 Hi everyone, welcome to the GRS GoDORP and GRS webinar series. My name is Linda Pelham, I'm the chair of GoDORP and this series, Help I'm an Accidental Government Information Librarian, is brought to you by the Government Documents Roundtable and the North Carolina Librarian Association for Research section. In the future, GoDORP will be taking over the webinars and the organizations are working together to bring you this series. So thanks for coming. You what we are in the webinar mode for this presentation. So we do encourage you to use the Q&A or the chat box for communicating with our presenter. I don't know if you have one but if you do use the chat make sure that you are choosing all attendees and panelists so that we can all see your questions. If you have questions specifically for me, feel free to choose my name you should be able to do that. If there are technical issues, please email me at LMK277 at Cornell.edu and we'll try to guide you through some solutions, but in the worst case scenario we are recording this session. And we will have it up on YouTube, our YouTube channel as soon as possible. So here are some plans for new webinars coming up. You will see our topic for April 22 is the World Trade Organization. And that is in conjunction with ACRL politics policy and international relations section. So we're really excited to have them work with us on that one. And then in May, we have someone talking about researching state legislatures. They're coming in the fall, but if you have ideas for presentations or presentation presenters or presentation topics, please let me know. We are always looking for new topics and new presenters or old topics and old presenters as well. So please just get in touch with me if you have ideas. And I'll put a link to our YouTube channel with our past presentations as soon as possible. And I hope that you are a YouTube user and you are free to use any of our past recordings for your work. And you can link to them on live guides, you can do all of that if you would like. So today's webinar is researching law in Europe, and our presenter is Howard Carrier, who has presented with us a couple of times before. He's a student librarian and liaison librarian to the departments of justice studies and political science at James Madison University. Although his work in scholarship is principally in the areas of copyright and fair use, he maintains strong interests in the law, the law of the European Human Rights and legal systems and structures. So we're going to switch over should have access to show now. Okay, thank you very much indeed, Linda. I'll go ahead and share my screen in just a moment. I'm assuming everybody can hear me all right. There's no technical issues of that source. Okay, Jolly good. Well, first of all, I'd like to thank you all for coming today. For a couple of reasons. First of all, taking time out of your busy work days to sit and listen to a talk on researching law in Europe. And secondly, because I imagine you're just like me in a completely zoomed and WebExed out. So, you know, there's times in the normal run of things where a WebEx meeting can be something to look forward to when you sat through hundreds of them in the last 12 months. It's a little bit more arduous. So thank you very much indeed. Let me share my screen and pull up the PowerPoint and then as I say, as they say, I will begin. So, first of all, the PowerPoint. There it is on my screen. Let me make sure that you can see it on yours. All right. I will go ahead and put up the PowerPoint and begin. So I'm guessing you can see the PowerPoint if you can't, please, please go ahead and tell me now otherwise today's talk might be somewhat lacking in illustration. We can see it. Good. I'm pleased to hear that. Thank you, Linda. So yeah, researching law in Europe. So a couple of things about this. First of all, I've done a couple of these in the past, as Linda said, in fact, I've done three. I did one some time ago, quite a long time ago on researching British law. And then another one on researching European law, particularly focused on the European Union. And then relatively recently, I did one on Brexit, the great British desire to take aim at your left foot and pull the trigger. Today, this is going to be a little bit different. And I apologize in advance that this is not what you expect. I was giving some thought because those are still valid. I know they've been recorded. I went back and had a little look at them. Recently, some of the database interfaces have changed and some of the functionality has changed a little bit. But those were focused very much on finding things. This one today is a little bit more theoretical. And I'll explain why. I was sort of looking around for an analogy to explain this to you. And the best one I can come up with is this. In the room where I am sitting, where I've been sitting for 12 months, it seems, there are a number of things. There is Shelby the Beagle in her crate, who was appalled at being in her crate. Ordinarily, if this was just a faculty meeting, I'd let her out to destroy things or try to stop her destroying things. But she's safely contained for the next hour. The other thing that exists in great preponderance are electric guitars. Because like any middle-aged man approaching his mid-life crisis, indeed, cresting the wave of his mid-life crisis, you go back to the things you did when you were young. And if you're struggling to persevere with developing as a guitarist, you naturally just buy more of the things because somehow you'll subliminally acquire that expertise. Think of it like this. I'm a reasonably competent guitarist, but I know virtually nothing about musical theory. What I know could comfortably fit on the back of a postcard. And sometimes that's not a good thing. You kind of encounter bumps in the road, hurdles, which would be more easily overcome. If you knew some musical theory, you know, I can tell you that the F sharp minor pentatonic sounds very nice over an A major chord, but I can't tell you why. And so today it's a little bit looking at the underlying theory. There will be some pieces locked together. There will be some description of finding. There will be some demonstration of relevant databases. But what I'm really trying to do is lay out without being turning into a constitutional law lecture. The underlying theory, because I think for those who don't know too much about this, the underlying theory might be quite helpful. And I also say this because when I first arrived in the