Tuesday, 17 January 2017

Whole Life Sentences for Murder

The Grand Chamber of the European Court of Human Rights has given judgment in Hutchinson v UK.    By a majority of 14 to 3, held that there was no violation of Article 3 of the Convention with respect to the "whole life sentence" imposed on Arthur Hutchinson.   (Judges López Guerra; Pinto de Albuquerque; and Sajó dissented).  Previous posts - 3rd February 2015 and 12th June 2015.


The circumstances of the case are below.


Saturday, 14 January 2017

UK Supreme Court - judgments on 17th and 18th January

Updated 17th January ...

On 17th January, the Supreme Court will hand down judgment on points of law arising in a number of long-running cases arising mainly from Armed Forces operations in Iraq and Afghanistan.   See Supreme Court Case Details.

The Belhaj case is somewhat different in that Mr Belhaj claims that he was abducted, with British complicity, to Libya.  Mr Belhaj was an opponent of Colonel Gaddafi - see the Reprieve website.


The Supreme Court appeals in these cases were heard a considerable time ago - Belhaj and Rahmatullah in November 2015 - (7 Justices) and Mohammed and Al-Waheed in February 2016 - (9 Justices).

Please see post UK Supreme Court - more Iraq/Afghanistan litigation (1st February 2016).  That post has several links to material that was referred to in the February 2016 hearing.

Thursday, 12 January 2017

Drones - Speech by Attorney General

The Attorney General (Jeremy Wright QC MP) has delivered a speech to the International Institute for Strategic Studies - The modern law of self-defence (video) and the government has published the text of the speech - HERE.   See also The Guardian 12th January 2017 - 'Specific' terror evidence not necessary for RAF drone strikes.

Mr Wright said that he welcomed the opportunity to speak on an international question which is one of the most serious any government can face – when is it lawful for a state to use force – always a last resort and only where it is necessary.  He chose to set out how the UK applies the long-standing rules of international law on self-defence to our need to defend ourselves against new and evolving types of threats from non-state actors.

Tuesday, 10 January 2017

Article 50 Treaty on European Union

A previous post looked at the point whether a Article 50 notification may be withdrawn by the State which gave the notice - Absent from the Feast - December 2016.  As far as I am aware, there is no definitive answer to that question though withdrawal of the notice by mutual agreement would seem possible.

Article 50 has received a considerable examination in a paper by Piet Eeckhout (University College London, Faculty of Laws) and Eleni Frantziou (University of Westminster) - Brexit and Article 50 TEU: A constitutionalist Reading.

Monday, 9 January 2017

Human Rights

As The Independent 29th December 2016 reports - Theresa May is planning to make leaving the European Convention on Human Rights ("the Convention") a central aspect of her 2020 election campaign.  She would reportedly plan to transfer the rights from the international body into British law, to be applied by the Supreme Court.  Mrs May will be looking for a solid mandate from the British public – and a stronger majority in Parliament – to proceed with the controversial process of leaving the Convention.

The international body

Saturday, 7 January 2017

Brexit litigation in the Supreme Court - Government responses on the final day

This is the final post looking at the government's appeal to the Supreme Court in the "Brexit litigation".  The appeal is against the decision of the High Court that the Secretary of State does not have the power under the Crown's prerogative to give notice pursuant to Article 50 of the Treaty on European Union (TEU) for the United Kingdom - R(Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).   Day 4 of the hearing concluded with responses by the Advocate General for Scotland and by Mr James Eadie QC for the government.

Transcript Day 4 - Morning and afternoon combined - 4 page version (PDF)

Advocate General for Scotland - (AGS) - Transcript Day 4 at pages 130 to 147.

Thursday, 5 January 2017

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (5)

The previous post looked at submissions by Helen Mountfield QC on behalf of  Graham Pigney and others.  This post looks at submissions by Manjit Gill QC for interested parties AB, KK, PR and children and then Patrick Green QC for the "ex pat" interveners George Birnie and others. 

