Thursday, 8 December 2016

The Brexit appeal ~ mountains of material

The argument in Brexit case is notable for the extensive citation of  cases, Acts of Parliament, historical material, academic opinion, the views of notable lawyers and matters said in Parliament. This post gives a flavour only of the types of material allowed into the case.

On Day 1 (5th December) - transcript here - James Eadie QC (for the government) referred early in his submissions to an article on the prerogative by Professor Endicott (Balliol College, Oxford).  I am not sure that we, as observers, know exactly which article - see transcript page 19!

An article written by Lord Millett (supportive of the government's position) gets a mention at page 42 and Lord Millett's "concept of inherency" is referred to again at page 46 and at page 132 Eadie says that the government adopts Millett's analysis at a "more fundamental level."  The court returned to Millett on Day 2 - transcript at pages 42 and 43.  (Lord Millett - Lord of Appeal in Ordinary 1998 to 2004). 

Wednesday, 7 December 2016

Opposition Day debate on Brexit

As the Supreme Court hears the government's appeal in the Brexit case, it is worth noting this Opposition Day debate in the House of Commons today (7th December).  Here is the motion as passed by the House:

Resolved, That this House recognises that leaving the EU is the defining issue facing the UK; notes the resolution on parliamentary scrutiny of the UK leaving the EU agreed by the House on 12 October 2016; recognises that it is Parliament’s responsibility to properly scrutinise the Government while respecting the decision of the British people to leave the European Union; confirms that there should be no disclosure of material that could be reasonably judged to damage the UK in any negotiations to depart from the European Union after Article 50 has been triggered; and calls on the Prime Minister to commit to publishing the Government’s plan for leaving the EU before Article 50 is invoked, consistently with the principles agreed without division by this House on 12 October; recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017.

Who are these Scottish gentlemen?

Followers of the UK government's appeal in the Brexit case will have seen that two Scots lawyers are also involved.

On Tuesday 6th December, the court heard from the Advocate-General for Scotland (Lord Keen of Elie QC).   The Advocate General for Scotland is a Minister of the Crown and is one of the three UK Law Officers. Along with the Attorney General and the Solicitor General for England and Wales, the Advocate General provides legal advice to all UK Government Departments on a wide range of issues including human rights, European law and constitutional law. The Advocate General is the UK Government’s principal legal adviser on Scots law and its senior representative within the Scottish legal community.

Lord Keen's submissions followed those by James Eadie QC and, together, constitute the UK government's appeal.

Tuesday, 6 December 2016

Brexit appeal Day 1 (5th December) - My notes on the Attorney-General's submissions

This post takes a look at the submissions by the Attorney-General (Jeremy Wright QC) in the appeal by the government to the Supreme Court.   Following opening remarks by the Court  President (Lord Neuberger) -  (noted here)  - Mr Wright opened the case  for the government.

The AG began by stating that the case was of “great constitutional significance in which there is understandable and legitimate interest.”  The claimants had brought the case perfectly properly and it was perfectly proper for the court to decide it because the case involved a clear question of law:

whether “the Government has the legal power to give notice under Article 50 of the
Treaty on European Union to begin negotiations for the UK's withdrawal from the EU, or whether further specific legislative authority is required to do so.” 

This question goes to the “very heart of our constitutional settlement.”

Sunday, 4 December 2016

Investigatory Powers Act 2016

The Investigatory Powers Act 2016 has received Royal Assent.  Here is an excellent overview of the Act by David Anderson QC (the Independent Reviewer of Terrorism Legislation).

LIBERTY have commented about the Act describing it as a 'sad day for democracy' and claiming that ' .... This new law is world-leading – but only as a beacon for despots everywhere ...'

The Solicitor's Journal is concerned about the impact that the legislation may have on legal privilege.

It is an extensive Act with 9 Parts and 10 Schedules.  Much of the Act will come into force in accordance with "Commencement Orders."

Terrorism legislation:

Friday, 2 December 2016

The Brexit appeal - the scene is set

This post takes an admittedly simplified and hopefully straightfoward look at the forthcoming hugely important Brexit case to be heard in the Supreme Court of the UK commencing Monday 5th December - (Supreme Court).  The European Union (EU) referendum held on 23rd June 2016 resulted in an overall UK majority to leave the EU but, significantly, voters in Scotland and Northern Ireland voted to remain.  BBC – Referendum results.

