Brexit - Constitution Committee Report - Supremacy, Charter of Fundamental Rights, Interpretation

The House of Lords Constitution Committee report published on 29th January is probably the most detailed available analysis of the European Union (Withdrawal) Bill.  The report may be read via the Constitution Committee website - 9th Report Session 2017-19.   This follows the committee's preliminary (7th March 2017) and interim (7th September 2017) reports.

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.   

Previous posts on the Report are here and here.  This post looks at Chapters 5 to 7 of the report.

Brexit - Constitution Committee Report - Legal status of Retained EU Law

The House of Lords Constitution Committee report published on 29th January is probably the most detailed available analysis of the European Union (Withdrawal) Bill.  The report may be read via the Constitution Committee website - 9th Report Session 2017-19.   This follows the committee's preliminary (7th March 2017) and interim (7th September 2017) reports.

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.  

Background:

Brexit ~ Constitution Committee report + EU negotiating directives for transition

The House of Lords Constitution Committee has published its report on the European Union (Withdrawal) Bill - 9th Report Session 2017-19. This follows the committee's preliminary (7th March 2017) and interim (7th September 2017) reports.

The Bill as introduced to the Lords - HTML version.

The latest report states that legislation is necessary to ensure legal continuity and certainty when the United Kingdom leaves the European Union. The Committee

Birmingham Pub Bombing Inquests ~ Judicial Review

On 21 November 1974 two explosions took place in two public houses in Birmingham City Centre, the 'Mulberry Bush' and the 'Tavern in the Town' ('the Birmingham bombings').  21 people were killed and some 220 injured, many of them seriously. A third bomb placed at a Barclays Bank branch on Hagley Road, Birmingham, was defused on the same evening. It was the worst peacetime atrocity in British history to that date. The Provisional IRA ('PIRA') is generally regarded as having been responsible for it.

Inquests:

Inquests were opened in late 1974 but were adjourned in 1975

Short roundup - Various items

Rose Heilbron KC

It's Friday again and, as the daylight lengthens, January draws to its close.  Here are some of the stories of interest this week.

Following on from this post on the last executions to take place in the UK, Justice Gap reminds us of the remarkable legal career of barrister Rose Heilbron and her defence of George Kelly and Charles Connelly in what came to be called the "Cameo Cinema Murder" case - Justice Gap 26th January.  In January 1950 Rose Heilbron became the first female barrister to appear as leading counsel in a murder trial. The stakes and pressure upon her couldn’t have been higher. Her client, George Kelly, would hang if convicted.  In fact, at a second trial, he was convicted of murder and was hanged at Liverpool's Walton Jail on 28th March 1950.   The story reveals a failure by the authorities to disclose evidence to the defence.  Kelly's conviction was posthumously quashed by the Court of Appeal in 2003 - read the judgment.

Rose Heilbron became Mrs Justice Heilbron and, in that capacity, presided at the 1981 "Handless Corpse" murder trial held at Lancaster - HERE.  The costs of the trial were raised in Parliament by way of an adjournment debate - HERE.

The last executions - R v Gwynne Owen Evans and Peter Allen ~ Manchester 1964

The Student's Verdict blog drew my attention to the murder trial of Gwynne Evans (24) and Peter Allen (21).  They were executed on 13th August 1964 for the murder, on 7th April 1964, of John West (53).  Evans was hanged at Strangeways Prison, Manchester.  Allen was executed at Walton Prison, Liverpool.  (Liverpool Prison is the subject of a recent and disturbing report from HM Inspectorate of Prisons).  Interest in the case has returned because it is arguable that Gwynne Evans may have been entitled to succeed with a defence of diminished responsibility - see  BBC News 18th December 2017 and also HERE

Evans and Allen were the last to suffer capital punishment in England and Wales.  The death penalty for murder was abolished in 1965.  Any consideration of the case needs to be through the prism of the law as it was at the time. 

