HRAThe Conservative Party’s concept of a “British Bill of Rights” has long rankled in Northern Ireland. Seemingly in the interests of alliteration such fundamental proposals were titled in a way that carried with it thinly veiled disregard for sensibilities in what is supposedly a constituent part of the UK. Not a UK Bill of Rights, but one for Britain. British rights, not Irish rights. Beyond putting noses out of joint, it also spoke to a lack of consideration of the legal framework put in place by the Belfast/Good Friday Agreement. As the Coalition Government’s Bill of Rights Commission had warned (p.15):

[R]espondents, in particular in Northern Ireland … were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland

Nonetheless, with last week’s General Election victory the Conservative Party stands on the brink of being able to fulfil its manifesto promise:

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.

The latest reports suggest a draft Bill is near ready for release. The appointment of Michael Gove as Minister for Justice suggests that David Cameron is positioning a minister who certainly holds himself out as a public intellectual to lead the debate over this reform. But any thought that Gove’s appointment marks a softening of the Tory position on the Human Rights Act seems wide of the mark. The most prominent appointment in Gove’s ministerial team is Dominic Raab, a vocal opponent of the HRA and a minister intended to assure the right-wing of the Conservative Party that there will be no back sliding on this issue. And indeed, how could there be? If Cameron is to hold the Tory party together in support of his “renegotiation” of the UK’s EU membership, even if this results in insubstantial concessions over the UK’s position, and subsequent referendum, this faction will have to have blood, and quick.

So, in this context, are the implications of repeal for devolution (particularly in Northern Ireland) a genuine stumbling block or wishful thinking? Will a British Bill of Rights have to alter the Good Friday Agreement? Much will depend on the extent of the Tories’ intentions. Gove’s team could unveil plans which just involved the replacement of the Human Rights Act in England. This would negate any need to negotiate with hostile devolved administrations in Scotland or Wales or tamper with the wiring of the Good Friday Agreement. This would certainly save political capital, allowing the Conservatives to portray themselves as responsive to the will of devolved legislatures and to concentrate on getting the legislation into place as swiftly as possible (as it would constitute the fulfilment of a manifesto pledge the Salisbury Convention would also prevent opponents of the proposals from fighting a delaying action through the House of Lords). Doing so might well not satisfy the Tory Party’s right wing, as the Human Rights Act would continue to operate in three of the UK’s constituent countries, but in terms of addressing the demands of Conservative voters in England (the vast majority of Conservative voters) David Cameron could argue that he had fulfilled his pledge to scrap the Bill.

But a new measure which applies only in England doesn’t make for much of a British Bill of Rights. So assuming a proposal is introduced to Westminster with the intention that it should apply throughout the UK, what might happen next? The first difficulty that the UK Government would encounter is that human rights are a devolved competence. The Welsh Assembly Government, for example, has gone some way towards incorporating the UN Convention on the Rights of the Child into Welsh law, imposing a duty upon Welsh ministers to have due regard to the Convention in their decision-making. This means that the Sewel Convention is triggered, by which the devolved legislatures must consent to Westminster legislation that impacts upon their competences (explained here). Furthermore (as Aileen McHarg explains here) the devolved legislatures in Scotland and Wales would be able to re-enact the Human Rights Act’s terms, and would likely do so to thumb their noses at Westminster. In any event, the ECHR would still be able to apply directly to cover legislation and decisions by Scottish and Welsh ministers because of the terms of the devolution legislation.

Which brings us to Northern Ireland, which, as ever, is even more complicated. Under the Good Friday Agreement the UK Government agreed to the ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. The Human Rights Act itself is immune from alteration by the Assembly (s.7(1)(b) Northern Ireland Act 1998). As Aoife O’Donoghue and Ben Warwick argue in a timely article in the Northern Ireland Legal Quarterly (see also here), if the Act was repealed then just as with the other devolved legislatures, ‘Northern Ireland could introduce an order that implements the ECHR for Northern Ireland alone’. The problem is that with the main Assembly parties at loggerheads on rights and equality issues (particularly around the Ashers Bakery case) and with the Unionist parties always ambivalent towards human rights, no such legislation would be forthcoming. Repealing the HRA as it applies to Northern Ireland would therefore undermine a key element of the Agreement. Oddly enough the Human Rights Act was merely intended to fulfil the role of placeholder legislation whilst a Northern Ireland Bill of Rights was drafted, but the inability of the Northern Ireland political parties to reach an agreement over such legislation now means that the Human Rights Act will likely soldier on in this corner of the UK at least.

