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Two years after the EU referendum we continue to stumble onwards into the largely unknown world of post-Brexit.  The economic prognosis does not look good - see the analysis by the Centre for European Reform - What's the cost of Brexit so far?  - and the the announcement by Airbus- and the views of BMW - BBC News 22nd June.  Complex issues regarding important sectors such as aviation remain to be solved and the almost intractable problem of the border between Ireland (in the EU) and Northern Ireland (out of the EU) has not yet achieved an agreed solution.



In February 2017, MPs voted 498 to 114 to trigger Article 50? That vote led to the European Union (Notification of Withdrawal) Act 2017 and the Prime Minister triggered Article 50 on 29th March 2017 leading to Brexit taking place on 29th March 2019 - just 280 days away from the date of this post.

During the first day of the second reading debate on the Notification Bill, MPs from all sides of the House questioned the Government about when it would publish the white paper that had been promised by Theresa May at Prime Minister’s Questions on 25 January 2017. Mrs May announced on 1 February, before the second day’s debate on the Bill began, that the white paper would be published the following day.  On 2 February 2017, the Government published its white paper, The United Kingdom’s Exit From, and New Partnership With, the European Union  White Paper.

Thus, MPs voted to trigger Brexit without having in place a White Paper let alone any democratically agreed plan. 

This shambolic handling of matters has characterised Brexit from the outset as evidenced by the handling, only in the last two weeks, of the European Union (Withdrawal) Bill discussed in previous posts HERE and HERE .  MPs abandoned an opportunity, secured in the House of Lords, for them to have a truly meaningful vote in the event of no deal being the outcome.

Since March 2018, a DRAFT Withdrawal Agreement has been in place and it contains provision for a transition / implementation period lasting until 31st December 2020.  On 19th June 2018, the UK Government and EU issued a Joint Statement on Withdrawal Agreement - 19th June 2018.   Negotiations over the withdrawal agreement are on-going.  The EU Council meets on 28th and 29th June and will discuss, in an EU27 format,-
  • completion of work on withdrawal issues
  • issues related to the border between Ireland and Northern Ireland
  • discussions on the framework for the future relationship with the UK
It won't be until after the EU Council that the UK government issues a further White Paper on the future of UK-EU relations - The Independent 9th June - "Warring cabinet ministers will be summoned to another Chequers “away day” when Theresa May will try to end bitter infighting on plans for Brexit.  The prime minister has confirmed that a detailed white paper – designed to give the UK the initiative in the troubled talks – has been shelved until next month, because of the disagreements.  She will now host a second lengthy lock-in at her country residence to try to enforce order, replicating the get-together when her Brexit strategy was on the rocks in February."

It's clear that some form of planning is going on within government for a no deal Brexit - The Independent 3rd June - but nobody outside of the government machine knows much about this.  Business is unable to plan and, naturally enough, is looking at the worst-case scenario.  Little wonder then that we are seeing statements from businesses such as Airbus.  See Portland Communications - Is Britain ready for no deal?  

Muddling along without any agreed coherent plan and enormous uncertainty for the future.  That's where we are two years down the line.  It is not a happy place to be and even those favouring Remain ought to be getting concerned by now and insisting that a sensible deal be reached and a sensible plan if it cannot be.  The nation deserves no less.





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Commons 20th June 2018
The previous post looked at the situation regarding the promised "meaningful vote" on a Withdrawal Agreement negotiated with the European Union as part of the Article 50 process.  As part of the the "ping pong" process relating to the European Union (Withdrawal) Bill the Lords amendments returned to the Commons on 20th June.

Few objective observers could conclude that the proceedings on 20th June were satisfactory.  They are described by Metro News 21st June - "UNWELL and heavily pregnant MPs had to endure three hours of parliamentary debate to save Theresa May’s Brexit Bill — in defiance of Commons convention.   A clearly ill Labour backbencher Naz Shah was helped into Westminster in a wheelchair clutching a sickbowl after spending the last three days in hospital.   Her party colleague, Laura Pidcock, who is heavily pregnant, was also there, as was Lib Dem deputy leader Jo Swinson despite being past her due-date, and amid protests by other MPs."

