Saturday, 29 April 2017

27th April ~ Bills receiving Royal Assent



The Dissolution of the 2015-2017 Parliament is on 3rd May.  The General Election on 8th June.  The following Bills received Royal Assent on 27th April.  This is the result of the so-called "Wash Up" process.



Thursday, 27 April 2017

Manslaughter by motor vehicle ~ Death of Police Officer

On 5th October 2015, Constable David Phillips of the Merseyside Police was killed when he was struck by a stolen vehicle, driven at speed towards him by Clayton Ronald Williams, who was then aged 18.

On 21st March 2016, in the Crown Court at Manchester (William Davis J and a jury) Clayton Williams was convicted of manslaughter. He was sentenced for that offence and also for offences of burglary and aggravated vehicle taking resulting in death, to which he had previously pleaded guilty.  The sentence was - imprisonment for 20 years for the manslaughter and concurrent terms of 2 years for burglary and 8 years for aggravated vehicle taking resulting in death.  He was also disqualified from driving for life.

Saturday, 22 April 2017

Road Traffic ~ Speeding penalties ~ Dangerous driving

Speeding fines are subject to new sentencing guidelines which are effective from 24th April 2017 - Sentencing Council Guidelines - Speeding.   For an explanation of Fine Bands - see here.   The driver with a recorded speed of 41 to 50 mph in a 30 mph limit will face a Band B fine and 4 to 6 penalty points.  Disqualification is also possible.

Here are two recent cases involving dangerous driving.

Tania Chikwature:

The offence of dangerous driving is defined in the Road Traffic Act 1988 section 2 and the meaning of dangerous driving is set out in section 2A.   One recent example of dangerous driving is that of Tania Chikwature who was driving a Nissan Qashqai in December 2016.  The website of the Cambridgeshire Police has details of the case including video taken from the cab of a lorry which was overtaken by Chikwature on the approach to a roundabout.

Thursday, 20 April 2017

General election on 8th June

There WILL be a general election on 8th June.  The preceding post looked at the requirements for an "early election" in the Fixed-Term Parliaments Act 2011 and the necessary majority was secured in the House of Commons on Wednesday 19th April.  MPs approved the motion for an early general election by 522 to 13.  The support of two-thirds of all MPs required for this motion to pass was reached - Parliament 19th April.

Parliament has to be dissolved 25 working days before Polling Day (8th June).  This means that Parliament will be dissolved on Wednesday 3rd May.

Tuesday, 18 April 2017

Prime Minister wants a general election on 8th June 2017

There MAY be a general election on 8th June 2017 - BBC NEWS 18th April.  This will be subject to securing a vote in the House of Commons for an early election as required by the Fixed Term Parliaments Act 2011

Section 2 of the Act specifies when an early election may be held.   An early parliamentary general election is to take place if -

(a)  the House of Commons passes a motion in the form set out in subsection (2), and

Monday, 17 April 2017

Tony Blair, the Iraq War and 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.

According to The Guardian 16th April 2017, an attempt to bring a private prosecution of Tony Blair for the crime of aggression was rejected by a District Judge (Magistrates' Courts) at Westminster Magistrates' Court.  The judge refused to issue a summons but, as far as I can ascertain, the reasons of the judge for doing so were not published.  The Guardian report goes on to say that the present Attorney General - Jeremy Wright QC - is involved in proceedings in the High Court in which the District Judge's decision is being challenged.  The Attorney seeks to stop the prosecution and the basis for doing so is that the crime of aggression is unknown to English law.

Friday, 7 April 2017

School attendance ~ Isle of Wight Council v Platt

The Education Act 1996 section 444 defines two offences applying to parents of children of compulsory school age.

(1)  If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(1A)  If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

The Supreme Court

Tuesday, 4 April 2017

Police Bail Pre Charge ~ A note on changes to the law


The Policing and Crime Act 2017 is yet another large Act comprising 184 sections (divided into 9 Parts) and 19 Schedules.  A further 204 pages of Explanatory Notes have been published.  Police Powers are the subject of Part 4 of the Act which encompasses several aspects of the law including amendment of the law relating to PRE-charge Bail.