The smart money would therefore appear to be on some form of compromise by which the Human Rights Act is repealed insofar as England is concerned, but remains in place in the remainder of the UK. Martin Howe QC, a key behind-the-scenes figure involved in drafting the Conservatives’ proposals is quoted in The Guardian as saying that ‘you could have significantly different standards of human rights across the UK’. The problems with attempting to impose a British Bill of Rights across the UK, although not insurmountable, would turn a relatively straightforward “win” for the Tories into a protracted fight. Any effort by the Conservatives to go further, and withdraw from the European Convention altogether, would likely descend into a pitched constitutional battle between the UK’s legislatures.

Written by Colin Murray

Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law. You can contact him at colin.murray [at] ncl.co.uk or (+44) 191 2225805

Image from Stop Revenge Porn Scotland Campaign

Image from Stop Revenge Porn Scotland Campaign

Dr. Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law, Gender and Sexuality 

Chris Grayling, the Justice Secretary, has announced that the Government is ‘very open to having a serious discussion’ about the problem of revenge porn, in response to the call from Maria Miller, former Culture Secretary, for a change in the law to address the ‘appalling’ practice ( Justice Questions, House of Commons, 1 July 2014 : Column 745). This ‘appalling’ practice, whereby men (most commonly) distribute intimate and sexual images or videos of women (usually partners or ex-partners) on the internet without consent, is becoming more prevalent in the UK. And the effects of revenge porn upon its victims can be significant. Media reports highlight that victims have experienced personal and professional degradation and humiliation which have, in some cases, led to suicide.

The gender dimensions to revenge porn cannot be ignored. First, revenge porn is typically not an isolated abusive incident in a relationship but rather is one – albeit relatively new – method of control and violation in a wider context of domestic violence (see Scottish Women’s Aid’s Briefing Stop Revenge Porn on this point). Secondly, the fact that it is by far more common for men to distribute images/videos of women and girls contributes to and entrenches the sexual objectification of women, the sexualisation of young people, and gender inequality more generally. As such, it is important that the Government address this growing problem. It seems that the way it will do so is to consider creating a new criminal offence, or amending existing sexual offences to capture all instances where pornography is distributed without the subject’s consent. However, while further criminalisation may be helpful, the focus should be on preventing revenge porn by better regulating internet behaviour, which is a dimension of resolving this developing problem that has typically been absent from public discussions and proposed responses.

It is fair to say that current criminal laws do not properly capture revenge porn, although some can and have been used to tackle the problem. For example, victims can pursue a criminal and civil case against the person who uploaded/published the image for harassment (Protection from Harassment Act 1997). Or, where the victim is a child, the published, distributed or possessed image/video will be classed as child pornography which attracts criminal liability (Protection of Children Act 1978, s 1; Criminal Justice Act 1988, s 160). However, current offences are not designed to address the problem of ‘revenge porn’, leading to doctrinal difficulties (eg proving a ‘course of conduct’ for harassment (Protection from Harassment Act 1997, s 7(3), (4)), and conceptual issues (for example, the offences of distributing or possessing child pornography do not capture the abuse the individual suffers). Stemming from similar concerns, new criminal offences have been created in some states in America (for example, New Jersey, Texas, Utah, Wisconsin, New York, Maryland, and California), Israel, and some Australian jurisdictions, while other countries, such asCanadaBrazil, and Japanare currently considering similar solutions.

