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.
The United Kingdom will, almost certainly, take part in elections to the European Parliament which will be held over 23-26 May 2019.
The European Parliament is directly elected and comprises 751 Members (MEP) who serve for a 5 year term. The UK has a total of 73 MEP.
Elections in the UK will take place over 12 REGIONS: 9 English regions plus Scotland, Wales and Northern Ireland. The number of MEP per Region are:
Number of MEP
Yorkshire and Humberside
Elections take place under proportional representation (PR). This is a major difference to the "first past the post" elections to the UK Parliament. Member States must adopt either the List System or the single transferable vote (STV). For the UK, the List System applies except in Northern Ireland where STV is used. (Northern Ireland is not considered further in this post).
There are two types of candidates at European Parliamentary elections - Individual candidates or those standing on behalf of a registered party. Political Parties will draw up LISTS of candidate names. The voter therefore chooses either to vote for an individual candidate or for a Party List.
I am making no predictions about these elections! Smaller parties tend to do reasonably well given the system of voting and they certainly perform much better than under first past the post. Professor Sir John Curtice of Strathclyde University has looked at this issue - UK in a Changing Europe website 15 April 2019 - All European Parliament Elections are different. This one especially so.
UK turnout for European Parliament Elections has never exceeded 38%. Will 2019 be any different? I certainly hope so.
Example of a Voting Form: Resources:
The following links offer very good reading on the forthcoming elections and include explanation of how the voting system actually works:
"The legal aid system needs to be made fairer in terms of how it funds those who require it. It's fundamentally flawed."
The law empowers the State to do many draconian things. We can be imprisoned if convicted of criminal offences or even for non-payment of Council Tax. Children can be removed from the family by way of care proceedings if the family court finds that they are suffering or are likely to suffer "significant harm" - Children Act 1989 s.31. UK citizenship may be removed from individuals in certain situations - e.g. the Shamima Begum "Jihadi Bride" case. Coroners investigate unexplained deaths including those which may have resulted from the conduct of agencies of the State itself.
In all of those and in many other areas the individual can be faced with complex law and will need access to legal advice and, if required, representation by a qualified lawyer. Unfortunately, by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the State opted to either cut or limit legal aid in many areas.
In February I wrote about the arguably unlawful decision of the Home Secretary in the Shamima Begum case. Begum is a figure of hate in the eyes of most tabloid journalists and it now appears that she has been granted legal aid to challenge the Home Secretary's decision. There are few more draconian decisions than deprivation of citizenship and it is crucial that even the mighty Home Secretary acts within the law. The legal aid decision is entirely right.
In February 2018 legal aid was granted for a civil action against John Downey, a suspect in the 1982 Hyde Park bomb attack but legal aid for this civil action had been refused on 5 occasions. Those refusals point to problems with the reduced scope of legal aid system since LASPO and it is to those defects that media attention ought to focus.
The Daily Mail also referred to funding for families seeking to be represented at the Birmingham Pub Bomb inquests - "Julie Hambleton, spokesman for the families of the victims of the Birmingham pub bombings, said they also had to battle for legal aid and had received only a fraction of the funding they hoped for." Her sister Maxine was among 21 people who died when bombs exploded in two pubs in 1974. She said: 'The legal aid system needs to be made fairer in terms of how it funds those who require it. It's fundamentally flawed.'
Problems with the 1974 bombings in Birmingham and Guildford are examined in this article published by the Law Society Gazette on 11 March 2019. The resumption of inquests into the 1974 Birmingham and Guildford pub bombings raised a number of issues regarding the process by which complex multi-death tragedies are investigated. These relate not just to the process of investigation, but also the way government responds to complex investigations where state failure or responsibility may be engaged.
We can multiply examples of cases where legal aid was available and where it was not. The danger in all of this is that sight can be lost of the need for justice according to law no matter who the parties to the cases are.
In the Supreme Court's judgment in the Unison case, Lord Reed explained the importance of the rule of law - "At the heart of the concept of the rule of law is the idea that society is governed by law […] Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade" - R (Unison) v Lord Chancellor  UKSC 51 at para 68.
In recent years, government has imposed numerous impediments to access to justice including alteration to legal aid provision and the imposition of court fees. Our system of government and legal system are based on the rule of law and if they are to continue to be respected then it is fundamental that justice must be applied to all cases regardless of the popularity or unpopularity of the individuals involved. A comprehensive legal aid system offering representation at sensible rates of pay is crucial. As Julie Hambleton rightly said - "The legal aid system needs to be made fairer in terms of how it funds those who require it. It's fundamentally flawed."
