The article is a commentary on the ECJ’s judgment in the case of Council v K. Chrysostomides & Co. and Ors. It analyses the reasoning behind the ECJ’s findings regarding the legal nature of the Eurogroup, explores the implications of these findings for the accountability of the Eurogroup, and looks at the justiciability of the actions of the Council, Commission, and ECB in the context of the financial assistance programme for Cyprus and the EMU more generally speaking.
The authors argue that the ECJ could have concluded that the Eurogroup is an EU institution within the meaning of Article 340(2) TFEU and that the theoretical possibility to hold the other EU institutions involved in financial assistance programmes accountable for their actions does not always suffice to guarantee the effective judicial protection of aggrieved individuals. This is the culmination of years of research on the topic of judicial protection in financial assistance given to EU Member States.
In October 2022, the Essex Law School launched the Constitutional and Administrative Justice Initiative (CAJI). This builds on and extends the work of the UK Administrative Justice Institute which was established in 2014 with funding from the Nuffield Foundation to kickstart the expansion of empirical research on administrative justice in the UK. Since 2018, the Institute has been funded by Essex Law School to progress the priorities set out in its Research Roadmap.
Establishing CAJI reflects the importance of connecting research and scholarship on administrative justice with Essex Law School’s broader public law scholarship on constitutional justice, judicial review, comparative public law, constitutional theory, social justice and human rights.
CAJI’s core team
Maurice Sunkin KC (Hon), Professor of Public Law and Socio-Legal Studies, is co-director of CAJI and a member of the team that originally established the UK Administrative Justice Institute.
CAJI also has an advisory group comprising of colleagues from the Essex Law School as well as other departments of the University of Essex and external participants from academia and NGOs.
The importance of constitutional and administrative justice
Constitutional justice concerns matters critical to the relationship between the citizen and the state, including adherence to the principles of supremacy of law, accountability before the law and fairness in its application. At its core, it concerns state protection of our constitutional rights such as liberty, equal protection under the law and procedural due process. This requires decision-makers to respect their constitutional responsibilities: that the legislature legislates, and the executive governs according to established constitutional principles and that both branches are politically and legally accountable. Hence, constitutional justice is often discussed in the context of constitutionalism meaning that in serving the people the legislature and the executive are themselves governed by fundamental rules rooted in the consent of the people.
A commitment to the rule of law and avoidance of arbitrary exercise of power by the executive and those acting on its behalf are vital components of constitutional justice and good government. The decisions of independent courts demand respect and play a vital role in providing redress to those adversely affected by state action, constraining the unlawful exercise of state powers, and safeguarding fundamental constitutional values.
The impact of the European Union and the Council of Europe and its advisory bodies such as the Venice Commission have become key in the globalisation of constitutional justice. This development entails the consolidation of constitutional principles common to their signatories and the maintenance of coherent standards of constitutional rights protection. Recent threats to the independence of the judiciary in several European countries show that we cannot assume that appropriate constitutional standards are easily enforced.
At its core, administrative justice is about ensuring that those delivering public services act justly and make correct decisions and about what can be done when things go wrong. It encompasses matters of everyday importance that affect most of us at some point, such as education, health care housing, immigration, land use planning, social security and taxation.
We are interested in how public services are designed and delivered, how legislation is drafted, how people are consulted about laws and policies, how people can challenge decisions by public bodies, how redress bodies consider those challenges, and how learning from such challenges is used to improve delivery and decision-making in the first place. These matters are of vital importance to society.
“The CAJI is a research hub within the Essex Law School that builds on the legacy of the UK Administrative Justice Institute and pays tribute to all the amazing research that colleagues like Andrew Le Sueur and Maurice Sunkin have undertaken in public law and socio-legal studies.
CAJI’s research agenda is ambitious in that it draws on many issues pertaining to the exercise of public authority at all levels with the aim of improving the quality of decision making and access to justice in the UK and at international level.
While it is an active research hub of the Law School, CAJI embraces academics from multiple disciplines and acts as a forum to discuss how we conduct research where the doctrinal meets the empirical.
CAJI is also interested in how academic research can contribute on the ground by advising public bodies and NGOs about pertinent issues of public life and commenting about complex topics in a way that is accessible to the wider public. Questions related to institutional independence, just government, states’ international obligations, modern living environments, provide exciting opportunities for interdisciplinary research and postgraduate research study. Our work dovetails neatly with the University’s research priorities in social deprivation, sustainability and health and wellbeing.
We therefore invite prospective visiting researchers and PhD students to contact us in order to discuss their ideas and potential opportunities for future collaboration.”