Nevertheless, there are significant limitations to existing and new criminal offences where the remedy is directed at the person responsible for uploading the image. It is likely that in many cases it will be difficult to prove that a particular individual posted the image or video on the website, meaning a criminal or civil case may be unsuccessful. Evidence is lacking to prove that crime and punishment have a deterrent effect; and in relation to gender-based crimes, scholars and activists have argued for a long time that law reform alone is insufficient to prevent such crimes. Another point here is that women will be reliant on police taking complaints of revenge porn seriously, and responding appropriately. But as with rape, for example, it is likely that victim-blaming attitudes will influence decision-making in the criminal justice system, inhibiting the effective implementation of laws addressing sexual abuse. The view expressed by Hunter Moore, founder of IsAnyOneUp, a (now obsolete) revenge-porn website, may be shared by others:

‘Oh the girl crying because she sent titty pics to some fool who put it on the internet … Why would you protect those people… How about this, you take responsibility for your actions and stop pointing the finger at other people.’

This is not to say that further criminalisation is unnecessary or futile, but it is to say that, unfortunately, it is going to be of limited value. What needs to be paid serious thought is the possibility of regulating and creating remedies against the websites which host and propagate the images.

Regulations and remedies targeting websites are central. The websites in question tend to be run for profit – typically through the display of advertisements – and are often extremely profitable, with revenues in the order of thousands of dollars per month. They are, in other words, exploiting these images – and their female subjects – for their personal financial gain. For instance, according to Moore, his website was earning around $10,000 per month from advertisement revenue. Equally, from the point of view of the victim, what is far more important is preventing websites from publishing these images, and providing a quick and easy ‘take down’ process to have them removed. Consequently, the websites sometimes advertise takedown processes – but they often charge hundred of dollars for the service, and are frequently run by the site owners themselves.

The contrast with commercial and intellectual property law is stark. Regulations and mechanisms in these contexts are directed at the website hosts and which are focused on making it simple to compel websites to remove infringing material. As such, it needs to be investigated whether similar mechanisms could be used to tackle revenge porn. In addition, as it is spread across the world wide web, an international conversation is needed. The Coalition Government focusing on localised criminal offences is insufficient. The message must be conveyed that a wider view of the problem and solutions are essential.

 

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Derek Whayman (PhD  Law, Newcastle University) d.r.whayman@newcastle.ac.uk

Supreme Court TV has been live since May 2011, running on the same infrastructure that brings Sky Sports to your computer or mobile device. But does it have any practical use to the student of law? If the sheer number of members of the public coming in but leaving quickly is anything to go by, it’s a minority interest. Moreover, court hearings have a reputation for being slow and difficult. Some would even say boring. But sometimes, a case will come up of intense interest to the would-be viewer. After all, the test for permission to appeal is whether the case is of public interest or if it might ‘raise an arguable point of law of general public importance which ought to be considered by the Supreme Court’. In other words, if it is one’s hobby-horse.

That attracted me to the appeal of FHR European Ventures LLP v Cedar Capital Partners LLC. I watched the 2½ day hearing from 17–19 June 2014, before an expanded, 7-judge court on account of its importance, naturally. Yes, it is possible to take a number of useful things from it, both in terms of legal argument, strategy, as well as – perhaps – how the Court is minded to develop the law. To assist anyone who is thinking of using this resource, here follows a report, guide and analysis of this experience.

FHR v Cedar is the latest instalment of the long-running saga as to whether the claim for taking a bribe or secret commission in breach of fiduciary duty yields a personal or proprietary remedy, following Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd, A-G for Hong Kong v Reid and Lister & Co v Stubbs (1890) 45 Ch D 1 (CA). Issues included whether a proprietary remedy was available at all, under what circumstances, and whether there was a personal disgorgement remedy in its absence. By ‘disgorgement’ what is meant is access to profits made by the wrongdoer above and beyond the principal sum extracted, for instance by investing the bribe profitably. The proprietary remedy does this but has other ramifications.

The secret commission in question was the €10m taken by Cedar when brokering the sale of a hotel to FHR. FHR were upset, supposing very reasonably that they had paid €10m more than they ought to have, and wanted the €10m for themselves. A proprietary remedy would make it much easier to enforce the judgment already obtained – FHR had already won the trial on liability.