A post-implementation review of LASPO Part 1 took place in 2018 and the report was published in February 2019. The central purpose of the review was to carry out an evidence based and objective assessment of the impact of the changes made under LASPO. The government also looked at how the full range of legal support should be delivered in the future. Their new approach is outlined in the Legal Support Action Plan.
Wikileaks was founded in 2006 by Mr Julian Assange (born 3 July 1971). It is an international publishing organisation which came to prominence in 2010 when it published a series of "leaks" provided by Chelsea Manning. The publications included the Afghanistan war logs (July 2010) and the Iraq war logs (October 2010).
In November 2010, a Swedish prosecutor issued a European Arrest Warrant (EAW) for Mr Assange alleging that he had committed sexual assaults and rape. He denied the allegations, and said that they were just a pretext for him to be extradited from Sweden to the United States because of his role in publishing secret American documents.
He remained at the Embassy until 11 April 2019. The Ecuador government - led by Lenin Moreno - withdrew its protection. The Metropolitan Police were permitted to enter the embassy to execute the Magistrates' Court warrant. Within hours, Assange was taken to court and convicted of failing to surrender to bail.
A police statement confirmed that Assange was further arrested on behalf of the United States authorities, at 10:53 hrs after his arrival at a central London police station. This is an extradition warrant under Section 73 of the Extradition Act.
A statement by the USA Department of Justice indicates that the arrest was in connection with a federal charge of conspiracy to commit computer intrusion for agreeing to break a password to a classified U.S. government computer. The statement also notes - "He faces a maximum penalty of five years in prison if convicted. Actual sentences for federal crimes are typically less than the maximum penalties. A federal district court judge will determine any sentence after taking into account the U.S. Sentencing Guidelines and other statutory factors."
Legal interest will now focus on (a) the sentencing of Assange for failure to surrender and (b) the extradition process to the USA. It remains possible that Sweden will also seek to secure extradition for the alleged rape.
The Bail Act 1976 covers the offence of failure without reasonable excuse to surrender to custody (section 6) and also Liability to arrest for absconding or breaking conditions of bail (section 7). Section 6 provides that where a magistrates’ court convicts a person of an offence it may commit the person to the Crown Court for sentencing. Assange was committed for sentencing under this provision and, completely unsurprisingly, was not granted bail. The Crown Court has power to sentence him for up to 12 months imprisonment for the section 6 offence.
Section 1(1) of the Act required - a Minister of the Crown to move a motion in the House of Commons in the form set out in subsection (2). The motion had to be moved on the day on which the Act received Royal Assent or on the day after that day.
The required form of the motion was –
“That this House agrees for the purposes of section 1 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on […]”
The motion was duly presented to the House of Commons on 9 April with 30 June 2019 inserted in the place where the brackets are. The motion was passed 420 votes to 110 - see Hansard 9 April.
In fact, the Prime Minister had contacted the President of the EU Council on 5 April to seek an extension of Article 50 to 30 June - previous post 5 April.
The European Council met on Wednesday 10 April and granted an extension for a flexible period but no later than 31 October 2019 - read the Council Conclusions.
Council agreed to an extension to allow for ratification of the Withdrawal Agreement. "Such an extension should last only as long as necessary and, in any event, no longer than 31 October 2019. If the Withdrawal Agreement is ratified by both parties before this date, the withdrawal will take place on the first day of the following month."
If the UK is still a Member of the EU on 23-26 May 2019 and if it has not ratified the Withdrawal Agreement by 22 May 2019, it must hold the elections to the European Parliament in accordance with Union law. If the United Kingdom fails to live up to this obligation, the withdrawal will take place on 1 June 2019.
There can be no opening of the Withdrawal Agreement.
The European Council will remain seized of the matter and will review progress at its meeting in June 2019.
The EUWA 2019 section 2 amended the procedure required for regulations amending "Exit Day" so that affirmative resolution of both Houses if no longer required. Regulations are now subject to annulment in pursuance of a resolution of either House.
EUWA 2019 section 1(6) states - Nothing in this section prevents a Minister of the Crown from seeking, or agreeing to, an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with this section provided that the extension cannot end earlier than 22 May 2019.
The Prime Minister, in a letter to the President of the European Council (Mr Donald Tusk), has requested an extension of EU (and Euratom) membership to 30 June 2019. Article 50(3) permits requests for extension but, for it to take effect, the European Council has to agree unanimously.
