Thursday 31 August 2017

UK - EU financial settlement - a note

The UK-EU financial settlement, citizens' rights and the situation of Ireland are the key areas under discussion in the present round of Brexit negotiations.

In March 2017, the House of Lords EU Committee 15th Report for session 2016-17 "Brexit and the EU budget" examined the potential financial demands in Chapter 3 and the UK's legal obligations in Chapter 4. At para. 137 the report said - " ..., the political and economic consequences of the UK leaving the EU without responding to claims under the EU budget are likely to be profound.  If the UK wants a preferential trading relationship with the EU, including a transitional arrangement, the EU partners may well demand a financial contribution post-Brexit."

On 13th July, David Davis MP said to the House of Commons - "On the financial settlement, as set out in the Prime Minister’s letter to President Tusk, the Government have been clear that we will work with the EU to determine a fair settlement of the UK’s rights and obligations as a departing member state, in accordance with the law and in the spirit of our continuing partnership. The Government recognise that the UK has obligations to the EU, and the EU obligations to the UK, that will survive the UK’s withdrawal—and that these need to be resolved."  (Hansard - Statement).

Wednesday 30 August 2017

Disclosure Survey ~ Interim results - Disturbing results emerge

How should the legal system deal with your case if YOU were charged with a criminal offence?  You would be certain to wish for a fair hearing within a reasonable time by "an independent and impartial tribunal."  The quoted words are from the European Convention on Human Rights and they reflect the position as it is established in the legal systems of the United Kingdom.

In England and Wales, that "independent and impartial tribunal" will often be the Magistrates' Court where around 90% of criminal cases are dealt with but it seems that all is far from well in those courts. 

Sunday 27 August 2017

Brexit - one year on

Here are two interesting presentations reflecting on Brexit a year after the referendum.

Vernon Bogdanor Lecture- Brexit: One year on (2017)

Professor Michael Dougan - Project fear to project reality

Both are on Youtube and are well worth listening to.  There is also the "Kingston Smith debate" held on 28th June 2017.

Brexit - Negotiations Round 3 ~ Government publishes further papers

The Department for Exiting the EU (DExEU) has published a programme for the Third Round of Brexit negotiations to be held in Brussels from 28th to 31st August 2017.  In addition, the DExEU has published papers dealing with various aspects of Brexit - Article 50 and Negotiations with the EU

  Papers on Future Customs Union and Northern Ireland were the subject of this previous post (18th August).

The EU side of the negotiations basically operates in accordance with the European Council (Art. 50) Guidelines issued on 29th April 2017 and other official documents – see LIBRARY below.  At this stage, the EU guidance requires their negotiators to focus on Citizen's Rights, Financial Settlement and the Situation of Ireland.  The UK side appears to be keen to move the talks into other areas though the financial settlement ("divorce bill") is likely to be a major sticking point - The Guardian 28th August.   This May 2017 post looked at the financial situation as it appeared at that time. 

Friday 18 August 2017

Brexit ~ Government Papers

Brexit will place the UK outside the EU Customs Union and Internal Market both of which, under the EU Treaties, are key features of the EU's structure.  The Department for Exiting the EU has published a "future partnership paper" - Future Customs relationship with the EU

A "position paper" deals with Northern Ireland and Ireland and proposes no physical infrastructure at the border - Pledge to protect the Belfast Agreement and Common Travel Area

Law Society Report on the state of legal aid

Four years ago, the coalition government implemented the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Hundreds of thousands of people who were eligible for legal aid on 31 March 2013 became ineligible the very next day.   Four years on, the Law Society has conducted a review of the legal aid changes introduced under the act. This review concludes that:
1. Legal aid is no longer available for many of those who need it
2. Those eligible for legal aid find it hard to access it
3. Wide gaps in provision are not being addressed
4. LASPO has had a wider and detrimental impact on the state and society
The review includes 25 recommendations to government, focusing on issues including increasing children's access to legal aid, reintroducing legal aid for early advice, and improving Exceptional Case Funding and the legal aid means test.  The report is available via  Law Society 29th June 2017.

Disclosure ~ an on-going problem in criminal cases

The unhappy state of affairs regarding Disclosure is yet again highlighted by a survey being undertaken by the Criminal Law Solicitors Association (CLSA) - CLSA Disclosure Survey.