So, what can one expect?

First, you need to know the applicable law inside out. You do not have the written Case (on which see Paterson) and the advocates will not take you through their arguments fully. Or they might try, but there is so much judicial intervention that they will not be able to. Ideally, you should be able to name cases before they do. You will see debates over particular steps in the arguments. So you will not understand these debates unless you already know the arguments.

Second, you might well find that both sides are shy of some arguments. Matthew Collings QC, for Cedar, insisted that there should never be a proprietary remedy. It was contrary to principle, he said. Christopher Pymont QC, for FHR, argued that when the wrong was within the scope of the engagement a proprietary remedy was automatic – and since the duty was to get the best price, this was the case. Yet in Sinclair – and repeated constantly by the justices in this appeal – the court wanted to develop a principled way to decide the matter. Presumably both sides were scared that the court might adopt a more nuanced test they advanced and then find against them on the application of the facts. The client wouldn’t be pleased. Indeed, Lord Sumption complained that ‘we might go off on our own frolic.’ So it’s down to us academics to map the law. The court was very interested in the articles by Roy Goode, Sarah Worthington, Peter Watts (2012) 129 LQR 527 and was pointed to James Edelman (2012) 129 LQR 66.

Third, you might want to facepalm on behalf of the defendants’ learned counsel. If what you are arguing for (no proprietary remedy) would rob the court of its power to disgorge profits from wrongdoers in other cases, do remember to think bigger than the current case and work very hard to demonstrate that such an remedy exists. Mr Collings QC evaded the issue in the face of constant demands to discuss it and eventually got down to business during his right to reply. He relied on a single case, Tyrrell v Bank of London (1862) 10 HL Cas 26, 11 ER 934. It is, however, extremely unfortunate that in the more recent Court of Appeal judgment in Novoship (UK) Ltd v Nikitin, handed down after the hearing, many more supporting cases were mustered in support of this remedy. Oopsie. Opportunity missed.

Fourth, you can enjoy watching some judicial feuds. Lord Millett, now retired, was manifestly unimpressed by Lord Neuberger’s judgment in Sinclair v Versailles and wrote a spectacularly grumpy article criticising it. Lord Millett then arranged for some materials (from Maitland’s lectures) to be presented by the advocates. Popcorn.

Fifth, you can pick up some advocacy tips. Mr Collings QC employed a stratagem when advancing a point which really did not impress the court. By this I mean the point did not impress the court. It was from the case of Bulkley v Wilford (1834) 2 Cl&F 102, 6 ER 1094 which was flagged as important by Lord Millett. When a justice asked sharply ‘Why did Lord Millett think we needed this?’ Mr Collings QC replied ‘What Maitland says in his lectures supported by my learned friend’s approach. We suggest no use.’ Tricking the court into rubbishing the other side’s points is entertaining, but perhaps a very risky strategy. On the other hand, see point four. Lord Neuberger appeared to wake up: ‘Is this the Millett bundle?’ he replied sardonically. Ire deflected. More popcorn.

Sixth, you might find some useful arguments. A genuine debate raged around the Tyrrell case. The judgment, like many of the time, is characterised by an absence of legal reasoning. Therefore the modern lawyer is forced to ‘reverse engineer’ the judgment and order via inductive reasoning to determine the applicable principles. Mr Collings QC insisted that the monies repaid were in respect of a personal remedy of disgorgement. Mr Pymont QC insisted that they were ‘netting-off’ costs the defendant was allowed (what is often called counter-restitution).

Seventh, you can find solace in judicial humour. If, like Mr Pymont QC, you advance cases from 1805 (Ex p Bennett (1805) 10 Ves Jr 381, 32 ER 893), no matter how gingerly, you can expect comments like ‘During the Napoleonic wars’ (Lord Mance) followed by laughter. Better to make the justices laugh with you, not at you, though. Try to find something like Carter v Palmer (1842) 8 Cl & Fin 657, 8 ER 256. There, Palmer was burdened by an expensive debt in the form of a bond. He wished to obtain a settlement of it in order to escape the high dividend payments. Palmer engaged Carter, his attorney, to buy the bond as cheaply as possible for him so he could redeem it at low cost. Well, Carter did buy the bond as cheaply as possible – but for himself, and then sued Palmer for the dividends due. With friends like this, eh? What a complete … constructive trustee.

