Misinformation and Memory

Hear No Wrong, Remember No Wrong.

Beth Sheratt MSc student
As much of the population tuned in to the TV show Making a Murderer, it illustrated how false information, can change our original memory, this is known as the misinformation effect.
Research has previously shown that when misinformation has been given after an event it can alter the original memory of the event, for witnesses . It is suggested that this may occur in a Chinese whispers sort of way, leading to certain details being changed. Leading to individuals believing what they remember as the truth, when that may not be the case.
It isn’t only misinformation that can affect memory, for example how an individual is feeling on the day can have an impact. When we have a bad day everything seems to go wrong, or does it? Our memory can be less accurate depending on our mood. Investigations into factors such as mood and emotion, alongside misinformation have been conducted to see what the effect they have on memory. Interestingly, it was found that a positive mood was likely to increase the number of false memories created, as the result of misinformation.
Other research investigated which details can influence false memory, both the main (central), or the background (peripheral) details, alongside misinformation and memory. There were fewer false memories created when remembering the central events, especially when linked to negative memories. There is however, no research that looks at all four factors together; therefore, I decided to look at all four factors in one study in order to see the effect they have on memory.
An increased number of false memories were created for central details of the images, rather than for the peripheral details. This result contradicts most research, which states that peripheral details have an increased number of false memories. Also, the positive event was found to increase the number of false memories when remembering the main aspects of the image rather than the peripheral details, this supported previous research.
So, are central details more likely to create more false memories when misinformation occurs, than peripheral details? There seems to be disagreement in the area, suggesting more research needs to be done in order to explain why there is such a difference.
As misinformation was found to affect central details in this study, it could be important for authorities i.e. the police, to be made aware of how misinformation can affect an eyewitness’s memory. This could lead to a more reliable account of an event and ultimately less wrongful convictions.
Also, there appears to be inaccuracies in memory for central details when recalling a positive event, perhaps when relying on eyewitnesses in a court the jury need to be made aware that the influence of misinformation may be high on the original memory of an event.
All in all, different factors affect memory which may make it an unreliable piece of evidence when remembering a situation. Therefore, eyewitness testimonies may need to be treated with caution.

Brexit

Robert Curtis

Brexit – some history and the famous Article 50.
Introduction
Firstly, let us remember that we haven’t exited from the European Union, so using Brexit as a title is probably misleading. A lot of journalists are asking the question “how has Brexit affected your business or area of work?” To which the answer should be “I’ll tell you in three or four years’ time, when Brexit has taken place and I can judge the effects”. Instead we should be considering the implications of the vote on 23rd June to leave the EU which will lead to the UK leaving, and the nature of the relationships and balance of authority both during the negotiation period and after we leave.
This blog looks back a bit, and then forward, but not in detail to what we can expect in terms of relationships and compromises – that is too vast a subject and will have to wait for a while, perhaps a blog early next spring?
A bit of history
Secondly, do not think that this was a situation that was ever envisaged to occur in reality. True, Article 50 of the Lisbon Treaty lays down a mechanism for leaving but no-one gave any thought to how it would actually work. If you go back to the discussions surrounding the treaty in 2008 and 2009 they were all about the issue of sovereignty and the creation of a European state. Indeed the treaty created two aspects of a state, a president (but I bet few people reading this blog will know which president was created, what they do, or the name of the current incumbent….) and a foreign minister (same bet here…). This was the time that Ireland and the Netherlands voted to reject further integration, though no country has ever been asked, before the UK this year, whether they want to continue to be a member of the EU. Ireland and the Netherlands were in fact voting on something called the European Union Constitution, a title which caused many people across the continent to see red as it was blatantly an attempt to harmonise everything under the guise of one country. It was later changed to the Lisbon treaty (also called the Reform Treaty) to disguise its nature, though the wording is almost identical to the proposed Constitution. Reform was indeed very necessary as the EU was increasing from 15 to 27 countries and it needed to streamline and rationalise its institutions, the way they worked and their relationship to the member countries. But some saw it as an opportunity to create their dream of a United Europe, a single country with one government, one foreign policy, one defence policy and of course one currency and economic policy – including both fiscal (taxes and revenue) and monetary (supply of money and interest rates) aspects.
Article 50 was never really discussed by politicians, it was just a backstop inserted for completion, but it did generate quite a lot of discussion amongst lawyers, especially those who wanted to see a single state. Prior to that date the EU (or its former manifestations) had not included any notion of withdrawal – which may seem odd for any organisation but is perfectly in keeping with the idea of “ever closer union”. We have the former communist states of Eastern Europe to thank for its inclusion – having suffered in the Soviet era from an embrace which was, to put it mildly, no to their liking, the governments of those newly liberated states were not going to allow themselves to be trapped in another union of states, however welcome and benign it may have appeared. The argument of those who wanted a single state was that there was no need to include any form of exit article, as under Article 62 of the Vienna Convention on the Law of Treaties signed in 1969 (see link below) there is a right of states to withdraw from any international treaty. However, their argument was really a smokescreen for not including a right of withdrawal, and if the Constitution had been introduced, and further integration taken place, then individual countries would no longer exist so could not withdraw. Others argued that a specific right to withdraw was necessary to preserve national sovereignty – and this really is the crux of the whole discussion surrounding the referendum, and the raison d’être of the Brexiteers.
Who triggers Article 50?
The country that is leaving – but what does that really mean. Some rather angry Europeans, even quite senior members of the Council of Europe, publically stated that the result of the referendum was itself the trigger and that the UK had two years to leave. Others consider it to be a decision of the UK Parliament – which of course means we would never leave as the majority of MP’s, and a very big majority of the Lords, supported continued membership. If Parliament were allowed a vote, even a whipped vote, then that effectively would be thwarting the will of the people and overturning the democratic result of the referendum – and remember that David Cameron told us in no uncertain terms that this was a “once in a generation” vote, and the result, whichever way it went, was binding. Even as late as May 17th, Mr Cameron reiterated the position he had taken continuously throughout the campaign “It’s a once in a generation, once in a lifetime opportunity and the result determines the outcome”. Interestingly enough Nigel Farrage was actually a lot more equivocal, telling the Independent newspaper on the same day, May 17th, that “if the result was as close as 52-48 percent for “In”, this would be unfinished business.” Oddly enough he didn’t seem to put the same caveat on a 52-48 percent vote for “Leave” from which, we can assume, that he considers a small margin in his favour indeed to be “finished business”.
In reality it will be the Executive who decide when to trigger Article 50 – basically the Prime Minister advised by her closest ministers and civil servants. Oddly enough, the timing will probably be dictated more by Europe than the UK – with elections coming up in the two largest EU countries (Germany and France) it would not be sensible to trigger divorce proceedings before new governments were in place in those countries, for the simple reason that as soon as the negotiations begin we want full attention paid to them. Two years is a very, very short time to undo 43 years of close arrangements (marriage in many cases) and we wouldn’t want to lose the first 6 months because European civil servants’, trade negotiators’, and politicians’, attentions are engaged elsewhere.
The final unconsidered issue is “how” is it done and “who” does it? Again the treaty offers no guidance and there could be several mechanisms, and different levels of formality. The Queen as Head of State, the Prime Minister, the Foreign Secretary or the newly created Minister for Brexit (or to give him his full title the Minister for Exiting the European Union) could all be considered suitable, as could a senior civil servant. It is presumed that the article would come into force only after formal written notification – but who receives such notification? The European Commission actually plays no part in this, nor indeed does the Parliament (except to ratify certain terms). It is the Council of Ministers who will need to be notified, because, in essence, this is a membership issue. Thus the other members will need to be informed, formally, of the wish of one of their members, to leave the club. Interestingly it is also the Council which will agree the terms of exit and the shape of any new deal and all must be in unanimous agreement. What happens if one doesn’t agree is the subject of a further blog, but for now we assume it will be our Prime Minister who will write to the President of the Council of the European Union. As this is a rotating presidency, and the UK is still a member, leave it long enough and it could be Teresa May writing to Teresa May.

