Friday, 18 August 2017

Brexit ~ Government "Position Papers"

Brexit will place the UK outside the EU Customs Union and Internal Market both of which, under the EU Treaties, are key features of the EU's structure.  The Department for Exiting the EU has published the first two of a series of "position papers."

Future Customs relationship with the EU

Pledge to protect the Belfast Agreement and Common Travel Area - position paper on Northern Ireland and Ireland proposing no physical infrastructure at the border.

Law Society Report on the state of legal aid

Four years ago, the coalition government implemented the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Hundreds of thousands of people who were eligible for legal aid on 31 March 2013 became ineligible the very next day.   Four years on, the Law Society has conducted a review of the legal aid changes introduced under the act. This review concludes that:
1. Legal aid is no longer available for many of those who need it
2. Those eligible for legal aid find it hard to access it
3. Wide gaps in provision are not being addressed
4. LASPO has had a wider and detrimental impact on the state and society
The review includes 25 recommendations to government, focusing on issues including increasing children's access to legal aid, reintroducing legal aid for early advice, and improving Exceptional Case Funding and the legal aid means test.  The report is available via  Law Society 29th June 2017.

Disclosure ~ an on-going problem in criminal cases

The unhappy state of affairs regarding Disclosure is yet again highlighted by a survey being undertaken by the Criminal Law Solicitors Association (CLSA) - CLSA Disclosure Survey.

Disclosure problems appear to beset the criminal justice system - previous recent posts - Stories from the Criminal Courts (6th August) and 19th July 2017 - Making it fair - the crucial matter of disclosure in criminal cases

Tuesday, 15 August 2017

Grenfell Tower Fire - Inquiry terms of reference published

Updated 16th August:

The Terms of Reference for the Grenfell Tower Inquiry have been published by the government and may be read on the Grenfell Tower Inquiry website (HERE).  The terms are those recommended by the Inquiry Chairman - see page 4 of Sir Martin Moore-Bick's letter to the Prime Minister - (HERE).

Over 550 written responses were received in response to the terms of reference consultation and they are summarised at pages 5 to 7 of Sir Martin Moore-Bick's letter to the Prime Minister

Monday, 14 August 2017

EU (Withdrawal) Bill - some other points

This post looks at a few other matters raised by the European Union (Withdrawal) Bill which was presented to Parliament on 13th July.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law, , Clause 6 - InterpretationFrancovich and Ministerial powers to legislate.

: Legislative Consent

The Scottish and Welsh First Ministers have announced 

Sunday, 13 August 2017

The EU Collection

Few topics have produced as much commentary as Brexit.  Here are my various posts on this crucially important topic.

I do not claim that any of them are in any way authoritative but they are my attempt to set out events as they have occurred, to offer my viewpoint and to offer links to the views of others.   I will add to the list as things develop.

EU and the UK - Collection of Posts - Law and Lawyer posts from 20th February 2016 to 23rd July 2017.

The European Union (Withdrawal) Bill

EU (Withdrawal) Bill - Henry VIII at his best - Ministerial powers to legislate

Henry VIII

The European Union (Withdrawal) Bill, as presented to Parliament on 13th July, sets out to (a) repeal the European Communities Act 1972 on "exit day", (b) preserve legal continuity (but with notable changes) and (c) to define various forms of "retained" law and to specify how such law is to be interpreted.

Clauses 7 to 9 - "Main powers in connection with withdrawal" and Clauses 10 and 11 (Devolution) - are the subjects of this post.

Clause 7 is about legislation to deal with "Deficiencies arising from withdrawal".  Clause 8 is about legislation to comply with international obligations and Clause 9 is Implementation of the Withdrawal Agreement.   The late (despotic) Tudor Monarch - Henry VIII (1491 to 1547) - would have been proud of those clauses which enable secondary legislation to do anything that could be done by Act of Parliament.

EU (Withdrawal) Bill ~ It will be goodbye to Francovich

Francovich 1991
This post continues my look at the European Union (Withdrawal) Bill  with a particular focus on Schedule 1 to the Bill which is entitled "Further provision about exceptions to savings and incorporation."   Legal effect is given to the Schedule by Clause 5(6)

Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law and Clause 6 - Interpretation.