United States 16 years ago, having trained as a lawyer in the United Kingdom, I was thinking, well, how much different can it be? You know, they're both common law systems. Common law is common law. You know, what difficulties could possibly exist without understanding or even beginning to realize until I sat down in Chapel Hill Law Library as I was finishing off a PhD I wasn't desperately interested in, which never actually got finished. I went to Sills and became a librarian instead. But suddenly realized that U.S. law is codified. The British don't do that. Common law is common law. It isn't always. So, you know, a big part of this has been inspired by my own journey, understanding the legal structure of a different country. So what is the webinar about? Well, putting together or putting the pieces together of researching law in the quasi-federal European landscape. I'll talk quite a bit about this quasi-federal idea. It's pretty intrinsic to, again, how these pieces are put together. Some of the different legal models to prevail in Europe and how it affects research, and particularly how it affects the type of research I'm going to be talking about today, which is primarily how intergovernmental organizations have intertwined themselves within domestic legal systems in Europe. Using some noteworthy examples from European jurisdictions to highlight these ideas. So, yeah, useful things to kind of amplify these. I'll point to some of the key research tools, but those are really the subject of the previous webinars. So in the Europe one, I went to EULEX. I went through InfoCure here in great detail. I shan't be doing that today other than to point to specific examples. Attempting and failing not to make this too UK-centric. Yeah, I set off with this grand idea of, you know, and there will be reference to other European countries' legal systems. But ultimately, you know, both for language reasons. I have some facility in German, schoolboy French as they say, and some proficiency in English, I think. There is that barrier. But also the fact that it was easier perhaps to make some of these points linked to the UK system. And when I say this, you know, when we delve into this, Brexit has not drawn a complete line between the UK and Europe, despite what some of its more vociferous adherents might be hoping for. I'm thinking about Europe both in terms of simple geographic terms, as well as the jurisdictional issues that arrive. When we get to the EU section of this, you'll see, as I'm sure many of you are already aware, that EU law still has a very heavy presence within UK domestic law. And then just discussing some thoughts about the post-Brexit situation. Where did the idea come from? Well, as I said, ironically enough, it came from teaching American university students about their own legal system in the United States. I taught a classical Justice 301 last fall. In case into why I'm not a law librarian, I trained as a lawyer and then I came one country and then became a librarian in a different country. And my work today, as Linda mentioned in her introduction, a generous biography, is that I'm a copyright librarian. So apparently all those years in law school weren't wasted. I don't think I could do that as well without having some sophisticated understanding of legal systems and structures. But going back to the class, what I observed the novice students is that they really struggled with this relationship between federal and state law in the United States. As we approached the question of how to become a legal scholar, how to read a case, how to read a statute, how to think about sources of law, and then more importantly to think about how those sources of law interplay with each other in a country with multiple jurisdictions like the US. They really struggled with this idea of the relationship between federal and state law. Now I hasten to add that nothing I'm about to show you is recycled from teaching a 300 level Justice Studies class. What I've tried to do is accept that there's people, perhaps in this webinar today with varying degrees of experience from people who are perhaps new to researching law here in the United States through to those who are experienced and want to learn a little bit more about approaches within Europe. So with all these things it's a little bit hard to gauge them. Some things you feel can be quite basic and some things you worry that you're cantering over. If things are complex in a federal legal system or people find them complex, it's likely that they're even more confusing in a quasi-federal one. So I'll bear that in mind as I go along. And yeah, they struggled with stare decisis, the idea of a precedent, and again in terms of federal and state law. Because of that and because one has to be realistic about what can be achieved in an hour long webinar, I'm going to focus very much on case law today rather than statutes. When we get to talking a little bit about the legal systems perhaps that will become more obvious. But in terms of finding things today and discussing them you can assume that this is a webinar about case law. Case law has evolved just as a word in the last few decades. It always used to be two words then it became hyphenated. The legal dictionaries are now compounding it. So case law as its own unique entity if you will. And I'm beginning with the premise that scholars of American law however sophisticated are used to dealing with a codified common law system. And that is highly unusual. As I said it kind of blew my mind when I arrived in the United States. I thought these people are remarkably sophisticated because it doesn't exist in England. It's easier now that we have west law and Lexis nexus and things like that to find cases decided under a particular statute. But years ago it wasn't. And if you like that codification has really been done by legal database providers rather than by you know the US revision council revision like it happens in the United States. It's not done by a government entity. You could do it to some degree through halls for these and things like that. But it was hard to do. In America it's always much simpler to find what is the law of the land. You're not plowing through pages and pages and pages of statutes. You're going to the mind usually important bits that have been pulled out and presented in the US code. And then you can relatively easily through those legal tools and find cases decided under those provisions. So that's what I'm assuming that people are used to. I accept that this could