Disclosure problems appear to beset the criminal justice system - previous recent posts - Stories from the Criminal Courts (6th August) and 19th July 2017 - Making it fair - the crucial matter of disclosure in criminal cases

Tuesday 15 August 2017

Grenfell Tower Fire - Inquiry terms of reference published

Updated 16th August:

The Terms of Reference for the Grenfell Tower Inquiry have been published by the government and may be read on the Grenfell Tower Inquiry website (HERE).  The terms are those recommended by the Inquiry Chairman - see page 4 of Sir Martin Moore-Bick's letter to the Prime Minister - (HERE).

Over 550 written responses were received in response to the terms of reference consultation and they are summarised at pages 5 to 7 of Sir Martin Moore-Bick's letter to the Prime Minister

Monday 14 August 2017

EU (Withdrawal) Bill - Devolution and other points

This post looks at Legislative Consent and some other matters raised by the European Union (Withdrawal) Bill which was presented to Parliament on 13th July.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law, , Clause 6 - InterpretationFrancovich and Ministerial powers to legislate.

: Clause 1 :

"The European Communities Act 1972 is repealed on exit day."  As noted in this previous post, Clause 1 will repeal the mechanism by which EU law has been able to enter the domestic legal systems of the United Kingdom.  The Bill does not set out a single date to be Exit Day and it is for Ministers to decide.

Given that repeal of the ECA 1972 will bring about major constitutional and legal change, it might have been prudent for Parliament to retain some form of control over the specific date on which the European Communities Act 1972 is repealed but the Bill does not appear to do so.

Sunday 13 August 2017

EU (Withdrawal) Bill - Henry VIII at his best - Ministerial powers to legislate

Henry VIII

The European Union (Withdrawal) Bill, as presented to Parliament on 13th July, sets out to (a) repeal the European Communities Act 1972 on "exit day", (b) preserve legal continuity (but with notable changes) and (c) to define various forms of "retained" law and to specify how such law is to be interpreted.

Clauses 7 to 9 - "Main powers in connection with withdrawal" and Clauses 10 and 11 (Devolution) - are the subjects of this post.

Clause 7 is about legislation to deal with "Deficiencies arising from withdrawal".  Clause 8 is about legislation to comply with international obligations and Clause 9 is Implementation of the Withdrawal Agreement.   The late (despotic) Tudor Monarch - Henry VIII (1491 to 1547) - would have been proud of those clauses which enable secondary legislation to do anything that could be done by Act of Parliament.  The Delegated Powers Memorandum lists 14 separate powers in the Bill.

EU (Withdrawal) Bill ~ It will be goodbye to Francovich

Francovich 1991
This post continues my look at the European Union (Withdrawal) Bill  with a particular focus on Schedule 1 to the Bill which is entitled "Further provision about exceptions to savings and incorporation."   Legal effect is given to the Schedule by Clause 5(6)

Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law and Clause 6 - Interpretation.

Schedule 1 makes frequent appearances in the Bill - see Clause 2(3), Clause 3(5), Clause 4(3).  The wording, on each occasion, is - "This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).  Tucked away in this Schedule are some very important matters:

Saturday 12 August 2017

EU (Withdrawal) Bill ~ Clause 6 - Interpretation

Labyrinthine Legislation
With masterly understatement, Dr. Paul Daly (University Senior Lecturer in Public Law, University of Cambridge) wrote that - "Even seasoned lawyers are not going to enjoy navigating these provisions"

This post looks at Clause 6 of the European Union (Withdrawal) Bill  - Interpretation of Retained EU law.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day and Retention of Existing EU Law.

Definitions in Clause 6:

Friday 11 August 2017

EU (Withdrawal) Bill ~ Retention of Existing EU law

This post continues my look at the European Union (Withdrawal) Bill as introduced into Parliament on 13th July 2017.  Previous posts are HERE and HERE.  Very little of this complex and cumbersome Bill is easy reading.  Nevertheless, it is of crucial importance for the state of our law in the future. 