The problem:

A considerable number of cases have raised concern about the length of time that individuals have been subjected to Police Bail whilst investigation continues.  Conditions attached to such "pre-charge bail" have, at times, been very onerous.  One high profile example was the case of BBC Presenter Mr Paul Gambaccini who was falsely accused of a sexual offence - see Telegraph 10th October 2014 and The Independent 3rd March 2015.  Apart from the trauma of being falsely named as a suspect, Mr Gambaccini was suspended from work by the BBC.

Saturday, 1 April 2017

Gibraltar - a rock and a hard place

Updated 5th April 

The DRAFT guidelines of the European Council for the forthcoming Brexit negotiations contain much that is sensible but paragraph 22 is an "elephant in the room":  "After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom."

This post offers some tentative thoughts on this paragraph which brings into the arena the long-standing tension between the UK and Spain over Gibraltar. 

Friday, 31 March 2017

EU Commission - Brexit negotiation taskforce

The previous post looked at the DRAFT guidelines  issued by the European Council for the conduct of Brexit negotiations with the UK.  The European Commission will do most of the actual negotiation.

The EU Commission has published details of the negotiating team (or Taskforce) that will be handling the UK's Brexit negotiations - see Taskforce on Article 50 negotiations with the UK   The EU negotiating team will be head by French politician Michel Barnier.

The European Parliament has published Article 50: How the future of EU-UK relations will be decided and, on 29th March, a DRAFT was published of Conditions for approving UK withdrawal agreement.  The draft will be debated and voted on by the European Parliament on Wednesday 5th April. It attaches great importance to fair treatment of EU-27 citizens and stresses the need for reciprocity and non-discrimination between UK citizens living in the EU and EU citizens living in the UK.


On 1st March the EU presented a White Paper on the future of Europe: Avenues for unity for the EU at 27.  This paper has relevance because it looks at ways in which the EU will develop towards 2025 and those will be crucial years for the UK as it departs from the EU.

European Council - DRAFT guidleines for Brexit negotiations

The European Council has issued DRAFT guidelines for the conduct of Brexit negotiations.

Commenting on the draft, Mr Donald Tusk (European Council President) outlined the main points which would be treated as fundamental:


"Our duty is to minimise the uncertainty and disruption caused by the UK decision to withdraw from the EU for our citizens, businesses and Member States. As I have already said, in essence it is about damage control.

Thursday, 30 March 2017

The Great Repeal Bill - White Paper unveiled

The Secretary of State for Exiting the European Union has presented the government's White Paper on the "Great Repeal Bill" to the House of Commons - White Paper - Legislating for the United Kingdom's Withdrawal from the European Union.  The actual Bill will not be published until early in the next session of Parliament.  The White Paper is little more than an overview of how the government plans to proceed with Brexit.  It lacks detail.

Over the 44 years since the UK's accession to the European Communities, EU law has become virtually part of the DNA of the law governing the UK.  Its influence extends to almost every area of our lives.  Extracting the UK from this is bound to be a difficult and complicated task going well beyond a simple repeal of the European Communities Act 1972.

Wednesday, 29 March 2017

Article 50 notice - The end of the beginning

"This is not the end. It is not even the beginning of the end but it is perhaps, the end of the beginning."  Those words of Winston Churchill seem apt today as the UK government takes the formal step of commencing the withdrawal of the UK from the EU.

Article 50 of the Treaty on European Union (TEU) was "triggered" today and the letter from the Prime Minister to the EU Council President may be seen via this link.   See also the Prime Minister's statement in the House of Commons
 
The European Parliament has published "How the future of EU - UK relations will be decided"  Starting today the UK and the EU have two years to negotiate a withdrawal agreement. In addition the two parties will need to start determining their future trade relations, though this is expected to take significantly longer than two years.