Eighth, you might not have to wait as long for judgment as with other controversial cases. For instance, it was 14 months from hearing to judgment for Foskett v McKeown. In FHR, judgment was handed down on 16 July 2014, less than a month after the hearing ended, or to put it another way, the morning after this blogpost was apparently finished. A proprietary remedy was awarded, so FHR won in the end. Lord Neuberger apparently overruled own judgment in Sinclair (para 50). Maybe Lords Neuberger and Millett can now kiss and make up.

And that’s pretty much it. The most part of the hearing was the rehearsal of familiar arguments and an inordinate amount of judicial intervention. To quote learned counsel elsewhere: ‘why would I want to go to London just to be mugged by seven old men?’ The rewards are there, but they are scanty. The nuances and subtleties keep you going, but these are real insiders’ rewards. Don’t try to take anything from Supreme Court TV without being prepared – being very prepared. It won’t give away anything easily. On the other hand, once prepared, it is possible to see legal argument in action that is very relevant to writing a good essay. Just remember to write more formally if you decide to take ideas from this piece – it’s a gossipy blogpost, not an academic essay.

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– Phuong D. Nguyen (LLB Law, Newcastle University) p.d.nguyen@newcastle.ac.uk

Undoubtedly, competition law is moulded to assure the process of competition in terms of consumer welfare maximisation and the efficiency of the market. Accordingly, on the process of achieving a perfectly competitive market, firms are required to properly compete with concentrations on price, quality, and innovation of products and services. However, there has been no subsistence of ‘perfect competition’ in several developing countries due to the failures of the market. Firms ‘in concentrated industries’ or firms ‘protected by barriers to market entry’ have a proclivity to exploit their market power to arbitrarily constrain the productivity, raise the price, or reduce the quality of products to pursue their monopoly profits. Evidently, such conduct happens in different geographical markets and jeopardises the stability of the market, and consequentially, consumers’ benefit. Developing economies are the most susceptive subjects. Hence, in resistance to anti-competitive conduct and forestall in its detrimental impacts, the adoption of a robust competition law regime in the realms of both developing and developed countries has been proposed. Nonetheless, in practice, it is apparently difficult to implement a general competition law regime due to a vast array of disparities between developing and developed countries. Unfortunately, in this essence, some challenges would be inevitably engendered towards developing countries

The embryonic development – whether the convergence emanated from the actual desideratum of developing world?

Recently, there have been a large number of issues derived from microeconomic conducts triggering repercussions towards domestic markets and the global market. Thereby, such behaviours nowadays have not been the ‘prerogatives of sovereign nation states’ but viewed as ‘legitimate objects of attention by the international community’. Accordingly, there is an extraordinary spread of competition law witnessed in developing countries adopting, or attempting to adopt, competition policy to ameliorate the adverse impacts that stemmed from the explosion of ‘monopolisation’ and ‘international cartels’ in the 1990s. In the previous period, the preciousness of competition and competition policy had not been the pivotal concentration of the developing world. However, nowadays, due to the propensity of economic transformation, many developing countries have modified their economies based on the economic theories of comparative advantage and liberalisation, replacing ‘centrally planned economies’. Correspondingly, competition has taken into account the need of progressing competition policy with appropriate facilitation.

Nonetheless, this trend has been criticised as immature and ‘simply a response to international pressure’. The beginning of the developing world’s conversion into the developed world mainly arises from the requisite of counteracting devastating effects generated by microeconomic conducts of local individuals, households and firms. Thereby, the pressing of globalisation has persuaded policy makers of developing countries to enact competition laws, rather than the competition laws themselves being inherently formed on the basis of the real growth of developing economies.

Divergences between developed and developing world causing obscurities in achieving a general competition law regime.

