Christmas 2018

Best wishes to all readers for a truly Happy Christmas and New Year 2019.

"So remember while December Brings the only Christmas day, in the year let there be Christmas in the things you do and say."

On this Christmas Eve may I wish all readers a Truly Happy Christmas.  The Christmas message is a one of hope in what can be a very dark world.  May that message shine through like a candle in the darkness during the days and year to come.

Silent Night - King's College, Cambridge

In the Bleak Midwinter - Gustav Holst - arranged by Pat Johnson played by The Shirley Band

London Symphony Orchestra - Christmas Classics

 

The Brexit debacle

Today is the Winter Solstice, the start of the winter season.  Parliament's Christmas/New Year recess commenced on 20 December and  lasts until 7 January.  With just 98 days to "Exit Day" there is, as yet, no acceptance by the House of Commons of the Withdrawal Agreement and Framework for the Future Relationship - ("the deal").

A House of Commons vote scheduled for 11 December was deferred by the government until the week beginning 14 January 2019.  The Prime Minister told the Commons that further discussions were taking place with the EU to seek additional reassurances over the Ireland/Northern Ireland backstop.

"No deal" preparation ~ the official information

EU "No deal" preparation:

With 100 days remaining to Brexit on 29 March 2019, the European Commission began implementation of "No deal" contingency plan.  This is the EU protecting its own interests.  The measures taken are "temporary in nature, limited in scope and adopted unilaterally by the EU."  It is entirely open to the EU to amend or cancel the measures if it deems such action to be required.

The EU commission Press Release states -

Brexit - the impasse continues - Vote of No Confidence in the PM

Monday 17 December, the Prime Minister made a statement to Parliament about the EU Council held on 13 / 14 December.

Prime Minister's Statement 17 December

Council conclusions 13 December

Key points:
 
Certain negotiations are continuing "to explore further political and legal assurances."   No detail of these negotiations was offered in the statement - e.g. exactly what "legal" assurances are being discussed.

Friday Brexit update ~ The impasse

With just over 100 days left to Brexit on 29 March 2019, there seems to be no prospect of the Withdrawal Agreement being acceptable to a majority in the House of Commons.  The "meaningful vote" scheduled for Tuesday 11 December was deferred to a date yet to be fixed.  The government has indicated that it will bring the debate and vote back to the House by 21 January at the latest.

The Prime Minister faced a leadership challenge mounted by the Conservative Party.  Mrs May won the ballot by 200 votes to 117 or 63% to 37%.  This prompted Mr Jacob Rees-Mogg, MP for North-East Somerset and a leading light in organising the ballot, to argue that Mrs May ought to have then gone to see HM The Queen to resign as Prime Minister!  It hardly escaped the notice of commentators that Rees-Mogg is totally insistent that come hell or high water the 2016 referendum result (51.89% to 48.11%) must be honoured.

CJEU judgment on revocability of notice under Article 50 TEU

In Wightman and others v Secretary of State for Exiting the EU, the Court of Justice of the EU (CJEU) has held that notification under Article 50 of the Treaty on European Union is unilaterally revocable.  Read the Court's Press release 10 December 2018 and the Court's Judgment.  See also House of Commons Library 10 December.

On 4 December, the court's Advocate General expressed his non-binding opinion to the same effect - see previous post.

The UK government resisted this action at all stages.  The Prime Minister has also consistently maintained that the Article 50 notification will not be withdrawn.

Withdrawal Agreement ~ Vote deferred and other developments

A)  Committee Report 9 December

The House of Commons Exiting the EU Committee has published a report on the Government’s EU Withdrawal Agreement and Political Declaration.  The Report – agreed unanimously – says that the Prime Minister’s deal fails to offer sufficient clarity or certainty for the future of the UK.

See the Committee's Announcement  and the report - Progress of the UK's negotiations on EU withdrawal - The Withdrawal Agreement and Political Declaration


The Conclusions and Recommendations in the report express doubt that the future relationship agreement can be concluded before the end of 2020. 

"The future relationship negotiations will have to cover a far wider range of issues, including trade in goods and services, foreign policy coordination, policing and information sharing, participation in EU agencies, agriculture, fisheries, data, labour mobility and the recognition of professional

Withdrawal Agreement ~ Attorney-General's Legal Advice published

The government has published the Attorney-General's Legal Advice on the Withdrawal Agreement - see UK Government 5 December 2018.

