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This article will argue that positive human rights obligations should be taught and embraced more widely than they have yet been. This argument will reference the European Convention of Human Rights (ECHR) because that is the human rights framework with which readers may be most familiar. However, the argument applies to any other human rights framework recognising positive obligations (e.g. the American Convention on Human Rights: see Velásquez-Rodríguez v Honduras [166]).

The argument takes three parts. First, positive obligations are introduced. Second, positive obligations’ unique normative importance is explained. Third, the case for states’ observance of positive obligations is made.

1. What are positive obligations?

Human rights law imposes two different types of obligation. On the one hand, there are negative obligations. These forbid the state from interfering in right-bearer’s affairs. For example, the right to life (Article 2 ECHR) imposes a negative obligation generally forbidding states from intentionally killing right-bearing citizens. On the other, there are positive obligations. These require the state to take action, generally to protect citizens against threats to their human rights. For example, Article 2 ECHR imposes a positive obligation requiring states to take steps to protect citizens identifiable in advance as potential homicide victims.

Positive obligations take many forms. They include requirements that states: (i) protect individuals’ ECHR rights in emergencies; (ii) establish legal and administrative frameworks to protect ECHR rights; (iii) provide information or resources to individuals to protect ECHR rights and; (iv) provide redress for breaches of ECHR rights. Yet common to all is that states are required to act, not forbidden from doing so.

Positive obligations are poorly understood. Doctrinally, the European Court of Human Rights (ECtHR) has declined to “develop a general theory of positive obligations” (Platform Ärtze für das Leben v Austria [31]) instead deciding cases and principles on an ad hoc basis. In academic literature, as Laurens Lavrysen recognised, “the concept of positive obligations remains undertheorised”. There exist only four books comprehensively studying positive obligations and all are, or risk soon becoming, outdated: (1) Cordula Dröge’s ‘Positive Verpflichtungen der Staaten […]’ in 2003; (2) Alistair Mowbray’s ‘The Development of Positive Obligations […]’ in 2004; (3) Dimitris Xenos’, ‘The Positive Obligations of the State […]’ in 2013 and (4) Laurens Lavrysen’s ‘Human Rights in a Positive State’ in 2016. Against this background, law schools may foreground negative obligations and neglect positive obligations. (Here, reflect on your own positive obligations tuition if you wish.)

2. Why should positive obligations be taught and embraced more widely?

Positive obligations deserve greater attention because they can uplift avoidably vulnerable persons to the minimum standard of well-being that human rights law might reasonably be considered to require. That proposition is now broken into three stages so that it may be best understood.

(i) Human rights require that everyone enjoys a minimum standard of well-being

Article 1 of ECHR provides that states “shall secure to everyone within their jurisdiction the [ECHR] rights and freedoms”. That enjoinder has two implications. First, most subtly, that human rights law envisages a minimum standard of well-being below which rights-bearers may not fall. Namely — and irrespective of their financial and other circumstances — rights-bearers must not be enslaved (Article 4 ECHR); must generally have liberty and security of person (Article 5 ECHR); not experience unlawful discrimination (Article 14 ECHR); not experience torture (Article 3 ECHR) or threats to life (Article 2 ECHR) (etc). Effectively, human rights law protects different aspects of well-being. Together, they converge to form what we may call a ‘minimum standard of well-being’ below which EHCR considers rights-bearers should not sink.

The second implication is that that minimum standard of well-being should be enjoyed universally — that is, by ‘everyone in the jurisdiction’.

(ii) Not everybody in society enjoys that minimum standard of well-being

While human rights law envisages that everybody should enjoy the same minimum standard, there is in fact considerable variance in right-bearers’ well-being. The remainder of this article will explain variance in well-being with reference to three phenomena: modern slavery, disability and domestic violence.

In the year ending 2020 between 10,000 and 13,000 persons were potential victims of modern slavery in the UK. Victims of modern slavery were not enjoying the minimum standard of well-being envisaged by human rights law. That is because, rather than enjoying the full package of rights implied by that standard, the Article 4 ECHR protection at least was absent.

Disabled people, too, may fall below the minimum standard of well-being that human rights requires. Disabled persons are more likely to be the victims of crime than non-disabled persons, with rates of victimhood standing at 23.1% and 20.7% of populations respectively. This heightened vulnerability to interference with possessions and private life (contrary to Article 11, Protocol 1 and Article 8 ECHR) is inconsistent with the ideal of an indiscriminately enjoyed security in the same.

Finally, there is societal variance in individuals’ security of person. Women are more likely than men to die in episodes of domestic violence, with women comprising 76% of victims in the year ending 2020. Accordingly, whilst the minimum standard of well-being envisages indiscriminate security of person, women in fact experience a heightened vulnerability to violence.

(iii) Positive obligations compel states to minimise avoidable vulnerability

Positive obligations are the final piece of the puzzle. Arising parasitically upon avoidable vulnerabilities, positive obligations compel states to try and uplift vulnerable persons to that minimum standard of well-being which human rights law might reasonably be considered to require.

For example, victims of modern slavery are not intractably so. As Iffat Idris observes, providing victims with accommodation, medical care and asylum support can help reduce their vulnerability. Against this background, in 2010 the ECtHR in Rantsev v Cyprus and Russia held that states have positive obligations to prohibit, prosecute and punish actions aimed at maintaining a person in a situation of slavery. In 2021, the ECtHR added in V.C.L. and A.N. v United Kingdom that states have positive obligations to protect victims of trafficking. Through these judgments, positive obligations were deployed to minimise the avoidable vulnerability associated with modern slavery and restore victims to the higher standard of well-being enjoyed by others in the population.

Disability, too, need not imply disadvantage. Disabled people’s greater vulnerability to crime was addressed in Đorđević v Croatia. Therein, the ECtHR held that states have a positive obligation, when they know that a disabled person is suffering serious harassment from other citizens, to try and stop that harassment from continuing. Connectedly, positive obligations have operated to minimise disabled persons’ avoidable exclusion from civic engagement. In Zehenter v Austria, for example, the ECtHR held that states have positive obligations to ensure that procedural safeguards are in place to protect disabled litigants from dispossession of their homes. Thereby, positive obligations were again utilised to uplift vulnerable persons’ well-being by minimising avoidable disadvantage.

Finally, consider domestic violence. States have since 1998 been obliged to try and save the lives of individuals identifiable in advance as potential homicide victims. Yet the ECtHR has since held that states must observe that duty with ‘special diligence’ when putative victims are women (Tkhelidze v Georgia) and/or children (Kurt v Austria). Strictly speaking, the minimum standard of well-being requires a reduction in women’s very vulnerability to domestic violence, rather than being contented with authorities desperately trying to prevent fatalities at the eleventh hour. Nevertheless, requiring that authorities pay special care to the especially vulnerable is consistent with, or else advances towards, the ideal of indiscrete enjoyment of security of person.

3. Why should states observe positive obligations?

When ratifying the ECHR, states affirmed to “secure to everyone… the [ECHR] rights and freedoms” (Article 1 ECHR). It is neither unforeseeable nor inconsistent with that affirmation that so securing may require uplifting the well-being of the especially vulnerable.

Connectedly, states should observe positive obligations because it is often not burdensome for them to do so. Frequently positive obligations require not that states actually protect an ECHR right, but only that they try to do so. For example, in Đorđević v Croatia, the state was liable not because it failed to protect the disabled person from serious harassment, but because it had altogether failed to try. Conversely, in Kurt v Austria, state liability did not attach because, notwithstanding that fatality eventually occurred, the state had discharged their duty of ‘special diligence’ in investigating the domestic violence that preceded it.

Nor are states overburdened when positive obligations require more than mere attempts. Obligations requiring establishment of legal or administrative frameworks, for example, are frequently ‘framed at a high level of generality” (R (Home Secretary) v First-Tier Tribunal [2021], [110]). Such obligations do not compel states to expend any particular budget or adopt any particular practices. Rather, so long as the right is proportionally protected in light of its importance and available state resources, the state enjoys discretion in its choice of implementing measures.

Consequently, there is little legal substance in criticisms, such as those in recent consultations to reform the Human Rights Act 1998, that positive obligations are “overly prescriptive” because they require “public services to allocate scarce resources to contest and mitigate legal liability — when that public money would be better spent on protecting the public”. Bemoaning special protections for the vulnerable is a normative complaint, not a legal one. The criticism does not secure that positive obligations’ special concern for the vulnerable was ever unforeseeable or is otherwise legally illegitimate or subversive.

