actors participate and place their resources at the disposal for pursuit of the collective interest can current global challenges be effectively tackled’. 44 On elitism and opacity in global governance, see M. Shapiro, ‘Administrative Law Unbounded’, Ind. J. of Global Legal Stud., 8 (2001): 369-377, at 374. 45 See Esty, supra, n. 28, at 1490-1563. 46 See Krisch and Kingsbury, supra, n. 3, at 1. 58 EUROPEAN PUBLIC LAW

According to Daniel Esty, procedural legitimacy – and the principles of good governance on which it is built – ‘can substitute, in part, for the lack of elections; facilitate access to expertise and thus maximize the chances of welfare-enhancing results; provide a structure and order to policymaking; delimit the exercise of power and advance accountability; and promote dialogue and debate’.47 In short, the usual mechanisms of domestic administrative law, such as access to information, right to be heard, evidence to support a decision and judicial review, can contribute to enhancing good governance and inclusiveness in global environmental governance. Due to the elementary stage of global proceduralism and the immaturity of the rule of law in the global legal order,48 these procedural rights and principles when applied in the global administrative space, however, unavoidably differ from their original model. Here, the case of participatory rights is particularly illustrative. In fact, while at the domestic level citizen participation furthers the right of defence – and ensures accountability for the legality of administrative decisions49 – in the global arena it has different functions and justiﬁ cations. First of all, by forcing global regulators to be more transparent and openly justify rules, public participation increases social consensus and leads to greater legitimacy. Secondly, it ensures exchange of information and provides a forum for debate and discussion (as in the American ‘interest representation model’).50 Thirdly, and more similarly to domestic legal orders, participation is a means to provide due process to other States and nationals and to grant the right of national authorities or private individuals to have their views considered before a decision is taken. But even in this case, the structure of participation is more complex than at the domestic level. To borrow Cassese’s terminology, it can be deﬁ ned as ‘triadic’ rather then dyadic, involving the national government, the private party and the global institution as well.51 Indeed, participatory rights in the global arena are granted (1) to national governments before global institutions or other national governments, (2) to global institutions before another global institution, and more interestingly, (3) to private parties before domestic authorities and global institutions. Equally, moving to global environmental governance, the right to participate is granted to private parties (both individuals and interest groups), to national governments (both vertically and horizontally) and to global institutions.

47 See Esty, supra, n. 28, at 1521 et seq. 48 See Cassese, supra, n. 4, at 53. 49 This is a core principle of European and American administrative law traditions. See R. B. Stewart, ‘The Refor- mation of American Administrative Law’, Harv. L. Rev., 88 (1975): 1669 (on US administrative law) and also J. L. Mashaw, ‘Reasoned Administration: The European Union, the United States and the Project for Democratic Governance’, in Le tutele procedimentali. Proﬁ li di diritto comparato, ed. A. Massera (Napoli: Jovene, 2007), 123-148 (comparing the right to good administration in American and European administrative law). 50 On ‘interest representation model’ and, more generally, on U.S. administrative law and practice as a model for global administrative law see R. B. Stewart, ‘U.S. Administrative Law: A Model for Global Administrative Law?’, Law and Contemp. Probs., 68 (2005): 63. 51 See supra, n. 4, at 8. BEYOND PARTICIPATION 59

A prominent example of the fi rst typology is the Aarhus Convention, which not only provides public participation in environmental decision-making but also ensures access to information and to justice.52 In this case, global norms guarantee participation in proceedings before national authorities, require a reasoned decision, establish the duty to publicize decisions and oblige authorities to take into account the points of view expressed by private parties.53 Another example is the North American Agreement on Environmental Cooperation (NAAEC) and more specifi cally, the Commission for Envi- ronmental Cooperation (CEC), where participatory rights are granted to private parties vis-à-vis global institutions.54 The CEC provides a forum for consultation and discussion, promotes openness and supports participation and policy dialogues. But even though the North American Agreement on Environmental and Cooperation is a valid example of what can be realized from enhancing participation and inclusiveness on a large scale, its scope is more regional than global. What this implies is that ecological problems, economic interests, level of development and even domestic procedural regimes, are more similar here than in the global context. Furthermore, much of the work of the CEC is intergovernmental instead of supranational, which makes it easier to fi nd common positions and promote joint actions.55 As noted earlier, global environmental governance is also open to participation by national governments and global institutions. While in the fi rst case participatory rights are granted both vertically (i.e., before global institutions) and horizontally (i.e., vis-à-vis other national governments), in the latter, participation normally consists of ‘communication-comments-considerations’ procedures.56 Examples of participatory rights granted to national governments respectively before other national governments and global institutions are the Montreal Protocol and the ‘Basel Convention.’57 In the aforementioned cases, the function of participation is to ensure cooperation, increase dialogue and, occasionally, establish a process of self-harmonization. Only when granted to private parties before global institutions, participatory rights could also create a bridge for accountability and legitimacy of global governance. In order to effectively perform a legitimizing function, public participation should be, however, more rigorously

52 See Arts 6-8 of the Convention on Access to Information, Public Participation in Decision-making ad Access to Justice in Environmental Matter, Aarhus, 25 Jun. 2008, entered into force on 30 Oct. 2001. 53 In case of non-compliance citizens have the right to ask for a review by a Convention’s Compliance Committee. See, for example, the case of Kazakhstan, Decision II/5a ‘Compliance by Kazakhstan with its obligations under the Aarhus Convention’, 13 Jun. 2005, ECE/MP.PP/2005/2/Add.7. 54 The North American Agreement on Environmental Cooperation is the environmental side treaty of the North American Free Trade Agreement (NAFTA), signed by Canada, Mexico and United States in 14 Sep. 1993 and came into force 1 Jan. 1994. The NAAEC established the Commission for Environment Cooperation to implement the Agreement and monitor the abilities of the Parties to meet the obligations (see Art. 8 of the Agreement, available at ). 55 See Esty, supra, n. 28, at 1558. 56 See, e.g., rules 10 of the Rules of Procedure of the UNEP Governing Council (available at

58 See Art- 5-7 NAAEC. See also the ‘Public Consultation Guidelines’ adopted by the Joint Public Advisory Committee of the CEC, available at . On the value of fair procedures, especially public hearing, in the NAAEC, see K. Raustiala, ‘Police Patrols and Fire Alarms in the NAAEC’, Loy. L.A: Int’l & Comp. L. Rev., 26 (2004): 389. 59 See B.C. Chimni, Cooption and Resistance: Two Faces of Global Administrative Law, Institute of International Law and Justice, Working Paper 2005/16 (on the risk of cooption by powerful States of advantages deriving from principles and procedures of global administrative law). 60 See S. Cassese, supra, n. 4, at 55. 61 See Esty, supra, n. 28, at 1557. More speciﬁ cally, on the reform of UNEP, Id., ‘The Case for a Global Environ- mental Organization’, in Managing the World economy: Fifty Years after Bretton Woods, ed. P. Kenen (Washington: Institute for International Economics, 1994), 287-309 and A. Najam, ‘Neither Necessary, Nor Sufﬁ cient: Why Organizational Tinker- ing Will Not Improve Environmental Governance’, in A World Environment Organization. Solution or Threat for International Environmental Governance?, eds F. Biermann & S. Bauer, (Aldershot: Ashgate, 2005), 235-256. 62 The quotation is from S. Marks, ‘Naming Global administrative Law’, N.Y.U. J. of Int’l L. & Pol., 37 (2006): 995- 1001 (at 997). BEYOND PARTICIPATION 61

Moreover, given the inability of developing countries and outsider groups to meet the expenses of participation and hold leadership positions, the involvement of these actors in global environmental governance should be supported by a more robust and stable architecture, one that provides resources and mechanisms to engage in dialogue and negotiations with powerful actors. Finally, the shift of decisional and regulatory authority from the national to the global level should be complemented by an equivalent transfer of procedural safeguards which force global decision-makers and regulators to publicly justify their choices (through reasoned decisions) and to subject their decisions to review (through an appeal mechanism).

5. Some Concluding Remarks

The core conclusion is that participation in global environmental governance does not necessarily lead to broader inclusiveness. In spite of the great number of rules providing for public participation, participatory rights are in fact vaguely defi ned, rarely legally enforceable and moreover, they are unequally granted to the interested parties. This is particularly true from the viewpoint of developing countries and other powerless actors whose interests are underrepresented or underestimated. Further, while transparency, participation and review have been widely applied in, and are closely connected with, the Western, liberal model of the State, in the Southern and Eastern hemispheres of the world, these principles and mechanisms are not widespread and could be rather perceived as benefi ting particular powerful States (and economic actors).63 According to a radical critique this could lead Southern countries and ‘subaltern classes’ to see global institutions as parts of an ‘imperial global State’, and thus weaken their already feeble legitimacy.64 Bearing this in mind, cross-cultural mechanisms for environmental global governance should be adopted by drawing some concepts from domestic administrative law, but also building new approaches, well suited to pluralistic, non-hierarchical models of governance. A principal challenge of global environmental governance, thus, consists in fi nding generally accepted administrative law type mechanisms which enable the public to control how decision-making authority is exercised and all the affected parties to become – directly or through appropriate procedures at the domestic level – co-authors of the decisions.

63 See S. Cassese, The Globalization of Law, Ibid., at 973. 64 On this critique see B.S. Chimni, ‘International Institutions Today: An Imperial Global State in Making’, EJIL, 15, no. 1 (2004): 1-37.

Articles

Evidence and National Security: ‘Belief Evidence’ in the Irish Special Criminal Court

Liz Heffernan*

1. Introduction

The response of democratic societies to the spectre of international terrorism has galvanized courts and commentators in recent years. Terrorism laws and exceptional powers have become a mainstay raising profound questions about the relationship between freedom and security and the contribution of judicial oversight to the protection of civil liberties. This article discusses the use of evidentiary shortcuts in the prosecution of terrorist offences, an exceptional power of enormous practical importance though one frequently overlooked. The particular focus of the discussion is the provision in Irish legislation for the admissibility at a trial for the offence of membership of a terrorist organization of the statement of a senior police offi cer of his or her belief that the accused is guilty. Known by the shorthand of ‘belief evidence’, this mechanism has echoes of provisions enacted in other jurisdictions, such as the executive’s hearsay affi da- vit evidence of ‘enemy combatant’ status criticized by the United States Supreme Court in Hamdi v. Rumsfeld.1 A curious feature of belief evidence, which distinguishes it from measures adopted post-September 11, is its vintage. Aimed exclusively at old, domestic terrorism rather than its new international counterpart, it has been in use for over thirty-fi ve years. There is an irony in the routine contribution of exceptional powers (of which belief evidence forms a very modest part) to criminal justice in Ireland, especially after the cessation of organized political violence in Northern Ireland. Commentators have lamented the complacency of the courts over exceptional powers in general and their extended application to ordinary as opposed to political offences in particular.2 The present discussion seeks to shed fresh light on the issue of belief evidence through the prism of the European Convention on Human Rights. Over four years after its incorporation into Irish law,3 the Convention is still taking root in the domestic courts, especially in the criminal domain. As we shall see, the case law on belief evidence illustrates the enriching infl uence which the Convention can exert over national

* Lecturer in Law and Fellow, Trinity College Dublin. 1 542 US 507, 124 S Ct 2633, 159 L Ed 2d 578 (2004). 2 See e.g., Farrell, ‘The Challenge of the ECHR’, paper delivered at Conference on Rebalancing Criminal Justice in Ireland, University College Cork, 29 Jun. 2007, p. 4. 3 European Convention on Human Rights Act 2003 (No. 20 of 2003).

Heffernan, Liz. ‘Evidence and National Security: ‘Belief Evidence’ in the Irish Special Criminal Court’. European Public Law 15, no. 1 (2009): 65-88. © 2009 Kluwer Law International BV, The Netherlands 66 EUROPEAN PUBLIC LAW practices while at the same time emphasizing the challenge inherent in the meaningful absorption of European standards within the domestic legal system.

2. Background

The Special Criminal Court has enjoyed a long history in Irish criminal justice. Its origins are rooted in the construction of a national security apparatus in the 1920s to bolster the stability of the fl edgling Irish Free State.4 The legislative foundation for the present court was laid in the Offences Against the State Act 1939 as part of a comprehensive regime for the preservation of public order and State security. The Special Criminal Court is most closely associated with ‘The Troubles’, the confl ict in Northern Ireland which stretched from the outbreak of civil disturbance in the late 1960s to the IRA ceasefi re of 1994. This dark period was characterized in Northern Ireland by political violence between republican and loyalist paramilitaries, the continuous deploy- ment of British military forces and, ultimately, over 3,000 deaths. The spill-over effect on the security of the Irish Republic was profound and constituted the primary justifi cation for the ongoing exercise of extraordinary powers by the executive and the courts.5 The principal feature of the Special Criminal Court is its deviation from the constitutional norm of trial by jury.6 The conduct of trials by three-judge panels has been a source of controversy over the years, much of it stemming from the malleable manner in which the court’s jurisdiction is defi ned. The functional operation of the court is conditioned upon a proclamation by the government that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. The latest such proclamation was issued in 1972 and was accompanied by the designation of certain offences as ‘scheduled offences’ which are presumptively triable in the Special Criminal Court.7 In fact, the Director of Public Prosecutions enjoys a broad discretion to send forward for trial in the Special Criminal court a person charged with any offence, whether scheduled or not.8 The decision to prosecute in the Special Criminal Court is practically immune from judicial review,9 a circumstance which has attracted the criticism of the United Nations Human Rights Committee.10

4 See generally, Davis, The History and Development of the Special Criminal Court 1922-2005 (2007) Ch. 2; Report of the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters (2002) Ch. 4. 5 Report of the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters (2002) Ch. 4. at pp.59-60. 6 Article 38.5 of the Constitution expressly allows for this exception to the general rule of trial by jury. See de Burca v. AG [1976] IR 38. Art.6 of the ECHR does not speak directly to the issue and merely requires trial by an ‘independent and impartial tribunal established by law’. The appointment of persons to the Court was upheld in Eccles v. Ireland [1985] IR 545 and survived scrutiny by the European Commission of Human Rights in Eccles, McPhillips and McShane v. Ireland (1988) 59 D & R 212. 7 Part V of the Offences Against the State Act 1939 (No. 13 of 1939). The offences declared to be scheduled offences under s. 36(1) comprise various offences under the Explosive Substances Act 1883, and the Firearms Act 1883, the Offences Against the State Acts 1939-1998. 8 Ss.45-48. 9 See People v. Quilligan (No.1) [1986] IR 485; Kavanagh v. Ireland [1996] 1 IR 321; Eviston v. DPP, unreported, High Court, 26 Jan. 2001. 10 Kavanagh v. Ireland, CCPR/C/71/D/819/1998 (4 Apr. 2001). EVIDENCE AND NATIONAL SECURITY 67

Since the 1990s, controversy over the conduct of non-jury trials has focused on two notable developments. First, the end of ‘The Troubles’ in Northern Ireland, occasioned by the formal cessation of hostilities in 1994 and the conclusion of the Good Friday Agree- ment in 1998, called into question the necessity and propriety of maintaining a Special Criminal Court. A groups of experts was appointed to consider the future of the Court and indeed of the entire national security apparatus. Reporting in 2002, the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters concluded that the legislation, including provision for the Court, should be retained in substance but that its form should be recast.11 The second controversial development was the emergence of a policy of prosecuting organized or gangland crime in the Special Criminal Court. The trials of John Gilligan and members of his gang for the murder of journalist Veronica Guerin and for drug traffi cking on a grand scale were notable examples. Guerin’s murder, a particularly shocking and heinous crime, was a catalyst for dramatic criminal justice reforms including the creation of a Criminal Assets Bureau and the State’s fi rst witness protection programme. It was never gainsaid, however, that these and other crimes were neither political nor subversive; the ostensible justifi cation for trial in the Special Crimi- nal Court was the perceived inadequacy of the ordinary courts to deal with this level of criminality and, in particular, the spectre of juror and witness intimidation.

3. Belief Evidence

The charge most commonly brought in proceedings before the Special Criminal Court is the offence of membership of an unlawful organization contrary to Section 21 of the Offences Against the State Act 193912 and it is in relation to this offence that belief evidence comes into play. The statutory deﬁ nition of the term ‘unlawful organization’ is strikingly broad13 but the prosecution of the offence is constrained in practice by the prerequisite of a government declaration that a particular organization is an unlawful one. Two such ‘suppression orders’ have been issued to date proscribing the Irish Republi- can Army (IRA) and the Irish National Liberation Army (INLA), respectively.14 These proscriptions have been liberally construed by the executive and judiciary to embrace factions within these organizations and dissident or splinter groups.

11 Op.cit. note 4. 12 The offence carries a maximum penalty of seven years’ imprisonment. Section 2(6) of the Criminal Law Act 1976 (No. 32 of 1976). Section 21(3) of the 1939 Act states that it will be a good defence to the charge if the accused shows that he did not know that the organisation was an unlawful organisation or that he disassociated himself from the organisation as soon as reasonably possible after he became aware of the real nature of the organisation or the existence of a suppression order. 13 Section18. 14 Unlawful Organisation (Suppression) Order 1939 (No. 162 of 1939); Unlawful Organization (Suppression) Order 1983 (No. 7 of 1983). A declaration of this kind is subject to only limited judicial review. Moreover, by virtue of s. 20, an application for judicial review must be brought within thirty days and locus standi is restricted to any person who claims to be a member of an organization which has been suppressed. See Hogan and Walker, Political Violence and the Law in Ireland (1989), 245-47. 68 EUROPEAN PUBLIC LAW

The general legislative premise was that the practical operation of the Special Criminal Court should be governed by the rules of evidence and procedure that apply in the ordinary courts.15 Nevertheless, belief evidence is just one of several pro-prosecution evidentiary shortcuts sprinkled across the panoply of the Offences Against the State Acts.16 For example, any statement or conduct of an accused person ‘implying or leading to a reasonable inference’ that he was a member of an unlawful organization at the material time ‘shall be evidence’ of such membership.17 Similarly, proof that an incriminating document relating to an unlawful organization was found in the accused’s possession ‘shall, without more, be evidence’ of membership at the material time ‘until the contrary is proved’.18 A further evidentiary thorn, though one not expressly addressed in the legislation, has been the use of accomplice evidence in the Special Criminal Court, including the evidence of persons admitted into the Witness Protection Programme.19 Perhaps the most controversial of the prosecution’s evidential props, however, is the provision for belief evidence in section 3(2) of the 1972 Act: Where an offi cer of the Garda Síochána [Irish police], not below the rank of Chief Superinten- dent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member. An intriguing aspect of section 3(2) is the bald terms in which the Oireachtas (Irish parliament) legislated for belief evidence. The subsection creates an exception to the common law rule against the admission of opinion evidence in the Irish courts. The provision effectively takes the issue of the admissibility of belief evidence out of judicial hands; the prosecution need only tender the witness in the customary way and the witness’s statement ‘shall be evidence’. Furthermore, the subsection breaks with another traditional common law rule which bars a witness from opining on the ultimate issue in the proceedings. The chief superintendent’s belief is offered as proof of the very offence for which the accused is charged and thus has the potential to determine the outcome of the trial. Equally signifi cant is a reality not refl ected in the face of section 3(2), namely, the legal and practical constraints on the ability of the defence to challenge belief evidence. The defence is prohibited from tendering witnesses to offer beliefs or opinions that would contradict the testimony of the chief superintendent. Moreover, the defence is at an obvious investigative disadvantage, not knowing in advance the basis for the chief superintendent’s belief. The legislation does not expressly condition the belief, for example, with a requirement that it be ‘reasonable’ or based on objective criteria. The defence can proceed on the premise that such conditions are implicit and seek to shake the belief in cross-examination. The diffi culty is that a chief superintendent can escape

15 Speciﬁ cally, the Central Criminal Court (the criminal division of the High Court) which conducts jury trials of serious indicatable offences such as murder and rape. 16 Hogan and Walker, Political Violence and the Law in Ireland (1989), 248. 17 Section 3(1)(a) of the offences against the State Act 1972 (No. 26 of 1972). Under s. 3(1)(b), ‘conduct’ includes a failure to deny a published report of membership. 18 Section 24 of the 1939 Act. 19 See e.g., People (DPP) v. Gilligan [2006] 1 IR 106. EVIDENCE AND NATIONAL SECURITY 69 any rigorous testing of the basis for his or her belief through the expedient of the well established common law privilege against disclosing the identity of police informers.20

4. The Admissibility of Belief Evidence

The admissibility of belief evidence per se was not called into question in the years immediately following the enactment of section 3(2); trials were conducted on the premise that admissibility was sanctioned by the terms of the subsection. The ﬁ rst substantial challenge to the constitutionality of section 3(2) was launched in the landmark case of O’Leary v. AG.21 The plaintiff had been convicted in the Special Criminal Court of membership of the IRA and of the separate offence of possession of incriminating documents.22 The evidence had included the testimony of a chief superintendent of his belief, reiterated under cross-examination, that the plaintiff was a member of the IRA and the counter-evidence of the accused denying the charge. The constitutional attack on section 3(2) was grounded in the presumption of innocence; O’Leary contended that the provision shifted the burden of proof from the prosecution to the defence, requiring him to establish that he was not a member of an unlawful organization and thereby depriving him of the protection afforded by the presumption. In the High Court, Costello J accepted that the presumption of innocence is a fundamental aspect of the constitutional right to a trial in due course of law and that prima facie any statute permitting a trial otherwise than in accordance with the presumption would be unconstitutional.23 Nevertheless, he concluded that because neither the Constitution nor the European Convention on Human Rights regard the right to fair trial as absolute, the Oireachtas may exceptionally abridge the protection afforded by the presumption of innocence.24 Costello J. took the view that section 3(2) imposed no more than an evidential burden on the accused without disturbing the underlying legal burden on the prosecution to establish the offence. No constitutional infringement occurred because the accused could elect not to call any evidence and would still be entitled to an acquittal if the prosecution’s evidence did not establish guilt beyond a reasonable doubt:25 What this section does is to make admissible in evidence in certain trials statements of belief which would otherwise be inadmissible. The statement of belief if proffered at the trial becomes ‘evidence’ by virtue of this section in the prosecution case against the accused. Like other evidence it has to be weighed and considered and the section cannot be construed as meaning that

20 The elevation of possibly dubious police intelligence to the status of evidence, immune from challenge, was one of the principal criticisms levelled against s. 3(2) in the debates within the Oireachtas leading to the passage of the 1972 Act. Robinson, The Special Criminal Court (1974), 31. 21 [1993] 1 IR 102 (HC). 22 The convictions had been afﬁ rmed by the Court of Criminal Appeal. People (DPP) v. O’Leary [1980] Frewen 163. 23 [1993] 1 IR 102 at 107. The right to a trial in due course of law is protected by Art. 38.1. 24 Id., at p.110. 25 Id., at 109. This language has been invoked in numerous subsequent cases. For a recent example, see DPP v. Vincent Kelly [2007] IECCA 110, 6 Dec. 2007, at p.6. 70 EUROPEAN PUBLIC LAW

the court of trial must convict the accused in the absence of exculpatory evidence. The accused need not give evidence, and he may ask the court to hold that the evidence does not establish beyond a reasonable doubt that he is a member of an unlawful organisation. Should the court agree he must be acquitted.26 Costello J. also rejected a similar challenge to section 24 of the 1939 Act which enables an inference of membership of an unlawful organization to be drawn where the accused was found in possession of an incriminating document. But whereas a colourable argument could be made in relation to section 24, it is clear from Costello J’s judgment that he did not consider the challenge to section 3(2) to be in any way a close call.27 In his view, section 3(2) presented no risk of the shifting of a legal burden and consequently no possibility of an unconstitutional encroachment of the presumption of innocence. Section 3(2) was the subject of a fresh constitutional challenge in the relatively recent case of People (DPP) v. Martin Kelly.28 A chief superintendent gave evidence at trial of his belief that Kelly was a member of the IRA at the material time but refused to answer questions in cross-examination about the basis for this belief invoking the privilege to withhold the identity of informers.29 The Special Criminal Court upheld the claim of privilege ruling that the public interest in the prevention and detection of subversive crime and the preservation of the safety of garda informers took precedence over the rights of the defence. The Court convicted Kelly of the offence of membership relying in part on the belief evidence but also on other evidence adduced by the prosecution including the testimony of a lay witness, the connection between the accused and a co-accused who had pleaded guilty to the same charge, and certain answers given by the accused in response to custodial questioning. In seeking leave to appeal against his conviction, Kelly argued that the restrictions placed on the cross-examination of the chief superintendent deprived him of his constitutional right to a trial in due course of law.30 Whereas the High Court accepted in O’Leary that belief evidence had to be weighed and considered like any other form of evidence, it was unclear how this could be achieved where the trial court had no knowledge of the basis for the belief.31 Nevertheless, in Kelly, the Supreme Court was unanimous in its conclusion that the restrictions on the cross-examination necessary to protect the identity of informers had not tainted the fairness of the trial.