Mutual funds are externally managed with fund ownership separated out from their management, which carries a potential conflict of interest between the self-interests of the fund management and each fund’s investors. The book provides an in-depth analysis of this agency problem in the mutual fund industry, comparing the competing governance models in the UK and the US and the supervision of management activities.
In the UK, the book investigates the main governance mechanisms, including disclosure, the effectiveness of voting rights, and the role of the Financial Conduct Authority in protecting investors. It also considers the role of prudential regulations in protecting mutual fund investors, with a particular focus on risk management and mutual fund liquidity crisis. The book further investigates the impact of the withdrawal of the UK from the European Union (Brexit) on the industry and what this means for the future of the undertakings for collective investment in transferable securities (UCITS) in the UK.
The concept of mutual funds is still not clearly understood, so this book will clearly define the different legal and practical aspects of mutual funds. It will be the first substantial study of mutual fund governance mechanisms under the existing mutual fund laws and regulations in the UK.
Further information on this book can be found here.
La légalisation de la mort assistée, un sujet sociétal au cœur des débats
Ces podcasts correspondent à la deuxième partie d’un projet de recherche sur la légalisation de la mort assistée en France et en Angleterre. Après avoir publié un article décrivant les lois actuelles dans les deux pays et les raisons de chacun de refuser la légalisation de la mort assistée, j’ai eu l’opportunité d’interviewer deux expertes sur ce sujet et d’engager la discussion quant à l’état de la législation actuelle et ses possibles évolutions. Nous avons également abordé d’autres questions comme la responsabilité de l’équipe médicale dans le cadre de la mort assistée.
Aujourd’hui, ces discussions sont d’autant plus importantes qu’en France, le débat sur la législation de la mort assistée est d’actualité. Le 13 septembre 2022, Jean-Luc Godard, cinéaste franco-suisse, a délibérément mis fin à ses jours grâce au suicide assisté, une pratique légale en Suisse. Le même jour, le Comité Consultatif National d’Ethique a rendu un avis sur la fin de vie ouvrant la voie à une «aide active à mourir». Une convention citoyenne sur la fin de vie va également être prochainement organisée. Alors que les discussions sur la fin de vie prennent de plus en plus d’importance, il paraît crucial d’en apprendre davantage sur la législation en vigueur et ses possibles évolutions.
Le premier podcast est une interview de Sabine Michalowski, Professeure de Droit à l’Université d’Essex, co-directrice du projet: Essex Transitional Justice Network. Elle est aussi membre du Human Rights Centre et du Essex Autonomy Project.
Le deuxième podcast contient une discussion avec Aurore Catherine, maître de conférences en droit public à l’Université de Caen Normandie, membre de l’Institut Caennais de Recherche Juridique et présidente du groupe de Réflexion Ethique du Centre de Lutte contre le cancer François Baclesse.
Ces deux podcasts, bien qu’ils traitent des mêmes sujets, présentent deux points de vue différents.
Dans son interview, Madame Catherine commente la loi en vigueur en France. Elle rappelle que le but de cette loi est de soulager les souffrances. Selon elle, il faudrait d’abord s’assurer que cette loi est bien appliquée avant de se pencher sur la légalisation de la mort assistée:
«En 2015, une critique a été soulevée: notre législation était philosophiquement, éthiquement bien fondée, simplement on n’arrivait pas à l’appliquer parce qu’elle était insuffisamment connue des soignants, insuffisamment connue du grand public».
Concernant Professeure Michalowski, il lui semble important de se focaliser non pas sur l’application de la législation actuelle mais sur la nécessité de légaliser la mort assistée. Selon elle, il serait préférable d’adopter une nouvelle loi plutôt que de se reposer par exemple sur l’«état de nécessité», un moyen de défense utilisé lors de certains procès mais qui se révèle «totalement imprévisible». Pour Professeure Michalowski, il est important de laisser le choix aux individus et de leur permettre ainsi de décider de leur vie comme de leur mort. Elle affirme à cet égard que: «Pour certaines personnes, une meilleure fin de vie serait d’avoir accès à la mort assistée».
The Legalisation of Assisted Dying
These podcasts are the second part of a research project on the legalisation of assisted dying in England and France.
In the second interview, I had the opportunity to interview Aurore Catherine, Lecturer in Public Law at the University of Caen Normandie, member of the Institut Caennais de Recherche Juridique and President of the Ethical Debate Group at the François Baclesse cancer centre.
In both podcasts, we are going through different themes on the topic of assisted dying. Similar questions are asked to both interviewees in order to grasp the differences between both jurisdictions.