Schedule 1 makes frequent appearances in the Bill - see Clause 2(3), Clause 3(5), Clause 4(3).  The wording, on each occasion, is - "This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).  Tucked away in this Schedule are some very important matters:

Saturday, 12 August 2017

EU (Withdrawal) Bill ~ Clause 6 - Interpretation

Labyrinthine Legislation
With masterly understatement, Dr. Paul Daly (University Senior Lecturer in Public Law, University of Cambridge) wrote that - "Even seasoned lawyers are not going to enjoy navigating these provisions"

This post looks at Clause 6 of the European Union (Withdrawal) Bill  - Interpretation of Retained EU law.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day and Retention of Existing EU Law.

Definitions in Clause 6:

Friday, 11 August 2017

EU (Withdrawal) Bill ~ Retention of Existing EU law

This post continues my look at the European Union (Withdrawal) Bill as introduced into Parliament on 13th July 2017.  Previous posts are HERE and HERE.  Very little of this complex and cumbersome Bill is easy reading.  Nevertheless, it is of crucial importance for the state of our law in the future. 

Since accession to the EU in 1973, an enormous amount of law has flowed into the UK via the European Communities Act 1972 (the ECA) - referred to in the Miller judgment (para 65) as a 'conduit pipe.'  The general scheme of the EuropeanUnion (Withdrawal) Bill is to retain, with important exceptions, EU law as it exists immediately before exit day and then to give (extensive) powers to Ministers to alter things.   Clauses 2 to 6 are concerned with Retention of Existing EU law.  The Explanatory Notes offer assistance with their interpretation.

Thursday, 10 August 2017

Looking at the EU (Withdrawal) Bill ~ Clause 1 (ECA 1972 repeal and Exit Day)

On 13th July, the European Union (Withdrawal) Bill had its first reading in the House of Commons.  A previous post is an overview of the Bill and also offers links to commentaries by several other writers.

Clause 1 simply states: "The European Communities Act 1972 is repealed on exit day."   This apparently straightforward statement merits closer examination.

The European Communities Act 1972 (ECA) is

Tuesday, 8 August 2017

Patrick Finucane ~ decision not to hold public inquiry reaches Supreme Court

Over 28 years ago, Northern Ireland lawyer Patrick Finucane was gunned down at his north Belfast home whilst he was having dinner with his wife Geraldine and their three children.  Mr Finucane was 39 years old and from a Republican family.  As a solicitor he had advised members of the IRA but he had also represented Protestants accused of terrorist offences.  The British government promised to hold a public inquiry and that promise was made to both Mrs Finucane and to the Government of the Republic of Ireland, the political parties at the Weston Park Conference and to the general public.  See the Good Friday Agreement Implementation Plan 1st August 2001.

In 2010, when the Coalition government was formed, a decision was taken to hold a Review rather than a Public Inquiry. 

Sunday, 6 August 2017

Stories from the criminal courts

Knowing the case against you:

Any person charged with a criminal offence ought to be informed of the prosecution evidence in good time so that the appropriate plea may be entered and, if the plea is not guilty, the defence prepared before trial. This proposition appears self-evident if there is to be a fair trial (as required by English Law as well as Article 6) but, in practice, things do not appear to going too well according to solicitor Robin Murray -  Minted Law - Despatches from the Disclosure Battle Front.   Mr Murray was the winner of the Legal Aid Lawyer of Year Award in 2015. and also winner of Kent Law Society exceptional achievement award 2015.

Friday, 4 August 2017

An abysmal situation - care proceedings - the case of X

Updated 7th August: Re X (A Child) (No. 4)

The case of X (A Child) highlights the lack of clinical, residential and other support services so desperately needed by the increasing numbers of children and young people with mental health problems.  Such children all too frequently come into contact with either the criminal justice system or are the subject of care proceedings or, as in X's situation, both.

X is now 17 years old and she is subject to a care order made on 15th June 2017 by the President of the Family Division - Sir James Munby. The judgment dealing with the care order is X (A Child) (No. 2) - [2017] EWHC 1585 (Fam).

X is also subject to a Detention and Training Order (DTO)

Wednesday, 2 August 2017

Court of Protection

Of all the courts of England and Wales, one of the least understood is the Court of Protection. It is a court empowered by Parliament to decide issues relating to those who lack mental capacity to make their own decisions.  This is a complex field.  The vast majority of people who encounter the Court of Protection will need specialist legal help but it is a regrettable fact that legal aid is not always available under current arrangements.  The absence of legal aid in many important areas can amount to a denial of access to justice and it is a national scandal.  Let's take a closer look at the court.