The withdrawal negotiations are to be conducted in accordance with guidelines to be issued as a draft by the European Council almost certainly later this week.  The European Council (27 member states) will convene on 29th April.  The UK remains a member during the negotiations but may not participate in Council discussions about Brexit - see Art 50(4).  The negotiation will be conducted by the European Commission acting on behalf of the Council.

Tuesday, 28 March 2017

R v Alexander Wayne Blackman - sentencing for manslaughter

On 15th March, the Court Martials Appeal Court substituted a conviction for manslaughter in the case of former Royal Marine Alexander Wayne Blackman - previous post.   The substitution of a manslaughter conviction was on the basis of diminished responsibility at the time of the offence (September 2011).  On Tuesday 28th March, a sentence of 7  years imprisonment was imposed - read the court's sentencing remarks.  The court directed that time on remand in service custody be counted towards the sentence.  Mr Blackman remains dismissed from the Armed Forces but this is NOT with disgrace.

Monday, 27 March 2017

An unfair proposed amendment to the Prisons and Courts Bill

Note: Due to the General Election called for 8th June, the Prisons and Courts Bill will not proceed - Law Society Gazette

The offence of rape is among the most serious in our criminal law. The maximum available sentence is life imprisonment.  Rape Crisis England and Wales has published figures from the government's Overview of Sexual Offending in England and Wales (January 2013).  It is said that approximately 85,000 women and 12,000 men are raped in England and Wales each year and that conviction rates for rape are far lower than other crimes, with 5.7% of reported rape cases ending in a conviction.

Thursday, 23 March 2017

Criminal justice ~ Pre Recorded Cross-Examination and Re-Examination.

The Youth Justice and Criminal Evidence Act 1999 Part 2 Chapter 1 (YJCEA) introduced into English law a range of "special measures" which may be applied when "vulnerable and intimidated witnesses" give evidence at a trial.   Changes were made by the Coroners and Justice Act 2009 sections 98-103 which came into force on 27th June 2011.   The law is summarised on the Crown Prosecution Service website.
There is no doubt that for many witnesses attendance at court is a highly daunting and even frightening experience.  "Special measures" are intended to assist vulnerable and intimidated witnesses to give their best evidence in court by relieving some of the stress associated with giving evidence in the public arena of the courtroom.  Special measures apply to witnesses (whether prosecution or defence) but they do not apply to defendants.
Possible measures are -

Lord Chancellor was "completely and utterly wrong"

On Wednesday 22nd March, the Lord Chief Justice - (Lord Thomas) - gave evidence to the House of Lords Constitution Committee.  The session may be viewed via this link, lasts approximately one hour and looks at a considerable number of problems facing the legal system and the judiciary.

The session covered, among other things, the need for the Lord Chancellor to uphold the independence of the judiciary.  Lord Thomas was of the view that the present Lord Chancellor was "completely and utterly wrong" in the view she took at the time of the infamous Daily Mail "Enemies of the People" headline.  I wrote about it at the time - A Jewel Beyond Price 5th November 2016.  Lord Thomas said that judges can be criticised and he welcomed constructive criticism of decisions but there was a difference between criticism and abuse.  According to Lord Thomas, the headline has resulted in some litigants in person saying that circuit judges are enemies of the people.

Friday, 17 March 2017

European Union (Notification of Withdrawal) Act 2017

Update 20th March 2017 - Article 50 will be triggered on 29th March - see this statement.  The European Council President stated that draft guidelines for the subsequent negotiations will be issued within 48 hours of the Brexit notification.
----------


The European Union (Notification of Withdrawal) Act 2017 is in force.  Royal Assent was given on 16th March.  The legislative journey began on 26th January, after the Supreme Court’s judgment in the Miller case.

The Act gives the Prime Minister the power to notify the European Council of the United Kingdom's intention to withdraw from the EU. This will commence the 2 year period referred to in Article 50 of the Treaty on European Union.  During that time, negotiations will take place with a view to concluding an agreement with the UK, setting out the arrangements for withdrawal, taking account of the framework for the UK's future relationship with the Union.   Article 50 requires the negotiations to be conducted "in the light of the guidelines provided by the European Council."  At present, no such guidelines have been published.  The 2 year period can be extended as provided by Article 50.

