The Court of Appeal of England and Wales, which is hearing this case, asked the Court of Justice whether the interpretation of Article 12 of the Regulation adopted in the Baumbast judgment still applies following the entry into force of the new Directive 2004/38 relating to the rights of citizens of the EU and their family members, and whether the right of residence of the person who is the child's primary carer is now subject to the conditions laid down by the directive for the exercise of the right of residence, especially the requirement that the parent must have sufficient resources not to become a burden on the social assistance system.

In its judgments,  the Court of Justice points out that Article 12 of the regulation allows the child of a migrant worker to have an independent right of residence in connection with the right of access to education in the host Member State. Before the entry into force of Directive 2004/38,  when Article 10 of the Regulation concerning the right of residence was still valid law, the right of access to education laid down by Article 12 of the regulation was not conditional on the child retaining, throughout the period of education, a specific right of residence under Article 10: once the right of access to education has been acquired, the right of residence is retained by the child and can no longer be called into question. Article 12 of the regulation requires only that the child has lived with at least one of his or her parents in a Member State while that parent resided there as a worker. Clearly, therefore, Article 12 must therefore be applied independently of the provisions of EU law which expressly govern the conditions of exercise of the right to reside in another Member State.

The Court concluded that the right of residence of the parent who is the primary carer for a child of a migrant worker, where that child is in education in the host Member State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education. 

The court accepted the argument of Debbie Purdy that not knowing whether her husband might be prosecuted after her death, for allegedly assisting her suicide, was a breach of her human rights. The judges held that the government should publish clear guidelines on the criteria that would be applied in decisions to prosecute. The required guidelines were published on the 25th February leading to both support and criticism from commentators. The guidelines emphasise that compassion must be the suspect’s motivation whilst setting out a list of 16 other factors to be considered including:- attempts to dissuade the deceased, whether the assistance was purely minor and whether the assistance was given reluctantly in the light of the determination of the deceased to die. More information can be found at http://www.cps.gov.uk/news/press_releases/109_10/.

Sacha Prechal is an academic who commands the respect both of the judiciary and the academic community alike, making her an interesting choice to represent The Netherlands in Luxembourg. She has written extensively on the development of Community law, including her PhD thesis on Directives, and her hypothesis that supremacy of EU law as we know it, should have been supplanted for a more coherent view that Community law and national law should not be considered two distinct sources of law in the EU, with Community law being supreme, but that Community law and national law should be considered to be a single source (thus reducing the value of direct effect principles).  Her recent work inlcudes analysis of the development of fundamental rights in the EU. Indeed with these viewpoints, there is no doubt she will contribute to the growing body of case-law on fundamental rights, coming at a time when the Court must now assess Union laws in light of the EU Charter of Fundamental Freedoms, which received treaty-level status with the introduction of the Lisbon Treaty in December.

We wish her all the very best of luck

Its conclusions condemn the “no win, no fee” agreements saying that these “have been the major contributor to disproportionate costs” and recommends the abolition of the success fees which ‘penalise’ the losing litigant and are paid over and above the actual court costs incurred, suggesting that these should instead by paid by the winning litigant from the damages awarded (which should as a result be increased by 10%). It also highlights the practice (perhaps an unfortunate import from the US) of the payment by lawyers of referral fees to insurance assessors so as to obtain more work and recommends its immediate abolition. The report also supports the trend of the recent legislation in moving towards a greater use of pre-action protocols,  alternative dispute resolution (ADR), disclosure and case and costs management by the judiciary. 

Aylesbury Crown Court heard the exceptional circumstances surrounding her plan to kill her 90 year old mother who was incontinent and had suffered years of clinical depression, at her residential home in Luton.

The appellants had all obtained anonymity orders from the lower courts, and, at the beginning of the hearing in the Supreme Court, a number of NGOs and media organisations applied for these anonymity orders to set aside. Anonymity orders prevent the release of individual details in the public domain, in order to protect the life and safety of parties or witnesses (they could be seen as a positive requirement under Articles 2 and 3 of the ECHR).

 All of the appellants argued that anonymity was required in order to protect their family and private lives in accordance with Article 8 ECHR. The media organisations contended that protection of reputation did not fall within the scope of Article 8 (Karako v Hungary [2009] ECHR 712), and the anonymity orders therefore hindered application of Article 10 rights for media to report. The court set aside all of the anonymity orders.

Implications for future anonymity order applications

Lord Rodger accepted that a balance had to be made between, on the one hand, curtailing the freedom of all members of the press, and, on the other, protecting individuals from an ‘outrageously hostile press’ (at para 72). The case therefore sends a significant message to lower courts that there is a public interest in publishing the details of individuals, and that anonymity orders, while vital to the protection of life and safety of parties, need to be justified by much more than damage to reputation or even general and unspecified fears.