The following is a series of links to further reading. Firstly reference to Article 62 of the Vienna Convention on the Law of Treaties.
http://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/62.html
Next, two useful sites discussing the mechanics of leaving and the complexity of the negotiations, the trade elements of which I would like to return to later

The mechanics of leaving the EU – explaining Article 50


http://www.telegraph.co.uk/business/2016/08/16/a-deal-on-brexit-was-never-going-to-be-easy/
Finally link to the Centre for European Reform which includes a number of very thought-provoking articles. I’d recommend reading those by Charles Grant and John Springford in particular as they begin to explore some controversial and complex issues.
https://www.cer.org.uk/

 

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Are we really that equal in the workplace?

Matt Sadler

We are living in rather uncertain times with political and socio-economic unsteadiness prevailing throughout our commercial world. Consequently, employment prospects are never less certain than they were pre-2007/8 and the financial crisis.

Nevertheless, we also live in a progressive and, some might argue, enlightened world where our individuality is protected by the laws of the land.

Diversity in employment has become a buzz term and employers are keen to display their ‘all-welcome’ approaches to recruitment coupled with anti-discrimination credentials. A rather cynical argument could be that this is no more than good financial sense because ‘Stonewall Champion’, ‘Investor in People’ or ‘Remploy Recruiter’ makes for a good PR banner on corporate stationary. However, just how equal do employers really see us?

It has been nearly 6 years since the implementation of the Equality Act 2010 in the UK and its umbrella anti-discrimination provisions aimed at protecting our rights in employment. The provisions are wide in scope and cover employment practices across the spectrum from job advert, through employment, to post-termination. Our individual characteristics are protected and we have legislated rights which we can stand up for.

Herein lies the dichotomy… Just how far are we prepared to go to protect our rights? At what stage do we step onto the proverbial soap box and proclaim our self-actualising motivations? Perhaps more insidiously – when do we keep quiet about our differences in order to achieve a goal of realising our dream job?

James Gower, writing in the Guardian in 2015, describes how career advisers told him to hide his cerebral palsy disability on job applications. He discusses research conducted by greatwithdisability.com that found 77% of disabled applicants worried about disclosing their disability on a job application. Why fear when section 20 of the Equality Act 2010 places a positive obligation on employers to provide ‘reasonable adjustments’ for employees who declare a medically recognised disability? This is all well and good but you have to get the job first! The cost of reasonable adjustments and aversion to placing themselves at risk of litigious claims may dissuade employers from engaging disabled applicants – An employer’s inclusive ethos may take a back seat to financial and liability risk-aversion.

Hidden or invisible disabilities are perhaps arguably more difficult for an employer to recognise as being inhibitive for an employee once a disclosure has been made. This is something Starbucks, the US coffee chain, recently found to their financial and reputation cost, when they mistakenly accused a dyslexic worker of falsifying report documents at work. An employment tribunal found that the coffee giant had failed to make reasonable adjustments for their employee. The potential cause of the problem: lack of training. Dr Kate Saunders, CEO of the British Dyslexia Association, said: “Many dyslexics are struggling in the work place with very high levels of anxiety, because employers do not have the training or the awareness to make adjustments for them.”

There is also a fear that disclosure in the workplace that can actually lead to greater problems for employees rather than entrench the protective shield of the Equality Act 2010. Protecting oneself from discrimination in the workplace is a difficult needle to thread for those who identify as Lesbian, Gay, Bisexual or Transgender. Stonewall, the LGBT charity, received responses from over 60,000 employees in the UK in 2016 regarding the treatment of LGBT employees in their workplace. They asked respondents ‘Are lesbian, gay and bi people comfortable disclosing their sexual orientation at work?’ The results are quite illuminating in that 42% were not comfortable disclosing their sexual orientation to colleagues and 48% were not comfortable disclosing to managers and senior colleagues in all circumstances.

There are obviously cultural and sociological negative factors that still prevail in the workplace that inhibit disclosures of sexual orientation. This is not the end of the argument though: A recent report by Conservative MP Alec Shelbrooke and Dr Mark McBride-Wright, Chair and Co-founder of industry network group InterEngineering, estimated that homophobia in one sector alone costs the UK economy over £11.2 billion a year. They discovered that homophobic bullying and outdated attitudes place pressure on LGBT members of the engineering industry to remain in the closet leading to lack of progression in the sector. Their April 2016 report, published in Gas International, includes discussions by Lord Browne of Madingley, a former chief executive for BP: “As a graduate trainee engineer at BP in the 1960s, it was immediately obvious to me that being gay in business and most definitely in the oil business, was unacceptable.’ The consequences of failing to create an inclusive work environment shows that when people are not comfortable bringing their whole selves to work they do not engage and productivity suffers as a result. We return to the root cause – lack of understanding and diversity training.

Case law decisions highlight how large organisations cannot afford to merely provide lip service to equality legislation and a shift towards embedding diversity training is of paramount importance, not only from a protective stance but a fiscal one too. In Daw v Intel Corporation UK Ltd. [2007] EWCA Civ 70, a stress at work negligence case, it was held that the employer, a renowned international IT technology company, failed in their primary duty to provide a ‘safe system of work’ resulting in mental health issues for the claimant. The court, dismissing the defendant’s appeal’ highlighted how Intel easily covered the claimant’s workload when she went off sick but failed to provide reasonable adjustments to her workload beforehand.

