Legal Piracy

In theory the UK Government might be able to take France to court (the CJEU) over it. But that seems unlikely given the current Government’s positions - I doubt they’d want to be seen as paying money, fighting for justice, for the rights of foreign, dangerous migrants. Nor to do that. Maybe the European Commission could step in, but that would be a PR nightmare as well - particularly given the number of other countries now ignoring or suspending the Dublin III rules.

In terms of Dublin III itself, and the problems with it, the EU Member States are trying to negotiate a new version (presumably Dublin IV?). But they can’t agree. Personally, I think the main requirement will be to harmonise the asylum tests and procedures, not just the rules on jurisdiction. While a person is more likely to win their case in one country than another, there will always be people trying to ‘game’ the system. But that may be beyond competences in the current EU Treaties - and I doubt any national government wants to give the EU more power at the moment.

Secondly, some sort of quota system - or sharing system - would be needed; so all the applications don’t end up in the same few countries. But again, this will be politically unpopular. With the rising anti-immigrant sentiment across Europe, no Government is going to want to agree to taking a certain percentage of applications. Those that are already taking more than their ‘fair share’ may demand that they take fewer for a period to make up for the past.

The UK Government has also caused trouble as it has threatened to use its opt-out, and ignore any new settlement it doesn’t like. The EC’s response seems to have been to point out that if the UK Government doesn’t sign up to the new one, it won’t be able to rely on Dublin III either, so France won’t have to take back anyone already registered there who makes it to the UK.

Another option for the UK would be to leave the EU - but that still leaves us in the same situation, but without Dublin III (unless the UK stays signed up to it). Without it, the UK could be even worse off in terms of asylum applications, due to being able to deport fewer people.

Other proposals involve breaking down the Schengen Area - the parts of Europe (not including the UK) where there aren’t supposed to be border check-points. But this just makes it harder for asylum seekers to move between countries, rather than dealing with the underlying problems.

Ultimately, the underlying problem is the number of asylum seekers (legitimate or otherwise). The long-term way of solving that is going to be to help stabilise the rest of the world (ideally by making it safer and better), and putting more effort into helping and processing existing asylum seekers, rather than demonising them and leaving them to fend for themselves.

The headline is mostly wrong. Official details of the case are hard to come by (so far I haven’t found a published decision anywhere), but from a few other articles and press releases from charities etc., the facts seem to be as follows:

This case involved 2 unaccompanied minors living in the Calais camp, and one minor accompanied by a “mentally-ill” older brother,

All 4 had relatives (siblings, in most cases, it seems) in the UK already, either having been granted refugee status (or equivalent) or in the application process,

There was some evidence that they had tried to apply for asylum in France, but hadn’t been processed yet (or weren’t officially registered,

They wanted (and obtained) an injunction ordering the UK Government to take them to the UK,

Even though they succeeded in their case, they will still have to apply in the UK for asylum - and won’t necessarily get it.

Firstly, I’m not sure if human rights were really a significant factor here. The case seems to have come down to the application of Dublin III. The judge seems to have found that under Dublin III these people should have their application heard by the UK authorities (due to having relatives here and being children, I guess). The barrier to this happening was that they weren’t being processed by the French Government.

They seem to have been caught in the no legal status trap mentioned earlier. And wanted the UK Court to get them out of it. Well, the Tribunal. But it’s basically the same thing.

Anyway. So while the ruling is kind of a big deal, it may not be as big a deal as the headline would have you believe (or due to human rights). These people should be coming here anyway, based on the evidence before the court - so no “new” migrants are being allowed to come to the UK. All the court is doing is letting them not have to wait for the delays in the French procedure. Even when they get here they will still have to go through the asylum application process, and could be denied and, eventually, deported.

Which should be a good thing for everyone; good for France (fewer applicants waiting), good for the applicants (they get to come to the UK sooner), good for the UK (fewer people stuck in ‘refugee camps’ causing trouble).

To understand the latest problems it helps to look at the differences between the French and UK asylum processes.