26 [1993] 1 IR 102 at 112. 27 In his subsequent appeal to the Supreme Court, O’Leary did not challenge the High Court’s determination on s. 3(2). The Supreme Court rejected the appeal against the High Court’s ruling on s. 24 of the 1939 Act. O’Leary v. AG [1995] 1 IR 254, [1995] 2 ILRM 259. 28 [2006] 3 IR 115. See generally King, ‘The Right to a Fair Trial v. The Claim of Privilege’, ICLJ 17 (2007): 17; Farrell, ‘The Challenge of the ECHR’, paper delivered at Conference on Rebalancing Criminal Justice in Ireland, University College Cork, 29 Jun. 2007, p. 4. 29 See e.g., Director of Consumer Affairs v. Sugar Distributors Ltd [1991] 1 IR 225; Skefﬁ ngton v. Rooney [1997] 1 IR 22. 30 Art. 38.1. This very issue had been raised in the legislative debates that preceded the enactment of s. 392. Robinson, The Special Criminal Court (1974), 31. 31 This argument had been raised unsuccessfully before the Special Criminal Court in People (DPP) v. Binead and Donohue, unreported, Special Criminal Court, 18 Nov. 2004. EVIDENCE AND NATIONAL SECURITY 71

Geoghegan J, with whom a majority of the Court concurred,32 recognized the importance of the presumption of constitutionality, to which section 3(2) was entitled, given the limitation on the right to cross-examine inherent in its terms. Refl ecting on the legislative intent, he noted that the subsection was enacted in response to the legitimate concern that it is frequently not possible to adduce direct evidence of membership of an illegal organization from lay witnesses who fear reprisal: It is a reasonable inference to draw that the subsection was enacted out of bitter experience. It is carefully crafted ensuring that the belief evidence must come from an offi cer of an Garda Síochána not below the rank of Chief Superintendent. This is with a view to ensuring trust and credibility as far as possible. …I have no doubt that in so far as [counsel for the defence] was limited in his cross-examination of Chief Superintendent Kelly, permission for this limitation was inherent in the subsection itself … .33 Counsel for the Director of Public Prosecutions had submitted two possible constructions of section 3(2): fi rst, that it permits evidence of the chief superintendent’s belief but not evidence about the basis for the belief and, second, that it permits evidence about the basis for the belief but not to the extent that it interferes with a legitimate plea of privilege. Geoghegan J favoured the latter construction on the premise that the former (the preferred reading of the Director of Public Prosecutions) would involve a disproportionately broad interference with an accused’s rights.34 Given that there might be cases in which a chief superintendent’s belief is based on information gleaned from sources other than informers, the limitation on the right to cross-examine must be kept to a minimum. Concurring with the result but writing separately, Fennelly J characterized the issue raised by the appeal as ‘both important and diffi cult’ because ‘[i]t sets the policy of the legislation in suppressing dangerous and threatening unlawful organizations against the presumption of innocence and the imperative of a fair trial.’35 Quoting extensively from the Supreme Court’s jurisprudence on fair procedures and from decisions of the United States Supreme Court and the European Court of Human Rights, Fennelly J identifi ed ‘an inescapable obligation on the courts to guarantee the overall fairness of a trial.’36 The right to cross-examination is an essential element of that guarantee; while restrictions may be imposed for overriding reasons of public interest, they must not stray beyond what is strictly necessary and must not imperil the overall fairness of the trial.37 The exceptional, limited recourse to belief evidence under the extraordinary legislative regime governing offences against the State was justifi ed, in Fennelly J’s view, by a combination of factors: fi rst, the unique threat posed by the organizations in question; second, the decision of the legislature to limited belief evidence to members of the Garda Síochána of particularly high rank; third, the fact that belief evidence is restricted to the confi nes of the regime for offences against the State; fourth, the presumption of

32 Murray CJ, Denham and Kearns JJ. 33 [2006] 3 IR 115 at 121. Coincidentally, the chief superintendent in this case was also named Kelly. 34 Id. 35 [2006] 3 IR 115 at 129. 36 Id., at 146. 37 Id. 72 EUROPEAN PUBLIC LAW constitutionality which s.3(2) enjoys; and, fi fth, the requirement that the restriction on the right to cross-examine is limited to the extent that is strictly necessary to achieve the subsection’s clear objectives.38 Overall, the Supreme Court’s decision in Kelly underscores the special place that belief evidence continues to occupy in the Irish law of evidence. The result lends support to the controversial view that there is a continuing need for extraordinary evidentiary measures in the fi ght against crime in contemporary Irish society. The decision bears the imprimatur of a unanimous Supreme Court and, as we shall see, has been applied in subsequent lower court proceedings. Nevertheless, in the wake of Kelly, certain troubling questions remain. Section 3(2) embodies a rare exception to the general rule against the admission of evidence of opinion in criminal trials. Although the Supreme Court has emphasized that the subsection states only that the belief of the chief superintendent ‘shall be evidence’, as opposed to conclusive evidence, it is a truism that the evidence speaks to the ultimate issue in the case, namely, whether the accused is a member of an illegal organization.39 The subsection is striking in the generality of its terms and, in particular, sets no requirements regarding the basis for the chief superintendent’s belief. It places unprecedented store in the honesty and reliability of the witness. As the decision in Kelly makes plain, that trust is copperfastened by a signifi cant restriction on the right to cross-examine the witness where informers have provided the basis for the belief.

5. The Weight of Belief Evidence

Once enacted, belief evidence became a routine feature of the numerous prosecutions for membership of the IRA mounted in the early and mid-1970s. In the absence of any legislative direction as to the weight to be accorded to this evidence, the Special Criminal Court tackled the issue on a case-by-case basis. In People (DPP) v. Ferguson, O’Higgins CJ, speaking for the Court of Criminal Appeal, endorsed a contextualized interpretation of section 3(2): With regard to an expression of belief, obviously the weight to be attached to it depends on a wide variety of matters; the person who expressed the belief, the circumstances in which it was expressed and, in particular, whether the expression of belief was challenged or not.40 One of the potential drawbacks of ad hoc decision-making is its potential to under- mine judicial consistency and frustrate the emergence of general principles. In these early years, belief evidence clearly played a central role in securing convictions for the offence of membership. In some instances, belief evidence constituted the sole plank

38 Id., at 146-47. For criticism of Fennelly J.’s conclusions, see Fennell, ‘Contextual Change and the ECHR – The Struggle Against Context and Utility of ECHR Rights’, Paper delivered at Conference on Rebalancing Criminal Justice in Ireland, University College Cork, 29 Jun. 2007, pp.5-7. 39 The traditional common law precluded witnesses from testifying as to the ultimate issues in the proceedings. However, the rule no longer holds sway, particularly in civil cases. See e.g., McMullen v. Farrell [1993] 1 IR 123; DPP v. A & BC Chewing Gum Ltd [1967] 2 All ER 504. 40 Unreported, Court of Criminal Appeal, 27 Oct. 1975 at p. 3 of judgment, quoted in Hogan and Walker, Political Violence and the Law in Ireland (1989), 249. EVIDENCE AND NATIONAL SECURITY 73 in the prosecution’s case and it soon became apparent that the Special Criminal Court was willing in principle to convict on belief evidence alone.41 Reviewing the case law in 1974, Robinson observed that newspaper reports of some cases had ‘an Alice-in- Wonderland quality’. For example, she quoted the following account of the trial of Noel Hanrahan in May 1973 from a report in the Irish Times: Chief Superintendent Patrick Murphy, of Portlaoise, gave evidence that he believed that on April 25th last Hanrahan was a member of the IRA. He added that he had reports about Mr. Hanrahan from other members of the Gardaí. In reply to the defendant he admitted that he had seen him for the fi rst time that day when he went into the dock. When Hanrahan asked the witness how many Noel Hanrahans there were in Poulovanogue, Chief Superintendent Murphy said that Clonmel was not in his district and he did not know where Poulovanogue was.42 Clearly the cogency of the witness’s belief could vary enormously from one case to the next, and the Court was receptive to attempts by the defence to challenge the basis for the belief. Hanrahan’s case, in which the chief superintendent’s belief was undermined in cross-examination and the accused ultimately acquitted, suggests that the judicial trend in favour of accepting belief evidence was not entirely blind. Similarly, a judicial practice emerged whereby the Court gave an accused the benefi t of the doubt where the accused had contradicted the chief superintendent’s belief, for example, by denying the offence on oath or in an unsworn statement.43 Indeed, in Ferguson, the Court of Criminal Appeal underscored the evidentiary consequences that fl owed from the failure of an accused to take such action: [W]hen an expression of belief was not denied when the opportunity to deny it was there; when the accused man did not give evidence in the face of an expression of belief by the Chief Super- intendent, then obviously … the cogency and weight to be attached to that expression of belief was considerably enhanced.44 Ferguson had been convicted on the uncorroborated evidence of a chief superintendent and his conviction was affi rmed by the Court of Criminal Appeal. The net effect of this judicial stance was to present any accused with a stark choice at trial: take the stand to deny the charge and thereby open oneself up to cross-examination or remain silent and run the very real risk of conviction on belief evidence alone. The contemporary case law indicates a corresponding variation in the practice of the Special Criminal Court regarding the weight it attaches to belief evidence. In some

41 Robinson, The Special Criminal Court (1974), 32. 42 The Irish Times, 26th May 1973, quoted in Robinson, The Special Criminal Court (1974), 33. 43 Id., at pp. 32-34 (citing cases). Further limitations on the prosecution of the offence are the need to establish evidence of membership of a particular organization on a particular date. See e.g., People(DPP) v. Cull [1980] 2 Frewen 36. 44 Unreported, Court of Criminal Appeal, 27 Oct. 1975. 74 EUROPEAN PUBLIC LAW cases, such as People (DPP) v. Binead and Dohonue, the Court addresses the issue in detail45 whereas in others, such as People (DPP) v. Martin Kelly the Court relies on belief evidence without explaining the degree to which the evidence infl uences the result.46 In Kelly, weight was one of the issues raised before the Supreme Court on appeal. Although the Court was unanimous in its refusal to grant the appeal, there was greater divergence in the respective judgments on the issue of weight as opposed to that of admissibility. The majority judgment did not discuss the weight of belief evidence in specifi c terms and was content to endorse the view of the Court of Criminal Appeal below that the balancing of the confl icting rights and interests is a matter for the trial court.47 Geoghegan J. went on to state: ‘The Chief Superintendent’s belief has no special status but is merely a piece of admissible evidence.’48 Thus, the Special Criminal Court was entitled to take into account the fact that the chief superintendent refused to identify the basis of his belief but it was also entitled to consider counterbalancing factors such the false statement the accused made to the gardaí and the corroborating evidence presented by other witnesses.49 Fennelly J.’s concurring judgment called for a more exacting standard of appellate review. In his view, rather than merely acknowledging that it had taken account of the chief superintendent’s claim of privilege, the Special Criminal Court should have gone on to explain the weight, if any, which it attached to his evidence in light of the claim.50 The Supreme Court was also asked to consider the propriety of a conviction for the offence of membership of an unlawful organization based on belief evidence alone.51 The submission was speculative given that Kelly’s conviction had rested on other evidence at trial, a factor which expressly infl uenced the Supreme Court’s determination that his trial had not been unfair.52 However, Fennelly J parted company with the majority in his assessment that the existence of this ‘quite extensive evidence’ was ‘of crucial importance.’ He opined that an accused would have ‘a powerful argument’ based on the denial of his rights where belief evidence was ‘the sole plank in the prosecution’s case.’53 This pronouncement

45 Unreported, Special Criminal Court, 18 Nov. 2004. The Court noted various factors and concluded, at p. 23: ‘[I]t was the view of the court not only that the Chief Superintendent was an honest witness, but that, as head of the Special Detective United in the Garda Síochána, he was the person in the best possible position to learn of the activities of the accused which persuaded him that each one of them was a member of the IRA.’ The Court then considered other items of prosecution evidence which tended to support the belief evidence in the case. See also People (DPP) v. Birney and Others [2007] 1 IR 337 at 364-366 quoting from the judgment of the Special Criminal Court below. 46 [2006] 3 IR 115. See also People (DPP) v. McGurk [1994] 2 IR 579. 47 People (DPP) v. Kelly, unreported, Court of Criminal Appeal, 29 Apr. 2005, judgment of McCracken J. at pp.17-18. 48 [2006] 3 IR 115 at 122. 49 Id. 50 [2006] 3 IR 115 at 146-47. But see DPP v. Vincent Kelly [2007] IECCA 110, 6 Dec. 2007, p. 6 (per Finnegan J.): ‘This court is satisfi ed that Fennelly J. in his comments quoted above did not intend to require the court of trial to express the weight it attaches to belief evidence in the form of a mathematical notation or other scale of values but rather that weight should be attributed to the same where there is countervailing evidence such as a denial on oath.’ 51 The Court of Criminal Appeal had previously held that the trial court was so entitled. People (DPP) v. Gannon, unreported, Court of Criminal Appeal, 2 Apr. 2003; People (DPP) v. Mulligan, unreported, Court of Criminal Appeal, 17 May 2004; People (DPP) v. Redmond, unreported, Court of Criminal Appeal, 24 Feb. 2004. 52 [2006] IR 115 at 146-47. 53 [2006] 3 IR 115 at 147. EVIDENCE AND NATIONAL SECURITY 75 came close to a recognition of a de facto corroboration requirement. Moreover, it found support in the recent practice of the Special Criminal Court of declining to convict on belief evidence alone and the corresponding practice of the Director of Public Prosecu- tions to refrain from prosecuting in the absence of corroborating evidence.54 Writing for the majority of the Supreme Court, Geoghegan J. welcomed these ‘commendable’ practices but characterized them as ‘self-imposed restrictions’ adopted ‘with a view to ensuring a fair trial’ rather than absolute limitations required by law.55 Indeed, he went on to declare: ‘There may be exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the belief evidence alone.’56 The absence of a corroboration requirement in section 3(2) was kernel to the discussion of the future of the subsection undertaken by the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters. The Committee was openly divided both in its analysis of the subsection and its conclusion as to the appropriate course of action. A majority recognized that section 3(2) ‘is not entirely satisfactory as it stands’ and recommended that, if retained, the subsection be amended to include a requirement that the statement of belief be supported by other evidence.57 A minority called for the removal of this ‘artifi cial’ rule of evidence altogether.58 Moreover, they questioned the compatibility with the European Convention on Human Rights of section 3(2), both in its current guise and also under the majority’s proposed amendment.59 The weight to be attached to the chief superintendent’s belief evidence (including the issue of corroboration) remains controversial. Undoubtedly, the Supreme Court’s confi dence in the fairness of the trial in Kelly rested above all on the existence of other evidence supporting the statement of belief. At the level of principle, Fennelly J is surely correct in his conclusion that the existence of other prosecution evidence, characterized by the majority as a policy preference, has all but crystallized into a constitutional requirement. To put it another way, in the present day, it is diffi cult to see how the benchmark of overall fairness in the conduct of a criminal trial could be reached where a conviction rested solely on the evidence of a chief superintendent tested only by this restricted form of cross-examination.

6. European Convention on Human Rights

The European Convention on Human Rights exerts an increasingly profound inﬂ u- ence over the dispensing of criminal justice in the Irish courts. The Convention was

54 See People (DPP) v. Birney and Others [2007] 1IR 337 at 362. 55 [2006] 3 IR 115 at 122. 56 Id. This was also the view expressed by the Special Criminal Court in People (DPP) v. Binead and Donohue, unreported, Special Criminal Court, 18 Nov. 2004. Nevertheless, the Court was not disposed in that case to convicting on belief evidence alone and stated its preference for supporting evidence. 57 Op.cit. note 4 para. 6.93. There was division even within the majority but most members considered it essential that the subsection be retained. Some favoured the retention of the subsection without the proposed amendment. para. 6.96. 58 The Chairman, Mr. Justice Anthony Hederman, Professor William Binchy and Professor Dermot Walsh. Op.cit. note 4 para. 6.95. 59 Id. 76 EUROPEAN PUBLIC LAW incorporated into Irish law in 2003 and although the government opted for a relatively weak form of incorporation, the legislation places a duty on the courts to analyze Irish law against the yardstick of the Convention and to issue declarations of incompatibility where appropriate.60 The right to a fair trial is enshrined in Article 6 of the Convention (ECHR). Paragraph (1) provides: ‘In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ In addition to the presumption of innocence, which is protected in paragraph (2), Article 6 specifi es in paragraph (3) certain minimum rights to which a criminal defendant is entitled. These include the right ‘to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.’61 Notwithstanding the robust language in which Article 6 ECHR is cast, the European Court of Human Rights starts from the premise that national authorities enjoy a wide margin of discretion in the application of its terms. The judgments of the Court invariably include a statement along the lines of the following extract from Doorson v. Netherlands: The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.62 Aside from the level of deference to national law, an obvious consequence of this approach is that the Court’s rulings on the compatibility of evidentiary rules and practices with the Convention tend to be case specifi c and it can be diffi cult to extrapolate general principles from their terms. Nevertheless, in a series of cases, encompassing a diverse range of contexts, the Court has made plain that Article 663 protects certain core evidentiary rights. The Court summarized the position in the recent case of V v. Finland: It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations fi led and the evidence adduced by the other party. In addition, Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused.64

60 European Convention on Human Rights Act 2003. 61 Article 6(3)(d). 62 (1996) 22 EHRR 330 at 357-58 (para. 67). 63 Article 6 in general and Art.6(3)(d) in particular. 64 App. no. 40412/98, judgment of 24 Jul. 2007 at para.74 (internal citations omitted). EVIDENCE AND NATIONAL SECURITY 77

The Strasbourg jurisprudence is replete with references to equality of arms,65 the laying of evidence with a view to adversarial argument,66 and the right to challenge and question witnesses.67 However, there are limits to the Convention’s protection of the evidentiary rights of the defence. Unlike many other Convention rights, the parameters of State interference with the rights of the defence are not sketched on the face of Article 6. Nevertheless, the Court has recognized, for example, that the right to disclosure of relevant evidence is not absolute. Its judgment in V v. Finland continues: In any criminal proceeding there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.68 Where a State party restricts the disclosure of evidence to the defence, it bears the burden of demonstrating that the rule or practice is compatible with the Convention’s fair trial guarantee.69 The bar on the permissibility of such measures is set high. First, the State must persuade the Court that the restriction is strictly necessary to serve the countervailing public interest (e.g., in the protection of the anonymity of police sources).70 Second, in order to ensure that the accused receives a fair trial, the courts must make any necessary procedural accommodations to counterbalance the difﬁ culties created for the defence.71 Third, convictions must not be secured solely or substantially on evidence procured through such restricted measures.72 Although there is no single judgment of the Court which speaks directly to the compatibility of belief evidence with the Convention, several cases have some bearing on the question. For example, in Kostovski v. Netherlands,73 the Court held that the use as evidence of statements given to the police by anonymous witnesses rendered the applicant’s trial for armed robbery unfair. The Court observed that in principle all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument but that this did not preclude entirely the use of pre-trial witness statements provided that the rights of the defence have been respected.74 These rights generally

65 See e.g., Vidal v. Belgium, judgment of 22 Apr. 1992, Ser.A no.235-B, para. 33; Rowe v. United Kingdom (2000) 30 EHRR 1 at para. 60; Solakov v. Former Yngoslav Republic of Macedonia, App. No. 4702399, judgment of 31 Oct. 2001, para. 57. 66 See e.g., Ludi v. Switzerland (1993) 15 EHRR 173 at para. 49; Dowsett v. United Kingdom (2004) 38 EHRR 41 at para. 41. 67 See e.g., Saidi v. France (1994) 17 EHRR 351 at para. 43; Luca v. Italy, App. No.33354/96, judgment of 27 Feb. 2001, para. 39; Taal v. Estonia, judgment of 22 Nov. 2005, para. 31. 68 Paragraph 75. 69 Van Mechelen and Others v. Netherlands (1997) 25 EHRR 647 at 674 (para. 60). 70 Id.; W v. Finland, App.no.14151/02, judgment of 24 Apr. 2007. 71 Doorson v. Netherlands (1996) 22 EHRR 330; Van Mechelen and Others v. Netherlands, (1997) 25 EHRR 647; V v. Finland, App. no. 40412/98, judgment of 24 Jul. 2007, para. 75. See also SN v. Sweden, App. No. 34209/06, judgment of 2 Jul. 2002; B v. Finland, App. No. 17122/02, judgment of 24 Apr. 2007; W v. Finland, App.No. 14151/02, judgment of 24 Apr. 2007 at paras 46-48; PS v. Germany, App. No.33900/96, judgment of 20 Dec. 2001. 72 Doorson v. Netherlands (1996) 22 EHRR 330 at 360 (para. 78); Mild and Virtanen v. Finland, App. Nos. 39481/98 and 40227/98), judgment of 26 Jul. 2005. 73 (1990) 12 EHRR 434 at paras 42 & 45. 74 At 447 (para. 41). 78 EUROPEAN PUBLIC LAW require that an accused be afforded an adequate and proper opportunity to question and challenge a witness giving evidence against him either at the time the witness makes his or her statement or at some later stage in the proceedings.75 In Van Mechelen v. Netherlands, the Court similarly found that the applicants’ rights had been violated where their convictions for attempted manslaughter and robbery with the threat of violence were based to a decisive extent on pre-trial statements made by anonymous police offi cers whom the defence had no opportunity to question.76 The witnesses had been interrogated by an investigating judge in a hearing from which the accuseds and their counsel were excluded but to which they had access via sound link. The Court did not consider this a proper substitute for the direct questioning of a witness by the defence which provides opportunities to observe the demeanour of the witness and test his or her credibility and the reliability of the witness’s account.77 It is signifi cant that the Convention does not rule out entirely the use of anonymous sources in the investigative and trial processes. The particular diffi culty identifi ed by the Court is the use of anonymous witness statements as evidence on which the trial court convicts and the appellate court affi rms the conviction. Moreover, even where a State party has allowed anonymous witness statements to be used in this fashion, no violation of the Convention will result if the State party has put in place appropriate procedures to counterbalance the detriment to the defence. For example, Doorson v. Netherlands78 supports the proposition that States may conceal the identity of certain witnesses provided that anonymity is justifi ed (e.g., by virtue of a genuine fear of witness intimidation) and the defence is given adequate opportunity to challenge their evidence. Doorson was convicted of drug-related offences and the European Court of Human Rights concluded that the authorities were justifi ed in preserving the anonymity of the witnesses in question in the face of threats of violence from drug dealers.79 His case was distinguished from that of Kostovski because although the use of anonymous witnesses presented diffi culties for the defence, they were counterbalanced by a procedure at the appeals stage conducted by an investigating judge. Counsel for the defence was not only present at this hearing but also entitled to ask any question of the witness other than a question that might lead to the disclosure of the witness’s identity.80 The judgment in Doorson also underscores a separate point implicit in Van Mechelen: even assuming that counterbalancing procedures are suffi cient to compensate for the diffi culties anonymous witnesses create for the defence, a conviction should not be based

75 At 448-449 (paras 42 & 45). See also Luca v. Italy, App. No. 33354/96, judgment of 27 Feb. 2001, para. 43; Birutis and Others v. Lithuania, App. Nos. 47698/99 and 48115/99, judgment of 28 Mar. 2002. 76 Van Mechelen and Others v. Netherlands (1997) 25 EHRR 647. In the earlier case of Vidal v. Belgium, judgment of 22 Apr. 1992, 1992 Rep. 17, the Court had classifi ed as an infringement of Art. 6 the failure of a court to call witnesses at the request of the defence. 77 At 674-75 (paras 59 & 62). 78 Doorson v. Netherlands (1996) 22 EHRR 330. 79 For a case in which the Court was not persuaded that the interest of the witness in remaining anonymous could justify the impugned restriction on the rights of the defence, see Krasniki v. Czech Republic, App. No. 51277/99, judgment of 28 Feb. 2006, para. 83. 80 At 359 (para. 73). EVIDENCE AND NATIONAL SECURITY 79 either solely or to ‘a decisive extent’ on anonymous statements.81 The Court was satisfi ed that that was not the case in Doorson: the national court of appeal had rested its determination on other additional evidence.82 However, it reached a different conclusion on the facts of the recent case of Taal v. Estonia.83 The applicant was convicted of extor- tion, the prosecution having established at trial that the applicant had made telephone calls threatening to explode a bomb in a supermarket if his demands for a sum of money were not met. The case fi le put before the trial court included the statements of witnesses, one of whom was anonymous, purporting to identify the applicant, together with tape recordings of various phone calls. When the witnesses failed to appear at trial, the court proceeded to convict the applicant on this information. The European Court of Human Rights concluded that the applicant’s trial had been unfair because his conviction had been based to a decisive extent on the statements of witnesses he had been unable to question.84 Of particular pertinence to the present discussion is a series of cases against the United Kingdom concerning the right of the executive to resist disclosing evidence on grounds of public interest immunity. In Dowsett v. United Kingdom, the European Court described its function in such cases in these terms: In cases where evidence has been withheld from the defence on grounds of public interest immunity, it is not the role of the Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the Court’s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms, and incorporated adequate safeguards to protect the interests of the accused.85 In Jasper v. United Kingdom86 and Fitt v. United Kingdom,87 which were decided on the same day, a bare majority of the Court held that the right of the respective applicants to a fair trial had not been infringed where material was withheld on grounds of public interest immunity but the material formed no part of the prosecution case and was not put to the jury.88 The Court was satisfi ed that the procedure contained adequate safeguards: the issue of disclosure was kept under assessment by the trial judge at all times, the trial judge was fully versed in the evidence and was in a position to monitor its relevance to the defence both before and during the trial, and the defence was kept informed and permitted to make submissions to the court and participate in the decision-making process as far as possible without revealing the material which the

81 Paragraph 76. 82 At 340-41 & 360-61 (paras 34 & 78). That said, this other evidence was relatively scant. 83 App. No. 13249/02, judgment of 22 Nov. 2005. 84 At para. 33. See also Luca v. Italy, App. No. 33354/96, judgment of 27 Feb. 2001, para. 43 (fi nding a violation); Birutis and Others v. Lithuania, App. Nos. 47698/99 and 48115/99, judgment of 28 Mar. 2002, (fi nding a violation); Mild and Virtanen v. Finland, App. Nos. 39481/98 and 40227/98), judgment of 26 Jul. 2005 (fi nding no violation); Krasniki v. Czech Republic, App. No. 51277/99, judgment of 28 Feb. 2006, para. 84 (fi nding a violation). 85 (2004) 38 EHRR 41 at 858 (para. 43) (internal citations omitted). 86 (2000) 30 EHRR 441. 87 (2000) 30 EHRR 480. 88 Jasper v. UK (2000) 30 EHRR 441 at 458 (para. 55); Fitt v. UK (2000) 30 EHRR 480 at 511-12 (para. 48). 80 EUROPEAN PUBLIC LAW prosecution sought to keep secret.89 These cases were in marked contrast with the case of Rowe and Davis v. United Kingdom, in which the prosecution had simply decided to withhold certain relevant evidence without notifying the judge, thereby tainting the fairness of the applicants’ trial.90 Moreover, in Jasper and in Fit, appellate review of the trial judge’s decision not to order disclosure provided an additional layer of protection for the applicant’s rights.91 A procedural variation designed to accommodate claims of public interest immunity over material in oral rather than documentary form was similarly found to pass muster in the subsequent case of PG and JH v. United Kingdom.92 When a police offi cer refused to answer certain questions put by defence counsel in cross-examination, the judge put the questions to the witness in the confi dential confi nes of chambers and concluded that some of the answers should not be disclosed in open trial. The European Court could see no principled distinction between oral and documentary evidence in this regard nor between this procedure and its counterpart in Jasper and in Fitt.93 Several of the dissenting judges in Jasper and in Fitt were not satisfi ed that the procedures in question afforded the applicants an adequate opportunity to make informed submissions on the question of non-disclosure; in their view, the fetters placed on the defence in turn hampered the ability of the trial judge to decide the issue in a fair and objective manner.94 A preferred alternative procedure canvassed by the dissenters is the possibility of ex parte applications on public immunity grounds being made to a judge other than the trial judge. This procedure would have the merit of removing the trial judge from ‘the uncomfortable position of having to see material and then having to discount it at a later stage of the proceedings’.95 A decisive feature common to each of the above cases was the use to which the material was put at trial. In those cases in which no violation was found, the Court expressly rested its determination on the fact that the material comprised background information and formed no part of the prosecution’s evidence at trial. The signifi cance of this factor was highlighted by the case of Edwards and Lewis v. United Kingdom in which the undisclosed material related to an issue of fact at trial, namely, whether the applicants had been entrapped by undercover police offi cers and informers into committing the offences for which they were charged. Without access to the material, the defence was impaired in its ability to argue an issue which had the potential to determine the outcome of the trial.96

