Friday, 21 October 2016

Scottish Independence ~ a further referendum?

The European Union (EU) referendum on 23rd June 2016 concluded with a UK-wide vote in favour of leaving the EU but Scotland voted by 62% to 38% to remain.  Earlier post - It is Brexit (1).

Politically, this was bound to result in calls for a further referendum on Scottish Independence.  The referendum held in 2014 rejected Scottish Independence but that was before the 2015 General Election when the Conservative Party secured a small overall majority in the House of Commons.  The Conservative Party's election manifesto promised a referendum on EU membership before the end of 2017 and it was held on 23rd June 2016.


On 20th October 2016, the Scottish government announced a consultation on Scottish Independence and published a draft Bill aimed at achieving a further independence referendum.  See the draft Bill.

Thursday, 20 October 2016

Legislation to introduce Statutory pardons for certain sexual offences

The Ministry of Justice has announced a plan to pardon those convicted for consensual same-sex relationships when the conviction was prior to a change in the law - see Ministry of Justice announcement 20th October.  This will be achieved by way of the government introducing an amendment to the Policing and Crime Bill.

The route to obtaining a statutory pardon will be somewhat complex since the proposed alteration to the law will operate via the "disregard" scheme introduced by the Protection of Freedoms Act 2012 Part 5 Chapter 4.  A little explanation is therefore in order.

The "disregard" scheme:

Parliament ~ Brexit should be scrutinised as it happens ~ new House of Lords report

The House of Lords EU Select Committee has issued a report - Brexit: Parliamentary Scrutiny

Noting that "The forthcoming negotiations on Brexit will be unprecedented in their complexity and their impact upon domestic policy" the committee says that "it seems to us inconceivable that it should take the many far-reaching policy decisions that will arise in the course of Brexit without active parliamentary scrutiny."

Parliament should not "micromanage" the negotiations but accountability after the fact is insufficient.  The report calls on the government to "recognise a middle ground between the extremes of micromanagement and mere accountability after the fact."

Wednesday, 19 October 2016

Magistrates ~ Justice Committee Report

The House of Commons Justice Committee has published its report on The Role of the Magistracy.

The Ministry of Justice and senior judiciary must, as a matter of priority, develop an over-arching strategy for the magistracy, says a report by the Justice Committee. This should include workforce planning, magistrates' training and the wider promotion of their role, especially to employers. It should also take into account the impact of court closures, and consider whether the role of magistrates could be expanded, in particular within any proposals for problem-solving courts.

The report supports increasing magistrates’ sentencing powers to 12 months’ custody and recommends that the Ministry of Justice provide a timetable for implementation. This recommendation has been welcomed by the Magistrates' Association.  It is further recommended that the new Allocation Guideline be given time to bed down and the Sentencing Council be given an opportunity to review its impact and that the Ministry of Justice publish any modelling of the potential impact of increased sentencing powers on the prison population.

Sunday, 16 October 2016

Ched Evans acquittal

In September 2015, the case of Chedwyn ("Ched") Evans was referred to the Court of Appeal by the Criminal Cases Review Commission (CCRC) - read the CCRC statement.

On 21st April 2016, the Court of Appeal (Criminal Division) - Hallett LJ, Flaux J and Sir David Maddison - allowed an appeal by Mr Evans against his conviction for rape.  The Court of Appeal ordered a retrial - judgment.   The reasons for quashing the conviction were subject to reporting restrictions until the conclusion of the retrial.   The retrial was held at the Crown Court sitting in Cardiff and, on 14th October 2016, Mr Evans was acquitted.

The key piece of legislation

Saturday, 15 October 2016

Speech by Donald Tusk ~ setting out the stall

This brief post highlights a significant speech in which the European Council President refers to Brexit - Speech by European Council President (Donald Tusk) at the European Policy Centre Conference

Mr Tusk said:  " ..... let's move on to Brexit. As for the negotiations, the situation is pretty clear. Its framework will be set out by the European Council - that is by the guidelines foreseen in the Treaty. Our task will be to protect the interests of the EU as a whole and the interests of each of the 27 member states. And also to stick unconditionally to the Treaty rules and fundamental values. By this I mean, inter alia, the conditions for access to the single market with all four freedoms. There will be no compromises in this regard.

Thursday, 13 October 2016

High Court hearing on Article 50 ~ the transcript

Updated 20th and 24th October - additional links

On 13th, 17th and 18th October 2016 the High Court heard the cases of R (Santos) v Secretary of State for Exiting the European Union and M v Secretary of State for Exiting the European Union.  The court composition was the Lord Chief Justice, Master of the Rolls and Lord Justice Sales.

A very welcome development was the publication of transcripts of the proceedings - see Courts and Tribunals Judiciary website

The issue in the case was stated by Lord Pannick QC (Counsel for Gina Miller) - "Can the defendant, on behalf of the government, lawfully use prerogative powers to give a notification under Article 50 of the Treaty on European Union of this country's intention to withdraw from the EU."

The court will give judgment in the near future.

Similar proceedings are underway in Northern Ireland and here is the skeleton argument of the government.


UK Constitutional Law Association Blog - Robert Craig - Report on the proceedings 13th October (i.e. the first day of the hearing) and On the Second Day of the Hearing and On the Third (and final) Day of the Hearing.   Note: the Association's blog has numerous articles on many aspects of "Brexit."

Jolyon Maugham QC - Financial Times 14th October - The Article 50 challenge shows parliament should have its say.  Also see, by the same author,  A whine from sour grapes.

