Thursday, 30 March 2017

The Great Repeal Bill - White Paper unveiled

The Secretary of State for Exiting the European Union has presented the government's White Paper on the "Great Repeal Bill" to the House of Commons - White Paper - Legislating for the United Kingdom's Withdrawal from the European Union.  The actual Bill will not be published until early in the next session of Parliament - (normally May).

Over the 44 years since the UK's accession to the European Communities, EU law has become virtually part of the DNA of the law governing the UK.  Its influence extends to almost every area of our lives.  Extracting the UK from this is bound to be a difficult and complicated task going well beyond a simple repeal of the European Communities Act 1972.

Secondary legislation will be required and that may include "Henry VIII" clauses allowing secondary legislation to amend primary legislation.  It will be incumbent on legislators to examine the Great Repeal Bill very carefully so as to ensure adequate scrutiny by Parliament over the use of such powers and to prevent the executive taking powers, exercisable by secondary legislation, to remove rights. The fear of a "power grab" by the executive is very real.

Wednesday, 29 March 2017

Article 50 notice - The end of the beginning

"This is not the end. It is not even the beginning of the end but it is perhaps, the end of the beginning."  Those words of Winston Churchill seem apt today as the UK government takes the formal step of commencing the withdrawal of the UK from the EU.

Article 50 of the Treaty on European Union (TEU) was "triggered" today and the letter from the Prime Minister to the EU Council President may be seen via this link.   See also the Prime Minister's statement in the House of Commons
 
The European Parliament has published "How the future of EU - UK relations will be decided"  Starting today the UK and the EU have two years to negotiate a withdrawal agreement. In addition the two parties will need to start determining their future trade relations, though this is expected to take significantly longer than two years.

The withdrawal negotiations are to be conducted in accordance with guidelines to be issued as a draft by the European Council almost certainly later this week.  The European Council (27 member states) will convene on 29th April.  The UK remains a member during the negotiations but may not participate in Council discussions about Brexit - see Art 50(4).  The negotiation will be conducted by the European Commission acting on behalf of the Council.

Tuesday, 28 March 2017

R v Alexander Wayne Blackman - sentencing for manslaughter

On 15th March, the Court Martials Appeal Court substituted a conviction for manslaughter in the case of former Royal Marine Alexander Wayne Blackman - previous post.   The substitution of a manslaughter conviction was on the basis of diminished responsibility at the time of the offence (September 2011).  On Tuesday 28th March, a sentence of 7  years imprisonment was imposed - read the court's sentencing remarks.  The court directed that time on remand in service custody be counted towards the sentence.  Mr Blackman remains dismissed from the Armed Forces but this is NOT with disgrace.

Monday, 27 March 2017

An unfair proposed amendment to the Prisons and Courts Bill

The offence of rape is among the most serious in our criminal law. The maximum available sentence is life imprisonment.  Rape Crisis England and Wales has published figures from the government's Overview of Sexual Offending in England and Wales (January 2013).  It is said that approximately 85,000 women and 12,000 men are raped in England and Wales each year and that conviction rates for rape are far lower than other crimes, with 5.7% of reported rape cases ending in a conviction.

Thursday, 23 March 2017

Criminal justice ~ Pre Recorded Cross-Examination and Re-Examination.

The Youth Justice and Criminal Evidence Act 1999 Part 2 Chapter 1 (YJCEA) introduced into English law a range of "special measures" which may be applied when "vulnerable and intimidated witnesses" give evidence at a trial.   Changes were made by the Coroners and Justice Act 2009 sections 98-103 which came into force on 27th June 2011.   The law is summarised on the Crown Prosecution Service website.
There is no doubt that for many witnesses attendance at court is a highly daunting and even frightening experience.  "Special measures" are intended to assist vulnerable and intimidated witnesses to give their best evidence in court by relieving some of the stress associated with giving evidence in the public arena of the courtroom.  Special measures apply to witnesses (whether prosecution or defence) but they do not apply to defendants.
Possible measures are -

Lord Chancellor was "completely and utterly wrong"

On Wednesday 22nd March, the Lord Chief Justice - (Lord Thomas) - gave evidence to the House of Lords Constitution Committee.  The session may be viewed via this link, lasts approximately one hour and looks at a considerable number of problems facing the legal system and the judiciary.