For text of the judgement, please go to

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0015_Judgment.pdf

The European Union, which now has legal personality and can enter into international agreements in its own right, will replace the European Community. Accordingly, the 'pillar' structure created by the Maastricht Treaty, will disappear and the Union will have a new unified institutional framework. As a result, in common with the institutions to be renamed, the whole court system of the European Union will be known as the Court of Justice of the European Union, comprising three courts: the Court of Justice, the General Court and the Civil Service Tribunal.

Additionally, as a result of the unifying of the 'pillars' of the European Union and the repeal by the Treaty of Lisbon of Articles 35 EC and 68 EU which imposed restrictions on the ECJ, the Court of Justice will now acquire general jurisdiction to give preliminary rulings in the area of freedom, security and justice. Additionally, the Court will also have general jurisdiction in relation to visas, asylum, immigration and other policies related to free movement of persons, with any national court, not only higher courts, being able to make preliminary references, as a result of the Lisbon Treaty.

More information on the effect which entry into force of the Lisbon Treaty shall have on the functioning of the Court of Justice will be available in the December issue of the British Law Centre Newsletter.

At present, banks provide retail banking services on the basis that customers whose accounts are kept in credit (in other words who lend money to the banks) will not be charged for the services provided; customers who have authorised overdrafts will be charged interest on the money that they borrow from the bank; and customers who incur unauthorised overdrafts will be charged, not only interest on the sums borrowed, but fixed fees for each particular service involved.

The OFT has power to assess the fairness of terms in consumer contracts but this is subject to the limits laid down in the Unfair Contract Terms in Consumer Contracts Regulations 1999, which implemented European Council Directive 93/13/EEC.

Regulation 6(2)(b) states that the assessment of the fairness of a term in a contract “shall not relate . . . to the adequacy of the price or remuneration, as against the goods or services supplied in exchange”.

In other words, the “value for money” equation is excluded. The Court of Appeal held that this exclusion applied only to the “core terms” of the contract and not to ancillary terms such as the charges for unauthorised overdrafts. The Supreme Court unanimously held that the charges for unauthorised overdrafts fell within this exclusion. They were part of the price paid by the customer for the banking services provided.

No Reference to European Court of Justice

The court decided that although the interpretation of the European directive which the Regulations implemented was a question of European law it was not necessary to refer the matter to the European Court of Justice (Paras 49, 91, 115, 120).

More on this case and it's implications shall be discussed in the forthcoming December edition of the British Law Centre Newsletter. In the meantime, the judgement of this case is available directly from the website of the Supreme Court, at www.supremecourt.gov.uk

Regulation 261/2004 Establishing Common Rules on Compensation and Assistance to Passengers in the Event of Denied Boarding and of Cancellation or Long Delay of Flights, provides that, in the event of cancellation of a flight, passengers are entitled to flat-rate compensation of between EUR 250 and EUR 600. In contrast, the regulation does not expressly provide that passengers whose flights are delayed also have such a right.

The Court held that, with regard to the right to compensation, provided for by the regulation for passengers whose flight has been cancelled, that passengers who are affected by a delay sustain similar damage, consisting in a loss of time, and as such are in a comparable situation: Passengers on a flight which is cancelled at short notice have a right to compensation even when they are re-routed by the airline on another flight, if they lose three hours or more in relation to the duration originally planned. There is no justification for treating passengers whose flight is delayed any differently when they reach their final destination three hours or more after the scheduled arrival time.

The Court did qualify this, however, by stating that such a delay does not give rise to a right to compensation if the airline can prove that the delay was caused by extraordinary circumstances which are beyond its actual control and which could not have been avoided even if all reasonable measures had been taken (although this does not include technical problems with the aircraft).

The full text of the judgement is published on the Curia website.

 To reinforce the public's perception of independence, the Supreme Court is be situated at the Middlesex Guildhall on Parliament Square, a move away from the House of Lords where the current Appellate Committee is located.

The Ministry of Justice is responsible for establishing the Supreme Court.

On 12 June 2003 the then Prime Minister announced the government's intention to remove the jurisdiction of the Appellate Committee of the House of Lords and transfer it to a new Supreme Court for the United Kingdom. This move will enhance the independence of the Law Lords and increase the transparency between the top levels of the UK judicial system and Parliament.