Short round-up ~ Various items

Updated 19th and 20th January

Lord Chancellor sworn in -

18th January 2018 - The new Secretary of State for Justice has been sworn in as Lord Chancellor.  Previous post 9th January.  The principal speeches were:

Lord Chancellor's speech

Lord Chief Justice

Transforming the Court Estate -

Poppi Worthington ~ Inquest

On 12th December 2012, Poppi Worthington died in hospital at the age of 13 months.  In late 2017, HM Coroner for Cumbria (Mr David Roberts) conducted a further inquest and announced his determination on Monday 15th January 2018.   A report on the inquest is at BBC NEWS 15th January.  The BBC has also published a useful timeline of the case.

The inquest: Review of evidence, findings and conclusion

The Coroner's conclusions (at pages 86 and 87) are

Preparing for a Customs Deal with the EU

It is now 8 years since the first post on this blog.  Interesting stories appear almost daily and many lie ahead including those arising from the on-going difficulties and uncertainty created by Brexit.  I hope to continue looking at some these stories.

One of the key features of the European Union is that it is also a CUSTOMS Union.   Article 28(1) of the Treaty on the Functioning of the EU states - "The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries."

Payment Services - introduced by the EU

The picture is the Conservative Party claiming they have banned credit card charges.  They are "economical with the truth."

In 2015 the EU enacted a Directive - you can read it HERE.   EU Member States are required by the EU Treaties to implement Directives into domestic law.  This was done by the UK Parliament enacting The Payment Services Regulations 2017.  Those Regulations were, as the jargon goes, "laid before Parliament" on 19th July 2017 and "negative resolution procedure" applied so that a vote was only required if they were "prayed against."  There was no such objection.

"Good" things are not invariably started by the EU.  In 2017 Regulations were made to tackle "microbeads" (see BBC News) in products such as toothpaste.  Read the legislation HERE.  Another environmental problem is plastic packaging.  See what the EU has to say.

A further EU Referendum? Do the practicalities make it impracticable?

Unless some other date is eventually agreed, the UK leaves the EU on 29th March 2019.  That is the undoubted consequence of the notice served under Article 50 TEU.

Nigel Farage is one of the Members of the European Parliament representing SE England and he is a former leader of the UK Independence Party (UKIP).  During the EU referendum campaign in 2016 he played a very prominent pro-Brexit role and engaged in TV debates with Prime Minister David Cameron - e.g. HERE.  Farage and others (e.g. Boris Johnson, Michael Gove) waged an effective "Leave" campaign resulting in an overall result in favour of Brexit - the details are HERE. 

What if "no deal" Brexit. EU Commission Notice - Air Transport

Civil aviation is a strategically important sector that makes a vital contribution to the EU's overall economy and employment.  Aviation supports close to 5 million jobs and contributes €300 billion, or 2.1% to European GDP.   Global air transport over the long term is expected to grow by around 5% annually until 2030.  How would a "no deal" Brexit affect this crucial sector? 

As mentioned in the previous post, the European Commission has published its views about the impact of a "no deal" Brexit on various sectors - HERE - and, in particular, see the Air Transport Notice 11th December 2017.

What if "no deal" Brexit? Getting hold of fog.

Getting hold of fog

Prior to the recent government "reshuffle" there was some talk that the Prime Minister was to appoint a Cabinet Minister for No Deal Brexit - The Telegraph 7th January.   No such specific appointment was made but the Ministerial team at the Department for Exiting the EU has a Parliamentary Under Secretary of State (Mr Steve Baker MP) with responsibility for "contingency planning" though we are not enlightened further as to what exactly those plans entail. 

The reluctance of the UK government to share information is, at least in my view, a lamentable state of affairs.  Even the "Sectoral Analyses" were only shared with MPs after the 7th November Humble Address and even then they were issued with "Sectoral Views" removed and MPs were allowed to see them only in a private room - BBC News 14th December 2017.  On 21st December, the House of Commons Exiting the EU Committee published 39 reports - Parliament 21st December.

