The blog of ObiterJ has responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice. 'The life of the law has not been logic; it has been experience.
Here is the Speech of 9th February by Michel Barnier (EU Chief Negotiator on Brexit). Mr Barnier said that - "Throughout this negotiation, you will not find in our attitude or in my attitude – on this subject, or on others – the least trace of discourtesy or willingness to punish. My mind set has been completely the opposite since the beginning of this negotiation and it will continue being so until the last day of the negotiation." The Speech touches upon:
I. Solving the issues on the island of Ireland through the future relationship. This future relationship would need to avoid a hard border, and protect North-South cooperation and the Good Friday Agreement. Once again, ladies and gentlemen, it is important to tell the truth. A UK decision to leave the Single Market and the Customs Union would make border checks unavoidable.
Although the UK government committed to proposing specific solutions to the unique circumstances on the island of Ireland, those proposals are awaited.
II – Governance of the withdrawal agreement - in order to be credible and durable, a withdrawal agreement should have effective implementation mechanisms. As far as the EU is concerned this requires a role for the European Court of Justice. This remains a point of disagreement with the UK.
III – The transition period
This period consists of extending the acquis for a time-limited, as was requested by the UK itself. The Heads of State or Government of the 27 replied positively to this request at the European Council of 15 December. Points of disagreement remain.
Citizens' rights: while the UK recognises that the free movement of people applies fully during the transition period, it does not want – at the end of this transition – to extend the rights, as agreed in the Joint Report, of those citizens who arrived before the withdrawal, to those citizens to arrive during the transition.
Application of EU rules during the transition: the UK has requested a right of opposition where it disagrees with a new rule or law which could enter into force during this transition period. On Justice and Home Affairs questions: the UK wants to continue benefitting from new EU policies while at the same time it has decided to leave these policies at the end of the transition.
Mr Barnier commented - "By asking to benefit from the advantages of the Single Market, the Customs Union and common policies, the UK must accept all the rules and obligations until the end of the transition. It must also assume the inevitable consequences of its decision to leave the European Union, its institutions and its policies. Taking into account these disagreements, and to be frank, the transition period today is not a given."
Mr Barnier's speech refers to a legal text on transition. The text was published on 7th February and may be read via the EU Commission website or HERE (pdf). This "transition document" contains a provision to allow existing EU implementation mechanisms to be reinforced during the transition period. The provision is Article X+5 - "Supervision and Enforcement - During the transition period (which will end 31st December 2020), the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law also in relation to the United Kingdom and natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties." A footnote to Article X+5 then states - "In addition, the Governance and Dispute Settlement Part of the Withdrawal Agreement should provide for a mechanism allowing the Union to suspend certain benefits deriving for the United Kingdom from participation in the internal market where it considers that referring the matter to the Court of Justice of the EU would not bring in appropriate time the necessary remedies."
Mr Barnier's speech explains why the EU see this as necessary. In the event of violation of European rules during the transition, the usual infringement procedures risk taking too much time to resolve the dispute. He said, "It is absolutely normal that, in an international agreement, effective implementation and conflict resolution mechanisms are foreseen. This is the case, for example, with our agreements with Switzerland."
In a post on his EU Law Analysis blog, Professor Steve Peers has considered the legal text in some detail. His comments about Article X+5 are particularly trenchant. "The proposal is then not only legally and politically questionable, but poorly thought out and justified, not only breaching the Commission’s obligations as EU negotiator but also spreading ill will in the negotiations. The phrase “frolic of the Commission’s own” scarcely does justice to the problematic nature of this proposal."
Essentially, the EU Commission is asking for a situation in which the UK is bound fully by EU Law during transition but with a special rule more suited to a treaty with a State that is not fully covered by the EU Treaties. It is not at all clear what process is to apply prior to the EU deciding to "suspend certain benefits." Furthermore, such action could well raise complex points of EU Law which might require resolution by the court.
Clearly, over the Island of Ireland questions, Citizens' Rights and Transition there is yet much to be done against a rapidly diminishing timescale. The UK leaves the EU on 29th March 2019and there is, as yet, by no means certainty that there will be a transition (or implementation) period.
Professor Michael Dougan (Liverpool University):
A video is available via YOUTUBE in which Professor Michael Dougan discusses the problems associated with transition. If you have 20 minutes to spare this is well-worth watching.
In 1993, Jon Venables (aged 35) was convicted - along with Robert Thompson - of the murder of two-year old James Bulger. The murder took place on 12th February 1993. Thompson and Venables were aged 10 at the time. Jon Venables has pleaded guilty to 3 counts of making indecent photographs of children - (Protection of Children Act 1978 s.1) - and one offence of possession of a paedophile manual - Serious Crime Act 2015 s.69. He has been sentenced by Mr Justice Edis to a total of 40 months imprisonment. Venables remains on lifelong licence in connection with the murder of James Bulger. It will be a matter for the Parole Board to decide whether it is safe to release him after he has served this latest sentence. See the Sentencing Remarks via the Judiciary website.
Worboys / Radford - Judicial review of Parole Board decision -
A blogpost in early January looked at the Parole Board following its decision that convicted rapist John Worboys could be released on licence. On 7th February, permission was granted for a judicial review of the decision. The review will be heard in March - see The Guardian 7th February 2018. Throughout the hearing the judge - Sir Brian Leveson P - addressed Worboys by the name he now uses, John Radford.