The UK Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and will officially come into being on 1 October 2009. It will replace the House of Lords in its judicial capacity and assume the jurisdiction of the House of Lords under the Appellate Jurisdiction Acts 1876 and 1888. The Supreme Court will, with a few exceptions, be the final court of appeal in the United Kingdom (see 'what the court will do', below). The Supreme Court will also have jurisdiction in relation to devolution matters under the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales Act 2006; this was transferred to the Supreme Court from the Judicial Committee of the Privy Council.

The court of final appeal for the UK overseas territories and Crown Dependencies, and for those Commonwealth countries that have retained the appeal to the Queen in Council or, in the case of republics, to the Judicial Committee.

The Judicial Committee is also the court of final appeal for determining devolution issues under the United Kingdom devolution statutes of 1998 and it has certain other domestic jurisdiction within the United Kingdom.

The Supreme Court, as well as being the final court of appeal, plays an important role in the furtherance and development of UK law and will only select cases that have an element of wider public interest.

The Supreme Court will:

• hear appeals on arguable points of law of general public importance
• act as the final court of appeal in England, Wales and Northern Ireland
• hear appeals from civil cases in England, Wales, Northern Ireland and Scotland
• hear appeals from criminal cases in England, Wales and Northern Ireland
• assume the devolution jurisdiction of the Judicial Committee of the Privy Council, while the Commonwealth jurisdiction of the Council will remain unchanged.

The Supreme Court will hear appeals from the following courts in each jurisdiction:

 England and Wales

• The Court of Appeal, Civil Division
• The Court of Appeal, Criminal Division
• (in some limited cases) the High Court

 Scotland

• The Court of Session

 Northern Ireland

• The Court of Appeal in Northern Ireland
• (in some limited cases) the High Court

 Transferring the jurisdiction of the Appellate Committee of the House of Lords to a new Supreme Court for the United Kingdom will enhance the independence of the Law Lords and increase the transparency between the top levels of the UK judicial system and Parliament.

 The UK Supreme Court building, most recently a Crown Court, is being renovated to make sure it provides accommodation fitting for an institution of this calibre. When the court opens it will be open to the public during working hours. It will also take part in the annual Open House London Weekend where visitors will be able to explore 'behind the scenes' and have access to some of the areas that are normally not open to the public.

 For further details, see the Ministry of Justice’s web-site and, in particular, the following link: http://www.justice.gov.uk/about/uksc.htm

In a special award to recognize the fifteenth anniversary of the competition, an Anniversary Speaker’s Prize was awarded to Vanda Yakir of the University of Zagreb.

Both speakers had the opportunity to enjoy a short stage at the Court of Justice to the European Communities in Luxembourg and the winning team from Warsaw visited the University of Cambridge in October 2009 as well as visiting the Law Courts in London as the guest of Sir Robert Carnwath (CA) and well as to hear a case in the newly opened UK Supreme Court.

 Most records are used by government for a number of years and then either destroyed (if they are of no further use) or kept closed to the public for various reasons until they are 30 years old, at which point they are made available to the general public. This is knows as the ’30 year rule’.

 Following the entry into force of the UK’s Freedom of Information Act 2000 (which entered into force in 2005 and was intended to signal the beginning of “open government”), government departments and agencies may be required to disclose documents to the public at an earlier stage. Nevertheless, the PM (Gordon Brown) announced a review to consider whether the 30 year rule should remain as the starting point for assessing whether or not government information should be revealed to the public.

 The Prime Minister asked Paul Dacre, working with Professor David Cannadine and Sir Joseph Pilling, to chair an independent review of the '30 year rule', under which most government records are released. The review team considered how to balance openness and security within government, and in particular examined the impact of the Freedom of Information Act. The review team's final report was published in January 2009 and is available from the following link: http://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

 For further information about the Freedom of Information Act see
http://www.direct.gov.uk/en/RightsAndResponsibilities/DG_4003239

 The following represents a brief description of the 30 year rule.

 What is ‘the 30 year rule’?

The phrase ‘30 year rule’ is commonly used to describe the point at which records created by government departments are transferred to The National Archives, and at which most of these records are released to the public. In fact there is no single ‘rule’, but two rules that work together:

 The Public Records Act, which requires government departments to transfer records to The National Archives by the time they are 30 years old

1. The Freedom of Information Act, which requires most records to be released to the public by the time they are 30 years old

 The Freedom of Information Act states that records should be released unless a specific exemption applies.  Exemptions (for example, ‘formulation of government policy’) fall away after certain periods of time, mostly at 30 years.  Therefore, many records that can be kept closed while they are under 30 years old have to be opened when they reach the point of 30 years after creation. Most records transferred to The National Archives are either already open, or are opened at 30 years.

 What is the history of the ‘30 year rule’?

