Wednesday, 28 September 2016

Brexit litigation - the arguments

The court hearing relating to whether constitutionally Parliament should authorise the triggering of Article 50 is approaching.

Monckton Chambers has published the "Interested Parties Skeleton Argument" to be used in the forthcoming High Court hearing - Article 50 litigation: Interested Parties' skeleton argument.

The government's detailed grounds for resisting the challenge are set out HERE   The government's grounds have been released after an application to the court.

The case will be heard at a public hearing in the High Court (Queen's Bench Divisional Court) in October.

Previous posts on this topic:-

The role of Parliament - (with links to various arguments on this subject)

Brexit Another legal challenge in Northern Ireland

Article 50 again: Litigation; QMV and Trade agreements


Sunday, 25 September 2016

Article 50 - again! Litigation; QMV and Trade agreements

1. Skeleton argument:

Monckton Chambers has published the skeleton argument to be used in the forthcoming High Court hearing by various interested parties (the People's Challenge) - Article 50 litigation: Interested Parties' skeleton argument.  The key issue in the litigation is whether the government may use prerogative powers in relation to Foreign Affairs and Treaties as the legal basis for triggering Article 50 and thereby commencing the process for the UK leaving the EU.  The People's Challenge argue that that an Act of Parliament is necessary before Article 50 TEU can be triggered because any use of executive prerogative power to trigger Article 50: (1) has been removed by constitutional statutes; (2) does not extend to removing fundamental citizenship rights; or (3) would, in any event, be abusive if it were exercised to trigger the UK’s withdrawal from the EU (assuming it subsists and extends to removing fundamental rights).

The skeleton argument

Friday, 23 September 2016

Brexit - A view from afar

Here is a link to an interesting article on Brexit written by Professor Philip A. Joseph of the University of Canterbury, New Zealand -Brexit: A View from afar

The article highlights the lack of preparedness in the British government for the actual outcome of the referendum.  This was condemned as "gross negligence" by the House of Commons Foreign Affairs Committee - Parliament - Absence of Contingency Planning

The article examines the case for and against Parliamentary involvement in the decision to trigger Article 50 and takes the view that - "It would be unthinkable, legally and politically, for the UK to trigger the withdrawal process without Parliament's blessing and involvement."

The "unthinkable" appears to be exactly the present position of the government and therefore, as things stand, the question of whether prerogative power allows Ministers to trigger Article 50 will be heard in the High Court in October.  This is a question on which legal opinion is divided and it has been looked at in previous items on this blog - EU and the UK - Collection of posts - and, in particular, It is Brexit (3) The Role of Parliament under Article 50.

Sunday, 18 September 2016

EU - Bratislava and other matters

Updated 20th September

Bratislava:

The European Council held an "informal" meeting in Bratislava this week - see Statement by Donald Tusk. The word "informal" is used because the UK was not invited even though the UK is still a full member of the EU.  The Bratislava meeting resulted in a Declaration and Roadmap in  which it is stated that:

"Bratislava is the beginning of a process. The coming formal European Council meetings will allow for concrete follow up on the themes mentioned here. The Heads of the 27 will meet informally at the beginning of 2017 in Valletta. The March 2017 celebrations of the 60th anniversary of the Rome Treaties will bring together Heads in Rome and will be used to round off the process launched in Bratislava, and set out orientations for our common future together."

Washington Post - "Don't write Europe off" - here Peter Wittig (German Ambassador to the USA) looks at the Bratislava meeting.


Guy Verhofstadt:

Tuesday, 13 September 2016

House of Lords report on Article 50

13th September 2016 - The House of Lords Constitution Committee has published a report on Article 50  - The invoking of Article 50

The Committee says it would be 'constitutionally inappropriate' and would set 'a disturbing precedent' for the Government to act on the referendum without explicit parliamentary approval.

The report concludes:

"The referendum result was clear. Parliament is now responsible for ensuring that the Government takes forward the complex process of negotiating the UK’s withdrawal from the European Union in a manner that achieves the best possible outcome for the UK as a whole. The focus must now be on how Parliament and the Government will work together to that end. That co-operation should start now. Parliament and the Government should, at this early stage, take the opportunity to establish their respective roles and how they will work together during the negotiation process. The constitutional roles of each—the Executive and the Legislature—must be respected, beginning with parliamentary involvement and assent for the invoking of Article 50."

