Brexit, Article 50 and the Supreme Court

On Monday some of the country’s most senior lawyers will gather in the Supreme Court and appear before the country’s 11 most senior judges.  The case calling before the Supreme Court is the appeal by the Secretary of State for Exiting the European Union against the decision of the Divisional Court in Miller v The Secretary of State for the European Union.  The case has come to be known as “the Article 50 case” and “the Brexit case” by many.  So much has been written on the subject already and by people who are far more expert than me; however, I thought I would throw my twopence in anyway.  In this post I will not express any view as to the merits of the Secretary of State’s case, nor of the Respondent’s case nor that of the interveners and other interested parties.

There has been a lot of sensationalist nonsense published and said about this case.  The issue before the Court is a very narrow point of law; however, it is not a difficult point of law to understand.  It is also an extremely important point of law and the narrowness and simplicity of it should not take anything away from its importance.  The issue for the court is whether the Secretary of State has a prerogative power to trigger Article 50.  The case is not about whether the UK can leave the EU nor is it about whether the UK should leave the EU.  The case is about the process of leaving the EU.

During the Referendum the Government said that it will give effect to the result of the referendum.  The result of the referendum was that those who voted to leave the EU outnumbered those who voted to remain.  It was a narrow result (despite what some might say), but the referendum was held on a simple majority basis.  One side only needed to win by one vote to win the referendum.  The result of this case does not affect the Government’s pledge to give effect to the result of the referendum; it is about how the Government gives effect to the result of the referendum.  It is a question of process and procedure.

In our democracy, the Executive (which is HM’s Government) gets its power primarily from two sources.  The first is from prerogative powers.  These are the remnants of the Monarch’s absolute power and authority.  These prerogative powers have, over the course of centuries, become constrained through the actions of Parliament.  In our system, Parliament is supreme; Parliament is sovereign and it can act to constrain the power of the Executive if it so elects.

The second source from which the Executive derives its power is from Parliament.  Through legislation, Parliament delegates some of its authority to the Executive.  This is where the power of the Government to make secondary legislation comes from.  This delegated authority is rarely absolute.  In the primary legislation delegating the authority (“the enabling legislation”), Parliament will set out the boundaries of the Executive’s authority.  That is how the courts are able to over-turn secondary legislation on social security benefits (for example) – it is because the secondary legislation steps beyond the powers delegated to Ministers by Parliament.  Ministers must either go back to Parliament to get the power needed to do what it is that they wanted to do or to get Parliament to enact the scheme that the Executive wants to enact.

This is in essence the separation of powers.  It is important that in any democracy that the power is shared between the Executive, Legislature and Judiciary.  Parliament is sovereign and is kept accountable by the electorate.  We do not send delegates to Parliament, but rather we send representatives.  What this means is that for the time our MP is sitting in Parliament we ask them to take decisions on our behalf.  As part of the process of an MP deciding how they are going to vote on a particular issue, they will inevitably consider the views of their constituents; however, their constituents cannot instruct the MP to vote in a specific way.  What the electorate can do if they are unhappy with the decisions that their representative takes on their behalf, is to elect a different representative to send to Parliament at the next election.

That brings us onto the question of referendums and their legal status.  As has already been discussed, Parliament is both supreme and sovereign in our democratic system.  It cannot be instructed by the electorate to act in a particular way; therefore, the referendum is simply advice to Parliament and to the Executive.  It would have been entirely possible for the face of the referendum legislation to have included the effect of the result.  The Act could have said that if the result was in favour of leave, that the Secretary of State shall give notice to the European Union of the UK’s intention to leave the European Union.  Such a step would have given the Secretary of State a clear statutory power to trigger Article 50; there could have been no litigation as to whether the Secretary of State had the power to trigger Article 50 or not.  This is what happened with the AV referendum in 2011; Parliament set out within the legislation the effect of a “yes” vote and the effect of a “no” vote.  In this case, Parliament did not do that and so there is no clear statutory power; thus the Government needs to try and rely on the prerogative power.

