Weekly Notes: legal news from ICLR — 20 March 2017
Posted on 20th Mar 2017 in Weekly Notes
This week’s roundup of legal news and commentary covers everything from politics to war and a bit of law in between. Some lighter notes amid the gloom, but mostly they’re laughter in the dark.
Brexit & Breakup
Parliament having finally voted to give the government power to issue notification under article 50 of the EU Treaty of Britain’s decision to leave the European Union, Scotland’s First Minister (Nicola Sturgeon) lost no time in announcing that her government would now hold a second Scottish independence referendum, with a view to Scotland remaining in or rejoining the European Union post-Brexit.
This raises questions about whether, if the vote supported independence, Scotland would retain some sort of relationship with the EU or would have to go and join the back of the queue, which might postpone any full re-entry for a decade.
As before, a big issue for any independent Scotland would be its currency and the management of its central banking and fiscal matters. Reports have suggested that some European leaders (all of whom would need to consent to any reintegration) are lukewarm, in party because they don’t want to encourage breakaway populations within their own countries. (Spain is the obvious example.)
If Scotland goes, can Northern Ireland be far behind? Brexit is adding to tensions in the north, and the prospect of a hard border with the south is not helping. A number of commentators have suggested that Northern Ireland might not only break away like Scotland but rejoin the south in a re-united Ireland.
In short, far from being the making of us, Brexit would have been the breaking of the United Kingdom.
In addition, there is the huge distraction this would present in terms of legislation, diverting resources away from other priorities of government, as the Institute for Government has pointed out in a new report, Legislating Brexit
- FT: Northern Ireland shows the risks of a hard Brexit
- Independent, Brexit ‘most dangerous issue for Northern Ireland since partition’
- Jack of Kent blog (written by David Allen Green): On Brexit, the SNP and Sinn Féin have been waiting and preparing the whole time
- Jack of Kent blog (ditto): Predictions and Article 50
- Steve Peers, EU Law Analysis, Scotland, the EU and ‘indyref2’: the legal issues
- Kevin Meagher, on politics.co.uk Northern Ireland is leaving the union — it’s only a question of when
On a lighter note…
- Chris Dale, Oxford Inciter blog: A team of not-third-raters dealing with a future which is not apocalyptic
- Damn Fine Media animation of Ian Dunt’s book Brexit: What the Hell Happens Now?
UPDATE lunchtime today: BBC, Article 50: Theresa May to trigger Brexit process next week
Featured image from The Drinks Business website: permission sought, and adopted with thanks.
Another fine mess…
The Conservative Party have been fined £70,000 over misreporting of its campaign spending in the 2015 general election. The Electoral Commission, having imposed the fine, referred one aspect of the case to the Metropolitan Police for further investigation.
A dozen police forces have already sent files to the Crown Prosecution Service following widespread investigations, prompted in large part by Channel 4 news coverage led by their reporter Michael Crick.
Prison and Courts Bill
Transform Justice published a briefing report last week providing more detailed analysis of the implications of the bill currently going through the parliamentary mill. The briefing focuses on proposals in the bill for criminal court reform and identifies four key areas of concern:
1 – The criminal court proposals seem to have been introduced in haste, in many cases without research, evidence or informal or formal consultation with experts and stakeholders.
2 – The government is committed to saving money through the court reform programme, but most changes have not been costed, and the impact on remand and sentences has not been modelled at all.
3 – The move to online and virtual justice threatens to significantly increase the number of unrepresented defendants, to further discriminate against vulnerable defendants, to inhibit the relationship between defence lawyers and their clients, and to make justice less open.
4 – Our criminal justice system is very complex and its fairness rests on parties understanding and participating in the process. This is difficult to achieve even when everyone is in a courtroom. Fundamental principles of justice and human rights are risked if we take justice wholly or partially out of the courtroom.
Transform Justice is a charity which promotes a fair, human, open and effective justice system. Read their report (pdf).
European court gives scope for employers to ban headscarves (and other religious symbols)
The European Court of Justice gave judgment last week in two cases concerning prohibitions against the wearing, for religious reasons, of a headscarf or hijab in the workplace. (NB Neither case was about the more restrictive facial veil or niqab.)
In Case C‑157/15, Samira Achbita, with the help of the Belgian Centre for Equal Opportunities and Combating Racism, had brought proceedings against G4S Secure Solutions NV, where she worked as a receptionist, following her dismissal for continuing to wear an Islamic headscarf despite a prohibition on employees wearing any visible signs of their political, philosophical or religious beliefs in the workplace and on engaging in any observance of those beliefs.