be an international audience. If there are European law scholars out there they're probably going to be throwing virtual fruit and booing as I progress. But you know we'll start with that basis. So lessons from a truly federal nation. In the United States it's relatively simple because I appreciate that there are entire monographs devoted to the question of whether or not the United States is a true federal system. But by any measure and by any objective measure it is. And you could point to the supremacy clause that makes things relatively easy. Article six paragraph two tells us that the federal constitution and federal law generally takes precedence over state laws when there is conflict of law the federal law prevails. This is the method or the lesson of true federalism. So why did the students find it so hard to understand? Well we can also look a little bit to the obligation of state courts under the supremacy clause. And this is actually very relevant to what I'll be talking about in the European context in a few minutes time. State courts are bound to give effect to federal law when it is applicable and to disregard state law when there is a conflict. So the supremacy of federal law in this federal system is arguably not under any serious doubt. In those instances in a common law system in the United States like the United States or specifically in the United States in other words where federal law doesn't provide but state law does the eerie doctrine as beloved or maybe not beloved of 1L law students throughout the nation as they begin their JD programs the eerie doctrine is consolidated or refined in Hanuman plumber is pretty straightforward where the federal law does not provide and the federal courts are sitting in judgment they simply do not create judge made law instead they look to state law state practices as is stated in Hanuman plumber and this appears in certain circumstances it's not universal but we're thinking in terms of where there is diversity a venue if you will where state laws collide there are also some questions of quantum related to this as I believe but in other words you don't simply supplement federal judge made law where existing state law exists in the common law or indeed within statute so in this sense this is a model of federalism which is relatively easy to understand we talked about Stari decisis which they found quite confusing in the context again of the relationship between federal and state law when are the federal courts adjudicating offering judgments and opinions on the nature of state law and to what extent the state courts question or you know involve themselves in interpreting federal law ironically enough given that we are dealing with the American system this comes from Honza Brook University but it's a nice little diagram that shows the question that arises or how this can be interpreted where the courts bind themselves and on what matters you're seeing there courts being bound on questions of federal law and binding on questions of state law and the blue line that goes up from state supreme court to the US Supreme Court is significant it tells us that in those instances the United States Supreme Court is bound to give consideration to state law when it is adjudicating on those matters again they struggled with this question, this question of precedent and I wondered whether it was simply being confronted with unfamiliar legal terms and so we spent a lot of time going over this but the idea of courts being able to bind themselves and again within the federal system of the United States this I wouldn't say it's necessarily logical but it's relatively easy to understand we're looking at courts that essentially are bound by the hierarchy of the courts from the Supreme Court to federal courts in their districts and then subsequently US District Courts and we're seeing that the US Court of Appeals in the same district essentially binds itself we talked a lot about the United States Supreme Court's ability or inability to bind itself and we accept it as we will see with the European courts that once you're dealing with these constitutional courts sorry the size within that particular court doesn't necessarily mean a great deal there are many many instances of the Supreme Court essentially reversing itself from taking one position the most obvious example is Roper and Simmons and the execution of people who committed their crimes as minors or applying the death penalty to minors or minor criminals you see within a 25 year period of noticeable shift so these were the underlying problems that the students I talked about US federal law and the state law found and I wondered well that question if this confusion exists in a relatively certain federal system it must be even more confusing in a quasi federal system yes wait I thought this webinar was supposed to be about Europe it is don't worry I was simply trying to apply the lessons of 250 years of American jurisprudence to what is actually a much newer jurisdiction and that sounds rather strange but of course in terms of European style federalism you're only going back to after the Second World War and we'll be looking at the two big intergovernmental organisations that provide for that the Council of Europe and the European Union so whereas in many ways you'd had a constitutional convention in 1787 and then this whole 200 years plus of constitutional law developed under that written constitution in Europe the system is complicated perhaps both by its novelty its newness if you will and also by the fact that as we'll see in a moment we're not talking about a pure federal system why call Europe quasi-federal what's an excellent idea what an excellent question so I looked around for the first instances when this term was used inevitably it's used in the United Kingdom it's used before and around the time of the Maastricht Treaty and it's used disparagingly in the light of conversations about domestic sovereignty I can say with confidence I think well maybe I can't because I've only really lived in two countries my life has almost been split between two my early life in the United Kingdom and my later life in the United States but if there were two countries that worry about domestic sovereignty the most I would say it is those two nations so so much of this question about this concern this criticism of encroaching federalism in Europe this is for during a parallel this is Patrick Henry stuff mainly because we're in Europe it's a tri sonre but in fact I would stick with the