In the UK a person can apply for asylum at a border check-point, if they are ever detained by the authorities, or in Croydon (I’m sure there’s a joke in there somewhere about South London and people fleeing hostile states). Basically, as soon as they say “I want asylum” they have to be entered into the system and the application process starts. The Government is then responsible for looking after them until the process completes. This can take months or years, involve lots of interviews and paperwork, and appeals, and is a lot of hassle.

In France there are various ways to apply for asylum but the main one available to these people is to attend a formal interview where they file the paperwork and so on, with the aim of getting most of the stuff sorted out then and there (although there can still be long delays and appeals afterwards). However, these interviews have to be arranged in advance, and until the interview actually happens, the person hasn’t officially applied for asylum.

The waiting period for these interviews is supposed to be at most 3 days. But in some places it can be a couple of months - and during this time the applicant has no legal status. They’re not officially an asylum seeker, so the Government has no responsibility to look after them. But they can’t work (legally), are going to have trouble finding anywhere to live, and generally are stuck outside the system.

Hence many end up fending for themselves, and gathering in ‘refugee camps’ such as the ones near Calais.

The other thing key to this delay is that until the interview takes place the applicant hasn’t officially applied for asylum as far as Dublin III is concerned, so if the person gets fed up of waiting in France and makes it to the UK (or another EU state - where they’ll be under state care immediately), that new state can’t use Dublin III to send them back to France. So the French system has this ‘accidental’ side effect of encouraging people to go somewhere else.

Now, obviously not all the people at the Calais ‘refugee camps’ fall into this category; some are refusing to be registered at all (possibly in protest at the system), some just want to get to the UK, and some just want to cause trouble. No doubt many would (or will) ultimately fail in their asylum applications.

The first country to suspend Dublin III was Hungry, in June. Due to the high number of asylum applications it was receiving the Government stopped accepting Dublin III referrals from other countries - meaning that asylum seekers first registered in Hungry but who made it into another country (e.g. Germany), couldn’t be returned back to Hungry for processing. This encouraged asylum seekers to move from Hungry into other countries even if they had been registered.

In August Germany ‘did the honourable thing’ by suspending Dublin III the other way; saying that it wouldn’t seek to return any Syrian asylum seekers who applied for asylum in Germany even if they had been registered somewhere else first. This may have been extended to all asylum seekers first registered in Italy or Greece, but I’m not sure on that. This was largely reported as Germany “opening the doors” to unlimited asylum seekers, which may have not helped the situation.

In September the Czech Republic followed Germany a bit, declaring that asylum seekers already registered in other countries wouldn’t be returned there if they applied in the Czech Republic or wanted to move on elsewhere.

Without this we could get situations where an asylum seeker turns up in the UK and applies for asylum, the UK Government decides that under their rules the case should be heard by the French, so sticks them on the first train to France. On arriving in Calais the French authorities decide that under French rules the UK should be dealing with the application, so sends the person on the next train back to the UK. And they end up being bounced back and forwards, costing a lot of money, not getting anywhere. Which is bad.

Under the Dublin rules (which cover the EU, Switzerland, Iceland and Norway), it shouldn’t matter which country is working out who should hear an asylum seeker’s application - they should all come to the same conclusion. Similar rules exist for things like jurisdiction in civil cases and choice of law (which I’ve talked about before).

The Dublin III Regulation (officially “Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person“) is essentially a flow-chart for working out which country should hear a case.

The fall-back position is that:

the first Member State in which the application for international protection was lodged shall be responsible for examining [an application]

But there are a bunch of other situations where a different country might be responsible. Each Member State has to have procedures in place for sending and receiving asylum seekers in accordance with this Regulation. In theory it is all quite sensible, and benefits the UK as most asylum seekers have to go through some other EU state before getting to the UK, meaning they are more likely to have been registered there and so can be sent back if they do get to the UK.

In theory.

Problems with Dublin III

It isn’t hard to see the problems, though. By harmonising the jurisdiction but not the national rules, certain countries may have more favourable application processes than others - encouraging those asylum seekers aware of this to try to ‘play’ the system to end up having their case heard by the country most favourable to them.