89 Jasper v. UK (2000) 30 EHRR 441 at 485 (paras 54 & 56); Fitt v. UK (2000) 30 EHRR at 511-12 (paras 47-49). In Fitt, the defence were afforded the additional safeguard of a summary of the material in question. 90 (2000) 30 EHRR 1 at para. 63. See also Atlan v. United Kingdom (2002) 34 EHRR 33. 91 Jasper v. UK (2000) 30 EHRR 441 at para. 56; Fitt v. UK (2000) 30 EHRR 480 at para. 49. 92 (2008) 46 EHRR 51. 93 Paragraph 72. 94 See, e.g., dissenting opinions of Judges Palm, Fischbach, Vajic, Thomassen, Tsatsa-Nikolovska and Traja in both cases. 95 Id. 96 (2005) 40 EHRR 24 at 59 (para. 46). EVIDENCE AND NATIONAL SECURITY 81

The English courts have at their disposal another procedure for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings. In certain cases, the Attorney General may appoint a ‘special advocate’ to represent the interests of the accused during the ex parte application.97 However, the special advocate is not professionally responsible to the accused and is both entitled and obliged to keep conﬁ dential any information which the court decides should not be disclosed.98 The European Court of Human Rights has recognized that mechanisms of this kind have the potential to accommodate the conﬂ icting interests raised.99 The Irish courts, in contrast, have turned their face against such a procedure given the limitations inherent in the representation of the defence.100

7. The European Convention in the Irish Courts

The compatibility of belief evidence with the Convention’s fair trial guarantee has been considered by the Irish courts on a number of occasions. Perhaps the most indepth examination was conducted by the Special Criminal Court in People (DPP) v. Binead and Donoghue.101One of the strands of evidence presented by the prosecution at trial was the testimony of a chief superintendent that he believed that the two accused were members of the IRA at the material time. Under cross-examination, the witness indicated that this belief was based on oral and written conﬁ dential information from sources both within and outside the gardaí. He claimed privilege in respect of those matters on the ground that disclosure of his sources would endanger lives and hamper ongoing issues pertaining to State security. The defence submitted that the accuseds would be deprived of a fair trial if they were not permitted to know the source of the witness’s belief. In particular, denying the defence an opportunity to investigate whether or not there was any

97 Provision for the appointment of special advocates exists in legislation relating to immigration and national security but the courts have also recognized the value of special advocates in situations for which no statutory provision exists. R v. H [2004] 2 WLR 335 at 345. 98 As Lord Bingham observed in R v. H [2004] 2 WLR 335 at 345: ‘Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confi dence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession.’ 99 Chahal v. The United Kingdom (1996) 23 EHRR 413; Tinnelly & Sons Ltd v. The United Kingdom (1998) 27 EHRR 249. In R v. H and Others [2004] 2 WLR 335, the House of Lords outlined the principles that apply to the determination of public interest immunity claims including the exceptional appointment of special counsel where it is necessary in the interests of justice. The Lords held that a trial judge had been premature in issuing an invitation to the Attorney General to appoint special counsel in the particular case. The compatibility with the Convention of measures adopted by the United Kingdom in the wake of the terrorist attacks on the United States on 11 Sep. 2001 (including restrictions on the rights of accused persons to give and call evidence under Art. 6 of the Convention) are the subject of a case currently pending before the European Court of Human Rights. A and Others v. The United Kingdom, App. no. 3455/05, lodged on 21 Jan. 2005. The Grand Chamber held a hearing in this case on 21 May 2008. 100 Director of Public Prosecution v. Special Criminal Court [1999] 1 IR 60. 101 Unreported, Special Criminal Court, 18 Nov. 2004. 82 EUROPEAN PUBLIC LAW reasonable basis for the belief infringed the presumption of innocence and the principle of equality of arms. The Court stated: [I]f no enquiry whatsoever is made into the basis of Chief Superintendent Kelly’s belief, there is substance to the defence argument that there is an imbalance in the trial in favour of the prosecution and an absence of equality of arms which could be interpreted as a lack of fairness insofar as the accused are concerned. The court is also of the view that Article 6 of the European Convention of Human Rights, which is now part of the domestic law in this country, does aug- ment the traditional rights of an accused person in the course of his/her trial, in that, it is now the law that one of their minimum rights is the right to examine and have examined (the emphasis is that of the court) witnesses against them. In the context of this case, this right would appeal to the court to include the right to have Chief Superintendent Kelly examined with regard to the basis for his belief. However, the Court accepted that informer privilege is ‘still very much a part of the law of this country’102 and that the chief superintendent could not be compelled to disclosure the identity of persons who are the sources of information nor, indeed, matters which would endanger State security.103 If some enquiry should be made with regard to the chief superintendent’s belief, the issue, then, was whether an appropriate mechanism could be devised which would ‘build a bridge’ between the accuseds’ rights and the claim of privilege.104 The Court was not persuaded that it had jurisdiction to take the ‘radical step’ of appointing a special counsel or advocate.105 Nevertheless, it decided that it could and should examine some of the documentation which the witness asserted informed his belief and it rejected the suggestion that the defence should be informed about the detail of the material made available to the Court.106 On a perusal of those fi les, the Court declared itself satisfi ed that the witness had adequate and reliable information upon which he could legitimately form the stated opinion and, moreover, that there was nothing in the information which would assist the accuseds in establishing their innocence.107 In People (DPP) v. Martin Kelly, the Supreme Court was asked to analyze belief evidence through the prism of the Constitution but not that of the European Convention on Human Rights. Other than acknowledging that the parties had cited Strasbourg case law,108 the judgment of Geoghegan J, in which three other justices concurred, makes no mention of the Convention. The reasoning and result reached by Fennelly J. is similarly grounded in an analysis of Article 38 of the Constitution; nevertheless, his judgment includes an examination of Article 6(3) and cases such as Kostovski and Doorson. Fennelly J. concluded that ‘all of the authorities cited from all the relevant jurisdictions demonstrate that there is an inescapable obligation on the courts to guarantee the overall fairness of a trial’.109 The claim of privilege had the potential for unfairness in this case because it

102 Page 21. 103 Page 21. 104 Page 8. 105 Page 21. 106 Pages 21-22. 107 Page 22. 108 Along with cases from the House of Lords and the US Supreme Court. 109 [2006] 3 IR 115 at 146. EVIDENCE AND NATIONAL SECURITY 83 infringed the normal right of the accused to have access to the material which underlay the belief expressed. Nevertheless, Fennelly J. accepted that the ‘compelling circumstances’ identifi ed by the respondent Director of Public Prosecutions in support of belief evidence constituted ‘suffi cient justifi cation for its introduction, while, at the same time, demonstrating a concern to respect such necessary limitations’.110 Thus, the implication is that the use of belief evidence in Kelly’s case was consistent with the Convention standard of a trial that is fair overall. The Court of Criminal Appeal has similarly upheld the use of belief evidence against the yardstick of the Convention in a number of subsequent cases,111 and declined invitations to refer the matter back to the Supreme Court.112 Finally, it is noteworthy that whereas the Irish courts routinely cite O’Leary, in which the constitutionality of section 3(2) was upheld in the face of a challenge grounded in the balance of proof, they have not considered the propriety of belief evidence with the Strasbourg jurisprudence on the presumption of innocence.113 The compatibility with the Convention of statutory reverse-onus clauses is a complex and intriguing question that is beyond the scope of the present discussion. Nevertheless, the line of precedent in the United Kingdom, culminating in the decision of the House of Lords in Sheldrake v. DPP, AG’s Refer- ence (No 4 of 2002),114 indicates the potential signifi cance of this parallel enquiry.

8. Concluding Remarks

Although the recent judgments of the Court of Criminal Appeal suggest that the controversy surrounding belief evidence has been laid to rest, the intriguing issue of the compatibility of belief evidence with the European Convention on Human Rights remains. If the European Court of Human Rights is presented with an occasion to consider the issue, it will not cast judgment on the propriety of belief evidence as a matter of principle (or the admissibility of belief evidence per se); its assessment will be limited to the question whether reliance on belief evidence in a particular case affected the overall fairness of the applicant’s trial. The nature and scope of the Strasbourg review essentially mirrors that of the Supreme Court’s appellate review with reference to Article 38.1 of the Constitution. But in terms of substance, does the Convention’s guarantee of a fair trial correspondingly mirror the constitutional right to a trial in due course of law? Are there circumstances in which a proffer of belief evidence will bring a trial below the standards of Article 6(3) ECHR?

110 Id., at pp.146-47. 111 People (DPP) v. Matthews [2007] 2 IR 169; People (DPP) v. Donohue [2007] IECCA 97 (citing its opinion of 28 Nov. 2006 reported as People (DPP) v. Binead [2007] 1 IR 374 refusing to grant application for leave to appeal); DPP v. Vincent Kelly [2007] IECCA 110, 6 Dec. 2007, p. 9. 112 People (DPP) v. Donohue [ 2007] IECCA 97, 26 Oct. 2007, p. 3; DPP v. Matthews [2007] IECCA 23, 29 Mar. 2007, p. 6; DPP v. Vincent Kelly [2007] IECCA 110, 6 Dec. 2007, p. 9. 113 Article 6(2). 114 [2004] 3 WLR 976. The House of Lords held that the imposition of a legal burden of proof on a defendant charged with membership of a proscribed organization was not a proportionate and justiﬁ able legislative response to the threat of terrorism. 84 EUROPEAN PUBLIC LAW

The courts are in accord that an evidentiary shortcut of this kind constitutes a restriction on the rights to which an accused is normally entitled but equally that such a restriction is in principle permissible provided that it is strictly necessary. The Supreme Court considered the necessity of section 3(2) in Kelly in what might be termed the ‘macro’ sense and concluded that it is justifi ed. As Geoghegan J. explained: [I]t is perfectly clear that the legislation has been passed in the context of preserving the security of the State and the legitimate concern that it will not in practice be possible in many, if not most cases, to adduce direct evidence from lay witnesses establishing the illegal membership. Such witnesses will not come forward under fear of reprisal. The Special Criminal Court was itself established to avoid the mischief of juror coercion and intimidation. In relation to all anti-terrorist offences, as a matter of common sense, there would be equal apprehension about intimidation of witnesses.115 The judgments in Kelly eloquently explain the justifi cation for the introduction of section 3(2) in 1972 without engaging the question whether the provision remains ‘strictly necessary’ some three decades following its enactment and several years after the formal cessation of hostilities in Northern Ireland. This is understandable perhaps given that section 3(2) is instrinsically linked to the broader, essentially political question of the need to maintain in operation the extensive national security apparatus, including the Special Criminal Court, in the present day.116 Nevertheless, neither the Supreme Court in its interpretation of section 3(2) nor the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters in its debate about reform alluded to certain developments have taken place since 1972 that bear on the need for belief evidence. For example, technological advances in the fi elds of surveillance and forensic science have greatly enhanced the ability of the gardaí to investigate crime and prosecute offenders. In addition, changes in the law have facilitated the admission of additional forms of supporting evidence. The most conspicuous example is the provision in legislation amend- ing the Offences Against the State Act for the drawing of inferences from an accused’s silence during custodial interrogation.117 Witness intimidation remains a pressing concern in Irish criminal justice and the Oireachtas has responded, for example, by establishing criminal sanctions,118 facilitating testimony by video-link119 and, most recently, providing for the admission of pre-trial witness statements in limited circumstances,120 although the effectiveness of these measures is open to question. The requirement of strict necessity is relevant in a further, ‘micro’ sense in those instances where belief evidence is accompanied by a claim of informer privilege. Can

115 [2006] 3 IR 115 at 121. 116 The arguments for an against have been canvassed periodically, notably in the wake of the Omagh bomb (the single worst atrocity of the Troubles and yet one carried out after the ceasefi re allegedly by dissident republicans), and the publication of the Report of the Committee to Review the Offences Against the State Acts. 117 Section 2 of the Offences Against the State (Amendment) Act 1998 (No. 39 of 1998). See e.g., People (DPP) v. Binead [2007] 1 IR 374 at 393-95. 118 Section 40 of the Criminal Justice Act 1999 (No. 10 of 1999). 119 Section 39 of the Criminal Justice Act 1999. 120 Part 3 of the Criminal Justice Act 2006 (No. 26 of 2006). EVIDENCE AND NATIONAL SECURITY 85 it be said that the restrictions on the right to cross-examination which were upheld in Kelly represent the least restrictive means of achieving the legitimate State objectives of protecting lives and preserving security? Both the Irish and European case law suggests that there should be some means available whereby the court can enquire into the basis for the witness’s belief and, specifi cally, the justifi cation for maintaining the anonymity of sources in a particular instance. Put in these terms, this question of strict necessity dovetails with the separate requirement that the State temper the impact of any restriction on the rights of the defence with appropriate counterbalancing procedures. There is no Strasbourg precedent on all-fours with belief evidence in general much less belief evidence coupled with informer privilege in particular. The case law makes plain that the use of hearsay statements is permissible provided that the defence has an opportunity to test the evidence at some stage in the proceedings. Of course, in cases like Kelly, the prosecution is not seeking to admit third party out-of-court statements as evidence but rather to incorporate them indirectly into the witness’s in-court opinion. The scenario may be factually distinct from cases like Van Mechelen and Doorson but it raises the same fundamental problem of denying the defence an adequate opportunity to test the evidence. Irish law recognizes that expert witnesses may proffer opinions and that they may draw on hearsay when so doing. But belief evidence under section 3(2) is not expert evidence in the classical sense but rather evidence in the form of non-scientifi c opinion that cannot be empirically validated and that incorporates hearsay in an ad hoc, unpredictable fashion. In any event, expert evidence is subject to the self-same safeguard that it be open to challenge by the other side. Moreover, whereas a party can respond to expert evidence by tendering its own expert witness, section 3(2) obviously does not bestow on the defence the right to tender an expert witness to rebut the belief of the chief superintendent. It is reasonably clear that Irish practice under section 3(2) conforms to the expecta- tions of the European Court of Human Rights up to a point. In particular, the procedure for raising claims of informer privilege incorporates certain safeguards of which the European Court has approved, viz. it assigns to the trial court a supervisory role and enables the defence to make submissions and participate up to the point of revealing the protected information. Indeed, one might go further and predict that the Court would look favourably on the procedure adopted by the Special Criminal Court in People (DPP) v. Binead and Donohue whereby privileged information in documentary form was submitted to the court so that it could peruse and independently assess the cogency of the claim for confi dentiality. The conundrum is the paradigm case (illustrated by Kelly) where the confi dential information is not reduced to writing and the Irish courts respond to the claim of privilege by restricting the defence’s right to cross-examine the witness. Irish practice stops short of the kind of additional counterbalancing procedures utilized in English practice such as special advocates (which arguably enhance the protection afforded the defence) and questioning of witnesses by the judge in chambers (which increase the role of the trial 86 EUROPEAN PUBLIC LAW judge).121 In the absence of any equivalent procedure, it is surely doubtful that Irish law conforms to the standards of Article 6(3). In Kelly, the Supreme Court held that the existing procedure is suffi cient to satisfy the constitutional fair trial guarantee and the Court of Criminal Appeal has subsequently interpreted that holding as supporting the same conclusion with respect to the Convention. It is respectfully submitted that the question of whether the Irish procedure provides an adequate counterbalance to the restriction on the rights of the defence is more complicated than the recent Irish case law would suggest and that it warrants a closer, more detailed assessment. Even if the procedure were deemed suffi cient, an accused may be denied a fair trial if the evidentiary restriction has a direct bearing on the outcome of the proceedings. In several of the Strasbourg cases discussed above, restrictions were held not to violate the Convention because the material that was withheld from the defence was not used as evidence at trial. The same cannot be said of any case involving a statement of belief under section 3(2) which, by its very design, is offered as direct proof of the offence charged. It seems clear that a trial in which belief evidence based on privileged information constituted the sole basis on which an accused was convicted of membership of an unlawful organization would not be a fair trial within the meaning of Article 6. Although the Irish courts have recognized that the section 3(2) does not bar a conviction in such circumstances, it is unlikely that the issue will reach the European Court of Human Rights given the Special Criminal Court’s current preference for corroboration. More likely, perhaps, would be a case in which the corroborative evidence mustered by the prosecution lends such negligible support that the conviction still rests ‘to a decisive extent’ on the untested belief evidence. Even assuming that the Special Criminal Court were to insist that the supporting evidence met the formal defi nition of ‘corroboration’, it might still be too slight or circumstantial to guarantee the fairness of the trial.122 For example, how might the European Court respond to a case in which an applicant was convicted of membership on belief evidence corroborated by inferences drawn from the applicant’s silence during custodial interrogation?123 Looking to the future, prosecutions for membership of organizations currently proscribed under Irish law (the IRA and the INLA) are likely to decrease exponentially with the demise of political violence on the island of Ireland. If this prediction holds true, belief evidence will become a rarity and its reform a moot point. However, the offence of membership of an unlawful organization remains a convenient means of tackling the threat posed by dissidents and lingering paramilitary elements, a point underscored by the number of cases coming before the courts in recent years.

121 PG and JH v. United Kingdom, App. No. 44787/98, judgment of 25 Sep. 2001. The absence of juries in the Special Criminal Court may pose an additional obstacle to the extent that the court may view protected information for the purpose of assessing the claim of privilege and then be required to discount it when weighing the evidence as ﬁ nder of fact. 122 A point noted by the minority of the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters (2002) Ch. 4. 123 See e.g., People (DPP) v. Binead [2007] 1 IR 374. EVIDENCE AND NATIONAL SECURITY 87

National security concerns are likely to focus on alternative threats in the years ahead. In co-operation with the international community, the State must face the threat posed by ‘new terrorism’ in the post-September 11 global environment.124 How might the national security regime be adapted to meet this and other challenges? A possible response is to modernize the legislation governing the offences against the State, perhaps taking onboard the recommendations of the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters. With regard to belief evidence, the government might take action short of a legislative overhaul, by extending the list of proscribed organizations thereby laying the foundation for prosecutions for the offence of membership of such organizations supported by the evidentiary prop of section 3(2). Putting aside the terrorist threat for a moment, we should not overlook the likelihood that the Special Criminal Court will continue as a forum for the trial of serious non-political offences such as offences related to organized crime and drug traffi cking. Section 3(2) does not extend to crimes of this kind but the prospect of the future enactment of similar evidentiary mechanisms is by no means far-fetched.125 It is imperative that the State have robust laws and procedures in place to combat terrorist activity including special provisions to assist the prosecution in proving offences at trial. But great care is needed to ensure that this complex area of law respects fundamental rights and freedoms. A security regime must have rational, transparent objectives implemented by appropriately tailored mechanisms and procedures that strike a balance between the various confl icting rights and interests. Just fi ve years after its incorporation into Irish law, the European Convention on Human Rights had added a dynamic dimension to the fertile terrain of constitutional rights discourse. In the fi eld of evidentiary rights, the Convention has added a gloss at the level of general principle but its cutting edge lies in the European Court’s application of Article 6(3) to specifi c factual scenarios that are raised before it. As the present discussion suggests, whether a particular national practice is Convention-compliant requires detailed, contextualized analysis. In the case of belief evidence, the ultimate conclusion may be less favourable than the Irish case law would suggest.

124 Davis, The History and Development of the Special Criminal Court 1922-2005 (2007), 179-86, Ch. 2. 125 For example, in connection with a possible future offence of membership of a criminal gang.

A New Status for the ECHR in Italy: The Note: We have Italian Constitutional Court and the New changed the ‘Conventional Review’ on National Laws Subtitle as per the instructed (Shadow process- Silvia Mirate* ing).

The article aims to provide an analysis of the two judgments of the Italian Constitutional Court No. 348 and No. 349 dated 24 October 2007, which considered Article 117, paragraph 1, of the Italian Constitution as a constitutional rule granting superior legal authority to the European Convention over and above ordinary domestic statute law. A domestic law in contrast with the provisions of the Convention, as interpreted by the European Court, violates Article 117, paragraph 1, of the Italian Constitution and it must be declared unconstitutional by the Constitutional Court. In particular, the Constitutional Court has declared unconstitutional Article 5-bis, of the Law No. 359 dated 8 August 1992 (and of the following Article 37, paragraphs 1 and 2, of the Code of Expropriation Provisions, Presidential Decree No. 327 dated 8 June 2001) on the refund for legitimate expropriation and on the compensation awarded for the Italian public administrations’ practice of ‘constructive expropriation’, because they were calculated according to a criterion in contrast with Article 1 of Protocol No. 1 European Convention on Human Rights (ECHR), as interpreted by the Strasbourg case law. The solution, adopted by the Constitutional Court, is very interesting and almost ‘revolutionary’, since it underlines the new place accorded to the ECHR in the Ital- ian legal system in the last years, especially by the ordinary courts and ﬁ nally by the Constitutional Court too.

1. Introduction

In 2001, the relationship between the ECHR and the Italian law was transformed by the introduction of a new constitutional provision, laid down in the reformed Article 117, paragraph 1, of the Italian Constitution, according to which legislative power belongs to

* Silvia Mirate, dr. in public law, lecturer in administrative law, University of Turin.

Mirate, Silvia. ‘A New Status for the ECHR in Italy. European Public Law 15, no. 1 (2009): 89-110. © 2009 Kluwer Law International BV, The Netherlands 90 EUROPEAN PUBLIC LAW the State and the regions and is to be exercised in accordance with the Constitution and within the limits set by the European Union law and the International obligations.1 With two judgments dated 24 October 20072 the Italian Constitutional Court held that the provision of Article 117, paragraph 1, must be considered a constitutional rule granting superior legal authority to the European Convention over and above ordinary domestic statute law. A domestic law in contrast with the provisions of the Convention, as interpreted by the European Court, violates Article 117, paragraph 1, of the Italian Constitution and must be declared unconstitutional by the Constitutional Court.3 In the judgment No. 348 dated 24 October 2007, the Constitutional Court declared unconstitutional the Article 5-bis, paragraph 1 and 2, of the law-decree No. 333 dated 11 July 1992, as applied by the Law No. 359 of 8 August 1992 (and of the following Article 37, paragraph 1 and 2, of the ‘Consolidated Text’ on expropriation, Presidential Decree No. 327 dated 8 June 2001) on the refund for legitimate expropriation. The provisions provided for compensation payable for the expropriation of building land, which did not correspond to the market value of the land.4 Pursuant to Strasbourg case law, the Court held that these provisions contravened Article 1 of the First ECHR protocol (right to private property), because they did not provide a reasonable compensation in relation to the value of the expropriated property. Consequently there was a violation of Article 117, paragraph 1, of the Italian Constitution. In the judgment No. 349 dated 24 October 2007, the Constitutional Court declared unconstitutional the Article 5-bis, paragraph 7-bis, of the same Law No. 359/1992,

1 The Art. 117 was reformed by the constitutional statute law No. 3 dated 18 Oct. 2001, published in the Gazzetta uffi ciale No. 248, 24 Oct. 2001. On this subject, see ex multis F. Pizzetti, ‘Il sistema costituzionale delle autonomie locali (tra problemi ricostruttivi e problemi attuativi)’, Le Regioni, 2005, 35; R. Caranta, ‘La tutela della concorrenza, le com- petenze legislative e la diffi cile applicazione del Titolo V della Costituzione’, Le Regioni, 2004, 990; A. Mattioni, ‘Sull’idea di una “nuova” potestà concorrente della Regione’, Quaderni costituzionali, 2003, 33; G. Cartei – V. Ferraro, ‘Reform of the fi fth title of the Italian Constitution. A step towards a federal system?’, European public law, 2002, 445; E. Ferrari, ‘Planning, building and environmental law after the recent Italian devolution’, European public law, 2002, 357; S. Cassese, ‘L’amministrazione nel nuovo titolo quinto della Costituzione’, Giornale di diritto amministrativo, 2001, 1193. About the administrative competences in the constitutional reform of 2001 see also C. Tubertini, ‘Public administration in the light of the new title V of the Italian Constitution’, European public law, 2006, 35. 2 See the judgments Corte Cost., 24 Oct. 2007, n. 348 and n. 349, in . 3 Under Italian law the Constitutional Court can pass judgment on the constitutionality of national laws, regional laws and government acts having the force of law (such as the ‘law-decree’, or ‘decreto legge’, and the ‘legislative decree’, or ‘decreto legislativo’). The most common way to bring cases before the Constitutional Court is the ‘ricorso in via inci- dentale’ (interlocutory appeal). When a case is discussed in a Court, the parties or the judge can raise the question of the constitutionality of a law that must be applied in the case. If the judge decides the question is relevant to the case, he or she must refer the question to the Constitutional Court and at the same time suspend the proceedings until the Court has decided the preliminary question. The Constitutional Court can reject or sustain the question. In the latter case, such as in the two judgment No. 348 and No. 349 dated 2007, the law is declared unconstitutional and can no longer be applied. See on this J. S. Lena – U. Mattei, Introduction to Italian law (The Hague: Kluwer, 2002), 54. 4 Section 5-bis of Law No. 359/1992 provides a compensation calculated using the following formula. Market value of the land plus the total of annual ground rent multiplied by the last ten years, divided by two, minus a 40% deduction. The 40% deduction can be avoided if the basis for the expropriation is not an expropriation order but a ‘voluntary agreement’ for the transfer of the land. The Code of Expropriation Provisions (Presidential Decree No. 327/2001, subsequently modifi ed by Legislative Decree No. 302/2002), which came into force on 30 Jun. 2003, codifi ed the existing provisions and the principles established by the relevant case law in respect of expropriation. On this see in particular § 7 of the present study. NEW STATUS FOR THE ECHR IN ITALY 91

concerning the compensation awarded for the Italian public administrations’ practice of ‘constructive expropriation’.5 The provision did not grant an adequate mechanism of compensation to the full market value of the property. For this reason it contradicted Article 1 of the First protocol ECHR and thereby it must be considered in breach of the Article 117, paragraph 1, of the Italian Constitution. The solution, adopted in the two judgments by the Constitutional Court, is almost ‘revolutionary’, since it underlines the new consideration accorded to the ECHR and to the European case law years in the Italian courts, in recent years. This article will particularly focus on the present relationship between Strasbourg case law and our domestic ordinary and administrative courts and on the domestic reception process of the European Convention in the Italian legal order. A process which cannot be considered defi nitively complete, but which has found in the Constitutional Court’s judgments a pivotal step towards a defi nitive supra-legislative identity of the Convention in the national system. The analysis of the constitutional judgments will be introduced by a brief overview of the historical issue of the status of the European Convention in Italy.6 The aim is to point out the critical path followed by the ECHR rights in the Italian law in search of a ‘constitutional’ identity consistent with their fundamental contents. The legal authority of an international treaty in the Italian system normally derives from the nature of the source through which the same treaty has been ratifi ed. Thus the European Convention, incorporated into the Italian system through an ordinary law (law No. 848 dated 4 August 1955), formally took the authority of an ordinary statute adopted by the Parliament.7 The need to ascribe to the ECHR a rank different from the mere legislative one is underlined by the scholars as a need coming from the peculiar nature of the ECHR and fundamental freedoms. A pure and simple legislative status could unavoidably contrast with the ‘constitutional’ core of the human rights and fundamental freedoms enshrined in the European Convention.8 In this light, the two recent judgments of the Constitutional Court can be considered a meaningful contribution in order to regard the ECHR as parameter through which it is possible to review the unconstitutionality of a national law.