The letter also states that the UK government will "want to agree a timetable for ratification that allows the UK to withdraw from the EU before 23 May 2019 and therefore avoid elections to the European Parliament but the UK will "continue to make responsible preparations to hold elections should this not prove possible."
The letter indicates that further legislation is required to implement the withdrawal agreement and to ratify the agreement. A Withdrawal Agreement Implementation Bill can therefore be expected.
The European Union (Withdrawal) Act 2018 section 13 prevents ratification of the withdrawal agreement unless the steps required by the section are taken including affirmative resolution of the House of Commons.
In this previous post I am tracking the European Union (Withdrawal) (No.5) Bill which, on 3 April 2019, passed through all of its stages in the House of Commons. For the Bill and other associated documents see Bills before Parliament
The proceedings in the House of Commons raised an interesting point which is considered in this post.
Power to request extension:
The Bill requires, as a matter of law, the Prime Minister to move a motion asking the House of Commons to agree to the seeking of an Article 50 extension to a date to be specified in the motion.
This presupposes that the Prime Minister has a legal power in the first place to request an extension. That has been challenged by some lawyers and a judicial review on the point has been commenced - see i News 3 April. In a post on the UK Constitutional Law Association blog, Robert Craig argued that, unlike revocation, the treaty prerogative was a sufficient legal basis in domestic law for a brief extension of the Article 50 process on the international plane.
Let us assume just now that the treaty making power - a Royal Prerogative power - is available to enable requests for extension.
At the start of the Second Reading debate on the No.5 Bill the Speaker said that he had been advised by the Clerk of Legislation that "Queen's Consent" was not required for the Bill. This advice was based on the fact that Queen's consent had not been required for the European Union (Notification) Bill introduced in early 2017 after the Supreme Court judgment in Miller. There was no requirement for a new and separate prerogative consent for the No.5 Bill.
Queen's Consent is not the same process as Royal Assent. Royal Consent is a specific procedure that is triggered if a Bill affects the exercise of the royal prerogative (or certain other matters not relevant here). It was examined by a Commons Committee in 2014. The report noted:
Consent is a matter of parliamentary procedure. If the two Houses of Parliament were minded to abolish Consent, they could do so by means of addresses to the Crown, followed by a resolution of each House. Legislation would not be needed.
If the House authorities decide that Consent is needed for a Private Member’s Bill, the Government should as a matter of course seek Consent. This would remove any suggestion that the Government is using the Consent process as a form of veto on Bills it does not support.
The legal requirement to be imposed on the Prime Minister by the Bill does not either remove any Royal Prerogative power or alter what may be done using that power. Rather, the Bill provides a process by which the House of Commons can mandate the power to be exercised to, in this instance, seek an extension to a date to be inserted into the motion.
In the absence of the Bill, the Prime Minister is unfettered as to whether an extension is to be requested and, of course, the length of time to be requested. If the Bill becomes law then it is difficult to see how the prerogative power could be exercised in a way other than as mandated by the legislation. A good case therefore appears that the prerogative power is affected in such a way that Queen's Consent should either have been obtained or should be obtained.
What is the position if Queen's Consent is required and it is not obtained? Guidance to Parliamentary Counsel assist with the answer:
The guidance also notes that -
The Speaker was advised that Queen's Consent is not required. Given that Consent is a Parliamentary procedure then this advice can only be questioned in Parliament. If the matter is questioned in Parliament then there is the possibility that the proceedings on the Bill could be declared void. The courts are not permitted to question proceedings in Parliament - Bill of Rights 1689 Art. IX. If however the Bill passes both Houses and receives Royal Assent then Queens' Consent has become irrelevant.
The United Kingdom's uncodified constitution is capable of producing interesting and potentially difficult legal controversies.
A prime example was the Miller / Dos Santos litigation concerning whether the Prime Minister could, using prerogative power, give the notification under Article 50 TEU to the European Union that the UK had decided to leave. A majority of the Supreme Court held that an Act of Parliament was required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.
Legal power to request extension: An extension under Article 50 was granted by the EU - previous post 22 March. A question raised by some lawyers was whether an Act of Parliament was required to authorise an extension request.
In a post on the UK Constitutional Law Association blog, Robert Craig argued that, unlike revocation, the treaty prerogative was a sufficient legal basis in domestic law for a brief extension of the Article 50 process on the international plane see post by Robert Craig. The courts have not been asked to adjudicate on this point.