In Case C‑188/15, Asma Bougnaoui, with the help of the French Association for the protection of human rights, brought proceedings against Micropole SA, where she worked as a design engineer, following her dismissal for wearing an Islamic headscarf despite their request that she not do so when working for the company’s customers after they objected.
The court ruled in the first case that since the prohibition on religious manifestation was a general one it did not constitute direct discrimination under article 2(2)(a) of Council Directive 2000/78/EC on equal treatment (the Framework Directive), and that it might constituted indirect discrimination under article 2(2)(b) if it impinged with particular force on persons of one religion as opposed to another. If so, the question whether it could nevertheless be justified was one for the referring court to decide.
In the second case the court rejected the argument that the prohibition on the wearing of the headscarf to cater for a customer’s preference was a “genuine occupational requirement” within the meaning of article 4(1) of Directive 2000/78.
The overall effect is that the court has confirmed that employers can impose a general ban on all religious manifestations in the workplace, on the basis of a desire to project a neutral, secular image; but they can’t impose specific bans on specific types of religious symbolism just to satisfy the whims or prejudice of customers.
Taken together the decisions are not particularly surprising, but the first one does appear to send a fairly clear signal to employers that, so long as they comply with the technicalities, they can justify indirect discrimination against Muslim women on the basis that less obvious religious symbols such as crucifix pendants (or indeed the smudge of ashes a woman MP was recently criticised for manifesting on Ash Wednesday), are also barred.
But the decisions have been criticised as pro-employer and as supporting a general trend in Europe against minority religious manifestation. Moreover, they appear to create a risk of friction between the jurisprudence of the Court of Justice in Luxembourg and that of the Court of Human Rights in Strasbourg, which ruled in Eweida v UK  57 EHRR 8 that a corporate ban on the wearing of religious symbols in so far as it prevented Ms Eweida from wearing a small cross on a necklace was disproportionate and violated her rights under article 9 of the Human Rights Convention.
For commentary on this case see:
- Schona Jolly QC, on the Cloisters chambers blog, Achbita & Bougnaoui: A strange kind of equality
- Dylan Brethour, on Rights Info, Employers Can Ban Headscarves and Religious Symbols — As Long As The Rules Apply To Everyone
- Steve Peers, EU Law Analysis blog, Headscarf bans at work: explaining the ECJ rulings
- Ronan McCrea, EU Law Analysis blog, Faith at work: the CJEU’s headscarf rulings
- Poppy Rimington-Pounder, on the UK Human Rights blog, European Court unveils controversial new ruling
You can also read our law reporter’s case summaries of both cases here:
- Achbita and another v G4S Secure Solutions NV (Case C‑157/15)  WLR (D) 175
- Bougnaoui and another v Micropole SA (Case C‑188/15)  WLR (D) 176
The illustration we’ve used above was its own news story last week, reported by the BBC, when photographer Ben Patey spotted seven nuns (or sisters, unless one of them was Mother Superior) wearing the traditional wimple along with the rest of their habits, at the tube station Seven Sisters.
Crisis in the Judiciary (continues): Law in Action update
We’ve written an update on last week’s story about the crisis (of recruitment and morale) in the judiciary, which you can read in a separate post on our Medium account (where we also posted some of the rest of this content in advance of compiling this roundup).
See also: Joshua Rozenberg, in the Law Society Gazette, Beefing up the bench
Marine A’s murder conviction reduced to manslaughter
We covered the case of Marine A, now known as Sgt Blackman (pictured), back in 2014 at the time of his earlier, unsuccessful appeal against conviction for murder in respect of his shooting, while serving in Afghanistan, of an enemy prisoner: see Weekly Notes — 23 May 2014.
The case was reported at the time: R v Blackman (Secretary of State for Defence intervening)  EWCA Crim 1029;  1 WLR 1900, Ct-MAC.
The case arose out of an incident in 2011 in Helman Province in southern Afghanistan, where British forces were quelling an insurgency, which had been captured on video via a camera mounted on another marine’s helment, in which the appellant shot a wounded prisoner and then told his comrades: “Obviously this doesn’t go anywhere, fellas. I just broke the Geneva Convention.”