Thursday, 16 March 2017

R v Alexander Wayne Blackman ~ Conviction reduced to manslaughter

In September 2011, Royal Marine Sergeant Blackman and his unit were operating in Helmand Province, Afghanistan.  They came across an insurgent who had been severely wounded by helicopter fire.  Sergeant Blackman killed the insurgent.

At a trial by Court Martial, Sergeant Blackman was convicted of murder, sentenced to life imprisonment with a minimum term to serve of 10 years.  He was also reduced to the ranks and dismissed with disgrace from the Armed Forces.  His defence at trial was that the insurgent was already dead. but this was rejected by the Court Martial.  No defence of diminished responsibility was raised and no psychiatric evidence was called at trial.  A psychiatric report was obtained for sentencing purposes.   On an appeal in 2014 to the Court Martial Appeals Court, the conviction for murder was upheld but the minimum term was reduced to 8 years.

Tuesday, 14 March 2017

Mental Health - Law Commission proposes replacing Deprivation of Liberty Safeguards (DoLs)

In 2014, the Supreme Court decided the Cheshire West case - [2014] UKSC 19.   The case was about the criteria for judging whether living arrangements made for a mentally incapacitated person amounted to a deprivation of liberty.  If they do, then, then the deprivation has to be authorised, either by a court or by the procedures known as the Deprivation of Liberty Safeguards (DoLs), set out in the Mental Capacity Act 2005.  

The Law Commission has examined the law in this area and, on 13th March, issued a report. 

Sunday, 12 March 2017

A Trilogy of Speeches

Lord Neuberger (President of the Supreme Court) delivered the Neill Lecture at Oxford on 10th February 2017.  He retires this year and the selection process for his successor is well underway.  The Supreme Court was created by the Constitutional Reform Act 2005 and replaced the Appellate Committee of the House of Lords.   Lord Neuberger was a Lord of Appeal in Ordinary from 2007 to 2009 and became Master of the Rolls on 1st October 2009.  In 2012 he was appointed President of the Supreme Court and, under his leadership, the Supreme Court has developed a remarkable degree of public acceptance largely because of the ways in which it communicates with the general public through televised hearings, prompt publication of judgments and press releases on the court website.  The handing down of judgments also appears on Facebook.  Additionally, members of the court are frequent guest speakers and the content of their speeches is always of considerable interest not only to lawyers but to the public.  Lord Neuberger's speech at Oxford is no exception and it may be read at - "20 years a judge: Reflections and Refractions" - Neill Lecture, Oxford Law Facility 10th February 2017.

Saturday, 11 March 2017

Two libel cases

The law of defamation developed at common law but has been modified in various ways by Parliament.  For example, the Defamation Act 2013 (fully in force 1st January 2014) introduced a "serious harm requirement."

Judgments in the two decided cases are available via the Courts and Tribunals Judiciary website:

Hourani v Thomson and others [2017] EWHC 432 (QB) Warby J 

Monroe v Hopkins [2017] EWHC 433 (QB) Warby J 

Tuesday, 7 March 2017

Another amendment to the Brexit Notification Bill

The European Union (Notification of Withdrawal) Bill has been amended by the House of Lords at Report Stage.  This is in addition to an amendment made at Committee Stage.

Here is the amended version.  The amendment is aimed at securing Parliamentary approval for the outcome of Article 50 TEU negotiations with the EU.  The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.

The Bill will return to the House of Commons which may or may not accept this amendment.  The government does not wish the amendment to be in the Bill because they claim it will harm the UK's negotiating position.  For a contrary view see Jolyon Maugham QC's blog Waiting for Godot.

It may be worth noting that Article 50(2) requires the European Parliament to consent to a Withdrawal Agreement. Without consent, the European Council cannot conclude such an agreement.

The question of whether the UK could unilaterally revoke an Article 50 notice has not (yet) been answered.  On this see The Three Knights Opinion.