Julian Assange and the Bail Act 1976 -
Julian Assange, founder of Wikileaks, has been living in the Ecuadorian Embassy in London since June 2012. His extradition to Sweden was order on 24th February 2011. Appeals against that ordered were dismissed including an appeal to the Supreme Court of the UK - judgment. On 28th June 2012 a notice to surrender to Belgravia Police Station was served on Mr Assange who by then was resident in the Ecuadorian embassy. He did not attend the police station and a warrant for his arrest was subsequently issued by Westminster Magistrates' Court. On 26th May 2017, following discontinuance of the underlying Swedish proceedings and the cancellation of the arrest warrant issued in Sweden, the European Arrest Warrant was withdrawn before Westminster Magistrates’ Court. The Senior District Judge (Chief Magistrate) Emma Arbuthnot had to decide whether the arrest warrant issued - under section 7 of the Bail Act 1976 - remained in force when the extradition proceedings have terminated and no proceedings under section 6 of the Bail Act have been initiated. The Chief Magistrate's judgment is available via the Judiciary website. The decision was that the warrant remains in force.
The continued existence of the warrant makes Mr Assange liable to arrest and subsequent prosecution for the Bail Act 1976 section 6 offence. This may not actually be Mr Assange's principal concern. It is repeatedly reported - e.g. HERE - that he fears extradition to the United States of America. That would require an extradition request from the USA as occurred in the next case to be considered ......
Lauri Love - Extradition -
Lauri Love v The Government of the USA and Liberty  EWHC 172 (Admin) - Lord Burnett CJ and Ouseley J - was an appeal to the High Court from the decision of District Judge Tempia, sitting at Westminster Magistrates’ Court on 16 September 2016, to send his case to the Secretary of State for the Home Department for her decision whether to order his extradition to the United States of America, under Part 2 of the Extradition Act 2003. The USA is a category 2 territory under that Act. On 14 November 2016, the Home Secretary ordered his extradition. The appeal was successful. The "forum bar" - Extradition Act 200 s.83A - operated in this case to prevent extradition to the USA. Additionally, the court held that extradition would be oppressive in this case - Extradition Act 2003 s.91.
North London Coroner and a "Cab Rank" rule for burials -
A judicial review is in the pipeline against a "cab rank" rule adopted for burials by the Coroner for North London. Permission for the review has been granted and it is to be heard on 27th and 28th March. The Coroner - Mary Hassell - adopted a policy that no death was to be prioritised over any other because of the religion of the deceased or family. More details HERE.
Supreme Court -
On 8th February the following Supreme Court judgments were handed down:
For those with interest in the law of tort (negligence) the Robinson case will be of particular interest. The Police were held to be liable for injury caused to Mrs Robinson (age 76) at a time when they were making an arrest of a suspected drug dealer.
Scotland's Court of Session (Outer House) has refused permission to petitioners who sought judicial review on the issue of the unilateral revocability of Article 50 of the Treaty on European Union - see the opinion of Lord Doherty 6th February 2018. There is a possibility that the decision will be appealed.
The petitioners wished to ascertain whether, as a matter of EU Law, a notification of withdrawal under Article 50 TEU may be unilaterally withdrawn by the State which gave the notification. Legal opinion has varied considerably on this point - please see earlier posts 23rd July 2017 and 20th October 2017.
The UK government has maintained a clear policy position that they are not going to seek to revoke the Article 50 notice. The Miller and Dos Santos litigation proceeded on common ground between the parties that notice under Article 50(2) could not be given in qualified or conditional terms and that, once given. it could be withdrawn - see Miller Judgment at para 26. The majority judgment stated - "Especially as it is the Secretary of State's case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings , we are content to proceed on the basis that that is correct, without expressing any view of our own on either point." Lord Doherty gave reasons for refusing the judicial review. At para 9 he said - "I am mindful that demonstrating a real prospect of success is a low hurdle for an applicant to overcome. However, I am satisfied that that hurdle has not been surmounted. Indeed, in my opinion the application's prospect of success falls very far short of being a real prospect" Then, at para 10, he said - "In my view the Government’s stated policy is very clear. It is that the notification under Article 50(2) will not be withdrawn."
At para 14 Lord Doherty said - "Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide - whether the UK could unilaterally withdraw the Article 50(2) notification -is hypothetical and academic. In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon."
The desire to try to prevent Brexit is entirely understandable given that virtually every responsible forecast shows that the UK economy will be the worse for it. But, this is a political issue. Even if the Art 50 notice was unilaterally revocable, the UK government is not going to revoke it unless, of course, there is a major change of heart within Parliament.
Para 13 of the judgment is also of interest. "Nor in my opinion is it implicit in the policy that the Government’s interpretation of Article 50(2) is that the notifying member cannot unilaterally withdraw the notification. On the contrary, the policy reflects, and is intended to give effect to, the view of the people of the United Kingdom, as expressed in the EU referendum and as confirmed by Parliament when it enacted the European Union (Notification of Withdrawal) Act 2017." ]My emphasis].
The words in blue appear to be an accurate statement of the position. There was nothing in the Referendum Act 2015 to make the outcome binding on anyone. It was an "advisory" referendum. However, some then go on to argue that Parliament needed to follow this up by making a decision of its own and that this had to be done by a formal vote expressing a decision to leave. That idealistic view does not accord with political reality. As Lord Doherty pointed out - the referendum result was effectively confirmed by the enactment of the European Union (Notification of Withdrawal) Act 2017. The Act granted an unconditional power to the Prime Minister to give the Article 50 notice. It would be nonsensical for Parliament to so authorise the Prime Minister to give the notice if Parliament did not wish the notice to be given. Further litigation may yet come ....!