The session covered, among other things, the need for the Lord Chancellor to uphold the independence of the judiciary.  Lord Thomas was of the view that the present Lord Chancellor was "completely and utterly wrong" in the view she took at the time of the infamous Daily Mail "Enemies of the People" headline.  I wrote about it at the time - A Jewel Beyond Price 5th November 2016.  Lord Thomas said that judges can be criticised and he welcomed constructive criticism of decisions but there was a difference between criticism and abuse.  According to Lord Thomas, the headline has resulted in some litigants in person saying that circuit judges are enemies of the people.

Friday, 17 March 2017

European Union (Notification of Withdrawal) Act 2017

Update 20th March 2017 - Article 50 will be triggered on 29th March - see this statement.  The European Council President stated that draft guidelines for the subsequent negotiations will be issued within 48 hours of the Brexit notification.
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The European Union (Notification of Withdrawal) Act 2017 is in force.  Royal Assent was given on 16th March.  The legislative journey began on 26th January, after the Supreme Court’s judgment in the Miller case.

The Act gives the Prime Minister the power to notify the European Council of the United Kingdom's intention to withdraw from the EU. This will commence the 2 year period referred to in Article 50 of the Treaty on European Union.  During that time, negotiations will take place with a view to concluding an agreement with the UK, setting out the arrangements for withdrawal, taking account of the framework for the UK's future relationship with the Union.   Article 50 requires the negotiations to be conducted "in the light of the guidelines provided by the European Council."  At present, no such guidelines have been published.  The 2 year period can be extended as provided by Article 50.

Thursday, 16 March 2017

R v Alexander Wayne Blackman ~ Conviction reduced to manslaughter

In September 2011, Royal Marine Sergeant Blackman and his unit were operating in Helmand Province, Afghanistan.  They came across an insurgent who had been severely wounded by helicopter fire.  Sergeant Blackman killed the insurgent.

At a trial by Court Martial, Sergeant Blackman was convicted of murder, sentenced to life imprisonment with a minimum term to serve of 10 years.  He was also reduced to the ranks and dismissed with disgrace from the Armed Forces.  His defence at trial was that the insurgent was already dead. but this was rejected by the Court Martial.  No defence of diminished responsibility was raised and no psychiatric evidence was called at trial.  A psychiatric report was obtained for sentencing purposes.   On an appeal in 2014 to the Court Martial Appeals Court, the conviction for murder was upheld but the minimum term was reduced to 8 years.

Tuesday, 14 March 2017

Mental Health - Law Commission proposes replacing Deprivation of Liberty Safeguards (DoLs)

In 2014, the Supreme Court decided the Cheshire West case - [2014] UKSC 19.   The case was about the criteria for judging whether living arrangements made for a mentally incapacitated person amounted to a deprivation of liberty.  If they do, then, then the deprivation has to be authorised, either by a court or by the procedures known as the Deprivation of Liberty Safeguards (DoLs), set out in the Mental Capacity Act 2005.  

The Law Commission has examined the law in this area and, on 13th March, issued a report. 

Sunday, 12 March 2017

A Trilogy of Speeches

Lord Neuberger (President of the Supreme Court) delivered the Neill Lecture at Oxford on 10th February 2017.  He retires this year and the selection process for his successor is well underway.  The Supreme Court was created by the Constitutional Reform Act 2005 and replaced the Appellate Committee of the House of Lords.   Lord Neuberger was a Lord of Appeal in Ordinary from 2007 to 2009 and became Master of the Rolls on 1st October 2009.  In 2012 he was appointed President of the Supreme Court and, under his leadership, the Supreme Court has developed a remarkable degree of public acceptance largely because of the ways in which it communicates with the general public through televised hearings, prompt publication of judgments and press releases on the court website.  The handing down of judgments also appears on Facebook.  Additionally, members of the court are frequent guest speakers and the content of their speeches is always of considerable interest not only to lawyers but to the public.  Lord Neuberger's speech at Oxford is no exception and it may be read at - "20 years a judge: Reflections and Refractions" - Neill Lecture, Oxford Law Facility 10th February 2017.