In Majrowski v Guy’s St. Thomas’ NHS Trust [2006] UKHL 34 the defendant brought a successful vicarious claim against their employer for harassment and victimisation suffered at the hands of a line manager on the grounds of sexual orientation. Both of these cases highlight the need for employers to act sooner and embrace proactivity in relation to diversity training. Interestingly, both of these cases were brought in negligence in the civil courts rather than an employment: A more costly exercise on the claimant’s part may indicate a personal need to fight harder for their individual rights.

Standing up for employment rights when faced with discriminatory barriers is not easy. Just how militant does one need to be to get the message across? How far do we really need to go to ensure sunlight reveals the cracks in certain employers’ facades? Prevention is undoubtedly better than cure and if equality and diversity are to be truly embraced then a strategic rethink by employers is needed. Greater investment in staff training and cultural change should aim to break down barriers that can lead to greater productivity, less negative publicity and a protected workforce. This is especially important as we seek to carve out a new direction for our industries over the coming years and attempt to build trading links with new post-EU Brexit partners – our nation’s employers need to set an example for all our futures.

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Dangerous Dogs

Sue Jenkinson

Following on from last month’s exploration of the Dangerous Wild Animals Act, this post is going to take a quick look at how the law reacts to and regulates dangerous dogs.

There have been numerous examples of dogs killing children and vulnerable people; and these events are always shocking (http://www.itv.com/news/anglia/2016-06-13/mum-whose-baby-was-mauled-to-death-knew-dog-was-dangerous-court-hears/) . The initial legislation is contained in the Dangerous Dogs Act 1991 ( http://www.legislation.gov.uk/ukpga/1991/65/contents ).

This Act is often regarded as an example of very unsatisfactory legislation; as it was rushed through parliament in six weeks,  in the light of public concern and the increasing press reports of dog attacks at the time (https://www.liberty-human-rights.org.uk/sites/default/files/liberty-s-evidence-to-the-constitution-committee-on-emergency-legislation.pdf) .

The legislation is chiefly considered flawed because it only covered attacks in public places and was introduced before there was wide spread awareness of dogs themselves being used as offensive weapons, also it did not address the increasing numbers of attacks on private property.

The 1991 Act also includes a list of specifically prohibited dog breeds namely;

  • The Pit Bull Terroe
  • The Japanese Tosa
  • The Dogo Argentino
  • The Fila Brasilero

However, it is often extremely difficult to tell if a dog is or is not a member of these breeds which further complicated implementation of the original act.

Although it is an offence to own or keep any of the above dogs, many dogs large and small have been dangerous and attacked people. During the last three years nearly 5,000 dogs have been destroyed because they are believed to be one of these breeds or being found to be dangerous by a court (http://www.bbc.co.uk/news/uk-36031843).

It is possible through DEFRA to get an exemption for a specific dog, but this process is complex expensive and little understood. The RSPCA has long opposed this breed list because it is indiscriminate and does not address the issue of individual dogs and they have extensively  argued for non-breed specific legalisation (http://news.bbc.co.uk/1/hi/uk/8018046.stm).

Samantha Gaines, from the RSPCA, said the assessment process for banned breeds was hugely problematic as it is based on appearance, not genetic heritage. “It does mean that any dog – regardless of its heritage can be [classed as a] pitbull terrier if its appearance is similar enough,” she explained.

s.3 of the Dangerous Dogs Act 1991 sets out the offence of being an owner of dog that is out of control in a public place. The penalty was a possible prison sentence of up to six months’, and up to £5000 fine and a Mandatory Destruction Order, this was amended in 1997 giving the courts discretion on sentencing and dog destruction.

However public concern and disturbing examples of dog attacks means that the 1991 legislation has been constantly under review and in 2010 DEFRA identified some of the important issues and loopholes in the existing legislation  (http://www.nhsbsa.nhs.uk/Documents/SecurityManagement/100309-dangerous-dogs-condoc.pdf).

Most significantly there has been increasing concern about the use of dogs as weapons and tools of intimidation. The solution proposed was to introduce extended legislation to cover private spaces, compulsory microchipping and extension of dog control orders; that already exist to control dog fouling under the Clean Neighbourhoods and Environment Act 2005. These orders are now Public Spaces Protection Orders and enables councils to restrict and or ban dogs from specific locations. This provision runs alongside the s.47 Offences Against the Person 1861 provision which ensures that a person who sets his dog on anther person who is then wounded by the dog will be guilty of the offence of malicious wounding.

It was announced in February 2013 (https://www.gov.uk/government/news/clampdown-on-dangerous-dogs) that a series of measures to deal with the outstanding problems was to be introduced which included

  • Compulsory microchipping
  • Offences under the Dangerous Dogs Act to be extended to private areas
  • Funding would be available to charities to promote responsible dog ownership

 

Both the Dogs Trust (https://www.dogstrust.org.uk/)and the RSPCA (http://www.rspca.org.uk/home) welcomed these changes, with some reservation as to the effectiveness of microchipping to reduce stray dogs. The Police and postal workers particularly welcomed the extension of liability to owners who have ‘out of control’ dogs in their own homes (http://www.bbc.co.uk/news/uk-politics-22082638). Subsequently the Environmental, Food and Rural Affairs Select Committee report recommend that an attack on an assistance dog should be treated as an aggravated attack and carry harsher penalties.

 

All these recommendations have now been made law, and are contain within The Anti-Social Behaviour and Policing Act 2014 s.98 and 99, alongside an increased sentencing provision.

  • 14 years in prison if a person dies as the result of a dog attack
  • 5 years in prison if a person is injured
  • 3 years imprisonment if an assistance dog is either killed or injured.

So, now the new legislation is in place what does it mean for dog owners? The key issue for pet owners is that now they can be prosecuted for having a dog that is ‘out of control’ in both public and private spaces. The definition of out of control is spelt out and is in some respects subjective, a dog is out of control if;

  • The dog injures someone
  • The dog makes someone afraid that it might injure them
  • The dog attacks another dog
  • The owner of another animal is afraid that they might be injured if they tried to stop the out of control dog attacking their animal

All dogs must be microchipped from the 1st of July 2016. Since May 2014, the above provisions have been in effect, so a dog owner can be committing a criminal offence if their dog is ‘out of control’ at home or in public and it is therefore essential that visitors, delivery people and others are safe from dogs and fear of a dog when they approach a front door or enter a house.

Fake Online Reviews

Judith Tillson
June 28th 2016

Many of us at this time of year will be thinking about booking a summer holiday break and in doing so may well turn to online review sites to help make an informed decision as to how to get there and where to stay. In fact, according to Nisha Arora, a senior director of the Competition and Markets Authority (CMA) more than half the population of the UK uses online reviews when choosing to purchase goods and services. According to the CMA around £23bn worth of consumer spending each year may be generated by the influence of online reviews such as those provided by Tripadvisor, Amazon and trade check sites.

