Friday, 24 February 2017

Advertisements for very senior judicial posts

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

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

Wednesday, 22 February 2017

Civil Partnership ~ the future?

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

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

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

Tuesday, 21 February 2017

House of Lords ~ EU (Notification of Withdrawal) Bill

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

Update 22nd February:

Saturday, 18 February 2017

Thursday, 16 February 2017

Protecting Official Data (1)



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

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

Royal Wedding 2011 ~ Arrests held to be lawful

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

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

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

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

Tuesday, 14 February 2017

The future of Combat Immunity

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

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

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

Saturday, 11 February 2017

Iraq - the story continues

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

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

Thursday, 9 February 2017

European Union (Notification of Withdrawal) Bill in the Lords

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

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

Thursday, 2 February 2017

Brexit - the White Paper

Update - Addendum 4th February

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

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

Addendum 4th February:

Tuesday, 31 January 2017

New Chairman for SIAC, POAC and PAAC

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

Special Immigration Appeals Commission (SIAC):

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

Thursday, 26 January 2017

European Union (Notification of Withdrawal) Bill

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

Original post:

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

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


There are just 2 clauses:

1 Power to notify withdrawal from the EU


Brexit ~ Decision, Notice and the Withdrawal Bill

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

In October 2016,

Tuesday, 24 January 2017

Brexit litigation ~ Supreme Court gives judgment

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

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

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

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

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

Wednesday, 18 January 2017

UK Supreme Court - Brexit judgment

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

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

Miller and Dos Santos:

7 years old

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

Tuesday, 17 January 2017

Whole Life Sentences for Murder

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


The circumstances of the case are below.


Saturday, 14 January 2017

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

Updated 17th January ... and 18th January ...

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

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


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

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

Thursday, 12 January 2017

Drones - Speech by Attorney General

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

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

Tuesday, 10 January 2017

Article 50 Treaty on European Union

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

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