But what happened regarding the Bill. 
A further amendment was put forward - see





See also Hansard Online for the debate

The Amendments made by the Lords were heavily diluted by the removal of requirements for the Commons to have to approve a Ministerial statement about the government's plans in the event that the Commons reject the withdrawal agreement or if there is no withdrawal agreement.  In place of approval there will be a motion in neutral terms, to the effect that the Commons has considered the Ministerial statement.

The Secretary of State for Exiting the EU (Mr David Davis MP) issued a statement setting out the government's understanding of the way in which a reference to "in neutral terms" will operate in practice.  The Speaker will decide whether a motion put forward by government is or is not cast in neutral terms.  Davis' statement concluded by saying that MPs are able to table motions on and debate matters of concern and "that, as is the convention, parliamentary time will be provided for this."



The Standing Orders of the House of Commons state that if the Speaker considers that a motion is expressed in ‘neutral terms’ then ‘no amendments to it may be tabled’

The statement was, it seems, enough to swing the vote the government's way.  Mr Dominic Grieve QC MP,  who had favoured the Lords amendment,  decided to vote with the government after all.

How crucial is this?

It remains to be seen exactly how crucial any of this will eventually be.  The Commons will have the right to accept or reject the Withdrawal Agreement.  If they reject it, they will then consider a neutral terms motion relating to the government's plans.  (Similarly, if no withdrawal agreement can be reached).  This is certainly a much weaker position than the Lords amendment would have required.   Even so, MPs will be able to state their views in any debate on the Ministerial statement and, at least according to the Davis statement, will be able to table further motions for debate.

It is to be hoped that the on-going negotiations produce a withdrawal agreement and framework for the future relationship with the UK which will be acceptable.  The draft withdrawal agreement (March 2018) provides for an implementation (or transition) period lasting until 31st December 2020. - (Article 121 of the draft agreement). 

Ping-pong completed:

Having been amended again, the Bill was "ponged" back to the Lords where, in the evening of 20th June, the amended version was agreed.   The "ping-pong" process was completed and the Bill now requires Royal Assent to become an Act of Parliament.

The Bill was introduced into the Commons on 13th July 2017 and took some 250 hours of Parliamentary time over a period of almost a year.  The Bill - as first introduced - was the subject of earlier posts - HERE.  It has come a considerable way since then.

Through the passage of the Bill, the government has been at odds with the Lords and some of its own MPs over what happens if the UK cannot reach a deal with the EU - or if MPs reject whatever deal is agreed.

In other developments:

A)  The UK Government and EU issued a Joint Statement on Withdrawal Agreement - 19th June 2018.  Negotiations are on-going.

B)  The EU Council meets on 28th and 29th June and will discuss, in an EU27 format,-
  • completion of work on withdrawal issues
  • issues related to the border between Ireland and Northern Ireland
  • discussions on the framework for the future relationship with the UK
C)  On 20th June, Mr Guy Verhofstadt (Brexit Coordinator and Chair of the European Parliament Brexit Steering Group) gave evidence to the Exiting the EU Committee - this may be viewed via this link.

D)  The High Court published its reasons for rejecting an application for judicial review brought by the Article 50 Challenge.   The full Divisional Court judgment can be found here - [2018] EWHC 1543 (Admin) - and the discussion at Monckton Chambers - Brexit blog.
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The image shows the result of a House of Lords vote on 18th June 2018 on what can be called the "meaningful vote" amendment to the European Union (Withdrawal) Bill.  The vote took place during the "ping pong" process.

The government had said that Parliament would have a "meaningful vote" on whether to accept or reject any Withdrawal Agreement negotiated under the Article 50 process but, even in the slippery world of politics, there has perhaps never been as meaningless a phrase as "meaningful vote."  Just what did "meaningful" mean?   It appeared to mean a vote to either accept whatever was on offer or simply leave the EU without a deal.  Some in Parliament have tried to give the phrase some meaning with a view to Parliament having a greater say in the event that there are serious problems in achieving a Withdrawal Agreement.