It is natural to expect that any review offered online by either a business or an online marketing company will be a genuine representation of what has been written by consumers. However the CMA, having carried out investigations into a number of companies between June 2015 and April 2016 has discovered several instances of companies creating false reviews for their clients. In the course of investigations, the CMA discovered instances of where fake reviews were published and negative reviews not published. Any business that practices such misleading actions may well be subject to either an investigation or indeed risk prosecution under regulations 5 and 6 of the Consumer Protection from Unfair Trading Regulations 2008.

Closer to home, a recent investigation by BBC Radio Stoke exposed such practices on the part of a local letting agency based on evidence provided by a former employee. The link below gives full details of the investigation and the potential legal liability of the agency in question.

feature at 1.22.26
http://www.bbc.co.uk/programmes/p03wtw9c#play

Wild animals

Sue Jenkinson

Recently the news has included some starting information. Following on from a freedom of information request sent to every council in the UK it has come to light that there are some alarming animals being kept in private homes up and down the land. (http://www.bbc.co.uk/news/uk-36356363) Some areas of interest to us in Staffordshire, include Cannock Chase, where three tigers and two lions reside and Stoke on Trent, two dwarf caiman, thirty cobra type snakes and six black widow spiders, while in Stafford someone is keeping six camels. The release of this information raises some interesting questions not least of all why would anyone wish to keep these deadly creators in their own home, a question that is beyond the scope of this blog to answer!

However, this recent news has prompted me to consider the law relating to dangerous animals and how it has developed. The keeping of wild animals commercially, in zoos and wild life parks and as pets has become increasingly controversial. There are strongly held views as to the morality of keeping these animals in captivity for whatever reason. (http://www.peta.org/about-peta/why-peta/pets/) While the recent channel 4 program, The Secret life of the Zoo, gave an insight into some of the breeding and conservation programs that zoos promote this cannot be said to apply to those animals kept as pets. (www.channel4.com/programmes/the-secret-life-of-the-zoo)

For many years there was no regulation or record of animals kept as pets and every one was at liberty to keep a tiger in their spare room if they felt so inclined. Clearly this was potently a significant danger to the public and also often extremely bad for the animal, with wild animals being kept in cramped and unsafe quarters and often suffering poor care and cruelty. Not so long ago, in the 1960’s and 70’s it was possible to buy all sorts of exotic animals from pet shops, Harrods famously had a pet department which could supply any pet requested and often had lion cubs and baby monkeys for sale to anyone who could pay the price. There were inevitably tragedies, injures and abandonments of animals that quickly stopped being cute and became uncontrollable and downright dangerous. It was clear that control of ownership and accommodation was needed and in 1976 the Dangerous Wild Animals Act banned keeping such creatures unless the owner held a license and provided suitable secure accommodation. (www.legislation.gov.uk/ukpga/1976/38) It is believed that during the 90 days’ grace offered to owners before registration became compulsory that many big cats were released into the wild and some believe they still roam wild and remote places to this day. (http://www.ukbigcats.co.uk/)

The schedule of animals that must be registered is from time to time updated as new exotic hybrids are developed. The schedule covers all animals that must be registered from poisons spiders and snakes to big cats. It is the local authority’s duty to ensure that licenses are up to date and accommodation annually inspected and safe. Local authorities must inspect the premises where ‘dangerous animals’ are and they also have a power to seize and dispose of animals that are not licensed or the licensing conditions are not being met.

The legalisation is often criticised as being about human safety rather than animal welfare. Charites like the Born Free Foundation (www.bornfree.org.uk) and RSPCA (www.rspca.org.uk/) are highly critical of the legislation believing that there needs to be an animal welfare focus rather than simply a public protection one. This is certainly the direction of travel as far local authorities are concerned with welfare increasingly being the first priority of inspection and inspectors normally being vets with appropriate insight into the species being inspected.

In December 2015 the House of Commons debated the exotic pet trade but there is no proposed to change the legislation.(http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm151209/halltext/151209h0001.htm) The debate did highlight some of the arguments against the trade in exotic pets which included negative impacts on captured animals, and wild populations. There are also negative impacts on animal’s bred in captivity that never live a natural life. While the Animal Welfare Act 2006 (www.legislation.gov.uk/ukpga/2006/45/contents) imposes a duty of care on all pet owners it is increasingly difficult to see how some exotic pets can receive the ‘opportunity to behave naturally’ in confined and often inadequate housing.

So the legislation should ensure the majority of the animals kept as pets across the UK and identified in the recent press reports will be loved, cared for and in safe and appropriate housing. However it is the unregistered and illegal trade that is of the greatest concern to animal welfare agencies and they certainly suggest that the registered animals are just the tip of the iceberg.

8 seconds proves to be too much cricket in latest Test

Mark Downie
18 April 2016

8 seconds proves to be too much cricket in latest Test
England and Wales Cricket Board and Sky UK Limited v. Tixdaq Limited and Fanatix Limited
Copyright work can be infringed if a ‘substantial’ part of the work is reproduced without the permission of its owner. There are several defences, including ‘fair use’ for the ‘purpose of reporting current events.’ Recently the High Court had to look at the meaning of these concepts in relation to very short clips taken from TV broadcasts of cricket matches.
Broadcasts of ECB cricket matches (and associated films like action replays) and were owned by the Claimants. The Defendants developed an App so that users could upload short clips, each lasting no more than 8 seconds, and add their own comments. The clips would then be shared. The Claimants argued that this was infringement, the Defendants that 8 seconds could not be ‘substantial’ and that, even if it was, the defence of fair use for the purpose of reporting current events applied.
The High Court ruled in favour of the Claimants.
1. In deciding whether the part copied was ‘substantial’ the law looks at the qualitative value of the clip and not just at the quantity of footage copied in relation to the whole match. Highlights, even very short ones (such as a catch or the fall of a wicket) can be very valuable to the copyright owner.
2. Although it was agreed that the matches constituted ‘current events’ the judge ruled that the clips were not made for the ‘purpose of reporting’ these events but for the commercial purpose of sharing the clips and attracting customers to the App. The clips were presented for consumption because they were valuable and not to provide information about current events.

Mark Downie
18 April 2016

The EU Referendum part 2.

Robert Curtis

Part II – The Legal Position after the Vote
I will mainly be talking about the legal position, and not getting too far involved in political, economic or social debates about the effects on a particular sector, or our relationship in general if we decide to leave the EU – or indeed our new relationship if we remain. I do use a couple of current examples to illustrate the hyperbole that’s built up on both sides – but the examples are not trying to influence the debate or the ways people may vote.

1. Vote Remain.

Friday June 24th 2016 – the country wakes to the news that 52% of those eligible to vote have decided that the UK should remain part of the EU. Big sigh of relief from Prime Minister David Cameron and all who backed the Remain campaign. So we all go about our business as usual and nothing changes….