The UK is a member of the EU because the government signed the various Treaties in 1972 and Parliament then enacted the European Communities Act 1972 to give effect to EU law in the UK - (see Note 1 below).  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.”
The Treaty on European Union contains Article 50 enabling a Member State to leave the Union.  The article requires (a) that a decision to leave be made in accordance with national constitutional requirements and (b) that notice of the decision is given to the European Council.  This triggers the leaving process and will at some point result in EU law ceasing to apply in the UK.  Lawyers disagree on whether the UK could unilaterally decide to revoke its notice and thereby reverse the process.  A definitive legal answer to that question would necessitate a journey to the Court of Justice of the EU (CJEU).  If the Supreme Court were to consider that an answer was necessary to decide the appeal then, as a final court of appeal, a reference to the CJEU would have to be made - (see Note 2 below).  There is generally a discernible lack of appetite for that course.

Monday, 28 November 2016

The Brexit case ~ the material comes together

UPDATED 2nd December 2016

The High Court Decision:

The Queen on the application of (1) Gina Miller and others; (2) Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union.   Here is the High Court's full judgment.

Transcripts of the High Court hearing

Update 1/12/16 - Supreme Court - Article 50 Brexit appeal - links to all the written cases

Update 2/12/16 - Supreme Court - Full details of the hearings including timetable

Another Brexit conundrum ~ a note

The BBC 28th November - Brexit: Legal battle over UK's single market membership - reports that  "the government is facing a legal battle over whether the UK stays inside the single market after it has left the EU ...... Lawyers say uncertainty over the UK's European Economic Area membership means ministers could be stopped from taking Britain out of the single market.  They will argue the UK will not leave the EEA automatically when it leaves the EU and Parliament should decide.  But the government said EEA membership ends when the UK leaves the EU."

The government's appeal

Thursday, 24 November 2016

R v Thomas Mair

Thomas Mair stood trial at the Central Criminal Court (Mr Justice Wilkie and a jury) for the murder of Member of Parliament Jo Cox and for a number of other offences.  He was convicted and the judge's sentencing remarks have been published - HERE.  The judge concluded that the murder was of such a high level of seriousness that it could only properly be marked by a whole life sentence though the judge noted the possibility of release by the executive "on humanitarian grounds" to allow him, as the judge put it, "to die at home."

See also the Crown Prosecution Service statement.

A few points about the case stand out. 

Tuesday, 22 November 2016

Scotland - A European Nation

The Scottish government has published Scotland - A European Nation

The document outlines Scotland’s extensive historical engagement with Europe and its present democratic and constitutional position in relation to the UK, Europe and Brexit.  Aimed at an international audience, the document  explains the historical, political and legal reasons why Scotland’s voice needs to be heard following the EU Referendum.  In addition the Scottish Government has set out its intention to publish plans to maintain Scotland’s relationship with Europe in the coming weeks.

Monday, 21 November 2016

A few items ....

The Independent Council of Law Reporting (ICLR) has issued its Weekly Notes.   The Notes look at the Investigatory Powers Bill, a report on Surveillance Cameras, the "Multi-Party Brexitigation", "Halegate" - the Azlan Shah lecture in Malaysia, the views of Lord Judge regarding the Lord Chancellor's inadequate defence of judicial independence and much more.
Nobody actually has a definitive answer to whether a notice to withdraw under Article 50 Treaty on European Union) may be revoked unilaterally be the State that gave the notice.    Notable opinions go either-way.  Here is the latest - Exeter University - Aurel Sari

Saturday, 19 November 2016

Brexit - take a break ~ what else is happening?

By way of a change, let's have a look at some things going on apart from the Brexit litigation.

I am beginning this post with a link to an excellent and reflective piece on the Jamie Foster blog - On Laughter and Forgetting - "So while the great and the good talk of cabbages and kings I remember those who have touched me with a fondness bordering on enthusiasm...."  For my part, I wish this blog well and hope it continues for a long time to come.

In many ways, family lawyers and social workers are among the unsung heroes of our time.  Their work rarely gets a mention unless something goes seriously wrong as it did in the Baby P situation back in 2007. The private law aspect of family law work has seen deep cuts to legal aid provision since the Legal Aid, Sentencing and Punishment of Offenders Act 2011 (LASPO).  Marilyn Stowe's first class blog takes a look at family law matters.

Friday, 18 November 2016

Interventions in the Brexit appeal

***** The Government's grounds of appeal have been published and extend to 56 pages *****

Edwin Coe LLP - ·Brexit –The Claimant’s Case for the Supreme Court

On 18th November, the Supreme Court announced that certain interventions in the Brexit appeal had been allowed and a further intervention by Lawyers for Britain Ltd was accepted by the court on 25th November - updated announcement.   Lawyers for Britain may only file written submissions.

Intervention of the Lord Advocate 

Counsel General for Wales statement 21st November

The list of interveners is:
  • The Lord Advocate, Scottish Government
  • The Counsel General for Wales, Welsh Government
  • The 'Expat Interveners', George Birnie and Others
  • The Independent Workers Union of Great Britain
  • Lawyers for Britain Ltd (written submissions only)

Additionally, the Attorney General for Northern Ireland has made a reference to the Court regarding devolution issues relating to that jurisdiction. Permission to intervene is therefore not necessary.