5 The practice of ‘constructive expropriation’ is characterized by an emergency occupation of land by local administrative authorities, without any formal expropriation procedure, the occupation subsequently becoming irrevocable on account of the transformation of the property by the realization of public works. On this see in particular § 8 of the present study. 6 On this issue see also S. Mirate, Giustizia amministrativa e Convenzione europea dei diritti dell’uomo, (Jovene, Napoli, 2007). 7 See B. Conforti, Diritto internazionale (Editoriale scientiﬁ ca, Napoli, 1999) 316. 8 On this G. Sorrenti, ‘Le Carte internazionali sui diritti umani: un’ipotesi di «copertura» costituzionale «a più facce»’, Politica del diritto, 1997, 349. 92 EUROPEAN PUBLIC LAW

2. Looking for a Constitutional Status of the ECHR

Italy ratifi ed the European Convention very early through an ordinary law, the Law no. 848 dated 4 August 1955.9 In general in the Italian legal system the international treaties are accorded the same rank as the legal source (i.e., a law) containing their order of execution. Therefore, the status of the ECHR would formally correspond to the position occupied by an ordinary law. In principle the Convention’s provisions could have been derogated by a posterior confl icting legislation. Considering the particular content of the ECHR and its aim of protecting human rights, the need to guarantee a pre-eminence of the Convention over the other domestic statutes was underlined several times by national scholars, who tried to identify a Con- stitutional provision adequate to provide a superior authority to the treaty.10 Until the reform of Title V enacted by the constitutional law No. 3 dated 18 October 2001,11 the Italian Constitution did not contain any specifi c provisions concerning the rank and the effects in the domestic legal order of the international treaties such as the ECHR. Scholars tried to give the ECHR a constitutional foundation derived from several provisions of the Italian Constitution. Primacy of the ECHR over national law has been, for instance, argued by some Italian scholars referring to Article 2 of the Constitution (according to which the Repub- lic recognizes and guarantees the inviolable rights of the person, as an individual and in the social groups where human personality is expressed) as an ‘open clause’ to protect human rights both in domestic and international level.12

9 Law 7 Aug. 1955, No. 848, published in the Gazzetta Ufﬁ ciale No. 221, 24 Sep. 1955. About the relationship between the ECHR and the Italian legal system see, ex multis, A. Pace, ‘La limitata incidenza della C.E.D.U. sulle libertà politiche in Italia’, Diritto pubblico, 2001, 1; G. Raimondi, ‘Effetti del diritto della Convenzione e delle pro- nunce della Corte europea dei diritti dell’uomo’, Rivista internazionale diritti uomo, 1998, 426; G. Cataldi, ‘Rapporti tra norme internazionali e norme interne’, Digesto discipline pubblicistiche, vol. XII, (Utet, Torino, 1997), 397; G. Sorrenti, ‘Le Carte internazionali sui diritti umani: un’ipotesi di «copertura» costituzionale «a più facce»’, Politica del diritto, 1997, 349; P. Pustorino, ‘Sull’applicabilità diretta e la prevalenza della Convenzione europea dei diritti dell’uomo nell’ordinamento italiano’, Politica del diritto, 1995, 23. 10 A detailed analysis of the several solutions proposed by the Italian scholars can be found in G. Sorrenti, ‘Le Carte internazionali sui diritti umani: un’ipotesi di «copertura» costituzionale «a più facce»’, above mentioned, 349 et seq.; P. M ori, ‘Convenzione europea dei diritti dell’uomo, Patto delle Nazioni unite e Costituzione italiana’, Rivista diritto internazionale, 1983, 311; M. Ruotolo, ‘La «funzione ermeneutica» delle convenzioni internazionali sui diritti umani nei confronti delle disposizioni costituzionali’, Diritto società, 2000, 293; G. Cataldi, ‘Rapporti tra norme internazionali e norme interne’, above mentioned, 395; A. Cassese, ‘Commento agli artt. 10 e 11’, by G. Branca, ‘Commentario alla Costituzione’ (Zanichelli, Bologna, 1975), 480. 11 The constitutional statute law No. 3 dated 18 Oct. 2001, published in the Gazzetta ufﬁ ciale No. 248, 24 Oct. 2001 provided a new order of legislative and administrative competences between the State and the Regions. In this work, as we have already seen in the introduction and we’ll see hereinafter too, it is particularly important the provision of the new Art. 117, para. 1, which refers to exercise of the legislative powers by the State and the regions in accordance with the International obligations. 12 See in this regard A. Barbera, ‘Commento all’art. 2 Cost.’, by G. Branca, Commentario alla Costituzione (Zanichelli, Bologna, 1975), 102. A reference to this issue can be found also in F. M antovani, ‘Diritto alla riservatezza e libertà di manifestazione del pensiero con riguardo alla pubblicità di fatti criminosi’, Archivio giuridico, 1968, vol CLXXIV, 21 ss.; and, in particular, referring to the European Convention on human rights, F. Bricola, ‘Prospettive e limiti della tutela penale della riservatezza’, Rivista italiana diritto procedura penale, 1967, 1094; and most recently F. Cocozza, ‘Diritto comune delle libertà in Europa’, (Giappichelli, Torino, 1994), 57. NEW STATUS FOR THE ECHR IN ITALY 93

Other authors tried to base the pre-eminence of the ECHR upon the provision of Article 10, paragraph 1, of the Italian Constitution, which states that ‘The legal system of Italy conforms to the generally recognized principles of international law.’13 The Article provides for the automatic reception of general international law (international customary norms and general principles of international law) and places it above the level of the ordinary law. However the Italian Constitutional Court has always excluded the application of that provision to international treaties or agreements, limiting it to general principles of international law.14 Another constitutional provision considered to accord a supra-legislative rank to the European Convention was Article 11, according to which ‘Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations’. The Convention’s aim to safeguard human rights and fundamental freedoms in Europe was seen in the legal literature as a character of a supra-national order ensuring peace and justice among the Nations, giving to the ECHR a constitutional status in domestic law.15 Finally, other scholars, without referring to a speciﬁ c constitutional provision, stressed the nature of the Convention as a lex specialis which could not be derogated from by posterior conﬂ icting legislation.16 The scholars’ attempts to look for a constitutional (or at least supra-legislative) status for the ECHR were overtaken by the Constitutional reform of 2001 with the provision of the new Article 117, paragraph 1. In this provision the international obligation, that is, the European Convention, become a limit to the exercise of the legislative powers by the State and the Regions: if the limit were not respected, the national law could be declared unconstitutional because in breach of Article 117, paragraph 1.

3. The Traditional Position of the Constitutional Court

Until the two judgements of October 2007, the Constitutional Court had a traditional position based on a dualistic relationship between the domestic law and the international legal order.17 The Court afforded to the ECHR the same status of the ordinary law, through which it was ratiﬁ ed in Italy.

13 See in particular R. Quadri, ‘Diritto internazionale pubblico’, (Jovene, Napoli, 1968), 64 et seq. 14 See for example, among the ﬁ rst decisions, Constitutional Court sent. 18 May 1960, No. 32, Foro italiano, 1960, I, 1446; and ex multis, Constitutional Court, sent. 18 Apr. 1967, No. 48, Rivista diritto internazionale, 1967, 692; sent. 8 Apr. 1976, No. 69, Ibid., 1976, 585; sent. 6 Jun. 1989, n. 323, in Riv. dir. int., 1989, 400. 15 See in particular P. M ori, ‘Convenzione europea dei diritti dell’uomo, Patto delle Nazioni unite e Costituzione italiana’, Rivista diritto internazionale, 1983, 322 ss.; L. Forlati Picchio, ‘Deroga alla giurisdizione e parità delle armi nel processo del lavoro’, Studi Parmensi, XVIII, (Milano, 1977), 232; N. Carulli, ‘Il diritto di difesa dell’imputato’, (Jovene, Napoli, 1967), 201. 16 B. Conforti, ‘Diritto internazionale’, (Jovene, Napoli, 1999), 316. 17 See on this F. S alerno, ‘Il neo-dualismo della Corte costituzionale nei rapporti tra diritto internazionale e diritto interno’, Rivista diritto internazionale, 2006, 340. 94 EUROPEAN PUBLIC LAW

None of the constitutional provisions invoked by the scholars were ever considered by the Court as a possible foundation for granting recognition of a supra-legislative rank to the Convention. Only in one judgment, never followed in the later case law, the Constitutional Court considered the ECHR a legal source with ‘untypical competence’, which cannot be derogated by conﬂ icting posterior legislation.18 Nevertheless, in its constant case law the Constitutional Court held that the ECHR did not have a constitutional value in domestic law.19 The outcome was that the Constitutional Court and the other Italian courts were very reluctant to apply Convention provisions directly. The ECHR has been quite often used by the Court as a parameter to which formally refer for interpreting the constitutional provisions regarding human rights. Cases were decided on the strength of principles, human rights and fundamental freedoms already pointed out in the Italian Constitution. The Convention provisions were just an additional support to judgments totally given on the basis of domestic law. There was, in the Constitutional case law, a sort of reticence to effectively interpret constitutional human rights in the light of the Convention, and above all, in the light of the Strasbourg case law. One example in this sense comes recently from the reform of Article 111 of the Italian Constitution, which expressly introduced in domestic constitutional law the principle of due process.20 Applying this new provision, the Constitutional Court underlines the parallelism between the national principle and the right to a fair trial guaranteed in Article 6 ECHR. Through a concrete analysis of the constitutional case law, however, one may notice that the Court formally refers to the Convention provision but it does not really incorporate the solutions adopted by the Strasbourg case law applying the principle of a fair trial.21

18 Constitutional Court sent. 19 Jan. 1993, No. 10, Giurisprudenza italiana, 1993, I, 1, 1613; Giurisprudenza costituzionale, 1993, 52, with comment by E. Lupo, ‘Il diritto dell’imputato straniero all’assistenza dell’interprete tra codice e convenzioni internazionali’. 19 The leading case can be considered Constitutional Court sent. 22 Dec. 1980, No. 188, Foro italiano, 1981, I, 318; Giurisprudenza costituzionale, 1980, 1612; Rivista diritto internazionale, 1981, 672. Among the following sentences, which support the same position, see for example Constitutional Court sent. 10 Feb. 1981, No. 17, Giurisprudenza costituzionale, 1981, I, 87; sent. 1 Feb. 1982, No. 15, ibid., 1982, I, 85; sent. 30 Jul. 1997, No. 288, ibid., 2630; sent. 12 Dec. 1998, No. 399, ibid., 1998, 3454. 20 According to the new Art. 111 of the Italian Constitution, introduced by the constitutional law No. 2 of 23 Nov. 1999, ‘Jurisdiction is implemented through due process regulated by law. All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial judge in third party position. The law provides for the reasonable duration of trials’. 21 See, among the others, Constitutional Court sent. 10 Feb. 2006, No. 50, Corriere giuridico, 2006, 497; sent. 15 Dec. 2005, No. 451, Foro italiano, 2006, 1,1; sent. 16 Jul. 2004, No. 232, Giurisprudenza italiana, 2005, 319. For an example about the short attention paid by the Court to the Strasbourg case law see Constitutional Court sent. 20 Jan. 2004, No. 24, Giurisprudenza Italiana, 2004, 1790, which generally refers to European Convention to recognize the right of defence laid down in Art. 24 of the Italian Constitution, but which does not pay attention to the European case law invoked by the ordinary judge who proposed the judgment on constitutional legitimacy. On the contrary the Constitutional Court referred to the European case law concerning Parliamentary immunities in the sentences 26 May 2004, No. 154, Foro italiano, 2004, 1, 1971, and 16 Apr. 2004, No. 120, Giornale di diritto amministrativo, 2004, 644. All the Constitutional judgments are available on the ofﬁ cial web site of the Italian Constitutional Court too. NEW STATUS FOR THE ECHR IN ITALY 95

The issue of a supra-legislative rank of the ECHR has been left aside in the most recent constitutional case law: the ECHR held just a formal interpretative place, without an effective incidence in the Constitutional Court’s judgment. In this context, the new judgments No. 348 and 349/2007, as we shall see, can be considered a revolution in the traditional constitutional case law.

4. The Status of the ECHR in the Italian Case Law

In the course of time, the Italian Court of Cassation, the supreme ordinary court, unlike the Constitutional Court, has repeatedly changed its case law concerning the rank and the effects of the European Convention on Human Right in the domestic law. In the earlier judgments, the Court started from a position similar to the traditional constitutional case law concerning the mere ordinary law status of the ECHR deriving from the nature of the statute law, through which the Convention was ratifi ed in Italy. Nevertheless in the case law the issue of the order of the ECHR in domestic law was closely linked to the other pragmatic issues about the direct effects of the Conven- tion’s provision on the case fi nding. For a long time the Court of Cassation ascribed to the European Convention a mere programmatic value. In addition to the status of ordinary law, the Court recognized to the ECHR a binding effect only for the ‘High Contracting Parties’, and not directly for the citizens, though they are affected by the fundamental freedoms and human rights safeguarded by the Convention.22 A turning point in respect to this original case law is represented by the Polo Castro case of 1989, in which the Court of Cassation began to consider the nature (programmatic or self-executing) of the single ECHR provisions. The Courts discussed whether the Convention norms can be qualifi ed as directly applicable, if they may have a binding value, if they may defi ne complete and precise rights and obligations which can be enforced without the intervention of a legislative act from the State. The Court underlined the need to check the effects of each Conventional right in the domestic system to establish the actual relationship between the international provision and the national statute laws.23 The attention of the ordinary Court moved from the whole treaty towards the single human rights provisions to assess their effects in domestic law on a case by case basis. The further step of the Cassation case law has been the Medrano case of 1993.24 In this case the Court followed the 1993 judgment of the Constitutional Court25 and it underlined that the ECHR benefi ted from a ‘particular force of resistance’ with regard to posterior confl icting legislation, due to its particular nature of ‘general principles of

22 See Court of Cassation, Pen., Section I, sent. 23 Mar. 1983, Giustizia penale, 1984, III, 226; sent. Section V, 12 Feb. 1982, ibid., 1983, III, 20. 23 See Court of Cassation, United Sections, sent. 8 May 1989, Rivista internazionale diritti uomo, 1990, 419; Cassazione penale, 1989, 1418. 24 See Court of Cassation, Pen., Section I, 10 Jul. 1993, Medrano, Cassazione penale, 1994, 439, with a comment by G. Raimondi, ‘Un nuovo status nell’ordinamento italiano per la Convenzione europea dei diritti dell’uomo’. 25 See the above mentioned Constitutional Court sent. 19 Jan. 1993, No. 10. 96 EUROPEAN PUBLIC LAW the legal system’. This could depend, according to the Court, on the specifi c context of the case in question, as well as the nature and scope of the right or obligation that is to be directly applied. Unlike the constitutional case law, in the Cassation case law this solution did not remain isolated, but it was followed by an another judgment of the Civil Court of Cassation in 1998, in which the ECHR was considered a source of rights and obligations for all the individuals in domestic law, having an a typical competence and a particular force of resistance to a contrasting statute law.26 In the following years, the issue of the relationship between the conventional human rights and the domestic law is also dealt with by the Court from the different point of view of the need to take into account the Strasbourg case law. In this regard it is worth considering the Cassation case law about the right to a due process within a reasonable time, as guaranteed in Article 6 ECHR and, in domestic law, in the Law No. 89 dated 24 March 2001, known as the ‘Pinto Act’, which provides the right for individuals to bring proceedings before the competent national courts – specifi cally the Court of Appeal and the Court of Cassation – with the aim of obtaining a fair compensation in the event of excessively lengthy proceedings.27 In applying the ‘Pinto Act’, the United Sections of the Court of Cassation recognized the direct infl uence in domestic law of the Convention’s right to a reasonable timeframe in jurisdictional proceedings, not only as enshrined in Article 6 ECHR, but also as interpreted by the European Court of Human Rights. The Strasbourg case law, according to the Court of Cassation, must have in respect to the right to a due process within a reasonable time a binding effect on the national case law.28 Unlike the Court of Cassation, administrative case law has for a long period been very far from this point of view. The administrative courts, and the Italian Council of State foremost among them, have continued until this time to give to the Convention the mere force of an ordinary statute.29 Referring to the Convention, the administrative courts normally apply the human rights’ provisions just as further arguments to reinforce a decision already grounded on national law.30 They are not accustomed to referring

26 See Court of Cassation, Civ., Section I, 8 Jul. 1998, No. 6672, Rivista italiana diritto pubblico comunitario, 1998, 1380, with a comment by A. Marzanati, ‘Convenzione europea dei diritti dell’uomo e ordinamento interno’, concerning the provision about an estate tax in contrast with the right of private property laid down in Art. 1 Protocol 1 ECHR. 27 According to the s. 2 of the Law No. 89 of 24 Mar. 2001, known as ‘Pinto Act’, ‘Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratifi ed by Law no. 848 of 4 August 1955, on account of a failure to comply with the “reasonable-time” requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction’. On this see S. Wolf, ‘Trial within a reasonable time: the recent reforms of the Italian justice system in response to the confl ict with Article 6(1) of the ECHR’, European Public Law (2003): 189. 28 See the leading cases Court of Cassation, Civ., United Sections, 26 Jan. 2004, No. 1340 and No. 1339, Responsabilità civile previdenza, 2004, 463, note by S. Mirate, ‘Quando la giurisprudenza europea «si impone ai giudici nazionali»…La legge Pinto e i nuovi orientamenti della Corte di cassazione’. 29 See for instance Council of State, Section IV, 24 Mar. 2004, No. 1559, Giornale diritto amministrativo, 2004, 652; Council of State, Section IV, 10 Aug. 2004, No. 5499, available at the offi cial Italian Council of State web site . 30 See for instance Council of State, Section VI, 25 Jul. 2003, No. 4291; Council of State, Section IV, 16 Oct. 2000, No. 5497, both in . NEW STATUS FOR THE ECHR IN ITALY 97 to the conventional provisions and to taking into account the Strasbourg case law as a relevant legal source of their decisions. In this regard, it can also be noted that administrative courts, unlike the ordinary courts, are not competent to deal with the fair compensation in the event of excessively lengthy proceedings. The excessive length of the administrative jurisdictional proceedings is reviewed, according to the Pinto Law, by the ordinary courts too (in fi rst instance claims for just satisfaction shall be lodged with the Court of appeal; against its decision an appeal shall lie to the Court of Cassation).31 The right to a due process within a reasonable time is one of the crucial points concerning the infl uence of the ECHR and the Strasbourg Court on the Italian case law.32 Administrative tribunals and the Council of State are not involved in the task of reviewing any violations of the right to a reasonable timeframe, in particular relating to the power to give a fair compensation in the event of the breach of the Conventional right. In this sense the administrative courts have been more removed from the Conven- tional system of protecting the right to a reasonable timeframe in judicial proceedings and thus they have been detached from a constant relationship with Strasbourg case law concerning the need to safeguard a Conventional right so relevant for the Italian legal order. This is perhaps one of the reasons (together with the belief about a mere ordinary law status of the ECHR) why Italian administrative courts have not been really coopera- tive in the implementation of the European Convention.33 In recent years a part of Court of Cassation case law tried to answer the problem of the status and the effects of the ECHR in domestic law referring to the model of Community law and the principle of its precedence over national laws. The Court has recognized the power of national courts to discard a law contrary to the ECHR. The link between ECHR effects and the principle of the precedence of Community law is founded by the Court on Article 6, paragraph 2, of the Treaty on European Union, according to which ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms’ as general principles of Community law. According to this case law, a national court which is called upon, within the limits of its jurisdiction, to apply the provisions of the European Convention is under a duty, arising from Article 6, paragraph 2, of the European Treaty, to give full effect to those provisions, if necessary refusing of its own accord to apply any confl icting provision of national legislation, even if adopted subsequently, and it is not necessary for the court

31 See in particular Section 3 of the Pinto Act, Law No. 89 of 24 Mar. 2001. 32 It comes under the inﬂ uence of Art. 6 ECHR that, by a constitutional statute law No. 2 of 23 Nov. 1999, Art. 111 of the Italian Constitution has been reformed this way: ‘Jurisdiction is implemented through due process regulated by law. All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial judge in third party position. The law provides for the reasonable duration of trials’. 33 An analysis of the relationship between Italian administrative judges and the European Convention on Human Rights, in particular relating to the application of the principle of fair trial, can be found in S. Mirate, ‘Giustizia amministrativa e Convenzione europea dei diritti dell‘uomo’ (Jovene, Napoli, 2007). 98 EUROPEAN PUBLIC LAW to request or await the prior setting aside of such provisions by legislative or other constitutional means.34 The solution to give national courts the power to discard a law contrary to the ECHR, even though it is adopted in other systems, such as the French one,35 seems to be, in the Italian legal order, in contrast with the provision of the new Article 117, paragraph 1, of the Italian Constitution. This provision, as already seen, considers the international obligation, that is, the European Convention, a constitutional limit to the exercise of the legislative powers by the State and the Regions: a domestic law which does not respect this limit could be declared unconstitutional because in breach of Article 117, paragraph 1, only by the Constitutional Court. This is the reason why the Court of Cassation itself, trying to change the case law, has adopted three ordinances in May and October 2006 to ask the Constitutional Court whether a national statute (the Law No. 359 of 8 August 1992, on the refund for expropriation), which contrasts with a Conventional provision, can be considered a violation of the constitutional provision of Article 117, paragraph 1.36 The three ordinances of the Court of Cassation have prompted the Constitutional Court to refer to the new Article 117 of the Constitution, giving effectiveness to this provision in the part which recognizes international obligations (such as the ECHR) as a limit to the legislative power of the State and the Regions. The two judgments No. 348 and No. 349 dated 24 October 2007 are the result of that evolution in the case law.

5. The New Judgments of the Constitutional Court: the ECHR as a Parameter for the Constitutional Review

In the judgments No. 348 and No. 349 dated 24 October 2007, the Constitutional Court applies for the ﬁ rst time in two cases concerning the contrast between a domestic law and an international treaty, in particular the ECHR, the reformed provision of Article 117,

34 See Court of Cassation, Civ., Section I, sent. 19 Jul. 2002, No. 10542, Foro italiano, 2002, I, 2606, note by R. Fuzio; sent. 11 Jun. 2004, No. 11096, Corriere giuridico, 2004, 1467, with a comment by R. Conti, ‘La Cassazione ritorna su occupazione appropriativa e rispetto della Cedu’; Tax Section, sent. 3 Sep. 2004, No. 17837, Rivista italiana diritto pubblico comunitario, 2005, 275. 35 See on this J. Bell, ‘French Administrative Law and the Supremacy of European Laws’, European Public Law, 2005, 487 ss.; and also L. Heuschling, ‘Comparative Law and the European Convention on Human Rights in French Human Rights Cases’, in Judicial Comparativism in Human Rights Cases, ed. E. Örücü (London: UKNCCL, 2003), 23. The Author underlines that in France ‘the role of international law as a safeguarded for human rights is accepted only by the ordinary courts. In its famous decision on the abortion case in 1975 [CC 15 January 1975, Interruption volontaire de grossesse, R, 19], the Conseil constitutionnel considered that its jurisdiction as constitutional judge […] did not include the right to rule whether a statute was compatible with a treaty and, specifi cally, with the ECHR. […] Thus every ordinary tribunal, from the lowest to the highest, is entitled, on the occasion of any trial, to protect human rights either by interpreting or by setting aside a statute in confl ict with the ECHR». 36 The fi rst ordinance is Court of Cassation, Civ., Section I, 20 May 2006, No. 11887, Giurisprudenza italiana, 2007, 15171, relating to the contrast between Art. 117 of the Italian Constitution and the provision of Art. 5 bis, para. 7-bis, Law Decree No. 333 of 11 Jul. 1992, converted in Law 8 Aug. 1992, No. 359, concerning damages in expropriation proceedings. Later see the similar ordinances Court of Cassation, Civ., Section I, 29 May 2006, No. 12810, Giustizia civile massimario, 2006, 5, and Court of Cassation, Civ., Section I, 19 Oct. 2006, No. 22357, Responsabilità Civile Previdenza, 2007, 291, note by S. Mirate, ‘L’indennità di esproprio viola la CEDU? Per la Cassazione è questione di legittimità costituzionale ex artt. 111 e 117 Cost.’ NEW STATUS FOR THE ECHR IN ITALY 99 paragraph 1, of the Italian Constitution, according to which, as we have already seen, legislative power belongs to the State and the regions in accordance with the Constitu- tion and within the limits set by the European Union law and the International obligations. The Constitutional Court has recognized that the disposition of Article 117 laid down an obligation effectively to implement the ECHR in the Italian system. The Constitutional provision gives in practice priority to the international law, and in this case to the European Convention, over a contradicting domestic law. The domestic law, which contrasts with the need to safeguard a human right protected by the European Convention, can be consequently declared as unconstitutional, because of the infringement of Article 117 of the Constitution. In its judgments the Italian Court underlines that the ECHR takes the role of parameter in the constitutional review, not only through the textual application of the human rights clauses, but also through the creative interpretation of these clauses made by the Strasbourg Court in the autonomous reading of the Convention provisions. The national law could be considered in breach of Article 117, paragraph 1, of the Italian Constitution in the case of contrast with the European Convention, as interpreted by the European Court on human rights. It is an important acknowledgment for the Italian Court, which expressly recognizes in this way the Strasbourg Court’s creative task of reading autonomously the clauses of the Convention and giving them new and updated meanings in order to extend the scope of the human rights and fundamental freedoms’ guarantees.37 On the other hand it is worth pointing out that even the cases which give the opportunity to the Constitutional Court to pronounce the two judgments at issue, concerned – as we will see later – an interference with the right to peaceful enjoyment of property not only as enshrined in Article 1, Protocol 1, ECHR, but above all as interpreted by the European case law in the light of the proportionality principle between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental right. In this light the European Convention has fi nally come into the domestic legal order as an international treaty with a supra-legislative rank (due to the provision of Article 117, paragraph 1, of the Constitution) and at the same time as an original supranational case law system which Italian courts (fi rstly the Constitutional Court) have to take into account in protecting Convention human rights. Overruling its traditional position, the Constitutional Court in the two judgments No. 348 and 349 of 2007 has undertaken a lead role in the ‘Conventional review’ on domestic legislation: the national law will be controlled by the Court not only from the domestic point of view of its conformity to the Constitution, but also in respect to the Convention provisions on human rights, as interpreted by the Strasbourg Court.