There is a plausible existence of a convergence between developing countries and developed countries reflected by the International Competition Network (ICN) in its report on the Objectives of Unilateral Conduct Laws. According to the report, both developed and developing states ‘are common to the competition regime as a whole’ to systemise an ‘effective competitive process, enhancing efficiency and protecting consumer welfare’. However, it is stated that ‘Spokespeople for developing countries often express the need for an antitrust paradigm different from that of the developed world. Spokespeople for the developed world tend to argue for universal norms, which may apply differently when facts are different.’ Thereby, in spite of attaining ‘basic’ goals of competition law, it is still a huge challenge for developing countries to reflect the aims and targets of competition law equivalent to those of developed countries. Since the developing world and the advanced world are not regarded as being on ‘equal footing’ in the level of development. The competition law system of the developed world has been entirely fashioned and progressed pursuant to competition-specific considerations and patterns in the line with international agreements and general growth of international economy whereas the developing world arrives at the urgency of globalisation through international commitments.

On the other hand, regarding the ICN report, ‘ensuring an effective competition process’ can be regarded ‘either as a goal as such or as a means to achieve other goals such as consumer welfare and efficiency’ as it has been recognised by 32 out of 33 agencies from both developed and developing countries as ‘a stand-alone’ to ‘achieve different and related competition law goals.’ Hence, the aspirations of ‘ensuring an effective competition process’ might be variedly discerned in developed and developing countries. In addition, with regard to conceivable vindications of convergence, it might be argued that the onset of competition law in developing countries is merely ‘the cut and paste’ strategy or legal transplant’ from developed countries to developing countries. The competition policies of the developing world have a Western-approach but they have different purposes in the context of competition. For instance, the competition policy of South Africa is on the far side of economic objectives when pondering non-economic objectives with the aims of ‘correcting social inequalities resulting from its history, promoting employment, advancing social and economic welfare, ensuring to SMEs an equitable opportunity to participate in the economy and increasing the economic opportunities of historically disadvantaged persons’. Another example is the Chinese Anti – Monopoly Law (AML), setting up benchmarks to focus on ‘national economic development’ with an uncertainty of how this ‘open criteria’ shall be interpreted. Accordingly, this has resulted in the issue of overriding nationalist protection of China in some cases, typically, in Coca Cola/Huiyuan; Mofcom, the Chinese merger control agency had blocked the merger between Coca Cola and Huiyuan with the core concern of consolidating domestic beverage manufacturers. Nonetheless, this decision has received heavy denunciation regarding its substance and the absence of translucency as argued in The Economist ‘The most benign interpretation of the rejection…is that it reflects a political response to critical comments by America’s new administration. The more worrying interpretation is that, even as China publicly urges other countries to commit to open their markets to Chinese investment and trade, it is imposing yet another barrier to outsiders.’

On the other hand, there has been an inclination of several developed economies demanding that developing countries adopt competition policy as a prerequisite for entering into bilateral free trade agreements. Thus, this might put the developing world in an exigent situation with more harm than good. The first obstruction for developing countries lies inherently in the role of government in the economy. Some developing countries’ governments may go beyond and extend their interference such as in cases of expropriation – stringent trade barriers, which might potentially pose risks towards the economy – instead of leaving economic affairs to be operated by private corporations according to principles of the market. Typically, the lack of credibility of commitments in both ‘vertical’ and ‘horizontal’ has entailed market failures, low standards of equilibria and output. Additionally, the reaction of major developing governments is trying to reduce by ‘self-help’ remedies which are superficially anti-competitive when the government’s capability of administration is circumscribed as its judges and regulators are prone to pressure and corruption.