This second appeal against conviction was heard by a 5-judge Court Martial Appeal Court on a reference by the Criminal Cases Review Commission, citing new psychiatric reports indicating that, at the time, he had been suffering from a form of combat stress that justified a finding of diminished responsibility. The new court accepted this and reduced the murder conviction to one of manslaughter.
A very thorough explanation of all the questions a puzzled lay person might be tempted to ask about this case has been provided on The Secret Barrister’ blog, The Marine A judgment — a handy 10-point guide.
See also: news report by BBC
Read the second appeal judgment: R v Blackman (No 2)  EWCA Crim 190
Dates and Deadlines
Article 50 TEU: Secrets and Lies
Lecture at 6pm on 28 March 2017 by Professor Piet Eeckhout, Academic Director of the UCL European Institute and Professor of EU Law at the UCL Faculty of Laws.
Cruciform Lecture Theatre 1, UCL Gower Street, London, WC1E 6BT
Booking etc click here.
New BBC 2 series starting Tuesday 21 March, in which a documentary film crew follow police and prosecutors in Jacksonville, the ‘murder capital’ of Florida, renowned for its tough approach to justice.
New podcast from the This American Life team that brought you Serial. This third season covers an unsolved murder in Alabama. Complete episode list will be released on 28 March. Here’s an article in The Guardian all about it.
Law (and injustice) from around the world
Travel ban: the Hawaii comeback
In the midst of tit-for-tat (or perhaps tip-for-tap) allegations and counter-allegations about bugging, spying and the alleged use of microwave ovens in surveillance tradecraft, the litigation over Trump’s revised travel ban continues.
In Hawaii the judge who on Wednesday last week blocked the President’s revised travel ban executive order (see last Weekly Notes — 13 March 2017) subsequently rejected a motion, filed Friday by the government, to limit his ruling. According to the Los Angeles Times,
In a short filing in his Honolulu court on Sunday [19 March], U.S. District Judge Derrick Watson told federal lawyers who protested against the broad scope of his ruling that “there is nothing unclear” about his order against the ban.
The Department of Justice had filed a motion late Friday [17 March] asking Watson to scale back his decision that found the travel ban to discriminate against Muslims to match a narrower ruling against it issued by a federal court in Maryland.”
The Maryland federal court order that was issued on Thursday by U.S. District Judge Theodore D. Chuang declined to rule against the pause and cap on refugees aspect of the second travel ban.
For a full and regularly updated list of litigation docs and resources on the travel ban executive orders, see Lawfare blog.
For more on counsellor Kellyanne Conway’s allegations about microwave surveillance (she is not, she says on air, “in the job of having evidence”) see, Aaron Rupar on Medium
On allegations that GCHQ spied on Trump at Obama’s request, see Guardian, GCHQ dismisses ‘utterly ridiculous’ claim it helped wiretap TrumpSupreme Court nomination hearings
Supreme Court nomination hearings
Meanwhile, back in Washington DC, confirmation hearings begin today for Judge Neil Gorsuch, who was nominated by President Trump to fill the vacancy on the bench left by Justice Scalia’s death last year.
The democrats have vowed to block the nomination, though it’s hard to see on what basis other than out of pique over the Republicans’ refusal to countenance the confirmation of former President Obama’s nominee, Chief Judge Merrick Garland of the D.C. Circuit, who was said (on the SCOTUS blog) to be “a highly qualified and largely apolitical judge”. (See Weekly Notes — 18 March 2016). That was almost exactly a year ago.
For a handy primer on the process of confirmation, we have been recommended Julie Silverbrook’s blog.
Julie Silverbrook is Executive Director of The Constitutional Sources Project (www.ConSource.org).
Girl power – exercised by men
“Saudi Arabia is not known for its strong record on women’s rights so the formation of a council, intended to provide women with more opportunities and a voice, was taken to be encouraging,” ABC News reported this week.
The only problem was, none of the members of the council was a woman (or girl).
women do sit on the council […] and they were present at the launch too, but were streamed in on video link due to strict Saudi laws on gender segregation between unrelated men and women.”
The surreal absurdity of it invites comparison with a satirical novel, one might think. But as ABC point out, “women are not allowed to drive and must have the permission of a male guardian to work, study, travel or marry”.
And finally … Tweet of the week
Which comes from the Daily Telegraph’s resident cartoonist, Matt:
— The Telegraph (@Telegraph) March 18, 2017
That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.
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