Youth Justice Developments



Report December 2016:

In December 2016 a "final report" on Youth Justice was published - Review of the Youth Justice System in England and Wales (Cm 9298).  The report contains numerous recommendations (Annex A) but perhaps paragraph 179 of the report offers a succinct summary: "

Our aim should be to create a 21st century system that moves away from justice with some welfare, to a welfare system with justice."

The Martin Partington blog has also looked at the report.

The Great Repeal Bill ~ Constitution Committee Report

It was at the Conservative Party Conference 2016 that the idea first appeared of a "Great Repeal Bill" to take the UK out of the EU.  Some of the early reaction to the idea was noted in this previous post.  An obvious concern about such a Bill is that it is likely to hand enormous powers to Ministers to make secondary legislation as they seek, item by item, to remove from domestic law the influence of the EU.  Regrettably, Parliamentary control over the enactment of such legislation is not always as rigorous as it might be.

The House of Lords Constitution Committee has issued this report on the proposed Great Repeal Bill - Great Repeal Bill should not be used to avoid parliamentary scrutiny

Monday, 6 March 2017

A whacking huge bill to leave the EU ?

It has been claimed that the European Union (EU) will "force" the UK to pay up to €60 billion when the UK leaves the EU - Business Insider UK 15th November 2016

On 4th March, the European Union Committee published "Brexit and the EU budget" - 15th Report of Session 2016-17 - House of Lords Paper 125.  The Report Summary notes that the budget will be a contentious issue during the UK's negotiations over leaving the EU.  The UK provides approximately 12% of the resources available to the EU budget, and is also a significant net contributor. The removal of the UK’s payments into the budget will require the other EU Member States to agree either to pay more into the budget, or draw less from it. Neither option is without difficulty, and those difficulties may colour the wider Brexit negotiations.   The UK government has stated that it is open to making payments towards specific programmes in order to cement a cooperative future relationship with the EU but there are already demands from the EU, for much wider contributions.

Friday, 3 March 2017

More on the Brexit Notification Bill

The House of Lords has amended the European Union (Notification of Withdrawal) Bill.   The amendment has become Clause 1(2) and is aimed at requiring Ministers to bring forward proposals to ensure that the "EU derived-rights" of European Union (or European Economic Area)  citizens in the UK are protected - see the Bill as amended.   Clause 1(2) reads:

"Within three months of exercising the power under subsection (1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future."

Tuesday, 28 February 2017

Trial Jury discharged ~ Judge completed the case

Mr Justice Goss
In the Crown Court at Leeds, Mr Justice Goss found it necessary to discharge the jury in the trial of Sabir Hussain, Raja Hussain and Shahrear Islam Miah.   The defendants were charged with manslaughter arising from a staged collision on the roads which caused the death of Betty Laird (aged 88).  The collision was staged for the purposes of making fraudulent claims against insurers.

The jury was discharged because it came to light that there had been a concerted attempt to tamper with the jury.  In such a situation the trial judge has a power to discharge the jury and continue with the trial - Criminal Justice Act 2003 section 46.  The judge has to be satisfied that jury tampering has occurred and that to continue with the trial would be fair to the defendant(s).

Friday, 24 February 2017

Advertisements for very senior judicial posts

There was a time when there were no advertisements for judicial posts.  Appointments were made by the Lord Chancellor following a secretive process. 

The Constitutional Reform Act 2005 has made a sea change in practice and now an advertisement for the vital role of Lord Chief Justice has appeared - Judicial Appointments Commission.  Interestingly, the advert states - "Notifications of intent to apply are invited from candidates who are able to serve for at least 4 years before retirement."  This 4 years requirement will certainly rule out one or two who might have been possible candidates.    In law there is no upper or lower age limit for candidates apart from the statutory retirement age of 70.  Nevertheless, the advert states - "Given the need to deliver significant Court reforms and to steer the judiciary through our exit from the EU, the successful candidate is expected to be able to serve for at least 4 years."

Wednesday, 22 February 2017

Civil Partnership ~ the future?