Saturday, 11 March 2017

Two libel cases

The law of defamation developed at common law but has been modified in various ways by Parliament.  For example, the Defamation Act 2013 (fully in force 1st January 2014) introduced a "serious harm requirement."

Judgments in the two decided cases are available via the Courts and Tribunals Judiciary website:

Hourani v Thomson and others [2017] EWHC 432 (QB) Warby J 

Monroe v Hopkins [2017] EWHC 433 (QB) Warby J 

Tuesday, 7 March 2017

Another amendment to the Brexit Notification Bill

The European Union (Notification of Withdrawal) Bill has been amended by the House of Lords at Report Stage.  This is in addition to an amendment made at Committee Stage.

Here is the amended version.  The amendment is aimed at securing Parliamentary approval for the outcome of Article 50 TEU negotiations with the EU.  The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.

The Bill will return to the House of Commons which may or may not accept this amendment.  The government does not wish the amendment to be in the Bill because they claim it will harm the UK's negotiating position.  For a contrary view see Jolyon Maugham QC's blog Waiting for Godot.

It may be worth noting that Article 50(2) requires the European Parliament to consent to a Withdrawal Agreement. Without consent, the European Council cannot conclude such an agreement.

The question of whether the UK could unilaterally revoke an Article 50 notice has not (yet) been answered.  On this see The Three Knights Opinion.

Youth Justice Developments



Report December 2016:

In December 2016 a "final report" on Youth Justice was published - Review of the Youth Justice System in England and Wales (Cm 9298).  The report contains numerous recommendations (Annex A) but perhaps paragraph 179 of the report offers a succinct summary: "

Our aim should be to create a 21st century system that moves away from justice with some welfare, to a welfare system with justice."

The Martin Partington blog has also looked at the report.

The Great Repeal Bill ~ Constitution Committee Report

It was at the Conservative Party Conference 2016 that the idea first appeared of a "Great Repeal Bill" to take the UK out of the EU.  Some of the early reaction to the idea was noted in this previous post.  An obvious concern about such a Bill is that it is likely to hand enormous powers to Ministers to make secondary legislation as they seek, item by item, to remove from domestic law the influence of the EU.  Regrettably, Parliamentary control over the enactment of such legislation is not always as rigorous as it might be.

The House of Lords Constitution Committee has issued this report on the proposed Great Repeal Bill - Great Repeal Bill should not be used to avoid parliamentary scrutiny

Monday, 6 March 2017

A whacking huge bill to leave the EU ?

It has been claimed that the European Union (EU) will "force" the UK to pay up to €60 billion when the UK leaves the EU - Business Insider UK 15th November 2016

On 4th March, the European Union Committee published "Brexit and the EU budget" - 15th Report of Session 2016-17 - House of Lords Paper 125.  The Report Summary notes that the budget will be a contentious issue during the UK's negotiations over leaving the EU.  The UK provides approximately 12% of the resources available to the EU budget, and is also a significant net contributor. The removal of the UK’s payments into the budget will require the other EU Member States to agree either to pay more into the budget, or draw less from it. Neither option is without difficulty, and those difficulties may colour the wider Brexit negotiations.   The UK government has stated that it is open to making payments towards specific programmes in order to cement a cooperative future relationship with the EU but there are already demands from the EU, for much wider contributions.

Friday, 3 March 2017

More on the Brexit Notification Bill

The House of Lords has amended the European Union (Notification of Withdrawal) Bill.   The amendment has become Clause 1(2) and is aimed at requiring Ministers to bring forward proposals to ensure that the "EU derived-rights" of European Union (or European Economic Area)  citizens in the UK are protected - see the Bill as amended.   Clause 1(2) reads:

"Within three months of exercising the power under subsection (1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future."