4. Conclusion

This article has argued that positive obligations should be taught and embraced more widely because, consistently with the ideal that everyone should enjoy a minimum standard of well-being, positive obligations can uplift groups whose relationship with the state perpetuates avoidable disadvantage.

For those who already enjoy the minimum standard of well-being, states’ non-interference genuinely may be all that is required for human rights enjoyment. Yet, if scholars and practitioners seek to transcend that superficial perspective and extend human rights’ promises of universality to the vulnerable, positive obligations must be taken up.

Jordan Briggs graduated in law from the University of Oxford and holds an LLM from the LSE. He is an aspiring barrister currently studying the bar course at City Law School.

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The General Data Protection Regulation (GDPR) took the EU by storm, and everyone scrambled to maintain the highest standard of data privacy known to date. So what has the GDPR actually achieved in the past year? Have any major companies fallen victim to the dreaded fine of 4% annual global revenue?

Fines have indeed been distributed across Europe, with smaller organisations falling subject to the scrutiny just as much as larger ones. In March of this year, the president of the Polish Personal Data Protection Office (UODO) imposed a €200,000 fine (£180,000) to a relatively small organisation. The company knew about the GDPR requirement to inform data subjects of data processing activities, but failed to do so. As the data subjects were unaware of their rights, they were not able to object to the further processing of their data or request the data’s rectification or erasure. The director of the Analysis and Strategy Department at UODO, Piotr Drobek, revealed the controller had denied the information to over 6 million people, with the president claiming it was done intentionally.

By comparison, in May 2019 the Belgian equivalent of the UODO, the Belgian Data Protection Authority (DPA), issued a fine for just €2,000 (£1,800). The case was taken to the DPA’s Litigation Chamber, where it was found the defendant, a mayor, collected email addresses in order to send out electoral campaign-related materials, and thus violated the principles of the GDPR, namely article 5(1)(b) which states that the data collected must be for “specified, explicit and legitimate purposes” and not further processed for new, incompatible purposes.

Following the DPA’s decision in the mayor/email case, the UK’s Information Commissioner’s Office (ICO) announced that it would focus on the use of personal information in political campaigns, use of surveillance and facial recognition technology, artificial intelligence, big data and machine learning.

Elsewhere, Ireland set its sights on the major internet giants due to their taxation arrangements within the country. The head of Ireland’s Data Protection Commission, Helen Dixon, predicts that within the next month we’ll see the first enforcement action reach the European Data Protection Board. The response of companies has been to become “combative” by “lawyering up” — hardly surprising given the amount of EU scrutiny.

So far GDPR may not have forced organisations to cough up eye-watering amounts of money, bar a couple of exceptions, but plenty of data breaches have been reported to have occurred over the past year. In February 2019, DLA Piper revealed that over 59,000 breaches had been reported throughout Europe, with Germany, the Netherlands and the UK securing top spots for the highest number of breach notifications.

So, what have we learned from all this? PrivSec, a blog specialising in internet privacy and security, rightly points out that while the GDPR has brought about many challenges for business, it has upped data standards and increased the demand for privacy professionals. The very nature of the GDPR demands companies to engage in efficient and accurate documentation from the very beginning, improving the overall standardisation of data protection. General cybersecurity has also been vastly improved, with networks, servers and infrastructures being readily upgraded in order to limit the possibility of data breaches.

Since its implementation in Europe, the GDPR has prompted a number of other regulators to devise data protection and privacy legislation, such as Brazil’s Personal Data Protection Regulation and the Californian Consumer Privacy Act.

Despite the optimism surrounding the GDPR, there have been complaints that regulators have not been quick enough to issue fines. Of the €56 million (£50 million) dished out in financial penalties since GDPR’s implementation, €50 million (£45 million) was the result of just one single fine: the French DPA against Google in January of this year over its use of user data to create personalised adverts.

While this huge fine may seem to some like a major victory for data protection, it only makes up for 0.04% of Google’s total revenue in 2018. However, the EU has taken note of this, with the Dutch DPA creating a fining matrix to gauge how administrative fines should be calculated. There are reports other EU countries are looking to create something similar.

Now that a year has passed, the ICO has recommended that both large and small organisations move beyond mere “baseline compliance”, and start focusing on “accountability with a real evidenced understanding of the risks” posed to individuals. GDPR compliance will need to be continuously monitored, and while we have not yet seen any truly damaging data breaches, investigations continue, the results of which are eagerly awaited.

Nicole Pitches is a postgraduate law student at the University of Edinburgh. She recently completed her LLB at the University of Warwick.

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Irrespective of how you voted in the 2016 EU Referendum or what you now think is the best way forward, it is hard to deny that the process of ‘doing’ Brexit has become a constitutional ‘fatberg’, clogging up the UK’s political system and preventing the UK government, UK politicians, the media and the public from discussing much else.

As the two year Article 50 negotiating period draws to a close, the possibility of a no deal Brexit by default increases by the day. The attentions and energies of (most) politicians remain focused on unblocking the political deadlock. Meanwhile, businesses and citizens are left to speculate as to what a no deal Brexit might mean for them. Lawyers are no different.

The brave new world of ‘retained EU law’

Many UK lawyers make a living advising their UK clients on EU law. Assuming the UK leaves the EU with no deal on 29 March 2019, this would change overnight. The combined effect of Article 50 of the Treaty on European Union and the EU Withdrawal Act 2018 (EUWA) is that EU law would abruptly and entirely cease to apply to and in the UK. In its place, the EUWA provides that most EU laws will be converted and preserved into UK law as “retained EU law”, a new species of UK domestic law.

The result will be that, all of a sudden on 30 March 2019, a significant part of the UK’s legal environment will be reborn in a form markedly different to that which applied the day before. UK lawyers will be advising their clients on rules whose substantive provisions may still largely be the same, but whose constitutional basis and status in the UK legal order would be profoundly unfamiliar and untested.

How does the EUWA prepare UK law for a no deal Brexit?

The starting point, as many readers will know, is that the purpose of the EUWA is to provide for as much continuity and legal certainty as possible: much of the substance of the rules of EU law will be repackaged and given fresh legitimacy in UK law as retained EU law under the EUWA.

However, there’s no getting away from the fact that this is the most comprehensive re-writing of the UK statute book ever undertaken. Total continuity is not an option because retained EU law, by its nature, is fundamentally different from EU law.

1. First, whereas EU law is a body of ‘living’ law that develops over time, retained EU law is a freeze-frame of the EU rules applicable in the UK as at Brexit day. Retained EU law will not develop, it will only stand to be replaced by post-Brexit domestic legislation.

2. Second, whereas EU law is a supranational legal order that applies both to and within the jurisdictions of member states, retained EU law is purely domestic law. None of the EU institutions, its agencies, or any other member states will play any role in the interpretation, application or enforcement of retained EU law in the UK.

3. Third, whereas certain aspects of EU law only function as part of that supranational legal order (e.g. because they require the involvement of EU bodies and/or those of other member states), retained EU law cannot do so. Those aspects of EU law cannot therefore be fully replicated as retained EU law and will need to be preserved in modified form. The government is currently using its extensive delegated legislative powers under the EUWA to make these modifications to retained EU law via a ‘storm’ of statutory instruments currently going through parliament.

In the event of no deal, the EUWA will become a central pillar — not just a keystone but a lodestone — of the UK legal system. Its provisions would undoubtedly become as well-known to UK lawyers as those of the European Communities Act 1972 (ECA 1972) that it repeals. And lawyers would need to get to grips with how the EUWA operates very quickly.

The sudden legal severance of UK law from EU law, while retaining much of the substantive EU rules, presents unique issues of interpretation for lawyers, whose task it will be to interpret and apply these rules in their new legal context. Here are two specific examples to demonstrate this:

1. Interpreting the scope of s. 4 EUWA

Most of retained EU law will be comprised of EU-derived domestic legislation and direct EU legislation, each converted and preserved in UK law by ss. 2 and 3 of the EUWA, respectively. However, any other “rights, powers, liabilities, obligations, restrictions, remedies and procedures” that apply and are recognised in UK law before Brexit (via the ECA 1972) but that are not saved by ss. 2 and 3 EUWA may instead be saved by s. 4 EUWA.