The Court of Appeal has upheld the ban on heterosexual civil partnerships.

" ... Rebecca Steinfeld and Charles Keidan, are a young couple in a committed long-term relationship. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that the status of civil partnership would reflect their values and give due recognition to the equal nature of their relationship. Ms Steinfeld and Mr Keidan in good faith consider that marriage does not reflect the way in which they understand their commitment to each other or wish their relationship to be seen. Ms Steinfeld states in her witness statement that it is very important to them to have a civil partnership as the legal framework within which to raise their child as a CP would give their child a stable environment in which to grow up. They want their child to see the relationship as one of total equality reflecting the equal independent contribution which both parties make. They also desire the financial benefits of marriage and civil partnership, for example the rights of inheritance and relief from inheritance tax on death.  This would protect their child in the case of their premature death.  Moreover, they want their relationship to have the public recognition that registration as a civil partnership would bring."

Those were the words of Lady Justice Arden in the Court of Appeal (Civil Division) in Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81 (Arden, Beatson and Briggs LJJ).

Tuesday, 21 February 2017

House of Lords ~ EU (Notification of Withdrawal) Bill

On Monday 20th February the House of Lords commenced a two day second reading of the European Union (Notification of Withdrawal) Bill.  Proceedings may be seen via Parliament's website.  One notable matter was that the Prime Minister attended the debate and sat on the steps to the Throne.  Has that ever happened before?  It has attracted considerable comment and some criticism.  It appears that Privy Councillors have this right and that Mrs May attended in that capacity.  One lives and learns the quirks of our rather ancient constitution - see here!  One of the others sat there is Rt. Hon David Lidington MP - Leader of the House of Commons and Leader of the Council.  I don't know who the others are.

Update 22nd February:

Saturday, 18 February 2017

Thursday, 16 February 2017

Protecting Official Data (1)



The Law Commission, acting at the request of the Cabinet Office, has issued a detailed report on the Official Secrets Acts and has put forward provisional proposals for reforms. – Official Secrets Acts reviewed to meet the challenges of the 21st Century.    The report (Protection of Official Data) is available via the Commission’s website together with a summary and the Commission is consulting on the report.  The consultation period ends on 3rd April 2017.

The report has already met with considerable comment – for example -  International Business Times (Jason Murdock 2nd February), BBC News 2nd February,  The Guardian 13th February  (Shami Chakrabarti) and  Liberty 13th February.   Possibly in an attempt to distance itself from the proposals, the government commented that the proposals arose from a request by the previous government – The Guardian 13th February (Owen Bowcott and Rowena Mason) where it is reported that a No. 10 source said: “This is a consultation by an independent body instigated by a previous prime minister.” “It will never be our policy to restrict the freedom of investigative journalism or public service whistleblowing.”

Royal Wedding 2011 ~ Arrests held to be lawful

Almost 6 years after the events, the Supreme Court gave judgment in the case of Hicks and others v Commissioner of Police for the Metropolis  [2017] UKSC 9.   The case arose as a result of arrests made on the day of the Royal Wedding on 29th April 2011.  The arrests were based on prevention of public disorder.

The Supreme Court was concerned with Article 5 of the European Convention on Human Rights (ECHR).  Article 5 specifies the situations in which an individual may be deprived of liberty - see Article 5(1) and also note Article 5(3).  In particular, Article 5(1)(c) states:

"the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;"

For the purposes of the European Convention, a breach of the peace is considered to be an "offence" even though it is not classified as an offence under English law.

Tuesday, 14 February 2017

The future of Combat Immunity

On 1st December 2016, the Ministry of Defence commenced a consultation which runs until 23rd February 2017 - "Better Combat Compensation" -  "The MOD plans to introduce a new compensation scheme for injured armed forces personnel and families of those killed in combat. Compensation would be paid at levels which a court would award, and are often substantially greater than the current Armed Forces Compensation Scheme.  Our proposals would mean many more individuals and families would benefit from these larger awards, and unnecessary legal costs, delay and stress associated with litigation could be avoided. At the same time, the government intends to legislate to clarify the scope of the common law principle of Combat Immunity."