Anglophone Anglophone sorry Patrick Henry because it is principally a British concern the term first crops up in the 1980s this is from the times good Europeans and this is the times having a good whine about quasi-fedulist arguments to the contrary this is not common sense the EEC is not a federal structure it's important to remember the evolution of the European Union from essentially a coal and steel trading organisation in the 1950s and 1960s into the EEC a purely economic community and where you see the beginnings of a single market or the transfer to a single market which stems from the original treaties of the European Union as it continues to develop the way that single market becomes more entrenched within Europe you see the evolution into the European community and that's really where this comes from this quasi-fedul term crops up a lot in the 1980s and the late and early 1990s and the reason for that is because of the Maastricht Treaty which is really sets the parameters the three big pillars as they're called or were called of the European Union a shared economic environment a single market a a shared pillar of justice and security matters sorry of security matters and defence matters and then ultimately the third pillar which is the social chapter important social provisions within Europe the social chapter which gives rise to workers' rights if you will the right to paternity leave parental leave sorry things like that so in the late 1980s and early 1990s particularly in the United Kingdom this is where this concern about federalism and quasi-fedulism really begins to come in for those who are interested in examining and creating detail the federal or quasi-fedul nation nature of Europe see this book by David Mackay he's a professor at the University of Essex designing your comparative lessons from the federal experience a little bit old but what I've tried to do throughout this presentation today is point you to some of the key resources that might be helpful if you wish to explore these conversations these questions in greater detail so here we are as we move forward you are dealing with a system that has relatively modern intergovernmental organizations beginning the process of what some see as quasi-fedulism so everything I'm going to say from this point forth particularly as we look at case law is going to be linked to this the interplay between these not top down I don't like that term and they're not federal in the strictest sense so we'll stick with quasi-fedul EU regulations and directives that have to be applied within the states directives which give states the opportunity to create their own law in such a way that meets the purpose of the European Union directive we're going to look at the Council of Europe and the European Convention on Human Rights and talk about that in some detail too yes just a reminder that we are in fact still talking about actually researching law and I promise from this point forth this isn't going to be strictly a institutional law lecture about European law so three basic premises to consider as you begin this process and I would ask you to bear these in mind as you as we as librarians as we begin the process of looking for things for students or patrons sorry it does help to have this some of this underlying theoretical knowledge I think and I think we can if you like condense them down to these the continent of Europe includes countries with common law systems and civil law systems which provides some additional consideration for the incorporation of quasi-federal rules within domestic law that sounds having written it I almost regret that it sounds awfully pompous but what it's basically saying is that we have to accept that countries do have legal systems too the ones that we used the ones that we used to in the United States so indeed the ones I am used to in both the United Kingdom and the United States and sometimes that does have a bearing on how we go about looking for things or particularly what we should expect to find let's say that quasi-federalism can arguably found in Europe from two leading other get into government let's try again quasi-federalism can be arguably be found in Europe from two leading inter-governmental organizations which as I told you are the EU and the Council of Europe and then there is the question of quasi-federalism or federalism within the states themselves and the example I'm going to point you to if I have time and I think I will at the end of this presentation is the situation regarding devolution within the United Kingdom if you like this is perhaps more of a model in some respects of American style federalism and certainly those who were opposed to the evolution in the United Kingdom have stressed this the example I will point to is Scotland and we'll talk a little bit about the Scottish Parliament the Scottish court system and its relationship with the Westminster Parliament and the Supreme Court of the United Kingdom so what's all this about different legal systems in Europe let me take a sip of water and I'll explain having pointed to a diagram from Onserbrook University to explain Starrie De Cicis and the hierarchy of the courts in the United States federal system I thought it's a pleasing irony to point to Georgetown Law Library to explain what is a civil law system essentially it's this I really like this definition a civil law system which places a greater emphasis on statutes as found within various codes instead of case law the idea of precedent Starrie De Cicis does not come into play in civil law systems as each case is based on an individual basis based against that codified law and then the other thing that typifies these and this I do rather like is that they are investigatory rather than adversarial nature in other words the basic premise is that a court is looking to ascertain if you will the reality of the situation legally based against the code as opposed to listening to compelling arguments from two quarreling counsel and perhaps being more compelled by one than the other now the thing to bear in mind with that is you are still basing it against legal sources it isn't a debate society so as we talk about looking to ratio De Cicis in cases looking at the basic premise the basic legal reasoning upon which a case of opinion is founded you can see the overlap there but what you would say is that in the civil law system in France you are dealing with what is essentially if you like the Napoleonic code if you will as adapted in common law systems like the