The effect that all of this has on the appeal in the Supreme Court next week is that the Court is determining the scope of the Executive’s power.  As already discussed, the Executive is subordinate to Parliament.  Government policy is not law.  The Government’s policy on the European Union is to leave the European Union.  It can only give effect to that policy within the constraints of its power.  If it doesn’t have the necessary power then it needs to get it from Parliament.

There have been complaints about the legal system treating the referendum vote as “a footnote”; in terms of the law that is all it is.  It is irrelevant for determining the legal question before the Court.  The prerogative power is, as discussed above, the remnants of the Monarch’s absolute authority.  If the prerogative gives the Executive the power to leave the European Union, then that would hold true irrespective of the result of the referendum (and even irrespective of whether there was a referendum at all).  What it would mean is that the Government could trigger Article 50 and bring the UK out of the European Union had the country expressed a view to remain in the European Union; it could even have done so without a referendum at all.  The prerogative is not about whether the Government has a popular mandate, or an instruction from the electorate to do something.  The prerogative is absolute, un-checked power in the hands of the 20 or so people who are members of the Cabinet to do as they please.  That, if you ask me, is the affront to democracy (but is really outside of the scope of this blog post).  So, because the prerogative is the absolute power of the Executive, the fact that there has been a referendum and the fact that the result of that referendum was an expression of a wish to leave the EU is an irrelevance for the court.

The Courts are there to decide questions of law.  The question as to whether the UK leaves the EU is a political one.  If the Supreme Court upholds the Divisional Court’s decision, the question of what Parliament will do is a political one also.  The Court cannot consider whether the UK should leave the EU, nor can it speculate as to how Parliament might act on the question.  It cannot, when deciding the case, pay any attention to how Parliament might act.  If you are fearful that Parliament might try to block Brexit then that is a matter to take up with your MP, not the Justices of the Supreme Court.

So, in short, the question before the Court is simply does the Secretary of State have the power to trigger Article 50 deriving from the prerogative powers.  If the answer to that is no, then it will be down to Parliament to give the Secretary of State that power.  How that plays out is a purely political matter.  The Supreme Court deciding that the Secretary of State does not have the power to trigger Article 50 says nothing to those voted vote leave or remain; it does not nullify or void the result (or anything close to that).  Conflating the political and legal issues is disingenuous and extremely dangerous.

Don’t throw stones in glass houses

Today the Scottish National Party (SNP) launched a brand new website with the aim of gauging public support for a second referendum on Scottish independence.  Of course Scotland had a referendum on this issue a little under two years ago where those who voted did so 55% – 45% in favour of Scotland remaining part of the United Kingdom.  In May the Scottish people went to the polls to elect the Scottish Parliament; the Scottish Conservative Party fought that election on a strong pro-union message and had its best electoral success in Scotland in many decades.  They pushed Scottish Labour (who the criticisms in this blog equally apply to) into third place to become the official opposition in the Scottish Parliament to the SNP Government (which, incidentally lost its overall majority and is governing, once again, as a minority government).

This afternoon I had a look at the SNP’s new website and immediately spotted some problems with it.  The National Survey website unsurprisingly has a survey for people to complete.  It asks a number of questions such as how people voted in the 2014 independence referendum and in June’s EU referendum.  It also asks for the name and postcode of the person completing the survey as well as whether or not they have children or grandchildren who are under the age of 18 years, all fields which are mandatory.  The website does have a data protection and privacy policy, which is very brief.  The following screenshot was taken from the National Survey website this afternoon:

surveydp

The policy is extremely short, but the key aspect of the policy for the present purposes is “The SNP may…contact you about issues you may find of interest using any details you have supplied.  You can opt out of some or all contact by writing to us.”  I shall return to why this is the key aspect in a moment, but for now it’s on with the story.