Definitions

Always a good place to start:

A Refugee; legally speaking, this covers someone who has been granted refugee status (or sometimes other kinds of protected status). The term stems from a UN Convention (and Protocol) Relating to the Status of Refugees (which you can read here if you’re a masochist like me). Roughly speaking, a refugee is someone who is outside their country of nationality or habitual residence and either can’t or won’t seek the protection of that country for fear of persecution. The focus is on the country they have are from/have left, not where they are or how they got there. So a person can be in a ‘safe’ country (like the UK or France) and still be a refugee. In fact, most refugees will be in ‘safe’ countries - having left the unsafe ones.

An Asylum Seeker; legally speaking, in the UK, is someone who has submitted an application for refugee status. To do this the person has to be in the UK - so anyone outside the UK can’t, legally, be an asylum seeker under UK law. A person is only an Asylum Seeker; (a) after arriving in the UK, and (b) after applying for asylum, and (c) before their application is decided. This isn’t a helpful definition so I will be using an expanded one including people outside the UK and people who haven’t but intend to (or are likely to) apply for asylum.

Right then.

Part of the problem here comes from the complexity of the law and the UK’s legal systems. Systems plural. The UK doesn’t have a single law; it has three main legal systems (English+Welsh, Scottish and Northern Irish), then all kinds of weird types of law that fit around these. It’s really quite a mess.

A Source of Law?

There are quite a few sources of law in the UK; the UK Parliament is the main one, but then there’s the Common Law (courts trying to follow existing laws going back to the 1200s), Equity (courts making stuff up to try to be fair to people), the Royal Prerogative (things the Government can do because of God), academic writings (in Scots law), various international treaties, and  all the other British Parliaments which have had law-making powers (the Great British one, Irish ones, old Scottish and English Parliaments)

But Sharia isn’t a source of UK law. Of all of these the only way Sharia could get into any of the UK legal systems would be through an Act of Parliament (or possibly a treaty) and there isn’t one.

These Sharia Courts are not Courts in the traditional sense. They are not part of any of the UK’s legal systems.

That doesn’t mean these things are outside UK law or unlawful, just that they’re not part of the official legal structure. They have (almost) no legal authority.

So What Are They?

When not being discussed in a tabloid context they’re usually referred to as Sharia Councils or tribunals - but even that is too strong a term. Essentially they are independent (from the state) groups of people who other people can go to for help resolving their disputes.

Some of these councils also carry out religious functions - blessing ‘religious’ marriages, permitting religious divorces and so on. But again, they don’t have legal authority; a Sharia council can’t perform a legal marriage (unless they go through the appropriate requirements of domestic law) or grant a legal divorce.

This doesn’t mean that the Councils can’t have a significant level of influence over people’s lives - but that is hardly unique to this area. There are many different social, religious, community structures that impose their values and customs on subsets of the population. They’re quite hard to get rid of.

A Different Legal System?

When giving advice or ‘rulings’ these Councils will follow their own rules and values, meaning they won’t necessarily come to the same conclusion as the appropriate domestic court. But this doesn’t mean they are allowed to operate outside the law. Everyone in the UK is required to follow the appropriate law - Sharia Councils cannot be used to escape that.

What they can do, however, is offer an alternative. When two (or more) people have a dispute the legal system exists to help them resolve it, but they are not forced to go to it. Most people, when faced with a disagreement, will settle their disputes between themselves without having to go to a Court. And this is good - going to court is expensive, time-consuming and far more formal than is needed in most cases. We don’t really want people to resort to the legal system unless they have to.

Other things fill the gaps, from local mediators, professional ADR bodies, community leaders, residents’/housing associations and so on. And Sharia Councils.

But none of these is above the law. While the parties to a dispute don’t have to go to the courts, if one chooses to they can (usually) force the other to. Similarly, if a crime is committed there is no way to opt out of the criminal justice system. These Councils offer a complementary dispute resolution system, not a parallel or separate one.

So Can they be Binding?