6th February 2018 marks the centenary of the lengthy political struggle to secure votes for women in Parliamentary elections. The struggle and the campaigns by Suffragists and Suffragettes are well-described by Parliament - Women and the Vote. and also by HerStoria - An overview of the Votes for Women campaign.
The Representation of the People Act 1918 was, according to a contemporary author, the most successful piece of domestic legislation ever passed by Parliament. Barrister Sylvain Mayer KC wrote in his book on the 1918 Act:
“Like all our great statutory enactments it is in essence a compromise, and the fact that it was not wholly lost in the turmoil of party strife must be ascribed to the wisdom and tact of Mr. Lowther, the Speaker of the House of Commons, who presided over the Conference appointed by the Government to report on Franchise, Redistribution and Registration Reform. If the Act is not all that one party desired, it is a great advance on what, in ordinary times, could have been expected as an agreed measure. As a result there will be a vast increase in the electorate, from eight to sixteen million, and women will receive the Parliamentary franchise for the first time.”
A Speaker's Conference on Electoral Reform was set up in 1916 under Speaker James Lowther. Details of the Conference may be see via this link to Parliament's website. Interestingly, proportional representation was also considered by the Conference - see this debate of 13th May 1918 where Mr Herbert Fisher MP said - "It is proposed that proportional representation shall be applied in eleven Parliamentary boroughs and six Parliamentary counties, and that ninety-nine members in all shall be returned under this system to Parliament. In other words, we are invited to approve of a modest and limited experiment in proportional representation. Your Conference, Mr. Speaker, had proposed that something like 190 seats should be distributed upon this system. The present proposal extends to only about half that number ...."
The 1918 Act was far from achieving a vote for every woman. The Act widened suffrage by abolishing almost all property qualifications for men and by enfranchising women over 30 who met minimum property qualifications. The Act also instituted the present system of holding general elections on one day, and brought in the annual electoral register. These changes saw the size of the electorate triple from 7.7 million to 21.4 million. Women now accounted for about 43% of the electorate. However, women were still not politically equal to men, as men could vote from the age of 21. The age 30 requirement was to ensure women did not become the majority of the electorate. If women had been enfranchised based upon the same requirements as men, they would have been in the majority, due to the loss of men in the war.
It was not until the Representation of the People (Equal Franchise) Act 1928 that suffrage was widened by giving women electoral equality with men. It gave the vote to all women over 21 years old, regardless of property ownership.
A voting age of 18 was introduced in 1969. Today there are political pressures to permit voting at age 16. A voting age of 16 was permitted for the 2014 Scottish Independence referendum and is permitted in Scotland for Scottish elections - see the Scottish Elections (Reduction in Voting Age) Act 2015.
In December 2017 the Committee on Standards in Public Life published a report - "Intimidation in Public Life" (Cm 9543). The report was debated in the House of Commons on 18th December where the Home Secretary (Amber Rudd MP) said - "The report demonstrates that a significant proportion of candidates in the 2017 general election experienced harassment, abuse and intimidation, and that the widespread use of social media platforms is the most significant factor driving the behaviour that we are seeing. Worryingly, this is already affecting the ways in which MPs are relating to their constituents, and has put off candidates who would otherwise want to stand for public office."
The report points to "the increasing prevalence of intimidation of Parliamentary candidates, and others in public life." "A significant proportion of candidates at the 2017 general election experienced harassment, abuse and intimidation. There has been persistent, vile and shocking abuse, threatened violence including sexual violence, and damage to property."
The committee is concerned that "intimidatory behaviour is already affecting the way in which MPs are relating to their constituents." It has "put off candidates who want to serve their communities for standing for public offices, and threatens to damage the vibrancy and diversity of our public life."
The committee's terms of reference included establishing whether measures in place to address intimidatory behaviour, including the criminal law, are effective and enforceable. The report asks the government to consult on the introduction of a new offence in electoral law of intimidating Parliamentary candidates and party campaigners.
We believe that any new electoral offence that is introduced should not have any wider scope than
the existing criminal law in respect of intimidatory behaviour. No behaviour which is currently legal should be made illegal. However, we believe that the introduction of a distinct electoral offence willserve to highlight the seriousness of the threat of intimidation of Parliamentary candidates to theintegrity of public life and of the electoral process, and will result in more appropriate sanctions.
We believe that specific electoral offences will also serve as an effective deterrent to those who are
specifically targeting Parliamentary candidates and their supporters.
English Law already has a considerable range of offences which are capable of being used to deal with intimidatory behaviour. The report contains a table at page 68 setting out a list of existing offences ranging from common assault to "stalking" (Protection from Harassment Act 1997) to offences under the Communications Act 2003 s.127 and the Malicious Communications Act 1988.
Electoral law can overlap with and complement the criminal law, such that offences with criminal
sanctions can also involve sanctions under electoral law. These sanctions are specific to the election process, such as being barred from voting for a certain period, or removal from the electoral register.
Such sanctions recognise that these offences, such as undue influence or electoral fraud, are offences against the integrity of the electoral process, and that it is therefore appropriate that individuals face sanctions relating to their own privileges within that process.
In February 2016, the Law Commission published an interim report on Electoral Law. Recommendations 11-1 to 11-9 concern Electoral Offences and, in particular, Recommendation 11-4 stated that "Undue Influence" should be restated as offences of intimidation, deception and improper pressure.
TM Eye has an interesting website – here – where the company gives details of various cases where convictions have been secured in the courts. For instance, there is Basit Khan who was convicted at Manchester and Salford Magistrates’ Court of 5 offences of selling counterfeit goods contrary to the Trade Marks Act 1994 s. 92. The TM Eye comment on his case concludes by saying that “TM Eye has convicted over 450 persons with a 100% conviction rate.” No doubt a good advertisement for a company which is clearly in the business of investigating certain types of crime and bringing prosecutions on behalf of its clients but, strictly speaking , the company cannot convict anyone. In the UK that is the sole business of lawful criminal courts.