Written cases were submitted to the court: Gina Miller; Deir Tozetti Dos Santos; Graham Pigney and othersAB, KK, PR and children

Transcript Day 4 - Morning and afternoon combined - 4 page version (PDF)

Mr Manjit Gill QC - Transcript pages 101 to 115

Wednesday, 4 January 2017

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (4)

This post looks at submissions by Helen Mountfield QC on Day 4 of the Brexit hearing in the Supreme Court.  The submissions were  for interested parties Graham Pigney and others,

Written cases were submitted to the court: Gina Miller; Deir Tozetti Dos Santos; Graham Pigney and othersAB, KK, PR and children

Transcript Day 4 - Morning and afternoon combined - 4 page version (PDF)

Helen Mountfield QC - Transcript Day 4 page 60 to 100

Tuesday, 3 January 2017

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (3)

The government appealed against the High Court's decision that the Secretary of State does not have the 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 -R (Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).

The government's case as put to the Supreme Court was considered in two posts - here and here.  Arguments for Gina Miller were put by Lord Pannick QC on Day 2 - (see here) and in the morning of Day 3 - (see here).

This post looks at the submissions on Day 3 by Mr Dominic Chambers QC for Mr Dos Santos.  Submissions on Day 4 will be the subject of the next post.  Those submissions were  - Helen Mountfield QC for interested parties Graham Pigney and others; Manjit Gill QC for interested parties AB, KK, PR and children and then Patrick Green QC for the "ex pat" interveners George Birnie and others.

Monday, 2 January 2017

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (2)

This is Part 2 of posts looking at the arguments put forward by Gina Miller and others.  The government mounted a powerful assault against the High Court's decision that the Secretary of State does not have the 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 -R (Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).

The government's case as put to the Supreme Court was considered in two posts - here and here.  Arguments for Gina Miller were put by Lord Pannick QC on Day 2 - (see here) and in the morning of Day 3.  Also on Day 3, the court heard Dominic Chambers QC (acting for Mr Dos Santos).

Saturday, 31 December 2016

Happy New Year 2017

: A Very Happy New Year 2017 :





Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (1)

As can be seen from the previous two posts - here and here - the government mounted a powerful assault against the High Court's decision that the Secretary of State does not have the 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 -R (Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).

Writing on the UK Constitutional Law blog (15th October), Professor Sionaidh Douglas-Scott noted the large number of commentators who were critical of the High Court judgment - (see, for example, the postings on the Judicial Power Project) - and who sought to provide what were perceived to be stronger arguments, often in highly technical, elaborate detail, that the government might use.  Much of this material was indeed used by the government to mount its appeal - e.g. the article about the prerogative by Professor Timothy Endicott.

Thursday, 29 December 2016

Brexit litigation in the Supreme Court - Miller and Dos Santos - the government case (2)

This post continues looking at the arguments put forward by the government in its appeal against the High Court's decision in R (Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).  The High Court held that the Secretary of State does not have the 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 first post looked at the first 3 of 6 stages in the submissions put forward by Mr James Eadie QC on behalf of the government.

D)  Application -

Wednesday, 28 December 2016

Brexit litigation in the Supreme Court - Miller and Dos Santos - the government case (1)

The government's appeal to the Supreme Court was from the decision of the High Court R(Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).   Transcripts of the High Court hearing are at the Courts and Tribunals Judiciary website and the judgment was considered in 3 earlier posts on this blog.  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. 

Day 1 - Morning and afternoon combined (PDF) - Mr Eadie from page 16. 

Day 2 - Morning and afternoon combined (PDF)

The government's written case

Monday, 26 December 2016

Brexit litigation in the Supreme Court - Devolution (4) - Government case

This is the 4th post on devolution issues in the Supreme Court of the UK Brexit litigation and looks at the submissions by the Advocate General for Scotland (Lord Keen of Elie QC) and by the Attorney-General for Northern Ireland (Mr John Larkin QC).

The government submitted a supplementary written case - Supplementary: Secretary of State for Exiting the European Union (devolution issues).

Advocate General for Scotland (AGS)

Transcript Day 2 at pages 74 to 117. 

The Advocate General also adopted as part of his case a paper on devolution issues by Dr Tony McGleenan QC and Paul McLaughlin.

The AGS addressed 3 themes.  (1) Sovereignty and the prerogative; (2) the constitutional status of the devolution legislation and (3) the Sewel Convention.

Saturday, 24 December 2016

Brexit litigation in the Supreme Court - Devolution (3) - Lord Advocate for Scotland and Counsel General for Wales

The castle at Harlech
This is the 3rd post looking at the devolution aspects of the Brexit litigation in the Supreme Court of the UK.  The post looks at the submissions by the Lord Advocate for Scotland (Mr James Wolffe QC) and the Counsel General for Wales (Mr Mick Antoniw - represented in court by Mr Richard Gordon QC).

