The High Court of Northern Ireland ~ very brief note on the Brexit case

The High Court of Northern Ireland has handed down a judgment relating to Brexit.  The full judgment of Maguire J may be read HERE and there is also a SUMMARY.


Maguire J said (para 9) - "In view of the overlap between the respective challenges the court, on the application of the intended respondents, sought to avoid these proceedings simply duplicating those in England and Wales.  Accordingly the court has stayed the consideration of the central issues which the English courts will deal with.  Instead, these proceedings have sought to concentrate on the impact of Northern Ireland constitutional provisions in respect of notice under Article 50 and it is with this subject that this judgment is concerned."

The court addressed five issues which related solely to the constitutional arrangements in Northern Ireland.   The issues were:

The Article 50 case ~ some thoughts.

The decision of the High Court is awaited in the "Brexit litigation" - previous post 13th October.  The issue in the case was stated by Lord Pannick QC (Counsel for Gina Miller) - Can the defendant (the Secretary of State for Exiting the EU), on behalf of the government, lawfully use prerogative powers to give a notification under Article 50 of the Treaty on European Union of this country's intention to withdraw from the EU.  This post takes a look at a couple of aspects arising from the legal arguments in the case and is by no means a full analysis of the whole case.

The structure of Art. 50 itself is that, first, there must be decision to leave the EU taken by the Member State in accordance with its constitutional requirements.  Secondly, there is notification to the EU of that decision.  What amounts to "constitutional requirements" is a matter for the domestic law of the State concerned.

The decision:

Scottish Independence ~ a further referendum?

The European Union (EU) referendum on 23rd June 2016 concluded with a UK-wide vote in favour of leaving the EU but Scotland voted by 62% to 38% to remain.  Earlier post - It is Brexit (1).

Politically, this was bound to result in calls for a further referendum on Scottish Independence.  The referendum held in 2014 rejected Scottish Independence but that was before the 2015 General Election when the Conservative Party secured a small overall majority in the House of Commons.  The Conservative Party's election manifesto promised a referendum on EU membership before the end of 2017 and it was held on 23rd June 2016.

Consultation:

On 20th October 2016, the Scottish government announced a consultation on Scottish Independence and published a draft Bill aimed at achieving a further independence referendum.  See the draft Bill.

Legislation to introduce Statutory pardons for certain sexual offences

The Ministry of Justice has announced a plan to pardon those convicted for consensual same-sex relationships when the conviction was prior to a change in the law - see Ministry of Justice announcement 20th October.  This will be achieved by way of the government introducing an amendment to the Policing and Crime Bill.

The route to obtaining a statutory pardon will be somewhat complex since the proposed alteration to the law will operate via the "disregard" scheme introduced by the Protection of Freedoms Act 2012 Part 5 Chapter 4.  A little explanation is therefore in order.

The "disregard" scheme:

Parliament ~ Brexit should be scrutinised as it happens ~ new House of Lords report

The House of Lords EU Select Committee has issued a report - Brexit: Parliamentary Scrutiny

Noting that "The forthcoming negotiations on Brexit will be unprecedented in their complexity and their impact upon domestic policy" the committee says that "it seems to us inconceivable that it should take the many far-reaching policy decisions that will arise in the course of Brexit without active parliamentary scrutiny."

Parliament should not "micromanage" the negotiations but accountability after the fact is insufficient.  The report calls on the government to "recognise a middle ground between the extremes of micromanagement and mere accountability after the fact."

Magistrates ~ Justice Committee Report

The House of Commons Justice Committee has published its report on The Role of the Magistracy.

The Ministry of Justice and senior judiciary must, as a matter of priority, develop an over-arching strategy for the magistracy, says a report by the Justice Committee. This should include workforce planning, magistrates' training and the wider promotion of their role, especially to employers. It should also take into account the impact of court closures, and consider whether the role of magistrates could be expanded, in particular within any proposals for problem-solving courts.

The report supports increasing magistrates’ sentencing powers to 12 months’ custody and recommends that the Ministry of Justice provide a timetable for implementation. This recommendation has been welcomed by the Magistrates' Association.  It is further recommended that the new Allocation Guideline be given time to bed down and the Sentencing Council be given an opportunity to review its impact and that the Ministry of Justice publish any modelling of the potential impact of increased sentencing powers on the prison population.

Ched Evans acquittal

In September 2015, the case of Chedwyn ("Ched") Evans was referred to the Court of Appeal by the Criminal Cases Review Commission (CCRC) - read the CCRC statement.