The Scottish Conservative Party has apparently taken legal advice on the SNP’s National Survey website and written to both the Electoral Commission and the Information Commissioner; the former being irrelevant for present purposes.  The Scottish Conservatives state that they considered that the SNP’s website breaches the Data Protection Act 1998 (it does, but more on that in a moment).  However, while they are considering the SNP’s National Survey website they might wish to consider their own website.

Unlike the SNP’s National Survey website, the Scottish Conservatives website has a lengthy data protection and privacy policy, but I have taken a screenshot of the relevant bit:

toriespp

The relevant part for present purposes is the bit that reads “[b]y entering your contact details you agree to receive communications from us, from which you can opt-out using the “unsubscribe” link in each email we send or using the contact details at the top of this privacy notice.”

There are problems with both the Privacy Notices above, and they are in fact the same problem.  I will come onto the breaches of the Data Protection Act 1998 in a moment; however, I initially want to discuss the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Both the above privacy notices envisage sending information to those who have provided their E-mail address about campaigns that the respective political parties are engaging in.  These E-mails will essentially be promoting the aims of the respective political party, either generally or in respect of a specific area of policy.  These E-mails will be sent directly to an individual; that makes them direct marketing communications.  The law is very strict on when it is legal to send such communications.  The relevant regulation is Regulation 22, which covers direct marketing by electronic mail.  Regulation 22(2) requires (except in a very limited set of circumstances, not relevant here) that there individuals must give consent to receive such marketing.

The Scottish Conservatives’ privacy policy certainly seems to suggest that they have consent, but in reality they do not.  This is because the consent is actually defined in the 1995 Data Protection Directive and that definition is applicable to the PECR; their privacy policy doesn’t meet that definition.  The definition of consent in the 1995 Data Protection Directive is to be found in Article 2 and is “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.”  Consent achieved in the way the SNP and Scottish Conservatives have approached is not “freely given specific and informed”.  Individuals have not positively expressed a desire to receive general communications about the party or its campaigns; they’ve simply filled in a survey expressing their views on the matters asked about in the survey.  In the case of the specific example of the SNP’s National Survey website the privacy policy isn’t visible at the time the personal data is collected; it cannot therefore be said to be an informed expression of the data subject’s wishes.  The Conservatives (both at a UK and Scottish level) have been guilty of this too.

Essentially what this means is that any E-mail communication sent by either the Scottish Conservatives or the SNP that amounts to direct marketing (which is likely to be every e-mail) in reliance upon the consent obtained through their respective privacy policies is unlawful.

Now, to the Data Protection Act issues.  A data controller (which any political party will be) must only process personal data fairly and lawfully (first data protection principle).  For the processing to be lawful a schedule 2 condition must be satisfied (and in the case of sensitive personal data, a schedule 3 condition as well).  One of the conditions in Schedules 2 and 3 is essentially processing to which the data subject has consented; however, neither the SNP nor the Scottish Conservatives can wholly rely on consent because they simply do not have that data controllers consent.  They wouldn’t be able to satisfy any of the other schedule 2 or 3 conditions to legitimise their sending of direct marketing e-mail communications; they would therefore also breach the first data protection principle when sending those E-mails.

Collecting personal data is also a processing activity.  In the case of the SNP’s National survey they are not collecting the personal data fairly.  While they do have their privacy policy (which is quite frankly a sorry excuse for one) it is not prominent on the actual survey itself; people are not told at the time their personal data is collected exactly how the SNP will make use of it.  You can navigate to the privacy police from the survey page, but the link to the policy is in extremely small text at the very foot of the page (so much so that I initially had difficulty in locating its existence at all).

Turning once again to the Scottish Conservatives, they are currently running a petition on their website against the having a second referendum on Scottish independence.  They continue to rely on implied consent for general communications about the Scottish conservative Party and are arguably collecting personal data unfairly as well.  While the link to their data collection and use policy is clearer, it comes after the “sign up” button and still requires individuals to navigate away from the page that they are no in order to see exactly how their personal data is going to be used by the Scottish Conservatives.