….but then we start to realise that we haven’t voted for the status quo, we’ve voted for “fundamental reform” of the EU, or at least a very different relationship within the EU. Let’s briefly remind ourselves of the 4 key principles which formed the basis of the vote. Yes, I know there are five below, but the last two were originally together, and I think they are fundamentally different.
• Protecting the single market for those outside the Eurozone:
• Writing competitiveness into the DNA of the whole European Union
• Exempting Britain from an ‘ever closer union’
• Tackling abuses of the right to free movement
• Enabling us to control migration
Of course it’s still debatable what all these actually mean, and they are subject to a great deal of interpretation. However, let’s take them at face value and assume they are to become the basis of new treaties in the fullness of time. The Government would, I am sure, prefer to forget the whole thing and simply say “we voted to stay in” but some clever lawyer might actually say “no – had we not had these 4 (or 5) principles in front of us we may have voted otherwise”. We weren’t asked whether we wished to have the same relationship with the EU but one that would be fundamentally different.

So let’s just think through what would happen. Firstly the European Parliament has given itself the authority to validate (or otherwise) the agreement. Just a little diversion here… I know you know there are actually 4 presidencies within the EU, but I can guarantee that only a very few people outside the university know that. Fewer could name them, and fewer still could say what their particular remit is, or where their authority derives from. Law students at Staffordshire University won’t have any problems here, of course, but for anyone else reading this, below are the 4 presidents.

• President of the European Council. Donald Tusk. He has been in charge of the negotiations to date.
• President of the European Commission. Jean-Claude Junker
• Presidency of the Council of the European Union. Currently held by the Netherlands
• President of the European Parliament. Martin Schultz.

You can find out what they do and the composition of the bodies they represent from the link below. You might like to ask yourself how many of them have been elected as “president” and what is the relationship between them, and between each and relevant leaders of each participating country – but that’s for another time.

http://europa.eu/about-eu/basic-information/eu-presidents/index_en.htm

Back to the main agenda. The European Parliament could ratify the agreement as it stands – in which case the various terms and conditions would (in time) come into effect. There would be no immediate changes but as the treaties were altered the various provisions would be incorporated, and until that time the parties would (hopefully) honour the spirit of the agreement. However, treaty change requires the consent of all 28 members – and one wonders how likely the other 27 are to agree to incorporate all the provisions. Remember that David Cameron has stated that we get the best of both worlds – we gain a competitive advantage over our friends by opting out of the bits we don’t agree with. How likely is it that every single country will agree to us having that advantage set in stone for ever….? It’s also an interesting point to consider what would happen if, say in 5 or 10 years when the treaties come up for renewal, there were a government in the UK other than a Conservative one. It may well be that the competitive advantage written into the agreement would be unpalatable for another political party (and they have argued strongly against many of the negotiating points adopted by the current government) so we could actually veto the agreement ourselves….. Either way, if another country vetoed it, or we did so ourselves, there would be no changes at all to the current relationship and all David Cameron’s “tough negotiation” would be to no avail. Perhaps he actually already knows this, so it didn’t really matter what was written into any agreement – it would never come into force.

This is quite an interesting point from the legal perspective (though I guess by that time not many people would be bothered by the legal niceties) in that the vote to stay in was based on “fundamental change” or at least a fundamentally changed relationship, so if the provisions underpinning that change are not enacted in European law, do we get another vote, this time “in” or “out” based on the status quo rather than on a potential future changed position? Somehow I doubt it, and the government of the day (of whatever perspective) would simply say that this was an “in or out” referendum, once in a lifetime, and you chose “in”. That’s why several commentators have suggested we wait until the agreement has been ratified by the European Parliament (though of course not enacted in Treaty change as that would take too long) before having the vote. And that’s why you can understand David Cameron’s desire to get it out of the way as quickly as possible, because if the European Parliament said “no” then we’d have to go back to the negotiating table.

The scenario of other countries not accepting any treaty change is very real, and not some theoretical construct. The basis of the agreement is flexibility or “special considerations” which would then create expectations in other counties. The Financial Times on February 22nd 2016 puts it very eloquently “By transforming the right for a state to leave the EU into the right to blackmail partners with the threat of leaving, Mr Cameron has opened Pandora’s box.”

2. Vote Leave.

Friday June 24th 2016 – the country wakes to the news that 52% of those eligible to vote have decided that the UK should leave the EU. Does David Cameron resign in shame and embarrassment? Does Boris Johnson mount his challenge to become Prime Minister? Let’s leave these questions to the politicians and concentrate on the legal framework.

Firstly, let us remind ourselves of the commitment made in the Conservative Party manifesto before the election in 2015 “We will honour the result of the referendum, whatever the outcome.” Similarly, in early discussions surrounding the debate when the date was announced, there was talk of the referendum leading to a second vote on different terms. Let us assume that this will not happen – and the government has been very clear that the result is binding for a generation. So essentially we wake up to the UK leaving the EU. This blog discusses how that would happen. Remember that a lot of rhetoric has been given by both sides of the debate – on the one hand that it would take 10 years to get any decisions at all (well, that would be a fast turn-around compared to most EU negotiations….!) and on the other that there would be no problems or difficulties in extricating the UK from the EU – clearly there would, and these problems would have to be addressed practically.

I am sure you have come across reference to “Article 50” and whether or not (or how soon) it would be invoked. The principal provisions of Article 50 are copied below – you can find a link to the full Lisbon Treaty at the end, but this is one time I’d suggest NOT reading the whole thing – the “reader-friendly” version runs to 384 pages.

The language of Article 50 is quite straightforward but as always, the devil is in the detail of how it would work in practice – which is a very interesting discussion as no-one has ever invoked article 50 so it would be setting precedents all over the place, and we’d all be genuinely navigating in unchartered waters.

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

This is the basic statement – but I would like to alert you to the fact that there is no provision for a state to be excluded from the club. So all the talk of Greece being forced out in 2014 and last year was really so much hot air – only Greece could have decided to leave, no other country or group of countries, nor any of the EU institutions, could have forced them to do so.

“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………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.”

So (for once) the language is quite straightforward and clear. Once Article 50 is invoked there is a two year negotiating period during which time a date for final withdrawal is agreed. In that two-year period nothing changes and all the same rules apply, but there is a change in the negotiation position between the country leaving and those remaining, as paragraph 4 makes clear that the country leaving will not take part in the discussions of the Council about its leaving. This is pretty obvious but has been erroneously misinterpreted by some to mean that the country leaving would be unable to take part in any negotiations. That is not the case, just that (as would be expected) the country leaving can’t sit on both sides of the table at the same time.

This two-year period is where the detailed negotiation of the type of relationship the country would have with the EU talks place, and covers a range of interesting topics that have been put before the public already in the referendum debate (though one has to say with rather more emotion and divergence from reality than we could have expected). These topics would include our relationship regarding trade, whether we still allow free movement of people from the EU, cross-border security and information sharing, the position of those already resident in each other’s countries, health-care arrangements for those travelling etc…

I know I said I would steer clear of politics and opinion, but I’d just like to burst a couple of bubbles – one on each side of the debate – which are, in my opinion, quite far from reality.