This is where things get a bit murkier. For the most part these sorts of systems aren’t binding. But there is an exception; arbitration under the Arbitration Act 1996. An Arbitration Tribunal which complies with the requirements of this law can be binding on the parties; i.e. after the tribunal makes a decision that decision can be enforced by a ‘real’ Court. There are quite a few of these tribunals but as far as I know they all deal only with commercial matters. Binding arbitration offers quite a few benefits (particularly speed, expense and confidentiality) over the courts.

To compensate for the power they have there are fairly strict rules governing Arbitration Tribunals - most notably that they must “act fairly and impartially as between the parties” and that it can only happen where both parties agree to it in writing. They also have to comply with normal laws (probably including the Equality Act). As far as I know, only one Sharia council carries out this kind of arbitration, and then only for commercial matters.

But when discussing Sharia Councils we’re mostly talking about family law issues - which these Councils don’t seem to tackle using binding arbitration. Even if they did want to (and could fit their rulings with the requirements of the law) it isn’t clear that the Courts would let them. The law in this area is understandably unclear but there was a case in 2013 covering this (judgment here).

This case involved a Jewish couple, divorcing, and disagreeing about a few issues including some relating to their children. They wanted to use a Beth Din in New York to help arbitrate the matter. The Court agreed to let them, but on the condition that they both agreed to it, they were happy with it, and it wouldn’t be binding.

The Court also noted that while parents are generally free to raise their children without interference from the state, they cannot escape the jurisdiction of the Courts and the law.

So when it comes to family law matters the Sharia Councils almost certainly are not legally binding.

How Many Are There?

While there may be reports of “over 85 Sharia Courts” in the UK that number refers to all of these bodies - not just the one that complies with the Aribtration Act and so can be binding - and even then the origins of that number are quite murky (starting with “up to...”, “around...” and now “over...”). It’s possible that there are even more of these Councils, but given their informal nature it is difficult to know for sure and in some ways it doesn’t really matter.

Is Sharia Good or Bad?

For the most part the criticisms of Sharia Councils consists of accusations about how they operate - particularly that they are sexist or otherwise discriminatory.

Firstly. there isn’t really such a thing as Sharia Law (in the same sense as there isn’t Christian Law). There are at least 8 major branches/schools of Sharia, each with their own rules. Some may be discriminatory, but others might not be. Personally I am opposed to religiously-derived laws or rules, being a secularist and all that, but I’m aware that I may be in a minority.

Anyway - Sharia isn’t necessarily bad, but it might be. But again, these Councils cannot be used to circumvent domestic law.

What Can We Do?

This is where things get awkward. The main attitude seems to be to ban them. But that is problematic.

From a practical perspective, it is hard to see what to ban. These Councils have no legal authority, there is no law expressly permitting them not giving them powers. There is no law to repeal. Ultimately they come down to people going to a third party to help solve their disagreements, and an attempt to outlaw that could have far-reaching consequences: imagine having to go to court because you think a friend owes you a fiver.

Then from an ideological perspective, banning them (and other religious tribunals) would amount to depriving people of a choice; the freedom to resolve their dispute how they wish to.

Do we really want to go to people and say “you can’t use your religious beliefs to settle your differences?”

What I would support, however, is making it far clearer what the legal position is; that people cannot be compelled (legally) to go to these (or other) Councils. That they can always fall back on the Courts. And making sure that this is true; that individuals have access to the support they need from the State. But maybe that’s my inner socialist coming through.

Final Thoughts

I’m not a huge fan of religion interfering with people’s lives. And it is an understatement to say that I am not convinced that religious laws or courts are appropriate. I think the world could be better without them, if disputes were settled based on reason and evidence, without superstition.

But that isn’t how the world works. We have to make do with what we’ve got.

If someone can come up with a way to stop discriminatory and arbitrary forces (social, cultural or legal) in a way that is practical and not too authoritarian I imagine I’d be happy to support it. But for now, I think we have to accept that everyone isn’t in the same place.

As with most things a good starting point is a definition.