Michael Zander QC - New Law Journal - Oral arguments in the Art 50 court case

New York Times - Without a Constitution; "Bexit" is guided by a prerogative.  But whose?

UK Constitutional Law Group - Piet Eeckhout - The UK decision to withdraw from the EU: Parliament or Government 

My view of 27th June and links to views of other commentators

Friday, 7 October 2016

Human rights news

Proposed derogations from European Convention on Human Rights:

Journalonline has reported that proposals to  derogate from the European Convention on Human Rights in relation to the actions of British troops involved in foreign conflicts, were announced at the Conservative Party Conference.  "Defence Secretary Michael Fallon said that in future conflicts, subject to a vote of both Houses of Parliament, the UK would "derogate" from article 2 (right to life) and article 5 (right to liberty) of the Convention.  Troops will remain subject to other articles of the Convention, including the prohibition on torture. The changes will not apply retrospectively.  The Government claims the derogations will prevent "vexatious" claims being brought against the armed forces by foreign civilians."

Wednesday, 5 October 2016

Great Repeal Bill - some of the reaction

In her speech of 2nd October 2016, the Prime Minister duly announced that there is to be a Great Repeal Bill to repeal the European Communities Act 1972 - (previous post).  The Bill will transpose into domestic law a mass of European Union legislation and powers will be given to Ministers to make domestic secondary legislation so that changes to the law may be made after Brexit actually takes place.  The problem with secondary legislation made under powers given to Ministers is that it usually receives minimal Parliamentary attention and this is a point which MPs would do well to consider carefully.

Unsurprisingly, the idea of the Great Repeal Bill has resulted in considerable comment and here is some of it:

Sunday, 2 October 2016

A Great Repeal Bill? A note just before the Conservative Party Conference.

The Conservative Party Conference is to be held in Birmingham from Sunday 2nd October to Wednesday 5th.  As usual, there will be "keynote speeches" by the Prime Minister and other senior Ministers - see the Conservative Party Conference Agenda.

Two items in the agenda struck me as being potentially in conflict.  Under the heading "Global Britain: Making a success of Brexit" there will be speeches by the Prime Minister and three speeches by the Secretaries of State for Exiting the EU (David Davis MP), for International Development (Priti Patel MP) and for Foreign and Commonwealth Affairs (Boris Johnson MP).  Interestingly, the Secretary of State for International Trade (Liam Fox MP) gets a slot on Monday afternoon.

On Wednesday

Thursday, 29 September 2016

Smiler Rollercoaster Accident ~ Health and Safety

On 2nd June 2015, members of the public suffered life changing and serious injuries in an accident on the Smiler Rollercoaster at Alton Towers.  The company responsible for the rollercoaster - Merlin Attractions Operations Ltd - was charged with an offence under section 33(1) of the Health and Safety at Work etc Act 1974.  The company therefore accepted that it had failed to conduct its undertaking in such a way as to ensure, so far as was reasonably practicable, that the visitors to Alton Towers theme park were not exposed to material risks to their health and safety.

The company entered a guilty plea when the case first appeared in the Magistrates' Court and the case was committed for sentence to the Crown Court at Stafford where the sentencing was conducted by His Honour Judge Michael Chambers QC.    The judge's sentencing remarks highlight the company's failure to assess risk and to have in place a structured system of work.  Following application of sentencing guidance for Health and Safety offences, a fine of £5 million was imposed.

The Health and Safety Executive (HSE) has published Health and Safety Guidelines for Fairgrounds

See also HSE Statement 25th February 2016 and  22nd April 2016

Independent Inquiry into Child Sexual Abuse - Counsel to the Inquiry

Updated 30th September:

The Independent Inquiry into Child Sexual Abuse - previous post - is in the news this morning.  It has emerged that Mr Ben Emmerson QC (Counsel to the Inquiry) has found out that he has been "suspended" from his duties to the inquiry.  The Inquiry has issued a statement dated 29th September in which it is said:

"The Inquiry has recently become very concerned about aspects of Mr Emmerson's leadership of the Counsel Team. He has therefore been suspended from duty so that these can be properly investigated.

Suggestions in the press that Mr Emmerson was considering resigning after raising disagreements over the future direction of the Inquiry are untrue. They are not a matter on which he has advised the Chair or Panel."

What those concerns are is not explained.  It would be wrong to speculate on this but the public interest demands a more detailed explanation of the Inquiry's decision.

Update 30th September:

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.

Mishcon de Reya has published the Skeleton Argument of the Lead Claimant (Gina Miller) - link HERE.

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 People’s Challenge IPs invite the Court to declare that the UK’s constitutional arrangements mean that only Parliament can lawfully “decide” to leave the EU for the purposes of Article 50 TEU; and that the Defendant may only “notify” such a decision to the European Council under Article 50(2) TEU once he has been properly authorised to do so by an Act of Parliament.

The government's Detailed Grounds of Resistance are HERE and the Secretary of State's Skeleton Argument is HERE  

The case will be heard at a public hearing in the High Court (Queen's Bench Divisional Court) commencing 13th 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 People’s Challenge IPs invite the Court to declare that the UK’s constitutional arrangements mean that only Parliament can lawfully “decide” to leave the EU for the purposes of Article 50 TEU; and that the Defendant may only “notify” such a decision to the European Council under Article 50(2) TEU once he has been properly authorised to do so by an Act of Parliament.

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


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?