Brexit ~ where are we now?

The EU Referendum found the government distinctly unprepared for the outcome - Brexit.  Considerable uncertainty exists over key areas including the constitutional arrangements within the UK.  All of this has produced a massive amount of comment and several parliamentary committees are deeply immersed in the intricacies of Brexit.  This post ranges over some of the uncertainties and provides links to some of the available material.

Change of government:

Since 23rd June, the United Kingdom has seen the resignation of David Cameron as Prime Minister and the formation of a new government with Theresa May at its helm.  A new and very vital ministerial post in the new government is that of Secretary of State for Exiting the European Union and Mrs May appointed David Davis MP to the role.  

Commons debate 5th September:

Thursday, 8 September 2016

New Ministers at the Home Affairs and Justice Committees



The Home Secretary - Rt. Hon Amber Rudd MP - gave evidence to the House of Commons Home Affairs Committee.  The session may be viewed here.





The Secretary of State for Justice and Lord Chancellor gave evidence to the House of Commons Justice Committee.  This session may be viewed here.

On Extremism in Prisons see summary of Ian Acheson's report and the response to it from the Ministry of Justice

Sunday, 4 September 2016

Brexit questions - this week in Parliament

Updated 7th September:

Parliamentary business resumes on 5th September and a Westminster Hall debate is scheduled on an electronic petition (or e-petition) calling on HM government to implement a rule that if the remain or leave vote is less than 60% based on a turnout of less than 75% there should be another referendum - E petition

This Research Briefing - prepared for the Westminster Hall debate - is interesting  and contains links to additional material on referendums.

It is most unlikely that the debate will result in a second referendum but the debate may enable MPs to record their views on some important matters such as whether Parliament ought to have a role in triggering Article 50 and the role that Parliament ought to play once Article 50 negotiations commence.

See also UK Constitutional Law blog, Kenneth Campbell QC - Constitutional discourse Post-referendum: Where are we, and where are we going next?

Wednesday, 31 August 2016

The closure of BHS - Pensions

After 88 years of trading, British Home Stores (BHS) finally closed - ITV News 28th August and Express 28th August.   The Express reports that - "The stores were originally due to be closed on August 22, but the shut down was pushed back so that joint administrators Duff and Phelps and FRP Advisory could sell as much stock as possible to maximise returns for creditors."

In March 2015, Retail Acquisitions Ltd purchased BHS from Arcadia Group Ltd for the sum of £1 - BBC News 12th March 2015.   On 11th March 2015, Sir Philip Green ceased to be a Director of BHS.  Sir Philip was a Director of Arcadia Group from 16th October 2002 until 15th December 2015.  Arcadia Group is in a chain of businesses with a Jersey registered private company called Taveta Ltd at the pinnacle.  Sir Philip Green's wife has control of Taveta Ltd.

BHS went into administration in 2016 - BBC News 27th April 2016 - with serious concerns over the deficit in the pension funds.  The concerns are likely to require the Pension Protection Fund (PPF) to step in to ensure that former employees receive at least some pension.  The Board of the PPF was created by Part 2 of the Pensions Act 2004.  An investigation by the Pensions Regulator - created by the Pensions Act 2004 Part 1 - is on-going.

Brexit and the UK as a Union - an interesting contribution from Aberdeen

Let us suppose that the courts decide that Article 50 (Treaty on European Union) may be "triggered" by Ministers using royal prerogative powers relating to treaties.  According to Mr Scott Styles (Senior Lecturer at the University of Aberdeen School of Law) an interesting possibility then arises - Aberdeenunilaw - Scott Styles - Article 50, the Articles of Union and using the Royal Prerogative to end the union between Scotland and England

Mr Styles' article commences:

"The use of the prerogative power to invoke Article 50 of the TEU has been much discussed since the Brexit vote on 23 June 2016 (including this initial post on the matter and a follow-up post). The present author believes that only an Act of Parliament can be used to invoke Article 50 but if I am mistaken then a very interesting route to Scottish independence potentially opens up.