In respect of governance, the lack of independence of competition authorities subsisting as ‘investigating’ authorities has been mirrored in several segments of the developing world. In particular, those organs in some developing countries have short-time proliferation and have insufficient powers to efficaciously exercise their duties to reach legally binding decisions. A good example is Conselbo Administrativo Defensa Economica (CADE), the competition agency of Brasil, which is accountable to investigate cases of cartel and abuses of dominance. Albeit the advent of the Competition Act, the Law 8884/94 demonstrated the conception of autarquia federal to dictate that CADE was dependent, some provisions of the law have sabotaged the independence of CADE. Specifically, its existence was merely two years, ostensibly short, which accordingly pressed it to seek political support in terms of re-designation. Additionally, CADE also received assistance from Economic Law Office (SDE), part of the Ministry of Justice, and a Secretariat of Economic Surveillance (SEAE), part of the Ministry Finance. Thereby, it is readily understood that member of the authorities like CADE are politically assigned, and obviously have standard duties falling outside the field of competition law.

In addition, the significant peculiarity of convergence in competition law is indicated by the extraterritorial assertion of jurisdiction with plentiful vindications of this appeared in the major parts of the advanced world such as EU and the American regimes. Notwithstanding, there are inherent difficulties derived from the heterogeneous enforcement, externally-based information gathering and the refusal and none of cooperation from foreign firms and foreign competition authorities. For instance, in the case of Genco/Lonhro, two South African undertakings were proscribed by the Commission for their dereliction of dominant duopoly (collective dominance) in the markets of platinum and rhodium. However, in Gencor v. Commission, Gencor alleged that the regulation of the Commission could not applicable to economic activity conducted in a non-member country and granted by the government of South Africa in addition to the contravention of the fundamental principle of territoriality pursuant to international law. In addition, the Commission did not have jurisdiction under the EU Merger Regulation to prohibit activities in South Africa which, furthermore, the Government there had approved. Moreover, even in the developed segments such as EU and the USA, a contradiction in decisions by the competition agencies is unavoidable. A good example is the case of Boeing/McDonnell Douglas merger which represents a conflict in the co-operation agreements in practice. More specifically, in this case, the FTC reached a majority in deciding not to oppose the merger between the two undertakings, while the European Commission seemed likely, at one point, to prohibit it in its entirety.

It is necessary that with the growth of ample transnational transactions, the desideratum of a general competition law is demanding. However, on the basis of mentioned analysis and evaluations, when adopting such a competition regime, the developing world as the latter is evidently confronting with hindrances in comparison to the former, the developed world. Hence, this still seemingly surrenders and impedes the adoption of a sturdy competition policy mechanism in the both advanced and developing countries.

 

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– Harry Perrin (Solicitor)

Birth choices: mothers, medics and social services Harry Perrin (Solicitor) Standing up for yourself is not easy when you are lying on your back, and even the most robust people find it at least a little uncomfortable asserting their position to perceived authority figures. Women in labour face just this challenge in respect of the treatment they receive (or not) and the procedures to which they are subjected during birth; likewise for antenatal and post-natal treatment.

Know this: your consent must always be sought before any medical procedure is performed on you (Article 8 of the European Convention on Human Rights (ECHR) – right to private life, which the courts have interpreted as encompassing the right to physical integrity and autonomy).

And know this: the court has ruled that you have the right to refuse treatment even if doctors regard your decision as ill-advised (Re MB, 1997), even if it might lead to your death, and even if it might lead to death or serious harm to you or your baby (St George’s Healthcare Trust v S, 1997).

This might seem extreme at first glance but it is an important safeguard. Healthcare professionals on the ground might think one course of action is the right thing to do; the mother might think differently. This could apply to antenatal care (for example, attendance at check-ups and scans); during labour (consenting to a lumbar puncture or having an unassisted birth) or post-natal care (such as inoculations or other treatment). A court could try to determine the issue but, when the mother is in labour, there would obviously be no time. Just to concede to the doctor as the ‘expert’ would violate Article 8. The only safe position is for the mother to have the final say; in law at least, in theory. In practice, lines become blurred as these rights must operate alongside the statutory regime of safeguarding.

Healthcare professionals should inform social services if they reasonably believe that a child will be at risk of significant harm once it is born (Children Act 1989), but when this duty is used as a ‘threat’, to try to coerce the mother into allowing a particular treatment or procedure, it becomes less about statutory safeguarding and more about the undermining of legal rights. It is unclear whether the practice of doctors ‘threatening’ mothers and families with a social services referral before, during or after labour is widespread; it would be difficult to collect the data. My evidence is all anecdotal, but Birthrights, an organisation seeking to protect human rights in childbirth (on whose website I have gratefully relied for the law), clearly believes it is a danger sufficient to warrant specific advice to mothers.