One other issue with the SNP’s National Survey website relates to the third data protection principle which states that “Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.”  All of the fields are mandatory and it is unclear as to why information such as the number of children or grandchildren you have under the age of 18 or indeed what your name or E-mail has to do with gauging support for a second independence referendum.  This is simply an exercise in gathering personal data and that should be made clear from the website and the survey (otherwise it will only add to the breaches of the first data protection principle).  Those fields should, as a very minimum, be made optional.

To conclude, while the Scottish Conservatives have raised legitimate and valid criticisms of the SNP’s National Survey website, they would do well to remember that people in glass houses ought not to throw stones.

 

Can the Scottish Parliament block ‘Brexit’?

There has been some suggestion in the days since the EU Referendum, in which a sizable majority of Scottish voters voted to stay while a smaller majority of voters across the UK as a whole voted to leave, that the Scottish Parliament can in some way block the UK’s exit from the European Union.  That suggestion is, in my view, wrong; the Scottish Parliament cannot block the UK’s exit from the European Union.

Since Devolution there has been a convention operating whereby it has been understood that Westminster would not exercise its power as the sovereign and supreme legislative body for the United Kingdom to legislate in an area for which competence over has been devolved to the Scottish Parliament, without first obtaining the consent of the Scottish Parliament.  This convention is known as the Sewel convention.

Following the 2014 referendum on whether Scotland should become an independent country, a Commission was established by the UK Government to look at the Scottish devolution settlement.  That Commission, the Smith Commission, recommended that the Sewel convention was given legislative force.  Section 2 of the Scotland Act 2016 amends Section 28 of the Scotland Act 1998, which confirms in subsection (7) that Westminster can still legislate on areas of devolved competence, to add a subsection (8) which gives effect to that recommendation.  Section 28(8) provides that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

What this means is that Westminster will not normally legislate on a devolved area without first obtaining the consent of the Scottish Parliament.  However, it can still legislate on an area of devolved competence without the consent of the Scottish Parliament (for example, in a time of emergency and where it wouldn’t be practical to obtain the Scottish Parliament’s consent).

What relevance does this have to blocking the UK’s exit from the European Union?  It would appear to me to be of no relevance whatsoever.  Firstly, we are not in a situation where the UK Parliament is going to be legislating.  The UK’s withdrawal from the EU is an exercise by the Executive of the prerogative power to conduct foreign affairs.  The Executive might well seek a vote in the UK Parliament on exercising the prerogative power (in the same way that appears to be becoming convention with the prerogative power to declare war), but that is not a legislative act by the UK Parliament.  Secondly, the United Kingdom’s relationship with the European Union is a specifically reserved matter in Schedule 5 to the Scotland Act 1998.  We are not, therefore, dealing with a devolved matter; we are dealing with a reserved matter.  Section 28(8) of the Scotland Act 1998 only relates to devolved matters.

It might be the case that, when the UK Parliament comes to give legislative effect to whatever relationship the UK is to have with the EU in the future, the Scottish Parliament may be able to invoke Section 28(8) of the Scotland Act 1998.  If that legislation were to affect a devolved area the Scottish Parliament could very well refuse to consent to the legislation; however, that would not necessarily equate to it being blocked.  The UK Parliament might have to rely on the word “normally in section 28(8) to legislate anyway so as to give effect to, what will be by then, the UK’s international law obligations.

The Scottish Parliament is still free to debate and vote on any issues that it chooses to do so.  We could therefore see in the coming days or weeks a debate and vote in the Scottish Parliament on whether the Parliament agrees with the UK’s withdrawal from the European Union.  However, it cannot invoke what is now Section 28(8) of the Scotland Act 1998 in relation to this issue.  Moreover, even it if it could invoke Section 28(8) of the Scotland Act 1998, that would not necessarily have the effect of blocking the action it refused to give consent to.

