OPEC’s Decision to Cut Oil Production: Factual and Legal Background

This blog is by Constantinos Yiallourides, a Doctoral Candidate at the University of Aberdeen.  In this blog, he considers the most recent decision of OPEC to cut oil production and its potential implications.

On 30 November 2016 in Vienna, the Organization of the Petroleum Exporting Countries (known as OPEC, or Organization) reached a historic deal to cut-down on their current collective output, leaving behind the pump-at-will policy the Organization had adopted in 2014 at the instigation of Saudi Arabia. They decided, after eight years of continuous negotiations, to reduce production by about 1.2 million barrels a day. The new limit on total OPEC output will be 32.5 million barrel per day.

The agreement follows on from a plan sketched out in the 170th (Extraordinary) Meeting of the OPEC Conference in Algiers on 28 September 2016 where OPEC countries agreed to examine how to set up a production ceiling of between 32.5 Mb/d and 33.0 Mb/d. They also emphasised the need to bring leading non-OPEC producers into the process in an effort to stabilise the oil market and avoid the adverse impacts in the short and medium-term. While certainly significant, the Algiers failed to reach a consensus on how to distribute the cuts amongst its members. Further, OPEC’s push to implement the Algiers deal and boost oil prices shifted focus to major crude suppliers outside of OPEC such as Russia. Despite some positive signs, Russia appeared reluctant to curtail its current production rates, risking scuttling the whole deal.

With the 30 November decision, a more specific implementation framework has now been agreed and the actual cuts of each OPEC country have been determined. OPEC’s Secretary-General Mohammad Barkindo stated that this cooperation will be ‘the first time OPEC [and] non-OPEC will agree to a joint, binding supply-management agreement’ according to the Wall Street Journal. Over the coming 6 months, starting from 1 January 2017, Saudi Arabia shall cut its output by 486,000 barrels a day to 10.058 million a day. Iraq, OPEC’s second-largest producer, shall reduce by 210,000 barrels a day from October levels. The United Arab Emirates and Kuwait will reduce output by 139,000 barrels a day and 131,000 a day, respectively. Most crucially, Russia has agreed to cut output in the first half of 2017 by up to 300,000 barrels per day. As it turns out, this is the first time in 15 years that the non-OPEC oil-producing country Russia is officially participating in an OPEC production cut deal.

Factual and Legal Background

OPEC was created at the Baghdad Conference on September 10-14, 1960. Its current members, with years of membership, include: Algeria (1969-present), Angola (2007-present), Ecuador (1973-1992 and 2007-present), Gabon (1975-1994 and 2016-present), Indonesia (1962-2008 and 2016-present), Iran (1960-present), Iraq (1960-present), Kuwait (1960-present), Libya (1962-present), Nigeria (1971-present), Qatar (1961-present), Saudi Arabia (1960-present), United Arab Emirates (1967-present) and Venezuela (1960-present).

OPEC’s stated objective is to coordinate the petroleum policies of member countries and to determine the best means of safeguarding their interests. This includes devising ways for ensuring the stabilisation of prices in international oil markets with a view to eliminating harmful and unnecessary fluctuations. According to Article 10 of OPEC statute, the Conference is the supreme authority of the Organization. The Conference, which typically meets twice a year, consists of delegations representing all the member countries. A non-member country may be invited to attend a Conference as an observer, only if the Conference so decides. Article 15 of OPEC statute provides that the Conference shall ‘formulate the general policy of the Organization and determine the appropriate ways and means of its implementation’. That said, OPEC’s most recent Conference, after reviewing oil market developments since it last meeting in Algeria as well as the oil market outlook for the remainder of 2016 and 2017, found that it is in the interest of both OPEC and non-OPEC producing countries to bring stock levels down to normal levels in order ‘to accelerate the ongoing drawdown of the stock overhang and bring the oil market rebalancing forward’.

According to OPEC’s press release, its decision to implement a new OPEC-14 production target of 32.5 Mb/d, was based on the report of OPEC’s Secretary General’s, the recommendations made by the High-Level Committee that was set up following the Algiers framework agreement, the report of the Economic Commission Board and OPEC’s Long-Term Strategy (LTS) document. A common observation in all the documents above was that, because of the continuous oil price downfall due to oversupply, global spending on exploration and production investments has also been free-falling since 2014, and a third year of investment falls would be catastrophic. Thus, appropriate responses to bring forward the rebalancing of supply and demand, this returning sustainable stability to the market were deemed urgent.

Current and Future Implications

The recent decision of OPEC to cut production has already had a positive effect on global oil prices. At the time of writing this blog, only five days following OPEC’s decision, global oil prices have surged 15 percent with Brent crude rising from $46 per barrel up to $54.94 per barrel according to Bloomberg. Some commentators suggest that this may mark the beginning of the end of a two-year downfall in the global oil market, during which prices have plunged from $100 per barrel down to $40 and oil producing countries, such as Venezuela, have come close to financial collapse.

However, whether this upward trend is sustained, it will depend on a number of factors. First, the agreement depends on how closely the OPEC and non-OPEC countries, such as Russia, adhere to their promises to pump less, something they have not always done in the past. Indeed, there are still questions about how this deal will be monitored and enforced. For example, it is submitted that traders cannot fully monitor the implementation of Russia’s pledge to cut 300,000 b/d of production since much of its production moves via pipelines as opposed to oil tankers which are easier to monitor based on how many leave port. Thus, getting Russia to stick to this commitment may be a tougher sell than expected, according to energy analysts.

Third, there is the question about the potential implications of the shale energy revolution in the US. Indeed, if anyone is cheering the news of the OPEC deal it is US shale producers. Over the past year, with global oil prices low, the US oil production has been constrained to some extent. A likely rebound in oil prices, if OPEC members cut supplies, combined with a steep slide in drilling costs as a result of technological advances, could lead to a revival in US shale production. This scenario played out similarly in late September 2016 when oil prices increased shortly after the announcement of the Algiers deal. US shale producers swiftly put rigs back in operation sending prices right back down to where they were before the announcement. Undoubtedly, this could pose serious challenges to the Organization’s efforts to boost oil prices.

Finally, as always with oil, there is time and money at stake and the stakes are high: from what refiners, marketers, distributors, and retail station owners gain per gallon, to the future of the global oil market and the world economy as a whole. OPEC, it would appear, still has the power to shake global markets. If the OPEC agreement pushes oil above $60 a barrel in the next few weeks, as some optimistic estimates suggest, it will certainly allow some breathing space to big oil producers who have seen their profits halved since 2014. On the other hand, big oil consumers will have to move swiftly to protect themselves against soaring fuel prices. Airlines, for example, could scramble to hedge against rapidly increasing oil prices.

Rent Deposits – Filling in the Gaps

This blog post is by the undergraduate LLB (Hons) candidate Matthew Nicol.  Matthew is a member of this year’s Scottish Law of Leases Honours class.

Background

With all the major world-shaking events that are at present going on around us, it is easy to overlook the smaller things, which may, nevertheless, still have an effect upon us.  For example, on the Brexit/Trump scale of 0-10, the Tenancy Deposit Schemes (Scotland) Regulations 2011 might, on the face of it, rate at 0.00001. Yet the scheme significantly impacts upon landlords and tenants in Scotland’s private residential rented sector, and could, in the event of failure to comply with the regulations, result in landlords becoming liable to pay over to their tenants a hefty sum (albeit one that cannot exceed three times the amount of the tenancy deposit). In a case where the monthly rent is, say, £1560 (based upon three students sharing a flat, each paying £125 per week), the maximum penalty for non-compliance with the regulations would be £4875, with the money going to the tenants. This sanction is intended to deter non-compliance with a statutory scheme, providing enforceable protections to tenants against non-compliant landlords.

Phoebe Russel-Smith and others v Ijeoma Uchegbu

The case of Phoebe Russel-Smith, Stephanie Dion-Jones and Alexis Herskowit v Ijeoma Uchegbu [2016] SC EDIN 64 (hereinafter Russel-Smith) related to a dispute regarding a landlady’s admitted failure to lodge the deposit in an approved deposit guarantee scheme. Once the court action had commenced this requirement of the Regulations was eventually complied with, but there was another failure on the part of the landlady in relation to the provision of information (under Regulations 3 and 42 of the 2011 Regulations) to the tenants.

This note focusses on the issues arising out of a summary application raised against the landlady by three of her four co-tenants.

Res Judicata

For reasons that were unknown to the sheriff, one of the co-tenants, Marc Fitchett, chose not to participate in the action against the landlady. Notwithstanding this, the court proceeded by assessing the level of the penalty at the top end of that which was available to the claimants collectively (as in, the full monthly rent, as paid by all four tenants, times three).

Given Fitchett’s non-participation in the legal action, a problem was posed for the Sheriff in relation to the quantum of the sanction.  As Sheriff Welsh noted (at paragraph 6)

[o]nly three of the four tenants under the tenancy make this application. I do not know if Marc Fitchett has waived his right to apply for sanction. He can apply up to 31 October 2016. However, if he did, the landlady could not, in my opinion, be sanctioned twice. The scheme does not provide for that.

Clearly, this could result in some prejudice to the fourth tenant, as by not being joined in the action raised by the other three – was he even invited to? – the fourth tenant would lose out not only on the financial compensation at the time of the initial claim, but any further right of his to exercise this claim. Such is the nature of the doctrine of res judicata.

Res judicata, broadly stated, concerns circumstances in which pursuers are barred from continuing litigation where there has already been final judgement. The term is synonymous with ‘the matter decided’ and carries an implication, as recently illustrated in Smith v Sabre Insurance [2013] CSIH 28, that all losses arising out of a single incident ought to be raised at the same time (discussed by the Scots law firm Brodies here).  The case of Smith set out that this principle is a long-established and highly practical element of Scots law.

The case of Russel-Smith perhaps illuminates – in its particular statutory context – a particular quirk of the res judicata doctrine, whereby in trying to protect the defender from future litigation where a decision has already been made, prejudice actually crystallises instead on one (or more) persons who might have been potential pursuers.

The court’s response in Russel-Smith was robust in terms of addressing the issue of res judicata. The sheriff refused to reduce the award to the three co-litigant co-tenants pro-rata by 25% (so as, it had been submitted, to reflect non-participation in the action by one co-tenant).  This was because whatever course of action was taken, including an award made to the three tenants, the effect of that award would be that the fourth tenant would then be prevented from having an exercisable claim against the landlord. The sheriff was therefore moved to award the full amount to the three co-litigants, thereby preserving a right (and surely giving rise to a claim in unjustified enrichment) of the fourth tenant to claim against his former co-tenants for a 25% share of the award (which might be pursued under the new simple procedure, whereas actions under the Tenancy Deposit Scheme Regulations must be raised by way of summary application during or within three months of the termination of the tenancy; note also that such a claim would be subject to statutory prescription and not affected by the time limit for the raising of a claim under the regulations).

In terms of resolving the potential inequities which might result from the blocking any further claim on the ground of res judicata when an otherwise viable claim under the 2011 Regulations is not exercised at the same time as other claims (for example, where one co-tenants takes a month’s holiday following the termination of the tenancy then returns to their family home in Aberystwyth, or wherever, while the other three move on to another shared flat together and do not feel inclined to search out their former flatmate), the judgement in Russel-Smith does assist in granting another opportunity to a party to claim.

However, and as has already been referred to above, a distinct possible downside emerges out of the relative fluidity which the approach of the sheriff in Russel-Smith gives to the tenants in order to achieve a resolution for them collectively. Without knowing the rationale of the fourth tenant for refusing to partake in the initial claim, it could speculatively be said that the judgment in Russel-Smith appears to offer such a tenant the right to ‘piggyback’ on the efforts of his fellow tenants in the initial litigation after he had perhaps refused to be involved in that action.

The policy and statutory agenda behind the Regulations is to address the problem of landlords unfairly misusing tenancy deposits, and to protect against the landlord holding the deposit and then becoming insolvent. It is arguable that the effect of the judgement of Russel-Smith is to create the scope for tenants making claims against one another in the aftermath of a judgement against a landlord, which complicates the horizontal relationship between co-tenants (as well as distorting the vertical relationship between tenant and landlord).

Given that one of the primary aims of the Tenancy Deposit Scheme Regulations is (according to the legal commentator Angus McAllister) to ‘ensure that deposits are returned quickly and fairly, particularly in the event of a dispute’, the judgement of Russel-Smith appears to complicate this approach. The sheriff’s approach adds an extra dimension to the dispute process surrounding the deposit. Whilst it is correct that the matter has been resolved by the case of Russel-Smith, in that all of the losses arising from the incident were raised at the same time, the equity of the approach adopted by the court in Russel-Smith is not unchallengeable. Now we are faced with a question of whether the matter is truly decided if the full losses have been awarded to the claimants, yet there exists a right of another claimant to derive his share of the sum at a later date.

The calculation of the penalty

In calculating the amount of the penalty, Sheriff Welsh (at paragraph 9 in his judgement) adopted a two-stage process.  Firstly, he adjusted the full sum of the deposit so as to be pro rata of the number of ‘unprotected’ days out of the term of the tenancy:

In my judgement there are two broad aspects to the sanction […] Firstly, the lease lasted 334 days, for 270 days of which, the deposit was unprotected and the tenants deprived of protection from the scheme and the proper information. In my judgement, to mark the fact that the defender breached the regulations for a sustained period of time which subjected the tenants and the deposit to a risk the regulations are designed to avoid, the proportionate and appropriate starting point for sanction in these circumstances is £1550 divided by 334 multiplied by 270. This produces a figure of £1253.

Then he made an assessment of what might be termed the landlord’s culpa element

Secondly, to that sum I will add a weighting to reflect the fact that the landlady was repeatedly officially informed of her obligations and still failed to comply. I do not accept the suggestion this was wilful defiance of the regulations. I am more inclined, on a balance of equities, even if finely judged in this aspect of the case, to accept the submission that the defender was dilatory in attending to her obligations to protect the deposit and advise the tenants of their rights rather than in wilful defiance of the purpose of the scheme. In assessing this aspect I also weigh in the balance the fact that no actual prejudice occurred and in the final analysis the purpose of the regulations was not defeated and the deposit was returned to the tenants, in full, without dispute. I also take into account the early admission of breach in these proceedings and the responsible way the defender has remedied the situation through her agents. I had the benefit of seeing the defender during the proceedings and while it may be said; ‘There’s no art to find the mind’s construction in the face’ [Macbeth, Act 1 Scene 4], I am satisfied the assurances given by Mr Wells, that she deeply regrets the position she now finds herself in, are genuine.  For all these reasons, I will set the financial penalty to reflect this second factor, at £600.

The maximum possible penalty would have been £4,650, meaning that under Sheriff Welsh’s two step approach – with the first stage ‘deprivation of protection’ element having been set at £1,253 – the maximum ‘stage  2’ culpa element would have been £3,397.

Postscript

On 17 March 2016 the Scottish Parliament passed the Private Housing (Tenancies) (Scotland) Act 2016 (asp 19).  It received Royal Assent on 22 April 2016, and is currently subject to commencement.  Much necessary infrastructure for the new statutory tenancy regime created by the statute has to be put in place, and full commencement may take some time.  One aspect that is of interest here relates to Part 2 of the Act, under which the landlord is required to provide certain specified information to the tenant.  In the event of the landlord’s failing to do so, the tenant may make an application to the First-Tier Tribunal, with the tribunal having the power to sanction the landlord’s failure to provide the required information.  Section 19 of the 2016 Act allows the Tribunal the power to penalise the landlord by requiring her to pay ‘the person’ who made the application an amount not exceeding, in specified cases, six month’s ‘rent’.  Section 16 subsections (6) and (7) specify:

(6) In a case where two or more persons jointly are the tenant under a tenancy, references to the tenant in this section are to any one of those persons.

(7)  In subsection (2), “rent” means––

(a) the amount that was payable in rent under the tenancy at the time that notice of the application was given to the landlord, and

(b) in a case where two or more persons jointly are the tenant under the tenancy, the amount mentioned in paragraph (a) divided by the number of those persons.

Section 5 of the 2016 Act has the effect of extending references in other enactments to tenancies and to connected expressions so as to cover private residential tenancies under the 2016 Act (unless it appears from the context that a particular reference is not intended to cover private residential tenancies).

The First-Tier Tribunal for Scotland Housing and Property Chamber is to inherit the jurisdiction of the Sheriff Court in respect of private residential tenancies. The Chamber will take over the functions of the Private Rented Housing Panel and the Homeowner Housing Panel with effect from 1 December 2016, and will begin to hear more private rented sector cases in consequence of the transfer of jurisdiction from the sheriff courts plus actions relating to private residential tenancies under the 2016 Act from December 2017.

If Sheriff Welsh’s analysis in respect of res judicata in the context of tenancy deposits is to be followed, there will be the situation in which the First-Tier Tribunal will apply one (res judicata) rule in respect of rent deposits and another (non-res judicata) in respect of ‘certain specified information’.  The potential for confusion is clear. That being said, in either case, professionalism and best practise are clearly the landlord’s best safeguard.

Finally, it is worth noting that the First-tier Tribunal for Scotland Housing and Property Chamber and Upper Tribunal for Scotland (Composition) Regulations 2016 allow for tribunals of up to three members:

Composition of First-tier Tribunal

2 (1) Subject to paragraph (2) the First-tier Tribunal, when convened to decide any matter in a case, shall consist of—

(a) a legal member;

(b) a legal member and one ordinary member; or

(c) a legal member with two ordinary members.

This introduces scope for differences of opinion in relation to the quantification of statutory penalties, making Sheriff Welsh’s two-step mode of calculation an attractive approach.

Aggravation by Religious Prejudice in Scotland: The Lord Advocate’s Lacuna

This post is by Dr Phil Glover.

The Lord Advocate, the Rt Hon James Wolffe, QC, recently wrote to the Scottish Justice Secretary Michael Matheson following the conviction and sentencing of Tanveer Ahmed for the religiously-motivated murder of Asad Shah.  His correspondence referred to a ‘gap in the law’ (the Lord Advocate’s lacuna) and reflected ‘the earlier decision by senior Crown Office and Procurator Fiscal Service counsel that the circumstances of the killing did not meet the statutory test for an offence to be aggravated by religious prejudice’. Mr Matheson’s public response was that ‘as a government we are now going to consider [the Lord Advocate’s letter] very carefully and if necessary… bring forward legislation to address this very issue’.

Following my own research into the current legislative and common law provisions relating to aggravation by religious prejudice, I have reached the same conclusion as the Lord Advocate and also written to Mr Matheson. The purpose of my letter, in the absence of an official consultation, is to provide evidence of the existence of the lacuna, comment on some of its implications and propose a solution which involves amending the current statutory provision for aggravation by religious prejudice rather than the enactment of completely new legislation.

In summary, I recommend that a very simple amendment could be inserted to the provisions of the Criminal Justice (Scotland) Act 2003, s74(2) to include the evincing by an offender of malice and ill-will towards their victim (if any) based on ‘the victim’s public expression of personal religious belief(s)’. This would correct the Lord Advocate’s lacuna. I will now make the case for that assertion.

That the Offence was ‘religiously motivated’.

Asad Shah’s murder was undoubtedly based on religious prejudice and his sentence should have ‘officially’ recorded the fact as a matter of law and of appropriate societal labelling. In passing judgement and sentence, Lady Rae observed that Ahmed’s murder of Mr Shah:

was a brutal, barbaric and horrific crime, resulting from intolerance and which led to the death of a wholly innocent man who openly expressed beliefs which differed from…[those of Ahmed]…this was a religiously motivated crime, although it was not directed towards the Ahmadi community…[a branch of the Muslim faith of which Asad Shah professed adherence]

Lady Rae’s conclusions in the agreed narrative are founded on the fact that Tanveer Ahmed unashamedly and unrepentantly admitted (via a statement made on his behalf by his solicitor) that his conduct was motivated by his religious intolerance of Asad Shah’s expression of personal religious beliefs. Lady Rae’s use of the term ‘intolerance’, as opposed to ‘prejudice’ in her statement is somewhat unfortunate, as Scots Law currently does not make common law or statutory provision for ‘intolerance’. A description of Ahmed’s conduct as motivated by ‘religious prejudice’ would have perhaps served to narrow the Lord Advocate’s lacuna.

It is my view that, regrettably, consistency in Scottish society and Scots law as regards interpretation and usage of terms such as ‘hate crime’, ‘intolerance’, ‘offensive’ and ‘prejudice’ is currently lacking. However, if literal (rather than legislative) English is applied to the Lord Advocate’s issue, it is plain that ‘intolerance’ (unwillingness to accept views, beliefs, or behaviour that differ from one’s own) and ‘prejudice’ (dislike, hostility, or unjust behaviour deriving from preconceived and unfounded opinions) are readily interchangeable. It is therefore not difficult to concur with Lady Rae’s and Tanveer Ahmed’s statements that the brutal murder of Mr Shah was, as a matter of fact, aggravated by religious prejudice. Of course the issue raised by the Lord Advocate is that the circumstances of the murder were not, as a matter of law, aggravated by religious prejudice. As such, the relevant law will now be examined.

Scots Law regulation of ‘Aggravation by Prejudice’

The Scottish Government have acknowledged that Scottish courts possess longstanding common law powers to punish offenders more severely for the commission of prejudice-related crime by taking into account aggravating factors when sentencing. These have been complemented by a number of ‘statutory aggravations for criminal offences and substantive criminal law offences’. Leaving aside the debate over terminology and any potential benefits of consolidation, Scots law’s statutory aggravations include aggravation of substantive criminal offences by: racial prejudice; religious prejudice; disability prejudice; and sexual orientation prejudice and transgender identity prejudice. The current absence of Scots law provisions proscribing age prejudice and gender prejudice aggravations has been the subject of adverse comment. The statutory aggravations that do exist will now be examined. For present purposes, and to demonstrate the evolution of a drafting pattern that has inadvertently facilitated the Lord Advocate’s lacuna, aggravation by religious prejudice is examined last.

Origins of the Drafting Pattern – Racially aggravated harassment

Leaving aside the substantive offences of the (UK) Public Order Act 1986, which introduced the UK and Scotland to the concept of ‘racial hatred’, the first pre-devolution Act (i.e. law passed prior to the establishment of the Scottish Parliament) to directly address racial prejudice was the Criminal Law (Consolidation) (Scotland) Act 1995, as amended by the (UK) Crime and Disorder Act 1998. This enacted a new Scotland-specific substantive offence of racially aggravated harassment. This proved to be the beginning of what evolved into an identifiable drafting pattern, in that a ‘course of conduct’ or an ‘action’ is racially aggravated if:

(a) immediately before, during or immediately after carrying out the course of conduct or action the offender evinces towards the person affected malice and ill-will based on that person’s membership (or presumed membership) of a racial group; or

(b) the course of conduct or action is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

‘Racial group’ means ‘a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins’, ‘membership’ includes association with members of that group, and ‘presumed’ means presumed by the offender. It is immaterial whether or not the offender’s malice and ill-will is also based, to any extent, on the fact or presumption that any person or group of persons belongs to any religious group or any other factor.

In the absence of accompanying Explanatory Notes, the reason why the definition of the term ‘racial hatred’ contained in the Public Order Act 1986, is not replicated in the racially aggravated harassment provisions of the Criminal Law (Consolidation) (Scotland) Act 1995 (as amended) is not readily evident. ‘Evinces’ seems a carefully chosen word meaning ‘to reveal the presence of, or indicate’. ‘Racial hatred’ is replaced by ‘malice and ill-will’. This may be because proving ‘hatred’, a very strong, subjective and emotive term, on the part of an individual offender, was thought to represent too high a threshold for proof beyond reasonable doubt. Despite this ‘drop’ in threshold, the Scottish provisions, which require ‘malice and ill-will’, still demand a higher threshold of nastiness (for want of a better term) as part of the criminal behaviour (the actus reus, in legal circles) than the equivalent English offence. This only requires the transient and less nasty behavioural threshold of ‘demonstrating hostility’ towards the victim. (As an aside, the requirement for different Scots provision is never really made clear, but there was some relevant discussion in the House of Lords: see HL Deb 12 February 1998 vol 585 cols 1265-1325 and in particular Lord Monson on ‘nastiness’, col 1277.)

Aggravation by racial prejudice

The Crime and Disorder Act 1998 additionally introduced section 96, also drafted specifically for Scotland. Aggravation [of a substantive offence] by racial prejudice will occur where:

the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a racial group or the offence is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

Unsurprisingly (as they emanate from the same statute) the definitions of ‘member’, ‘presumed’ and ‘racial group’ replicate those for racially aggravated harassment. More importantly for present purposes, the drafting pattern wherein the conduct required (the evincing of malice and ill will towards a person based on their membership/presumed membership of a group an offender perceives as different to, and somehow irritating to him or her) is now becoming clearly evident.

Aggravation by Disability-related prejudice

This pattern continues in the Offences (Aggravation by Prejudice) (Scotland) Act 2009, section 1. As for the older statutory aggravations by racial or religious prejudice, this applies where it is libelled in an indictment, or specified in a complaint, that an offence is aggravated by prejudice relating to disability, and subsequently proved. An offence is aggravated by prejudice relating to disability if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to a disability (or presumed disability) of the victim, or (b) the offence is motivated (wholly or partly) by malice and ill-will towards persons who have a disability or a particular disability.

It is submitted that Scots statutory aggravations by prejudice as drafted therefore continue the now established practice of requiring the offender’s malice and ill-will towards a victim (if any) to be based on the offender’s perception (correct or otherwise) of their victim as somehow different, irritating or repulsive to him or her on account of a particular characteristic (visible or otherwise) that the State has categorised (i.e. grouped together). In this provision, the relevant victim is perceived by the offender as being part of a wider group that the State has categorised as the ‘disabled’ group, or the offender feels predisposed to evincing malice and ill-will towards that State category more generally.

Prejudice relating to sexual orientation or transgender identity

The drafting pattern unsurprisingly continues in section 2 of the same statute.

An offence is aggravated by prejudice relating to sexual orientation or transgender identity if, at the time of commission or immediately before or afterwards, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to (i) the sexual orientation (or presumed sexual orientation) of the victim, or (ii) the transgender identity (or presumed transgender identity) of the victim, or

the offence is motivated (wholly or partly) by malice and ill-will towards persons who have (i) a particular sexual orientation, or (ii) a transgender identity or a particular transgender identity.

For the purposes of the provision, ‘sexual orientation’ is described as ‘sexual orientation towards persons of the same sex or of the opposite sex or towards both’; the Explanatory Notes to the legislation explain this means ‘heterosexuality, homosexuality or bisexuality’. ‘Transgender identity’ is reference to ‘transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004, changed gender, or any other gender identity that is not standard male or female gender identity’.For this definition, the Explanatory Notes explain that it also:

extends expressly to cover other persons under the generality of broad reference to non-standard gender identity…[including, but not limited to]…those who are androgynous, of…non-binary gender or…otherwise exhibit[ing] a characteristic, behaviour or appearance…[not conforming]… with conventional understandings of gender identity.

As for the previous forms of prejudice, aggravation by prejudice relating to sexual orientation or transgender identity requires the offender’s malice and ill-will towards a victim (if any) to be based on the offender’s perception (correct or otherwise) of their victim as somehow different, irritating or repulsive to him or her on account of a particular characteristic (visible or otherwise) that the State has categorised (grouped). In this case the State is seeking to protect the victim through categorising them as part of a ‘homosexual’ group, ‘heterosexual’ group, ‘bisexual group’ or ‘transgender group’.

Aggravation by Religious Prejudice in Scotland: the current law

The drafting used in Scotland’s statutory provisions providing for aggravation by religious prejudice represent a virtually verbatim derivative of the UK legislature’s older provisions for aggravation by racial prejudice previously outlined. The relevant statutory provision is the Criminal Justice (Scotland) Act 2003, section 74. As with the other statutory aggravations, it applies ‘where it has been either libelled in an indictment or specified in a complaint, and, in either case, proved that an offence has been aggravated by religious prejudice’.

For the purposes of section 74, an offence is aggravated by religious prejudice if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation;

or, the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.

Critically, for present purposes, section 74 defines ‘religious group’ as:

a group of persons defined by reference to their religious belief or lack of religious belief, membership of or adherence to a church or religious organisation, support for the culture and traditions of a church or religious organisation, or participation in activities associated with such a culture or such traditions.

Aggravation by Religious Prejudice: the gap in the law

As for the previous forms of prejudice, aggravation by religious prejudice requires the offender’s malice and ill-will to be based on their perception (correct or otherwise) of their victim as belonging to a group comprising persons the offender sees as somehow different, irritating or repulsive to them. Protection against acts based upon evinced malice or ill-will founded on religious prejudice is therefore only available to self-confessed or ‘obvious’ members of a religious group, or of a social or cultural group with a perceived religious affiliation. There is currently no protection for individuals freely holding or freely expressing individual religious beliefs. This is surely wrong.

As it stands, Section 74 would, ironically and on the agreed narrative, have encompassed Tanveer Ahmed’s conduct if Asad Shah had expressed any religious profession of belief that was not associated with any branch of Tanveer Ahmed’s Muslim faith.

Regrettably therefore, the Lord Advocate’s lacuna is that, as drafted, ‘aggravation by religious prejudice’ cannot be applied to offences committed against individuals exercising, exhibiting or expressing their fundamental human right to freedom of thought, conscience or religion. That human right is enshrined in Article 9(1) of the European Convention on Human Rights.

Asad Shah exercised his personal articulation of religious belief as permitted by this right but he could not be categorised within any particular ‘religious group’ as the State currently requires in the Criminal Justice (Scotland) Act 2003. Mr Shah was not murdered on account of ‘malice or ill-will’ towards a ‘group of persons’ to which he was presumed by Tanveer Ahmed as belonging. He was murdered on account of the ‘malice or ill-will’ Tanveer Ahmed evinced towards his expressed religious beliefs.

The Lord Advocate’s lacuna is therefore (perhaps inadvertently) expressed by Lady Rae in her sentencing statement to Tanveer Ahmed based on an agreed narrative:

This was a…crime, resulting from intolerance…of a wholly innocent man who openly expressed beliefs which differed from yours…this was a religiously motivated crime, although it was not directed towards the Ahmadi community.

As such, unlike any other form of aggravation by prejudice in Scotland, Tanveer Ahmed’s malice and ill-will towards his victim, although founded on religious grounds, does not aggravate his murder of Asad Shah by religious prejudice as a matter of law.

Implications

As such, the Lord Advocate is not only correct, but has acted correctly in his role as the head of a public authority bound to act in accordance with the provisions of the Human Rights Act 1998 by highlighting the lacuna to the Justice Secretary. The Lord Advocate’s lacuna undermines individuals’ rights to State protection of their freedom of thought, conscience and religion, and to freely express that belief, under the following international treaties:

Universal Declaration of Human Rights, Articles 18 and 19;

Charter of Fundamental Rights of the European Union, Articles 10 and 11;

European Convention on Human Rights, Articles 9, 10 and 14.

In addition, the lacuna demonstrates Scotland’s current non-compliance with the Framework Convention for the Protection of National Minorities 1995, which requires (in terms of Article 6(2)) States to ‘take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity’. The use of ‘religious identity’ is particularly noteworthy here as it clearly distinguishes the Framework’s requirement upon States to protect individual persons vulnerable on account of their religious identity from Scots laws current protection of persons only if they can be categorised as falling within a particular religious, social or cultural group.

The lacuna also means that the sentencing provisions of the Criminal Justice (Scotland) Act 2003, s74(4A) cannot apply to crimes motivated by religious prejudice such as that of Tanveer Ahmed discussed herein. As such, Lady Rae’s calculation of sentence was undoubtedly affected (which she made implicitly clear) and despite the obvious aggravation by religious prejudice, Tanveer Ahmed avoided having his conviction appropriately labelled and attracting heavier sanction.

Correcting the lacuna

In my view, the outward expression by an individual of religious belief to wider society is sui generis. Expressions of race, colour, ethnicity, nationality all involve displaying or expressing characteristics or behaviours or physiological features that make the individual expressing them perceivable (rightly or wrongly) as belonging to some wider ‘group of persons’. Similarly, perceptions (correct or otherwise) of individuals’ sexual orientation, transgender identity, age and gender label such individuals as part of a wider group. Such groups have been proven to be marginalised to varying degrees in varying circumstances, and as such have deservedly attracted protection from international and domestic law aimed at preventing discrimination and prejudice directed against those groups and individuals presumed to belong to them. The State has categorised such groups accordingly and afforded definitions for them that are broad in scope and protective ambit. This is laudable.

Expression of religious belief however, simply does not fit this altruistic policy mould. Religious expression is an individual act of expression. The protection afforded by ECHR, Article 9:

includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private…[it]…applies to all personal, political, philosophical, moral and, of course, religious convictions. It extends to ideas, philosophical convictions of all kinds, with the express mention of a person’s religious beliefs, and their own way of apprehending their personal and social life.

As such, state protection for those expressing religious beliefs should be on that very basis. This would fundamentally enhance the demonstrably ineffective provisions drafted on the basis of the State’s perception of individual religious practitioners as inevitably forming part of a wider religious, social or cultural group, or an offender’s perception of the individual’s membership (correct or otherwise) of a religious social or cultural group. It is surely not the Scottish Government’s policy to exclude those who murder someone because that someone has expresses a religious belief that is anathema to him or her from the ambit of the statutory aggravation by religious prejudice.

It is submitted that Lady Rae, in the words she chose as part of her sentencing statement for Tanveer Ahmed, has provided a partial draft solution to the problem, and which could be enacted as an amendment to the Criminal Justice (Scotland) Act 2003, section 74(2). The amendment (embedded in the existing drafting) is highlighted in bold.

For the purposes of section 74, an offence is aggravated by religious prejudice if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will, based on the victim’s public expression of personal religious beliefs, or the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation.

There would be no need to alter the second and more general definition of the aggravation. It is submitted that this simple amendment would correct the Lord Advocate’s lacuna by providing protection for individuals, such as Asad Shah, freely expressing their personal religious beliefs. It would also ensure that those who evince malice and ill-will based on intolerance of an individual’s publicly expressed personal religious beliefs, would (as was surely intended) fall within the ambit of hate crime legislation, thus correctly aligning Scots criminal law and procedure with wider Scottish Government policy on hate crime.

The Brexit Case: The Reasoning, Implications and Potential Consequences of the High Court’s Judgment

This post is by Dr Robert Brett Taylor. It is an expanded version of his note that appeared in the Press & Journal on Friday 4 November 2016.

Following the decision of 52% of the UK electorate to exit the European Union (EU) on 23 June 2016, Prime Minister Theresa May has been steadfast in her belief that the power to initiate the UK’s exit from the EU lay with the Government under the ‘royal prerogative’ and not with Parliament. On Thursday 3 November 2016, however, the High Court of Justice in England gave its highly anticipated judgment in the Brexit Case (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)), ruling that the UK Government must seek parliamentary approval before exiting the EU. This blog post will briefly outline the reasoning of the High Court in reaching its decision, as well as its implications and potential consequences.

Justiciability and the Irrevocability of Article 50

Before considering the reasoning of the High Court, two points must be stressed.

Firstly, all parties to the case, including the Government, accepted that the matter before the Court was entirely justiciable. In other words, that it concerned a legal matter that the courts are best placed to decide.

Secondly, the case proceeded on the basis that Article 50 – the legal mechanism by which a Member State may formally leave the EU – once triggered, could not be revoked.  In other words, the UK will be unable to change its mind and stop Brexit once notice has been given under the provision. Although the accuracy of this interpretation has been questioned on this blog, it must be stressed that the Court did not have to make a ruling on this matter as both parties were in agreement that Article 50 was irrevocable.

The High Court’s Reasoning

The central question before the Court was whether the UK Government can use the royal prerogative to give notice of the UK’s intention to exit the EU under Article 50 as it claimed. The royal prerogative is the body of executive powers held by the Monarch but which is now mostly exercised in practice by Government Ministers.

The High Court rejected the Government’s argument, deciding that the royal prerogative could not be used without parliamentary approval.  According to the Court, triggering Article 50 without Parliament’s approval would have the effect of removing the rights currently enjoyed by UK citizens by virtue of the UK’s membership of the EU both at home and abroad.  Examples include workers’ rights, freedom of movement across the other EU Member States, and the right to vote in elections to the European Parliament. When the UK joined the EU in 1973, Parliament first had to pass the European Communities Act 1972, which gave domestic effect to EU law.  As a result, EU law became part of UK law, and citizens could thereafter bring actions for breach of EU law, including their EU rights, in the domestic courts. The Court decided that, in passing the 1972 Act, Parliament did not intend to allow the UK Government to take away these rights unilaterally.  To do otherwise would be to change the domestic law of the UK as enacted by Parliament, and only Parliament had the power to do so because it was legally sovereign.

The Court’s decision therefore makes it clear that the Prime Minister now needs Parliament’s consent before Article 50 can be triggered.  The implication of the decision is that this approval must take the form of primary legislation, thus making a one-off vote in the House of Commons insufficient.  Unsurprisingly, the decision of the High Court, and the necessity for legislation, could have potentially far reaching consequences.

The Future of Brexit

The High Court’s decision represents a serious setback for the UK Government, and the Prime Minister is already under considerable pressure to concede and comply with the decision. Although the Prime Minister had said that she would trigger Article 50 in March 2017, this looks to be in doubt should she be compelled to put the matter before Parliament for legislative approval.  Whilst this may only result in a delay in the triggering of Article 50, Parliament could also decide to block the UK’s exit from the EU altogether.  Whether or not Parliament would do so, however, is unclear.  Although not legally required to follow the referendum result, political forces both within and outwith Parliament may compel members to go ahead with Brexit, albeit perhaps on terms different from what the current Government wants.

Even if the elected House of Commons consents to any Bill authorising the triggering Article 50, however, Theresa May will likely face strong opposition from the unelected House of Lords.  Because leaving the EU was not a manifesto commitment of Theresa May’s newly-formed Government, the Salisbury Convention will not be engaged, and the Lords will not be compelled constitutionally to approve the legislation as a result. (It will be recalled that conventions are very important to the House of Lords, as I explored in a post on this blog and a related post for the UK Constitutional Law Association.) This may necessitate, therefore, the use of the Parliament Acts 1911 and 1949 to ensure the Bill’s passage through Parliament, which will further delay Brexit.

The UK Supreme Court

Whether or not Parliament will ever be given a say, however, is still far from settled, as the UK Government have said that they will appeal the decision to the UK Supreme Court in the hope that it will be overturned. The case is expected to be heard in December before a panel of 11 Justices for the very first time in history. A judgment is expected sometime in the New Year.  Although the case was heard in England and concerned a matter of English Law, Nicola Sturgeon and the Scottish Government may formally intervene in the legal proceedings. The Welsh Counsel General has indicated his intention to apply to intervene, in accordance with the Government of Wales Act 2006. Withdrawal from the EU will unquestionably impact upon the UK’s devolutionary settlement, and the UK Supreme Court has jurisdiction to decide devolutionary matters.