With regard to the case brought in Northern Ireland by Raymond McCord see this report

Previous posts - 11th November and 8th November.  A list of links to the views of various writers may be seen HERE and that post contains a general note about interveners.   I will update the list as and when new material comes to my notice.

Thursday, 17 November 2016

Strathcylde Review

BBC report - Plans to curb powers of House of Lords dropped.

Strathclyde Review

It all goes back to the "Tax Credits" which I posted about on 17th December 2015 - A brief note on the Strathclyde Review - a major constitutional change is proposed.

In a Statement to the House of Lords today (17th November) the government indicated that it was prepared to proceed on the basis of Option 3 in the Strathcylde Review but that there would not be primary legislation at this time.   The announcement was broadly welcomed by the House.

Some of the speeches suggested that the government in partnership with Parliament examine ways by which scrutiny of secondary legislation might be improved and there was a potentially useful suggestion that a power to amend be considered rather than the present "take it or leave it" approach.

Whilst secondary legislation

Tuesday, 15 November 2016

Azlan Shah Lecture 2016 by Lady Hale - Deputy President of the Supreme Court

Update - Statement from Supreme Court 16th November

Update 19th November - other views

We have come along way from the "Kilmuir rules" that prevented serving members of the judiciary talking publicly about their work - Post of 2nd December 2011.

Lady Hale, Deputy President of the Supreme Court of the UK, has delivered the Sultan Azlan Shah Lecure 2016 entitled The Supreme Court: Guardian of the Constitution?

There is a considerable amount that is of general interest in the speech.  Lady Hale claims

Friday, 11 November 2016

Brexit case ~ Government grounds of appeal

On 10th November, the government published a summary of its grounds for appealing to the Supreme Court of the UK the High Court's judgment in Miller.

The summary may be read HERE.

The case under appeal is the decision of the High Court in The Queen on the application of (1) Gina Miller and others; (2) Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union.   Here is the High Court's full judgment or via Bailii and previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.

The High Court held that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

Previous posts - The Article 50 "Brexit" appeal - a note and for links to numerous commentaries on the case see The High Court's decision in Miller - Collection of materials

The appeal will be heard by the Supreme Court en banc - i.e. all 11 of the present justices will sit.  The hearing will commence on 5th December.

Thursday, 10 November 2016

Lord Rodger Memorial Lecture by Lord Neuberger PSC

The President of the Supreme Court, Lord Neuberger, delivered the Lord Rodger Memorial Lecture  in Glasgow in which he talks about the tole of the Supreme Court of the UK in relation to devolution in the UK.

Lord Neuberger gives the Lord Rodger Memorial Lecture 2016 in Glasgow

Power is devolved in the UK to Scotland and to Northern Ireland and Wales.  In each case the model of distribution is different with the result that the overall patchwork is very complex.  Lord Neuberger says (para 42) - " ... if we are not to adopt a written constitution, then there is a strong case for saying it would be necessary to consider a more coherent and principled approach to devolution across the UK" and the speech then refers to a "good starting point" - the House of Lords Select Committee on the Constitution report of May 2016 - The Union and Devolution.

Lord Neuberger ended by saying that " ... the growth of constitutional cases does not justify the expense and confusion of creating a new Constitutional Court ...."  Readers will recall that this was an idea mooted by David Cameron when he was Prime Minister - previous post 8th February 2016.

Tuesday, 8 November 2016

The Article 50 "Brexit" Appeal ~ a note

Updated 15th November.

The government's appeal in the Article 50 Brexit case has now been formally lodged with the Supreme Court.  Read the Supreme Court's announcement.  All 11 Justices will sit on the appeal.

The case under appeal is the decision of the High Court in The Queen on the application of (1) Gina Miller and others; (2) Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union.   Here is the High Court's full judgment or via Bailii and previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.

The High Court held that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

The Supreme Court

Monday, 7 November 2016

The High Court's decision in Miller - Collection of materials

"Justice is not a cloistered virtue: she must be allowed to to suffer scrutiny and respectful, even though outspoken, comments by ordinary men" - Lord Atkin - Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 (PC).

On 3rd November, the High Court handed down its judgment in a case that, for ease of reference, we may just call Miller - Here is the court's full judgment or via Bailii and previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.  The court concluded that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

It follows from this conclusion that Parliament will have to somehow authorise the triggering of Article 50 and there are reports that a legislative Bill is being drafted.  The court was considering the process which, as a question of law, should apply to the triggering of Article 50.  The court was definitely NOT considering whether Brexit is desirable or not because that is a matter entirely in the political sphere.