The Withdrawal Bill as originally put to Parliament did not contain any specific provisions for such a vote.  It was a political promise only.  The Lords amended the Bill so that it included a clause requiring a vote in the House of Commons in certain specified situations.  The entire process has been very convoluted and difficult to follow in detail.

At this stage, let's look at where we are this morning - 19th June.

The Lords accepted the Government’s amendment in lieu - referred to as 19A and 19B in the List of changes (PDF). They then voted 354-235 in favour of an amendment Viscount Hailsham tabled on behalf of Dominic Grieve - this is shown Supplementary list of changes (PDF).  Viscount Hailsham's amendment was a "manuscript amendment" tabled on the morning of 18th June and was itself an amendment to 19A.

The amendment sought to reflect the agreement Conservative backbenchers thought they had reached with the Government. It says that, if Parliament rejects the deal brought back from Brussels, then the Commons will vote on a motion to approve a statement made by a minister setting out what the Government plans to do next. If no deal is reached with the EU by 21 January 2019, then a minister must make a statement setting out how the Government plans to proceed and the Commons must approve this statement in a motion. 

Stepping away from the political controversy and some nonsensical comments in the media and elsewhere (e.g. Twitter), it appears that the Lords have now proposed a fairly modest clause which would give the elected House of Commons a say if no withdrawal agreement has been achieved by 21st January.  It would probably be February 2019 by the time the Commons had such a say and, under the terms of Article 50, the UK leaves the EU on 29th March.

If this position exists on 21st January then the United Kingdom will find itself facing the "cliff edge" scenario of Brexit with little or no clarity as to the future.  Of necessity, Parliament would have to consider such a situation.  The Bill - as it now exists - will ensure that when facing the cliff-edge there is at least a requirement for the House of Commons to vote on the government's plans.

This Lords amendment will return to the House of Commons on Wednesday 20th June.   No forecasts from me as to how this will go! 

The details of the relevant amendment (and amendments of the amendments!) can be seen at:
When it becomes available, the Bill as fully amended will be linked below.
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    Recently, Stephen Yaxley-Lennon (aka Tommy Robinson) was committed to prison for contempt of court in that he pleaded guilty to breaching a reporting restriction made in connection with a trial in the Crown Court sitting in Leeds.  The restriction was a "postponement order" made under Section 4(2) of the Contempt of Court Act 1981.  As defendants arrived for their trial, Mr Robinson broadcast via Facebook Live.  His broadcast lasted for over an hour.  This previous post looked at the basics of the law on contempt. 


    When Mr Robinson was sentenced, the judge imposed a reporting restriction relating to the sentencing.  The purpose of this was to try to avoid any prejudice to the on-going trial.  Following representations by the media, the restriction relating to Mr Robinson was lifted - Press Gazette 29th May - but not the restriction relating to the on-going trial.  At the time of writing, the judge's reasons for the committal have not been published.

    Open justice:

    Open justice is an important principle of the common law.  It follows that fair and accurate media reporting of court cases is essential.  Linked to that is the need for the judiciary to give clear reasons for their decisions and to deliver judgments in open court.  Open justice is not however an absolute principle and exceptions are recognised by the law and those include reporting restrictions imposed under the Contempt of Court Act 1981.


    The default position is that all proceedings in courts and tribunals are conducted in public.  Media reports of legal proceedings are an extension of the concept of open justice.  It is by media reports that citizens can be informed about what takes place in most of our courts.  The media serve both as the eyes and ears of the wider public and also as a watchdog.  Full contemporaneous reporting of criminal trials (and other legal proceedings) promotes public confidence in the administration of justice and the rule of law.