From the definition of dignity at end of life, to the powers of the courts and the physicians’ responsibilities, we discuss the challenges associated with the legalisation of assisted dying.
Although dealing with the same topic, the two podcasts present two different points of view.
In her interview, Dr. Catherine focuses on the current legislation in France. She recalls that the purpose of the law is to relieve suffering. According to Dr. Catherine, it would first be necessary to apply this law properly before debating on legalising assisted dying:
“In 2015, a criticism was raised: our legislation was philosophically, ethically well-founded, however, we could not apply it because it was insufficiently known to caregivers, insufficiently known to the general public”.
For Prof. Michalowski, the importance of the debate lies in the legalisation of assisted dying. According to Prof. Michalowski, adopting a new law would be a better option than relying for instance on the defence of necessity, a means of defence used in some trials but which turns out to be “totally unpredictable”. She focuses on the idea that it is important to leave everyone to choose and decide about their own life and death. In this regard, she says that “for some people, a better end of life would be to have access to assisted dying”.
In his new article published in Policing: A Journal of Policy and Practice, Dr Simon Cooper of Essex Law School examines the new relational accountabilities of Chief Constables, Police, and Crime Commissioners [PCCs] and Crime Panels [PCPs] in England and Wales.
Referring to a number of recent reports and reviews, the discussion initially focuses on the effectiveness of these relationships and, in particular, the inefficiency of PCPs.
Dr Cooper’s article develops current understanding, showing that PCPs may cause a new unforeseen consequence. Namely, the exercise of accountability and the governance of policing may be unusually reactive to the ‘one-to-one’ accountability relationship between PCCs and Chief Constables.
Such recommendations are made to strengthen the exercise of accountability and the governance of policing. Specifically, the Home Secretary is encouraged to review the Policing Protocol Order (2011) and issue a Memorandum of Understanding to ensure ‘effective, constructive working relationships’ are not just a quixotic pursuit but a practical reality that safeguards the governance of policing.
Dr Cooper’s research is all the more important in light of Her Majesty’s Inspector of Constabulary and Fire & Rescue Services finding in 2022 that there is an ‘atmosphere of mistrust and fear’ between PCCs and Chief Constables and The Police Foundation reporting ‘a crisis of confidence’, recommending ‘root and branch reform.’
I have recently had the honour to be part of the panel of judges of the Aban Tribunal – a People’s Tribunal established by civil society to review evidence of atrocities allegedly perpetrated by the Islamic Republic of Iran as part of its crackdown on the mass protests that had engulfed Iran in November 2019, sparked by massive rises in fuel prices but fundamentally were about social and economic rights and governance in the country. Our judgment, in which we found that acts of extrajudicial killings, torture, sexual violence, arbitrary detentions, enforced disappearances and persecution amounted to crimes against humanity, was released on 1 November 2022.
This was my first foray into the world of People’s Tribunals, a concept which originated with the Russell Tribunal, named after Bertand Russell. That was a process he initiated together with Jean Paul Sartre, Simone de Beauvoir and other luminaries of the day to consider the American role in Vietnam. Since then, the People’s Tribunal concept has developed and evolved and many other tribunals have been established to consider a wide array of issues ranging from the coalition-led invasion into Iraq, the situation in Palestine, the situation in Kashmir, Japanese wartime practices related to sexual slavery, the treatment of refugees and migrants, the treatment of Uyghurs, climate change and the murder of journalists. And the list goes on.
People’s Tribunals tend to come into play when more traditional justice avenues are completely blocked or when the official narrative about what happened denies the space for other voices or perspectives. Either a regime has no interest in any kind of justice and will not be cajoled into a justice process. Or, there is a particular issue that is completely taboo in a country or which cannot be solved by bringing a case to court.
In the case of the Aban Tribunal, the Islamic Republic had authorised the violent crackdowns on protesters and in the aftermath of those events, had instituted a devastating campaign of intimidation against family members who had sought out information about how their loved ones had died or were calling out for justice. Authorities had also interrupted families’ burial rituals in order to deflect attention away from the many killings, preventing families from grieving their loved ones. Thus, there was no realistic prospect of domestic investigations or prosecutions of those responsible or any likelihood of an official acknowledgment of the wrongs done and the harms caused. Victims and witnesses, who faced significant risks of reprisals for their participation, testified, often by video link – with faces covered and voices distorted, from inside Iran. The opportunity to tell their stories to the world was one they could not pass up lightly.