Section 4 EUWA is intended primarily to ensure directly effective EU law rights recognised and available in UK law before Brexit are retained. However, s. 4 EUWA is open ended and so does not define precisely what parts of EU law it retains, or how those laws are to be enforced. Section 4 is problematic in at least two respects.

• First, in relation to directly effective rights contained in the EU Treaties. The EUWA’s explanatory notes provide a non-exhaustive list of 28 directly effective rights contained in provisions of the EU Treaties that the government considers s. 4 EUWA to retain in UK law post-Brexit. These include, perhaps surprisingly, the rights to free movement of goods, workers, services and capital. While the explanatory notes make clear that it is the right itself rather than the text of the provision that is retained, it is still far from clear how such rights, particularly those that impose obligations on EU member states in respect of upholding the rules of the single market, could continue to be recognised and enforced in any form in the UK post-Brexit.

• Second, the application of s. 4 EUWA to EU Directives is also unclear. EU Directives are not themselves retained by the EUWA and s. 4(2) EUWA provides that no directly effective rights arising under an EU Directive are retained unless they are “of a kind recognised… in a case decided before [Brexit]” by the Court of Justice of the European Union (CJEU) or any domestic court. This gives rise to the question: what does “of a kind” mean in this context? Are such rights limited, as stated in paragraph 98 of the explanatory notes, to those “arising under a particular directive that have been recognised by a court… as having direct effect” or could such rights include any rights “of a kind” that have been held by a court to be capable of arising from such a directive?

It is understandable why parliament wanted to include s. 4 EUWA as a ‘catch-all’ provision in the EUWA to ensure nothing in EU law that it is important the UK retains post-Brexit is missed inadvertently. However, it is clear that s. 4 EUWA is likely to be a source of significant legal uncertainty in the event of no deal. Clever lawyers will not be able to resist testing the scope of exactly what has been retained via this uncertain conduit pipe of a provision. Given that the only definitive means of obtaining an answer is via the courts, we can expect litigation in this area.

2. Interpreting retained EU law by reference to CJEU case law

Anyone who advises on, or has studied, EU law will know the importance of CJEU jurisprudence when interpreting the meaning of EU legal instruments. How are lawyers to approach determining the relevance of such case law after Brexit to the interpretation of retained EU law?

The general position is simple, intuitive and well understood:

• CJEU cases decided after Brexit no longer bind the UK courts; whereas

• CJEU cases decided before Brexit continue to bind most UK courts (other than the Supreme Court and, in Scotland, the High Court of Justiciary) in respect of any question as to the validity, meaning or effect of retained EU law.

A closer look at the EUWA’s provisions, however, reveals some scope for uncertainty.

In relation to post-Brexit case law, while UK courts are no longer bound, they “may have regard” to anything done after Brexit by any EU body (including the CJEU) so far as it is “relevant” to any matter before the court (s. 6(2) EUWA). It is not difficult to see how this “relevance” test is likely to encourage lawyers to argue (on a case-by-case basis) that the court should or should not continue to follow a potentially relevant CJEU case. Further, the words “may have regard” also suggest there could be considerable flexibility, and thus uncertainty, in the approach that courts adopt in their decisions.

In relation to pre-Brexit EU case law, the general position that relevant CJEU cases still bind most courts is less clear where the retained EU law in question has been modified from its pre-Brexit form. Section 6(3) EUWA provides that:

“(3) Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it… (a) in accordance with any retained case law and any retained general principles of EU law…”

Therefore, to the extent that any retained EU law has been modified during or after its transposition onto the UK statute books, the relevant CJEU case law may no longer apply in the same way. The implications of this are not merely hypothetical; many hundreds of statutory instruments are currently being made precisely to modify retained EU law. It is therefore possible that a great number of CJEU cases that would otherwise still bind the courts could arguably no longer apply (or not apply in the same way) to those modified provisions of retained EU law. If so, to what extent do they remain relevant, if at all?

No deal Brexit: turning the UK legal system off and on again

It is remarkable that, throughout the UK’s 45 years of EU membership, it wasn’t until R (Miller) v Secretary of State for Exiting the EU [2017], in which the Supreme Court considered whether the government could lawfully trigger the UK’s withdrawal from the EU without parliamentary approval, that lawyers finally understood how EU law was brought into UK law via the ECA 1972.

It is likely that something similar will be true in the event of a no deal Brexit. The changes brought about will be sudden, and possibly dramatic. However, given the ambiguities in the EUWA, it is only through pioneering and innovative legal arguments before the courts about the nature and extent of retained EU law that our appreciation of the implications of no deal for the UK’s legal system will develop slowly over time. In the meantime, while the very basis of a significant chunk of our legal system will be on a new footing, gingerly taking its first steps into the unknown, uncertainty will abound and the scope for probing legal debate will be significant.

Andrew Eaton is an associate in public law and policy at Hogan Lovells.

Andrew Eaton will be speaking alongside lawyers from Ashurst, Henderson Chambers and Shearman & Sterling at Thursday’s Brexit-themed commercial awareness event, ‘How will Brexit disarray affect future lawyers?’ at ULaw Moorgate. You can apply to attend the event, which is free, now.

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The Attorney General and the Advocate General for Scotland are seeking a declaration from the Supreme Court as to whether the Scottish parliament’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill is within the competence of the devolved administration.

The issue arose in response to the publication of the European Union (Withdrawal) Bill in July of last year. The Bill’s starting point was that post-Brexit, the devolved administrations cannot legislate to amend retained EU-derived laws, unless the laws in question would have been within the competence of the devolved administration prior to the UK’s departure from the EU. The Bill proposed a number of consequential amendments to existing devolution legislation to reflect this position.

However, there was criticism from the devolved administrations that the EU (Withdrawal) Bill, as drafted, did not in fact return powers within areas of devolved competencies from the EU to them. Following the failure by the UK government and the Scottish parliament to reach an agreement as to the wording of the EU (Withdrawal) Bill in relation to devolution issues, the Scottish parliament introduced the legislation which is now under challenge.

It should be noted that the UK government initially sought the same declaration from the Supreme Court in relation to the Welsh Assembly’s corresponding law derived from the European Union (Wales) Bill. However, agreement was subsequently reached between the UK government and the Welsh Assembly, which reassured the Assembly that areas currently devolved will remain devolved after Brexit. Accordingly, the Welsh legislation is no longer challenged by the UK government and has since passed into law.

Returning to the Scottish Continuity Bill, according to the executive summary published by the Scottish parliament, “The [Scottish] Bill has been introduced following disagreement between the UK and Scottish governments over the content of the European Union (Withdrawal) Bill (EUWB)… in the event that the Scottish parliament does not give consent to the EUWB, it is possible the UK government may wish to remove the devolution related clauses from the Bill or, alternatively, may proceed with the EUWB without consent. If the UK government chose to remove the devolution related clauses, it could leave Scots law unprepared for the UK’s departure from the EU. In order to address that eventuality, the Scottish government has chosen to introduce the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.”

The Scottish Continuity Bill seeks to pre-empt problems in the continued functioning of laws in Scotland following Brexit. By way of example, according to the Scottish parliament’s executive summary, “The purpose of the [Legal Continuity] Bill is to ensure that when the UK leaves the European Union, Scots law continues to function seamlessly without any interruptions or gaps”. To achieve this it: “retains in domestic law EU law currently operating in devolved areas; gives the Scottish ministers the powers needed to ensure that devolved law continues to operate effectively after UK withdrawal; and gives the Scottish ministers the power to, where appropriate, ensure that Scotland’s devolved laws keeps pace after UK withdrawal with developments in EU law.”

To a certain extent, this largely mirrors the EU (Withdrawal) Bill (now the EU (Withdrawal) Act), which is not surprising given that both pieces of legislation are intended to provide continuity of the law on the day the UK leaves the EU. The Scottish government argue that this should mean there is consistency in the way the Scottish devolved and reserved law is dealt with.