The right to bring a private prosecution is an interesting one and the Crown Prosecution Service (CPS) website helpfully gives more information. A private prosecution is described as “a prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other prosecuting authority.” The Prosecution of Offences Act 1985 s.6 states:
6. Prosecutions instituted and conducted otherwise than by the Service.
(1)Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.
(2)Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.
It will be noted that the right to bring a private prosecution is not limited to a victim of the offence in question – see this page on the TM Eye website.
The “What We Offer” page on the company’s website is also interesting. The investigative activities of the company are described and include carrying out covert intelligence visits to markets, shops and other suppliers of counterfeit goods; undertaking surveillance on suspects to identify storage facilities, associates and criminal proceeds; preparing intelligence and evidential cases for law enforcement , carrying out evidential test purchases; assisting Customs in indentifying counterfeit goods, recovering all costs for clients etc.
According to the Daily Mail report, the company has gone beyond activities linked to trading standards. The Mail article states – “A firm led by former Scotland Yard senior officers has successfully prosecuted more than 400 criminals and is now carrying out murder inquiries” and “The company, staffed by retired detectives and cyber-crime experts from Scotland Yard, the National Crime Agency and GCHQ, is now expanding its services beyond predominantly financial investigations.”
The Chairman of the Police Federation is quoted as saying – “‘Eventually there will be a two-tier system with the haves and the have-nots, and if you have money and live in a £20million house in Chelsea you can pay for private security.’
In recent times we have got used to headlines about rising crime such as the report in the Express and Star 20th July 2017 claiming that the crime rate in the Midlands has soared by up to 14%. We have also got used to headlines about cuts in Police numbers and facilities (e.g. Police Station closures) – e.g. The Guardian 5th June 2017 “Simple numbers tell story of police cuts under Theresa May” and there There is no doubt that Police funding has come under pressure from government – e.g. BBC News 7th March 2015– but it by no means certain that there is a DIRECT correlation between the cuts and any reported increases in crime although, intuitively, people think that there must be.
Crime Statistics present a picture which is difficult to interpret – see Office for National Statistics – Crime In England and Wales – Report 2017. The ONS Chief Statistician comments – “Today's figures suggest that the police are dealing with a growing volume of crime. While improvements made by police forces in recording crime are still a factor in the increase, we judge that there have been genuine increases in crime – particularly in some of the low incidence but more harmful categories."
Against this background, it is probably no surprise that private security-style firms are appearing but it is remarkable that some are taking on what has traditionally been the mantle of either the Police or other bodies with formal investigatory powers (e.g. Trading Standards Officers – see here).
Police Forces have a basis in Acts of Parliament and the authorities and duties of “constables” are set out either at common law or in various Acts – for example, the Police and Criminal Evidence Act 1984. Police Forces are, in effect, the machinery by which the State investigates offending. Forces operate a command / rank structure and officers are subject to a Disciplinary regime – e.g. this webpage from the Avon and Somerset Constabulary. Although individual citizens have some powers (e.g. to arrest under the conditions in PACE 1984 s.24A) – their powers are nowhere near as extensive as those of a constable. Importantly, Police Forces are Public Authorities for the purposes of the Human Rights Act 1998 and it would therefore be unlawful for them to act in a way that is incompatible with a Convention right (section 6) and proceedings can be brought against them under section 7.
All of this is an interesting development in “law enforcement” which seems to raise more questions than answers. For instance, surveillance has come to be an activity which, for public bodies such as the Police, is regulated by the Regulation of Investigatory Powers Act 2000.
Perhaps the time will come when these private activities are subjected to a more formal analysis by Parliament. In Scotland, the right to bring a private prosecution exists but it requires the High Court of Justiciary to issue criminal letters and these are very rarely issued – see this 2016 judgment.
The powers are principally, but not exclusively, in Clause 7 to 9 -Dealing with deficiencies arising from withdrawal (Clause 7); Complying with international obligations (Clause 8) and Implementing the withdrawal agreement (Clause 9). There is also Clause 17 - Consequential and transitional provision.
Clause 7 - Dealing with deficiencies arising from withdrawal -
Clause 7(1) -
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate -
(a) any failure of retained EU law to operate effectively, or
(b) any other deficiency in retained EUlaw,
arising from the withdrawal of the United Kingdom from the EU.
Here is a clause which is both subjective ("as the Minister considers") and wide "appropriate." The report recommends amendment of the Bill in line with the Sanctions and Anti-Money Laundering Bill to provide that, while the power remains available when Ministers consider it "appropriate", they must demonstrate that there are "good reasons" for its use and can show that the use of the power is "a reasonable course of action." - para. 167.
Clause 7(2) elaborates on the types of "deficiencies" the power is intended to address. Clause 7(3) states that anything similar to the list in 7(2) may count as a deficiency and allows Ministers to describe or provide for additional deficiencies by regulation. Clause 7(3) begins - "There is also a deficiency in retained EU law where the Minister considers that there is - ..." and the report expresses concern that applying a subjective test of "appropriateness" to a broad term like "deficiency" makes the regulation-making power in Clause 7(1) potentially open-ended. This concern would be partially addressed if the Bill were to be amended to require Ministers to show "good reasons" to use the power and that it is "a reasonable course of action."