See the Consultation Document (13 pages pdf).  The government considers that it already has powers, under the Armed Forces (Pensions and Compensation Scheme) Act 2004, to set up the scheme and it said that the new scheme will work in parallel with the existing Armed Forces Compensation Scheme.  The way in which combat immunity will be defined is discussed in Section 2 of the Consultation Document.  The proposals would prevent courts from adjudicating on allegations that injury or death in the course of combat were the result of negligence.  Cases not arising from combat (as defined) will remain open to legal action in the courts.

The proposed scheme appears to be closely based on this article by Dr Jonathan Morgan (Cambridge University) - Military negligence: Reforming Tort Liability after Smith v Ministry of Defence.

Saturday, 11 February 2017

Iraq - the story continues

The aftermath of the UK's involvement in Iraq continues to unfold.

The Solicitors Disciplinary Tribunal decided that Mr Shiner, from the now defunct firm Public Interest Lawyers (PIL), was to be struck off the roll of solicitors - BBC News 2nd February 2017 - Iraq Lawyer Phil Shiner struck off over misconduct.   The BBC article reports that 12 charges of misconduct were proved against Mr Shiner and that in five of the proved charges he was found to have acted dishonestly, including agreeing to pay "sweeteners" to a fixer - named only as "Z" in tribunal papers to persuade him to change his evidence to the £31m Al-Sweady Inquiry.

Thursday, 9 February 2017

European Union (Notification of Withdrawal) Bill in the Lords

The European Union (Notification of Withdrawal) Bill proceedings in the Commons may have highlighted points of concern that could come back to haunt at a later date but the Bill passed without amendment through the Commons and received First Reading in the Lords on 8th February.   Second reading of the Bill will take place over 20th and 21st February.  See Parliament - EU (Notification of Withdrawal) Bill.

Already, there have been political noises that the Lords had best not take a stand against the Bill if it values its future!  The actual stance to be taken in the Lords remains to be seen but it can be noted that, by the so-called Salisbury Convention, the Lords will not vote down a Bill that seeks to enact a manifesto pledge on which a government was elected.

Thursday, 2 February 2017

Brexit - the White Paper

Update - Addendum 4th February

The day AFTER the conclusion of the Second Reading of the European Union (Notification of Withdrawal) Bill, the government published the White Paper - The United Kingdom's Exit from and Partnership with the European Union.   There are 12 key areas - Express - Brexit paper reveals UK plan:

●      Providing certainty and clarity where we can as we approach the negotiations.
●      Taking control of our own laws and statute book.
●      Strengthening the Union by securing a deal that works for the whole of the UK.
●      Maintaining the Common Travel Area and protecting our strong historic ties with Ireland.
●      Controlling immigration from the EU.
●      Securing the rights for EU citizens already living in the UK and the rights of UK nationals living in the EU.
●      Protecting and enhancing existing workers’ rights.
●      Ensuring free trade with European markets whilst forging a new strategic partnership with the EU.
●      Forging ambitious free trade agreements with other countries across the world.
●      Ensuring the United Kingdom remains the best place for science and innovation.
●      Cooperating in the fight against crime and terrorism.
●      And, finally, delivering a smooth, orderly exit from the EU.

Addendum 4th February:

Tuesday, 31 January 2017

New Chairman for SIAC, POAC and PAAC

Mrs Justice Elisabeth Laing became Chairman of SIAC, POAC and PAAC on 19th January - Judiciary announcement.  The previous Chairman was Mr Justice Flaux who, since December 2016, is now Lord Justice Flaux.

Special Immigration Appeals Commission (SIAC):

In 1998, the Special Immigration Appeals Commission Act (SIACA) 1997 established the Special Immigration Appeals Commission (SIAC) to hear appeals against immigration decisions in national security cases and introduced the radical concept of a 'closed material procedure' in which SIAC and security- cleared 'special advocates' would be able to consider sensitive material but the appellant and his representatives would not.   SIAC was a response to the ruling of the European Court of Human Rights in Chahal v United Kingdom 1996.  SIAC is a superior court of record.   "Members" of SIAC are appointed by the Lord Chancellor and one of them is appointed as Chairman - (SIACA Schedule 1). Here is an example of a recruitment advertisement for new lay members.