    On a practical level, the public nature of court hearings (and media reports of them) fulfils several objectives: (1) it enables the public to know that justice is being administered impartially; (2) it can lead to evidence becoming available which would not have been forthcoming if reports are not published until after the trial has completed or not at all; (3) it reduces the likelihood of uninformed or inaccurate comment about the proceedings; and (4) it deters inappropriate behaviour on the part of the court and others participating in the proceedings.

    Reporting restrictions orders are derogations from the general principle of open justice. They are exceptional, require clear justification and should be made only when they are strictly necessary to secure the proper administration of justice.   Any derogation from open justice must be established by clear and cogent evidence: Scott -v- Scott [1913] AC 417, at 438–439 per Viscount Haldane LC.

    Reporting restriction in case against Sudip Sarker:

    In February 2018, as reported at BirminghamLive, Mr Sudip Sarker was sentenced to 6 years imprisonment for an offence against the Fraud Act 2006 section 1 (and also section 2).  He had misrepresented his qualifications when he applied to be a surgeon at Alexandra Hospital in Redditch. 

    At Mr Sarker's trial, the trial judge granted a defence application for a section 4(2) reporting restriction.   The order ceased to have effect when the trial ended.  However, the BBC challenged the restriction as permitted by the Criminal Justice Act 1988 section 159 .  Such an application can be made even after the reporting restriction has been discharged - ex parte Central Independent Television [1991] 1 WLR 4.

    The Court of Appeal has held that the reporting restriction ought not to have been made - [2018] EWCA Crim 1341- (Lord Burnett CJ, Stuart-Smith LJ and Nicklin J). 

    The defence fear, at Mr Sarker's trial, was that contemporaneous online reports of the trial could have contained  links to other stories containing material which might have had a prejudicial affect.  The trial judge - His Honour Judge Juckes QC - accepted that possibility and made the order.

    The Court of Appeal looked in some length at the relevant law and considered the steps to be taken by judges when section 4(2) orders are requested.  On the facts of Mr Sarker's case, the court concluded - at para 37:


    "Fair and accurate contemporaneous reporting of the trial would not have given rise to any risk of prejudice. The perceived risk arose from an assumption that a fair and accurate contemporaneous report would contain links to earlier irrelevant and prejudicial material. There was no reason to make that assumption, but in any event an order under section 4(2) would not prevent the republication of earlier prejudicial material or signposting it via links. It should not have been used to guard against parasitic damage to the trial. As we have noted, to follow either course would put a publisher in breach of the strict liability rule. At the heart of the concern articulated by the defendant's counsel was a fear that, contrary to the judge's direction, echoed in material given to the jury in writing, members of the jury might embark on a search for further material. There was no reason to suppose that they would do so and a postponing order pursuant to section 4(2) was anyway an impermissible mechanism to reduce any such risk.

    Some problems:

    The court noted that local media - " for decades the mainstay of reporting the work of our courts" - can be reluctant to challenge reporting restriction because of the expenditure involved in doing so (para 25) and "even if a challenge is launched, the time constraints of the relevant trial may mean it is not heard until it is too late to allow any contemporaneous reporting of the trial."

    At para 26 the court noted that "judges are urged to grant an order postponing reporting because it is expected that the trial will last only for a short period."  The court said that - "Postponement orders, even if only of short duration, are likely to have a damaging effect on the very important public interest in reporting proceedings in courts."  The practical effect of even a relatively short postponement order is likely to reduce the chances of any reporting at all. In order to publish a postponed report of a trial, the media organisation would have to commit the resources of a journalist attending the trial in the certain knowledge that only a fraction of what would have been published in daily reports will be likely to be published when the order is lifted. In the modern era of communications, it is truer than ever that 'stale news is no news.'

    The astute reader will probably spot that this observation is likely to be the practical result of the reporting restriction on the linked trials at Leeds.

    Careful adherence to the steps in this judgment ought to reduce the risk of any postponement orders being improperly made.  Judges will need to give very careful scrutiny to any application for reporting restrictions.
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    The Voyeurism (Offences) Bill  is a Private Members' Bill aimed at the unpleasant and upsetting practice of "Upskirting" which typically involves offenders using a mobile phone to take a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks.