Firstly let’s explode the myth that we wouldn’t be able to trade with the EU after leaving. Put simply, there are many countries that actually trade successfully with the EU without being part of the EU – in fact some 120 of them….. Of course there are difficulties with trading with another trading bloc but actually this happens all the time. The EU is not the only trading bloc in the world, but one of about 8. I am not suggesting that the detailed rules and regulations are not complex and often cause difficulties, but let’s take one small but very important recent example – steel. China is not part of the EU and actually doesn’t have a trading agreement with the EU yet is able to export its steel to EU countries very successfully. To quote from the EU’s own website (links at the end of the text). “The European Union and China are two of the biggest traders in the world. China is now the EU’s 2nd trading partner behind the United States and the EU is China’s biggest trading partner. The EU is committed to open trading relations with China”. So how is it that there are no trade agreements, yet trade occurs, and not only occurs, but is spectacularly large? Well, obviously, you’ve been brainwashed by the “in” campaign into thinking that as soon as we leave then we cease to trade, but that is demonstrably not the case. Many countries in Asia, South America, North America all export cars, electronic goods, clothing, food, fashion items etc… to the EU (and import them from the EU) but without a trade agreement. There would of course be changes, and these would mainly affect those currently trading (hence their reluctance to change) but trade would continue, and with it the creation of jobs in both the trading partners. Likewise, the issue of meeting standards of those imposed by another trading bloc has caused people to think “let’s not rock the boat”. But we already do meet these standards and would have to continue to do so for each and every country (or trading bloc) that we exported to. We import from the US, and we export to the US. The US has different standards to the EU – so we have to meet those standards (as we do). And remember, again, there is no trade deal with the US. As the EU website says “The EU is negotiating an ambitious and balanced trade and investment deal with the US.” (full text in link at the end). So although there would be negotiations (which actually go on all the time between different trading partners) nothing substantial would change in reality.

Secondly let’s turn our fire against the story that is commonly told by the “out” campaign about immigration being the fault of the EU and that we would gain control of the numbers of migrants. Whilst there is truth in the fact that we would be free to set our own limits on immigration, in reality we do have control of the immigration from non-EU countries but choose not to exercise it. In 2015 there were approximately 350,000 migrants coming to this country on a net basis. That is, 600,000 people came in but 250,000 left. Of those 350,000 how many were from the EU? Only 170,000. So a further 180,000 came from other countries where we do indeed have the right to control the numbers. Why would this change much if we left the EU? We wouldn’t suddenly stop many of the current 170,000 EU citizens as the vast majority are key to our economic growth. Many of these people share similar cultural and historical backgrounds and have proven that they are keen to work and to contribute to society. Talk of “benefits tourists” is a tiny sideshow. Even if we were to reduce the 170,000 by (say) 50%, there would still be 180,000 from outside the EU who would enter – based on current trends and willingness of the UK government to act. Mr Cameron stated that he wanted to reduce net migration to “the tens of thousands” per year. He has spectacularly failed, admitting nearly double his maximum target with immigrants from the category the country does indeed control. Why would leaving the EU change any of that…?

These are not arguments for or against staying in the EU, but I just wanted to use them as illustrations of the need to undertake rigorous research into each and every area of discussion, and to form your own opinion based on the facts, not on the rhetoric which is often somewhat divorced from reality.

Anyway, as one correspondent has written, it doesn’t matter which way we vote, as the fact of having a referendum has given us a golden opportunity. The “in” camp say we will be infinitely better off if we stay, the “out” camp say we will be infinitely better off if we leave. So whichever way we vote, it looks like we’ll have a wonderful future….!

http://ec.europa.eu/trade/policy/countries-and-regions/countries/china/

http://ec.europa.eu/priorities/balanced-eu-us-free-trade-agreement_en

http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html

Robert Curtis April 2016. robert.curtis@staffs.ac.uk

The EU Referendum

Part I – How We Got To Where We Are

 

When writing this blog I promised that I would steer clear of politics, but it’s difficult to divorce the politics from the other issues completely as the former are often used by both sides of the debate to reinforce their positions.  Moreover, the reason we are having a referendum at all is rooted in politics far more than in objective reasoning, so let’s start there and trace the developments

 

There has been a groundswell gathering momentum for the last 10 years over the UK’s relationship with the EU, which came to some sort of pinnacle around the time of the last election in 2015.  During the 5 years prior to that – remember this was a time of coalition government between the Conservatives who are pretty much split over the issue, and the Liberal Democrats who are totally in favour of the UK remaining in the EU, and a time when the UK Independence Party (the clue is in the title….) was gaining a lot of electoral ground.  Essentially a threat to the Conservatives, UKIP was one of the biggest obstacles to the Conservatives gaining an overall majority at the 2015 election.  Partly to neutralise this threat, the Conservatives began talking about offering the country a referendum on the issue.  David Cameron set out his position in a speech delivered at Bloomberg’s headquarters in London on the 23rd January 2013.  This became known as the “Bloomberg speech” and it set out the reforms to the EU which the Prime Minister wished to achieve.  His position was quite clear – that after negotiating “fundamental reform” of the European Union, he would offer the public the opportunity to vote on the new relationship in an in/out referendum.  It’s worth noting the words “fundamental reform” as we’ll return to these on several occasions during this discussion.

 

The full text can be found using the link below and it’s worth reading as it draws on historical ties to create quite an emotive backdrop.  It was a powerful speech challenging most of the current structures and direction of the EU – and it set the scene for the negotiations to follow.  We will later compare what was achieved in those negotiations to what was said in the speech.  I therefore make no apology for quoting extensively from the speech.

 

https://www.gov.uk/government/speeches/eu-speech-at-bloomberg

 

After talking about the historical basis of the EU, the Prime Minister turned to the current position with the words “…European Union and how it must change…”  He recognised that then was perhaps not the best time to be introducing fundamental reforms but felt that the crises then on-going would force the EU to reform itself, thus alleviating pressure on Britain to do so.   He said “why raise fundamental questions about the future of Europe when Europe is already in the midst of a deep crisis?” – quite a powerful formula of words to use about the club of which you are a member.

 

He identified 3 major challenges confronting the EU, which formed the basis of the changes he wanted to see.  These were, and I quote:

  • First, the problems in the Eurozone are driving fundamental change in Europe.
  • Second, there is a crisis of European competitiveness, as other nations across the world soar ahead.
  • Third, there is a gap between the EU and its citizens which has grown dramatically in recent years, and which represents a lack of democratic accountability and consent.