However, there are some differences in the approach of the Scottish Continuity Bill and the EU (Withdrawal) Act, which is why the proposed legislation is the subject of challenge by the UK government. For example, section 13 of the Bill provides powers to Scottish ministers to make regulations to ensure that Scots law in devolved areas can continue to maintain consistency with EU law after Brexit, where appropriate. It also gives greater powers to the Scottish ministers than in the EU (Withdrawal) Act, by allowing them to amend retained (devolved) direct EU legislation. Further, section 17 of the Bill provides that the UK government must first obtain the consent of the Scottish ministers before they make, confirm or approve secondary legislation relating to devolved matters which modifies any retained (devolved) EU law.

The European Union (Withdrawal) Act received royal assent on 26 June 2018. Although the UK government agreed amendments on questions of devolution in light of the agreement with the Welsh Assembly, such amendments were not sufficient to prevent the Scottish government’s continued opposition to the Act.

So far as the UK government is concerned, the referral to the Supreme Court is necessary to avoid uncertainty. Accordingly, for the second time since the EU referendum, the Supreme Court will be called upon to consider important questions of constitutional law.

The matter is due to be heard tomorrow (24 July) until 25 July 2018 before a panel of seven justices.

For more commercial awareness insights, check out Norton Rose Fulbright’s blogs and articles hub.

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As most people will be aware, after the 25 May 2018 the General Data Protection Regulations 2016 came into force in the UK and the Data Protection Act 1998 will cease to exist. If you are not aware, where have you been? Emails with the subject line, ‘We’ve updated our Privacy Statement…’ were a near-daily occurrence in the run-up. However, the regulations may not be the change that the world of data protection actually needed.

It would be basically impossible to argue that UK data protection did not need reforming. Protection of personal data in the UK was covered by the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2003. However, these were designed to protect our personal data in an era when the internet was still in its early stages, Facebook hadn’t been invented yet and apps didn’t exist.

We now live in a networked environment where certain technology giants have the negotiating power of what appears to be a small country.

Personal data now has a value and is bought and sold by social media corporations in exchange for free services. If we did not volunteer personal information to Facebook (and apparently give them the right to harvest our data too?) they would not provide their service for free. Algorithms now make decisions about and for us without our knowledge and our data is processed seamlessly and invisibly.

When this is all taken together it demonstrates that there is an urgent need for data protection law that has current technological advances in mind — this was the rationale for the GDPR. The GDPR require greater transparency from those who possess personal data in their activities and a principle of accountability whereby they must demonstrate compliance with the regulations.

The GDPR have introduced new concepts into data protection law. For example, the principle of ‘Privacy by Design’ is now mandatory, whereas it was previously only encouraged. This requires privacy to be the paramount consideration from the start of a process and throughout. Article 25 GDPR provides that:

“The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed.”

It will be surprising to no-one that has studied the law that the law here is as vague as ever (but as all good lawyers will know, vagueness allows for flexibility in the law so it’s fine…) However, this is nevertheless a huge step from the Data Protection Act 1998 where a need for such a principle was not even envisaged.

The ‘dark side’ of the GDPR relates to its application.

The regulations apply to anyone who is processing data regardless of the size of the workforce, turnover, negotiating power, etc. Through working for a small business, I know first-hand that they rely on their contact databases to generate profit, however the method used to compile these databases may no longer comply with the GDPR. Therefore, smaller businesses that posed no threat of unlawfully processing data, and even if they did the consequences of this would not be far-reaching, are now restricted as to the ways they can generate income. They must now also spend hours making sure they are able to demonstrate compliance with the GDPR rather than dedicating these hours to profit-making activities.

These businesses often do not have a dedicated legal team so employees who are not trained in the law will have to get to grips with these new, vague, provisions and work out how to implement them whilst also doing their contracted job. For example, privacy by design has been made mandatory, which is good for us social media users, but the law does not explain how this should be implemented. It appears that the GDPR may have created unnecessary bureaucracy for the wrong people.

The problem at hand exists largely in relation to social media companies outside of the EU sharing data, usually with each other, and using our data unlawfully. Small companies going about their business were not part of the problem and should not have their innovation impeded by a response to a problem they did not create. In my opinion, the answer lies in regulating the activities of companies who assume that they are above the law and subjecting them to higher levels of scrutiny.

To cut what could be a much longer story short, there needs to be a way to stop CEOs of companies and of social media platforms from acknowledging that the law exists but finding new ways to avoid it, whilst, at the same time, retaining the ability for small businesses to make the money and provide the jobs that their CEOs have worked hard to generate.

Chloe Amies is a recent LLB graduate from the University of Liverpool, who is going on to study an MA in applied human rights at the University of York.

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The EU membership referendum, which was held on 23 June 2016, saw the UK vote to leave the EU. In order to complete this withdrawal, Article 50 of the Treaty of European Union (TEU) was triggered in March 2017, beginning a two-year time frame for the UK to settle its ‘divorce arrangement’. However, this Brexit saga involves a whole lot more work than can be comfortably completed in two years; it seems this time frame will not be sufficient.

This isn’t just my opinion: Sir Ivan Rogers, the former UK Permanent Representative to the EU, has noted that if the government wants a comprehensive deal, it could take ten years. Former Cabinet Secretary Lord O’Donnell also acknowledged that two years’ time is too short. Former judge and now professor Sir David Edward stated that “a long negotiation period would be necessary because the withdrawal from the Union would involve the unravelling of a highly complex skein of budgetary, legal, political, financial, commercial and personal relationships, liabilities and obligations”.

Though Article 50(3) provides that the two-year time frame could be extended by the European Council unanimously, is an extension feasible? For an extension to be granted, it must be unanimously agreed in the European Council, which is considered difficult. Alan Renwick, the deputy director of the UCL constitution unit, suggested that the government wants to avoid any further delay, because any delay will cause further uncertainties, especially to businesses. He further articulated that if the government could not get what it wants in the two-year time period, the government should pursue a transitional arrangement, or accept the hardest of hard Brexits.

A transitional arrangement might be the more desirable option for the UK. This arrangement would achieve the UK aim of having a smooth transition between the past in the EU and the future in the new arrangement. The Brexit Committee’s first report also stressed the need for a transitional arrangement to ensure that mutually beneficial cooperation is not brought to an abrupt end by Brexit. This is what the UK government has opted for.

The withdrawal negotiation’s first phase is complete, and we’re now preparing to move into the second phase of the negotiation. This concerns the transitional arrangements as well as the overall understanding on the framework for the future relationship.

But, future trade talks, the heaviest issue, will be postponed and the transitional arrangement will take priority. The UK Prime Minister, Theresa May, has stated that the change to the final Brexit date will only occur in exceptional circumstances — so, if we are to believe this, there is still a possibility, but it’s highly unlikely, for the UK to seek an extension. It is clear, for now, that the UK has opted for a transitional arrangement rather than the extension of the two-year time period.

Another question that has been raised hypothetically is: is the revocation of the withdrawal possible?

Article 50 is silent on whether the withdrawing members state can revoke the notification of withdrawal, and therefore continue to remain in the Union.

This silence affords several interpretations. Christophe Hillion, a professor of institutional law in the EU, suggested that “once the notification is given, there is no turning back; the treaties will cease to apply either upon entry into force of the withdrawal agreement or at the end of the two-year period”, even without a ‘deal’.

The reason that the right to revoke the withdrawal should not be given is the fear of abusing the right to revoke by the withdrawing state. If the withdrawing state does not get the deal it wants, it can revoke the withdrawal, and then re-trigger the notification to buy extra negotiation time without needing the unanimous agreement of other members. This is not possible as the EU will not change its mind by giving a more ideal deal for the withdrawing state just because the withdrawing state revokes and re-triggers the notification.

Scottish cross bencher Lord Kerr, who was involved in drafting Article 50, also said that the notification of withdrawal is irrevocable, but noted that, legally, the EU could not prevent a withdrawing state to change its mind, but might exert political pressure to the withdrawing state.

The argument for which the withdrawing state can revoke the withdrawal, put forward by Oxford prof Paul Craig is that the withdrawal decision will no longer be valid because of the state’s changing of mind, and the original decision must have been changed in accordance with national constitutional requirements. The changing of decision which is in compliance with the constitutional requirements might be the second referendum on the final Brexit deal. But, it’s rather absurd for the Member State to suddenly change its mind after the final deal has been struck, because all of the efforts put in the negotiation will go to waste. If the citizens of the withdrawing state could not agree on the final deal, then a re-negotiation should be done, instead of withdrawing the withdrawal.