Tuesday, 1 August 2017

Tony Blair (and others) will not face trial for "aggression"

The war against Iraq began on 20th March 2003.  It caused deep divisions among the people of the UK.  On 18th March 2003, the House of Commons - in which the Labour Party held a large majority - passed a motion supporting the war - 396 votes to 217.  At the time, Tony Blair was Prime Minister; Jack Straw was Foreign Secretary and Lord Goldsmith QC was Attorney General.

In November 2016, District Judge Snow at City of Westminster Magistrates Court was asked to issue a summons to commence a private prosecution of Tony Blair, Jack Straw and Lord Goldsmith for the offence of "aggression."  The District Judge refused to issue a summons on the basis that aggression is not an offence known to the criminal law of England and Wales - see the House of Lords decisions in R v Jones and others [2006] UKHL 16 and R (Gentle) v The Prime Minister and others [2008] UKHL 20.

Sunday, 30 July 2017

Inquiries ~ some updates

Grenfell Tower Update:

The Grenfell Tower Inquiry continues to consult regarding the Terms of Reference.  The consultation period was extended to 4th August 2017 - Grenfell Tower Inquiry website.   The "Inquiry Team" has been appointed. Richard Millett QC is Counsel to the Inquiry.  He has extensive experience of handling complex commercial disputes in a range of specialist areas, with an emphasis on advocacy in court, arbitration and other tribunals. Mr Millett will be assisted by Bernard Richmond QC and Kate Grange QC.

The Department for Communities and Local Government is publishing information about developments relating to Grenfell Tower - HERE.   One important development is that the government has set up a review of Building Regulations and Fire Safety.  The first results from large scale tests of building cladding systems have also been published. The latest tests simulate a tall building and allow experts to understand better how different types of cladding panels behave with different types of insulation in a fire.  See BBC News - 60 Blocks fail new fire test.

Thursday, 27 July 2017

Baby Charlie Gard

Baby Charlie Gard was born on 4th August 2016 and was found to have a complex inherited condition which may be abbreviated to MDDS.  This poignant case has attracted a vast amount of comment in the media and elsewhere but, to obtain a thorough understanding of the situation, there is NO substitute for reading the judgments of the courts and the position statements of the parties.  The statements may be read via Serjeant's Inn 31st July 2017.

MDDS is described by Mr Justice Francis in his judgment of 11th April 2017 at paragraph 52 - Family Division, Mr Justice Francis judgment 11 April 2017 (transcription published May).  Baby Charlie was receiving medical care at Great Ormond Street Hospital (GOSH). On 24th February 2017, GOSH applied to the High Court for certain orders to be made and this application was opposed by the parents - Constance Yates and Chris Gard.  On 11th April 2017, Francis J granted the hospital's application.  The parents appealed to the Court of Appeal (Civil Division).

Employment Tribunal Fees ruled unlawful

The Rt Hon Chris Grayling MP served in the Coalition Government as Lord Chancellor and Secretary of State for Justice from 4th September 2012 to 9th May 2015.  Today, he is Secretary of State for Transport.  I am not proposing to discuss in detail Mr Grayling's tenure as Lord Chancellor apart from noting that, from the viewpoint of access to justice, it was not a glorious period.

Access to justice was made difficult (perhaps impossible) for many people through the removal of whole areas from legal aid (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and by the introduction of fees to access the law in, for example, employment tribunals - the Employment Tribunals and Employment Appeals Tribunal Order 2013.  In making this Order, Mr Grayling used powers in section 42 of the Tribunals, Courts and Enforcement Act 2007.  The "fees order" resulted in a large reduction in the number of claims brought to Employment Tribunals including so-called "Type B" claims in areas such as unfair dismissal, equal pay and discrimination.  Due to events in the workplace, women are more likely to have to bring such claims than men. Nevertheless, the reasons for making the Fees Order included a desire to deter vexatious claims.

The Trade Union - UNISON -

Tuesday, 25 July 2017

A reminder of times of old

Shire Hall, Appleby

On 1st January 1972, over 800 years of legal history came to an end with the establishment of the Crown Court of England and Wales.  This was one effect of the Courts Act 1971 - (the link is to the Act as originally enacted).   Since the 12th century, judges journeyed from London to preside at the Assizes in all the counties of England and Wales.  The Assizes tried the most serious cases such as murder.  Other courts with criminal jurisdiction were the Quarter Sessions and the Magistrates’ Courts (or Petty Sessions).  The Courts Act abolished courts of assize and quarter sessions and gave their criminal jurisdiction to the newly formed Crown Court.