Aidan O'Neill

The EU and Fundamental Rights – Part 2

1. As can be seen from the foregoing survey,1 since its first discovery in the early 1970s of “fundamental rights” being implicit within the fabric of EU law, the Court of Justice has proclaimed a large – and ever-increasing – variety of rights to be “fundamental”. One can see that the interests of legal certainty would tend to make the relevant political actors within the European Union wish to set down in the four corners of one document those rights which are indeed to be regarded as “fundamental” in EU law. It is this desire for legal certainty which may be seen as the first impetus for the creation of the document which became the Charter of Fundamental Rights of the European Union.

Roman Catholicism and the Temptation of Shari'a

The question posed in this article is whether Catholics can fully, unreservedly, and conscientiously carry out their duties as citizens and as holders of their various public offices (legislative, judicial and executive) of the State, in accordance with the laws and constitution of the democratic and pluralist States in which they live. My concern—as a practicing Catholic and a practicing lawyer—is that the increasingly fierce Church criticism, which arose during the papacy of John Paul II and now of Benedict XVI, of the perceived trend towards secularization in the social and political mores of Western (particularly European) democracies, and the greater readiness by Church officials to take it upon themselves explicitly to instruct the laity in political matters, puts this whole issue again into question. Should the bishops of the Catholic Church be seeking to use their ecclesiastical authority (over the faithful) to oppose or promote changes in the laws which apply to all within our society and/or to influence the way we might vote or carry out civic duties? This is a big and complex area involving the interplay of politics and theology; of private and public morality. It touches on the role of teaching office of the Catholic Church and the assent (and possibility of dissent) on the part of the faithful. It takes in questions of conscientious objection and unjust laws. It concerns individual conscience and the hope of salvation. It is about voting as sinning. It is about judging, and being judged.

The European Convention and the Independence of the Judiciary - The Scottish Experience

While the Human Rights Act 1998 is not expected to be brought into general force throughout the United Kingdom until at least October 2000, in Scotland the Human Rights Act has already come into force at least as regards the acts (and arguably, too, the omissions2) of the Scottish Executive and of the Scottish Parliament brought into being by the Scotland Act 1998.3 It may be thought that, as with the poll tax, and whether by accident or by design, Scotland has become the trial ground for a radically new government policy. The staggered implementation of the Human Rights Act in the United Kingdom effectively allows the effects and implications of direct reliance on human rights considerations to be assessed within a small jurisdiction so that proper preparation may be made before the policy becomes law within the territorial jurisdiction of the English courts. In this article, I draw attention to some recent cases in Scotland in which human rights considerations have been used to challenge the manner in which the Lord Advocate has traditionally exercised his functions in Scotland, most notably as regards his involvement in part-time judicial appointments. I then draw out the possible implications that these Scottish decisions may have on the English constitutional settlement, in particular the role of the Lord Chancellor in judicial appointments and the administration of tribunals, once the Human Rights Act is implemented south of the Border.

The Sovereignty of the (Scottish) People: 1689 and All That

2. On the other hand – and not wholly consistently with the first position – the claim is also made that, notwithstanding the Treaty of Union (and in contra-distinction to English claims of Parliamentary sovereignty) the Scottish people remain “sovereign” and so fundamentally entitled to decide on their own constitutional destiny whether inside or outside the Union.2 For example in its February 2013 discussion paper Scotland’s Future: from the Referendum to Independence and a Written Constitution the Scottish Government says that:

How the CJEU Uses the Charter of Fundamental Rights

1. Since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”) with “the same legal value as the Treaties” (Art. 6 TEU), the Court of Justice of the European Union (CJEU) now, as a matter of course, refers to provisions of the Charter in its judgments. A recent search of the CURIA database reveals that the CFR has been referred to in judgments of the CJEU and of the General Court in over 250 cases. This does not take into account the times when the Charter has been referred to and relied upon in opinions of the Advocates General or in decisions of the EU’s Civil Service Employment Tribunal.