    It appears from this announcement  that the bill is supported by the government but, on 15th June - (one of the days set aside for Private Members' Bills) -it made no progress because it was blocked when Sir Christopher Chope MP (Conservative, Christchurch) objected - BBC News 15th June.  The Bill is now listed for 2nd Reading on 6th July.  



    English law has a statutory offence of "Voyeurism" - Sexual Offences Act 2003 section 67 and the Private Members Bill would have added a section 67A to the Act to deal specifically with upskirting.  Scots criminal already has such an offence in the Sexual Offences (Scotland) Act 2009 section 9.


    Currently, some instances of upskirting have been successfully prosecuted under the offence of Outraging Public Decency - see the Law Commission report on that offence.  However, there have been concerns that not all instances of ‘upskirting’ are covered by existing criminal law.

    The government appears to be determined to make the necessary change to the law.  In doing so they might do well to follow the drafting of the law in Scotland rather than the drafting in the Private Members' Bill.  It also seems necessary to ensure that the new offence is one attracting the "Notification Requirements" set out in the Sexual Offences Act 2003 - see section 80 and Schedule 3.

    Outraging Public Decency:


    Outraging public decency is also a common law offence, and was formerly regarded as one form of public nuisance. The offence can consist of any act or display fulfilling the following conditions:

    (1) it must be lewd, obscene or disgusting to such an extent as to outrage minimum standards of public decency as judged by the jury (or other tribunal of fact) in contemporary society;

    (2) it must occur in a place which is accessible to or within view of the public; and

    (3) two or more persons must be present during the act or display, whether or not they are aware of the act or display or are outraged by it.

    The types of conduct that have been held to constitute outraging public decency are wide ranging. These include: indecent exposure, masturbating or other sexual activities (real or simulated) in public, publishing a magazine with contact advertisements for gay men, intimate filming of women without their consent, exhibiting a sculpture consisting of a human head with freeze-dried human foetuses as earrings, nude bathing in inhabited areas, disinterring a corpse for dissection, indecent pay-per-view exhibitions, exhibiting a picture of sores, procuring girls to be prostitutes and urinating on a war memorial.  Several of them may not amount to this offence as it is now interpreted.

    Some cases on this offence are:  Hamilton [2007] EWCA Crim 2062 and Rose v DPP [2006] EWHC 852 (Admin).

    The Law Commission recommended that the offence of outraging public decency be abolished and replaced by a statutory offence. 

    The events of 15th June:

    15th June was one of the Fridays in the year when the House of Commons looks at Private Members' Bills.

    One Bill was debated - the Mental Health Units (Use of Force) Bill - and the debate may be read HERE.  The Conservative MP for Shipley (Mr Philip Davies MP) spoke for so long that the Bill did not receive its 3rd Reading and it will return on 6th July for further consideration - see i News.

    The result was that the time was reached after which a Private Members' Bill may not proceed if a single member objects.  As already noted, Sir Christopher Chope objected to the Voyeurism Bill and so it could not proceed on the day.

    Several other Private Members' Bills were also deferred - see Hansard Online Business Without Debate 15th June. 

    Private Members' Bills:

    A member of either House of Parliament may sponsor a Private Members' Bill.  In practice, for various reasons, very few of these bills become law.  For more details see these links:

    Private Members' Bills

    Private Members' Bills Procedure

    The procedure document notes that - "At 2.30 pm on a Friday the Clerk reads out the titles of bills which are on the Order Paper, in the order in which they have been put down for that day. If any Member shouts object when the title of a bill is read then no further progress is made."

    and

    "If the bill is objected to, the Member in charge of the bill, or another member on their behalf, may nominate another Friday and seek to persuade those who objected not to repeat their action."