Following the Motion passed on 4 December in the House of Commons - see previous post - the Government has published the Attorney General’s legal advice to Cabinet on the Protocol on Ireland/Northern Ireland and made this available to Parliament. This is the full, final advice that the Attorney General provided to Cabinet on 14 November on the legal effect of the Withdrawal Agreement. The release of this advice does not set a precedent for any future release of Law Officers’ advice.

House of Commons 4 December ~ a troubled day for the government

Tuesday 4 December 2018

On 4 December the government was held to be in contempt of the House of Commons over the failure to disclose the full withdrawal agreement legal advice given by the Attorney General to the Cabinet - previous post.

The government's timetable motion for the Brexit Withdrawal Agreement debate was approved but with a significant amendment put forward by Mr Dominic Grieve QC MP.  In the evening, the debate on the Withdrawal Agreement and Political Declaration commenced.

Article 50 ~ Advocate-General's Opinion says unilateral revocation of notice is possible

Advocate General Campos Sánchez-Bordona has concluded that notification under Article 50 of the Treaty on European Union (TEU) may be unilaterally withdrawn by the member State which gave the notice.  Please read the court's announcement (pdf) which is available via the CJEU website.

The FULL opinion containing legal reasoning is also available.

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

Attorney General ~ Legal position on the Brexit Withdrawal Agreement

Updated 5 December

The government has published a document setting out the Legal position on the Withdrawal Agreement - 52 pages pdf - and see Parliament Attorney-General Questioned on Withdrawal Agreement Legal Advice.

Hansard has also published the Attorney-General's statement to the House of Commons and the subsequent debate -  Hansard Monday 3 December 2018.  See also Parliament TV - here.

Several MPs expressed

Brexit ~ some notes of interest

Mr Donald Tusk, the President of the European Council,  made a statement at the G20 meeting held in Argentina - see European Council 30 November.     He said, "Many leaders will certainly have questions about Brexit. Therefore, let me say this. The European Union has just agreed an orderly divorce with the United Kingdom. A few days before the vote in the House of Commons, it is becoming more and more clear that this deal is the best possible, in fact, the only possible one. If this deal is rejected in the Commons, we are left with, as was already stressed a few weeks ago by  Prime Minister May an alternative: "no deal; or no Brexit at all."  I want to reassure you that the EU is prepared for every scenario."   Food for thought for MPs in the forthcoming House of Commons debate and vote.   The vote is scheduled for 11 December.

Withdrawal Agreement and Political Declaration ~ Materials

Some of the materials available to assist with the Withdrawal Agreement and Political Declaration.  Lists to be updated if new material is published - see Additions below.

The Withdrawal Agreement and Political Declaration were published on 25 November:

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Draft Political Declaration and see Government Statement

White Paper - Legislating for the Withdrawal Agreement

The government has published a White Paper on Legislating for the EU Withdrawal Agreement and it is available via the Department for Exiting the EU website - 44 pages pdf.

Chapter 5 of the white paper sets out Procedures for approval and implementation of the withdrawal agreement and framework for the future relationship.

There are two statutory procedures to be followed

CJEU to hear preliminary reference on whether Article 50 may be revoked

Today, the Court of Justice of the European Union (CJEU) will sit en banc to hear argument in a preliminary reference from Scotland's Court of Session.  The Scottish court made the reference in Wightman and others v Secretary of State for Exiting the EU [2018] CSIH 62 - Lord Carloway (Lord President) and Lords Menzies and Drummond Young.  The CJEU Case number is C-621/18.

An attempt to stop the reference was made by the UK government but this was rejected by the UK Supreme Court on 20 November - see HERE  

The reference asks the CJEU to determine whether unilateral revocation of the Article 50 notice is permissible under EU law.

25 November 2018 ~ EU endorses Withdrawal Agreement and Political Declaration

"Ahead of us is the difficult process of ratification as well as further negotiations. But regardless of how it will all end, one thing is certain: we will remain friends until the end of days, and one day longer" - Statement by EU Council President Donald Tusk 25 November 2018.

On 22 January 1972, at the Egmont Palace in Brussels, Prime Minister Edward Heath signed the Treaty of Accession taking the United Kingdom into the European Communities with effect from 1 January 1973.  Denmark and Ireland also acceded to the communities at the same time.  Norway had participated in the accession negotiations but did not join as a result of an adverse national referendum.  Norway also rejected membership in 1994.