If the UK government were to persist in arguing that the Prerogative can be used to trigger Article 50 and that submission were to be upheld by the courts then that will logically lead to a conclusion that Westminster will not welcome: that the Prerogative can be used to dissolve the Union between Scotland and England."

If correct in law, this would be a startling consequence.  

Wednesday, 24 August 2016

Brexit ~ the European Communities Act 1972

The EU Referendum vote in favour of Brexit will eventually require the dismantling of the complex relationship between the domestic law of the UK and the law of the EU.  This will not be a straightforward task and the difficulties should not be underestimated.  It is far from being a matter of simply repealing the European Communities Act 1972.

The European Communities Act 1972:

Here is the European Communities Act 1972 (as amended up to 11th August 2016).  It is - "An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar."

Friday, 19 August 2016

Beyond Brexit - WTO?

It is almost 60 days since the EU referendum of 23rd June 2016.  Following the resignation of Prime Minister David Cameron, a new government was formed under the leadership of Prime Minister Theresa May who stated during the brief party leadership campaign that "Brexit means Brexit" and she reorganised aspects of the government accordingly.  Detail of the reorganisation is at Parliament Written Statement 18th July.  There is a new Department for Exiting the European Union and also a Department for International Trade.

A the moment, there are many questions as to what the future might hold.  For example, what kind of relationship will emerge between the EU and also with non-EU countries.  Although it was intended to inform the referendum, this Referendum Document gives indications as to what forms of relationship might be possible.

The possibility

Barbaric and planned murder in Lancashire

Crown Court at Preston
The murder of Sadie Hartley (age 60) was "a crime of obsession, of arrogance, of barbarity ..." - Mr Justice Turner.  Sarah Williams (35) and Katrina Walsh (56) were found guilty of the murder at the Crown Court at Preston before Turner J and a jury.

Media reports include Lancashire Telegraph and BBC News 

The Sentencing Remarks of Turner J are available -Sentencing Remarks - and offer a clear example of how, in practice, the Criminal Justice Act 2003 Schedule 21 is applied.  The principal offender was Sarah Williams and a minimum term of imprisonment of 30 years was set in her case.  Katrina Walsh was "a fellow spirit and enthusiastic participant" who had engaged in several preparatory acts and also assisted in trying to cover up the offence.  Also convicted of the murder, Walsh received a minimum term of 25 years.

Schedule 21 paragraph 5 deals with cases of "particularly high seriousness" and para. 5(2) sets out some cases which would normally be regarded in that way.  The list in para 5(2) is in no sense an exhaustive list and so it does not prevent other cases being regarded as being of "particularly high seriousness" - see, for example, Griffiths and others v The Queen [2012] EWCA Crim 2822 (Hughes LJ and Ramsey and Irwin JJ).



Tuesday, 16 August 2016

Roundup - Items of Interest

Updated 18th August:

Here is a round up of some of the prominent topics at the present time.  In no particular order ....

The future of the civil courts -  see the Interim Report by Lord Justice Briggs and also his final report.  The Martin Partington blog has taken a look at it.

Independent Inquiry into Child Sexual abuse - the appointment of a non-lawyer as the inquiry chairman (previous post) has attracted some comment - see Rightsinfo and also Barrister blogger.

President of the Family Division Viewpoint - see the 14th View from the President's Chambers
and see Family Drug and Alcohol Court (FDAC) and PAUSE.  Lancaster University - Family Court recycles one in three young mums.


Imprisonment for Public Protection (IPP) - this "mess" rumbles along and the government is urged to find a solution - see  Solicitors Journal

New legislation on "Zombie Knives"

Having article with blade or point in public place:

On 9th May 2014, this blog looked at sentencing for possession of bladed or pointed articles.  The offence is governed by the Criminal Justice Act 1988 section 139.  In that post it was noted how the maximum sentencing powers for possession of such articles had been increased by Parliament but there was some concern that actual sentencing did not reflect those increases.