An Early General Election

Although there is speculation in the media that the Prime Minister could call an early General Election to try and receive a mandate from the public on pursuing her vision of Brexit, it must be stressed that she does not in fact have the power to do so. The Fixed-term Parliaments Act 2011 abolished the prerogative power of the Crown, exercised by the Prime Minister, to call a general election, and gave that power to the House of Commons.  In order to have an election before 2020, therefore, Theresa May must lose a vote of no confidence, or two-thirds of the Commons must agree to call one. Should the Government lose their appeal at the UK Supreme Court, a vote of no confidence in the Prime Minister is possible given the Conservative party’s narrow majority in the House of Commons.

What next?

That is a good question. As noted by my colleague Dr. Justin Borg-Barthet, the one thing we can be sure of is we still cannot be quite sure what Brexit means.

On Tuesday 8 November at 18:00 the University of Aberdeen will be hosting a free guest lecture by Dr. Holger Hestermeyer, How will Brexit Happen? Legal Questions Faced by the UK. Details can be found here.

Yeah but, no but: why the High Court was right and wrong in the Brexit case

This blog post is by Dr. Justin Borg-Barthet.

The High Court decision in Miller (the ‘Brexit case’) was essentially a public law case.  The judgment (PDF) addresses the question of whether the royal prerogative can be exercised to repeal vested statutory rights.  As is well known, the Court found in the negative.  In the Court’s view, therefore, notice of the UK’s intention to withdraw from the European Union requires parliamentary consent.

But the judgment turns on a question of EU law, namely whether revocation of notice of intention to withdraw from the EU is possible.  Here too the Court found in the negative.  Both the claimants and government were of the view that once notice is given under Article 50 TEU, that notice is irrevocable.  In other words, once the UK notifies the European Council that it wishes to withdraw, the UK cannot change its mind and withdraw notification.  Rights derived from the European Communities Act 1972 will be repealed whether Parliament consents or otherwise.

But is the Court correct in its findings regarding Article 50 TEU?  If it is not, its public law findings rest on a false premise and are therefore potentially unfounded.

Article 50 TEU provides as follows:

1) Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2) A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3) The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4) For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5) If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

There is nothing in that article which addresses the question of a change of mind (or heart, as the case may be).  Once Article 50 is invoked, it seems, the process of withdrawal is inexorable.

Yeah but

The High court was correct in its findings, or so it appears at first blush.  Surely if the Member States wished the Treaty to provide for revocation of notice under Article 50, they would have done so.  What is more, if the withdrawing Member State were at liberty unilaterally to revoke its notification of withdrawal from the Union, this would have the practical effect of enabling that State unilaterally to extend the two-year period for withdrawal.  It could revoke notice and start the two-year period afresh at a later date of its own choosing.  Surely, then, unilateral revocation of notice is not allowed.

But it does not necessarily follow that the revocation of notice is impossible.  The Member States are at liberty, should they agree unanimously, to extend the two-year period.  Art 50(3) does not establish a ceiling for the extension of that period.  In the absence of any such limits, it follows that the Member States may extend the period indefinitely.  Effectively, they can agree unanimously to suspend the withdrawal of the Member State.  It would be absurd in such circumstances to argue that the Member States could not formalise an informal suspension of notice to withdraw from the Union.

No but

It appears, therefore, that the High Court was not entirely correct in its findings.  The basic premise that Article 50 is irrevocable is not unimpeachable.  But it does not follow that the rest of the Court’s reasoning is wrong.  The public law reasoning concerns the potential usurpation by government of Parliament’s sovereign right to retain or repeal rights conferred by the European Communities Act 1972.  The power to revoke notification under Article 50 does not reside in the sovereign Parliament of the United Kingdom.  Instead it resides with every other Member State of the Union.  Malta, for the sake of the argument, could choose whether rights conferred on British citizens by the European Communities Act 1972 are to be repealed.

The High Court’s findings are therefore unaffected by the potential flaw in its (and the parties’) reasoning.  If the Court is correct in its reasoning as to the public law question, the judgment remains sound notwithstanding the potential flaw in the interpretation of Art 50 TEU.  Any notification by government of the UK’s intention to withdraw from the European Union divests Parliament of its right to retain or repeal rights conferred by the European Communities Act 1972.

But but

Prof Steve Peers argues, persuasively it is submitted, that the question of revocability of Article 50 is not settled.  Indeed, contrary to the High Court’s ruling and to my own reasoning above, Lord Kerr, the author of Article 50, argues that unilateral revocation of notice is possible. Where there is a question as to the interpretation of EU law, Article 267 TFEU requires a supreme court of a Member State (and the Supreme Court of the United Kingdom still plays that role) to seek interpretative guidance from the Court of Justice of the European Union. If the Supreme Court fails to refer the question, the United Kingdom could be liable to damages under the Kobler doctrine.

There could yet, therefore, be many twists in the tale of Brexit.  All that is certain at this juncture, is that we cannot be quite certain of the meaning of Brexit (means Brexit).

yeah-but-no-but
Image credit – BBC

The debate about the justification of constitutional review: six theses

This blog post is by Dr. Tamás Gyorfi.

Introduction

The justifiability of constitutional judicial review is one of the perplexing questions of constitutional theory. Every generation of constitutional lawyers has struggled with the issue without being able to provide knock-down arguments that would have settled the controversy. In the UK, the adversaries of the two positions are (for better or worse) called political and legal constitutionalists, respectively. Since almost all public law textbooks cover this controversy, the debate is familiar to every undergraduate law student in the country. All this suggests that there is hardly a more hopeless enterprise in constitutional theory than to make a new contribution to this debate. Nonetheless, in my new book, titled Against the New Constitutionalism, I endeavoured to tackle exactly this issue.

My book develops a liberal defence of political constitutionalism and argues that in consolidated democracies, the strong form of judicial review cannot be justified. It is for the readers to judge whether I managed to provide a sufficiently unique combination of arguments and carve out a distinctive place in the political constitutionalist camp. The aim of this post is not to summarise my arguments or convince the reader that political constitutionalism has the upper hand in the controversy. Rather, I would like to put forward a few theses about the nature, the state and the relevance of the debate.

The debate about constitutional review has both an academic and a more popular version and there is a huge discrepancy between the fortunes of the two rival positions at these two levels. The discourse seems to lose its momentum at both levels, albeit for very different reasons. In the academic discourse, many people feel that everything that can be said on the issue has been already said. The debate seems to have reached an impasse, where people with different intuitions reach different conclusions. By contrast, in the more popular version of the controversy, legal constitutionalism has almost conclusively defeated its opponent. As a result of this, virtually every democracy has introduced some type of constitutional review.  As Alec Stone Sweet correctly registers, “As an overarching political ideology, or theory of the state, the new constitutionalism faces no serious rival today” (Stone Sweet 2000, 37). I will address the academic and the popular versions of the discourse in turn.

Thesis One: we can still make progress in the debate

Since the topic has generated a voluminous literature, it is not implausible to argue that the prospects of progress in the debate are rather dim. So can we expect any new insights from further debates?

My answer to this question is an emphatic yes. Let me explain the reasons for my optimism. The justification of constitutional review certainly requires the mobilisation of some fundamental political principles and it is indeed true that a lot has been said about those principles. However, I believe that the proponents of the so-called “institutional turn” are straightforwardly correct in claiming that the argument about constitutional review cannot be won by appealing purely to political principles. Political principles alone are incapable of determining whether we should confer the authority to specify abstract human rights provisions on courts or legislatures (or we should share that authority between the two institutions). The debate about constitutional review is both about political principles and institutional capacities. To assess the capacities of institutions, we need sophisticated theories about the epistemic performance and motivations of our decision-makers.

Those who are sceptical about the possibility of progress in the debate must hold either that (1) such institutional considerations are irrelevant or that (2) new research cannot result in significant progress in the study of institutional capacities. However, it seems to me that the first claim is simply wrong and the second one is unsubstantiated. Contrary to the second thesis, I believe that Adrian Vermeule is right to claim that our understanding of institutions’ capacities is still rather rudimentary (Vermeule 2003, 3).