Wiktionary defines the term (in this context) as:

Avoiding offense based on demographics especially race, sex, religion, ideology, sexuality, disability, or social grouping

Dictionary.com goes with:

demonstrating progressive ideals, esp by avoiding vocabulary that is considered offensive, discriminatory, or judgmental, esp concerning race and gender

And the Cambridge Dictionary notes:

A politically correct word or ​expression is used ​instead of another one to ​avoid being ​offensive

The messages I take from these definitions is that ‘political correctness’ is about trying not to cause offence, particularly by using racist, sexist or otherwise prejudicial vocabulary. Alternatively,

being politically correct is the politically correct way of saying “not being rude.

Which sounds a lot less controversial.As with all things the term can be abused and taken to extremes, but for me the term comes down to this - not being rude. As a general principle I try to be nice to people and try not to upset them, and part of that is not being rude to them - not saying things that they will find hurtful or overly uncomfortable (not that I always succeed). And the main examples of “political correctness” brought up seem to agree with this.It would would be fantastic if we lived in a world where words were unable to hurt people, but we don’t.

However, it isn’t always easy to know what is and what isn’t going to upset someone else - and this is where understanding, tolerance and patience are important; on everyone’s part.It is inevitable that at some point we are going to say something rude, often through ignorance rather than malice; not thinking or realising that a certain word has certain negative connotations in certain contexts.

Personally I think the ‘politically correct’ response to that is not to attack, not to become defensive or judgemental of the person saying something rude, but to be understanding - understand that they (probably) didn’t mean to cause offence, and inform them - politely - that they did, and why/how.

It is then up to the first person to apologise and try to refrain from using that language again.

Not causing offence requires openness and clear communication from all sides of a conversation. If either party becomes overly aggressive (or defensive) this can be problematic.

So next time something comes up that is accused of being overly ‘political correct’ try to think about it in terms of politeness and rudeness. And see if you can understand where the other people involved are coming from.

This case concerned a Publisher (Datateam) and a Data Manager (Your Response). The Publisher had contracted with the Data Manager to run their subscriber database. The Published ended the contract and a dispute arose as the Data Manager refused to hand over the database until it had been paid and the Publisher refused to pay until it had the database.

The main issue the Court of Appeal had to decide on was whether YR could exercise a common law possessory lien over the database. This is an old contractual remedy whereby someone (originally an artificer) who was in possession of goods in order to carry out some work relating to them was entitled to keep them if they were not paid for their work (or until they were paid).

The issue was whether the database counted as "goods" in YR's "possession."

Giving the main judgment Moore-Bick LJ found that a possessory lien required some sort of tangible property, and could not apply to intangible property (overturning the ruling of the County Court). However, in doing so he seems to have accepted that a database is itself intangible property. While this isn't central to the ruling (and so arguably not binding), it is a worrying assertion. If a database is to be considered property then surely all sorts of common law rights in relation to property must apply to it - going beyond the statutory "database rights" or copyrights (which are themselves property)?

Fortunately Floyd LJ comes to the rescue. While he agrees with Moore-Bick LJ on the reasons for not allowing the appeal, he calls out the difference between information and property:

An electronic database consists of structured information. Although information may give rise to intellectual property rights, such as database right and copyright, the law has been reluctant to treat information itself as property... Whilst the physical medium and the rights are treated as property, the information itself has never been.

When an individual is convicted of a crime, they are given a sentence. If custodial, it will be a number of years - the maximum the person can spend in prison (unless something else happens). The judge can also set a tariff; the minimum time the person must spend in prison before they are eligible for parole - release from prison with conditions attached.

A person sentenced to 10 years in prison may be given a 5 year tariff and only spend 5-6 years in prison. However, for the remaining 4-5 years they will be subject to the terms of their parole and can be recalled to prison if needed.

Murder is an unusual offence; following the abolition of the death penalty, it carries a mandatory life sentence. Someone convicted of murder must spend the rest of their lives under the sentence; either in prison or on parole. In such cases the judge must set a tariff; either of a fixed number of year or a "whole life tariff" - meaning that the prisoner will never be eligible for parole. These are reserved for the most "heinous crimes."

There is one way of being released under a whole life tariff; the Secretary of State - usually the Home Secretary - can allow the release of someone under a whole life tariff on compassionate grounds, in exceptional circumstances. In the "Lifer Manual" (Prison Service Order 4700) the Government set out the circumstances in which they would exercise this power, limiting it to very narrow cases where prisoners are seriously or terminally ill and would be safe to release. This power to release was the key issue in these cases.