People’s Tribunals are about drawing attention to problems that are not being solved by traditional courts, governments or others. These tribunals are intended to bring public attention to issues not sufficiently in the public domain; to build solidarity with victims; to provide some kind of ritualised forum in which evidence is evaluated and the moral weight of a conclusion is given; to serve as a catalyst either for later formal justice processes or for changing public opinion or inspiring political debate.
What makes “justice” justice? This is perhaps a philosophical or sociological question, it can also be considered anthropologically – what do we turn to a justice system to do for us? And when do we see that it has the power to deliver?
Do we do a disservice to victims if justice is not sanctioned by a government; if the results of this “contrived” justice process cannot result in “real” sanctions?
In some cases, a People’s Tribunal might make it more difficult to have a formal justice process afterwards (but sometimes the opposite with be the case). But often “real justice” is symbolic – victims will take cases to human rights courts that they know will not get enforced; but often the reason why victims bring cases to court is for an official body to acknowledge that they were wronged and that they suffered. It is important that there is official recognition that what was done to them was wrong and that they – the victims, are not to blame.
As such, it becomes a question of whether the People’s Tribunal is imbued through the rituals it cloaks itself with, with enough internal legitimacy that victims and communities see it as having the power to do justice in the form of acknowledgement.
In some cases, it will be important for the judges of People’s Tribunals to don robes, to use gavels, and to seem otherworldly, and to speak the language of the courtroom for the victims to believe that the justice ritual they are part of is “real” and “meaningful”. This was the case with the Aban Tribunal – it was our determined belief, based on our understanding of the situation and speaking with civil society that there was this overwhelming sense of impunity – the total and absolute absence of justice. Donning the rituals of the courtroom was therefore an important part of our process.
In other cases, it is the formal justice system that is alienating and has failed victims in the past; the People’s Tribunal will be embraced and seen as legitimate only if it gets stuck in with the community in a more visceral way.
Can justice exist without a government legitimising it?
In most societies, justice is like a social contract – the justice process helps reinforce the rules by which the society lives by. Justice that is fair makes communities feel comfortable to abide by the rules. Everyone knows their place. In this sense, justice is something a government uses to reinforce the rule of law within the society. When state actors commit crimes, subjecting them to the same scrutiny, to the same justice, reinforces the sense that everyone plays by the same rules. When the state exempts itself from the rules, this undermines the rule of law in society.
Before embarking on this People’s Tribunal journey, I was convinced that for justice to be meaningful it had to be done by the decision-makers. As someone who has worked a lot on the issue of reparations or remedies to victims, – reparations were always something the government or the direct perpetrators should provide – indeed, this was part of their social contract, their role in reinforcing the rule of law. When civil society groups or development agencies started getting involved in reparations, my sense was always that they were just muddying the waters; reparations means something specific; it is special – it is about the wrongdoers acknowledging the wrongs and harms that they caused. So similarly, a justice process needed to be set up by governments because of the role governments play, or should play, in society, in reinforcing the rule of law.
But with People’s Tribunals, I realised, the idea that victims and civil society create their own framework of justice when justice is not otherwise going to happen, recognises that a government does not have the power to deny justice – this itself is really powerful. When the government does nothing, the victims, the civil society, the international community say no – that is not alright; we deserve justice; if you won’t provide it, we will not allow you to block it for us; we will take matters into our own hands and create our own justice.
It recognises that justice as acknowledgement is a ritualised project, and it is not owned by governments.
The result can be very creative; participatory; and if done well, a really positive experience for victims that they wouldn’t get in a traditional courtroom.
How to avoid the accusation of Kangaroo Justice?
There will always be arguments that Peoples’ Tribunals are one-sided; that they are just a politically motivated tirade against a government. For any People’s Tribunal to have a positive effect, it must guard against this. It is the judges of the People’s Tribunal who need to control the process. They must give space for nuance, hear all possible arguments even if not all sides are participating, recognise that there are defence rights even if there are no accused. This is difficult, and not always as obvious as it should be.
The truth is never simple, the organisers of tribunals are advocates, with advocacy positions – it is important for judges/deciders of fact to be independent of that, to be as neutral as possible.
Another line of argument is that a Peoples’ Tribunal should not seek to resemble a court – the more they don the rituals of a court, but do not have the necessary checks and balances of a court, the more they veer towards kangaroo justice. However, one needs to consider the purpose of the People’s Tribunal – in some cases, it is set up precisely because the community has a real need for justice – and there is no accountability in the society – so becoming as “court-like” as possible is really important, for the victims and the ritual of the process.
For the Aban Tribunal, it was really important that we were a court – we wore robes, the witnesses were sworn in, the judges spoke in legalese and the judgment is a judicial ruling – but this obviously raises other challenges – we had to take special care about process, about fairness, about our own accountability.
People’s Tribunals play a really interesting part of the mix of justice processes. They are particularly important to adjudicate situations or issues which would not otherwise have benefited from adjudication. They also play an important role in expressing solidarity with victims and affected communities who often feel isolated in authoritative regimes.
The idea that justice comes only in one shape, or size, is evolving. This evolution is necessary in light of the many instances of absolute impunity around the world. But also, it can be very empowering and freeing to develop conceptions of justice that are centred on the needs of victims and communities.
Dr Jessica Lawrence of Essex Law School and Professor Marija Bartl of Amsterdam School of Law have recently produced a jointly edited book publication with Edward Elgar titled The Politics of European Legal Research: Behind the Method. This book looks behind different methodologies to explore the institutional, disciplinary, and political conflicts that shape questions of ‘method’ or ‘approach’ in European legal scholarship. It offers a new perspective on the underlying politics of method and identifies four core dimensions of methodological struggle in legal research – the politics of questions, the politics of answers, the politics of legal audiences, and the politics of the concept of law.
In addition to her editorial role, Dr Lawrence contributed chapter 2 of the book titled ‘Governmentality as reflexive method: excavating the politics of legal research’. Here, she argues that researchers should be conscious of the impact that their ontological, epistemological, political, and normative commitments have on their work, and maintain an awareness of the fact that these assumptions are contingent, constructed, and politically significant. She argues that consciousness of these impacts is a tool researchers can use to better examine the forms of knowledge they (re)produce to determine what type of order, and what type of politics, they perpetuate.
Further information on this book can be found here.
The United Nations (UN) has recommended international guidelines developed through a partnership between Julie Hannah, at Essex Law School, and the United Nations Development Programme should be used in the Philippines to improve and protect human rights.
“We are delighted to see the Guidelines form one of the United Nation’s key recommendations to the government of the Phillippines to advance more humane and just responses to drugs in the country. Vigilance and accountability will continue to be critical to ensure the Guidelines are utilised in a comprehensive system of reforms necessary to support justice and healing for the communities so deeply affected by the punitive and violent drug control efforts of recent years. It is an honour to play a very minor role in supporting the tremendous advocates at the Commission on Human Rights as well as civil society colleagues and friends in the country.”
Improving human rights in the Philippines
This recent UN report examines progress made on the implementation of the United Nations Joint Programme on Human Rights (UNJP), agreed by the Government of the Philippines and the UN on 22 July 2021.
This three-year UN joint programme was developed to implement Human Rights Council Resolution 45/33 which outlined specific areas, including drug control, for capacity-building and technical cooperation for the promotion and protection of human rights in the Philippines.
The OHCHR’s recommendation that the new Philippines administration ‘revise legislation and policies in line with a human rights-based approach and the International Guidelines on Human Rights and Drug Policy’ followed a national consultation convened in 2021.
This consultation involved the Philippines Commission on Human Rights, the OHCHR and national stakeholders to review the current efforts on drug policy reform in the Philippines in light of the International Guidelines on Human Rights and Drug Policy. This was subsequently followed by meetings organised by the UNJP in April this year with government, health officials and academia to propose a draft roadmap to transition the national drug policy framework towards a public health and human-rights centred system to enable voluntary community-based treatment and rehabilitation for drugs.
More about the International Guidelines on Human Rights and Drug Policy
They were developed by the International Centre on Human Rights and Drug Policy and the United Nations Development Programme in collaboration with the GPDPD, GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development and the Swiss Federal Department of Foreign Affairs.
This piece was first published on the University’s news web pages and is reproduced on the ELR Blog with permission and thanks.
Human rights are not simply rights, they are also quintessentially human; and the human experience is filled with emotion. Dr Nikolaidis argues that human rights can be understood as emanating from emotions that we are perceived to share.
Art in general and poetry in particular can provide a great service in helping us explore and bring these emotions to the fore, thereby reinforcing the distinctively human character of human rights, while also enabling us to understand them as something more than moral or legal constructs.
The regulatory and legal facet of human rights is a fundamental aspect of democratic justice systems. But so is the personal, emotional facet, which prompts us to celebrate, communicate, debate and re-imagine the nature and content of human rights – within and beyond the courtroom – in a more empathetic and inclusive manner, with reference to the emotions that underpin them.
In his new article, published Open Access in the journal of Law and Humanities, Dr Nikolaidis advances the idea that a sharper focus on the personal facet of rights can help promote the regulatory one “by making the justice system more sensitive and responsive to the emotions of individuals, thus rendering it more open and relatable”.