37 About the autonomous reading of the Convention provisions by the European Court in order to extend the application of the human rights safeguarded by the ECHR see F. S udre, Le recours aux «notions autonomes», in F. Sudre (dir.), L’interpretation de la Convention européenne des droits de l’homme, (Bruxelles 1998) 93 ss.; and also J. Polakiewicz, The Status of the Convention in National Law, in R. Blackburn – J. Polakiewicz, Fundamental rights in Europe, (Oxford, 2001), 33. 100 EUROPEAN PUBLIC LAW

The control over the conformity of the Italian legislation with the ECHR remains a centralized power of the Constitutional Court, which refused the possibility, indicated by a part of the Court of Cassation case law, to give every national court the power to discard a law contrary to the Convention. In particular, the Italian Court underlines the existing structural differences between the Community law and the ECHR system. The mere reference to Article 6, paragraph 2, of the Treaty on European Union, according to which the Union shall respect Convention fundamental rights as general principles of Community law, could not justify, according to the Constitutional Court, widespread control taken by the national courts over domestic legislation contrasting with ECHR guarantees. In this respect, one may agree with the Court. The relationship between the ECHR and the Contracting States is not characterized by the same intensity and strength which typifi es the infl uence of the European Court of Justice on the Member States’ legal order through the principle of supremacy of the Community law.38 Unlike the Court of Justice, the Strasbourg Court does not have a direct ‘dialogue’ with the national courts through a mechanism of preliminary rulings such as the mechanism provided by Article 234 of the EU Treaty (according to which any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation of Community law is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon). The relationship between the Human Rights Court and the domestic courts is based on the subsidiarity principle rather than on the principle of supremacy. Unlike the Court of Justice, the Strasbourg Court has never imposed on the Contracting States the obligation to recognize to national courts the power to set aside subsequent legislation in contrast with the ECHR provisions. According to the doctrine of the margin of appreciation, the European Convention system let the Contracting States free to choose the best way in domestic law to give protection to ECHR rights and to guarantee their supremacy over national statute laws.39 As the European Court underlines ‘the Convention does not impose on the Contracting States any given manner for ensuring within their internal law the effective implementation of its provision’.40 The European Court’s task is to exercise an international supervisions on that implementation in specifi c cases, in order to ensure that the

38 The solution according to which national courts must apply EC regulations, and consequently set aside subsequent confl icting national statutes, without referring any question of legitimacy to the Constitutional Court, has been imposed by the European Court of Justice since 1978 in Simmenthal (Case C-106/77), Judgment dated 9 Mar. 1978, [1978] ECR 629, and it has been accepted by the Italian Constitutional Court in the Granital judgment of 8 Jun. 1984, No. 170. See on this A. Adinolfi , ‘The judicial application of Community law in Italy’, Common Market Law Review (1998): 1313 ss.; and also A. Siciliano, ‘State liability for breaches of Community law and its application within the Italian legal system’, European public law (1999): 405. More in general on the relationship between Community law and national legal systems, R. Mastroianni, ‘On the distinction between vertical and horizontal direct effects of Community directives: what role for the principle of equality?’, European public law, (1999): 417. 39 See on this regard V.V.A.A., ‘The doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice’, H.R.L.J., (1998): 1-36; R.St.J. Macdonald, ‘The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights’, International Law at the time of its Codifi cation, Essays in honour of Judge Robert Ago, (Milano, 1987): 187. 40 ECtHR, 6 Feb. 1976, Swedish Engine Drivers’ Union, A No. 20, 18, § 50. On this European case law see P. Van Dijk – G. J. H. Vanhoof, Theory and practice of the European Convention on Human Rights, (The Hague, 1998), 82 ss. NEW STATUS FOR THE ECHR IN ITALY 101 solutions found in domestic law do not impose an excessive or unacceptable burden on private individuals.41 Moreover, in the Convention’s system, national ordinary courts are primarily in charge of protecting human rights domestically. In accordance with this principle, the Italian Constitutional Court in both the judgments recognizes an obligation upon national courts to interpret domestic rules in the light of the Convention. Whenever this is not possible, in the case of an unavoidable contrast between the ECHR rights and the domestic statute law, domestic courts must bring the issue before the Constitutional Court in order to obtain a declaration of its unconstitutionality because of the violation of Article 117, paragraph 1, of the Italian Constitution. This is, according to the Constitutional Court, the more consistent solution with the peculiar character of the Italian legal order and with the presence in the Constitution of a provision such as the Article 117, paragraph 1. Providing a constitutional review on national laws contrasting with ECHR is carried out, Italy will be in a position to fulfi l completely the international obligation for the Contracting States to respect human rights and to secure to everyone within their jurisdiction the rights and freedoms defi ned in the Convention, as required by Article 1 ECHR.

6. The ‘Counter-limits’ set by the Italian Court: Checking the Conformity of the ECHR with the Constitution

The new ‘Conventional review’ provided by the Italian Constitutional Court on the basis of Article 117, paragraph 1, ECHR includes not only the conformity control of the national laws with the ECHR provisions as interpreted by the Strasbourg case law. In the two judgments No. 348 and No. 349, the Court reserves the power to evaluate the conformity of the ECHR provisions and their application by the Strasbourg Court with respect to the Italian Constitution too. The Court undertakes the task to verify whether ECHR provisions in the interpretation given by the Strasbourg Court could be compatible with the Constitution. From this point of view one may infer that the Italian Court aims to uphold its own role of constitutional court in protecting human rights and fundamental freedoms safeguarded in the domestic Constitution. That power of review recalls the position of the Constitutional Court in the relationship between EU law and the Italian Constitution. According to the Granital decision, the Court has in any case reserved the power to check the compatibility of the EC Treaty with respect to the fundamental principles recognized by the Italian Constitution.42

41 In this sense L. Wildhaber, ‘A constitutional future for the European Court of Human Rights?’, HRLJ, 2002, 162. 42 See the already mentioned Granital judgment of 8 Jun. 1984, No. 17, and also the previous judgment of the Italian Constitutional Court sent. 27 Dec. 1973, No. 183, Foro italiano, 1974, I, 315, note by R. Monaco, ‘La costituzion- alità dei regolamenti comunitari’; and more recently sent. 28 Dec. 2006, No. 454, Giurisprudenza costituzionale, 2006, 6. In all these judgments the Court underlined its power to review the conformity between EU law and ‘the fundamental principles of the Italian constitutional order and the human rights and fundamental freedoms safeguarded by the Italian Constitution’. On this A. Adinolﬁ , ‘The judicial application of Community law in Italy’, already quoted, 1322. 102 EUROPEAN PUBLIC LAW

The doctrine of the ‘counter-limits’, dealing with the limits to the implementation of EU law arising from the fundamental principles of the Italian Constitution, as interpreted by the Constitutional Court, seems to apply now in the Convention system too.43 In conducting a wide-ranging examination as to the compatibility of the Convention provisions with the Constitution, both the two judgments show the Court’s willingness to play an effective role in controlling the conformity of Convention norms with the Constitution. It is worth saying, however, that there is a difference between the two judgments in the way they deal with the constitutional review on the ECHR provisions. In the judgment No. 349 the issue of the ‘counter-limits’ to the implementation of the ECHR rights does not play a pivotal role in the opinion of the Court. The Court just underlines the need to guarantee a ‘minimum common standard’ in the protection of human rights as a common foundation of a correct and effective relationship between the European Convention and the national legal order, and in particular the Italian Constitution. The assertion is perfectly consistent with the main character of the ECHR system. Indeed, ‘contrary to the European Union Law, the law of the Convention does not require a strictly uniform application throughout Europe. The Convention remains a minimum standard (Article 53 of the ECHR) which allows for ‘margin of appreciation’ obliging the national judge to have regard to the peculiar considerations of law and policy in his or her own country’.44 In the Conventional legal order the domestic standards should prevail if they are higher than the ECHR standards in protecting human rights and fundamental freedoms. On the contrary, the judgment No. 348 seems particularly to stress the power of the Constitutional Court to evaluate the compatibility of the ECHR provisions with the Italian Constitution. The Court expressly underlines the need to extend the constitutional review to every feature of the possible contrast between the ECHR provisions and the Italian Constitution. The constitutional review could assess the conformity of the ECHR provisions, as interpreted by the European Court, with references to any ‘constitutional clause’, and not only, such as in the relationship with the EU law, having regard for the ‘general fundamental principles’ of the domestic constitutional order. The Con- stitutional Court considers the Italian Constitution provisions as a parameter through which to evaluate in domestic law the compatibility of the ECHR rights, enshrined in the Convention and interpreted by the Strasbourg Court. From this point of view one may note that in the constitutional review on the ECHR provisions (as interpreted by the European case law) the Constitutional Court

43 The concept of ‘counter-limits’ was used by the Italian scholars to describe that review on the compatibility between Community law and the fundamental principles of the Italian constitutional order set by the Constitutional Court in the above mentioned judgments. See in this regard, among the others, R. Caranta, Giustizia amministrativa e diritto comunitario, (Napoli, 1992), 342 ss.; M. Cartabia, Principi inviolabili e integrazione europea, (Milano, 1995) 119 ss.; and more recently G. Greco, ‘I rapporti tra ordinamento comunitario e nazionale’, in Trattato di diritto amministrativo europeo, ed. M. P. Chiti – G. Greco II. Ed., (Milano, 2007), 831 ss., in part. 857. 44 J. Polakiewicz, The Status of the Convention in National Law, quoted, 52-53. NEW STATUS FOR THE ECHR IN ITALY 103 could consider the compatibility with constitutional clauses enshrining a human right or a fundamental freedom. In that case the abstract balance, struck by the constitutional provision, between the protection of the human right and the guarantee of other relevant public interest (such as for instance the balance between the right to private property and the public interest in the expropriation proceedings in Article 42 of the Italian Constitution) is defi nitively a parameter in the compatibility review on the ECHR in the domestic system. And the master of that balance will be obviously the Constitutional Court itself. Moreover the Court in the judgment No. 348 has pointed out that this constitutional review deals with the ECHR provisions as the result of the Strasbourg Court’s creative interpretation. This way the Court seems to show the willingness to free itself from a strong infl uence of the European Court in developing the domestic constitutional case law on human rights and fundamental freedoms. What the Italian Constitutional Court seems to express in that judgment is the need for a leading role in protecting human rights in the domestic law; a need which discloses a natural vocation of the Italian Court to protect the national boundaries in the face of the infl uence coming from the European case law. Anyway, in referring to a hypothetical contrast between the interpretation of a human right (especially of its content and its application in balancing with a different public interest) in the Italian constitutional case law and in Strasbourg case law, it is important to underline that the protection of the human rights and fundamental freedom in Europe is guaranteed by a tradition common to the States, the EU and the ECHR. According to Article 6 of the EU Treaty, fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, constitute general principles of the European Union. This link in the human rights protection all over the Europe is now stressed by the new Treaty of Lisbon, which provides that the Union shall accede to the European Convention of Human Rights. Such a common tradition and future cooperation between States, EU and ECHR (not only at the legislative level, but also at the jurisdictional level) could be the key to avoiding any contrast in implementing human rights and fundamental freedoms in domestic law and in Europe.

7. The Judgment No. 348: The Unconstitutional Compensation for the Expropriation of Building Land

In the judgment No. 348/2007, the Italian Constitutional Court declared for the fi rst time the unconstitutionality of a national law, Article 5-bis law-decree no. 333/1992, as applied by Law 359/1992, on the refund for lawful expropriation) because it contravened Article 1 of the Protocol No. 1 ECHR (right to private property). The Court held Article 5-bis of Law No. 359/1992 to be in contrast with Article 117, paragraph 1, of the Italian Constitution, which establishes – as already seen – the primacy of international 104 EUROPEAN PUBLIC LAW law (in this case Article 1 of the Protocol No. 1 ECHR ) over contradictory national law. Article 5-bis provided that the compensation payable for the expropriation of building land was to be calculated using a formula (market value of the land plus the total of annual ground rent multiplied by the last ten years, divided by two, minus a 40% deduction), according to which the compensation corresponded to 30 % of the market value.45 The Italian Constitutional Court in its previous judgments held Article 5-bis of Law No. 359/1992 to be in conformity with Article 42 of the Constitution (right of private property) because the statute law introduced a temporary, exceptional and urgent measure aimed at stabilizing public fi nances, to remain valid until structural reforms were adopted.46 But the ‘temporary’ measure became in fact a fi nal measure, reiterated by the Code of Expropriation Provisions (adopted by the Presidential Decree No. 327/2001, subsequently modifi ed by Legislative Decree No. 302/2002). The Code came into force on 30 June 2003 and in Article 37 codifi ed the criteria for calculating compensation for expropriation set forth in Article 5-bis of Law No. 359/1992. In the famous judgment Scordino v. Italy the Great Chamber of the European Court of Human Rights held that the compensation awarded by the Italian law (Article 5-bis of law No. 359/1992) for the expropriation of building land was inadequate, given the low amount awarded and the lack of public interest grounds capable of justifying less than the compensation of the market value of the private property.47 In violation of Article 1 of Protocol No. 1 ECHR, the applicant in the case had to bear, according to the European Court, a disproportionate and excessive burden which could not be justifi ed by a legitimate aim in the public interest pursued by the authorities. On several occasions, the European Court stated that an interference with the right to the peaceful enjoyment of possession – as laid down in the fi rst sentence of the fi rst paragraph of Article 1 of Protocol No. 1 – must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.48 In particular, there must be a reasonable relationship of proportionality between the means employed and the aim to be realized by any measure applied by the State, including measures depriving a person of his possession, such as in the case of an expropriation proceeding. The taking of property without payment of an amount reasonably related to its value is normally considered by the European Court

45 The 40% deduction could be avoided if the basis for the expropriation was not an expropriation order but a ‘voluntary agreement’ for the transfer of the land or if the expropriation took place before Art. 5 bis came into force. In such cases, the resulting compensation corresponded to 50% of the market value. 46 See the judgments of the Italian Constitutional Court, sent. 16 Jun. 1993, No. 283, Foro italiano, 1993, I, 2089 and sent. 16 Dec. 1993, No. 442, Giustizia Civile, 1994, I, 318. 47 ECtHR, Great Chamber, 29 Mar. 2006, Scordino v. Italy, in , in particular §§ 93-104. 48 See for instance ECtHR, 21 Feb. 1986, James and others v. the United Kingdom, A, No. 98, in particular § 37, which refers to the previous judgment 23 Sep. 1982, Sporrong e Lönroth v. Sweden, A, No. 52; ECtHR, 9 Dec. 1994, The Holy Monasteries v. Greece, A, No. 301-A, in particular § 56; and more recently, ECtHR, 23 Nov. 2000, The former King of Greece and others v. Greece, in Reports, 2000-XII. NEW STATUS FOR THE ECHR IN ITALY 105 as a disproportionate interference. The rule according to which only full compensation can be regarded as reasonably related to the value of the property, is not without exceptions in Strasbourg case law. In some cases the Court found that legitimate objectives in the ‘public interest’, such as those pursued in measures of economic reform or measures designed to achieve greater social justice, could call for less than reimbursement of the full market value.49 Following the European case law, in the judgment No. 348/2007 the Italian Con- stitutional Court fi nally found a violation of Article 1 of Protocol No. 1 ECHR, because the criteria applied in the national law (Article 5-bis of Law No. 359/1992 and Article 37 of the Code of Expropriation) did not guarantee compensation for the expropriation of the building land proportionate to the interference with the right to the private property, laid down not only in the Italian Constitution in Article 42,50 but also in Article 1 of Protocol No. 1 ECHR, which is considered as a parameter of constitutionality by Article 117, paragraph 1, of the Italian Constitution. In the judgment the Court underlines the need for legislative reform which could take into account the Strasbourg case law about the full market value of the compensation for the expropriation of building lands.51 The reform is now provided by the Article 2, subsection 89, of the Statute Law dated 24 December 2007, No. 244, (the Finance Act 2008), according to which the compensation payable for the expropriation of building land must be fi xed in the full market value of the property. The Italian legislator, moreover, seems to follow the exceptions formulated by Strasbourg case law, in providing that, in the case of a lawful expropriation with a view to enacting a great economic-social reform, the compensation will be reduced by 25%.52 The issue, now, will probably be to understand what can be considered in Italian law a ‘major economic-social reform’. The term in the European Court’s judgments, as already seen, always had a peculiar meaning linked to great political and structural reforms in the different national legal orders. In Italy, the same term will have to fi nd a ‘domestic meaning’, which, always in the respect of the European case law’s principles, can make possible an application of that exception in the national contest. From this point of view it will be necessary to wait for the future case law in order to comprehend what in reality

49 Such as for example in the judgment 23 Nov. 2000, The former King of Greece and others v. Greece, already quoted, with reference to the change of the country’s constitutional system from monarchy to republic; in the judgment Kopecky v. Slovakia, 28 Sep. 2004, § 35, in Reports, 2004-IX, referring to a context of a change of political and economic regime; or in the judgment James and others v. the United Kingdom, already mentioned, in the context of a leasehold-reform legislation. 50 According to Art. 42 of the Italian Constitution: ‘Private property is recognised and guaranteed by the law, which prescribes the ways it is acquired, enjoyed and its limitations so as to ensure its social function and make it accessible to all. Private property may, in the cases provided for by the law and with provisions for compensation, be expropriated for reasons of general interest’. 51 Following this judgment, the Court of Cassation has already adopted the criterion of the full market value in the ﬁ rst cases after the Constitutional Court’s declaration of unconstitutionality of Art. 5-bis of Law No. 359/1992 and Art. 37 of the Code of Expropriation. See for example Court of Cassation, Section I, sent. 14 Jan. 2008, No. 599 and sent. 10 Apr. 2008, No. 9321, which consider the Constitutional Court judgment immediately applicable to all the ongoing jurisdictional proceedings where there has not already been a voluntary agreement or a deﬁ nitive judgment about the compensation value for the expropriation of a building land. 52 But., in the case of a voluntary agreement, the compensation could be increased by 10%. 106 EUROPEAN PUBLIC LAW can be considered a ‘major economic-social reform’ to reduce the compensation value of the expropriated land.53

8. The Judgment No. 349: The Unconstitutional Compensation for the ‘Indirect Expropriation’

With the judgment No. 349 the Italian Constitutional Court fi nally agrees with the European case law about the need to award a full market value compensation in the case of ‘indirect (or constructive) expropriation’. Under the indirect expropriation rule (accessione invertita or occupazione acquisitiva), the public authorities acquire title to the land from the outset before formal expropriation if, after taking possession of the land and irrespective of whether such possession is lawful, the works in the public interest are performed.54 The constructive expropriation permitted the public administration to take possession and property of lands without respecting the formal procedure for expropriation. A compensation, that is to say damages for the deprivation of the land, was due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession, but Article 5-bis, subsection 7-bis, Law No. 359/1992, as amended by the Law No. 662/1996, provided that such a compensation cannot exceed the amount due on formal expropriation (according to the already seen formula established by Article 5-bis: one-half of the sum of the market value plus the income from the land, less 40%), plus 10%, but without applying the 40% reduction. In Italian law the original case law rule of the ‘constructive expropriation’ is now provided (and reformed) by Article 43 of the Code of Expropriation Provisions (adopted by the Presidential Decree No. 327/2001, subsequently modifi ed by Legislative Decree No. 302/2002), came into force on 30 June 2003. The new Article 43 authorizes the public authority, in the case of taking possession of property of the private land without respecting the formal expropriation procedure, to issue a ‘deed of expropriation’ (a formal decision which is called in Italian law , ‘atto di acquisizione sanante’) valid ex nunc. Such deed does not regularize past illegalities, but rather defi nes the situation with reference to the future, guaranteeing a just balance between the public interest (which must be particularly important and is subject to a jurisdictional supervision) and that of the individual, who is entitled to receive the reimbursement of the market value of the

53 For example in order to comprehend whether an expropriation for the purpose of an extensive public housing policy or of a manufacturing land settlement plan can be considered or not a ‘great economic-social reform’ in the national contest. 54 The ‘accessione invertita’ or ‘occupazione acquisitiva’ (or indirect expropriation rule, as it is called by the European Court of Human Rights) was stated by the Court of Cassation, sitting as a full court, in the judgment of 16 Feb. 1983, No. 1464, Giurisprudenza italiana, 1983, I, 1, 1629, note by M. Annunziata, ‘Un nuovo modo di acquisto pubblico della proprietà: la costruzione di opera pubblica come accessione invertita’. NEW STATUS FOR THE ECHR IN ITALY 107 land and overall damages in respect of the prejudice sustained up until the date of issue of the deed.55 The European Court of human rights did not consider the ‘indirect expropriation’ rule to comply with the peaceful enjoyment of private possessions safeguarded by Article 1 of Protocol No. 1 ECHR. In several judgments the European Court reiterated that the fi rst and most important requirement of Article 1 of Protocol No. 1 ECHR is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention and entails, according to the Strasburg Court, a duty on the part of the State or other public authority to comply with judicial orders or decisions against it. In particular, concerning the constructive expropriation rule, the European Court had reservations as to the compatibility with the requirement of lawfulness of a mechanism which, generally, enables the authorities to benefi t from an unlawful situation in which the landowner is presented with a fait accompli.56 The European Court criticized the application of the rule on constructive expropriations that resulted in arbitrary outcomes depriving litigants of effective protection of their rights. The occupation of private land in order to carry out building work that took place without an expropriation order and without compensation infringed Article 1 of the Protocol No. 1 ECHR. The European Court also underlined the insuffi cient compensation awarded by the Italian law (in particular by Article 5-bis, subsection 7-bis, of Law No. 359/1992) to the individuals for the deprivation of their property in the constructive expropriation proceeding. Strasbourg case law focused, in the light of proportionality principle, on checking the existence of a fair balance between the demands of general interest with the protection of the individual’s right to property. Such a balance is not struck when the unlawful deprivation of the private property is paid by the same compensation due on formal expropriation, using a criterion lower than the market value of the land. It is precisely on this issue that the Italian Constitutional Court in the judgment No. 349 has followed the European case law and declared unconstitutional the Article 5-bis, paragraph 7-bis, of the Law No. 359/1992. The provision did not grant an adequate mechanism of compensation to the full market value of the property. For this reason the Constitutional Court found it in contrast with Article 1 of the Protocol No. 1 ECHR and thereby in breach of the Article 117, paragraph 1, of the Italian Constitution. After the constitutional judgment, the already mentioned Finance Act 2008 (Law 24 December 2007, No. 244) has reformed Article 55 of the Code of expropriation provisions, providing that the compensation in any case of constructive expropriation must be

55 But the legislative reform does not indicate the time within the deed of expropriation must be issued by the public authority. 56 On the European case law see in particular the judgment ECtHR, 17 May 2005, Scordino v. Italy and the following judgment for the application of Art. 41 ECHR, 6 Mar. 2007, Scordino v. Italy; ECtHR, 16 Nov. 2006, Ippoliti v. Italy; ECtHR, 19 Oct. 2006, Gautieri v. Italy, all in (all documents are in French only). 108 EUROPEAN PUBLIC LAW awarded at the full market value of the expropriated land.57 Therefore that criterion now applies to every constructive expropriation proceeding, started both before and after the entry into force of the Code (30 June 2003). In the judgment No. 349 the Italian Constitutional Court did not refer to the more general issue of the compatibility of the ‘constructive expropriation’ mechanism with the guarantee of the peaceful enjoyment of possessions laid down in Article 1 of Protocol No. 1 ECHR and the rule of law principle recalled in this regard by the European case law. Recent Italian administrative case law pointed out that the reform of Article 43 of the Code of expropriation provisions has transformed the indirect expropriation rule in a way that complies with the Convention guarantees. The need for a deed of expropriation to state that taking possession of the land by the public administration, which has to be communicated to the private owner after a complex evaluation of the public interest to the expropriation, is considered by the Council of State a consistent element of the new legislation with respect to the Conven- tion rights, in particular with Article 1 of Protocol No. 1 ECHR.58 The European Court has not decided yet any cases under this new legislation. In its latest judgments the Strasbourg Court has already noted incidentally that the amendment is not completely in conformity with its case law, in particular in the light of the respect of the rule of law principle. According to the Court, as already mentioned, the ﬁ rst and most important requirement of Article 1, Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. Although provided now in a statutory provision, the constructive expropriation mechanism, which generally enables the authorities to beneﬁ t from an unlawful situation, is considered by the Court not fully compatible with the requirement of lawfulness. The constructive expropriation, in the words of the European Court, ‘que ce soit en vertu d’un principe jurisprudentiel ou d’un texte de loi comme l’article 43 du Répertoire» «ne saurait donc constituer une alternative à une expropriation en bonne et due forme’.59

57 Originally Art. 55 of the Code of expropriation provisions, in giving a criterion for the constructive expropriation compensation, referred to Art. 37 of the Code, which, as already seen, used a formula on the refund for lawful expropriation (market value of the land plus the total of annual ground rent multiplied by the last ten years, divided by two, minus a 40% deduction) considered by the Constitutional Court in the previous judgment No. 348/2007 in breach of Art. 1 of Protocol No. 1 ECHR, and therefore in contrast with Art. 117, para. 1, of the Italian Constitution. 58 See in particular Council of State, Section IV, 16 Nov. 2007, No. 5830 and 30 Nov. 2007, No. 6124, available from the ofﬁ cial site of the Italian Council of State , which refer to Art. 43 of the Code of expropriation provisions in order to prevent future condemnations for violation of Art. 1 of the Protocol No. 1 ECHR. 59 ECtHR 12 Jan. 2006, Sciarrotta v. Italy, in , § 71, available in French only; similarly, among the others, ECtHR 20 Apr. 2006, Sciscio v. Italy, and 18 mar. 2008, Velocci v. Italy, both in , available in French only. See also the Interim Resolution ResDH (2007)3, adopted by the Committee of ministers of the Council of Europe on 14 Feb. 2007, in , according to which ‘The procedure provided by Article 43 is not an alternative to the ordinary procedure provided for expropriation and thus is not generally applicable: on the contrary it is an exceptional measure to be used only in case of demonstrably urgent public interest» and in any case «under no circumstances may acquisition of property be considered automatic on the grounds that public works or other transformations have been carried out’. NEW STATUS FOR THE ECHR IN ITALY 109

9. Final Remarks

After the two judgments of the Constitutional Court, the Italian Council of State, which traditionally did not refer to the European Convention rights and to the Strasbourg Court’s decisions in its case law, held in a recent judgment that the ‘indirect expropriation’ rule, as formulated in national case law before the reform provided by the Code of expropriation, must be considered in contravention of the ECHR. The Italian administrative court for the fi rst time recognized that the European Convention has a ‘direct relevance’ in the domestic law through the provision of Article 117, paragraph 1, of the Italian Constitution.60 In a national context, in which domestic courts seemed to be more inclined to refer to the Italian constitutional standards than to the European ones in protecting human rights and fundamental freedoms, the two judgments of the Constitutional Court has offered a new perspective. In this regard one may fi nally note that the value of the revolutionary judgments of the Constitutional Court has been not only to fi nd a solution for the compensation payable for lawful or unlawful expropriation in conformity with the European case law solutions. The value has been mostly to fi nd a new constitutional way for fi nally improving Convention’s rights in Italian law. Through the ‘door’ opened up by reference to Article 117, paragraph 1, of the Italian Constitution, the Constitutional Court has defi nitively created the basis for a direct and autonomous link between the Italian legal order and the Convention system: a pivotal step in order to realize a more effective multilevel cooperation in the safeguard of human rights and fundamental freedoms in Europe.61

60 See in particular the aforementioned Council of State, Section IV, 30 Nov. 2007, No. 6124. The new position of the Council of State is revolutionary if we think about its previous case law, according to which the administrative court continue to give the Convention just the force of an ordinary statute. See the already quoted Council of State, Section IV, 24 Mar. 2004, n. 1559, and 10 Aug. 2004, n. 5499. 61 About the multilevel protection of human rights in Europe see, among the others, C. Pinelli, ‘Sul trattamento giurisdizionale della CEDU e delle leggi con essa conﬂ iggenti’, in ; C. Eckes, ‘Does the European Court of human rights provide protection from the European Community? – The case of Bosphorus Air- ways’, European public law (2007): 47; C. Kombos, ‘Fundamental rights and fundamental freedoms: a symbiosis on the basis of subsidiarity’, European public law (2006): 433; F. Sorrentino, ‘La tutela multilivello dei diritti’, Rivista italiana diritto pubblico comunitario (2005): 79; I. Pernice, ‘Multilevel constitutionalism and the Treaty of Amsterdam: European constitution- making revisited?’, Common market law review (1999): 703; R. Caranta, ‘Judicial protection against Member States: a new jus commune takes shape’, Common market law review (1995): 703.