Judicial politics in the Judicial Committee

The author suggests that a Scottish takeover of English law in matters of Convention rights has seen the House of Lords superseded as the final court of appeal. Article by Aidan O’Neill QC (Advocates Library, Parliament House, Edinburgh). Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Constitutional Judicial Review in Scotland – Some Recent Developments

2. It should be noted that, notwithstanding the new constitutional framework, and certain judicial criticism of the older rules that apply private concepts of, or “title and interest to sue”1 to, public law cases,2 Scotland retains restrictive rules on standing compared to the practice in England which means that there is no real scope for public interest litigation by pressure groups or (quasi-) non-governmental organisations. Indeed, the Scottish Human Rights Commission – set up by the Scottish Parliament under the Scottish Commission for Human Rights Act 2006 – while permitted to intervene in legal proceedings “for the purpose of making a submission to the court on an issue arising in the proceedings” is expressly forbidden by its constituting statute to “provide assistance to or in respect of any person in connection with any claim or legal proceedings to which that person is or may become a party”. Section 7 of the Equality Act 2006 also prohibits the Equality and Human Rights Commission from taking “human rights action” in Scotland, or even from considering the question whether a person’s human rights have been contravened “if the Scottish Parliament has legislative competence to enable a person” to take such action or consider this question.

NINETEEN EIGHTY-FOUR (AND -FIVE) A Brit Looks Back

Aidan O’Neill remembers Britain as a fundamentally riven society twenty-five years ago under the premiership of Margaret Thatcher; a country divided by she who sought to rule it with certainty, but without compassion. The memories of Britain as a bitter and broken polity split asunder by a year-long strike of its coal miners were stirred again by a recent visit to the United States to attend a conference on Catholic Social Teaching where the growing social and legal acceptance of homosexuality and the continued toleration of lawful abortion were both angrily denounced by two speakers who revealed a fundamental disjunction between their vision and hope for a properly Christian America, and their experience of an America which they characterized as misgoverned by a conspiracy of liberal judges and complaisant politicians. A subsequent roundtable discussion on the prospects for a written constitution for the State of Israel also revealed a picture of a profoundly divided society with utterly irreconcilable political visions competing for its future. In the face of such radical diversity in political vision the author suggests that the better way forward is to focus not on ends but on means, and always to honor the constitutional and legal processes which result in, albeit imperfect, decision making. Although a very thin form of consensus, it is suggested that such an approach is the sine qua non for any polity aspiring to the condition and ideal of democracy to be able to function, and, ultimately, to achieve some kind of justice.

Constitutional Reform and the UK Supreme Court – A View from Scotland

1. This paper looks at some of the more recent case law emanating from the House of Lords, and from the Judicial Committee of the Privy Council acting under its devolution jurisdiction. It points to certain tensions in the manner in which these two courts have been operating to date as courts for the whole of the United Kingdom. It suggests that while the proposed amalgamation within the new UK Supreme Court of the devolution jurisdiction of the Privy Council with the existing appellate jurisdiction of the House of Lords is a necessary step, it is not a sufficient step to ensure constitutional coherence and stability for the Union. The paper proposes that within the context of the current constitutional reforms, a new office within the UK Supreme Court be created, occupying a similar position that to that of Advocates-General to the European Court of Justice. The primary function of this new office would be, prior to the Supreme Court’s judgment, to draw to the attention of the parties, the court and the public at large the general implications of the court’s decision in the individual case before it, both for the separate jurisdictions making up the Union, as well as for the United Kingdom as a whole. The paper also suggests that it may be appropriate for this proposed new office of Advocate-General to the Supreme Court to be involved prior to the hearing of individual cases in publicly advising the court as to whether or not the case before it needs a larger bench than the usual five-judge panel (as envisaged in cl. 32(2) of the Constitutional Reform Bill), and whether that bench should be required to include particular or additional representation from the individual jurisdictions from within the Union (as cl. 29 envisages with its provision for “acting judges”). At the moment the reasons why the House of Lords or the Privy Council occasionally sits in panels larger than the normal five judges, or why, in the case of the devolution jurisdiction Privy Council, judges other than the current Lords of Appeal in Ordinary have been co-opted onto its bench, are not made public. In the interests of transparency and the maintenance of public confidence in an open and fair procedure, it would seem appropriate for the issues determining these decisions to be made more open and explicit.