 

“The biggest danger to the European Union”, he said “comes not from those who advocate change, but from those who denounce new thinking as heresy”.  Again, it is interesting to note how far any changes have actually been made in the intervening 3 years.

 

Repeating the phrase “we need fundamental, far-reaching change” he went on to enunciate 5 principles on which a new model EU would be based.  Again these are direct quotes, and you might like to note the somewhat undiplomatic language.  Remember this is a club of which he is a member, and of which he wishes to remain a member:

 

  • First: competitiveness – we urgently need to address the sclerotic, ineffective decision making that is holding us back. That means creating a leaner, less bureaucratic Union.
  • Second: flexibility. We need a structure that can accommodate the diversity of its members, and to challenge the concept of “ever closer union”.
  • Third: power must flow back to Member States.
  • Fourth: democratic accountability. We need to have a bigger and more significant role for national parliaments.
  • Fifth: fairness. Whatever new arrangements are enacted for the Eurozone, they must work fairly for those inside it and out.

 

It was a powerful and emotive speech, using phrases such as “heretical”, “challenging”, “sclerotic”, “holding us back” etc…and essentially distanced himself from the rest of the EU.

 

The speech concluded with no less vigour:  “The European Union that emerges from the Eurozone crisis is going to be a very different body. It will be transformed perhaps beyond recognition by the measures needed to save the Eurozone.”

 

Again, you can be the judge of what changes have actually be made within the EU, whether it is indeed “very different” or “transformed……beyond recognition”

 

Finally he wanted the various changes embodied in Treaty change to “entrench the diverse, competitive, democratically accountable Europe that we seek”.

 

_____________________________________________________________
Conservative party manifesto March 2015
All the above happened in 2013 – two years later we were approaching an election in the UK, and manifestos were being prepared to tell the public what each party proposed to do if it were to govern with an overall majority.  Whether or not you read manifestos, and whether or not you think they are worth the paper they are written on, it is usually worth testing what was said against what has been achieved.  So let’s turn to the manifesto which can be found below:

 

https://www.conservatives.com/manifesto

 

Page 72 talks about the EU and is entitled “Real change in our relationship with the European Union”.  Note there’s a subtle shift already – no longer is the main thrust that the EU itself must change, but rather that “our relationship” must change, although to be fair it did use similar language to the Bloomberg speech later on.

Confirming that the referendum would be held by the end of 2017 it promised to:

 

  • “reform the workings of the EU, which is too big, too bossy and too bureaucratic”
  • “reclaim power from Brussels” as well as insisting that:
  • ”the EU needs to change”

 

The manifesto also introduced two concepts missing from Bloomberg, but which would have popular appeal to many voters.  The first was that the EU was “…too undemocratic” and the second was “large scale immigration”.  Remember the period – early 2015 when the first pictures of massed immigration into Europe were projected onto our TV screens.

 

We know that the Conservatives won an overall majority in May 2015, and duly set about ensuring that the referendum took place.  Mr Cameron made a further speech on 10th November 2015 (link below) setting out the then current position, building on the Bloomberg speech, and laying the formal foundations for the negotiations which would presage the vote.

 

https://www.gov.uk/government/speeches/prime-ministers-speech-on-europe

 

He recognised that the challenges facing the European Union had not diminished since the Bloomberg speech, but had grown.  By now, of course, not only had Greece just been rescued from the brink of bankruptcy – but with a financial noose around its neck which will last at least 50 years (and most admit will never be repaid) – but the migration crisis had been ongoing throughout the whole of the summer, with the EU standing by impotently but still talking of needing to “do something”.  France had endured the Charlie Hebdo shootings which killed 12 people earlier that year – little could Mr Cameron know that a mere 5 days after his speech more than ten times that number would be gunned down in the same city in the Stade de France attacks.

 

He repeated “The European Union needs to change”, used the phrase “fundamental change” and re-stated the 3 challenges facing the EU – let me just remind you of these:

  • the Eurozone
  • lack of competitiveness
  • lack of democratic accountability

All of these were, he said, still valid.  Indeed they were “…as critical now as they were when I first set them out “ – clearly the EU hadn’t changed in the ways that Mr. Cameron expected in 2013 but he added another, guess what….?  Yes, of course:

  • the migration crisis

 

And it’s worth reading – not for what it says (as it is largely a repetition of the earlier speech) but for its tone.  My interpretation is that the Bloomberg speech was a fiery, impassioned and determined set of statements, designed to spur not the British people, but the institutions of the EU into making the sort of “fundamental changes” which would easily secure the “In” result at the referendum.  This one seems to me to be delivered in a tone of bored, almost subservient, resignation, in the full knowledge that nothing has changed and nothing will change.  Many of the phrases are statements of hope such as “..this should be perfectly possible” and “there is no reason why….” rather than the bold positives of three years earlier.  The language distinctions would be a perfect treasure trove for a specialist – I am no specialist but there’s a big difference between the earlier “will” and the later “would” which is often used.

 

Cutting to the chase, the four objectives set out as goals for the negotiations were:

 

  • “protect the single market for Britain and others outside the Eurozone.” This is much watered down from the earlier statements which sought to expand and build upon the single market.  This phraseology again seems defensive and negative.
  • “write competitiveness into the DNA of the whole European Union.” – laudable but practically meaningless formula of words.
  • “exempt Britain from an ‘ever closer union’”. Quite how this would be achieved as a member of the club if others want to go down a different path is not explained.  Interestingly Mr Cameron sneaked in a further objective as an adjunct to this one “to bolster national parliaments.”  Mr Cameron clearly recognises that many people would say “but these are only words” for he qualifies the statements by adding “…not through warm words but through legally binding and irreversible changes.”
  • “tackle abuses of the right to free movement, and enable us to control migration from the European Union, in line with our manifesto.”

 

From the legal point of view the introduction of the words in this speech “…a basis that is legally-binding and irreversible, and where necessary has force in the Treaties” should cause us to examine reality against rhetoric and see what legal protections have been included, as well as the determination of all parties to enforce them.  Interestingly, discussions in the broadcast media between the various parties following this speech, including those who would be negotiating on behalf of the EU, disagreed quite dramatically on this point.  Whilst Mr. Cameron insisted that all the negotiation points were legally binding, the EU Commission stated that they would need to be put to the European Parliament which could overturn or modify them at a later stage.  This prompted some commentators to raise the point “why not wait till the European Parliament has passed judgement and then have a referendum…?” which has never (in my opinion) been satisfactorily answered, and is something we’ll return to for the next blog.

 

 

The negotiation – what was asked for, what was achieved.

I should imagine that asking the average person in the UK (or indeed the rest of the EU) what it is we are voting on would elicit the answer “in or out of the EU” – but we should remember that this was not the original intention.  It’s worth reminding ourselves that the Prime Minister told us that after achieving agreement on “…a fundamentally reformed European Union…” we would then be asked to vote either “out” or “in, but with reforms as negotiated”.  Otherwise, why go through the rigmarole of attempting to negotiate anything?