At the time,

Brexit - Overview of the draft Political Declaration 22 November

A draft Political Declaration (PD) has been agreed at negotiator level - see Department of Exiting the EU.

The outline declaration published on 14 November 2018 is now just part of the history of the Brexit-story - see this previous post.

The Prime Minister's statement to the House of Commons (22 November) may be read HERE and the ensuing debate HERE.

Status of the Declaration:

Draft Withdrawal Agreement - November 2018 - No.9 - Protocol on Northern Ireland

This post looks at the Protocol for Northern Ireland which is in the draft withdrawal agreement.  The post also completes my overview of the draft agreement.  Links to all previous posts are at the end of this post.

The Protocol is at pages 302 to 475 of the agreement.  It contains 21 Articles and 10 Annexes.

The EU has issued an explainer specific to the Northern Ireland protocol - HERE.  It is in the form of Questions and Answers and is a clear exposition of the situation.  For convenience, I have reproduced it in this post.  The UK government has also issued an Explainer of the draft agreement - HERE - together with a shorter explainer related to Article 6 to 8 in the Protocol.

Draft Withdrawal Agreement - November 2018 - No.8 - Protocol on the Sovereign Base Areas in Cyprus

The United Kingdom operates two "sovereign bases" in Cyprus - Akrotiri and Dhekelia.   Earlier this year, a Parliamentary Select Committee noted - "The situation on Cyprus is further complicated by the existence of two Sovereign Base Areas (SBAs) on the island, remnants of its pre-1960 status as a UK Crown Colony. The Bases are British Overseas Territories administered by the Ministry of Defence, which are not part of the European Union.  Dhekelia — also known as the Eastern Sovereign Base Area or ESBA — straddles the Green Line and contains two crossing points for movements of goods and people between the two parts of Cyprus."

Whilst the bases

Draft Withdrawal Agreement - November 2018 - No.7 - Protocol on Gibraltar

Updated 25 November 2018

Strategic importance:

Gibraltar has always been of strategic importance and that was recently affirmed in a statement by the Armed Forces Minister - Ministry of Defence 19 November. 

The signing of the Armed Forces (Gibraltar) Act marks an important milestone for both the UK and Gibraltar and will ensure the relationship between Service Police on The Rock and the Royal Gibraltar Police to go from strength to strength.  Armed Forces Minister Mark Lancaster said:

Draft Withdrawal Agreement - November 2018 - No.6 - Parts Three (Separation) + Part Five (Financial)

The Prime Minister addressed the Confederation of British Industry  - her speech may be read HERE.  Mrs May said - "We now have an intense week of negotiations ahead of us in the run-up to the special European Council on Sunday.  During that time I expect us to hammer out the full and final details of the framework that will underpin our future relationship and I am confident that we can strike a deal at the council that I can take back to the House of Commons."

The EU General Affairs Council discussed the situation on 19 November - see HERE.  This communique notes - "On Sunday 25 November 2018, EU27 leaders are expected to endorse the Brexit withdrawal agreement and to approve the political declaration on future EU-UK relations." 

Draft Withdrawal Agreement - November 2018 - No.5 - Part 2 (Citizens' Rights) - November 2018

This post considers the draft withdrawal agreement Part Two (Citizens' Rights).  The change in UK-EU relationship from full member to non-member was always bound to be a complex business.  After all, there have been 46 years of deep integration with numerous changes along the way.  In consequence, the provisions in Parts Two of the draft withdrawal agreement are complex and particularly detailed with numerous references to relevant EU legislation.  In this post I have tried to set out the main features.

Draft Withdrawal Agreement - November 2018 - No.4 - CJEU role, Joint Committee, Dispute settlement

This post is an overview of Part Six (Institutional and Final Provisions) of the Draft Withdrawal Agreement.

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Part Six covers pages 268-300 and is divided into four Titles: I - General Interpretation and Application - Articles 158-163; II - Institutional Provisions - Articles 164-166; III - Dispute Settlement - Articles 167-181; IV - Final Provisions - Articles 182-185.

The Withdrawal Agreement

Draft Withdrawal Agreement - November 2018 - No.3 - Transition

This post is an overview of Part Four (Transition) of the Draft Withdrawal Agreement.

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Transition is addressed in Article 126 to 132 of the draft - at pages 196-209.

Draft Withdrawal Agreement - November 2018 - No.2 - Preamble and Common Provisions

The Draft Withdrawal Agreement is worthy of analysis even though, at the time of writing, it is far from certain whether it will ever be approved by the UK Parliament.  It is important that the agreement is properly understood even if, ultimately, it is rejected.

On Thursday 15 November it received a hostile reception in the House of Commons, there were Ministerial resignations.  This morning it appears that Conservative MPs are preparing for a vote of confidence in Mrs May as Party Leader despite the point that changing the Prime Minister as the UK leaves the EU would carry serious risks.

On Friday 16 November, the Prime Minister appointed Mr Stephen Barclay MP as Secretary of State for Exiting the EU.  Mr Michael Gove MP rejected an invitation to take on the role - BBC News 16 November.

At a Press Conference

Draft Withdrawal Agreement - November 2018 - No.1

"When you strip away the detail, the choice before us is clear. This deal which delivers on the vote of the referendum, which brings back control of our money, laws and borders; ends free movement; protects jobs, security and our union; or leave with no deal; or no Brexit at all" - Theresa May, Downing Street, 14 November 2018.

The proposed Withdrawal Agreement and Outline Political Declaration were both published on Wednesday 14 November - BBC News 15 November.  Both documents were "collectively agreed" by the Cabinet following a lengthy meeting held during the afternoon and evening.

Following the meeting, the Prime Minister made this brief statement.  A fuller statement was made in Parliament during the morning of 15 November and it may be read HERE.  The full debate is available via Hansard.

It is a requirement of the European Union (Withdrawal) Act 2018 section 13 that the House of Commons must approve both documents when they are finalised.

What will happen in the existing fragile political atmosphere is by no means clear. This morning

News of a Withdrawal Agreement ~ Humble Address (Number 2)

As I write there is breaking news that the UK government and the EU have reached an agreed text for a Withdrawal Agreement - BBC News 13 November.  I would expect this to be a lengthy document and hope to look at it in detail once it is published.  The agreement  will have to address numerous areas and it may be that the text is not 100% "set in stone."  For instance, technical amendments might yet be made.

The Cabinet is to meet on Wednesday 14 November to consider the agreement.  Cabinet Ministers have received individual briefings about the agreement but they can hardly have fully read it and analysed its contents.  If the Cabinet accept the agreement then it will go forward for approval by the House of Commons.  The Opposition wishes to be able to move amendments to any motion for approval of the agreement.

It is not clear what steps will be taken,

Brexit ~ Is a withdrawal agreement imminent?

Since the EU Council met in Brussels on 17-18 October there has been little hard news as to whether the negotiations will result in a Withdrawal Agreement.

According to one report (BBC 12 November) there may be an announcement by Wednesday 14 November so that an agreement can be signed off at the EU Council before the end of November.  A meeting would be convened if it is required.

The report notes -

A century ago ~ the Armistice

100 years ago today, at 5am in the Forest of Compiègne to the north of Paris, the Armistice was signed which brought an end to hostilities from 11 am.  See the terms of the Armistice.

From the outbreak of war in 1914 until the armistice in 1918 over 17 million people lost their lives.  It was not until 28 June 1919 that a Peace Treaty was signed at Versailles and the Treaty took effect from 10 January 1920 - Treaty of Versailles.

National Crime Agency (NCA)

The National Crime Agency (NCA) is undertaking an investigation into Better for the Country Ltd, Leave.EU, Arron Banks, Elizabeth Bilney and others - previous post and also see - Statement Electoral Commission 1 November 2018 and the NCA statement.  The investigation is into suspected criminal offences committed during the EU referendum.  But what is the NCA and how does it relate to other law enforcement bodies in the UK.

England has 38 Police Forces, Wales has 4, Scotland has Police Scotland and Northern Ireland has the Police Service of Northern Ireland - Police Forces.  In addition there are 4 National special police forces - British Transport Police, Civil Nuclear Constabulary, Ministry of Defence Police and a National Police Air Service.

Those Forces

National Crime Agency investigation ~ Brexit ~ Leave funding

On 4 October this blog took a look at Brexit-related litigation.

A challenge brought by Crowdjustice - UK in EU Challenge will have an oral permission hearing on 8 December.  The challenge website states -

In a separate development,

Northern Ireland ~ talking points

This post looks at some of the issues in Northern Ireland.  The post-Brexit border question remains unresolved.  Considerable concern exists over the absence of a functioning Northern Ireland executive and Assembly both of which are key elements in the 1998 Good Friday Agreement.  The post also looks at some criminal justice questions including the continuation of non jury trial in some situations.