Data Protection and the #EUref

Data Protection is not an area that people generally get especially excited about, but the rights contained in the Data Protection Act 1998 (“the DPA”) are important.  They enable individuals to find out (mostly) what information companies and organisations hold about them, where they got it from, what they do with it, who they give it to and what it says.  It also enables people to take a degree of control over what companies and organisations do with that information; including the ability to prevent a company from using their information for marketing purposes, forcing them to correct inaccurate information and forcing them to stop “processing” their information where the processing causes substantial damage or distress that is unwarranted.

The DPA implements an EU Directive into domestic law.  Data Protection law in the UK has its roots in European law.  However, it’s not just the DPA that has its roots in European law; the connected Privacy and Electronic Communications Regulations 2003 (the full name of which is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003) also implement European law into domestic law.  These Regulations relate to the use of personal data and are the regulatory regime that governs the use of electronic communications (such as E-mail, phone and text) to market directly to individuals.  These are the regulations which help deal with those annoying and unsolicited PPI and accident claims telephone calls.

In 2018 the Directive that underpins the DPA is being replaced with a new EU Regulation on Data Protection and the Directive underpinning the 2003 Regulations is currently being reviewed in light of the new EU Data Protection Regulation (the European Commission is consulting on this issue until 5 July 2016).

The DPA replaced the Data Protection Act 1984.  The 1984 Act was introduced to give protection to individuals in relation to the automatic processing of their personal data and was based upon the Council of Europe’s (the same Council of Europe behind the European Convention on Human Rights and Fundamental Freedoms) 1981 Convention for the protection of individuals with regard to automatic processing of personal data.

Now that there has been a brief account in respect of the history of Data Protection law in the United Kingdom, it is possible to thrust into the main purpose of this article; that is to consider Data Protection in the context of the EU Referendum.

If the UK votes to remain in the European Union then in May 2018 the United Kingdom will have to comply with the General Data Protection Regulation (which, being a Regulation, will have direct effect regardless as to whether the UK Parliament enacts a new Data Protection Act or not) together with the associated Directives; including whatever eventually replaces the 2002 e-Privacy Directive.  The associated Directives, together with some of the fudges in the new Regulation, will likely mean that there will be a new Data Protection Act to replace the current Act (probably towards the end of 2017).

If the UK votes to leave the European Union what happens is a bit more uncertain.  A vote to leave the EU will not mean that there is a complete end to the UK’s relationship with the EU, and that will have an impact on Data Protection.

The first thing to note is that a vote to leave will not mean an instantaneous split.  There currently isn’t really a process for an EU Member State to leave the Union so some time will be spent working out how that happens and there will inevitably be a time spent negotiating a new relationship with the EU; whether that is inside of or outside of the EEA.  It seems quite likely that we will still be in the EU come May 2018, which might mean that the GDPR will automatically apply – but that is entirely dependent upon what happens in terms of negotiations between the vote to leave and May 2018.

If the United Kingdom simply becomes part of the EEA then the result, insofar as Data Protection is concerned, will be identical to a vote to remain; the GDPR applies to the EEA countries (presently being Iceland, Liechtenstein and Norway) as well as to EU Member States.

If the United Kingdom leaves the EU and doesn’t join the EEA there will be bit more freedom in respect of Data Protection.  However, the requirement for Data Controllers within EU Member States not to transfer personal data to a country outside of the EU/EEA, unless there is an adequate level of protection for personal data, will mean that we will continue to have some form of Data Protection law.

It is possible that the UK could meet the adequate level of protection requirement with rights that are substantially lower than those afforded by the DGPR (when it enters into force) and so the UK’s Data Protection law will not necessarily be all that similar to the GDPR – especially if the government of the day is one that favours light-touch regulation and a lack of “red tape”.  That means that even if the UK is forced to comply with the GDPR initially, Data Protection law in the UK could change dramatically to something that affords much less protection than the GDPR.  What the law will look like though will not only depend upon the ideals of the government of the day, but what they think would be politically acceptable; over the last 30 or so years people have become much more wary about what governments, public agencies and businesses do with their personal data; so while the political will might be to substantially lower the level of protection afforded to individual’s personal data, the public will might not let them go quite as far as they wish!