‘Free Speech is not Valued if only Valued Speech is Free’: Connolly, Consistency and some Article 10 Concerns

Paul Wragg*

This article suggests that different free speech principles apply in cases involving ‘journalists’ compared to ‘non-journalists’, as in Connolly v. DPP. Strict principles apply when a journalist’s right to speak is threatened because the media exercise a valuable public watchdog role worth protecting even when competing interests exist. When non-journalists speak the same strict principles are absent even though speech of similar public interest may be involved. The justifi cation for allowing interference is that such extreme and unpopular speech is not suffi ciently valuable. This distinction, though superfi cially appealing, is troubling, not least because non-journalists might also act as public watchdog.

1. Introduction

Article 10 of the European Convention on Human Rights,1 which is given domestic effect by the Human Rights Act 1998,2 declares that everyone has the right to freedom of expression.3 The Article itself is thinly worded both as to its substance and operation, which is entirely appropriate for a clause of supranational origin; it is for the UK judiciary to interpret and develop the clause according to the tastes and needs of the UK legal system and its people.4 Yet it remains debatable whether the principle behind Article 10 is being developed in a manner which shows that free speech is valued. Recently, it has been said that the UK judiciary’s approach to free speech ‘remains heavily under-theorised’.5 In grappling with what is a large and complicated concept, the

* Lecturer in Law, Durham Law School, University of Durham. The author is grateful to Professor Colin Warbrick and Dr Elizabeth Wicks, both of the University of Birmingham, for their helpful comments and encouragement with earlier drafts of this article. Thanks also to the anonymous assessor whose thoughtful comments and suggestions proved very useful. The usual disclaimer applies. 1 ‘the Convention’. 2 ‘the HRA’. 3 This article makes no distinction between the terms freedom of speech and freedom of expression. As Professor Barendt has noted, there is no evidence that courts draw any distinction between the two terms either, (Eric Barendt, Freedom of Speech, (Oxford University Press, 2nd edn, 2005), 75). 4 It is acknowledged that this point is debatable and, certainly, the UK judiciary are not in total agreement with such a view, Lord Bingham in particular: see R (Animal Defenders International) v. Secretary of State for Culture, Media and Sport (2008) UKHL 15 and compare the judgments of Lord Bingham [37] with Lord Scott [44-45]. For an excellent discussion of s. 2, HRA and varying judicial approaches to it see: Elizabeth Wicks, ‘Taking Account of Strasbourg?’, European Public Law 11, no. 3 (2005): 405. 5 Ivan Hare, ‘Crosses, crescents and sacred cows: criminalising incitement to religious hatred,’ Public Law (2006): 521, 526.

Wragg, Paul. ‘Free Speech is not Valued if only Valued Speech is Free’: Connolly, Consistency and some Article 10 Concerns’. European Public Law 15, no. 1 (2009): 111-132. © 2009 Kluwer Law International BV, The Netherlands 112 EUROPEAN PUBLIC LAW judiciary has been accused of ‘baffl ing or, to be frank, obscure’ reasoning.6 The purpose of this article is not to chart the development of the principle or the general adequacy of its articulation so far since, given the complexity of free speech theory,7 the confi nes of an article would be unlikely to do justice to such an enormous task. Instead, this article seeks to draw attention to two classes of speaker, which appear to have been created by the UK courts, for which two different standards of free speech right seem to exist. These speakers are termed, for the convenience of this article, the ‘journalist’ and the ‘non-journalist’. By ‘journalist’ it is meant those reporting for the traditional print and television media, no distinction is made as to whether this is at a regional, national or international level. No such distinction tends to be made by the judiciary and neither do judges tend to specify what is meant by the term ‘media’ or ‘press’ though, frequently, reference might be made to traditional forms of reporting and, likewise, the media parties involved in litigation tend to be from these traditional sources. ‘Non-journalists’ are those not classifi ed as members of the ‘media’ or ‘press’. The distinction is designed to highlight what this article argues are the dangers of classify- ing everyone else, whether implicitly or explicitly, as ‘non-journalists’. It will be argued that those deemed ‘non-journalists’ do not enjoy the benefi t of the same free speech right as ‘journalists’. Yet this is a mistake, as it will be argued, since within this neglected category will be political pressure groups, concerned politically-minded individuals and the fast evolving culture of ‘bloggers’: ‘non-journalists’ who capture their thoughts and emotions about everyday issues and events on personal (or professional) websites. It will be argued that these non-journalists should enjoy the same free speech rights as journalists since they too may contribute to the public watchdog role traditionally reserved for ‘journalists’. Of bloggers, the actions of American blogger Mayhill Fowler prove that it is possible for individual non-journalists to command the attention of the public and meaningfully contribute to the public watchdog role despite the lack of comparable resources. It was Fowler, after all, who published Barack Obama’s comment from a fund- raiser that neglected, small town working-class communities are ‘bitter’ and ‘cling to guns and religion’.8 Fowler’s report caused a media frenzy which opponent Senator Hillary Clinton sought to use to her advantage.9 The existence of these two classes of speaker will be highlighted by comparing two sets of cases, with particular reference to two decisions, involving the non-journalist expressing unpopular political ideas and the journalist reporting celebrity gossip. It will be argued that the present duality in approach that these cases suggest is a direct consequence of free speech cases being determined, arbitrarily, on the value that the speech or speaker is said to have or serve. This practice is troubling since it tarnishes, if not defeats,

6 Eric Barendt, ‘Free speech and abortion’, Public Law (2003): 580, 581. 7 For a cynical but useful view on whether the principle of free speech can ever be adequately expressed, see Paul Horton and Lawrence Alexander, ‘The Impossibility of Free Speech Principle’, Northwestern University Law Review (1983): 1319. 8 . 9 For example see . FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 113 the unconditional term ‘everyone’ in Article 10 and yet this practice, if it is a conscious decision, does not seem to have been adopted for reasons that appear desirable or, even, developed. This article argues that, irrespective of the merits of the UK judiciary’s articulation of free speech principle so far, Article 10 rights should be applied uniformly and consistently irrespective of the speaker’s identity or profession. Before discussing these points, it is noted that some might say celebrity gossip claims and offensive political speech prosecutions do not bear comparison since the issues in each are so different. In the former, it is for the celebrity to put up a decent ‘privacy’ claim under Article 8 before the media must defend itself under Article 10. A spate of recent cases has seen the celebrity unable to do so, thus the free speech claim (and its nature) is not explored.10 This may be contrasted to the latter where establishing the free speech claim is pivotal. Likewise, in the celebrity gossip claim, where the Article 8 claim is viable, it is for the judiciary to balance two competing but equal rights11 and since privacy is also regarded as a concept that is not yet fully articulated12 it is perhaps to be expected that some unusual decisions may occur as the interplay between the terms is explored and mapped out. With offensive political expression, the competing aspect is likely to be the public interest in protecting morals, preserving social order or the ever vague ‘rights of others’13 exception rather than some other Convention right. Likewise, the operation of penal legislation in such cases should not be overlooked. Perhaps this makes a difference. Yet if the right to freedom of speech applies to all then it should be the case that the same principles appear in every decision concerning Article 10, regardless of what is said and who says it, otherwise the claim, inherent in the word ‘everyone’, that the right to free speech is uniformly applied appears doubtful. Consequently, every Article 10 case should bare comparison. Naturally, the argument put here is more sophisticated than simple ﬁ xation on the word ‘everyone’; it will be argued that the principles of Article 10 should be applied consistently. Decisions involving celebrity gossip and offensive political speech make for an interesting comparison since the principles expressed in those cases appear isolated and provide stark contrast, suggesting that the imbued value of the speaker or speech is critical to the decision. Thus, it will be argued, there is a skewed treatment at work in which the importance of the journalist’s free speech right is exaggerated whilst the non-journalist’s is neglected. There may be good reason why Article 10 in the UK

10 John v. Associated Newspapers Ltd [2006] EWHC 1611 (QB); Murray v. Express Newspapers Plc [2007] EWHC 1908 (Ch); [2007] EMLR 22. 11 See, for example, Lord Hope, in Campbell v. MGN [2004] 2 AC 457: ‘the effect of these provisions [Article 8 and 10] is that the right to privacy which lies at the heart of [the action] has to be balanced against the right of the media to impart information to the public. And the right of the media to impart information to the public has to be balanced in its turn against the respect that must be given to private life’. [105]. 12 See, for example, Gavin Phillipson, ‘Judicial reasoning in breach of conﬁ dence cases under the Human Rights Act: Not taking privacy seriously’, EHRLR Supp (Special Issue) 1 (2003); Brian Pillans, ‘Thus far and no further. Are we saying it loud enough?’ Comms. L. 12, no. 6 (2007): 213; Angus MacLean and Claire Mackey, ‘Is there a law of privacy in the UK? A consideration of recent legal developments’, EIPR 29, no. 9 (2007): 389; Richard Caddell, ‘Privacy and conﬁ dential documents – the ‘secret’ diary of Prince Charles: Associated Newspapers Ltd v. His Royal Highness the Prince of Wales’, Comms. L. 12, no. 2 (2007): 68. 13 See discussion below. 114 EUROPEAN PUBLIC LAW should be developed in this way but those reasons are neither forthcoming nor obvious. Instead, it seems we are without a developed free speech principle, which after eight years of the HRA is most disappointing.

2. Connolly v. DPP14

In the recent case of Connolly, a sole protester lost her appeal against conviction for sending graphic pictures of aborted foetuses to three pharmacies which stocked the ‘morning after’ pill. This behaviour was found to be ‘grossly offensive or indecent’ by the Crown Court and so prosecution under the Malicious Communications Act 1988 followed. The Divisional Court, dismissing the appeal, found that the right of Mrs Con- nolly under Article 10(1) to express her deeply held belief that abortion was murder did not outweigh the ‘rights of others’ exception in Article 10(2), including the pharmacy workers’ ‘right not to have sent to them material of the kind that she sent when it was her purpose, or one of her purposes, to cause distress or anxiety to the recipient’.15 The outcome of this appeal is consistent with those in ProLife,16 Hammond,17 Norwood,18 and Percy,19 which also involved suppression of (and, in most, conviction for) ‘insulting’ expression. Yet, though the court found the behaviour insulting, and mostly for manifest reasons, in each there was clear political behaviour involved that should not be overlooked. In Connolly and ProLife, the expression concerned abortion. In Hammond, it concerned homosexuality. In Norwood, it was immigration and/or national security fears and, in Percy, it concerned the American armed forces in Britain. Whilst in Norwood and Hammond the views expressed were particularly odious and in Connolly and ProLife shocking such reasons ought not to prohibit free speech protection, as European Court of Human Rights decisions have encouraged20 (though not, necessarily, implemented).21

14 [2007] EWHC 237 (Admin). 15 Ibid., [28]. 16 R. (ProLife Alliance) v. British Broadcasting Corporation [2003] UKHL 23; [2004] 1 AC 185: See Eric Barendt, ‘Free Speech & Abortion’, supra, n. 6. 17 Hammond v. DPP [2004] EWHC 69 (Admin), The Times, 28 Jan. 2004 in which a street preacher was convicted for speeches and signs that conveyed the message homosexuality was morally wrong. See discussion in Andrew Geddis, ‘Free Speech Martyrs or Unreasonable Threats to Social Peace? – ‘Insulting’ Expression and s. 5 of the Public Order Act 1986’, (2004) PL 853. 18 Norwood v. DPP [2003] EWHC 1564, The Times, 30 Jul. 2003, in which conviction followed for the display by a BNP regional organizer of a poster in the front window of his house depicting the image of WTC in ﬂ ames with the words ‘Islam out of Britain’ and ‘Protect the British People’ contained within it. See discussion in Geddis, supra, n. 17, and also Ivan Hare, ‘Crosses, crescents and sacred cows: criminalising incitement to religious hatred’, (2006) PL 521. 19 Percy v. DPP [2001] EWHC Admin 1125; [2002] Crim. L. R. 835 in which a sole protestor was convicted for standing on an American ﬂ ag (her own) in front of a vehicle carrying American servicemen. Whilst her conviction was quashed on appeal, it was not done so because her protest was reasonable but rather because the Divisional Court had misdirected itself in its proportionality test including its failure to consider ‘that the accused’s behaviour went beyond legitimate protest’ instead being ‘a gratuitous and calculated insult’. See discussion in Geddis, supra, n. 17. 20 The principle from Handyside v. UK [1976] 1 EHRR 737 is that Art. 10 applies to material that shocks and/ or offends. 21 See Otto-Preminger Institute v. Austria [1995] 19 EHRR 34; Handyside, ibid., where applications involving ‘shocking and/or offending’ material were defeated because, essentially, the material was shocking and/or offending. Though see, more recently, the decision in Malisiewicz-Gasior v. Poland [2007] 45 EHRR 21. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 115

In Connolly, the Divisional Court were satisfi ed that Article 10(1) applied, on the basis that: the sending of photographs … was not the mere sending of an offensive article: the article contained a message, namely that abortion involves the destruction of life and should be prohibited. Since it related to political issues, it was an expression of the kind that is regarded as particularly entitled to protection by Article 10.22 However, the interference was justifi ed under Article 10(2) because it was (i) prescribed by law by the Malicious Communications Act 1988; (ii) was in furtherance of a legitimate aim, that is, the rights of others; and, (iii) was necessary in a democratic society. In ProLife it was found that the ‘legitimate aim’ requirement is not limited to ‘strictly legal rights’,23 which explains why the House of Lords had no concerns with, effectively, inventing one. The idea was expounded that the ‘rights of others’ concept ‘is capable of extending to a recognition of the sense of outrage that might be felt by ordinary members of the public who in the privacy of their homes had switched on the television set and been confronted by gratuitously offensive material’.24 This principle was applied in Connolly . Restriction was necessary because, despite her plea to the contrary, Mrs Connolly was found, at fi rst instance, to have intended to cause distress and anxiety.25 Therefore, Mrs Connolly’s ‘right to express her views about abortion does not justify the distress and anxiety that she intended to cause those who received the photographs’.26 Further, Dyson LJ, delivering judgment, noted that ‘of particular signifi cance is the fact that those who work in the three pharmacies were not targeted because they were in a position to infl uence a public debate on abortion’.27 Expanding on this point, he noted, in any event, even if the three pharmacies were persuaded to stop selling the pill, it is diffi cult to see what contribution this would make to any public debate about abortion generally and how that would increase the likelihood that abortion would be prohibited’28…‘disseminating material of this kind to a number of pharmacists because they sell the ‘morning after pill’ is hardly an effective way of promoting the anti-abortion cause.29

3. A v. B plc30 and Similar ‘Celebrity Gossip’ Cases

Despite the passage of six years and some doubts expressed on certain aspects of it, the Court of Appeal decision in A remains an important source of free speech principles, certainly for interim relief applications, and, as has been said recently, ‘it is right that it should be accorded consideration and respect’.31 Here, the Court, led by Lord Woolf,

22 Connolly, supra, n. 14, [14]. 23 ProLife, supra, n. 16, [91]. 24 Ibid. 25 Connolly, supra, n. 14, [4]. 26 Ibid., [32]. 27 Ibid. 28 Ibid. 29 Ibid., [31]. 30 [2003] QB 195. 31 John, supra, n. 10, [8]. 116 EUROPEAN PUBLIC LAW endorsed the type of strong principles that any free speech advocate would welcome. Yet, even for the advocate, it is perhaps troubling that they were used to ensure the world knew of, (then) Premiership footballer, Garry Flitcroft’s extra-marital affair with two women. In making its decision, Flitcroft’s chief concern that the article would have an immediate and devastating effect on his wife and young family was found to be something the Court was in no position to rule upon.32 The Court found that ‘the degree of confi dentiality to which A was entitled, notwithstanding that C and D did not wish their relationships with A to be confi dential, was very modest’.33 Therefore, although a prima facie privacy claim might be made at full trial, it was not convincing that such would justify suppressing the free speech claims of B, C and D.34 The Court resisted the notion that details of the affair were not in the public interest, noting that: it is not self-evident that how a well known premiership football player...chooses to spend his time off the football fi eld does not have a modicum of public interest. Footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example.35 The Court also found the viability of the media as a commercial entity to be relevant. It stressed, ‘the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest’.36 The principal doubts expressed on this case may be said to relate to the defi nition of public interest used, the notion of ‘involuntary role model’ that was applied and the relevance of the media’s commercial viability to the decision. Arguably, Lord Woolf’s low level application of ‘public interest’ is unsustainable given the decision in Jameel,37 in which the House of Lords considered the meaning of the term in the context of the qualifi ed privilege defence to a defamation claim. Their Lordships noted that this defence stems from the general obligation of publishers to report matters of real public interest which the public has a general entitlement to receive. As Baroness Hale suggests, the test of ‘public interest’ is not of a minimal standard in these circumstances: a real public interest…is very different from saying that it is information that interests the public – the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no one could claim any real public interest in our being told about it.38

32 A, supra, n. 30, 217. 33 Ibid. 34 Of C and D, the Court commented that ‘although … we would not go so far as to say there can be no conﬁ - dentiality where one party to a relationship does not want conﬁ dentiality, the fact that C and D chose to disclose their relationships to B does affect A’s right to protection of the information. For the position to be otherwise would not acknowledge C and D’s own right to freedom of expression,’ ibid. 35 Per Lord Woolf, ibid. 36 Ibid., 208. 37 Jameel v. Wall Street Journal [2006] 2 AC 465. 38 Ibid., [147]. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 117

A universal application of this approach has much to commend it, not only from a privacy perspective in that it would protect citizens (not just ‘celebrities’) from fanciful public interest claims by journalists but also from a free speech stance since, as Jameel confi rms, a matter of real public interest permits certain false statements to made as long as the test of responsible journalism has been met.39 It would be a lot less pressing to insist such inaccuracies were justifi able if the public interest test was of a lesser degree. A differently composed Court of Appeal in McKennitt40 suggested that role model status, and the enhanced levels of responsibility that it is said to bring, is inappropriate for those who fi ercely guard their privacy with ‘the iron safeguard of a chastity belt’41 as Ms McKennitt did. The Court in McKennitt,42 also doubted the soundness of both an ‘involuntary role model’ principle43 and the view ‘that weight must be given to the commercial interest of newspapers in reporting matter that interests the public’.44 That aside, the fi nding in A that media ‘exposure is legitimate to demonstrate improper conduct or dishonesty’45 holds good. In A, Lord Woolf also stated that any interference with the press has to be justifi ed because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest.46 Eady J, a leading high court judge and, seemingly, fi rm proponent of greater privacy protection in the law,47 recently described this view as a ‘general statement of law that

39 This test requires the media to demonstrate that reasonable steps had been taken to verify the publication. See, in particular, ibid., [111-112] and [137]. 40 McKennitt v. Ash [2006] EWCA Civ 1714. 41 Ibid., [6], per Buxton LJ. 42 Ibid., [60]-[66]. 43 Ibid., [65]. 44 Ibid., [66]. 45 Ibid., See, for example, Campbell, supra, n. 11, where Naomi Campbell had acted immorally by lying about her involvement with drugs and by being hypocritical in her condemnation of other models that did use drugs. That she was photographically captured attending a Narcotics Anonymous meeting, where she sought help for her troubles, redeemed her position enough to split the House of Lords decision in her favour. Ultimately, the moral value of her rehabilitation would seem to have outweighed the media’s moral crusading in exposing her hypocrisy. By contrast, Ms McKennitt had not ‘behaved disreputably or insincerely in any way’ and so succeeded in her claim (McKennitt, supra, n. 40, [68], Buxton LJ affi rming the fi rst instance fi nding of Eady J.). Likewise, in HRH Prince of Wales, the intended publication of His Royal Highness’s journal, detailing his private thoughts on the handover of Hong Kong to China, did not outweigh the privacy claim since ‘there was no question of exposure of any kind of wrongdoing or of hypocrisy’ in publication (HRH Prince of Wales v. Associated Newspapers Ltd [2006] EWCA Civ 1776, [137]). 46 A, supra, n. 30, 205. 47 Mosley v. News Group Newspapers Ltd (2008) EWHC 1777 (held, no genuine public interest in clandestine sensa- tionalist reporting of FIA chief’s sexual proclivity); P v. Quigley (2008) EWHC 1051 (held, no conceivable public interest in allowing M, an individual, to write a ‘fi ctional’ account detailing sexual antics of P & Q, two other individuals); Prince Radu of Hohenzollern v. Houston (2007) EWHC 2735 (held, free speech claim failed because journalist had not written a balanced account and had made serious allegations without the opportunity to respond being given); CC v. AB (2006) EWHC 3083 (an injunction granted to prevent disclosure of an adulterous affair; there was not necessarily any genuine public interest in the story and it was relevant that wife was acting out of spite or in revenge) cf. A v. B plc, supra, n. 30; X v. Persons Unknown (2006) EWHC 2783 (injunctive relief granted to a couple in public eye going through marriage diffi culties), McKennitt v. Ash, (2005) EWHC 3003 (QB) (in which he found for Ms McKennitt, a decision reaffi rmed on appeal, see discussion above). Incidentally, although not an Art. 8 decision, Eady J decided against Wall Street Europe Sprl in the fi rst instance decision of Jameel (2004) EWHC 37, fi nding, instead for the prominent Saudi Arabian businessman and his company who had been accused by the Defendant of being monitored by the central bank of Saudi Arabia in case funds were transferred to terrorist organizations. 118 EUROPEAN PUBLIC LAW remains valid’.48 Thus, the success of the media’s free speech claim may not depend on establishing a public interest: ‘in other words, it is not necessary to demonstrate, in the case of a tabloid publication in particular, that the contents of an article or the content of photographs is desirable in the public interest’.49 Therefore, the question of public interest would seem to be a double-edged sword for the media. Whilst the absence of public interest does not (necessarily) affect the free speech claim (though it may assist the privacy claim), the presence of public interest most likely strengthens it (whilst also weakening the privacy claim by the same degree).

4. The Practice of Judgments Based on Value

In approaching the question of permissible interference, the European Court of Human Rights endorses what has been called a taxonomical approach50 to free speech in which speech is classifi ed in a hierarchical fashion. At the top of the list is political expression followed by artistic expression then commercial expression. The European Court of Human Rights is content that differing standards of justifi ed interference may be applied to each.51 Yet, as Lord Hoffmann has made clear in In Re McKerr, in interpreting and applying the Convention rights, ‘their meaning and application is a matter for domestic courts, not the court in Strasbourg’.52 The UK judiciary, therefore, has the opportunity to develop the free speech principle in such a way that it does not decide cases based on arbitrary value determinations of the speech or speaker involved. As A and Connolly (and other cases involving unpopular speech) suggest, the UK judiciary is yet to avail themselves of this opportunity. Amongst other reasons, it should seek to do so since the practice of attributing a value to speech behaviour is manifestly unsafe. The value that an audience, any audience, may derive from speech behaviour will vary and, therefore, there is a signifi cant danger that the judiciary’s estimation of that value does not represent all the manifold assessments that the audience may make. Thus, how can the judiciary be sure that its assessment of value is, in any way, reliable? It has been said by American scholar Cass Sunstein that ‘it is impossible to develop a system of free expression without making distinctions between low and high value speech, however diffi cult and unpleasant that task may be’.53 The truth of this observation has been severely doubted by others54 but, regardless, it may be said that given the unreliability of an approach to free speech based on value, the UK court should consider more thoroughly whether an alternative

48 John, supra, n. 10, [8]. 49 Ibid. 50 Tony Martino, ‘In conversation with Professor Eric Barendt: hatred, ridicule, contempt and plain bigotry’, Entertainment Law Review (2007): 48, 51. 51 For example, see Casado Coca v. Spain (1994) 18 EHRR 1. See also, Harris, O’Boyle & Warbrick, Law of the European Convention of Human Rights, (Butterworths, 1995), 397. 52 In re McKerr [2004] 1 All ER 1049, [65]. 53 Cass. R. Sunstein, ‘Low Value Speech Revisited’, Northwestern University Law Review 83 (1989): 555, 557. 54 In particular, see Larry Alexander, ‘Low Value Speech’, Northwestern University Law Review 83 (1989): 548. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 119 approach would be desirable. In any event, it may be said that whatever system is adopted, it should be applied consistently. It may also be questioned whether, in making such judgments based on value, the UK courts are consistently approaching the issue from the same perspective. In a case like A it would seem that the court had the readers’ (or audience’s) perspective (as well as the speaker’s) fi rmly in mind, whilst in a case like Connolly, it would seem that the bystander’s perspective55 was dominant.56 Admittedly, the question of which perspective should govern the judiciary’s development of Article 10 is a more complex issue than can be discussed in this article but, in any event, it may be said, likewise, that whichever perspective is considered critical, that perspective should be applied consistently. This is in keeping with the wording of Article 10, which protects the right to receive information in addition to the right to distribute it. However, the approach undertaken in Connolly suggests this right to receive is limited to information that the audience wishes to receive which seems somewhat at odds, facially at least, with the idea that Article 10 extends to material that shocks and offends57 especially in the context of political speech.58 Article 10 thus contains an inner confl ict between speaker and audience and makes the question of which interest should dominate (the speaker’s or audience) an important one to decide. In one sense, the confl ict is diminished if the audience interest is not used in competition with the speaker’s but, instead, is used to bolster it. However, such accom- modation further emphasizes the division between popular and unpopular speech so that popular speech enjoys the benefi t of (potential) extra protection based on the audience’s willingness to receive whilst unpopular speech gains no such protection. Thus the audience impact may swing accordingly from a positive justifi cation to protect speech under Article 10(1) to a negative justifi cation to interfere with it under Article 10(2) based on whether the audience appreciates what it hears or not. This has an obvious, direct bearing on how robustly the principle of free speech can be protected. It may be said that since the recipients in Connolly were members of an unwilling audience they could be considered ‘bystanders’. Admittedly, the impression of detachment inherent in the term ‘bystander’ may seem at odds with the facts of Connolly since the pharmacy workers were not detached from the speech but, rather, were the target of it. However, given that the term ‘bystander’ in a free speech context is applied to those who hear ‘speech’ without necessarily wishing to, the label may be accurate. Thus in Connolly, it would seem the bystander’s third party interest was given greater consideration than the speaker’s, unlike in A. An argument in favour of the audience and bystander interests being diminutive of the speaker’s is advanced below.