Before 1958, there was no public right of access to government records. The Public Records Act 1958 introduced a '50-year rule', which required that records transferred to The National Archives (then called the Public Record Office) be opened at 50 years unless there were specific reasons not to do so. This was soon felt to be too long a period, and in 1967 this period was reduced to 30 years.  The backlog of material aged between 30 and 50 years was released from 1968.

The next big change happened as a result of the Freedom of Information Act.  Until this point, there were no legal criteria for keeping records closed after 30 years – a Minister had to seek the approval of the Lord Chancellor for extended closure.  Over time, a number of criteria for extended closure – national security, foreign relations, the economy, personal privacy etc. – were developed, but these had no basis in law.

 There were also inconsistencies. For example, some very personal records (the World War I Soldiers’ Records) were opened while soldiers were still alive, whereas other personal records (census records) were kept closed for 100 years.

The Freedom of Information Act 2000 codified the reasons why records could legitimately be closed after 30 years, and stated that records falling outside these ‘exemptions’ were therefore deemed open.  One effect was that large numbers of records at The National Archives that had been considered closed under the old arrangements were immediately opened as the new Act came into effect.

 Although many records are still closed for 30 years (or occasionally even longer) because they are ‘exempt’ under the Freedom of Information Act, the assumption that records will be closed for 30 years has been abolished by the Act, and government culture has had to adapt to a more open environment.  Today around 80% of Freedom of Information requests are granted, most of which are for information that is less than 30 years old.

 Is everything transferred to The National Archives by 30 years?

Most records are transferred from government departments to The National Archives by 30 years, but departments can specifically apply to keep things themselves for longer (in which case the Lord Chancellor needs to approve it).  There are two main reasons for retaining records at the departments; one is that they are still in active use (for example, plans or drawings of buildings, or personnel files) and the other that they remain very confidential.

 Is everything released to the public at 30 years?

Not everything does get released when transferred to The National Archives.  The Freedom of Information Act has reduced the number of records that can stay closed, but a very small proportion of material remains closed for a defined period.  Examples include murder files, which remain closed until the children of the victim are 100 years old, in order to protect them from exposure to distressing personal information.  Other records which remain closed relate to current defence or security, foreign relations etc..

 There is a check in place to ensure that this is applied appropriately.  The Lord Chancellor has an Advisory Council, chaired by the Master of the Rolls, which meets four times a year.  Any records to be transferred to The National Archives that the transferring department wants to keep closed beyond 30 years come to the Council for consideration. The Council does regularly challenge cases, in which case the department needs to provide more evidence and justification, or change their decision.

 Does secret intelligence material get released at 30 years?

The Security and Intelligence Services are exempt from the provisions of the Freedom of Information Act, and The National Archives does not routinely take security-classified material that has a protective marking above ‘Restricted’.  Much of this material does eventually come to The National Archives, either as the security difficulties fall away, or the files are no longer essential to current business.  In many cases it is released to the public after a period of 50 years or more.

 Contact the 30 year rule review

If you have any questions or comments about the review, please write to:

The Secretary
30 year Rule Review
PO Box 824
Richmond
TW9 4XF
Tel: +44 020 8392 5210/ +44 020 8392 5375
secretary@30yearrulereview.org.uk

 For further details, see the following link:

http://www.30yearrulereview.org.uk/default.htm

A code of conduct for all MPs will be given statutory backing and will clarify their role in relation to their constituents and Parliament. It will set out the options available to sanction failures to observe the required standards. The government will commission the Senior Salaries Review Body to review the system of financial support in the House of Lords so that it too can increase accountability, transparency and reduce cost. We will also legislate for new disciplinary sanctions for the misconduct of peers in the House of Lords. The Justice Secretary is currently in the process of liaising with all the political parties represented in the House of Commons on the proposed Parliamentary Standards Authority and the code of conduct.

Jack Straw, Secretary of State for Justice, said: ‘The creation of a Parliamentary Standards Authority and an MPs’ code of conduct will continue the fundamental reforms we have already delivered to increase the accountability and transparency of Parliament. We are holding cross party talks on this matter, the first of which will take place today, and will we proceed urgently with legislation to restore the public’s trust in MPs, politics and Parliament.’

The government published a draft Constitutional Renewal Bill last year which includes measures aimed at surrendering prerogative powers to Parliament. This has been subject to wide consultation. We intend to introduce a final Bill to the House before the summer recess.

Notes to editors

For media enquiries, contact the Ministry of Justice News Desk on 020 3334 3536.