In the UK context, it would high unlikely for the UK to change its mind and decide to remain in the EU. Theresa May has affirmed the UK’s government position, stating that ‘Brexit means Brexit’. Even though it is still unclear what will happen in the future as the withdrawal process continues, it is politically undesirable for the UK to change its mind. This issue has not been tested by the UK yet and most likely will not be tested in the near future.

Juhn Tao NG is a law student at the University of Liverpool.

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Just a few years ago, the term ‘Brexit’ — let alone ‘hard Brexit’, ‘soft Brexit’, and ‘red, white and blue Brexit’ — didn’t exist. Now, Brexit is a both household term and an entire field of study and research in its own right.

A field of practice, too. Some providers of legal services have begun putting together Brexit teams, made up of lawyers from a range of the firm’s specialisms, to prepare their clients for March 2019’s expected Brexit D-Day. Guy Lougher, head of Pinsent Mason’s cross-disciplinary Brexit team, tells us:

“Brexit is creating uncertainty and uncertainty, from the perspective of a lawyer, is something that creates the need for legal advice.”

It’s all about being prepared.

“What we’re about to experience is the most gigantic horse-trade between the UK and the EU, a bargain in which some businesses and sectors are going to win and some are going to lose,” Lougher says. “To make sure you’re a winner, you must engage with the government now to communicate your interests effectively. As we get closer to March 2019, it will be more difficult to influence government intentions and there will be less time to adjust to the terms of whatever deal is reached.”

With the interests of the legal services sector having been clearly put forward by the likes of the Bar Council and the Law Society, Lougher believes it’s down to this new breed of Brexit lawyer to make things clearer for their business clients.

This all began in the months before the June 2016 referendum vote, Lougher reminisces. Then, a Remain vote was anticipated. But Lougher believed it was prudent to plan ahead — he was right. The competition law specialist explains:

“The time spent in the run-up to the referendum was well worth it. On the morning of the Friday [that the referendum result was announced], we were able to circulate immediately some really well-planned client briefings.”

With Article 50 now triggered, Lougher and his team of Pinsent Masons EU specialists continue to work towards providing more certainty for their clients. To do so, they work with clients on scenario-planning exercises, looking at the range of possible outcomes with a hard, disorderly Brexit at one extreme and a smooth handover, inclusive of a transitional arrangement, on the other.

“The detail of these outcomes is potentially infinite,” Lougher concedes, which can make these exercises challenging. “But in terms of broad scenarios, there’s either a negotiation settlement or there isn’t, and those two options cover the main possibilities.”

With Brexit negotiations and government strategy in flux, University of York graduate Lougher can only advise clients on what may happen in the future. That’s why it’s so important to keep abreast of Brexit developments which give an indication of the negotiators’ direction of travel. Much of the job is reactive:

“A lot of what we do depends upon events. There is the European Union (Withdrawal) Bill currently before parliament; it’s difficult to know what the implications of that are going to be and what we as a law firm are going to respond to. We’re trying to stay ahead of events where we can, trying to advise clients using a range of different options of what the outcome of Brexit might be. But to a large extent, we’re responding to events and responding to developments.”

What Lougher is perhaps surer of is this: Brexit will have a big impact on the law.

Aside from speculation on the Court of Justice’s ongoing jurisdiction over UK cases, which Lougher says he’s monitoring, the access to EU legal services for UK lawyers is a big question mark.

“At the moment, we’re very used to flying around the EU practising in different countries,” he says. “But if the Brexit deal doesn’t provide for the mutual recognition of professional qualifications, then lawyers will need to think about providing legal services in a different way.”

Brexit’s impact on the law doesn’t begin and end at lawyers themselves; the substance of the law itself will no doubt be affected too. Before the referendum, when Lougher was getting his Brexit team together, he worked to identify the different practice areas that would be most affected by a vote to leave. Lougher gives general commercial, employment, tax, litigation, and financial services regulation as examples, before stating:

“It’s difficult to think of an area of law that wouldn’t be affected by Brexit.”

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Although much of the initial Brexit focus had been on whether the UK would leave the EU single market for trade, it had been unclear until recently what Brexit would mean for the UK’s participation in the European common nuclear market; known as the European Atomic Community, or Euratom.

The cause of the uncertainty is because membership of Euratom is governed by a separate treaty, the Treaty Establishing the European Atomic Community 1957 (Euratom Treaty), which is subject to a separate notification and withdrawal process, albeit one that mirrors the withdrawal terms of Article 50 under the Treaty on European Union — i.e. service of notice and a two year negotiating window prior to exit.

However, the UK government recently indicated that as well as leaving the EU the UK would be leaving Euratom, and that this would be included as part of the broader Brexit process. To affect this, the UK government included the power to withdraw from Euratom in the European Union (Notification of Withdrawal) Bill 2017.

Whether this is the right course or is necessary is now something of a moot point — the UK government’s reasoning appears to be that in order to withdraw fully from the sphere of influence of the EU’s institutions the UK must withdraw from Euratom, as the terms of the Euratom Treaty include using the same institutions as the EU (including the Commission, the Council of Ministers and the Court of Justice) and accepting a variety of EU-origin legislation. Continuing to accept the jurisdiction of these institutions would be inconsistent with the UK government’s stated intention to “take back control”.

Now that the decision has been made, the most important question for the UK nuclear industry is what will replace membership of Euratom? One thing is certain — there cannot be a vacuum, not least because Euratom is the legal owner of all “UK” nuclear materials but there are other ramifications too. There are uncertainties surrounding the UK’s participation in nuclear research projects such as the International Thermonuclear Experimental Reactor (ITER) in southern France and the Joint European Torus (JET) project, a nuclear-fusion facility in Culham, UK, and some commentators suggest that it could increase the costs of regulating existing nuclear facilities and delay or, indeed, jeopardise the building of new nuclear facilities in the UK.

As with much previous Brexit commentary, Norway provides an example of how a bespoke arrangement might work. It is not a member of Euratom (indeed, there are no non-EU Member States who are members) but it does participate in research projects co-ordinated by Euratom. It does not receive EU funding for such participation (as Euratom members do) but instead secures assistance from Norway’s own Research Council. If the UK was to pursue a similar option, it might perhaps satisfy the critics from the scientific community, who have already expressed concern about where this leaves the UK in terms of its participation in some ground-breaking projects.

Professor Steven Cowley, former chief executive of the UK Atomic Energy Authority, said leaving Euratom would be a “tremendous blow” to UK nuclear research and ITER. The UK government has taken pains to express in its White Paper its commitment to nuclear research and development and international collaboration, describing it as “an important priority”. A bespoke arrangement with ongoing Euratom members would certainly back this up.

To date, the UK Government has given no detail around its proposed exit from Euratom beyond stating that it intends to do so. The terms of the UK’s exit from Euratom remain unclear but a number of important issues in addition to participation in research and development projects will need to be resolved, including:

• ownership of nuclear fuel currently in use in the UK’s existing fleet of nuclear plants, and the UK’s right to procure replacement fuel in future;
• the terms of nuclear cooperation with other Euratom members, and non-Euratom members (such as the USA and Japan) that the UK currently works with under frameworks established through Euratom; and
• who will bear the cost of decommissioning current Euratom projects (JET decommissioning costs are currently estimated at £289 million)?

Perhaps the more interesting question is whether the UK should be withdrawing from Euratom at the same time as it withdraws from the EU. It is more important to get the right deal, rather than a quick deal pushed through simply for convenience of timing. A staggered withdrawal would give the UK government more time to finalise appropriate post-Euratom arrangements and allow it to focus on the Article 50 negotiations meanwhile.

Peter Hall is a partner at Norton Rose Fulbright. Penny Cygan-Jones is a Senior Knowledge Lawyer. Thomas Lindley is an associate.

This article originally appeared on Norton Rose Fulbright‘s ‘Inside Brexit’ blog.

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Patent law specialist Deborah Bould of Pinsent Masons, the law firm behind Out-Law.com, said that it would seem “politically unrealistic” to expect the United Kingdom to pass legislation giving effect to the Unified Patent Court (UPC) Agreement if its participation in the UPC and unitary patent system was not guaranteed to continue after the country leaves the European Union.