    Sir Christopher Chope has proposed 47 private member’s’ bills of his own but he has a track record of objecting to Bills brought forward by others - see The Independent

    His objection on this occasion has been described as disgraceful by many MPs including several within his own party.
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    On Tuesday 12th June and Wednesday 13th, the House of Commons considered House of Lords amendments to the European Union (Withdrawal) Bill - the "ping pong" process.  The bill is intended to prepare domestic law for the UK's departure from the European Union - ("Brexit").   See previous post 12th June.

    The list of amendments as put forward by the House of Lords is HERE.



    Brexit takes place on 29th March 2019 as a result of the withdrawal notice given, under Article 50 of the Treaty on European Union (TEU), by the Prime Minister on 29th March 2017.

    12th June:

    I find it very difficult to view the events of 12th June as anything less than an example of law-making at its worst.   A flavour of the day's events may be read at - The Guardian and The Independent.

    Against the fact that Brexit is the most crucial issue facing the UK since World War 2 it is particularly concerning that the amendments were considered against a "timetable motion" imposing up to 6 hours debate on 12th June and up to 6 hours on 13th June.  The timetable motion was agreed by MPs - 321 to 304.

    Amendment 19 would have enabled the Commons to approve any withdrawal agreement.  The Lords would have been able to consider it.  This was rejected 324: to 298.  However, there were discussions between the Prime Ministers and certain MPs with the result that further changes are to follow.  Full details yet to be made known.

    For the formal record see Hansard Online 12th June.   The deep unhappiness felt by MPs from Scotland and Wales is evident from the Points of Order they raised in the evening. 


    The table lists the amendments and voting in the order in which the House of Commons dealt with them.  A more detailed view can be seen at:
    Today is the second day of consideration of @UKHouseofLords amendments to the #EUWithdrawalBill. Catch up with the story so far: https://t.co/nBO66BM1CH pic.twitter.com/mGWpbP3vnD
    — UK House of Commons (@HouseofCommons) June 13, 2018



    Lords Amendment No.
    Brief note
    Vote

    110

    Sifting committee power to ‘require’ greater scrutiny for statutory instruments, rather than ‘recommend’ the need for greater scrutiny.

    Rejected 324: 302
    128
    Statutory instrument procedures following the UK's exit from the EU.

    Rejected 325: 304
    37
    Exit day to be fixed by a Minister in regulations

    Rejected 326: 301 – with result that Exit Day is defined as 11pm on 29th March 2019

    39
    A more technical amendment relating to timing of Brexit

    Rejected 324: 302

    125
    To have required Parliamentary approval of the UK's exit date from the European Union.

    Rejected 328: 297
    19
    Meaningful Vote

    Amendment would have enhanced the version Dominic Grieve got through the Commons in December guaranteeing a meaningful final vote on the Brexit deal by allowing the Commons to decide the next course of action if parliament rejects the deal.   Last-minute concessions from Theresa May appear to have won over party “rebels”



    Rejected 324: 298

    52
    This amendment would have removed power from ministers to decide when retained EU law can be challenged in court.

    Would have removed a section of the bill letting ministers use directives to decide who is able to challenge the validity of retained EU law post-Brexit.

    Rejected 326: 301
    10
    This amendment would have ensured that ministers can only use delegated “Henry VIII” powers when “necessary” rather than “appropriate”.

    Rejected 320: 305
    43
    Also related to use of delegated powers

    Rejected 322: 306
    45
    Would have restricted ministerial powers.

    Rejected 317: 306
    20
    This amendment would have meant that Parliamentary approval, rather than ministerial powers, must be used before phase two of the UK's negotiations with the EU begins

    Rejected 321: 305

    House of Commons agrees with further amendments without a division.

    Accepted – no division
    25
    This amendment prevents new border arrangements in Northern Ireland and requires that ministers must, when exercising powers under the Bill, act in a way that is compatible with the Northern Ireland Act 1998.

    No changes to Irish border arrangements without the agreement of both the UK and Irish governments.


    Accepted

    Further amendments relating to devolution.