Sentencing Guidance for Magistrates is now available online and this shows that where the offence is committed in dangerous circumstances but the weapon was not used to threaten or cause fear then 6 weeks custody could be appropriate with a sentencing range of High level community order to committal to Crown Court for sentence - see guidance here.  Where the weapon is used to threaten or cause fear and the offence is committed in dangerous circumstances then the guidance is that Magistrates should commit the offence to the Crown Court for sentencing.

There has been growing concern that so-called Zombie Knives have become a weapon of choice for those with criminal intentions.  The government has secured new legislation on such articles.

The Labour Party Leadership Election

The Labour Party is in the throes of its second leadership election in two years - The Labour Party Leadership Election 2016.  The present leader - Rt. Hon. Jeremy Corbyn MP - was elected by the party in 2015 and is facing a challenge to his leadership.  Certain aspects of the rules governing the party have come before the courts and they are of legal interest because they illustrate the court's approach to interpretation of contracts and how contract law applies to unincorporated associations.

Saturday, 13 August 2016

In care, out of trouble

On 31st March 2015, there were 69,540 "Looked After Children" in England - (Dept. of Education Statistics).  75% of those were in foster care.  Whilst the legal definition is somewhat more complex, a Looked After Child is basically one who is subject to a Care Order under the Children Act 1989.

94% of Looked After Children do not have any interaction with the criminal justice system.  Early in 2015, the Prison Reform Trust (with the support of the J Paul Getty Trust) launched a review, chaired by Lord Laming, to investigate the disproportionate numbers of children in care who were in custody and to make recommendations for reform.

The outcome of the review has been published - Keeping children in care out of trouble

Friday, 12 August 2016

Brexit - another legal challenge

High Court Belfast
The Irish Times 11th August - Belfast rights campaigner begins legal challenge to Brexit

"A campaigner for the rights of victims of the Troubles has launched the first legal challenge in Northern Ireland to the UK leaving the European Union.  Raymond McCord lodged papers at the High Court in Belfast on Thursday seeking a judicial review of the British government’s move towards Brexit.  His lawyers claim it would be unlawful to trigger Article 50 ... without parliament voting on the move. They also contend it would undermine the UK’s domestic and international treaty obligations under the Good Friday Agreement, and inflict damage on the Northern Ireland peace process."

Thursday, 11 August 2016

Chair of the Child Abuse Inquiry

Professor Alexis Jay has been appointed to chair the Independent Inquiry into Child Abuse - see Inquiry Statement 11th August.

Professor Jay led the Independent Inquiry into Child Sexual Exploitation in Rotherham, an investigation into child sexual abuse in the Metropolitan Borough of Rotherham in South Yorkshire.  She is the author of the investigation's report, published in August 2014 - (Law and Lawyers 1st September 2014).

In September 2014 she was appointed to act as an expert adviser to an independent panel inquiry which was intended to examine how the UK's institutions have handled their duties to protect children from sexual abuse.   Following the abandonment of the initial panel inquiry in favour of a statutory inquiry under the Inquiries Act 2005, she was re-appointed as an adviser to the subsequent Independent Inquiry into Child Sexual Abuse chaired by Dame Lowell Goddard.

The Chair is assisted by a Panel of three members: Prof. Sir Malcolm Evans KCMG OBE; Ivor Frank; and Drusilla Sharpling CBE.  Professor Jay was a Panel Member assisting Dame Goddard.  It is not clear whether a fourth panel member will now be appointed.  Although Professor Jay is not a lawyer, the panel members have considerable legal credentials.

Law and Lawyers 5th August - Dame Lowell Goddard quits.

Tuesday, 9 August 2016

Immunity from criminal process of Special Missions

Special diplomatic missions (or just Special Missions) have existed since the beginnings of diplomatic relations between States and they continue to be used from time-to-time.

In R (Freedom and Justice Party and others) v Secretary of State for Foreign and Commonwealth Affairs and the DPP [2016] EWHC 2010 (Admin) the High Court (Administrative Court) was faced with this question of law:

"Whether members of special missions visiting the United Kingdom with the approval of the First Defendant ("the FCO") enjoy personal inviolability and/or immunity from criminal process pursuant to a rule of customary international law to which effect is given by the common law."

The court (Lloyd Jones LJ and Mr Justice Jay) held: