Nelsen & Others vs. Evans

Nelsen & Others vs. Evans

During the week, Judge Butcher delivered a disappointing ruling in Neslen & Others vs Evans. Diana Neslen and her co-plaintiffs were suing the Labour Party over their treatment under the disciplinary code. This is  reviewed at the Mirror, Morning Star by Ammar Kamzi, who has also posted a blog article, , and presented in judgement form at Bailli.

Most disappointing is the idea that the accused do not need to know the charge against them, merely the gist and that the Labour Party’s investigation policy can be secret. I have argued before that the absence of a policy to guide investigators was just deplorable, but the Judge seems to think it’s OK.  Apart from being against the Party’s values, this would all seem to be in contradiction of ECHR Article 6.

I might read the judgement and comment further. I’d be interested to know if C2.II.7, a member’s right to fair treatment was deployed.

I feel disappointed that I took my foot of the accelerator over the need to incorporate the ECHR into Labour’s Rules.

Some of us who had more hope in judicial review may need to think our strategies. …

Wiggle room on human rights law

Wiggle room on human rights law

I made a linkedin blog on the ECtHR’s margin of appreciation. I was reading up on the UK’s post Brexit data sharing arrangements with the EU, and under the terms of the GDPR. I was diverted by the ECHR’s doctrine of a “margin of appreciation”.

Broadly speaking it refers to the room for manoeuvre the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights.

Steven Greer Reader in Law, University of Bristol,United Kingdom

Human Rights law is designed to constrain governments but will always require interpretation. The doctrine means that the rights of interpretation are shared between the ECtHR and the signatory states, who themselves will divide this between their courts and executive branch.  

This seems sensible, as I observed, when the British courts were busy interfering with the CPSA in the ‘80’s and undermines the argument of foreign interference because where there is a benefit of doubt, the ECtHR can allow the otherwise infringing government that benefit.

With respect to the cross border transfer regulation, this might make it easier to comply with the law, but there are several outstanding problems. With respect to international data sharing, the most relevant to the doctrine of appreciation and this article is that, the UK is now an ex-member-state and while the Commission argues this means that the UK’s data protection regime is suitable, the fact it is now a 3rd country means that the UK has less legal privileges to exercise its “margin of appreciation” as the powers granted to member states to vary/diminish the protections in Article 23, no longer apply. This was observed and commented on by the House of Lords Select Committee report on Brexit in 2017. See also,

I was reading this article, which makes it much clearer, that the ECtHR looks to defer to national institutions, where it can,

According to the classical position of the ECtHR State authorities “are in principle in a better position than the international judge to give an opinion” on the “necessity” and “proportionality” of a derogation or restriction authorized by human rights law. As a consequence, international courts “should grant national authorities an important degree of deference and respect their discretion” with regard to the implementation of exceptions. Thus, without precluding judicial review of a State’s action in this field, the doctrine intends to “limit the scope of this review” and to impose some degree of judicial self-restraint where an assessment of the attitude of national authorities is concerned.

Theodre Christakis

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The UK & War Crimes

The UK & War Crimes

The Socialist Campaign Group broke Labour's whip on the 2nd reading of the Overseas Operations (Service Personnel and Veterans) Bill 2019-21; the instruction was to abstain. The highlight reason for voting against the bill is that it decriminalises or more accurately makes it more difficult for prosecutions for criminal events undertaken by members of the armed forces while on active service overseas including allegations of torture, although not sexual assaults. Notoriously, three members of Labour's front bench were dismissed from these positions for voting against it. It would seem pretty black and white, but the decision is complicated by the 2nd Reading/3rd Reading issue, although with a Tory majority of 80, hoping for amendments in Committee is a long shot, but perhaps not in the Lords. This is further complicated by disagreements over the impact of text of the Bill and the intersection of International Humanitarian Law and International Human Rights Law. This article looks as the Bill, the International Laws it seeks to amend, the problems it seeks to solve, and the decision to insert the AG into any prosecution decisions. ...

Do the right thing!

A new linkedin blog by me on the fine print of the GDPR’s “legitimate interest”. The print is not so fine, and in summary, you don’t need to read the fine print to do the right thing.

When claiming a legitimate interest, the privacy rights of data subjects are established as controlling the data processor/controller’s legitimate interest by the requirement to recognise the “fundamental rights and freedoms” of the data subject. The “fundamental rights and freedoms” are defined in the Charter of Fundamental Rights

Due to indirection and thus undocumented nature of the data subject’s consent inherent in legitimate interest, I’d advise finding another lawful purpose. …

Newly in the public domain

Today is a great day; in the USA, works written/created in 1922 become available under the public domain as the 1970’s extension laws durations expire. This is recorded by Ars Technica, in an article entitled, Mickey Mouse and Batman will soon be public domain—here’s what that means. This headline is misleading since these properties won’t become PD until the 2030s. Don’t quite get the maths myself since the international treaties talk of 70 year durations and this looks like 95 years but we do know that this was an exercise in corrupt lobbying power but it would seem that “I’ve got you Babe”, written by the Congressional sponsor of the second extension law, yup, they did it twice, expires in 2060; don’t think I’ll be around to enjoy it for free. What a greedy twat!

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Mass Action or Court Action

I have today posted a limited review of Orgcon17 which happened last year. One of the most provocative presentations was this one, “Is the law the best way to stop mass surveillance?” While it documents the heroic struggle by a small group of fiercely motivated lawyers, it’s incredibly slow at the time, the court cases considered in 2017 related to 2015 laws and by the time the rulings came through the law in question had been replaced, but while pursuing legal action, mass action is hard, although crowdjustice.com and other petition sites allow the building of an on-line communities.

The presentation made me think about the numerous, trade union legal actions on collective bargaining issues, most notably their pursuit and criminalisation of Uber. In these cases, the use of the law is a sign of weakness, albeit of both sides, but demos and voting aren’t enough to change politicians minds on issues they consider peripheral. …

An overview of issues with the GDPR

An overview of issues with the GDPR

At the BCS legal day,  a presentation was made entitled “Key Issues” which they started with a quote from Jan Albrecht MEP (the Rapporteur),

“[The] result is something that makes (as we intended from the beginning) everybody equally unhappy, but at the same time is a huge step forward for all sides involved.

Jan Albrecht MEP”

It is hoped that business opportunity will be created by a harmonisation of regulation across Europe with a goal of improved privacy for its citizens. The harmonisation is constrained by the Restrictions Article, which excludes areas of law from the Regulation and creates nationally authored variances.  …

BCS Legal Day

BCS Legal Day

I attended the BCS ISSG Legal day where the priority was the coming General Data Protection Regulation. I believe that the day was held under Chatham House rules, which means that comments cannot be attributed. I prefer to work on more open terms; it allows me to attribute credit to those who have informed me or changed my mind but the notes have been anonymised. The running order has been changed to make the story better and to conform to my preferred priority order, of principles, rights, obligations and enforcement.  The day consisted of two presentations, entitled “Key Issues”, “the Data Protection Officer” and one on trends in enforcement.  I have written these notes over the last week, and backdated them to the day of occurrence. These are a bit less polemic than my recent articles here, but for various reasons I have been reminded that that’s how they once were; I hope these articles are useful to my more technical readers. Some of the discussions and issues may interest those that follow me for politics. …