United Kingdom and this is from the open university primary legal principles being made and developed by judges to form what is called precedent where the lower courts are bound to follow principles established by the higher courts in previous cases common law or judge made law I would ask you to bear one thing in mind when we think about the common law and it is an important distinction it is often written about in legal textbooks or legal books generally as though you are thinking about a distinction between the common law itself that which just arose from judicial precedent and statutes or codes on the other side and in fact I would say that in a modern common law system like the United States or the United Kingdom it is both you have the supremacy of the statutes the British Nigel Farage of this world would worry so much about parliamentary sovereignty would be delighted by that statement Parliament is supreme in other words the statute takes precedent over the common law but in fact you can see the common law as including the statutory interpretation provided by the courts so it isn't just simply the natural flow of common law that has developed from the courts but also the common law that has developed through judicial consideration of statutes so you do have that initial distinction going into this when you are working with European legal research are you dealing with a civil law jurisdiction in which case precedent is important and all the things that we teach students in the United States about jeopardising cases looking for cases that have been expressly overruled those which have been distinguished in the civil law system where as the Georgetown librarians correctly pointed out two cases which are relatively similar on their facts could theoretically be decided very differently based upon the judicial interpretation of the code so let's actually get into our work for today at a practical level because I only have about 25 minutes left I'm going to begin with the Council of Europe and the European Convention on Human Rights and Fundamental Freedoms for the most selfish reason of all it's probably the area of European law that I'm most versed in actually that's not true, I studied European Union law to a great extent as well but I'm much more interested in the ECHR for those of you who don't know this I'm sorry to state something which is obvious for those who do know it it is extremely important that you do not confuse the European Union and the Council of Europe they are two completely separate intergovernmental organisations within Europe now increasingly the lines between them are not being muddied exactly but rather the relationship between them is growing in other words for example when countries now seek to join the European Union it is a mandatory requirement that they also become signatories what are called high contracting states to the European Convention on Human Rights and Fundamental Freedoms but they are completely separate and it has been a great disappointment to the so called Brexiteers to discover as they got upset about decisions in the Strasbourg Court the European Court of Human Rights which they felt went against British interests or British common sense as they saw it in terms of how British law should be applied to discover that Brexite has done nothing to remove them from the European Convention on Human Rights and Fundamental Freedoms because Brexite only concerned the EU there are ramblings and gramblings about a Bill of Rights for the United Kingdom and what it would mean to look what it would look like to come out of the ECHR I would say to you that would be a very very different position to coming out of the EU which at its heart is still very much a trade organisation a single market here we are with the ECHR what is this for as I'm sure most of you know this is your Bill of Rights as you can see from the screen in front of you this is our right to be free from inhuman or degrading treatment the right not to be enslaved the right not to arbitrarily be killed the right to have criminal charges against you heard by a competent criminal court these sort of things the link to the Charter itself the Convention itself is there the cases arising under the ECHR are heard by the European Court of Human Rights based in Strasbourg in France it's very important to tell you the European Court of Human Rights is not a court of appeal it does not have that function which to some degree for example the United States Supreme Court does its jurisprudence is only limited is limited strictly to the question of states conformity with the Convention and you're dealing here mostly with what's called vertical effect these terms come up a great deal when you're researching law in your vertical effect and horizontal effect think of it this way vertical effect is really the relationship between the state and the individual and horizontal effect is the application of law between individuals EU law has both the possibility does exist for both within European Convention on Human Rights law but primarily you're dealing with with the vertical effect you're dealing with the relationship between the individual and the state and the state's ability or inability to conform to make its laws suit and adapt and meet the standards of the European Convention on Human Rights cases of law to the European Court after all domestic remedies have been exhausted that is fundamental so it's a court that's looking at whether or not it's not a court of appeal it's looking at whether or not a member state France Germany the United Kingdom Italy whoever it may be has properly represented the individual's rights as guaranteed under the Convention on Human Rights law so this was the comment I was just making about direct effect and to an extent there is a horizontal effect as well in the sense that when you're dealing with government agencies things like that anything which has been touched by government maybe exists under a statutory authority or something like that then yes that if you like is the state so it's subject to potential by the European Court of Human Rights but here's the important part the ECHR really to some degree has to be incorporated into domestic law now this argument raised 10 years ago by a scholar called Orgenstein is accurate this is a really good definition of it description of it but there's more than one way of doing it in other words it's not necessarily mandatory to incorporate the law into your domestic system but you have to have a domestic legal system