Clause 7(7) places some restrictions on the use of the power in 7(1) - e.g. regulations under subsection (1) may not - (a) impose or increase taxation, (b)make retrospective provision, (c)create a relevant criminal offence etc. Although such restrictions appear in the Bill, there was concern that Clause 7(1) might be used to make policy changes as opposed to correcting deficiencies in retained EU law. Th report makes a recommendation that the powers be more tightly circumscribed on the face of the Bill so that they do not allow for major policy changes to be effected by them - see paras. 184 and 211.
A further complaint about Clause 7(1) is that it is a "potentially expansive Henry VIII power" allowing for legal changes that would usually require primary legislation - e.g. creating public authorities. The committee recognised that the government will require some Henry VIII powers (para 188) but they must not be granted lightly and they require "commensurate safeguards and levels of scrutiny."
Clause 8 - Complying with international obligations -
Here is a further Henry VIII power but the committee noted that it is more clearly targeted (para 190) and may be justified given the degree to which the UK's international obligations will change as a result of Brexit (para 191). Again, the committee recommends amendment to require Ministers to show "good reasons" to use the power and that it is "a reasonable course of action."
Clause 9 - Implementing the withdrawal agreement -
This clause was amended in the House of Commons so that it could not be used before the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. The government has committed to introducing an Implementation Bill to legislate for the outcome of the negotiations with the EU.
Given the government's plans to have an Implementation Bill, it seems pointless retaining Clause 9 and the report so recommends its removal from the Bill (Clause 197). In any event, Clause 9 (if enacted) would expire on exit day - Clause 9(4).
Sunset Clauses apply to Clauses 7-9. Two years for Clauses 7 and 8 and "exit day" for Clause 9. The committee welcomes those provisions but notes that they do not resolve the other problems with the powers.
Clause 17 - Consequential and transitional provision -
Clause 17 is a further Henry VIII power to make consequential and transitional provision but which has the potential to be used beyond what is ordinarily understood to be consequential / transitional. Whilst agreeing that the government may require a power to make "transitional, transitory and saving provisions" the committee recommended that the power to make "consequential provisions" in Clause 17 be removed.
It is not particularly clear to me where this leaves Clause 17. A redraft of the entire clause appears to be required if the committee's recommendation is to be met.
Effective parliamentary scrutiny of the extensive regulation-making powers in the Bill is essential. Parliament must ensure that the information provided alongside the regulations allows for proper scrutiny and that the procedures the regulations will be subject to are appropriate. A number witnesses set out arguments along these lines.
The committee welcomed requirements in the Bill for publishing explanatory memoranda for instruments resulting from the Bill - see paras. 208 to 211.
The government wishes to use NEGATIVE procedure for most instruments to be made under powers in the Bill - (para 214). The Committee states at 215 - "We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance. The Government has not offered sufficient justification for the widespread application of the negative procedure in this context, given the constitutional implications for the separation of powers."
AFFIRMATIVE procedure would apply in only a limited number of situations - see Schedule 7 Part 1. Examples included establishing a new public authority in the UK; transferring functions at a newly created public authority; transferring legislative functions to a public authority in the UK; etc. The committee expresses concern at the limited range of matters to be subject to affirmative resolution procedure and calls for affirmative procedure to be used for any measure which involves the making of policy (para 219).
There is concern about the power in the Bill (Schedule 7 para 3) enabling Ministers to bypass affirmative resolution procedure in urgent cases. The committee was not convinced that urgent procedures are acceptable and the process needs to be far more tightly drawn and controlled (para 222).
Chapter 9 concludes with discussion of "Additional Committee Scrutiny" (paras 223 to 228) and The Role of the House of Lords (229-233). The government expects around 800-1000 statutory instruments to flow from the Bill and time will be very limited. There has been a commitment by the Leader of the House of Lords to enhance the resources available for scrutiny.
: Chapter 9 - Devolution :
The Bill also has significant consequences for the devolved administrations and their relationship with the UK Government. The Bill envisages the transfer of competences from the EU level to the UK Government but does not provide clarity and certainty as to which powers will then be devolved and on what timescale. That some of these powers fall within areas of existing devolved competence has raised concerns in the devolved administrations, which makes it essential that inter-governmental relations on the Bill are conducted effectively. The UK Government urgently needs to secure political agreement with the devolved administrations in order to achieve legislative consent from the respective legislatures for the Bill. A failure to secure legislative consent would not legally prevent the Bill from being enacted, but it would have significant constitutional repercussions. In addition, we consider that the Bill poses specific challenges for Northern Ireland, as no executive is currently in operation in Stormont and no Assembly is convened to give its consent.
"The Bill addresses devolution in two main ways. Clause 10 and schedule 2 confer on the devolved administrations power to make regulations which correspond to the powers conferred on UK ministers by clauses 7 to 9. The schedule 2 powers are however “shared” with UK ministers. Clause 11 restricts the powers of devolved institutions in relation to retained EU law, giving determining power to UK ministers and providing for joint decision making in certain situations.
The primary concern we have in this process is that the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit."
The report sets out the effect of Clause 10 (and Schedule 2) at paras 236 to 240. Clause 11 is explained at paras. 241 to 242. Clause 10 gives effect to Schedule 2 which confers powers to make regulations involving devolved authorities which correspond to the powers conferred by sections 7 to 9. Clause 11 amends devolution legislation - e.g. the Scotland Act 1998 section 29. Thus, section 29 would be amended so that, with some exceptions, an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law.
Considerable concern exists over these powers which are seen by some as a formal recentralisation of power - (para 244). Clause 11 was seen by the Finance and Constitution Committee of the Scottish Parliament as a "fundamental shift in the structure of devolution in Scotland" (para 247). In the House of Commons the government stated that amendments to Clause 11 would be introduced but these are still awaited.