Yet another Secretary of State for Justice / Lord Chancellor and other MoJ changes

The Prime Minister has appointed Mr David Gauke MP to the dual role of Secretary of State for Justice and Lord Chancellor - see Ministerial Role.

Mr Gauke is MP for South West Hertfordshire and he replaces Mr David Lidington MP who has been moved to the Cabinet Office.  It was a mere 7 months ago that Mr Lidington was appointed - post 12th June 2017.

As usual, the Bar Council and Law Society have welcomed the new appointment.  The Bar Council calls upon the Lord Chancellor to ensure that justice is properly resourced and functioning effectively.  On legal aid, the Bar Council states - "Following significant cutbacks in the provision of legal aid over several years it is vital that the Ministry of Justice completes the thorough review of the Legal Aid, Sentencing and Punishment of Offenders Act to which it is already committed, to ensure that the public interest in the provision of high quality and efficient legal services is addressed."

The Law Society comments -

House of Lords ~ Size and Reform

The Parliament Act 1911 begins by stating that it is...

"An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament.

Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:

And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation ....."

Parole Board ~ some key points

The John Worboys case (previous post) has certainly brought the workings of the Parole Board to the fore.  This post notes some key points about the Board's decision making.

1)  The Board's jurisdiction now stems from section 239 of the Criminal Justice Act 2003 from which it will be seen that the duty of the Board is to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners - s.239(2).

John Worboys to be released ~ Parole Board decisions, reasons and publication

On 13th March 2009, taxi driver John Worboys was convicted of a number of offences, including one count of rape, a number of sexual assaults and 12 counts of administering a substance with intent.  The exact legislation for the "administering" offences is not reported by the media but was probably section 61 of the Sexual Offences Act 2003.   He was sentenced by Mr Justice Penry-Davey to imprisonment for public protection (IPP) and ordered to serve a minimum term of 8 years before his release could be considered by the parole board.  It is now reported that the Parole Board has decided that he can be released though he will be subject to a package of licence conditions - BBC News 4th January 2018.

It appears

The House of Lords and EU Withdrawal Bill

In 2018 there will not be a Queen's Speech in Parliament. In 2017, following the General Election, it was announced that there would be a two year Parliamentary session 2017-19.  The reasons publicly given for this were set out by the government' s announcement of Saturday 17th June 2017.  A two year session was considered necessary to "give MPs enough time to fully consider the laws required to make Britain ready for Brexit" and "the EU exit process and the government’s domestic agenda mean the new Parliament faces a substantial legislative programme."  The 2 year term appears to have been a decision taken by the government alone.

Death by drone ~ Legal advice ~ Upper Tribunal decision on information requests

Rights Watch have highlighted a decision of the Upper Tribunal Administrative Appeal Chamber - Corderoy and Ahmed v The Information Commissioner, Attorney-General's Office and Cabinet Office [2017] UKUT 495 (AAC).  See the Rights Watch summary of the judgment - HERE.  The appeals to the Tribunal related to decisions of the Information Commissioner in response to Freedom of Information Act 2000 requests. 

The Upper Tribunal has decided that the ‘security bodies’ exemption under the Freedom of Information Act (FOIA) should not have been applied in a blanket fashion to exempt the legal advice that formed the basis of the lethal drone strike that killed two British citizens, Reyaad Khan and Ruhul Amin, in August 2015. The Tribunal refused to order disclosure of the advice, but not before making a significant ruling narrowing the parameters of the ‘security bodies’ exemption and criticising the Information Commissioner’s handling of such cases. 

Mobile phones ~ Magistrates' Courts

Post amended 31 July 2019

The Telegraph 29th December 2017 -  Fraser Nelson - My day in court: how I found out that a legal fog has descended on the land

The use by drivers of a "mobile phone" as a Satnav is very common but what is the law?   Mr Fraser wrote - "I’ve been doing so for a while and have been spared hours in needless traffic jams. I’ve had plenty of cause to give thanks for this technology, until I ended up on trial in a Magistrates’ Court last week.