which at least matches the requirements of the European Convention on Human Rights and there is the obligation to interpret domestic law in such a way that it complies with the Convention's guarantees now there are different ways of doing this and you'll hear a lot about dualist versus monist states in other words those which like the United Kingdom have attempted a dualist approach both domestic law and still respecting Convention law and others that simply perhaps adopt a more laid back approach if you will of just relying on the courts to answer questions about ECHR as they apply their judgments why this is of some relevance and here by the way is the definitive guide to this this is if you want to understand more about this this is the best source I could find a comparative study of the ECHR at the national level it really does go through how each country has gone ahead and done this the question sorry that I just wanted to amplify yes it is necessary to appeal all domestic go through all the domestic courts until you actually bring your case to the European Court of Human Rights so reminding ourselves it's not a court of appeal in a civil law system like Germany introducing the ECHR is relatively straightforward because again you're dealing with a code all Germany did was simply point to article 59 essentially of its constitution its code and simply used that as a mechanism to say that this is a treaty signed on behalf of the federation lawfully and therefore in a way almost to the demonist approach by bringing the ECHR into the federal law of Germany if we look at this example for just a second if it will let me I think it took me out of full screen mode to do that yes it did once you start messing around with PowerPoint things become inevitably complicated let me just grab this and I will quickly show it to you let's go back one click there we go so you'll see here a fairly stress is a German case in 2004 dealing with article 8 of the convention and you see a very logical and approach to this by the federal constitutional court sorry it was actually article 6 fairness of criminal proceedings or fairness of court proceedings as well as article 8 simply the German court saying well look this is included in our federal law by virtue of it being brought in as a treaty obligation to which Germany is committed and the domestic court considers it based on the jurisprudence of the European Court of Human Rights and basically it's a rejudication of the conformity of German law with its convention obligations go back to the PowerPoint in the UK things are a little bit more complicated you're dealing with the Human Rights Act of 1998 and this is perhaps for a common law system to an extent don't have the flexibility or even the inflexibility see which way you like of civil law systems in other words the civil law system simply brought in the law and codified it the code already existed in the form of the European Convention on Human Rights in the United Kingdom you have this problem that basically writing an act if you will that goes ahead and to a large degree simply reflects those rights as enshrined in the ECHR writing them into domestic legislation the reason this has to be done first of all because you need to ensure conformity with the ECHR and secondly there had to be a mechanism because of parliamentary sovereignty where the courts would be able to make declarations of incompatibility for constitutional law scholars that's important parliament is supreme so where parliament has made law which directly conflicts with the ECHR owing to the question of parliamentary sovereignty within the common law the courts do not have the power to just expressly repeal a statute only parliament can do that so instead of declaration of incompatibility is made this statute as it stands does not comply with the ECHR and therefore you're going to have to do something about it so what I'm going to do for the next five minutes is show you a little bit of this research because it would be a bit unfair to ask you to come to a presentation in a library webinar series and not do some hands on searching and talk a little bit about that process law legal research I think law because by its very nature is really in a way commenting on where society has failed where we cannot simply meet our obligations or promises to one another and so they have to be given legal force and in the criminal law sadly of course it's where an individual ostensibly has shown that they are unable to conform to if you like the civil contract that binds us together and this is such an instance it's a desperately unhappy case the murder of a child in my hometown of Liverpool back in the 1990s what made it particularly harrowing was the fact that the perpetrators were themselves children they were only very young I think they were 9 and 10 years old something like that this case from 1993 became if you like the the best example of why the European Convention of Human Rights needs to offer these guarantees because you're saying that hard cases sometimes make for bad law that was certainly the experience in the English courts and then you're left in this uncomfortable position of dealing with two children who have in fact been found guilty of a truly horrific murder there's no reason to go into the nature of what they did to say they murdered a 2 year old child the question of the rights of the child and also just the general rights that apply to any convicted person however heinous their crimes set us up rather nicely for this kind of conflict so let's go ahead and follow this through the English courts and the European Court of Human Rights so researching English law the very best place to begin B-A-I-L-I-I the British and Irish legal information Institute let me come out of the PowerPoint for a second go to Chrome and I'll show you how I did this or how you could do this as ever citation particularly in legal research is a paramount importance and this would of course be much easier if I just found the citation for you but that wouldn't really be a great deal of fun would it? It would be rather easy so instead we'll go ahead and find it by hand if you will who do our case law search now the perpetrators of this crime were called Thompson and the other one was called Venables there was considerable concern at the time given their status as children as to whether or not their names should even be released subsequently the courts decided to do that which in many ways I think probably made the situation much more difficult