On 21st April 2016, the Court of Appeal (Criminal Division) - Hallett LJ, Flaux J and Sir David Maddison - allowed an appeal by Mr Evans against his conviction for rape.  The Court of Appeal ordered a retrial - judgment.   The reasons for quashing the conviction were subject to reporting restrictions until the conclusion of the retrial.   The retrial was held at the Crown Court sitting in Cardiff and, on 14th October 2016, Mr Evans was acquitted.

The key piece of legislation

Speech by Donald Tusk ~ setting out the stall

This brief post highlights a significant speech in which the European Council President refers to Brexit - Speech by European Council President (Donald Tusk) at the European Policy Centre Conference

Mr Tusk said:  " ..... let's move on to Brexit. As for the negotiations, the situation is pretty clear. Its framework will be set out by the European Council - that is by the guidelines foreseen in the Treaty. Our task will be to protect the interests of the EU as a whole and the interests of each of the 27 member states. And also to stick unconditionally to the Treaty rules and fundamental values. By this I mean, inter alia, the conditions for access to the single market with all four freedoms. There will be no compromises in this regard.

High Court hearing on Article 50 ~ the transcript

Updated 20th and 24th October - additional links

On 13th, 17th and 18th October 2016 the High Court heard the cases of R (Santos) v Secretary of State for Exiting the European Union and M v Secretary of State for Exiting the European Union.  The court composition was the Lord Chief Justice, Master of the Rolls and Lord Justice Sales.

A very welcome development was the publication of transcripts of the proceedings - see Courts and Tribunals Judiciary website. 

The issue in the case was stated by Lord Pannick QC (Counsel for Gina Miller) - "Can the defendant, on behalf of the government, lawfully use prerogative powers to give a notification under Article 50 of the Treaty on European Union of this country's intention to withdraw from the EU."

The court will give judgment in the near future.

Similar proceedings are underway in Northern Ireland and here is the skeleton argument of the government.

Links:

UK Constitutional Law Association Blog - Robert Craig - Report on the proceedings 13th October (i.e. the first day of the hearing) and On the Second Day of the Hearing and On the Third (and final) Day of the Hearing.   Note: the Association's blog has numerous articles on many aspects of "Brexit."

Jolyon Maugham QC - Financial Times 14th October - The Article 50 challenge shows parliament should have its say.  Also see, by the same author,  A whine from sour grapes.

Michael Zander QC - New Law Journal - Oral arguments in the Art 50 court case

New York Times - Without a Constitution; "Bexit" is guided by a prerogative.  But whose?

UK Constitutional Law Group - Piet Eeckhout - The UK decision to withdraw from the EU: Parliament or Government 

My view of 27th June and links to views of other commentators

Human rights news

Proposed derogations from European Convention on Human Rights:

Journalonline has reported that proposals to  derogate from the European Convention on Human Rights in relation to the actions of British troops involved in foreign conflicts, were announced at the Conservative Party Conference.  "Defence Secretary Michael Fallon said that in future conflicts, subject to a vote of both Houses of Parliament, the UK would "derogate" from article 2 (right to life) and article 5 (right to liberty) of the Convention.  Troops will remain subject to other articles of the Convention, including the prohibition on torture. The changes will not apply retrospectively.  The Government claims the derogations will prevent "vexatious" claims being brought against the armed forces by foreign civilians."

Great Repeal Bill - some of the reaction

In her speech of 2nd October 2016, the Prime Minister duly announced that there is to be a Great Repeal Bill to repeal the European Communities Act 1972 - (previous post).  The Bill will transpose into domestic law a mass of European Union legislation and powers will be given to Ministers to make domestic secondary legislation so that changes to the law may be made after Brexit actually takes place.  The problem with secondary legislation made under powers given to Ministers is that it usually receives minimal Parliamentary attention and this is a point which MPs would do well to consider carefully.

Unsurprisingly, the idea of the Great Repeal Bill has resulted in considerable comment and here is some of it:

A Great Repeal Bill? A note just before the Conservative Party Conference.

The Conservative Party Conference is to be held in Birmingham from Sunday 2nd October to Wednesday 5th.  As usual, there will be "keynote speeches" by the Prime Minister and other senior Ministers - see the Conservative Party Conference Agenda.

Two items in the agenda struck me as being potentially in conflict.  Under the heading "Global Britain: Making a success of Brexit" there will be speeches by the Prime Minister and three speeches by the Secretaries of State for Exiting the EU (David Davis MP), for International Development (Priti Patel MP) and for Foreign and Commonwealth Affairs (Boris Johnson MP).  Interestingly, the Secretary of State for International Trade (Liam Fox MP) gets a slot on Monday afternoon.

On Wednesday