     Accepted 321: 40

    13th June:

    To follow .....
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    Under the terms of Article 50 of the Treaty on European Union (TEU), the UK will leave the EU on 29th March 2019 - that is, two years after the Prime Minister exercised the power given to her by the European Union (Notification of Withdrawal) Act 2017.

    The European Union (Withdrawal) Bill returned to the House of Commons on Tuesday 12th June for consideration of amendments made to the bill during its time in the House of Lords - the "ping pong" process.  The bill is intended to prepare domestic law for the UK's departure from the European Union.



    The Lords Amendments:

    The list of amendments as put forward by the House of Lords is HERE.

    On 11th June, The Guardian published a list of the key amendments together with its assessment of whether the amendments were likely to survive.

    A lot of attention will be given to Amendment 19 - Parliamentary approval of the outcome of negotiations with the EU.  This was considered in this previous post.

    Amendment 19 - if it survives - will give the House of Commons a vote on the draft withdrawal agreement and the House could accept or reject it.  The Lords would get to consider the draft agreement but cannot reject it.

    There will be huge political pressure from the government aimed at defeating this amendment because the government claims that the requirement for a parliamentary vote would harm the government's negotiating position.   

    BBC News 12th June

    The Guardian 11th June


    Withdrawal Agreement - the position so far:

    Negotiations with the EU have, so far, resulted in a draft withdrawal agreement dated 19th March 2018 .....

    Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

    For more detail of the draft agreement see post of 20th March 2018.

    The UK and the EU negotiating teams aim to finalise the entire Withdrawal Agreement by October.  Article 50 requires that the European Council concludes the Withdrawal Agreement on behalf of the EU.  The Council acts, as required by Article 50, by a qualified majority, after obtaining the consent of the European Parliament.  There is no requirement for national Parliaments of EU Member states to approve the withdrawal agreement.

    A glimpse ahead:

    Professor Catherine Barnard explains HERE why it will be crucial to pay attention in the future to Article 218 TFEU and why the many national parliaments could get a say regarding trade deals.

    Professor Barnard begins:

    "When she triggered Article 50, the Prime Minster said in her letter to Donald Tusk, the President of the European Council, that:

    The United Kingdom wants to agree with the European Union a deep and special partnership that takes in both economic and security cooperation. To achieve this, we believe it is necessary to agree the terms of our future partnership alongside those of our withdrawal from the EU.

    Negotiating this partnership cannot be done under Article 50, which is confined to the withdrawal itself. Other Treaty provisions will provide the basis of a future trade agreement – or agreements as the deal might comprise one or more Treaties. In essence, trade agreements with third countries (that, is, non EU member states), can either be agreed under Article 207 or Article 217 of the Treaty on the Functioning of the European Union (TFEU). And we cannot conclude the future trade agreement until we have left the EU and become a third country  – a point the Prime Minister Theresa May herself made in her Florence speech.

    The process for negotiating such agreements is largely laid down in Article 218 TFEU.Article 218 will become the new Article 50. It’s what everyone will need to be familiar with in order to understand why, among other things, all 27 Member States may have the power to veto any future trade deal."
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    "The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason."

    The Judiciary of England and Wales has its own website.  It used to have .gov in the address (URL).  It is now www.judiciary.uk

    Although the change seems to be minor, it was made "to reflect the constitutionally independent position of the judiciary" and that is of massive importance to everyone. 
    It lies at the very heart of the rule of law.  The change of address is an assertion that the judiciary is independent from the legislature (Parliament) and also the Executive (Ministers).

    The weekend also saw a protest in London at which people demanded the release from prison of Tommy Robinson who was imprisoned following his guilty plea to contempt of court - Previous post.

    Mr Robinson was guilty of breaching an order imposed by the Crown Court which prevented - and continues to prevent - reporting in relation to criminal cases being heard at the Crown Court in Leeds.