Bould was commenting after Benoît Battistelli, president of the European Patent Office (EPO), suggested that if the UK ratified the UPC Agreement before leaving the EU it could be allowed to continue its participation in the new system after its exit from the trading bloc. He suggested, though, that continued participation post-Brexit would be subject to the outcome of negotiation between the UK and EU countries.

The European Patent Litigators Association (EPLIT) has separately encouraged the UK government to “take the necessary steps to ratify the UPC Agreement as soon as possible.” Bould said:

It seems politically unrealistic to suggest that the UK ratifies the UPC Agreement now, to help get the unitary patent system off the ground, and then tries to negotiate to stay in as part of the UK’s exit terms.

She continued:

This gives the UK no certainty about the future. For example, the London seat of the UPC Central Division focussing on life sciences could be wound up on Brexit. The system is currently limited to member states. It is a shame as the EPO could instead be leading an approach to negotiate a revised UPC Agreement allowing participation of the UK post-Brexit and potentially opening the system up to EPC contracting states more generally.

In a blog on the EPO website Battistelli said the UPC and unitary patent reforms should proceed with or without the UK’s participation. Battistelli said:

In the best case scenario, the UK could go ahead as soon as possible with the ratification of the UPC Agreement. This would allow the UK afterwards, in its EU exit negotiations, to obtain its continuous participation both in the UPC and the unitary patent. With the UK having brought the system into operation by ratification and having participated in the system from the beginning, it is possible that member states may allow the continued participation of the UK, even after the ‘Brexit’ takes effect.

He continued:

There are of course other scenarios; as more and more ratifications occur, member states will consider how to ensure the timely delivery of the UP-UPC, even if that regrettably means going ahead without the UK. There seems to be a clear feeling in the international user community that the system would remain sufficiently attractive for many. It would be regrettable to leave out a major patent country such as the UK, a country that can help to shape the future of the system in a business and user-friendly approach. But it is entirely up to the UK authorities to determine whether they want to participate in the Unified Patent Court and in the unitary patent or not.

In its letter to UK minister for intellectual property Baroness Neville-Rolfe, EPLIT said the future of the UPC was “uncertain” in light of the UK’s vote to leave the EU. A delay to the operation of the new patent system is undesirable, it said.

It continued:

Article 89 of the UPC Agreement requires that, for the UPC to come into force, the UK, as one of the three countries where the highest number of European patents are in effect, ratifies the UPC Agreement. If the UK does not ratify the UPC, this will likely require a renegotiation of the UPC Agreement and lead to a significant delay of the whole project, if only because without a UK ratification the system can only enter into force after the UK has formally left the EU. In EPLIT’s opinion, such a delay will be to the detriment of inventors and businesses in the UK and elsewhere.

It added:

A ratification of the UPC Agreement by the UK will mean that the system can enter into force without much delay. Should the UK decide to leave the EU after ratification, the UK may be able to continue to participate in the UPC and EPLIT certainly hopes it will. EPLIT is also of the view that the system is much more attractive if the UK continues to participate in it. However, even if this were legally or politically not possible, EPLIT still believes that all users of the European patent system will be better off if the UK ratifies the UPC Agreement in the near future so that this important development of the patent system in Europe will not have been jeopardised.

Unitary patent protection was expected to be available to businesses from next year. Under the new system companies will be able to obtain patent protection for their inventions in participating countries through a single patent application to the EPO and without having to further validate the patent in each of the individual countries.

Unitary patent protection will only apply in those states which sign and ratify the UPC Agreement as well as adopt the unitary patent regulations. Ratification of the Agreement would give legal recognition to the new UPC as a judicial forum for settling disputes concerning the validity and alleged infringement of new unitary patents, as well as European patents unless they are opted out.

The UPC Agreement needs to be officially ratified by at least 13 EU countries, with that number including France, Germany and, as it stands, the UK, for the Agreement to take effect. Currently 10 countries, including France, have ratified the Agreement, and Italy has signalled its intention to do so too. Draft legislation has also been prepared in the UK and Germany to give recognition to the new unitary patent and UPC regime.

Emmanuel Gougé of Pinsent Masons said that the UPC Agreement would almost certainly have to be amended to accommodate UK participation in the new patent regime if the UK does not ratify the Agreement before exiting the EU, should the UK be willing to be part of the UPC system.

Gougé said:

Amending the UPC Agreement to allow non-EU member states to participate would have implications for the timeframe for the reforms. This is because the amended Agreement may need to be re-ratified by countries that have already adopted laws to give it effect, as well as in other countries yet to ratify. In some cases, such as with Denmark, the re-ratification process could involve a new referendum to be held on the issue.

He continued:

The UK’s participation in the new patent system is a major part of its attraction, and its involvement was a factor in the decision that London should host a branch of the Central Division of the UPC. That said, subject to a possible amendment of article 89 of the UPC Agreement, the Agreement is worded in a way which makes it legally possible for the UPC framework to continue without UK involvement.

He added:

There is an argument that UK ratification pre-Brexit would not contradict the spirit of Brexit but instead complement the view that the UK can cooperate with EU neighbours without being an EU member. This is grounded in the fact that the UPC Agreement is an international treaty and not EU law and that the patent reforms were agreed in a system of enhanced cooperation between some, but not all, EU countries.

A simulation earlier this year of an injunction hearing under the UPC, organised by Pinsent Masons, highlighted some of the issues businesses will need to consider when deciding whether to engage with the UPC.

Out-Law.com is the news service of international law firm Pinsent Masons.

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‘The principle of subsidiarity’, it’s a phrase that’s bandied about a lot by law lecturers, but what does it actually mean?

Well, in very simple terms it’s an important legal principle of EU law. It provides an answer to which parties within the EU (the Member States and European institutions) should act in a shared competence. It applies where the EU does not have exclusive competence. It will act only where objectives of proposed action cannot be sufficiently achieved by Member States at central or regional level, but can be better achieved at EU level.

The principle has mainly four origins: Greek philosophy, the writings of Saint Thomas Aquinas, the German corporatists of the seventeenth century, and the ‘social doctrine’ of the Catholic Church.

More recently, the Maastricht Treaty introduced the principle of subsidiarity, and it is now formally found in Article 5(3) of the Treaty on European Union (TEU).

So that’s what it is and where it came from, but how can it actually be guaranteed? By political means, by judicial means, or by some combination of these?

Let’s take a look at political means first.

In order to get the Member States to sign the Maastricht Treaty, the notion of the subsidiarity was put into the TEU. It’s been known as the word that saved Maastricht, and in that sense there is a strong political message behind the principle.

Subsidiarity is a state of mind, rather than a legal concept. The launch of the principle makes the EU change its concentration on decision making processes, i.e. it makes legislators take some actions that they did not take previously, and it forces the institutions to justify what they do.

Since Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality was introduced, the role of national parliaments from the Member States has been to basically check whether EU proposals are in breach of subsidiarity rather than let the EU institution do it on their own. There is now an obligation on the EU to refer proposals to the national parliaments after the Lisbon Treaty.

The new procedure involving national parliaments is one of the democratic elements that added to the EU law decision-making process. Therefore, the ex ante monitoring role of the national parliament has been strengthened in regards to the control over the notion of subsidiarity.

This system is called the ‘early warning system’, and is used to ensure that a draft EU legislative act complies with the principle of subsidiarity. According to article 7 of the protocol, a draft EU legislative act must be reviewed within eight weeks and each national parliament has two votes (e.g. in the UK, one vote is for the House of Common, and one is for the House of Lords).

There is, however, no blocking mechanism for national parliaments. The impact of national parliaments’ votes is that if one third of national parliaments’ votes are against the legislation (oppose its subsidiarity arguments), the draft legislative act must be at least reviewed by its initiator (Commission). The draft legislative act can be maintained, amended or withdrawn. This procedure is described as a ‘yellow card’ subsidiarity early warning mechanism by commentators.

If simple majorities of the national parliament votes oppose the proposed legislation on subsidiarity arguments, the Commission will then be required to produce a reasoned opinion response. Commentators describe this procedure as ‘orange card’.

However, what the existing procedure is lacking is a ‘red card’, which means that the EU does not allow national parliaments to block a measure, and there is no obligation for the Commission to take action.

The political process therefore has its limits, so let’s take a look at the principle of subsidiarity being guaranteed by judicial means.

After the draft legislative act in question has been made, the Member States can still claim that the legislation is in breach of the principle of subsidiarity. According to article 8 of the protocol, the European Court of Justice (CJEU) has jurisdiction to review EU legislative acts for breaches of subsidiarity.