55 See discussion of bystander interests in Thomas Scanlon, ‘A Theory of Freedom of Expression’, in The Philosophy of Law, ed. R. M. Dworkin, (OUP, 1977), 153, (which, coincidentally, follows an article by J. Finnis entitled ‘The Rights and Wrongs of Abortion’, 129). 56 For a useful discussion of how free speech theories may be constructed according to these competing perspectives, see Barendt, Freedom of Speech, supra, n. 3, 23-30. 57 Handyside v. UK [1976] 1 EHRR 737. 58 E.g, Gunduz v. Turkey [2005] 41 EHRR 5. 120 EUROPEAN PUBLIC LAW

The reference to consistency in the above points does assume that the judiciary are not applying the free speech principle consistently at present. Admittedly, this charge needs to be answered. Ignoring, for the moment, any differences in procedural issues involved, it is submitted that the principles of free speech expressed in the cases discussed above are markedly different. Though it may be said that a value is placed on the speech in each instance, perhaps the clearer impression gained is that the journalist would seem to have a more robust right than the non-journalist, for reasons that will be outlined shortly. Yet, assuming for the moment that this is true, it is unclear why this should be so. Article 10 gives no special standing to the media and neither does European jurisprudence. Indeed, in Steel and Morris v. UK59 the government’s argument that the Applicant protesters against McDonald’s restaurants should not attract the high level of protection afforded to the media on account of being non-journalists was rejected by the European Court of Human Rights as irrelevant.60 Admittedly, the European Court of Human Rights has said much about the vital role that the media has in society as a public watchdog, as in Jersild v. Denmark,61 and more recently Tonsbergs Blad62 but it tends to make such statements in circumstances where journalists are imprisoned or fi ned for reporting on matters of genuine public interest (as in Jersild, where the journalist was convicted and required to pay a fi ne or else be imprisoned) and not, as Steel and Morris confi rms, in order to make some distinction between journalists and non-journalists in its interpretation of Article 10. Thus the Court gives no special status to journalists within the term ‘everyone’. This assessment bears some comparison with the pre-HRA UK approach. In Spycatcher, Sir John Donaldson MR was forthright on the point: I yield to no one in my belief that the existence of a free press…is an essential element in maintaining parliamentary democracy and the British way of life as we know it. But it is important to remember why the press occupies this crucial position. It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public.63 Likewise Bingham LJ (as he then was) stated, in the same case, ‘neither the press nor any other medium of public communication enjoys (save for exceptions immaterial for present purposes) any special position or privileges’.64 The rhetoric of A, as reiterated in John,65 suggests that any interference with a journalist’s exercise of free speech must be justifi ed because it will inevitably have some effect on their ability to act as public watchdog (‘the A principle’). If there is no special status for journalists then it should be that this principle can be applied universally. In the following sections, a number of points will be made to test this assertion and so discuss

59 [2005] EMLR 15. 60 Ibid., at [89]. 61 [1995] 19 EHRR 1. 62 Tonsbergs Blad as and Haukom v. Norway (2008) 46 EHRR 30, [82]. 63 Attorney General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 at 183. 64 Ibid., at 218. 65 Supra, n. 10. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 121 what impact the consistent application of the A principle would have for non-journalists’ free speech right. In doing so, it will be argued that the A principle should be applied consistently and, thus, the common law should not be developed to give journalists a special status under Article 10. To make these points, it will be considered, fi rst, whether it may be said that the fi rst part of the A principle – that any interference must be justifi ed – already operates for non-journalists and so whether it is misleading to suggest some distinction is operating; second, and linked to this fi rst point, whether the reference to ‘public watchdog’ renders application of the A principle to the non-journalist inappropriate; and, third, whether the operation of certain procedural issues require different treatment for the journalist and non-journalist.

4.1. Interferences must be justiﬁ ed

It is, fi rst, useful to explore a potential rejoinder that application of the A principle would have no bearing on the outcome of a case like Connolly. In A, the interference with the media’s free speech was not justifi ed though it could be said that this was due to the facts not the principle behind it and had the facts permitted otherwise (e.g., if they had been closer to those in Campbell66) then an interference with the media’s free speech may have been justifi ed. In Connolly, the interference with Mrs Connolly’s expression was justifi ed because she had acted in a manner that deeply offended and/or disturbed a number of people. Thus, there is no distinction operating between the right of Mrs Connolly and newspaper B; Mrs Connolly was not deprived the right to free speech but the right to behave in a harmful way. So where is the problem? The problem, so to speak, is with the identifi able though largely unspoken assumptions and perceptions which frame the court’s approach to these free speech cases and, thus, promotes a different treatment of journalists compared to non-journalists. It is submitted that the infl uence of these assumptions and perceptions about each individual’s Article 10(1) right underpins the method by which judges reach their determinations on the applicability of Article 10(2). These assumptions and perceptions, at work, manifest themselves, for the media, in the grandiose term ‘public watchdog’. This gives the journalist a certain advantage: the media is a public watchdog and, thus, an important speaker. Any interference affects the journalist’s ability to act in this way and, thus, the qualities of the particular news item are irrelevant to determining whether this interference is justifi ed. This value is attributed directly to the journalist (not his output) but there is no equivalent consideration applicable for the non-journalist. Naturally, the notion that the quality of the journalist’s speech is irrelevant is an important principle. Yet the decisions in Connolly and ProLife appear most troubling because they suggest that the quality of the speech (or speaker) is relevant when determining the right for non-journalists. In Connolly, for example, the court thought it

66 Supra, n. 11. 122 EUROPEAN PUBLIC LAW important to say that Mrs Connolly’s speech could not have achieved the ends she intended. Thus the quality of the speech was relevant to the justifi ability of interfering with it. This is in stark contrast to A, where the Court found quality to be a matter for the consumer not the court.67 This aspect of the decision in Connolly, in particular, should not sit well with the free speech advocate. The guiding principle should be that if the speaker chooses an ineffective method to speak, by yelling from some lonely outcrop, that is entirely a matter for them. Instead, it seems that, when considering the justifi ability of interference, a different, higher standard applies for journalists compared to non-journalists. Yet, it may be argued, the interference in Connolly had little to do with quality (despite the Court’s reference to it) and, instead, related to the willingness of the observer to view the images. As noted above, the ‘audience’ in Connolly were unwilling specta- tors who had had the images thrust upon them. This may be compared to a journalist’s audience who, in buying a newspaper, say, are actively seeking to receive the journalist’s views. In the event of interference, the argument can be put that there are different considerations involved when protecting an unwilling audience and depriving a willing one. This is a valid point. Yet the differences between the two types of recipient seem superfi cial. Consumers of the media may have tacitly accepted, through their freely- made decision to purchase, the risk of encountering information that shocks or offends them. The recipients of Connolly’s information made no such choice. Yet those willing consumers of the media may argue that their decision does not rob them of their sensibilities or opportunity to object. Consider the individual who turns on the television midway through a harrowing report containing a series of shocking images. Though the consumer has agreed to expose themselves to information by switching the television on, there can be no implication of clairvoyance to know how that information will appear and whether shock or offence will follow. Yet there are sound reasons why the media should – perhaps must – provide shocking images if the context requires it as they seek to inform the public of ‘the truth’. There is no real benefi t to insisting upon sanitized news-reporting; the arguments in favour of sanitization to protect the public would give licence to propaganda and misinformation. Likewise, a mature democratic society is expected to have a strong constitution in order to make informed decisions on complex moral issues such as crime, war and health (including abortion).68 Thus, it is in the public interest to be informed, which weakens objections by citizens who feel upset following exposure to such images. It is the right of such individuals not to participate in the democratic process (or part of it) and thus that right is secured by their ability to switch off once they have formed their objection. Hav- ing made this point for the media, on the basis of the public interest in informing society, regardless of whether that society wishes to be informed or not, then it seems plausible

67 See discussion below (n. 75). 68 See, for example, Lord Hoffmann’s speech in R v. Central Independent Television plc [1994] Fam 192 discussed below. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 123 that the same argument can be made for the non-journalist. In those circumstances, the citizen has the same right not to listen and can freely choose to ignore the information they are presented with. There is a difference between being forced to endure prolonged exposure of disturbing information and the choice to disengage following indignation at the initial receipt. Once Connolly’s actions were clear to the pharmacies affected her communications could have been ignored.

4.2. Relevance of the Public Watchdog Function

A further reason why this higher standard for interfering with media speech appears unsafe is that it overlooks or else ignores the capacity of the protester – or any non- journalist – to act as public watchdog. Whilst in Connolly the court acknowledged in passing that Mrs Connolly’s behaviour was political expression, it did not examine whether this imbued Mrs Connolly with the same, or similar, type of public watchdog status that she, presumably, would have had had she been a journalist.69 In such circumstances, it is hard to see how her speech would have been denied Article 10 protection if printed in a newspaper (which would have reached, and so affected, a great many more people than workers at three pharmacies). Further, the argument may also have been put that a mature democratic society is capable of tolerating the type of shock and offence that results from such speech (as above). Admittedly, the court may still have denied protection but given European Article 10 jurisprudence (e.g., Jersild, Tonsberg Blad) that outcome is not pressing and, arguably, it would have involved a fi ner balance than was evident in Connolly. The argument may be put that non-journalists may also act as a public watchdog or public conscience and so the importance of free speech is not peculiar to the media. Though the media can reach a higher proportion of the public (perhaps), including those in a position to affect change, than the individual can, the media may also decline to pursue particular causes because it is not expedient, fi nancially or politically, to do so. The media do not necessarily represent the public in their views. Though, in one sense, the media should be seen as independent and so able to report as they see fi t, inevitably they are driven by market forces, which surely taints their claim to independence. Further, is it still appropriate that the media be considered an adequate representative of the public’s voice? If the populace should maintain a healthy scepticism about what government says, it should also treat a corporate-driven media in the same way. Thus, the populace should be no more inclined to trust the media than the government. Accordingly, the populace requires equal free speech protection for the non-journalist in order to preserve its integrity and independence of thought, ideas and information. A robust system of free speech does not require the media to be given disproportionate protection; it requires unpopular speech to be given protection. As the dissenting judges in Otto-Preminger lamented, ‘there

69 E.g., as in Jersild, supra, n. 61, and Tonsbergs Blad, supra, n. 62. See discussion above. 124 EUROPEAN PUBLIC LAW is no point in guaranteeing this freedom only as long as it is used in accordance with accepted opinion’.70 Also, of the ability of the individual to reach a large audience, the role of notoriety should not be overlooked. Offensive and shocking material may provide the non-journalist with a platform that would otherwise have been unavailable had the speech been ano- dyne. This is particularly important for political behaviour. Despite the suggestion by the court, a letter from Mrs Connolly to her local MP would not necessarily have resulted in the media attention for her cause that she did attract using shock tactics; if anything, this approach would have been more ineffective than her actions. In any event, the notion of ‘effectiveness’ cannot be conﬁ ned to participation in actual political debate. Take the man standing in front of the tank in Tiananmen Square.71

4.3. Procedural differences in determining these cases

Yet what of the procedural differences apparent in celebrity gossip cases and offensive political speech? Do they necessitate some distinction between the types of speaker? As noted, in the former, demonstration of the privacy claim is a prerequisite. For the latter, typically the appellant court is hamstrung by matters of fact decided at fi rst instance, including determinations of intention and whether the behaviour was offensive enough to engage the penal legislation. Additionally, prosecutions that require legislation to be interpreted in accordance with Convention rights raise the politically sensitive issue of compatibility; this is not an issue typically present in celebrity gossip cases. It is not overlooked that in Connolly, penal legislation was in operation. Yet this should not affect the points raised in this article. If the court were to fi nd that such legislation interfered with its ability to apply free speech principles consistently then it should issue a declaration of incompatibility72 if it cannot read the legislation compatibly.73 For both categories, precedent may also dictate the result. Arguably, these matters of procedure can and must be swept away (though, of course, precedent could only be done so at the appropriate level). Section 6 of the Human Rights Act 1998 requires rights to be applied in a manner consistent with the Convention by each level of the court. As Geddis has argued, rather than apply the usual Wednesbury unreasonableness test, the appellant courts should ensure ‘the lower court has applied the correct interpretation…and not merely reached a reasonable decision on the matter’.74 Diffi culties with the term ‘reasonable’ are particularly pronounced in free speech cases, especially those involving unappealing speech, since it may always appear reasonable to

70 Per Judges Palm, Pekkanen and Makarczyk, Otto-Preminger, supra, n. 21, [3] of their dissenting judgments. 71 It could be said this example somewhat contradicts the argument made above since it was the mass media that brought this image to popular attention, without which it would have been an ineffective message, perhaps. However, equally, it could be said that it was entirely because the protestor’s action were so dramatic that the media were interested. Had he stood forlornly holding some banner, it is highly unlikely the media would have been interested. 72 Section 4, HRA 1998. 73 Section 3, HRA 1998. 74 Geddis, supra, n. 17, 867. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 125 deny protection to such speech because others are offended, shocked or insulted as a consequence but, arguably, that ‘reasonableness’ does not make the decision correct.

5. Applying the A Principle to Connolly

If it may be said that it is appropriate to construe the A principle for the non-journalist, the following considers whether such application would have affected the outcome in Connolly. First, the form of speech would be an irrelevant consideration, as it is for the media. As the Court in A concluded: once it is accepted that the freedom of the press should prevail, then the form of reporting in the press is not a matter for the courts but for the Press Complaints Commission and the customers of the newspaper concerned.75 Yet how might this analysis apply to the non-journalist since, admittedly, such are not subject to scrutiny by the Press Complaints Commission. This is an important point although how critical it is may be doubtful given that the ability of the PCC to effectively scrutinize and discipline the media (where necessary) is often criticized as inadequate.76 Newspaper customers are the media’s audience as are anyone who hears the non-journalist’s speech. Like the customer, the non-journalist’s audience can choose to ignore that speech if it disapproves. Admittedly, in Connolly it was not just the form of speech but the level of distress and anxiety caused that tipped the balance. Also, it may be said that the recipients were not able to ignore the speech because they were an unwit- ting audience. This too is an important point, and not one that should be easily dismissed, though of the distress and anxiety caused by exposure, the approach taken in A provides an interesting comparison. Here, Garry Flitcroft argued that publication would cause unnecessary distress and anxiety to his wife and children. In dismissing this concern, Lord Woolf endorsed Lord Hoffmann’s analysis in the Central Television case: Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible.77 It is fair to say these words appear hollow in the context of Garry Flitcroft’s sexual antics but they appear hollower still in light of Connolly. Applying this principle to Connolly, it could have been said, arguably, that societal membership demands a strong constitution for even graphic images if they have political content. Admittedly, the graphic, shocking and unexpected nature of Connolly’s speech cannot be easily dismissed. It could be said that Connolly should have adopted a more

75 A, supra, n. 30, [48]. 76 See Louis Blom-Cooper, ‘Press freedom: constitutional right or cultural assumption?’, Public Law (2008): 260. 77 Central Independent Television, supra, n. 68, 204. 126 EUROPEAN PUBLIC LAW responsible approach to delivering her message and perhaps should have directly approached the media to report on her protest (or her local politician as the court suggested). Yet, the second point that might be made is that such an argument suggests the non-journalist must exercise their free speech right in a particular, restricted, way. Although this position may appear akin to that of the journalist, (who would also be at the whim of his/her editor as to whether publication occurred) arguably, such a requirement weakens the notion of free speech for the non-journalist more than the journalist. The media would have been under no obligation to listen to Mrs Connolly (she may have been dismissed as a crackpot) whereas a journalist would be better placed (though not guaranteed) to have their story seriously considered. Whilst on the one hand it may be concluded this is consistent with the principles of free speech since it is not a right to be heard or a right to demand that protests are actioned, on the other, it is troubling that a protesters outlets for free speech purposes may be so constrained. Third, of the distress and anxiety caused, the judgment suggests some qualitative difference between sending the letters to pharmacies and doctors or politicians instead. The basis of this seems obscure. In favour of it, it could be said that doctors have stron- ger constitutions for this type of material whilst politicians, as the European Court of Human Rights has acknowledged, are taken to have sacrifi ced certain sensibilities in exchange for public offi ce. However, the logic of this position is not entirely compelling. First, if it is permissible for pharmacy workers to object these images then it is diffi cult to understand why doctors and politicians cannot either. European case law confi rms that politicians have a more limited right of objection to speech than others do when they accept public offi ce78 but the principle is usually deployed where politicians object to offensive comments about their reputation and seems rather less appropriate should they object to speech that is offensive per se and has no connection to their reputation. Second, on a practical issue, it should not be overlooked that mail sent to doctors and politicians will undoubtedly be opened by a receptionist or secretary. Likewise, an operative in the post room could have opened the letters in the event Connolly had sent them to the newspaper. In practical terms, it is diffi cult to see the difference between those operatives and the pharmacy workers. Yet, had it been a newspaper or television station that had displayed these images there would have been less scope for arguing that the distress and anxiety to be caused by the images would justify their suppression. In such circumstances, the court could have applied the principle from the Court of Appeal decision in Secretary of State for the Home Department v. Central Broadcasting Limited,79 where Sir Thomas Bingham MR (as he was then) held that it was unnecessary for the families of the victims of a convicted serial murderer to fi nd his interview in a TV documentary distressing since ‘all that anyone has to do is switch off the programme’,80 particularly as it contained an introductory

78 As Malisiewicz-Gasior, supra, n. 21 reiterates. 79 (1993) EMLR 253. 80 Ibid., 271. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 127 warning that some viewers may ﬁ nd the content troubling. Likewise, though it may seem counterintuitive, the argument that distress and anxiety would follow from viewing such images would diminish where the image was put before a larger audience since a greater range of responses and reactions could be envisaged.

6. An Undeveloped Approach to Free Speech

It is important to note, though, that this argument is not intended to say that Mrs Connolly, ProLife or anyone else should be permitted to show deeply disturbing images to whoever they like. It would be abhorrent to suggest they should. Instead, the argument is put that interference with the exercise of the right should be done on a consistent basis so that the same standard applies to the journalist and non-journalist. Determining cases by measuring or attributing a value to either the speech or speaker is inappropriate and, moreover, is inconsistent with that system. Thus, it is disappointing that these principles, from Connolly and A, may be developed in future cases as promoting some rudimentary cost benefi t analysis approach to deciding free speech rights. Judges may assume that the value identifi ed either in, or despite, the effect of the speech is determinative. In this way, the journalist will enjoy the benefi t of a wide margin on account of their ‘public watchdog’ status unless there is something particularly unwhole- some about their behaviour81 whilst the protestor may be forced to self-censor, especially where their speech is generally held to be unappealing, since the value of shocking or offending a great many people will rarely, if ever, be thought to be valuable. Yet the word ‘everyone’ demands equal treatment and so the same principles must apply in all Article 10 cases. It is one thing to have a system of free speech, available to all, which is controlled by rules or standards that may appear too relaxed, too restrictive or somewhere in between. For such a system it becomes a matter of argument whether the level of control exercised by the State is appropriate or not. It is altogether a different affair to have a system that applies relaxed rules to some individuals and restrictive rules to others, so that some individuals are permitted to speak freely but others not, by reference to some overarching argument that value or values are served to society at large by such distinctions. The wording of Article 10 suggests the former system should apply but its application, certainly in the UK, evokes the latter. If the case is to be made for this skewed treatment then the reasons for its appro- priateness in the UK seem largely unarticulated and, where they are barely articulated, they seem outmoded or else opaque. The argument that celebrity gossip should be protected under a free speech clause on account of its connection to the media’s role as public watchdog remains largely elusive. It seems premised on the idea that the media require such fl exibility in order to promote their investigative prowess to uncover corruption, deception or immorality in those that hold power, wealth or fame. Thus, to deny

81 E.g., as in Campbell, supra, n. 11. 128 EUROPEAN PUBLIC LAW journalists in a particular instance would affect, in a detrimental manner, their overall capacity to expose corruption etc., when it counts. Yet, whilst this may be convincing to some – though surely only in principle – it remains diffi cult to see how a Garry Flitcroft-type individual fi ts in. Of course, it is not forgotten that this principle comes with the caveat that journalists should not overstep the mark,82 and may be stopped from doing so, but then we can be assured that they are unlikely to do so on many occasions since the mark seems readily capable of being washed away and redrawn somewhere else whenever the circumstances call for it. So whilst the exposure of illegal drug-taking is past the mark, if done in a manner that is too insensitive,83 that same mark seems to dis- appear where extra-marital affairs – morally but not legally reprehensive behaviour – of the rich and famous are involved.84 Admittedly, the analysis can be spun differently but these are fi ne distinctions that are ultimately built around the idea that a free press – another unarticulated principle by which the Judiciary tend to mean traditional media sources – requires this infl ated power because it acts as a public watchdog. Yet, this idea is in danger of becoming outmoded since it overlooks both the increase of media outlets that have little or no obvious or identifi able interests in pursuing a public watchdog outlook – particularly the magazines that focus solely on celebrity gossip – and it neglects increasing concerns over the commercial viability of the printed media as it battles against internet and 24-hour television stations as the preferred news source for many people. Of this last point, arguably, newspaper editors may feel unable to devote as many column inches to political comment and debate if it is thought that celebrity gossip or commercial advertising will generate more sales. The capacity to act as public watchdog may be compromised as a consequence and thus the idea that any interference affects their ability may be misplaced. Further, in Connolly and ProLife since the message was of a political nature, greater consideration should have been had to the principle that participation in a democratic society requires toleration of opposing views even where they are received as shocking and offending. This is a factor which should transcend any need for effectiveness. As Baroness Hale noted in Campbell, some [types of speech] are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy.85 If freedom of expression extends to behaviour that is shocking and/or offensive how is this to be realized as a right unless offensive political behaviour (in particular) is protected? As Scanlon has noted, freedom of expression requires ‘a good environment for the

82 Jersild, supra, n. 61. 83 Campbell, supra, n. 11. 84 A, supra, n. 30. 85 Campbell, supra, n. 11, [148]. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 129 formation of one’s beliefs and desires’86 so that ideas and information may be cultivated and exchanged; it does not require ring-fencing so that only popular, orthodox or ano- dyne ideas and information are protected. The UK courts should heed the warning from Strasbourg that ‘there is little scope under Article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest’.87 Though the European Court of Human Rights noted that contracting states have a certain margin of appreciation in assessing whether a ‘pressing social need’ exists to justify interference, the court stressed that ‘it goes hand in hand with European supervision [that] the [European] Court is … empowered to give the ﬁ nal ruling on whether a ‘restriction’ is reconcilable with freedom of expression’.88 It is recognized that an important argument for affording the media a wide margin is that otherwise the courts may appear too heavy-handed, causing a ‘chilling effect’ on speech, thus unduly restricting editorial freedom and affecting the media’s public watchdog role. It would not be in the public interest if editors felt inhibited when placing stories concerning matters of genuine public concern. Yet, it may be said that if this is a relevant judicial consideration then there must be an equally pressing and corresponding principle that if the court is too heavy-handed in prosecuting those who voice political concerns (albeit using less than courteous methods) then more people may be dissuaded from passionate dissent for fear of the consequences, which would also not be in the public interest. Though one might be tempted to be dismissive of why unpopular speech should be protected, it is important to note the argument that ‘free speech is of value, precisely because it enables radicals to challenge established orthodoxies and received wisdom, including our conventional understandings of what is tasteful and decent’.89 At a general level, it is troubling that the court may deny protection for speech it dislikes and, moreover, it is troubling that it may apply a different set of rules for the media compared to the individual for reasons that are not entirely clear.

7. Conclusion

It is not enough to say that the media remain an outlet for the Connolly-type protestor who wishes to publicize their cause. There is no guarantee that the media will show any interest in a story and it is probably more accurate to say that the media’s interest in such a story depends entirely on whether they can see a spin or side to it that will suit their (ultimately, ﬁ nancial) interests. Yet protesters like Connolly, who have passionate views on subjects deeply important to them, will still want to have their say regardless of whether the media (or doctors or politicians) are receptive to assisting them. In order to gain public attention, if that was her aim, it is no wonder protesters like Connolly resort to

86 Thomas Scanlon, ‘Freedom of expression and categories of expression’, University of Pittsburgh Law Review (1979): 519, 527. 87 Malisiewicz-Gasior, supra, n. 21, [57]. 88 Ibid., [58]. 89 Barendt, Free Speech and Abortion, supra, n. 6, 590. 130 EUROPEAN PUBLIC LAW drastic shock tactics that are likely to grab the public’s attention, if only through infamy. Naturally, this is not to say that Connolly’s actions were the paradigm example of free speech but, rather, that the public interest inherent in her cause ought not to have been so apparently impotent to her free speech claim. It would not have been so easily ignored if she had been a journalist. This article has sought to show that, at present, there is a duality operating in free speech cases where the free speech right of journalists enjoys a higher level of resistance to justifi able interference than the right of the non-journalist. An overarching solution to the problem is for the UK to determine and implement a fully theorized approach to free speech principle. However, this solution will not be easily achieved. As noted, it is beyond the scope of this article to articulate such, not least because it is a complex task that is not aided by the persistent disagreement within the global academic community of how that theory would appear. Yet this disagreement is largely irrelevant since it does not matter that global academics disagree; it only matters that the UK is able to agree on a unifi ed approach for immediate implementation. Whether this is the judiciary’s task, the executive’s or Parliament’s is, perhaps, debatable. Given that free speech stems from the common law, and may return to it if the next government repeals the Human Rights Act 1998 without replacing it, arguably, the judiciary are not just the best placed to deal with this but are the only government branch to be trusted with the task. Admittedly, some may fi nd this solution inconsistent with our Parliamentary democracy. Yet the inadequacies and, frankly, dangers of allowing the democratic majority to determine the limits of permissible speech have long been recognized: as Mill said, I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justifi ed in silencing that one person, than he, if he had the power, would be justifi ed in silencing mankind.90 The shape of free speech, therefore, must remain exclusively the judiciary’s domain. It is their duty to protect it. Admittedly, it may be overly optimistic to expect the judiciary to agree absolutely on how that unifi ed principle may appear. The Court of Appeal and House of Lords decisions in ProLife91 evidence the signifi cant differences between judges on free speech principle. Yet, should it remain in force, the effect of the Human Rights Act 1998, arguably, is that it requires the judiciary to act as a quasi-constitutional court when determining cases involving Convention rights. From that perspective, the onus is on the judiciary to focus on the development of these Convention rights and the constitutional issues in their application rather than be lead, say, by statutory interpretation and application. Though it may be a diffi cult task to formulate a unifi ed principle, it should remain their task. A more focused solution to the problem highlighted by this article is to suggest that the UK judiciary adopt, as an initial step to a unifi ed principle, a consistent

90 J.S. Mill, On Liberty, (London: Routledge, 1991), (1st edn, 1859), 28. 91 Supra, n. 16. FREE SPEECH IS NOT VALUED IF ONLY VALUED SPEECH IS FREE 131 approach when determining Article 10 cases so that the principles applied are universal to journalists and non-journalists. This does not require acceptance that, particularly, odious political expression has value (it is not hard to argue that it does not) but rather requires recognition of the problem: if the concept of free speech is to be valued then there is no place for judgments based on value. This may require a cultural change. It may require recognition that the need for media outlets to maintain their ﬁ nancial viability may compromise, or it may focus, their effectiveness as public watchdogs. Into this void, should it appear, may step the non-journalist – be that the political pressure group or the politically concerned individual or ‘blogger’ – each of whom may also be equally valuable public watchdogs. These individuals may wish to say things that others do not want to hear, not least because they are not an orthodox source of information. As Lord Denning once said, it may appear there is no public interest to be served in publication ‘but this is where freedom of speech comes in. It means freedom, not only for the statements of opinion of which we approve, but also for those of which we most heartily disapprove’.92 Until that idea is consistently upheld it will remain the case that free speech is not valued when only valued speech is free.