    The criminal cases have come about following a lengthy and difficult investigation by the Police.  The individual defendants are entitled to the presumption of innocence and they have a right to a fair trial both under common law and under the European Convention on Human Rights (Article 6).

    In fact, the reporting restriction operates so as to postpone reporting and once the restriction ceases to have effect then full reporting will be possible.  This form of order (a postponement order) may only be made where the order appears to be necessary "for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, ..."

    The power to commit an individual to prison for contempt of court originated in our common law and it is intended to both uphold the authority of the court and to support the fairness of court proceedings.  Crucially, the judges exercising this power are independent of the government.  Even Ministers can be held to be in contempt - see the House of Lords - M v Home Office  [1994] 1 AC 377; [1993] UKHL 5 - Lords Keith, Templeman, Griffiths, Browne-Wilkinson and Woolf.

    It follows logically from the independence of the judiciary that it is NOT within the power of government Ministers to overrule the judge and order Mr Robinson's release.

    Since 1960 there is a right of appeal in relation to contempt of court - see Administration of Justice Act 1960 section 13.

    Basic Principles on the Independence of the Judiciary:

    1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

    2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

    3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

    4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

    5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

    6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

    7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

    Other links:

    United Nations - Human Rights - Basic Principles on the Independence of the Judiciary

    Judiciary - Independence

    Sir Henry Brooke - History of Judicial Independence in England and Wales
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    This morning the Supreme Court handed down judgment in the challenge from Northern Ireland to the law on abortion.  The proceedings were brought by the Northern Ireland Human Rights Commission which was created, and has the powers give to it by, the Northern Ireland Act 1998 (as amended).  The court held, by a majority, that the NIHRC did not have the legal right to bring the proceedings.  For this reason the court could not give a legally binding ruling on the substantive questions of the incompatibility of abortion law in Northern Ireland.

    Nevertheless, the court had heard argument relating to incompatibility with Convention Rights and the justices undertook a comprehensive examination of the subject and expressed opinion on it.  Technically the opinion is not binding - it is obiter dicta - but, on any view, it has to be taken immensely seriously by those with power to legislate on these matters.  The court's opinion was that:

    By a majority of 5 to 2 - In cases of fatal foetal abnormality - the law was incompatible with Article 8

    By a majority of 4 to 3 - the law was also incompatible with Article 8 in cases where the pregnancy resulted from rape or incest.

    See the Court's Judgment and Summary.
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    Hard on heels of the revised Counter-Terrorism strategy (CONTEST) - post of 5th June - comes the Counter-Terrorism and Border Security Bill 2017-19.  First reading in the House of Commons was on 6th June.  It is a Bill to make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes; and for connected purposes.

    Text of the Bill as introduced.    Policy BackgroundLegal Background.



    Overview of the Bill:

    1)  The Queen’s speech on 21 June 2017 included a commitment to review the Government’s counter-terrorism strategy "to ensure that the police and security services have all the powers they need, and that the length of custodial sentences for terrorism-related offences are sufficient to keep the population safe". Part 1 of the Bill gives effect to legislative proposals arising from the review. The measures in Part 1 will:
    ● Amend certain terrorism offences to update them for the digital age and to reflect contemporary patterns of radicalisation and to close gaps in their scope;
    ● Strengthen the sentencing framework for terrorism-related offences and the powers for managing terrorist offenders following their release from custody, including by increasing the maximum penalty for certain offences, to ensure that the punishment properly reflects the crime and to better prevent re-offending;
    ● Strengthen the powers of the police to prevent terrorism and investigate terrorist offences.

    2)  In addition, in response to the poisoning of Sergei and Yulia Skripal in Salisbury on 4 March 2018 using a military-grade nerve agent of a type developed by Russia, Part 2 of the Bill provides for a new power to harden the United Kingdom’s defences at the border against all forms of hostile state activity.
     
    Previous posts:

    Manchester Arena -- Post 27th May 2017

    Responding to terrorist attacks - Post 5th June 2017

    Links:

    Independent Reviewer of Terrorism Legislation




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