 Article originally made available at: http://www.justice.gov.uk/news/newsrelease100609a.htm

It is intended that the creation of a new Parliamentary Standards Authority to regulate the system of allowances and a code of conduct for all MPs will be put before Parliament in a short self-standing Bill before the summer recess. The Parliamentary Standards Authority will regulate and oversee members’ expense claims and oversee the new allowance system. It will also, as was proposed by the Committee on Standards in Public Life, maintain the register of members’ interests and ensure appropriate sanctions are applied in cases of financial irregularity.

A code of conduct for all MPs will be given statutory backing and will clarify their role in relation to their constituents and Parliament. It will set out the options available to sanction failures to observe the required standards. The government will commission the Senior Salaries Review Body to review the system of financial support in the House of Lords so that it too can increase accountability, transparency and reduce cost. We will also legislate for new disciplinary sanctions for the misconduct of peers in the House of Lords. The Justice Secretary is currently in the process of liaising with all the political parties represented in the House of Commons on the proposed Parliamentary Standards Authority and the code of conduct.

 Jack Straw, Secretary of State for Justice, said: ‘The creation of a Parliamentary Standards Authority and an MPs’ code of conduct will continue the fundamental reforms we have already delivered to increase the accountability and transparency of Parliament. We are holding cross party talks on this matter, the first of which will take place today, and will we proceed urgently with legislation to restore the public’s trust in MPs, politics and Parliament.’

The government published a draft Constitutional Renewal Bill last year which includes measures aimed at surrendering prerogative powers to Parliament. This has been subject to wide consultation. We intend to introduce a final Bill to the House before the summer recess.

 Notes to editors

For media enquiries, contact the Ministry of Justice News Desk on 020 3334 3536.

 Article originally made available at: http://www.justice.gov.uk/news/newsrelease100609a.htm

The new Scheme follows a 12-week prototype study in July 2007 that was hosted by Camberwell Green Magistrates' Court. That prototype study demonstrated that both custody and bail first hearings could take place in a single day with an average time of three and a half hours.

 Claimed benefits of the virtual court scheme include: 

• the potential for same-day sentencing of offenders who plead guilty.
• a reduction in delays caused by defendants failing to turn up to hearings and paperwork not being available.
• reducing prisoner movements, saving money on transport costs.

  It is suggested that the Virtual Courts Scheme has the potential to deliver savings of over £10million a year.

 Justice Secretary Jack Straw praised the first virtual court pilot for delivering justice faster and more efficiently, when he visited Camberwell Green Magistrates’ Court on 27 May. Mr Straw said: 

 ‘As I have seen first hand today, virtual courts have the potential to transform how the justice system deals with crimes.  They are vital in the Government’s drive to deliver swift justice - resolving cases faster, freeing up police time and improving the service given to victims, witnesses and defendants.  Although at an early stage, this pilot helps the courts, police, prosecutors, defence lawyers and the judiciary work better together to deliver quicker and more effective justice without any loss of quality.  The faster we get justice done, the more we improve public confidence in the criminal justice system as whole.’

 The Solicitor General, Vera Baird QC, said: 

‘By continuing to examine the virtual courts concept we can ensure that its potential is fully realised but that appropriate safeguards are in place to ensure it is used for the right kinds of cases. It can work for both complainants and defendants, while the public can continue to see justice being done.’ 

Lord Justice Leveson, the Senior Presiding Judge for England and Wales said:

‘The courts offer a public and open system of justice, but it is also important that they provide for the swift resolution of cases. The judiciary are therefore keen to look at new and innovative methods of increasing the efficiency of the courts, whilst preserving what is important about the system of justice that they provide. Using technology such as this to reduce delay must therefore be worthy of further investigation. I welcome this pilot and shall follow its progress with interest.’

Andrew Morley, chief executive of the London Criminal Justice Board, which is coordinating the London pilot, said: 

‘The London Criminal Justice Board is committed to testing new ways of improving the public’s experience of the criminal justice system by improving the timeliness and efficiency of the process. We have shown previously through a successful prototype that the technology makes it possible for the court to deal with first appearances over a video link from the police station, and are confident that the pilot will demonstrate significant benefits in terms of efficiency, victim satisfaction and confidence.’

Published: 27/05/2009

Article originally made available at: http://www.scl.org/site.aspx?i=ne12088

In a special award to recognize the fifteenth anniversary of the competition, an Anniversary Speaker’s Prize was awarded to Vanda Yakir of the University of Zagreb.

Both speakers had the opportunity to enjoy a short stage at the Court of Justice to the European Communities in Luxembourg and the winning team from Warsaw visited the University of Cambridge in October 2009 as well as visiting the Law Courts in London as the guest of Sir Robert Carnwath (CA) and well as to hear a case in the newly opened UK Supreme Court.