It has been argued by Professors Gavin Phillipson and Alison Young that an Act of Parliament would be required to permit revocation. They argue that the applicable principle is that the prerogative may not be exercised in a way that frustrates the intention of Parliament as expressed in statute.
In particular, they argue that this "frustration principle" would apply in relation to the European Union (Withdrawal) Act 2018 given that the whole purpose of the Act is to facilitate the UK’s actual exit (not its mere initial intention to exit) from the European Union.
A power to revoke could perhaps have been included in legislation. Such legislation could have provided for conditions to be met before the power could be used - e.g. resolutions in Parliament. Politically, the government has set its face against revocation since it runs contrary to the referendum outcome.
This question has not been settled in the courts and, if revocation arises, the government would do well to ensure that legislation is brought forward to give statutory power to revoke rather than rely on prerogative.
Prorogation / Royal Assent refusal:
John Finnis is an eminent legal scholar - see Oxford Faculty of Law. He was Professor of Law and Legal Philosophy at the University of Oxford from 1989 to 2010, where he is now professor emeritus.
In an article in The Telegraph 1 April, Finnis wrote - "The legal and democratic principles of our constitution now point to one resolution of the EU withdrawal crisis: prorogation of Parliament for two or three weeks, so that ministers can settle down to exercising their abundant statutory and prerogative powers to prepare for the immediate consequences of a no-deal withdrawal on April 12."
If Parliament is not prorogued then Finnis goes further. He contends that, if Parliament generates further Brexit-related legislation with which the government disagreed, it would be "proper and appropriate" for the government to advise HM The Queen to refuse Royal Assent to such legislation.
So, Finnis argues (1) remove Parliament from the scene and, if that is not done then (2) advise refusal of Royal Assent. Such propositions are, frankly, astonishing but could they have legal purchase?
Finnis has adopted an exceptionally pro-executive power stance which sees Parliament as a body to be sidelined if it is acting in a way which the executive regards as inconvenient to executive aims.
Prorogation of Parliament and also Royal Assent are prerogative powers in relation to Parliament - see Parliament - Taming the Prerogative - 2004. They are part of a wide array of often ill-defined powers held by the Crown but they are, by constitutional convention, exercisable on the advice of Ministers. The powers are extensive in areas such as foreign affairs and defence and give Ministers considerable scope for action but a key role of Parliament is to scrutinise the exercise of such powers.
It is remarkable that, in the 21st century, we continue to have powers which are, in practice, exercisable by Ministers but which could possibly enable Ministers to sweep aside Parliament and to bring HM The Queen into an area of immense political controversy by advising her to refuse Royal assent to a bill duly passed, as is required, by both House of Parliament.
The day must come when the conditions for use of legal powers such as Prorogation and Royal Assent are better defined.
The House of Commons will today (3 April) debate a "Business of the House Motion" which, if successful, will permit the European Union (Withdrawal) (No.5) Bill - (the bill) - to go through all of its House of Commons stages by 10 pm.
The Bill is aimed at requiring, as a matter of law, the Prime Minister to bring a motion to the House of Commons seeking an extension of Article 50 to a date to be specified in the motion. It would be possible for the Commons to reject the motion. If the House approved the motion then the PM would be legally required to request an extension to the specified date. As a matter of EU law - (i.e. Article 50 Treaty on European Union) - the European Council would still have to unanimously agree any extension. One possibility is that Council agrees to an extension but specifies an alternative date to that put forward by the UK. In this event, the PM would have to bring a further motion to the Commons to get agreement on the date put forward by the EU.
The Business Motion (proposed by Sir Oliver Letwin MP and Yvette Cooper MP) is 19 paragraphs long and amendments to it have been put forward - see Order Paper 3 April
The bill does not contain a clause dealing with revocation of the Article 50 notification.
If the Bill successfully passes through the House of Commons it will still require to pass the House of Lords and then receive Royal Assent.
The PM remained of the view that leaving with a deal was the best solution and a further extension of Article 50 was therefore needed - "one that is as short as possible and which ends when we pass a deal." The PM recognised that - "Despite the best efforts of MPs, the process that the House of Commons has tried to lead has not come up with an answer." Consequently, the PM offered to meet the Leader of the Opposition to "try to agree a plan - that we would both stick to - to ensure that we leave the European Union and that we do so with a deal." Any plan would have to agree the current Withdrawal Agreement because that had "already been negotiated with the 27 other members, and the EU has repeatedly said that it cannot and will not be reopened." The focus, and "ideal outcome", would be to agree an approach on a Future Relationship "that delivers on the result of the Referendum, that both the Leader of the Opposition and I could put to the House for approval, and which I could then take to next week’s European Council."