The Government’s principal policy objective, in connection with clauses 10 and 11, is to identify areas which need a common approach across the UK and then to release areas of competence “where it is agreed that a common approach established by EU law does not need to be maintained and can be changed (para 251).
At para 260 the committee states that agreement of common frameworks is essential to ensure that those areas that are currently governed by EU law return to the UK in a way that both maintains a common UK approach where needed and respects the principles of the territorial constitution. Securing such agreement will also help assuage concerns over the possible ramifications of clause 11 and may help secure legislative consent to the Bill by the devolved legislatures. It is important that all parties to the negotiations have similar incentives and work constructively to reach an agreement on the approach to common frameworks. We urge the UK Government and the devolved administrations to seek swift and tangible progress towards such frameworks in their negotiations.
Legislative consent and the Sewel Convention -
The UK Parliament does not normally legislate with the legislative competencies of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly without the consent of the relevant legislature. At para 271 the report states - "The constitutional consequences of proceeding with the Bill without legislative consent from the devolved legislatures would be significant and potentially damaging, both to the UK’s withdrawal from the European Union and to the union of the United Kingdom. It is imperative that the Government brings forward amendments to clause 11 and works through the Joint Ministerial Committee to ensure an agreed approach to the return of competences from Brussels and pan-UK agreement on common frameworks."
Northern Ireland -
Northern Ireland has now gone a year without a functioning devolved Executive and Assembly. The report looks at the particular situation of Northern Ireland - (paras 272-280). As with so much to do with Brexit, there is immense uncertainty as to what may happen. At paras 279 and 280 the report says -
"The implications of the UK’s departure from the European Union for Northern Ireland, given their complexity and sensitivity, require special and urgent consideration by the Government.
We recommend that the Government publish an assessment of the effect of the Bill and the UK’s withdrawal from the EU on the Belfast/Good Friday Agreement before the completion of the Bill’s consideration in the House of Lords."
The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day – Clause 5(1)
Accordingly, the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day – Clause 5(2)
Clause 5, if enacted in its present form, would continue as part of UK domestic law a need to keep referring back to the EU Law principle of "supremacy." The Constitution Committee Report finds the "whole approach adopted in Clause 5(1) and (2)" to be misconceived. An alternative is suggested.
The Report states (para 88) - "We find it impossible to see in what sense "the principle of the supremacy of EU law", set out in clause 5, could meaningfully apply in the UK once it has left the EU. Following exit, there will be no "EU law" within the domestic legal system, as a central purpose of the Bill is to excise all EU law from the UK legal system. Most EU law that exists immediately prior to exit will remain within the domestic legal system in the form of retained EU law as a result of the Bill, however, retained EU law will not be EU law: it will be domestic law. As a result, there can be no meaningful sense in which "the principle of the supremacy of EU law" can apply to retained EU law, given that the latter is not EU law."
The committee considered that the notion of maintaining the "supremacy principle" following exit amounts to a fundamental flaw at the heart of the Bill - (para 89).
The committee went on to propose (para 93) - that retained direct EU law should be made to prevail over pre-exit domestic law by providing in the Bill that retained direct EU legislation under Clause 3 and all law that is converted into domestic law by Clause 4 is to be treated as having the status of an Act of the UK Parliament enacted on exit day.
No equivalent provision needs to be made in relation to EU-derived domestic legislation under Clause 2: such legislation already has the status of either primary or secondary legislation in domestic law ... (para 94).
At the time of writing, it remains to be seen whether this suggestion will be adopted.
Chapter 6 - Charter of Fundamental Rights:
Clause 5(4) and 5(5) -
(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day.
(5)Subsection (4) does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).
Following committee stage on the Bill in the Commons, the Government published a right-by-right analysis of the Charter, which set out where Charter rights exist in other directly applicable EU law or domestic law - see the Analysis Paper 5th December 2017.
The Report comments (para 119) - "The primary purpose of this Bill is to maintain legal continuity and promote legal certainty by retaining existing EU law as part of our law, while conferring powers on ministers to amend the retained EU law. If, as the Government suggests, the Charter of Fundamental Rights adds nothing to the content of EU law which is being retained, we do not understand why an exception needs to be made for it. If, however, the Charter does add value, then legal continuity suggests that the Bill should not make substantive changes to the law which applies immediately after exit day."
and then at para 120 -
"The effects of excluding the Charter rights, retaining the “general principles”, but excluding rights of action based on them, are unclear. This risks causing legal confusion in a context where clarity
is needed. We look forward to the views of the Joint Committee on Human Rights on the implications for rights of excluding the Charter of Fundamental Rights in the Bill. We recommend that the
Government provides greater clarity on how the Bill deals with the general principles and how they will operate post-Brexit."
The Report begins by noting (para 124) - "The separation of powers is a fundamental constitutional principle. Parliament makes the law and the courts interpret and apply it. However, in order for the separation of powers to operate effectively in this regard, Parliament must properly play its part. That means, among other things, that legislation must be sufficiently clear. A risk attached to any uncertainty in the law is that courts will be required to fill gaps, which may engage them unavoidably with political or policy decisions."
and at 125 -
"As we set out in the preceding chapters, the creation of retained EU law by the Bill will introduce uncertainties and ambiguities into the law. These will be compounded if the Bill does not direct the courts clearly as to how they should go about the task of interpreting retained EU law."
The Bill draws a distinction between pre-exit and post-exit CJEU case law. Interestingly, the Committee's earlier report (March 2017) sought to persuade government to avoid this distinction.