Thesis Two: doctrinal legal scholarship is (almost) irrelevant for the debate

Above I made the rather cautious and safe claim that when we tackle the justifiability of judicial review, institutional analysis matters. Now I want to make a much stronger and much more controversial claim.

In a slightly exaggerated and provocative form the claim says that doctrinal legal scholarship is irrelevant for the purposes of the debate.

The role of institutional analysis is to say something about which institutions will produce the best outcomes under certain circumstances. Human rights lawyers engage in a rich discourse about what constitutes the best outcome in rights-related issues. Should assisted suicide ever be made legal? Under what conditions is affirmative action justified? Should an employer accommodate its employees if they want to wear religious symbols?

I have a huge respect for those scholars who engage with these types of questions. I myself have strongly held views on many of these issues and consider myself a participant in this discourse. However, the problem is that in most complex constitutional issues, like the ones mentioned above, competent constitutional lawyers will disagree. In a pluralistic society, in such cases, we are unable to provide conclusive arguments as to what constitutes the correct outcome. Institutional analysis should, therefore, be limited to general epistemic, motivational and procedural considerations. Is the diversity of a decision-making body more important than the ability of individual decision-makers? To what extent is the decision-making of our institutions distorted by self-interest? Which procedure is the most conducive to producing good outcomes? For instance, what is the right balance between transparency and secrecy in a decision-making environment? These questions are very different from the ones that I mentioned above and are not doctrinal in their nature. Constitutional lawyers whose primary expertise is related to doctrinal issues are, therefore, not the best qualified to answer such general institutional questions.

Thesis Three: the debate must be contextual

Although championing contextual analysis generally seems a safe methodological bet, it is far from self-evident that we need such an approach here. Many of the available argumentative strategies claim that judicial review is justifiable/unjustifiable across the board, regardless of the specific features of a political system. If someone believes, for instance, that the lack of democratic legitimacy is, in itself, a decisive argument against judicial review, then she must claim that judicial review is unjustifiable everywhere. If, by contrast, someone believes that the interpretation of human rights is primarily a technical legal exercise, she must hold that judicial review is always justified, provided that human rights themselves are justified.

However, it might be the case that: (1) although the set of relevant arguments is the same everywhere, their strength will differ from jurisdiction to jurisdiction; and (2) the relevant arguments pull in different directions. In that case, one might conclude that constitutional review is justified in certain countries but is unjustified in other ones. I argue in my book that both of the aforementioned conditions are met. Both of the adversaries in the debate have strong arguments, and the strength of at least some of these arguments is not constant but depends on the particular features of the political system in question. One could argue, for instance, that the political process has malfunctions everywhere in the world, but these malfunctions are clearly not equally severe in each political system. If there are strong arguments on both sides, it does matter how severe these malfunctions are and this factor might be decisive in the overall balance of arguments.

Thesis Four: tertium datur

The debate about judicial review usually pitches the legislative body or the elected branches in general against courts or a specialised constitutional court. In that binary framework, an argument against one of the institutions is automatically treated as an argument for the other. This binary framework fits well with many argumentative strategies that are used routinely in the controversy. If, for instance, the lack of political accountability is a conclusive argument, the issue is settled: in that case, constitutional review cannot be justified. Similarly, if the protection of human rights is understood as a technical legal issue, the superiority of courts will be beyond doubt and the justifiability of constitutional review is difficult to challenge.

When we form an overall judgement about the justifiability of judicial review, we have to consider both process-related and outcome-related reasons. Some of the latter can be classified as epistemic, others as motivational arguments. In my book, I argue that we do not have strong epistemic arguments to justify judicial review. The strongest argument of legal constitutionalism is motivational rather than epistemic. Even the most ardent opponents of judicial review would have to admit that the political process has many blind spots. Let us suppose that this motivational argument outweighs all the objections made by political constitutionalists. In the binary framework, this would imply that judicial review should be considered justified. However, once we give up the binary framework, it becomes clear that the arguments against the normal political process do not automatically support judicial review.

The argument that relies on the malfunctions of the political process suggests that the main asset of the judiciary in the interpretation of human rights is its independence. But independence is not unique to the judiciary. I also argue in my book that legislatures are superior institutions to courts in epistemic terms so far as the specification of human rights are concerned. What gives them an edge in this comparison, is their greater cognitive diversity. I do not expect the readers of this post to accept my empirical claim about legislative bodies. However, they might accept that (1) cognitive diversity is a crucially important epistemic asset; (2) courts are very far from the ideal of an epistemically diverse institution; (3) independence is not unique to the judiciary. If these conditions are met, it is at least conceivable that a third institution combines independence and cognitive diversity better than a constitutional court.

Thesis Five: the debate can shape the future of weak judicial review

The above four theses have focused on the academic debate. However, since in most jurisdictions the power of specifying the meaning of abstract human rights has already been conferred on courts, one could ask whether the debate matters any more. Let me offer two reasons to support my affirmative answer.

Although most contemporary democratic states now subscribe to the strong form of judicial review, the constitutional review of many consolidated democracies still deviates from the paradigmatic examples of that institution, like the US Supreme Court or the German Constitutional Court. The New Commonwealth model of judicial review, well-known to comparative constitutional lawyers, represents one important deviation from the reigning paradigm. I argue in my book that the deferential judicial review of the Nordic countries should also be classified as a distinctive subcategory of weak judicial review. What gives the debate practical relevance is that these deviant forms of constitutional review are under immense institutional and intellectual pressure. Although in the New Commonwealth model legislative bodies have the final say in matters of constitutional law, they very often follow automatically the courts’ interpretation of constitutional rights. We cannot rule out the possibility that this practice solidifies into a constitutional convention and with time the ‘final say’ becomes a mere formality, like royal assent being applied to British legislation.

In the Nordic countries, courts tended to exercise their power with extreme self-restraint. Judges disapplied a legal provision only if it was manifestly in conflict with the constitution. This requirement of manifest conflict has been recently removed from the Swedish constitution and is also under attack in Finland. More importantly, the supervisory role of the Strasbourg court is inconsistent with the internal logic of both the New Commonwealth model and the deferential judicial review of the Nordic countries. The upshot is that political constitutionalism still has some strongholds in mature democracies but the judicial review of these countries is at a crossroads. Political constitutionalism can and must make an intellectual case for preserving the distinctive constitutional traditions of these mature, first-wave democracies.

Thesis Six: the debate is relevant for the secondary allocation of decision-making authority

It is an undisputed fact that in most countries the authority to specify the meaning of human rights provisions has been conferred on courts. However, we should keep in mind that the establishment of judicial review does not determine once and for all how courts can and will exercise their powers. Let me call the initial decision whether to establish judicial review the primary allocation of decision-making authority, and the fine-tuning of how this power should be exercised the secondary allocation of decision-making authority.

For instance, the Human Rights Act 1998 has fundamentally changed the British constitutional landscape by moving away from the traditional understanding of parliamentary supremacy. However, the Act requires fine-tuning. The question about the proper grounds and extent of judicial deference is one of the central issues of British public law today. The Act defines what the Parliament may do when a court issues a declaration of incompatibility. However, it leaves open what the legislature should do if that happens. Although the secondary allocation of decision-making authority is less dramatic than the primary one, it raises, nevertheless, many important questions. Therefore, we need a theory that guides the secondary allocation of decision-making authority and this theory will naturally draw on the arguments about the justifiability of judicial review.

Conclusion

My book is a plea for both institutional conservativism, and institutional experimentalism. On the one hand, the fifth thesis of the foregoing analysis suggests we should regret if the distinctive constitutional traditions of mature, first wave democracies are lost. I am not against significant reforms or giving human rights a more prominent place in those legal systems. However, moulding them into the uniform template that legal constitutionalism offers is something that we should regret.