but for us as legal researchers at least we can go ahead and find those cases. These are ex parte cases they will be the crown versus the secretary of state for the home department the home secretary in effect but you can have some success you will have some success searching against the defendants or in this instance actually the plaintiff's names we could do ex parte of that but we'll go ahead and find those evils and let's see if it finds it for us. Look at this we are dealing here with the division between the different legal systems in the United Kingdom Scottish law has always been if you will its own thing with the question of the quasi federal I'm about to come to as I talk about Scotland in the court case the old judicial division of the House of Lords became the supreme court so if I go ahead and search in here I should find the most you know the appeal by venables to the highest court in the land which was then the House of Lords. Okay there we go secretary of state for the home department ex parte yeah the ex parte language was important and you can see this was decided in 1997 this is a pre human rights act case and if we look at it you'll see that all the arguments that would then subsequently come up as this was heard at the European court were pretty much arbitrarily dismissed by the House of Lords the real essence was this that if the plaintiffs which is what they are in this instance tables have turned they are essentially saying two things first of all that their rights under article three of the convention have been breached and that is because the trial that they received I remember trials are not televised in the United Kingdom like they are in the United States they are presented on the evening news in this sort of horrible artists rendering but they were tried essentially in an adult court and English criminal courts particularly at a senior level not the magistrates court but once you get into the high court they are fairly intimidating places so you had these two children who had no idea really what the nature of the proceedings were who couldn't even see over the dock confronted by the full of an English court sitting in its wigs and its robes so there was that question but the much more important question was whether or not the proceedings themselves had been fair and the reason that question came about was because the actual tariff they received the tariff is the penalty that's handed down to prisoners and with juvenile offenders in the United Kingdom it's a little bit uncertain it used to be called being detained at Her Majesty's pleasure and the person you would look to the courts to ultimately make the decision about how long in prison they would serve but this became very highly politicized particularly because it was a huge situation in England in those days there were sort of mobs on the streets begging for justice it was a pretty horrific scene the Home Secretary decided to intervene to use his prerogative powers if you will and he decided that the courts set a 15 year tariff they would serve 15 years in prison he decided to extend that a Conservative Prime Minister looking to make the position of being very strong on criminal conduct or misconduct the courts in the English court dismissed this and said no not our problem they've received a fair trial and that's all there is to it so you can go and find the European Court of Human Rights decision at Bailey as well if you want to do that you would go to where it says databases Europe the European Court of Human Rights you can find them by case I happen to know it was in 1999 but if I search for at the European Court they went back to the initials so it's actually going to be we'll do the United Kingdom we've only found six of them and I haven't found it maybe it's some devenerables I actually could be T and V and I will find it by data 1999 European Court of Human Rights it's going to be they were actually co-joined cases from memory it came down as I recall yeah there they are T and United Kingdom and V versus the United Kingdom and this is a decision by the European Court in which they found that the Home Secretary setting a tariff was indeed a violation of Article 6 and this caused a particular outrage in the United Kingdom at the time the more sophisticated way to do this searching is through HuDoc the HuDoc interface is intimidating but I think I'll find it much more quickly through this ironically enough to then need the more keyword based search common language search of Bailey it is important just to know a little bit about these at the side originally the European Court of Human Rights was split between the court itself and its commission the commission was involved in deciding whether or not the case had merit to even come before the court some years ago the commission was abolished and replaced by if you like a series of chambers cases are initially screened by a chamber to see whether or not they meet admissibility requirements in other words you know is it actually a convention case in the first place has the case actually been adjudicated through the domestic courts before being brought to the European Court of Human Rights the grand chamber is if you like the principle judicial division of the European Court of Human Rights consisting of 17 judges when you're looking for the most significant judgments you will want to have both of these checked actually for the most significant ones you could just have the grand chamber checked we'll go ahead and do our advanced search we will do V versus what do T United Kingdom search case of T in the United Kingdom I prefer this because it gives Alexis style summary of the case before you go ahead and actually start reading the judgment in its entirety no violation of article 3 violation of article 6 to write to a fair trial and that violation was founded in the unfair setting of the penalty the term of imprisonment by a politician rather than by a judge in the remaining time I have because I'm almost the time going to have a breakneck kind of run through this from that particular case we then come to post human rights act cases this is an example of a case in which a prisoner was denied access to his correspondence it happens after the human rights act has been enacted and it's a very interesting judgment by the way if you were ever confused as to what the letters mean remember the Cardiff index to legal citation if you were to go there and just plug in those letters UKHL it tells you where it's come from in fact it's come from