Pre-exit CJEU case law -
Clause 6(3) - "Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it - (a) in accordance with any retained case law and any retained general principles of EU law, and (b)having regard (among other things) to the limits, immediately before exit day, of EU competences."
At paras 129-131 the Report considers this and concludes that the Bill takes a clear and sensible approach to the applicability of pre-exit case law once the UK has left the EU.
Post-exit CJEU case law -
Senior members of the judiciary and others had raised the need for Parliament to tell the courts what they should be doing about judgments handed down by the CJEU following exit day. The judges clearly seek to avoid future accusations of making policy decisions which ought to be made by Parliament. The report has a good discussion of this at paras 132 to 139.
The committee commented (141) - "The Bill leaves it to judges to decide when it is appropriate to be guided by post-exit CJEU case law—and, when it is, what amount of weight should be ascribed. We are concerned that the Bill leaves courts without proper guidance on this fundamental question of policy and that, by deciding to attach weight or indeed not to attach weight to post-exit CJEU cases, judges may become involved in political controversy."
and at 142 - "We recommend that the Bill should provide that a court or tribunal shall have regard to judgments given by the CJEU on or after exit day which the court or tribunal considers relevant to the proper interpretation of retained EU law. We further recommend that the Bill should state that, in deciding what weight (if any) to give to a post-exit judgment of the CJEU, the court or tribunal should take account of any agreement between the UK and the EU which the court or tribunal considers relevant."
It appears to me to be very doubtful whether this will enable the judges to avoid political controversy!
Further points on interpretation -
The Report recommends (para 144) that the Government's statement accompanying regulations which modify retained EU law should also provide an explanation of the intention of the modification. This would then guide the courts in applying Clause 6(3).
Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it -
(a) in accordance with any retained case law and any retained general principles of EUlaw, and
(b) having regard (among other things) to the limits, immediately before exit day, of EU competencies.
The report further recommended removal of the words (among other things) since there is no indication as to what other things may be relevant.
Paras 147 to 154 discuss the position regarding "Pending Cases" - this is not considered further here.
Finally, paras 155-156 refer to the possibility of a transition period. The scheme for interpreting CJEU case law post-Brexit does not take into account the possibility of a transition period. It appears that the government thinks that this should be addressed in a further Bill - the Withdrawal Agreement and Implementation Bill. The report simply states that the government will need to provide for the operation of retained EU case law and its interaction with the CJEU in that further Bill.
Here is the HTML version of the Bill as introduced to the Lords and Parliament has published a tracked version showing the amendments made by the Commons.
Since accession to the EU in 1973, an enormous amount of law has flowed into the UK via the European Communities Act 1972 (the ECA) - referred to in the Miller judgment (para 65) as a 'conduit pipe.' The general scheme of the European Union (Withdrawal) Bill is to retain, with important exceptions, EU law as it exists immediately before exit day and then to give (extensive) powers to Ministers to alter things. Clauses 2 to 6 are concerned with Retention of Existing EU law. This earlier post looked at the Bill as it stood upon its introduction to the House of Commons and Explanatory Notes are available.
Retained EU Law:
Chapter 3 of the Report considers Retained EU Law and notes (para. 18) - “Retained EU law” will form a discrete, novel and legally significant category of law. As we concluded in our interim report, “it is imperative,in the interests of legal certainty, that there is maximum clarity as to what counts as retained EU law” on and after exit day. In the rest of this chapter, we consider what constitutes retained EU law. In the following chapters, we examine the status of that body of law, the application of the “supremacy principle” to it and its interpretation by the courts.
Three categories of Retained EU Law arise under Clause 2 to 4 of the Bill. The two categories coming under Clauses 3 and 4 are referred to in the Report as "Retained Direct EU Law" though this term is not used in the Bill.
EU-derived domestic legislation” that is saved by clause 2. This includes domestic secondary legislation made under the European Communities Act 1972 for the purpose of implementing EU directives.
This is already either domestic primary legislation or domestic secondary legislation. Under the Bill, it will have the same status post-exit as it had pre-exit.
“Direct EU legislation” that is rendered part of domestic law byclause 3. This includes EU regulations, EU decisions and EU tertiary legislation (e.g. provisions made under regulations and directives) as they had effect in EU law immediately before exit day.
Directly effective EU law that is saved by clause 4. Clause 4 saves directly effective EU law that had effect in the UK by virtue of the European Communities Act 1972 and that is not already saved by clause 3. Clause 4 will therefore, for instance, domesticate directly effective treaty provisions and (at least some) provisions in directives that are capable of direct effect.
Chapter 4 notes that the Bill is silent as to the domestic legal status of retained direct EU law. The Status of Retained EU Law is considered in detail and the Committee makes an important recommendation.
Para. 39 states -"Whether a law counts as primary or secondary legislation is of fundamental importance in the UK legal system. Primary legislation in the form of Acts of Parliament is the product of a legislature that is sovereign, in the sense that it has legally unlimited powers. In contrast, secondary legislation is, by definition, made under limited powers that are capable of being unlawfully exceeded. This distinction has important consequences when considering the status of retained EU law under this Bill."
At paras. 40 to 42 the Report comments -
40. Broadly speaking, the Bill creates two types of “retained EU law”. The first type is “EU-derived domestic legislation” under clause 2. As we explain in Chapter 3, this category consists of domestic legislation that already exists. It is therefore already either domestic primary legislation or domestic secondary legislation; and under the Bill, it will have the same status post-exit as it had pre-exit.