However, in practice, the CJEU is very reluctant to get involved in a subsidiarity argument. In reality, the court often applies other legal arguments (e.g. conferral and proportionality argument), instead of using the subsidiarity principle. The cases of UK v Council (Work-Time Directive) and R v Sec State Health ex parte BAT et al (tobacco labeling) show that — although Member State will argue that if the policy area that the legislative act involves is a national issue, they are best placed to make the decision — the CJEU will completely reject this argument and apply the proportionality test instead.

To a large extent then, the principle of subsidiarity is guaranteed by both political means and judicial means. This is because the politicians act as an ex ante subsidiarity control (the early warning system) and the judiciary acts as an ex post subsidiarity control (bringing a case to the CJEU).

The political means and judicial means are closely related in terms of controlling the subsidiarity principle. For example, the Member States (national parliaments or one of the chambers if it is a bicameral parliamentary system, such as UK’s House of Commons and House of Lords) can bring a case to the CJEU if they find that the EU institutions did not comply with the subsidiarity principle.

It sounds fair, but there are a lot of problems with the current system.

There are mainly two problems associated with the early warning system. The first one is lack of co-ordination by the national parliaments, and the second is the preponderance of upper chamber response.

In terms of the first problem, I suggest the time limit for the national parliaments to review the draft EU legislation should be extended, in order to give them more time to co-ordinate efficiently.

In terms of the second problem — since the political priorities for both upper and lower chambers are currently the same — reform should be made in order to ensure the lower chamber has a higher political priority. This would mean stronger democratic credentials for the law drafting process.

Charles Mak is a final year law student at the University of Sussex.

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Smoking is a vice to which many law students and practitioners, like other individuals, sadly succumb. Whether it be a hurried puff prior to that daunting LPC property exam or first County Court appearance, cigarettes are often a lawyer’s go-to when the pressure’s on; despite numerous studies indicating that the belief nicotine offers a calming effect is little but a myth.

Having been a smoker for some 15 years, at the start of this year I decided that enough was enough. I was fed up with the tight chest and smelly clothes that inevitably came the morning after Friday night drinks and, at friend’s suggestion, I ordered an electronic cigarette (e-cigarette) from a renowned online retailer. It promptly arrived and thus began my journey into the increasingly popular world of “vaping”.

For the uninformed, vaping is the exercise of inhaling and exhaling vapour, produced by an e-cigarette or similar device, to replicate the sensation of smoking a traditional tobacco product.

And vaping has taken off in a big way. A Public Health England report, published last August, estimates that around five percent of the British adult population now use e-cigarettes.

Whilst vapers were previously content to use relatively inconspicuous and low-powered e-cigarettes, the market for vaping products has exploded over recent years. A subculture of sorts now exists, in which more adventurous vapers (commonly bearded Shoreditch types) push for evermore exotic e-liquids (the flavoured nicotine-containing solutions that are inhaled as vapour) and customisable vaping devices that allow for improved taste, increased vapour production, and a “smoother vape”.

However, as of next month, all this is set to change due to the commencement of the controversial Tobacco and Related Products Regulations 2016, which serve to transpose the EU’s revised Tobacco Products Directive into domestic law.

The directive repeals existing EU legislation and seeks to better harmonise the regulation of tobacco and related products (in particular e-cigarettes) across member states. Many of its provisions relating to traditional tobacco products have received widespread coverage in the national media. For example, the prohibition of packets containing fewer than 20 cigarettes, prohibition of cigarettes with “characterising flavours” (notably this includes menthol cigarettes) and the inclusion more prominent health warnings on tobacco products.

Regulations to be made in respect of e-cigarettes, despite their popularity, have received considerably less coverage outside of the vaping community, yet are likely to have a significant impact on both the industry and individual vapers alike.

Part 6 of the draft regulations transposes article 20 of the directive and it is these provisions that primarily impact on e-cigarettes. Matters covered by the regulations include the following:

Notification scheme

The regulations introduce a requirement by which producers of e-cigarettes and e-liquid refill containers must notify the Department of Health prior to supplying their products to the public. Such notification must be made via a prescribed electronic format, not less than six months prior to commencement of the intended supply.

Following notification, a range of factors will be scrutinised including ingredients, toxicology data, manufacturing processes and components used in respect of products. The notification process will apply to both new and existing products and will also have to be revisited by producers when an e-liquid or e-cigarette has been subject to any “substantial modification” (although this term is not defined in the regulations, which may lead to interpretive ambiguity).

In any event, compliance with the notification scheme is likely to prove difficult to smaller producers commanding limited resources and one struggles to envisage quite how such producers will continue to operate in light of the tightened bureaucracy. Producers of e-liquids, for example, often offer a wide range of flavours, many with only very subtle variants and compiling the necessary data required for each notification is expected to be both a time consuming and expensive task. Such concerns were expressed by producers during the government’s consultation process on the implementation of the directive.

Producers who do survive the regulations are likely to pass the increased costs on to consumers and given that one distinct advantage of e-cigarettes over tobacco products is their lower cost, this poses a concern. If there is no financial incentive for existing smokers to make the jump to e-cigarettes, they may simply opt to continue using tobacco, which is widely regarded as being much more detrimental to health (although, admittedly, debate amongst medical professionals continues in this area).

Product requirements (e-liquid containers)

In addition to the notification scheme itself, the regulations also introduce a number of requirements relating to the notifiable products. It is these requirements that have caused most discontent amongst the vaping community and that are likely to impact upon individual vapers.

E-liquid refill containers will not be permitted to exceed a volume of 10ml. At present, larger receptacles (e.g 30ml or 50ml) are commonplace and consumers will now be unable to benefit from the economies of scale presented through buying in bulk. One may attempt to argue that this issue could simply be overcome through purchasing a vast quantity of 10ml refill containers and that suppliers could offer discounts in this scenario. However, it stands that container manufacturing costs will unavoidably increase and, as touched on earlier, such costs will doubtless be passed on to consumers.

The preamble to the directive suggests that the “10ml requirement” is necessary in order to mitigate the risk of nicotine poisoning, but it is not patently clear how it will assist in this regard. Indeed, over ingestion of nicotine may theoretically be possible not only through the consumption of one large container of e-liquid, but also several smaller containers. The preamble also refers to health risks posed to children, in the event they inadvertently come into possession of e-liquid containers and this is obviously a matter that requires serious consideration. Again, members of the vaping community have been quick to respond, suggesting that the risk to children is sufficiently addressed through the directive’s requirement for child-resistant containers. They also note that other domestic products, such as household bleach, pose a greater risk to children yet are sold in much larger receptacles.

Product requirements (e-cigarette cartridges and tanks)

In addition, the volume of e-cigarette cartridges and tanks (the part in an e-cigarette that holds the e-liquid) will be limited to 2ml. Many e-cigarette tanks currently on the market considerably exceed this capacity, and producers will now have to seriously revise existing designs in order to continue to sell to the UK market. As with the “10ml requirement”, it is difficult to see any justification for imposing a limit on tank/cartridge capacity. All it is likely to lead to is an increase in the frequency vapers are required to refill their e-cigarettes and it will necessitate that they carry refill bottles with them because of the imposition of impractically small tanks.

Curiously, the directive’s efforts to scale down vaping paraphernalia run contrary to its efforts to scale up cigarette packets and one questions quite why there should be disparity in this regard.

Product requirements (potency of e-liquids)

It is also worth noting that e-liquids will be required not to contain nicotine in excess of 20 milligrams per ml. Unlike the above this regulation has not caused much controversy, although initially those transitioning from smoking to vaping often require e-liquids with a higher nicotine content in order to satisfy their cravings.

Information and packaging requirements

E-cigarettes and e-liquids will have to be supplied with a leaflet, setting out detailed information on criteria such as use and storage, possible adverse side effects and toxicity.

Additionally, a list of ingredients (where applicable) will have to be included on packaging, along with a prescribed health warning. Revisions to existing packaging will only serve to add to production costs which, again, will likely be borne by consumers.