Since accession to the EU in 1973, an enormous amount of law has flowed into the UK via the European Communities Act 1972 (the ECA) - referred to in the Miller judgment (para 65) as a 'conduit pipe.'  The general scheme of the EuropeanUnion (Withdrawal) Bill is to retain, with important exceptions, EU law as it exists immediately before exit day and then to give (extensive) powers to Ministers to alter things.   Clauses 2 to 6 are concerned with Retention of Existing EU law.  The Explanatory Notes offer assistance with their interpretation.

Thursday 10 August 2017

Looking at the EU (Withdrawal) Bill ~ Clause 1 (ECA 1972 repeal and Exit Day)

On 13th July, the European Union (Withdrawal) Bill had its first reading in the House of Commons.  A previous post is an overview of the Bill and also offers links to commentaries by several other writers.

Clause 1 simply states: "The European Communities Act 1972 is repealed on exit day."   This apparently straightforward statement merits closer examination.

The European Communities Act 1972 (ECA) is

Tuesday 8 August 2017

Patrick Finucane ~ decision not to hold public inquiry reaches Supreme Court

Over 28 years ago, Northern Ireland lawyer Patrick Finucane was gunned down at his north Belfast home whilst he was having dinner with his wife Geraldine and their three children.  Mr Finucane was 39 years old and from a Republican family.  As a solicitor he had advised members of the IRA but he had also represented Protestants accused of terrorist offences.  The British government promised to hold a public inquiry and that promise was made to both Mrs Finucane and to the Government of the Republic of Ireland, the political parties at the Weston Park Conference and to the general public.  See the Good Friday Agreement Implementation Plan 1st August 2001.

In 2010, when the Coalition government was formed, a decision was taken to hold a Review rather than a Public Inquiry. 

Sunday 6 August 2017

Stories from the criminal courts

Knowing the case against you:

Any person charged with a criminal offence ought to be informed of the prosecution evidence in good time so that the appropriate plea may be entered and, if the plea is not guilty, the defence prepared before trial. This proposition appears self-evident if there is to be a fair trial (as required by English Law as well as Article 6) but, in practice, things do not appear to going too well according to solicitor Robin Murray -  Minted Law - Despatches from the Disclosure Battle Front.   Mr Murray was the winner of the Legal Aid Lawyer of Year Award in 2015. and also winner of Kent Law Society exceptional achievement award 2015.

Friday 4 August 2017

An abysmal situation - care proceedings - the case of X

Updated 7th August: Re X (A Child) (No. 4)

The case of X (A Child) highlights the lack of clinical, residential and other support services so desperately needed by the increasing numbers of children and young people with mental health problems.  Such children all too frequently come into contact with either the criminal justice system or are the subject of care proceedings or, as in X's situation, both.

X is now 17 years old and she is subject to a care order made on 15th June 2017 by the President of the Family Division - Sir James Munby. The judgment dealing with the care order is X (A Child) (No. 2) - [2017] EWHC 1585 (Fam).

X is also subject to a Detention and Training Order (DTO)

Wednesday 2 August 2017

Court of Protection

Of all the courts of England and Wales, one of the least understood is the Court of Protection. It is a court empowered by Parliament to decide issues relating to those who lack mental capacity to make their own decisions.  This is a complex field.  The vast majority of people who encounter the Court of Protection will need specialist legal help but it is a regrettable fact that legal aid is not always available under current arrangements.  The absence of legal aid in many important areas can amount to a denial of access to justice and it is a national scandal.  Let's take a closer look at the court.

Tuesday 1 August 2017

Tony Blair (and others) will not face trial for "aggression"

The war against Iraq began on 20th March 2003.  It caused deep divisions among the people of the UK.  On 18th March 2003, the House of Commons - in which the Labour Party held a large majority - passed a motion supporting the war - 396 votes to 217.  At the time, Tony Blair was Prime Minister; Jack Straw was Foreign Secretary and Lord Goldsmith QC was Attorney General.

In November 2016, District Judge Snow at City of Westminster Magistrates Court was asked to issue a summons to commence a private prosecution of Tony Blair, Jack Straw and Lord Goldsmith for the offence of "aggression."  The District Judge refused to issue a summons on the basis that aggression is not an offence known to the criminal law of England and Wales - see the House of Lords decisions in R v Jones and others [2006] UKHL 16 and R (Gentle) v The Prime Minister and others [2008] UKHL 20.