In short, the future of Data Protection law in the UK will be very much influenced by the result of the Referendum and the eventual relationship with the EU in the event of a vote to leave.

Statutory Judicial Directions in Sexual Offences Cases

In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary.  This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy.  It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.

Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy.  It is important that the judiciary is totally independent from the Executive and the legislature.  Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland.  Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).

This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary.  Parliament serves two primary functions: to make laws and to hold the Executive to account.  The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account.  Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong.  It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example.  These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.

The impartiality is also of huge importance and two-fold.  Firstly, the judiciary must be politically impartial.  It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to.  They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party.  Their impartiality also extends to the parties before them.  They must be careful not to be seen to be supporting one side or the other in any way.  That is not an easy task.

There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary.  Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases.  Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence.  However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned.  In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.

Independence

These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases.  This is something that clearly crosses the line in the separation between Parliament and the Judiciary.  This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions.  It is Parliament expressly dictating to judges how they should do their job.  We should always prevent Parliament from taking such steps.

Impartiality

The Directions which Parliament proposes judges should make in their charges are well founded in evidence.  However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer).  It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice.  When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused.  In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.

One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them.  Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence.  It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury.  In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).

How else can this issue be addressed?

As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence.  A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation.  It should not be relevant whether or not a complainer made attempts to fight the alleged offender off.  These are the issues that these proposed jury directions seek to address.

In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury.  The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case.  Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist.   It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.

Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge.  It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed.  Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.

It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.

Some thoughts on Proportional Representation

Following the 2015 general election there has been an incredible amount of support for and discussion about Proportional Representation.  I am 26 years old and I have been a proponent of Proportional representation for half of my life.  I first began to support the concept of PR for UK elections after studying different electoral systems during a Modern Studies class.   Even at the age of 13 it was clear to me that the First-past-the-Post electoral system that we use to elect people to the House of Commons does not work for our modern politics.

The system hasn’t always been broken; it worked when the two main parties attracted 95% of the votes cast by the electorate.  As time has marched on our politics has changed.  The political landscape is vastly different to how it looked in the late 1800s and early 1900s and as a consequence the electoral system no longer functions in a way that is appropriate.

The current Government in the UK consists of a single party which holds a (slim) majority of seats in the House of Commons.  In percentage terms, the Conservative Party has 50.9% of the seats having achieved only 36.9% of votes cast nationally.  It is over-represented in the commons by approximately 90 seats on a proportional votes to seats basis.

The Conservative Party is not the only party that is over-represented in the current House of Commons: the Labour Party, DUP and the Scottish National party are over-represented.  The Labour Party has 35.7% of the seats with 30.4% of the votes cast nationally; it is over-represented by about 31 seats on a proportaional votes to seats basis.  The Scottish National Party has 8.6% of the seats in the Commons having achieved 4.7% of the votes cast nationally (given that the SNP had candidates standing only in Scotland the figures are slightly misleading.  Looking only at the votes cast in Scotland for the seats allocated to Scottish constituencies it has 95% of the seats on 50% of the votes cast).  The SNP is over-represented in the House of Commons by about 30 seats on a proportional votes to seas basis.  The DUP has 1.2% of the seats available in the Commons with 0.6% of the votes cast nationally (like the SNP, it did not have candidates standing in all constituencies; it’s only candidates were in Northern Ireland and has 44.4% of the seats allocated to Northern Irish Constituencies with 25.7% of the votes cast in Northern Ireland) and is over-represented by about 3 seats.