The healthcare professional in this context may seek to rely on the mother’s refusal to undergo this or that procedure as evidence that she would be unable to act in her child’s interests once born. It is perhaps too flippant a retort to say that the mother’s choices were related to the birth process and thus would not be relevant once the child was born, but this does not put the doctor in the right. The healthcare professional who makes the ‘threat’ of a referral would presumably be seeking to change the mother’s mind, to make her make the ‘right’ decision. The threat, however, actually has the opposite effect: it makes the mother’s decision less reliable, less ‘right’. Consent is not freely given if it is influenced by a threat, and a doctor who carries out a procedure on a person where he/she knows (or should know) that consent has not been given freely is committing a battery and potentially a violation of Article 8 ECHR.

Moreover, it is by no means the case that a mother’s choice not to ‘co-operate’ with medical professionals will or should automatically warrant a referral to social services. Such a referral is only appropriate where the choice indicates a risk of significant harm to the child once born.

During labour, it may not be particularly easy for the mother or her birth partner to remember Article 8 ECHR, Re MB, St George’s v S and the Children Act 1989, less still to cite them in a coherent and compelling way; and this would depend on the healthcare professionals’ willingness to listen. The most powerful tool a mother or birth partner can have may simply be the confidence which comes from knowing their rights and knowing the procedure which would actually ensue if the threat of a referral to social services was carried out. The power of such threats lies in the unknown; in the imagination of the fearful mother who thinks the involvement of social services will equate to her child being taken away and placed into care. It is not so.

Firstly, the medical professionals making the referral should obtain the consent of the parents to do so unless seeking consent will place the child at risk. Within 10 days of the referral, an Initial Assessment should be carried out to gauge whether the child is at risk of significant harm: stage one in terms of social services’ continued involvement, should matters even make it this far. Should a finding of risk of significant harm be made at this assessment, the next stage would typically be an enquiry under section 47 of the Children Act. The enquiry is based on a ‘Core Assessment’, an information-gathering exercise to which relevant professionals contribute along with, crucially, parents and family members. It is the second stage in terms of social services’ involvement. The next step is a Child Protection Conference at which the information is analysed and any proposed actions set out in respect of keeping the child safe in the future: stage three. Bear this thorough process in mind when you are weighing up the likelihood of a referral leading to care proceedings because you did not want an ultrasound, had an unassisted birth, refused a lumbar puncture, or turned down inoculations. Will exercising your legal rights in ways such as these – in and of itself – really clear these hurdles and convince social services to apply to have your child taken into care?

Ultimately, only a court can make the decision to remove your child or take away your parental responsibility. A social worker cannot, and a doctor certainly cannot. There is a principle in family law known as the ‘no order principle’, in which the court must be convinced that making an order in respect of the child is better for him/her than making no order at all. Ask yourself the question again: will exercising your legal rights before, during or after labour really – in and of itself – convince a judge that making an order after the event would be better for your child than making absolutely no order at all?

It is filled with jargon and possibly scary, but it is worth knowing the process which would follow if a threat to make a social services referral were carried out. It indicates that some such threats will be empty; and that those that are not will not easily lead to care proceedings (at least not without other evidence which might indicate that you cannot care properly for your child). It reveals the social-services-equals-child-in-care equation which causes such fear, and from which such threats gain their power, as the misapprehension it is.

Fear during labour comes from lack of knowledge. This is as true for the physiological and spiritual sides of birth as it is for the legal. Empowerment and confidence come not from citing court cases or European legislation, but from the mother and her birth partner knowing their rights. Labour is no time for lying down.

Harry Perrin is a lawyer who helps people, organisations and businesses understand their rights, make informed choices, and achieve their goals through the best possible means.

Any views expressed are those of the author and should not be taken to represent those of his employer.