Advertising

In respect of product advertising, the requirements of the directive will be transposed not only through the regulations, but also via changes to the Communications Act 2003, Ofcom BCAP Code and Ofcom Broadcasting Code. The government has indicated that in line with the directive, products may no longer be advertised on television, radio; society services (e.g. internet advertising and commercial email) and in printed publications such as newspapers and magazines. Certain product placement and sponsorship activities are also prohibited under the existing draft advertising regulations.

The legislative picture remains somewhat uncertain, but what is obvious is that suppliers will be heavily hit by the stringency of the anticipated advertising provisions.

Other provisions and enforcement

In addition to the above, the regulations also provide for an annual reporting requirement (that broadly requires producers to submit comprehensive sales data), vigilance requirements (requiring producers to collect and report information on unsafe products) and government powers to prohibit the production/supply and require a recall of any products considered to pose a serious risk to human health.

The provisions implemented are not to be taken lightly, with breaches of part 6 of the regulations constituting a criminal offence, punishable by imprisonment of up to two years and/or a fine.

It is quite apparent that the introduction of the regulations is going to considerably stifle the production and supply of e-cigarettes and e-liquids. Many vapers have responded angrily through social media and a government petition was mounted last year, receiving over 18,000 signatures.

Producers and suppliers have also sought recourse with e-cigarette company, Totally Wicked, challenging the lawfulness of article 20 of the directive at the Court of Justice of the EU in Luxembourg.

The company’s challenge against article 20 is based on four grounds:

1. it imposes a series of obligations which infringe the principle of proportionality, read in conjunction with the principle of legal certainty (i.e the provisions are overly restrictive and imprecisely formulated)

2. it fails to comply with the principle of equality and/or unlawfully distorts competition (by placing e-cigarettes at a competitive disadvantage against tobacco products)

3. it fails to comply with the principle of subsidiarity (i.e. individual member states could have regulated products themselves, without EU legislation) and

4. it infringes the rights of electronic cigarette manufacturers or retailers under articles 16 and/or 17 of the EU Charter of Fundamental Rights (which concern the freedom to conduct business and the right to property (including intellectual property) respectively).

Unfortunately, on 23 December 2015, the Advocate General concluded that nothing submitted by Totally Wicked had revealed any factors such as to affect the validity of article 20 and, whilst not binding, her conclusion will clearly influence the court and be of disappointment to producers and suppliers. The court’s decision is expected early next month, prior to the 20 May 2016 directive implementation date.

In the meantime, the vaping community (and please excuse the pun) holds it breath. Although the regulations have not yet been finalised, a curtailment to the industry and products available to vapers now appears very likely. This said, Totally Wicked’s challenge, whilst down, is not yet out and the question as to the appropriateness of tackling e-cigarettes within a directive principally aimed at tobacco based products still remains live for the time being.

John-Mark Tawadrous is a self-employed consultant solicitor.

The post Could new EU legislation spell the end for vaping? appeared first on Legal Cheek.

This week, the Supreme Court will be hearing the important case of MM, a case that holds the potential to fundamentally change UK immigration law.

The case deals with a niche area of law that has niggled away at long distance couples since it was enacted in 2012: the minimum income requirement in immigration law.

Under domestic law, a UK national is only able to bring their non-European Economic Area partner into the country if they earn £18,600 a year or more. This figure steadily increases if there are dependent children involved.

Since the get-go, the minimum income requirement has come under attack from scathing critics. The average wage of a host of low paid jobs — chefs, florists, hairdressers and hospital porters, for example — fall well below the requisite minimum figure, and it has been estimated that 45% of people don’t earn that sort of money.

Others say that the rule does not take regional or gender driven wage differences into account. The percentage of women not eligible to sponsor a third country national partner is nearly twice as high as the number of men, while figures fluctuate between 30% and 51% dependent on where in the country the partner lives.

Campaigners have also been at pains to point out that it is only the UK national’s income that counts — not the foreign spouse’s, nor promised financial help from parents or other third parties. This means that if a millionaire married an English cleaner (in receipt of an average salary), then he or she wouldn’t be allowed in, regardless of the contribution his or her wealth would make to the economy.

It’s intrinsically unfair — and even the High Court wasn’t convinced that the rule stood up to scrutiny. In a judicial review challenge brought by two British nationals and a refugee, the court found that the law’s interference with citizens’ rights was “very significant”. Though stopping short of striking down the rule as unlawful in general, Mr Justice Blake commented:

The consequences are so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim.

He gave a list of “less intrusive” ways that the financial requirement could be applied, including “reducing the minimum income required of the sponsor alone to £13,500”.

Despite this early success, in 2014 the decision was overturned in the Court of Appeal, and is now being heard by an unusually high number of justices — Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge — a firm nod to the case’s importance.

This is the court’s chance to signal a thumbs down to the minimum income requirement, the question for the justices being this: is the rule a breach of Article 8 of the European Convention on Human Rights, unlawfully discriminatory and/or irrational?

Surely, the answer can only be yes. The impact on family life is undeniably detrimental.

Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants, intervening in the case, explained:

An estimated 15,000 children in the UK are currently growing up without one parent as a direct result of these financial requirements. Children are being forced to grow up in ‘broken homes’ with serious consequences for their emotional and mental health.

While this is no doubt an unintended consequence of the 2012 amendment — the brainchild of the Coalition government — the rule proves so intolerable that some sneaky couples have craftily devised a way around it.

It works like this: other European countries, like France, don’t impose an £18,600 minimum earnings requirement, so the UK national and their third country national partner can go live there. If they work in this European country for three months, then they can be considered under EU free movement law instead of national law, and can enter the UK together on this technicality. This is known as the Surinder Singh route — named after the 1992 case that gave this method a legal backing.

On first reading it looks like a dodgy legal loophole, but there’s a wealth of interesting stories from happy couples that have managed to take advantage from it.

But it doesn’t work for everyone, and the fact that around 20,000 non-European Economic Area family members enter the UK in this way is surely a signal to the government that the minimum income requirement, termed the “anti-love law” by the Refugee Council, is in need of a make-over.

It’s certainly beginning to take its toll on the loved up couples that it keeps apart.

Following #MMCase very closely. My wife and I were victims of current discriminatory spouse visa rules until recently. They need to change!

— Brownpants (@PantiusBrown) February 22, 2016

If family is a priority for Tories, they are utterly contradicting themselves. £18,600 – the price of love #MMcase pic.twitter.com/hGAyIMSK2h

— Hollie Clements (@hollie_alice7) February 22, 2016

Following #MMcase with hope. The rules came into effect after I was studying overseas rendering me unable to return with my husband.

— Rowena Clarke (@blumenmuskel) February 22, 2016

The @UKSupremeCourt (Court 1) is an amazing place. I love all the carvings and stained windows. I wish my wife was here with me… #MMcase

— weswhite (@weswhite) February 23, 2016

More and more Brits are getting caught in the family immigration trap set by the govt. #MMcase #dividedfamilies pic.twitter.com/r0c7nKU9ww

— BritCits (Sonel) (@BritCits) January 4, 2016

Though the hearing isn’t yet finished, the Supreme Court has so far been told by the appellant’s barrister — Manjit Singh Gill QC from No5 Chambers — that the threshold is the highest in the world second only to Norway, a country with a high minimum wage. In relative terms, therefore, we demand the highest threshold in the world.

He told the court:

For many, £18,600 is completely unachievable. It is not like the case of the English language test where you can put in so many hours. This is effective for life, for half the British population. Parliament cannot have intended the law to be used in that way.

He described the “absurdity” of the Surinder Singh route as “quite staggering”, adding:

People being forced to leave the country and then come back. What on earth is the point of doing that?

The hearing finishes tomorrow, and we can expect to wait up to six months for a ruling. No one knows what the justices will decide, but the message from the lawyers is quite clear.

As #MMcase begins in Supreme Court, amazing that Brits have to beg to be allowed to be in same country as spouses! https://t.co/OzvjXcIVoj

— Shoaib M Khan (@ShoaibMKhan) February 22, 2016

Doing a skeleton for an immigration case and being reminded how disgraceful the Minimum Income Requirement is.

— Dan Bunting (@danbunting) January 23, 2016

This contrasts somewhat with the Govt’s shabby treatment of its own citizens, challenged in the #MMCase today https://t.co/Te9CJz4qwA

— Colin Yeo (@ColinYeo1) February 22, 2016

The post The MM case: Long distance couples challenge the ‘anti-love law’ appeared first on Legal Cheek.