If a single unified approach could not be agreed then the aim would be to agree "a number of options for the Future Relationship that we could put to the House in a series of votes to determine which course to pursue."
"Crucially, the Government stands ready to abide by the decision of the House. The Government would then bring forward the Withdrawal Agreement Bill. We would want to agree a timetable for this Bill to ensure it is passed before 22nd May so that the United Kingdom need not take part in European Parliamentary Elections."
The PM concluded by saying - "This is a difficult time for everyone. Passions are running high on all sides of the argument. But we can and must find the compromises that will deliver what the British people voted for. This is a decisive moment in the story of these islands. And it requires national unity to deliver the national interest."
It is expected that the Leader of the Opposition will engage with the PM - BBC News 3 April.
One possible political problem could arise from the makeup of the opposition in the House of Commons. The Leader of the Opposition (Mr Jeremy Corbyn) is leader of the largest Opposition Party (i.e. Labour) but there are other opposition parties with significant numbers of MPs - e.g. the Scottish National Party (SNP) with 35 and the Democratic Unionist Party (DUP) with 16. The DUP continues, at the time of writing, to be in a confidence and supply agreement with the government. The PM's statement did not, in terms, include such parties in the talks.
On Friday 29 March the House of Commons rejected (344 against to 286 for) the negotiated Withdrawal Agreement, the Joint Instrument and the Unilateral Declaration - (the documents are available HERE). Under the EU Council Decision of 22 March this rejection has the effect of making Exit Day 12 April but it is open to the UK to seek a way forward. A further extension of time may therefore arise.
On Wednesday 27 March the House rejected eight indicative vote proposals - previous post 27 March. Only two of those "came close" to acceptance - a Customs Union (proposed by Kenneth Clarke QC MP but rejected 272 to 264) and a "Confirmatory Public Vote" (rejected 295 to 268.
The coming week will see the House holding further indicative votes as it continues to seek a solution which is likely to be acceptable to a majority in the House.
The Order Paper for 1st April sets out the motion to be debated and eight proposal. The Table below is a summary of the proposals. The situation is liable to change and I will endeavour to update the Table as events unfold.
It is reported that the government may seek to bring the Withdrawal Agreement back to the House.
Unilateral right of exit from the backstop - That this House agrees that the UK shall leave the EU on 22 May 2019 with the Withdrawal Agreement amended to allow the UK unilaterally to exit the Northern Ireland backstop.
No deal exit in the absence of a Withdrawal Agreement - That this House agrees that, in the absence of a Withdrawal Agreement that can command the support of the House, the UK shall leave the EU on 12 April 2019 without a deal.
Customs Union - That this House instructs the Government to: (1) ensure that any Withdrawal Agreement and Political Declaration negotiated with the EU must include, as a minimum, a commitment to negotiate a permanent and comprehensive UK-wide customs union with the EU; (2) enshrine this objective in primary legislation.
Common Market 2.0
A lengthy proposal which seeks to bring the UK into (a) EFTA (with a comprehensive customs arrangement with the EU); (b) the EFTA Pillar of the EEA; (c) have protocols relating to frictionless agri-food trade across the UK/EU border; (d) a comprehensive customs arrangement including a common external tariff
This motion also seeks to impose on the government a legally binding negotiating mandate
Confirmatory Public Vote - That this House will not allow in this Parliament the implementation and ratification of any withdrawal agreement and any framework for the future relationship unless and until they have been approved by the people of the United Kingdom in a confirmatory public vote.
Public Vote to Prevent a No Deal Brexit - That this House considers that it would be appropriate to commit to the holding of a public vote if it were necessary to prevent the United Kingdom leaving the European Union without a deal.
Parliamentary Sovereignty – also a lengthy proposal which, if adopted, could lead to the House either accepting a no deal exit or requiring revocation.
If it is revocation then an inquiry into the question whether a model of a future relationship with the European Union likely to be acceptable to the European Union is likely to have majority support in the United Kingdom. That could, in turn, could lead to a further EU referendum.
EFTA and EEA - calls on the Government to
(a) assert the UK’s existing rights and obligations as a signatory to the EEA Treaty
(b) indicate to the EU before 12 April that the UK intends to rejoin the European Free Trade Association
(c) agree with the EU a further short extension to the UK’s membership of the EU during which accession to the EFTA pillar can be concluded and
(d) negotiate with the EU additional protocols relating to the Northern Ireland border and agri-food trade.