92 X (A Minor) (Wardship: Restriction in Publication), Re (1975) Fam 47, 58.

Book Reviews

Steven Blockmans and Adam Lazowski (eds), The European Union and its Neighbours – A Legal Appraisal of the EU’s Policies of Stabilisation, Partnership and Integration (The Hague: T.M.C. Asser Press 2006) xxxii + 653 pp., ISBN 9067042013, hb £85.00.

In the last few years, external relations have been at the centre of the debate about the development of the European Union. The objective of asserting its identity on the international scene (Articled 2 TEU) became a political imperative which was central to the discussions on the drafting of the ill-fated Treaty Establishing a Constitution for Europe. The ensuing reforms, focused on improving the coherence of the EU’s external action, have survived in the Lisbon Treaty which, amongst others, lays down a set of principles and objectives whose overarching scope covers all the EU’s external trade, economic and political relations. Against this background, the collection of essays edited by Blockmans and Lazowski provide a very useful overview of the relationships between the EU and its neighbourhood. The latter is understood in wide terms – in other words, it is not confined to the scope of the European Neighbourhood Policy, and covers all the non-Member States which are geographically the Union’s neighbours. Its wide scope is one of the strengths of this collection. In their concise and well-written introductory chapter, the editors set out to define what is a theme underpinning the entire collection, namely the multifaceted and multi- dimensional nature of the relationships which the EU has fostered with its neighbours – in the light of the ‘bilateral and multilateral policies, assistance programmes, targeted (trade) measures and (membership) conditionality’, along with the development of the Common Foreign and Security Policy, they point out that ‘every self-declared Europhile would be tempted to conclude that what we are witnessing today is nothing less than the emergence of the first international organization that is able to single-handedly adopt a comprehensive strategy to create a secure, stable and prosperous environment on the European continent’ (p. 18). The chapters which follow set out to assess to what extent this assertion is borne out in the light of the legal rules and principles which shape the EU’s relationship with its neighbours. First, two horizontal chapters sketch the main characteristics of the relevant legal frameworks. In the first one, Ott and Wessel provide an overview of the legal rules and principles which define the EU’s external relations, as set out in the EC Treaty and the Treaty on European Union and interpreted by the Court of Justice. Their contribution focuses on the multilevel nature of these rules and principles and the inevitable complexity which ensues. Shaped by the exercise of their constantly redefined competence, relying upon different sets of rules whose normative implications differ considerably, the EC and the EU, along with their Member States, have gradually developed a system of external relations whose practice raises considerable challenges for their neighbours. In

‘Book Reviews’. European Public Law 15, no. 1 (2009): 135-144. © 2009 Kluwer Law International BV, The Netherlands 136 EUROPEAN PUBLIC LAW the second horizontal chapter, Inglis discusses membership conditionality. She examines the ways in which it has been employed in the past and, briefly, how it is approached in the current accession negotiations. The remaining chapters are vertical in their scope as they focus on the legal relationship between the EU and a specific country or group of countries. A detailed examination of all the chapters is beyond the scope of this short review which, instead, will offer a flavour of the contributions. Lazowski starts off this Part of the book with a detailed examination of the EU’s relationship with the European Economic Area. He describes the various direct and indirect interactions between the parties and how they shape this closest of relationships which the EU has developed with any third set of countries. Whilst referring to cases where the Union’s EEA partners have influenced the content of the EC legislation (p. 120, for instance, with reference to EC rules on maritime oil transport safety), he underlines the very limited impact that they have on EU decision-making. Furthermore, he points out the potential of the EEA ‘to serve as a model arrangement for future relations’ with the EU’s neighbours not on the path for membership (p. 146). In the light of the very distinct political and economic conditions which prevail in the latter, this suggestion would be worthy of further examination. In a concise and comprehensive overview, Lazowski sets out the various rules which shape the ‘enhanced bilateralism (p. 169) underpinning the EU’s relationship with Switzerland. What follows is a useful description of the relations with micro-states, namely Andorra, Monaco, San Marino and the Vatican City (Murray), a topic which is rarely examined in legal literature (except for the Cooperation and Customs Agreement which took more than ten years following its signing to enter into force and is often cited as an example of the problems to which the conclusion of mixed agreements may give rise). As the book was published prior to their accession, the relations with Bulgaria (Lazowski and Vosifova) and Romania (Józon) are described, including the Accession Treaty. The reader would benefit from a more detailed analysis of issues which are still problematic even post-accession, such as corruption and the treatment of minorities.1 The EU’s relations with Turkey are examined along with those with the northern Cyprus (Lenski). As the author refers to the difficulties to which the accession process has given rise (‘Turkey’s path to accession will be a long and winding road’, p. 313), it would be useful and interesting to read about the alternatives to membership, discussion of which has become rather prominent following the election of President Sarkozy. Following the concise and well-written analysis of its relations with the Western Balkans (Blockmans), the EU’s relations with Croatia (Rodin) and the Mediterranean countries (Pieters) are examined, the latter pointing out the lack of foreign direct investment as one of the reasons of the rather limited impact of the relevant policies on these countries. The optimistic note with which the chapter on Israel and the Palestinian Authority

1 For another context, see, for instance, J. Pridham, ‘The EU’s Political Conditionality and Post-Accession Tendencies: Comparisons from Slovakia and Latvia’, (2008) 46 Journal of Common Market Studies (forthcoming). BOOK REVIEWS 137

(Douma) concludes did not take into account, due to its publication time, the developments following the 2006 Palestinian election and the Israeli invasion in Lebanon. In his contribution on the EU’s relationships with Russia, Hillion describes the ‘inflation of EU initiatives’ (p. 497) and points out the lack of ‘substantive clarity and institutional efficacy’ which have underpinned them. Following a description of the rules which shape the EU’s relations with Ukraine, Piontek is very critical of the former because it treats the latter as ‘de facto … a peripheral country without great strategic significance’ (p. 529). In order to corroborate this conclusion, he refers to the different approach which the Union has adopted in relation to the West Balkan countries (p. 527) and suggests that the new Agreement, currently negotiated with Ukraine, be modelled on elements of the Europe Agreements, the Stabilization and Association Agreements and the European Economic Area. In the light of the distinct political and economic characteristics of these Agreements, as well as the specific geopolitical context within which they were concluded, the reader would benefit if the author’s rather sweeping statement was supported by a more elaborate analysis. In his analysis of EU-Belarus relations, Piontek is equally critical and argues that the Union’s reaction to the serious problems in that country was ‘definitely not sophisticated enough’ (p. 532): he suggests that active steps be taken to support the development of civil society structures (p. 546) whilst the Union avoids taking measures which ‘might ultimately be harmful to the ordinary citizens of the country’ (p. 547). The EU’s relations with Moldova (Skvortova), including a historical description of the Transnistrian issue, and the Soutrern Caucasus (Labe˛dzka) are set out in the last two vertical Chapters. In their concluding Chapter, entitled ‘Squaring the Ring of Friends’, the editors identify the threads which bring together the various vertical Chapters and the types of cooperation and integration which these describe. They refer to the multiplicity of models and instruments employed by the EU and the varying levels of intensity which characterize them. They also draw attention to Article I-57 of the Treaty Establishing a Constitution for Europe, which has been maintained under the Lisbon Treaty (it will become Article 7(a) TEU). According to this provision, the ‘Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterized by close and peaceful relations based on cooperation’. Having pointed out the concomitant central role that its relations with its neighbours will have in the EU’s external relations system, and following a summary of common characteristics of the various types of cooperation examined in the book, the editors address the crucial point: ‘the main issue remains whether [the EU] has the real will to [conduct effective policies towards its neighbours’ in the light of ‘the diversity of interests within the club’ (p. 621). This question acknowledges the limited role which legal rules and procedures play in shaping an effective external relations system – they merely reflect the varying intensity of the limits which the Member States are keen to impose in order to ensure that the Union’s objective ‘to assert its identity on the international scene’ will not be achieved entirely beyond 138 EUROPEAN PUBLIC LAW their control. Therefore, to remove or alter the legal expression of these limits would by no means render the Union’s external policies effective automatically. The editors suggest that ‘the best way forward for the European Union is to reconcile its widening and deepening agendas without creating second-class members’ (p. 639) and rely upon the range of options available, from membership to association and partnership. The comprehensive scope of this collection of essays is one of its strengths: rather than being confined to the EU’s partners in the context of the European Neighbour- hood Policy, it covers all its neighbours. Another strength is its content: it is a host of information usefully brought together and succinctly presented. The book presents succinctly the multi-dimensional nature of the EU’s approach to its neighbours and sets out the different challenges which the Union must meet in order to develop an effective and coherent approach. All in all, this is a useful book for any lawyer interested in the EU’s external relations.

Panos Koutrakos Professor of Law Law School University of Bristol BOOK REVIEWS 139

Noreen Burrows and Rosa Greaves The Advocate General and EC Law (Oxford: Oxford University Press, 2007) xxv + 317pp., ISBN 9780199299003, hb £65.00.

The analytical focus of academic commentators has rightly focused on the workings of the European Court of Justice (ECJ) and on the dynamic nature of the evolution of its approach in matters that are inherently constitutional. The same intensity of research and study has not been reproduced in relation to the role of the Advocate General, despite the fact that its civil law origins have created confusion as to its function, at least amongst common law lawyers. The joint authors of the book managed fi rstly, to identify the gap in the bibliography and secondly, to fi ll it in a comprehensive and surprisingly effective way, given the complexities involved in such an ambitious task. The book under review offers an excellent analysis of the establishment, evolution and operational function of the position of the Advocate General. More importantly, the authors achieve the diffi cult dual task of clarifying the position of the Advocate General within the judicial architecture of the European Union (EU) and of connecting that institutional position with the development of the case law of the ECJ. The authors set the following objectives for their study: (a) to demonstrate the procedural role of the Advocate General; (b) to explain the signifi cance and infl uence of the submissions by the Advocate General in the ECJ’s decision making; (c) to assess the degree of assistance of the preceding submissions to the fulfi lment of the obligations of the ECJ under the Treaty; (d) to evaluate the input by Advocate Generals in the development of principles of European Community law. As a preliminary point, any EU lawyer familiar with the pivotal work of the ECJ, can be expected to raise three principal questions about the achievability of the aforementioned purposes that the joint authors set for their book. Firstly, are there any methodologically objective criteria for assessing the influence of the advisory in nature Opinions by the Advocate General? Secondly, how can the time factor be approached? By ‘time factor’ one can refer to the evolutionary and dynamic nature of the role of the Advocate General that is not static in character and which takes different forms in different chronological periods. Thirdly, is it attainable to offer an analysis that comprises both the personal element that each Advocate General brings to the position and the thematic development of case law in specific areas? All three preliminary questions have been answered affirmatively by the joint authors, albeit with differing, yet always high, degrees of success. This book is divided into three main parts. Preceding the first part is an introductory account that explains the structure of the book and also the historical origins of the post of the Advocate General. It is in this section that the authors make the first significant point, stressing the autonomous and detached from its origins development 140 EUROPEAN PUBLIC LAW of the role of the Advocate General. The argument synopsizing the analysis sees the Advocate General as being sui generis in nature. Moreover, the introductory chapter contains an important section that explains the methodological approach of the authors. That approach is founded on the observations and critique to be found in the existing bibliography that concentrates on the issue of assessing the influence of the Opinions by the Advocate Generals on the decisions of the ECJ. In the view of reviewer, it is exactly this part of the book that contributes greatly to the methodological rationality and organization of the study. The approach of the authors is explained with reference to the selection of case studies that are thematically oriented, to a longitudinal approach that is focusing on selected Advocate Generals and to the technique of triangulation. These three elements are used in order to bypass the difficulties inherent in any assessment of influencing factors that form part of the decision making mechanics of the ECJ. The authors also acknowledge the main disadvantage of isolating thematic case studies and individual Advocate Generals: the problem of selectivity and exclusion of other areas and individual actors. To this problem they offer the pragmatic solution of basing their choices on their pre-existing expertise and knowledge of specific areas of law and of specific workings of the ECJ. The solution is not ideal in terms of objectivity but it is methodologically solid and as close as one can get to absolute objectivity. The first part includes an overview of the procedural role of the Advocate General that is useful for removing any preconceptions that are misplaced and incorrect. More- over, the first part includes an account on the role of the Advocate General as seen from the perspective of the European Court of Human Rights and in relation to the objections founded on Article 6 ECHR. The matter is central for the legitimacy of the position of the Advocate General and as such it is approached by the authors. In addition, the authors are rightly critical of the current situation and make an interesting proposal of procedural character (memorandum submitted by the parties and relating to the Opinion of the Advocate General) that intends to protect the Advocate General from arguments based on the right to a fair trial. The second part of the book approaches in a critical manner the work of the four selected Advocate Generals in relation to specific areas of law. The selected Advocate Generals are Lagrange, van Gerven, Jacobs and Warner and the thematic areas linked to them are admissibility of direct actions and new procedures like Articles 226 and 234 EC, equal treatment, intellectual property and competition law respectively. At this stage, the authors concede that otherwise significant contributions of the selected Advo- cate Generals are sidelined for reasons of coherency and structure. The authors reach a conclusion that the objective assessment of the influence of the Opinions by Advocate Generals is problematic and that indicators like the actual endorsement of the expressed in the submission views and the express reference to them in the judgment of the ECJ, are not adequate and conclusive criteria. In terms of the Lagrange, the authors argue that he performed a central role by predicting the future problems of a more mature EC legal order and stressed the need for effective use of basic provisions like Article 234 BOOK REVIEWS 141

EC. Van Gerven’s academic style and approach are explained with reference to equal treatment and are used in the last part of the book as a potentially problematic style of submissions in the modern era, with the increased work load, extensive membership and tight deadlines. These were not as important problems when he was serving, hence the positive outlook on his contributions. It is also interesting to note the distinction made between decisions taken in chambers and in plenary session, with the former being more receptive of the Opinion of the Advocate Generals. AG Jacobs is characterized as a specialist Advocate General in trade mark law, which sets a possible trend for a future reform of the position. His contribution has been immense in circles outside the ECJ, for example in the academia, and also had an impact on subsequent Advocate Generals as well as on the ECJ. Warner’s main contribution was the introduction of principles of natural justice in the approach of the ECJ, thus introducing a common law rationale to the system. The third part of the book examines the impact of the Opinions by Advocate Generals in the areas of direct effect, State liability and citizenship, thus offering a useful explanation of three important areas of EC law. At the same time, the authors are critical of the cautiousness shown in relation to State liability, where the role of the Advocate General has been a delaying factor in the expansion of the doctrine. In the last chapter, the authors make the most important observations. It is submitted therein, that the influencing role of the Opinion by the Advocate General should not be over-estimated and should be seen as part of a complex web (mèlange) of influencing factors. The authors also point to the individualistic, isolationist nature of the position, with little interaction between the Advocate Generals and between them and the ECJ’s judges. There is, however, the informal interaction mainly with the rèfèrendaires that is likely to be influential on a long term basis. Finally, the authors conclude that the influence of the Opinions extends beyond the ECJ and towards the other institutions of the Union. In addition, the relationship with the ECJ takes different forms that should be detached from the result of the case. What matters is the ‘dialogic relationship between the Advocate General and the ECJ’ that is not related to the outcome of a specific case and which takes place over time and often outside the Court. In terms of criticism, the book could have made more extensive reference to other areas of law (locus standi of private applicants) where there have been relatively recent developments with AG Jacobs taking a central role in the process. It is, however, accepted that the authors clarified that their book is not a holistic account covering all topics and all cases. Therefore, even though important areas were omitted, this has been justified by the authors from the outset. On a different level, the emphasis on individual Advocate Generals carries with it the danger that their work is not detached from the personality element, namely the specific and impossible to identify features of their characters, their values and beliefs that impact on their Opinions. In addition, the anonymity and institutionally oriented approach adopted when analysing the ECJ’s work is not followed when analysing 142 EUROPEAN PUBLIC LAW the work of the Advocate Generals. Therefore, the Opinions are seen as products of personality, while the decisions of the ECJ as a product of a collegiate process within a single entity. This makes the assessment of influence problematic, since the aim is to assess the influence of Advocate Generals as explained from an individualistic point of view, on a single body like the ECJ, where individualism gives way to collective decision making. Nonetheless, there is consensus that the position of the Advocate General carries a strong personal element, which is not equally present in the ECJ with the absence of dissenting opinions. In conclusion, the book offers an interesting, methodologically sound and balanced exegesis of the role of the Advocate General within the judicial structure of the Union. The work achieves the purposes it sets and offers an important contribution in promoting the understanding of the pivotal role of the Advocate General. Moreover, the book shows the way for subsequent work that should expand and develop the ideas expressed in the book. A gap in the bibliography has been filled in an excellent way, thus setting a high standard for everyone intending to follow this line of research.

Dr Constantinos Kombos Lecturer in Public Law Law Department University of Cyprus BOOK REVIEWS 143

Samantha Knights, Freedom of Religion, Minorities and the Law (Oxford: Oxford University Press, 2007) xxxv + 216pp., ISBN 9780199290628, hb £49.95.

In the last few years religion has become an increasingly important area which has received a lot of attention by the media and the general public. In the international arena, ongoing discussions about the Jewish/Palestinian conﬂ ict and the Alliance amongst Civilizations including the ‘Christian’ Western countries and the Islamic World are two clear examples of this global interest in religion. The United Kingdom, one of the most pluralistic societies in the world, as its 2001 census shows, has not been immune to these outstanding transformations. Taking into consideration the diversity in religious terms of British society, Westminster has put forward a battery of legislative instruments which have tried to give a proper response to issues such as religious hatred (e.g., the Racial and Religious Hatred Act 2006). Furthermore, from 1998 the United Kingdom is no longer a centralized State and consequently, attention is due to the role of national legisla- tures in Cardiff, Edinburgh and Belfast. Finally, our European Union membership clearly shapes our domestic framework and in the last ﬁ fteen years, as a sign of the new Europe launched in Maastricht, the Union has concentrated on other aspects such as religion. The Framework Employment Directive, incorporated in the UK through the Employ- ment Equality (Religion or Belief) Regulations 2003, symbolizes these new times. Moreover, acclaimed books such as Peter Edge’s Legal Responses to Religious Difference (Kluwer Law, 2002) and Rex Ahdar and Ian Leigh’s Religious Freedom in the Liberal State (Oxford University Press, 2005) have focused on the interaction between secular law and religion. Norman Doe’s The Legal Framework of the Church of England (Claredon, 1996) and Mark Hill’s Ecclesiastical Law (first published by Oxford University Press in 1995 with a second edition in 2001 and the third in 2007) have been the impressive leading works on Ecclesiastical and religious law. These scholars, alongside many others (e.g., Malcolm Evans, Anthony Bradney, Julian Rivers) have contributed to the establishment of an academic subject, known in some British universities as ‘Law and Religion’, which on most occasions deals with relationships between public authorities and religious bodies, but that at times also looks at the internal laws of religious bodies. In this dichotomy between Law of the State concerning religion or Religious Law, Samantha Knights’ book fits into the former. Obviously, if Freedom of Religion, Minori- ties and the Law intends to provide practitioners with some assistance on religious law, it fails to do so. However, this does not seem to be Knights’ aim and therefore, her overview of some important aspects concerning the legal branch which in continental Europe is known as ‘Ecclesiastical Law’ or Law of the State on religious bodies, is a successful one. Samantha Knights’study is a timely exercise, dealing with some of the most important aspects of the Law of the State on religious matters and a very welcome addition to this emerging discipline. She has rightly chosen some areas which are beneficial to the wider academic community and the outcome is very attractive. Chapters 3 to 7 (‘The 144 EUROPEAN PUBLIC LAW

Balance of Competing Interests’, ‘Education’, ‘Employment’, ‘Immigration and Asylum’ and ‘Planning, Prisons, and Health and Safety’) are sound developments of important legal areas with a stimulating analysis which other authors had not contemplated. The two last chapters are particularly refreshing. Chapter 6 on immigration and asylum is a very helpful contribution as the legal position of immigrant and asylum seekers in this or any other country cannot be properly understood without considering their religious background. Although immigration law is another emerging discipline in the British academic framework, bringing both areas together is to be praised. Chapter 7, on the other hand, is a hybrid exercise which succeeds in providing the reader with a helpful overview of a wide range of subjects. There are, however, some aspects in this book which could have required further thought. Although authors are faced with the constraints of word limits, I am afraid that the first chapter lacks some depth. The historical development of religious freedom in Britain is an area which needs a more detailed analysis and the lack of footnotes (e.g., page 17) is slightly worrying in the section Religion and the State – the one which covers the relationship between public authorities and religious bodies. Having said that, the difficulties of summarizing such a broad subject should not be underestimated and the efforts made by Knights to cover the international, the European and the British fields are commendable. As far as the explanation of the different models of Church/ State relations in Europe is concerned, the second edition of Gerhard Robbers’ Church and State in the European Union (Nomos, 2005) should have been mentioned as this is unquestionably the leading textbook on the relationships between public authorities and religious bodies in the wider European context. The second chapter of Freedom of Religion, Minorities and the Law, on the contrary, is an accurate summary of the legal sources concerning religion in the UK and the analysis of Articles 9 and 14 of the European Convention on Human Rights is particularly stimulating. Furthermore, Knights’ decision to carry out an interdisciplinary study should be acknowledged. As stated earlier, she is confident in looking at a wide range of legal areas such as Education, Immigration or Employment, although there seems to be no justification in leaving out Family Law. At the same time, she competently focuses on sociological, historical and political aspects. In the beginning of the twenty-first century, this stance is a healthy response to the challenges which academics face and unquestionably Knights’ work is unquestionably successful in overcoming this challenge. For all these reasons and despite understandable weaknesses which do not affect the overall quality of this book, this is a welcome addition to the field of Law and Religion, which will be appealing to those with an interest in Law, Sociology, Religion, Politics, Philosophy and History.

Dr Javier García Oliva Lecturer in Law, Bangor University Research Associate, Centre for Law and Religion Cardiff University RAPPORTEURS

AUSTRIA CYPRUS Dr Walter Schwartz Dr Constantinos Kombos Schwarz und Huber-Medek Law School Attorneys at Law University of Cyprus Stubenring 2 CZECH REPUBLIC A-1010 Vienna Ivo Slosarcik Ph Dr, LL.M Austria Department of European Studies Dr Katharina Huber-Medek Charles University Schwarz und Huber-Medek Rytirska31, Attorneys at Law Prague Stubenring 2 Czech Republic A-1010 Vienna DENMARK Austria Professor Dr Jens Hartig Danielsen Professor Dr W Barfuß Aarhus University Professor of Constitutional Law, School of Law Administrative Law Bartholins Allé, Build. 1340 Kleeblattgasse 4 DK-8000 Aarhus C A-1014 Vienna Denmark Austria ENGLAND Fax: +(43) 1 534 37107 Professor Cosmo Graham BELGIUM Professor of Law Professor D-Patrick Peeters University of Leicester University of Leuven England Professor Alen Professor Stephen Tierney Professor of Constitutional Law Faculty of Law Law School University of Edinburgh University of Leuven Scotland Tiense Straat 41 EUROPEAN COURT OF HUMAN B-3000 Leuven RIGHTS Belgium Iain Cameron Fax: + (32) 16 28 54 66 Professor of International Law BULGARIA Faculty of Law Professor Evgeni Tanchev University of Uppsala Soﬁ a 1000, Sweden Soﬁ a University ‘St. C1. Ohridski’ EUROPEAN UNION Faculty of Law Professor Andrea Biondi Blvd. ‘Tzar Osvoboditel’ 15 Centre for European Law Bulgaria King’s College London England 146 EUROPEAN PUBLIC LAW

FINLAND IRELAND Professor Dr Markku Suksi Dr Gerard Hogan Acting Director of the Institute of Law School Human Rights, Trinity College Åbo Akademi University Dublin 20500 Turku Ireland Finland Fax: + (353) 1 454 6810 FRANCE ISRAEL Professor John Bell Professor Suzie Navot Faculty of Law Head of Public Law Division Law University of Cambridge School England 7 Itzhak Rabin Blvd. Rishon Letzion 75190 Israel Co-rapporteur: Susan Wright ITALY 20 rue Poutty Stein Professor Avv Mario P Chiti L-2554 Ordinario di Diritto Amministrativo Luxembourg Universita di Firenze Fax: + (352) 4303 2730 Via Zara 30129 Firenze GERMANY Italy Dr Georg Nolte Fax: + (39) 55 491 975 Institute for International Law at the University of Göttingen Professor Gian Franco Cartei Platz der Göttingen Sieben 5 Ordinario di Diritto Amministrativo D-37073 Göttingen Universita di Firenze Germany Via Zara 30129 Firenze Co-rapporteur: Italy Petra Minnerop Fax: + (39) 55 491 975 University of Göttingen LUXEMBOURG GREECE Dr Marc Thewes Dr Andreas Pottakis (Oxon) 3 rue des Capucins Deputy Director B.P. 55 Academy of European Public Law L-2010 Attorney at Law Luxembourg Athens Greece THE NETHERLANDS F M Besselink HUNGARY Utrecht University Dr Marton Varju Law Faculty Achter Sint Pieter 200 3512 HT Utrecht The Netherlands RAPPORTEURS 147

NORTHERN IRELAND SPAIN Dr Gordon Anthony Carmen Plaza Martin Faculty of Law Instituto Universitario de Ciencias Queen’s University of Belfast Ambientales 27-30 University Sq. Seccion de Derecho Ambiental Belfast C/Bartolome Cossio s/n Northern Ireland Ciudad Universitaria Madrid 28140 POLAND Spain Professor Konrad Nowacki Fax: + (34) 1 549 1459 Faculty of Law and Administration University of Wroclaw SWEDEN Poland Professor Thomas Bull Faculty of Law Co-rapporteur: University of Uppsala Professor Ewa Nowacka Sweden University of Wroclaw Poland TURKEY Professor Esin Orücü PORTUGAL School of Law Professor Carlos Botelho Moniz Stair Building Centre for European Studies University of Glasgow Catholic University Glasgow G12 8QQ Lisbon UK Portugal WALES RUSSIA Ann Sherlock Jane Henderson Department of Law School of Law Hugh Owen Building King’s College Penglais Strand Aberystwyth London WC2R2LS Ceredigion SY23 3DY England UK SCOTLAND Professor Thomas Mullen School of Law University of Glasgow Glasgow G12 8QQ Scotland Fax: 0141 330 5140

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