On the other hand, my book is also a plea for institutional innovation and radicalism. Even if legal constitutionalists are right to claim that the normal political process has inherent blind spots and malfunctions, if cognitive diversity is as important as I think it is, I find it hard to believe that we strike the best balance between the relevant motivational and epistemic considerations by conferring the authority to specify abstract human rights on a fairly homogeneous judiciary.

Comment

“I have read Dr Gyorfi’s excellent book which as its name suggests is a full on attack on the supremacy of judges advocated by the New Constitutionalism. The attack is primarily theoretical but it is supported by empirical evidence. It is a brilliant vindication of why mature democratic societies should leave the last word on difficult, contested issues to legislatures rather than courts. I wholeheartedly recommend this book to anyone with an interest in how sophisticated democracies should structure their governance.”

Professor Paul Beaumont, School of Law, University of Aberdeen

Further “Critical Acclaim” is available online, as follows:

“Gyorfi’s book has the rare virtue of combining a refreshing theoretical intervention to the old – but ongoing – debate about the legitimacy of judicial review of legislation with a critical examination of different institutional attempts to balance democracy and human rights. It is a must-read for both constitutional theorists and comparative constitutional lawyers.”

Joel Colon-Rios, Victoria University of Wellington, New Zealand

gyorfi

 

The Health and Safety Implications of Offshore Wind Energy Development: More to it than Meets the Eye

This blog post is by Eddy Wifa a third year doctoral researcher at the University of Aberdeen. His research focusses on the health and safety implications of offshore wind energy development and the significant role both private and public regulation could play in ensuring an appropriate balance between offshore wind energy maximisation and the safety of the workers and other users of the marine space.

This post is about a fundamental problem for offshore wind energy. A critical evaluation of offshore wind energy development through its life cycle reveals that there are significant health and safety risks to both workers and other users of the marine space, as shall be explained below. Therefore the offshore wind energy industry can be categorised as a high-risk industry with the potential for a major hazard. It is my intention that this blog post raises the much-needed awareness of some of the health and safety risks and challenges of the offshore wind energy industry so that necessary regulatory interventions may be considered. This is because although wind energy is considered green and good for the environment, it does not necessarily mean it will be good for the health and safety of workers. Therefore we must resist the temptation of denying that these risks exist, else the situation might just go from bad to worse.

Some examples of hazards  encountered  during the development of an offshore wind farm include:

  • falls from heights,
  • mechanical hazards such as contact with moving parts,
  • blade failures,
  • ice throws,
  • ship collision or men overboard which may occur during marine operations and transportation,
  • electrical hazards, and
  • fire or explosion of turbine or vessel.

Others might include issues relating to manual handling, ergonomics, risk from working with dangerous substances, working in confined spaces, and exposure to noise and vibrations.

While these risks are not exactly new, the fact that they occur in a remote and unpredictable offshore environment makes it more challenging, especially during emergency evacuations.

The UK offshore wind energy industry is developing at an enviable pace with more than 1465 installed turbines, but, unfortunately, we have been experiencing significant increase in accidents in the UK and globally. For instance, the Caithness Wind farm Information Forum (CWIF) reports that there were 1951 wind energy accidents with 165 fatalities since 1970. It is important to add that most of these accidents occurred within the last 8 years when the wind energy industry began to expand. To demonstrate the increase in wind energy accidents, the CWIF states that “as more turbines are built, more accidents occur. Numbers of recorded accidents reflect this, with an average of 21 accidents per year from 1996-2000 inclusive; 57 accidents per year from 2001-2005 inclusive; 118 accidents per year from 2006-10 inclusive, and 164 accidents per year from 2011-15 inclusive”. Despite this increase, CWIF states that these figures represents only ten percent of accidents which implies that they are far from comprehensive. For example, CWIF only has a record of 142 UK accidents, meanwhile the RenewableUK in 2011 reported that  “around 1,500 accidents and other incidents had taken place on wind farms between 2007 and 2011” and this included “four deaths and a further 300 injuries to workers”. This in itself demonstrates a fundamental problem with the availaibility and incomprehensibility of safety data that should assist the industry in drawing lessons. Although efforts have been made to resolve this through the industry’s G+ Annual Health and Safety incident data report, this only started in 2013 and is restricted to member data.

During the early years of my research, my biggest challenge was convincing my audience that offshore wind energy operations are hazardous and could be considered a high-risk industry. I realised that there was an erroneous assumption that since wind is a renewable energy source and as such it is seen as environmental friendly and safe, such a level of safety would apply to its development. I would strongly submit that although wind as a renewable energy source is considered a more environmentally sustainable option when compared to fossil fuels, such considerations have little or no connection with the health and safety implications of designing, constructing, operating, maintaining and even decommissioning of such high-risk installations, particularly in an unpredictable, hazardous offshore environment. It is important to emphasise this because this is the foundational cause of the health and safety challenges of the increase in offshore wind-related accidents. The benignity of the industry does mask the problems and people should be made aware of this. The fundamental reason for this benignty is the absence of volatile oil and gas in offshore wind energy. While this may appear as a valid argument, people quite easily forget that there are several offshore energy related accidents that have nothing to do with oil and gas explosions and spill. An example would be the Alexander Kielland accident where 123 men died after an accommodation platform collapsed owing to structural failures. Furthermore, a detailed functional comparative analysis between offshore wind energy and offshore oil and gas clearly reveals they are both nothing short of two offshore energy industries that share  similarities and synergies.

One reason for the increase in offshore wind related accidents is analysed by Peter Finn, the EHS Manager for GE Energy. He suggests that as larger turbines are installed further offshore, more challenges will arise especially regarding onsite accommodation, the need for better emergency response and the logistics of spare parts delivery. He adds that “this will result in more turbines, more technicians, more transfers and thus an increased risk of incidents”. Another salient cause of these accidents is that the industry currently suffers from a significant gap in the availability of skilled workers. It therefore implies that with inexperienced workers being involved in the processes of constructing and operating offshore wind farms, the likelihood of accidents will increase. This issue is identified in the area of vessel transfer and transportation in general. Steven Clinch, the Chief Inspector of Marine Accident, in a detailed report into the twin accident involving offshore wind transportation vessels stated that owing to the skills gap, the crews that man offshore wind farm transportation vessels are recruited from the fishing or leisure industry, without recognising that skills required for both industries differ. He adds (PDF):

the skills gap is likely to grow as the renewable energy industry moves even further offshore in the future. As such, there is a clear potential for rise in the number and severity of accidents unless action is taken to ensure that vessels’ crews have the necessary competencies needed to operate their crafts safely.

Some industry stakeholders have expressed concerns over the increase in offshore wind energy related accidents. The Environmental Health and Safety Manager for Statoil opines that ‘the number of serious incidents and accidents in the offshore wind industry are too high when compared with offshore oil and gas’. For this reason, she adds that there are significant lessons to be drawn from the oil and gas industry. Despite the prevailing challenges in the offshore wind energy industry, the situation appears to be worsened by the safety culture and attitude of some companies regarding safety. In the words of Andrew Linington, a spokesman for Nautilus:

Operators who apply high safety standards are losing out to companies that cut corners… The situation is frighteningly similar to the boom in North Sea oil in the 1970s. Back then people were warning of poorly enforced standards, but it wasn’t until 167 men died in the Piper Alpha disaster that anything was done to clean up the industry.

I have continuously advocated for the development of offshore wind energy, and this blog post should not be taken to mean otherwise. I understand and appreciate the significant benefits of this energy resource both economically, socially and regarding energy security. I also understand its role is combating climate change and meeting set renewable energy targets. Be that as it may, it is important for stakeholders and the general public to be aware of its health and safety implications as this will guide policy makers and regulators in making an informed decision in solving the challenge of increases in accidents that have been worsened by skills gaps and sparse safety data and information. To resolve these challenges, we must start by acknowledging them.  Unfortunately, some industry stakeholders think the problems are exaggerated. Despite this, I am confident that regulation can play a significant role in this regard and although there is existing regulation regarding offshore wind safety, the ultimate question is whether we have the right type of regulation. That is a question that deserves further study and as such it forms the overall focus of my PhD thesis.