41. EU-derived domestic legislation under clause 2 can be distinguished from “retained direct EU legislation” that is domesticated by clause 3 and other directly effective provisions of EU law that are domesticated by clause 4. (We refer to the law domesticated by clauses 3 and 4 collectively as “retained direct EU law”.) The crucial difference between EU-derived domestic legislation and retained direct EU law is that whereas the former already has a particular domestic status, the latter does not. Therefore, while the legal status of EU-derived domestic legislation is clear post-exit, the same is not true of retained direct EU law.
and at para 44 ...
"Retained direct EU law will be domestic law. There is no reason why Parliament cannot or should not assign to retained direct EU law a recognisable domestic legal status. The fact that retained EU law began life as something other than domestic law does not prevent Parliament from assigning it a domestic legal status once it becomes domestic law. Nor does the fact that retained direct EU law originated outside the domestic legal system provide any good reason for neglecting to assign it a domestic legal status once it is recognised as domestic law."
The Report goes on to comment (para 51) that "it is essential that all retained direct EU law has the same legal status for all purposes." The Committee therefore recommended (para 52) that "the legal status to be "accorded to all retained direct EU law for all purposes" should be "that of domestic primary legislation, as directly effective EU law is closely analogous to domestic primary legislation. This will secure legal continuity and certainty post-exit."
Many more points could be made about Chapters 3 and 4 and a full reading is crucial. Adoption of the committee's recommendations would result in far less legal confusion (and possibly litigation) post-Brexit.
A further post will look at Chapters 5 to 7 - The Supremacy Principle, Charter of Fundamental Rights, and Interpretation of Retained EU Law. A final post will look at Chapters 8 to 10 - Delegated Powers, Scrutiny of Delegated Powers, and Devolution.
The latest report states that legislation is necessary to ensure legal continuity and certainty when the United Kingdom leaves the European Union. The Committee has not commented on the merits of Brexit, but concluded that the Bill, as drafted, has fundamental flaws of a constitutional nature. The Committee found that the Bill risks undermining the legal certainty it seeks to provide, gives overly-broad powers to ministers, and has significant consequences for the relationship between the UK Government and the devolved administrations. The Committee propose a number of recommendations to improve the Bill to make it more constitutionally appropriate and fit for purpose, while still meeting the Government’s objectives. [My emphasis].
The Bill passed through the House of Commons with only minimal amendment and Parliament has helpfully published a tracked version showing the amendments made by the Commons. The House of Lords First Reading of the Bill takes place on 30th and 31st January - The Guardian 27th January.
The meaning of "exit day" was amended. This previous post looked at the situation as it stood when the Bill was first introduced to Parliament. Clause 14(1) stated: “exit day” means such day as a Minister of the Crown may by regulations appoint (and see subsection (2));
As amended, Clause 14(1) now states: “exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));
Significantly, subsection (4) states that - A Minister of the Crown may by regulations - (a)amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and (b)amend subsection (2) in consequence of any such amendment.
The Constitution Committee's report - Chapter 2 paras. 10 to 15 comments:-
10.In our interim report we raised concerns that the Bill contained no express provisions to constrain the scope of ministerial discretion to define “exit day” or that otherwise set criteria by which exit day was to be determined. We also noted that the Bill did not require that ministers prescribe exit day and the power to define exit day was exercisable by statutory instrument not subject to parliamentary procedure. We concluded that the power was “unduly broad in its scope and flexibility” and left open the possibility that ministers might provide through regulations that exit day meant one thing for one purpose and something else for another purpose.
11.The Government subsequently decided to stipulate exit day in the Bill. Steve Baker MP, Parliamentary Under Secretary of State at the Department for Exiting the European Union, told us “We wish to put into the Bill the reality under international treaty law of our exit day, which is as announced, and to give people clarity that there is one exit day and that it is 29 March 2019.”
12.Sir Keir Starmer QC MP, Shadow Secretary of State for Exiting the European Union, criticised the idea of fixing exit day in this way:
“the proposal to stipulate exit day is really problematic. We have gone from an overly broad position … where exit day is not determined, not necessarily overseen and could be on different days, to a position where it is absolutely fixed for all purposes. It has swung completely to the other side, and that is a mistake. The leave date is clear from the provision of Article 50. The exit date gets mixed up with the leave date, but the exit date serves a different purpose; it tells you when things have to happen in our domestic law for this whole exercise to work.”
He added that it “unnecessarily constrains the flexibility the Prime Minister might need in the latter stage of the negotiations.”
13.The Public Law Project suggested that “in the interests of legal certainty, ‘exit day’ should be defined as ‘the day on which the UK ceases to be subject to the EU Treaties.’ This would allow sufficient flexibility for there to be a transition period while also enhancing legal certainty and appropriately limiting the period for which Ministers may exercise the extensive delegated powers contained in the Bill.”
14.The Bill was subsequently amended in the Commons to define exit day as 11pm on 29 March 2019, while giving ministers the power to amend that definition “if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different.”
15.The revised definition of “exit day” in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between “exit day” as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK.
Other aspects of the report will be considered in a later post.
EU General Affairs Council (GAC) :
EU27 ministers have adopted a new set of negotiating directivesfor the Brexit negotiations, which detail the EU27 position regarding a transition period. According to the EU position, during the transition period the whole of the EU acquis will continue to apply to the UK as if it were a member state. However, the UK, as already a third country, will no longer participate in the institutions and the decision-making of the EU. These negotiating directives provide the Commission with a mandate, as the EU negotiator, to start discussions with the UK on this matter.
Extending (by agreement with the EU27) the period for negotiations might appear to many to be a more acceptable way forward than a "transition period" but, so far, the British government has set its face against requesting such an extension.
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