If some parties are over-represented it follows that some must be under-represented; the Liberal Democrats, the Green Party and UKIP are all under-represented.  The Liberal Democrats have 1.2% of the seats with 7.9% of the votes cast nationally.  They are under-represented by about 42 seats.  As for the Green Party they have 0.2% of the seats in the Commons with 3.8% of the votes cast nationally and are under-represented by about 22 seats.  UKIP also have 0.2% of the seats in the Commons with 12.6% of the votes cast nationally; they are under-represented by about 81 seats.  There are other parties who are under-represented in the Commons based on the votes that were cast, but for the sake of brevity I will not set them out in detail.  The parties are: Plaid Cymru, Sinn Fein (who by convention don’t take up their seats in the Commons), the Ulster Unionist Party and the Alliance Party.  The only party whose representation under FPTP is what it would have been under a PR system is the SDLP.

You will notice that where I have stated by how many seats a party is over-represented or under-represented I have qualified it with “about”; I have done so because had the election been run using a PR system rather than FPTP it will likely have changed the way some people voted (and quite possibly in significant enough numbers to affect the seat distribution).  There will have inevitably been a great deal of tactical voting in this election; FPTP encourages tactical voting, especially in seats that are considered to be ‘marginal’.  In seats that are marginal, people who know their preferred candidate has little chance of being elected will often vote tactically; that is to say they will vote for the person most likely to defeat the candidate that they least want to win.  So, in a Labour-Tory marginal seat someone who might naturally prefer the Liberal Democrats may well recognise that the Lib Dem candidate is highly unlikely to win.  They may absolutely not want the Labour candidate to win and so vote Conservative because they are the candidate most likely to defeat the Labour candidate.

It is impossible to take account of tactical voting with any degree of certainty when modelling a PR based Parliament on votes cast under the FPTP system.  There are also a multitude of different PR systems; some of which it is not possible to translate FPTP results into because they use a preferential voting method (i.e. you rank as many or as few of the candidates/parties standing in the order that you prefer them).

I may be a proponent of PR, but I do recognise it is not perfect either; there is no such thing as the perfect system.  There are trade-offs to be made and which system you favour depends on what it is you value and what it is you hope you achieve by introducing PR.  For example, if you’re more interested in getting as close to a representative Parliament as possible and are not fussed about the ‘local link’ between the elected representative and the constituency; then a system based on a party list is likely to take your fancy.  However, if you favour keeping the local-link despite that resulting in an ever so slightly less representative Parliament (but still far more representative than FPTP), then something like the Single Transferrable Vote (STV) system is probably going to get your support.

Personally, I favour STV because I would prefer to keep the ‘local link’ over having a totally representative Parliament.  However, I recognise that such a system might not best serve the country.  Looking at it objectively a list system is probably more appropriate and that’s simply because I think, objectively, the local link has already largely been lost.  There are a few exceptions, but if you ask a representative sample in each constituency who they voted for you are most likely to get either the name of the party or the name of the party leader as opposed to the name of the candidate that actually appeared on the ballot paper.  That’s because in reality the majority of people vote for a party irrespective of the candidate.

Having long been a convert to the PR cause I am glad to see that more people appear to be coming round to the idea that PR is better in our modern politics.  I did vote for AV in 2011, but I also know that a lot of pro-reform people voted no.  I understand why they did so, AV was a false option; it’s not a PR system.  While it does deal with many of the issues with FPTP in the our modern political world, it does not result in a proportionate parliament; it doesn’t even deliver an a parliament that is approximately proportional.  I vote for it because despite its flaws it was progress, a move in the right direction.  The referendum in 2011 was lost, and clearly so.  However, that does not (nor should it) preclude reform.  Nor does it mean that there isn’t a huge level of support for a PR system.

I will continue to fight for, campaign for and support electoral reform to bring a more proportional electoral system for elections to the UK Parliament.

The Electoral Reform Society and Unlock Democracy currently have a petition running in support of PR; if you’ve not already signed it and support the concept of a PR voting system in the UK then please consider signing it.  The Petition can be found here.