the United Kingdom House of Lords as you can imagine and in this instance we can see it as a supreme court cases that came to be it's where the United Kingdom would step in and say there's no point doing anything not doing anything about this because ultimately it will be appealed not appealed but taken to the European Court of Human Rights and this is exactly what the Human Rights Act is designed to do the person that has a right to his correspondence so it's a domestic level the court ensures compliance with the ECHR as with the ECHR and the Council of Europe the same is true in many ways with the European Union this document here perhaps Linda will share this powerpoint with you is a really good description of the relationship between EU law and national legal systems but basically you're seeing the same things within the European Union that you're seeing within the ECHR the obligation to interpret domestic law in a way that complies with European obligations how has this changed since Brexit obviously not very much it's an evolving situation the withdrawal agreement that the United Kingdom arrived at with the European Union basically respected the fact that EU law pertaining to the United Kingdom as a member state was brought within the UK legal system the domestic legal system and that was done within the withdrawal act as Britain sought to leave the EU obviously that will now change because those no longer have the status really of constitutional statutes they are statutes which can be made and unmade by the UK Parliament so as the Brexit situation develops undoubtedly that will develop too but it's also balanced against the nature of the withdrawal agreement that Britain arrived at with the EU looking for cases at the European Court of Justice level that's infecuria that in the webinar I did on European Union law and lastly quasi-federalism within the States and this is the example of Scotland what has happened here is as Britain moved towards a model of the evolution within the late 1990s principally introduced by the Blair Government you introduced a legal system within Scotland the Scottish legal system had always been different but the creation of a Scottish Parliament allowed the Scots themselves to create law to make statutes on a certain number of matters there are certain matters which are called reserved which remain within the province of the Westminster Parliament but Scotland makes its own law in the areas that are devolved the flip side of that is Scotland is still represented in the Westminster Parliament as well as it should be given that you created this quasi-federal system in which Scotland has some independence and yet is still privy or still subject to UK domestic law in other matters the Court of Session is Scotland's civil supreme court in instances that are subsequently appealed to the Supreme Court of the United Kingdom that Supreme Court does have the opportunity to adjudicate on both devolved and non-devolved issues so Scotland is an interesting curiosity semi-autonomy within its own Parliament its own court system and still subject to in other instances to UK domestic law as created by the Westminster Parliament and there you have it if you like a more complete federal system to some degree we talked about with relation to the EU and the ECHR I'll do that really quickly and I ran four minutes over time for which I apologise I'm happy to take questions now I hope it's been of some interest to you I appreciate it was not a conventional library webinar workshop in perhaps exploring the intricacies of the resources that make this information available to us but rather an overview perhaps so that when you use those you might understand better and that's all I have for you thank you very much indeed for listening thank you very much Howard that's um definitely if you have questions feel free to put them in the Q&A I will um see so there is a question Barbara is asking she uses modern legal systems and she was wondering if that is a good recommendation for overviews of legal systems absolutely within Hine Online certainly I suppose like all to an extent tertiary sources it gives you it's a good overview great and that's it for other people that might be something to look at as modern legal systems so I know people have to start going and I don't want to keep everyone but I just want to thank Howard this was great and it was really interesting to think about this in terms of both the domestic I'm muted y'all can't hear me I can hear you Linda so it's really great I think about this in terms of the domestic and the international and the interaction between those two rather than just looking trying to look at individual systems I think that was a great way to focus this it's really interesting examples that you gave there on that it's definitely one that a webinar I'll have to go back and listen to again to catch some of the things thank you so much for all of that that you covered and all of the resources you brought together because we are a little bit over time I don't see any more questions coming in but I will invite you to feel free to get in touch with Howard I think he has been very generous with his time with other people in the past and happy to help out yeah I'm going to release the beagle I will be posting this to YouTube within the next week and I will be I can include the power points as well on the YouTube side so that you'll have access to that so definitely we'll send that out to everyone who registered for the session oh there's the beagle that's the best part about zoom life or from home is the fact that we get to see the animals everybody has so thank you for that thank you again Howard yes Emily was saying that it's been very well explained very well explained and I definitely look forward to looking through the sharing this with some of the people who work here and then we're looking through the power point as well okay there are no more questions coming in well thank you everyone for coming I hope to see you all April 22nd we'll be talking about the World Trade Organization so we're going to run a bit of an international organizations kick international kick this semester again if you have any questions or have any topics or ideas or if you'd like to do a presentation yourself please get in touch with me I'll put my email in what's been my old email my new email in the chat feel free to get in touch with me and let me know and other than that thank you hope you all have a wonderful rest of your day thank you Howard so much