Brexit and the border:

The question of the border between Northern Ireland and the Republic of Ireland continues to be unresolved in Brexit negotiations.  Post-Brexit there will be a land border between Northern Ireland (non-EU) and Ireland (EU member State).  It has been argued that any return of a "hard border" will damage the Good Friday Agreement peace process and that sectarian violence could return - Business Insider UK - 2 April 2018.  How this issue will be resolved - if at all - remains to be seen but a return to a controlled border will be inevitable in the event that the UK leaves the EU on 29 March 2019 without a withdrawal agreement in place.

Democratic institutions:

Religious intolerance ~ ES v Austria

Ireland has held a referendum in which the majority voted to remove the offence of Blasphemy from their law - The Observer 27 October 2018.  The referendum saw 64.85% vote yes to remove the offence of blasphemy, with 35.15% in favour of retaining it.  A total of 951,650 people voted for the change, with 515,808 opposing the move. The decision on a turnout of 43.79%, was the latest reflection of seismic social and political changes in Ireland, which the Taoiseach, Leo Varadkar, has described as a “quiet revolution”.

In 1985 the Law Commission for England and Wales recommended the abolition (without replacement) of the common law criminal offences of Blasphemy and Blasphemous Libel - see Offences against Religion and Public Worship. 

R v Gordon Park ~ The "Lady in the Lake" murder

Coniston Water

During the dry summer of 1976  Carol Ann Park, the wife of Gordon Park, went missing.

In August 1997, a body was discovered by divers in Lake Coniston.  Using dental records, the body was identified as Carol Park.  She had suffered a brutal death.  Her body was packaged carefully inside two bin-liners, a canvas bag and a large holdall and weighted down.

Gordon Park was arrested and charged with the murder.  He was remanded in custody but released when the charge was discontinued in January 1998 due to there being insufficient for a realistic prospect of conviction.

Press freedom, Confidentiality, Parliamentary Privilege

On 23 October, the Court of Appeal (Civil Division) imposed an INTERIM injunction in favour of unnamed appellants (referred to as ABC) to prevent The Telegraph publishing what they claimed to be confidential information about them which had been disclosed in breach of confidence - ABC and others v Telegraph Media Group Ltd [2018] EWCA Civ - Sir Thomas Etherton MR, Underhill and Henderson LJJ.

The appellants are two companies in the same group and a senior executive of that group.

Employees of companies in the group alleged discreditable conduct on the part of that senior executive.

Yaxley-Lennon retrial / Case now referred to Attorney-General + Convictions at Leeds

On Tuesday 23 October, Mr Stephen Yaxley-Lennon (aka "Tommy Robinson") attended at the Central Criminal Court ("the Old Bailey") for his trial for contempt of court - see The Guardian 16 October and Daily Mail 21 October.  The trial was listed before the Recorder of London, His Honour Judge Nicholas Hilliard QC.

This new trial was ordered by the Court of Appeal (Criminal Division) on 18 July 2018 when Mr Robinson's  conviction at Leeds Crown Court for contempt was quashed - previous post 1st August 2018 and also see previous posts 1 June 2018 and 5 July 2018.  By the date of the Court of Appeal hearing on 18 July, Mr Robinson had been in prison from 25 May - some 55 days.

EU Council meeting 17-18 October ~ (with updates)

The European Council met in Brussels on 17-18 October 2018.

The Mains Results of the meeting are set out HERE.  See the short video in which Donald Tusk (EU Council President) states that the Council would consider extending the transition period if the UK government thought that would be helpful.

The next Council meeting is scheduled for 13-14 December 2018 and will be held in Brussels.

Regarding Brexit, leaders declared their readiness to convene a European Council, if and when the Union negotiator reports that decisive progress has been made in the negotiations.  

Politico - EU Council

Update 21 October:

The Guardian - March in London for a "People's Vote" and Secretary of State for Exiting the EU argues that the EU should scrap the "backstop" if the transition period is extended beyond 31 December 2020 - BBC News 21 October but that, of course, leaves the possibility of a hard border across Ireland if an extended implementation period were to end without any further agreement in place

Update 22 October:

Prime Minister's statement in the House of Commons regarding the EU Council.