Thursday, 26 January 2017

European Union (Notification of Withdrawal) Bill

Update: 8th February - the Bill passed the House of Commons unamended.  First Reading in the Lords took place the same day.

Original post:

The European Union (Notification of Withdrawal) Billl was presented to Parliament today.   The Bill and other documents, including Explanatory Notes, are available HERE.

It is a Bill to "Confer power on the Prime Minister to notify, under Article 50(2) of the Treaty  on European Union, the United Kingdom’s intention to withdraw from the EU.


There are just 2 clauses:

1 Power to notify withdrawal from the EU


Brexit ~ Decision, Notice and the Withdrawal Bill

York Minister - Great West Window
In a post of 27th June 2016 - (It is Brexit (3) - the role of Parliament) - I argued that an Act of Parliament was required so that it was clear that the UK had made a decision to leave the EU.  The gist of the argument was that Article 50 TEU made a clear distinction between the decision to leave - Article 50(1) - and the notification of intention - Article 50(2).  It was necessary to be clear that a decision had been made in accordance with UK constitutional requirements.  The words in red are vital.  The referendum result could not amount to a decision taken in accordance with constitutional requirements because the referendum was not legally binding on anyone to do anything.  Parliament could have legislated to make it legally binding but had not done so.  It followed from this that an Act of Parliament was necessary to achieve a decision made in accordance with constitutional requirements.  The secondary matter of notice to the EU could follow once the Act was in place.  That was back in June 2016.

In October 2016,

Tuesday, 24 January 2017

Brexit litigation ~ Supreme Court gives judgment

Tuesday 24th January 2017 - the Supreme Court of the UK handed down judgment in the Miller and Dos Santos litigation and also in two references from Northern Ireland.  This post merely notes the judgments and fuller comments will follow.

The outcome is that legislation is required before notice may be given. 

The court was NOT concerned in any way with the political question of whether Brexit is desirable.  The court has answered the questions of LAW raised.

It was assumed by all parties to the case that notice under Article 50 may NOT be unilaterally withdrawn by the UK.  Further common ground was that a notice under Article 50 could not be given in qualified or conditional terms.  It was the Secretary of State's case that, even if the common ground was mistaken, it would make no difference to the outcome of the proceedings.  The court was therefore content to proceed on that basis without expressing any view of its own on those points.

There is NO appeal to any other court from this judgment.  The court was deciding questions of national law. No point of European Union law was referred to the Court of Justice of the EU.

Wednesday, 18 January 2017

UK Supreme Court - Brexit judgment

The Supreme Court will hand down judgments in the Brexit litigation on Tuesday 24th January at 9.30 am.  The court's decisions and brief reasons will be delivered by one of the Justices - (very probably the President, Lord Neuberger).  The full judgments will then become available via the Supreme Court's website.

Before the court are three matters - (1) Miller and Dos Santos v Secretary of State for Exiting the EU; (2) a devolution REFERENCE by the Attorney General for Northern Ireland and (3) a REFERENCE from the Court of Appeal (Northern Ireland).

Miller and Dos Santos:

7 years old

This blog was 7 on 14th January and it has certainly been an interesting period of time with the last 12 months dominated by the European Union (EU) Referendum held on 23rd June 2016.  In common with all human institutions, the EU is not perfect but it is founded on values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights - (Treaty on European Union).  As history shows only too well, those are values that we lose sight of at our peril.  The EU has the great merit of requiring governments to work together to achieve the aim of promoting peace and the well-being of a population of around 510 million people. My EU related posts are collected HERE and, in the near future, the Supreme Court of the UK will hand down its judgment in the Miller and Dos Santos litigation together with some associated references from Northern Ireland.

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 ... and 18th 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.