Lord Advocate for Scotland - Transcript Day 3 from page 143 and Day 4 to page 15


Scotland voted in favour of the UK staying in the EU by 62% to 38% (Turnout 67%) - with all 32 council areas backing Remain. 

Friday, 23 December 2016

Brexit litigation in the Supreme Court - Devolution (2) - Northern Ireland

In the European Union (EU) referendum held on 23rd June, the people of Northern Ireland voted (55.8% to 44.2% - turnout 62.7%) to remain in the EU and so it is not surprising to find strong feeling about the plans of the UK government to use prerogative power to give notice, under Article 50 Treaty on European Union, that the whole of the UK is to leave the EU.  If the UK government is successful then the notice could be given without formal reference to the devolved institutions of Northern Ireland.

High Court of Northern Ireland:

The first legal move came with the litigation in the High Court of Northern Ireland before Mr Justice Maguire - Re McCord's Application [2016] NIQB 85.  The court had two applications for judicial review: one by Mr Raymond McCord and the other by various applicants referred to as Agnew and others.  The judgment extends to 158 paragraphs.   Five principal issues were raised (para 9):

Tuesday, 20 December 2016

Brexit litigation in the Supreme Court - Devolution (1)

Arguments based on the various devolution settlements were put forward with a view to persuading the Supreme Court to declare that the UK government could not, without further intervention by Parliament, lawfully use prerogative power to give notice to the European Council under Article 50 (Treaty on European Union).  For its part, the UK (central) government argued that the various devolution settlements have not affected its power - (if it exists) - to give the notice.

With the exception of the  judgment of Maguire J in Re McCord's Application [2016] NIQB 85 there were no first instance hearings of the devolution questions - previous post on this case. There were Interventions by the Lord Advocate for Scotland and the Counsel General for Wales.  From Northern Ireland there was a Reference under the Northern Ireland Act 1998 from the Attorney General for Northern Ireland and also from the Court of Appeal Northern Ireland. (See this post for detail of Interveners).

The Supreme Court's oral hearings ran to a timetable and took place against a background of written cases (and supporting materials).


Monday, 19 December 2016

Brexit Litigation in the High Court - Overview of the High Court judgment (3)

This is the third and final Part 3 of my overview of the High Court's judgment in R (Miller and Dis Santos) v Secretary of State for Exiting the EUSee Part 1 and Part 2.

The approach to the interpretation of the ECA 1972 as a constitutional statute – paras 82 to 85


At para 82 the court said - Statutory interpretation, particularly of a constitutional statute which the ECA 1972 is ... must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislating in the terms it did. This is part of the basic approach to be adopted by a court engaging in the process of statutory interpretation. Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them and not to undermine them. One reads the text of the statute in the light of constitutional principle. In the particular context of the primary legislation which falls for interpretation, can it be inferred that a Parliament aware of such constitutional principle and respectful of it intended nonetheless to produce effects at variance with it? 

Brexit Litigation in the High Court - Overview of the High Court judgment (2)



This post is Part 2 of my overview of the High Court's judgment in R (Miller and Dos Santos) v Secretary of State for Exiting the EU.  See also Part 1 and Part 3

The need for the ECA 1972 and its effect on the law of the United Kingdom

Para. 41 of the judgment begins by stating that, as a practical matter, by reason of the limits on its prerogative powers ... the Crown could not have ratified the accession of the United Kingdom to the European Communities under the Community Treaties unless Parliament had enacted legislation.   

The words “as a practical matter” are important here.  In 1972, there was no legal requirement for Parliament to be involved in the ratification of a Treaty.  There was a constitutional convention – known as the Ponsonby Rule – that Treaties subject to ratification were to be laid before both Houses of Parliament for 21 sitting days before ratification took place.  A useful explanation of the Rule and the reasons for it may be read in this 2001 report.

Enacting legislation before ratification avoided the problem that would arise if the government had committed the UK internationally but Parliament had then refused to enact the legislation needed to give effect to the Treaty domestically.  The European Communities Act 1972 received Royal Assent on 17th October 1972 and the instrument of ratification was deposited on 18th October 1972.