#GE2015, Data Protection, Privacy and FOI

It is now two days since the UK went to the polls to elect the 650 people who will be responsible for representing us until Parliament dissolves on Monday 20 April 2020 (assuming the Fixed-Term Parliaments Act 2011 remains in place and intact).  The result was significant for many reasons, some of which I may address in a future blog post.  The focus of this blog post though will be the possible impact on Data Protection, Privacy and Freedom of Information following the result in this election.

Data Protection and Privacy

These two areas, in their current form, rely heavily on EU law.  Both the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations implement EU directives into UK law.

It is well known that one of the promises David Cameron made was a referendum on the UK’s continued membership of the EU if the Conservatives were returned to power with a majority.  They were, albeit a small and fragile one, and as such it is likely that in 2017 we will have a referendum on whether the UK will continue to be part of the EU, or not.  If the UK were to leave the EU (and this is purely hypothetical at this stage), then there would be no requirement for the UK to continue to comply with EU law; including the Directives underpinning the Data Protection Act and the Privacy and Electronic Communications Regulations.

Withdrawal from the EU would not, of course, immediately repeal every piece of law that is implementing an EU Directive – such a position would be unworkable.  Overtime there would, like there is in every other area of law, be reform and that could include both the Data Protection Act and the Privacy and Electronic Communications Regulations.

That is not the end of the story though; our continued relationship with the EU will have some impact in this area, especially with regards to the Data Protection Act.  If we were to remain part of the EEA, we would still have to comply with EU law except in some areas: data protection is not one of those.  So, if we withdrew from the EU and remained part of the EEA, nothing would change.

If we withdrew from both the EU and the EEA there would still be some Data Protection implications.  The eighth Data Protection Principal prevents the transfer of personal data outside the EEA unless the country or territory to which the personal data is to be sent “ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.”  In other words, we would require some form of Data Protection or Privacy legislation that meets the test of “adequate” under EU data protection law.  This is a requirement that looks set to stay as part of the Data Protection Regulation currently working its way through the EU legislative process.  In all likelihood we would probably adopt the same data protection regulations as the EU, or something substantially similar thereto.  For that reason, Data Protection and Privacy looks fairly safe over the coming 5 years.

Freedom of Information

Scotland has its own Freedom of Information laws that cover Scottish public authorities.  These laws will likely remain largely unchanged in light of the 2015 election result.

Freedom of Information Act 2000

The FOIA covers English and Welsh authorities as well as UK-wide authorities such as UK Government Departments, the British Transport Police, the BBC, Channel 4 etc.  They are not popular with the Government; they force the Government to reveal information it would rather keep secret.  The Prime Minister isn’t a big fan of FOI; it “furs up the arteries of Government”.  We can expect to see some changes to FOI laws over the coming 5 years: the veto will likely be strengthened in light of the recent UK Supreme Court decision in the Prince Charles case; there could well be changes to the cost limits making it harder to get access to information and there could be the introduction of fees (at least for Tribunal cases).  Substantial harm could be done here (and if you value FOI and the power it gives you to access information held by public bodies I would commend the Campaign for Freedom of Information to you – they could need a lot of help, support and money over the coming 5 years).

Environmental Information Regulations 2004

These implement an EU Directive and provide a much tighter access to information regime with respect to Environmental Information – they also cover a much wider number of bodies than the FOIA does.  While they implement an EU Directive, they have their origin in another international Convention (one which is not anything to do with the EU), the Aarhus Convention.  The UK is a signatory and so if it were to remain a signatory it is likely that there would be no change to the substance of the EIRs.  There would be changes though.

Currently, because they are based upon EU law, they are subject to the primacy of EU law.  It is largely for this reason that the veto was held not to apply to Environmental Information.  It also gives recourse to the Court of Justice of the European Union in respect of interpretation (as was seen with Fish Legal).  This strengthens the EIRs significantly.  However, all is not lost.  In terms of the Aarhus Convention there is a right of remedy to the Aarhus Compliance Committee.