The ECtHR's Ruling in Vinter

The issue of English whole life tariffs came before the Grand Chamber of the European Court of Human Rights, who gave their ruling in July 2013. The full judgment is available here: Vinter and Others v The United Kingdom [2013] ECHR 645

In this appeal three prisoners under whole life tariffs argued that the scheme was a breach of Article 3 of the Convention; amounting to inhumane or degrading treatment. The ECtHR emphasised that for a prison sentence to be compatible with Article 3 there must be "a prospect of release and a possibility of review," but they noted that there was nothing wrong with whole life tariffs being imposed by judges at sentencing or with prisoners never being released - provided there was some hope for rehabilitation.

The ECtHR made it clear that the criteria in the Lifer Manual were far too restrictive and the Court was not convinced that these situations - where the prisoner was likely to die imminently - actually counted as release. For whole life tariffs to be acceptable under Article 3, the grounds need to be broader.

The ECtHR found that the legal position on what counted as "exceptional circumstances" was unclear. On the one hand there was the Lifer Manual, issued by the Government, which set very narrow grounds for release. On the other, there was a ruling by the English Court (in R v Bieber [2008] EWCA Crim 1601) stating that as Government was bound by the ECHR if Article 3 required that prisoners under whole life tariffs be released, they had to allow the release, and that the Government had the power to do so.

It was this lack of clarity that led to them finding the scheme in breach of Article 3.

The Court of Appeal in McLoughlin

This case involved a second set of prisoners; one challenging their whole life tariff (Newell) and the Attorney General challenging a trial judge's refusal to impose a whole life tariff on another (McLoughlin).

The Court noted that the ECtHR had no problem with whole life tariffs in principle, provided that was some way to reduce them. In the Court's opinion, the ECtHR's problem was the lack of clarity coming from the fact that the Government had not revised the Lifer Manual after the previous English Court rulings - creating two different sets of criteria for release.

But the Court of Appeal said this was wrong; there was no confusion. The law is the law, and the Government, in exercising its discretion to allow the release of people under whole life tariffs, must act compatibly with Article 3. If this meant that they had to release prisoners in circumstances other than those listed in the Lifer Manual, they would have to do so. The Lifer Manual was not an Act of Parliament and merely said that they would release people in those specific circumstances. If the Government did not review cases appropriately, this could be brought before the courts in a judicial review.

Winners and Losers

So who won the case?

The Government and much of the UK press have been portraying this as the Government's victory over the ECtHR. But I'm not convinced that is the reality. While the Government won the actual case (Newell's whole life tariff was upheld and a whole life tariff was imposed on McLoughlin), they may have lost the legal principle.

The Court of Appeal, while disagreeing with the ECtHR on the minor point as to how clear English law was, still agreed with their general principles. Whole life sentences must have the "prospect of release and a possibility of review" in a broad set of circumstances - the Lifer Manual is not sufficient and the Courts may challenge the Government if it refuses to change.

As to what will happen now, that is unclear. The Government might accept this ruling and change their policy - making both the domestic courts and the ECtHR happy. This case might be appealed and the Supreme Court could be left to decide who is right, what amounts to inhumane and degrading treatment, and what, in its opinion, the ECtHR rulings in Vinter actually meant. The issue could end up back in the ECtHR, who could decide whether this ruling has clarified the law enough for them. Or we could see the Government refusing to change their policy and prisoners bringing judicial reviews of potentially inhumane or degrading decisions.

The Right to Hope

Some people may argue that the underlying issue is simple; some prisoners should never have the prospect of release. To that, I will quote from Judge Power-Forde's concurring opinion in Vinter:

The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity...

Even the most vile murder is still a person; we can lock them away in a dark cell, but we have to provide a glimmer of light. Not to do so is degrading to them, and diminishes us and our society.

Other stuff worth reading on this case:

Strasbourg law does not prevent the imposition of whole life orders for “heinous” crimes - UK Human Rights Blog