 

The final negotiations have not been anywhere near as clear or concise as the original speech setting them out, but as far as we can gather, the four things below are what has been asked for and achieved, and presumably what everyone should be aware of if we are taking part in a vote.  It’s quite interesting to note that we never hear of the negotiations any more, or what changes have been achieved within the “reformed EU” to enable us to make up our minds.

 

I will leave you to consider whether or not the four objectives have been realised through the negotiations – or indeed how closely they match what was expected from the earlier strong speeches.  The words in italics below are the actual words which we should be aware of, and which form the basis of the “new relationship” with the EU.  I have put in my comment, not from the “political” point of view of a Euro-sceptic or Euro-enthusiast, but purely comparing them to what was originally sought, and what they actually mean:

 

Protecting the single market for those outside the Eurozone:

Mr. Cameron wanted to make sure that countries outside the Eurozone were not materially disadvantaged, and to protect the City of London – the world’s largest financial trading centre.  The agreement states “Measures, the purpose of which is to further deepen the economic and monetary union, will be voluntary for member states whose currency is not the euro.  Mutual respect between member states participating or not in the operation of the euro area will be ensured…….the single rulebook is to be applied by all credit institutions and other financial institutions in order to ensure the level-playing field within the internal market.”

 

RWC Comment – some protections have certainly been built in by using the word “voluntary”, but the inclusion of the words “to ensure the level playing field within the internal market” was inserted at France’s insistence to ensure that the City of London was not able to exclude itself from financial regulation imposed by the rest of Europe.  If, for example, Brussels decided to impose a tax on financial transactions, then the “level playing field” clause means we would have to impose such a tax as well.

 

Writing competitiveness into the DNA of the whole European Union

The agreement says the EU “must increase efforts towards enhancing competitiveness, along the lines set out in the Declaration of the European Council on competitiveness. To this end the relevant EU institutions and the member states will make all efforts to strengthen the internal market”

RWC Comment – this doesn’t sound to me very much like “fundamental reform”.  The EU has become less competitive with other areas in the world – China, Asia, America, South America – and it sounds like they are paying lip service to a different approach to competitiveness.  If the EU has achieved so little in the last 50 years I can’t see that this formula of words “must increase efforts” and “make all efforts” is going to spur them on to reduce regulation and improve labour market reforms.  It reminds me of a serial criminal who says “this time I really will obey the law”

 

Exempting Britain from an ‘ever closer union’

The agreement says “It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union. The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom.”

RWC Comment – a real win, at least in terms of the words used.  When the treaties get revised, sometime in the next 15 years or so, they will state that ever closer union does not apply to the UK.  My question is – what does this mean in practice?  The EU’s stated aim is “ever closer union”, so how can one member not go along with the fundamental principle on which the club is constituted?  It is also interesting to note the words “and the respective constitutional requirements of the Member States”.  Note the plural.  This would strongly indicate that it is the other members who will decide whether or not to re-open the treaties, and whether or not to grant the UK it’s opt-out on ever closer union.  This brings us back to the question posed earlier – how legally binding is any of this?

 

Tackling abuses of the right to free movement, and enabling us to control migration

The agreement says “The Council would authorise that Member State to limit the access of newly arriving EU workers to non-contributory in-work benefits for a total period of up to four years from the commencement of employment. The limitation should be graduated, from an initial complete exclusion but gradually increasing access to such benefits to take account of the growing connection of the worker with the labour market of the host Member State. The authorisation would have a limited duration and apply to EU workers newly arriving during a period of 7 years.”

RWC Comments – whatever reference there is to “benefits” will have almost zero effect on immigration.  European Union citizens don’t come to this country for benefits, they come to work – and contribute significantly to our economy.  Every EU citizen has the right of free movement to any country within the EU, and any limitations on benefits would only act as a disincentive, not a “control”.  Several commentators have suggested that the lift in the minimum wage would cancel out any such disincentive in any case.  The UK is not part of Schengen (see earlier blog article) so does not have to accept any of the illegal immigrants currently entering, but as soon as they become EU citizens there is no control.  So whatever your views on immigration may be , there is absolutely no “control” built in to this part of the agreement.

If we vote “remain”, is the agreement legally binding?

 

Interesting question – and as we saw, a lot of disagreement, but we’ll consider that in part II in a little while.

 

Robert Curtis April 2016.  robert.curtis@staffs.ac.uk

 

Law and policy collide, how have children’s charities reacted to the budget?

Sue Jenkinson

Very often there is a conflict between law and policy and this can often be seen most clearly around spending decisions Government’s make. This government has a strong family values agenda with marriage and stable families at its heart. Marriage has been opened up to more people (Same Sex Marriage Act 2013) adoption is to be speeded up (Children and Families Act 2014). Last week’s budget has generated the usual amount of newsprint and comment, many papers and websites highlighting how the changes will impact on various groups and family types, who will be better and who will be worse off? While children do not vote and are rarely tax payers they are not a group that the government is overly concerned about alienating, yet austerity and changes to the support offered to family’s will inevitably have a significant impact on children. These spending decisions are policy and have raised series concerns amongst the voluntary sector for many years now. While Mr Osborn trumpeted his intention to put children first, several Charites have commented on the impact of this budget on children including Dr Barnardo’s (www.barnardos.org.uk/) who highlighted the importance of apprenticeships to aspiring disadvantaged children. The failure to ensure good quality placements and the less disadvantaged young people who are taking the majority of these opportunity’s mean that the young people the Barnardo’s supports do not often get revamped apprenticeships. They also commented that the proposed scheme to offer parents parenting vouchers to help improve parenting via parenting classes, and therefore opportunities, for all children required funding and it was not, as yet clear where this funding was going to come from. The NSPCC (www.nspcc.org.uk) was disappointed that funding to support mental health budgets was not ring fenced in order to support of vulnerable children and particularly those who had been the victim of abuse. Ring fencing the funds would allow the charity and other agencies to fill some of the therapeutic gaps the charity has identified in its own research. On the plus side the charity was pleased to note that some of the Libor fines totalling 1.85 million will be channelled through their child protection and family support services enabling them to protect more vulnerable children and support their families. The Children Society (www.childrenssociety.org.uk) statement makes clear that this budget is failing the next generation by not providing resources to tackle child poverty and Child Action Poverty Group, (www.cpag.org.uk) on a similar theme highlighted the inefficiency of increasing all personal tax allowances in targeting child poverty.
All in all this snap shot of some children charities responses to the budget shows how, without resources to back up intention much of the governments agenda regrading child protection and support is falling to the voluntary sector. While we do not hear so much about the ‘big society’ any more it is clear that much of family policy is now implemented through the voluntary sector and it is their comments on the budget that have the most relevance for family law and its implementation.