Tag Archive | "Brexit"

Enforcement and Dispute Resolution


Over recent weeks David Davis’s Brexit department has published seven so-called partnership papers, one of which, entitled ‘Enforcement and Dispute Resolution’, covers the role of the Court of Justice of the European Union (CJEU).

The introduction to this paper states: “In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU). The UK and the EU need therefore to agree on how both the provisions of the Withdrawal Agreement, and our new deep and special partnership, can be monitored and implemented to the satisfaction of both sides, and how any disputes which arise can be resolved.

“EU membership has meant an intrinsic link between the EU’s legal order and the legal systems in the UK. Withdrawal from the EU will mean a return to the situation where the UK and the EU have their own autonomous legal orders. The Withdrawal Agreement and the future partnership must respect the autonomy and integrity of both legal orders.”

Theresa May has insisted that the jurisdiction of the European Court of Justice in the UK will come to an end with Brexit. The PM said the UK would “take back control of our laws.” Asked about her government’s position, Mrs May said: “What we will be able to do is to make our own laws – Parliament will make our laws – it is British judges that will interpret those laws, and it will be the British Supreme Court that will be the ultimate arbiter of those laws.”

Speaking during a visit to Guildford, the prime minister said: “What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European court of justice. Parliament will make our laws. It is British judges who will interpret those laws and it will be the British supreme court that will be the arbiter of those laws.” And at the Tory conference last October, she spoke of a “Britain in which we pass our own laws and govern ourselves.”

Well that’s quite clear. Or is it? Critics say it will be impossible to avoid European judges having a role in enforcing new agreements drawn up with the EU. The promise to end “direct jurisdiction” in recent policy papers has raised questions about what “indirect” jurisdiction the EU court could be left with. The key question is how much influence the CJEU would retain under a bilateral agreement with the UK.

BBC Legal Correspondent Clive Coleman writes that “the EU will not sign up to an agreement which allows UK to depart from EU law to the UK’s advantage and the EU’s disadvantage on things like state aid to companies, or emissions standards. It will want a level playing field in trade and that will mean a lot of EU law as part of the agreement. The reality is that the more closely the Brexit trade agreement replicates EU law, the greater the influence of the CJEU will be.”

The pro-EU Open Britain campaign group said the government’s policy paper was a “climbdown camouflaged in jingoistic rhetoric.” The expanding scale of the prime minister’s climbdown over her promise to “take back control of British law” has led to discontent, with Tory Brexit supporters claiming Theresa May is abandoning the hardline position she set out in last year’s Conservative party conference speech and in a speech at Lancaster House in January.

Shadow Brexit secretary Sir Keir Starmer MP says the new document contradicts the “red line” on the European Court of Justice in the PM’s Lancaster House speech. “Any final deal with the EU that protects jobs and the economy will require an effective and robust dispute resolution mechanism,” he said. “This will inevitably involve some form of independent court.”

Liberal Democrat leader Vince Cable said Mrs May’s “red lines are becoming more blurred by the day”, saying the CJEU had “served Britain’s interests well” and should not be “trashed.”

Labour MP Chuka Umunna, a leading supporter of the Open Britain campaign against a hard Brexit, said: “It appears that the Government realises that European judges will have some say over what happens in Britain, whether we are in the single market or not.”

Britain could remain under the direct control of the European court of justice for years after Brexit, and still be forced to implement the court’s rulings on vexed issues such as immigration.

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Lord Chief Justice attacks the Lord Chancellor


Giving evidence to the House of Lords’ Constitution Committee this week, the lord chief justice, Lord Thomas of Cwmgiedd, launched a forthright attack on the justice secretary, Liz Truss, for her failure last year to defend judges who were branded “enemies of the people.”

Referring to the article 50 Brexit court case, he told the select committee Truss was “completely and utterly wrong” to say she could not criticise the media.

Last November, the ‘Daily Mail’ ran the headline “Enemies of the people” when the high court, on which Thomas was sitting, found against the government, forcing ministers to obtain parliamentary backing before triggering Brexit.

The lord chief justice told peers: “The circuit judges were very concerned. They wrote to the lord chancellor because litigants in person were coming and saying ‘you’re an enemy of the people…I don’t think it is understood either how absolutely essential it is that we [the judges] are protected because we have to act as our oath requires us without fear or favour.”

Referring to Gina Miller, the lead claimant in the Article 50 case, he went on to say:“It is the only time in the whole of my judicial career that I have had to ask for the police to give us a measure of advice and protection in relation to the emotions that were being stirred up.”

Lord Thomas’s intervention came after Truss told the Financial Times that judges should boost their image because they would come under greater scrutiny post-Brexit. She urged judges to “speak out about the important work they do to ensure that it is widely understood”.

Due to step down in the autumn after four years in office, Lord Thomas said he had intended to wait until a lecture he was planning to give in June to make public his opinions on the matter, but felt the need to do so now because of the lord chancellor’s comments and a newspaper interview she gave.

Pulling no punches he said: “I regret to have to criticise her as severely as I have, but to my mind she was completely and absolutely wrong. And I am very disappointed. I can understand how the pressures were on in November, but she has taken a position that is constitutionally absolutely wrong. It is Truss’s duty, as lord chancellor, to defend the judges.”

Truss said she supported freedom of the press and did not feel it was her role to tell newspapers what they should put on their front pages. She told the same committee earlier this month: “I think it is dangerous for a government minister to say, ‘this is an acceptable headline and this isn’t an acceptable headline,’ because I am a huge believer in the independence of the judiciary. I am also a very strong believer in the free press.”

A Ministry of Justice spokesman said: “An independent judiciary is the cornerstone of the rule of law and it is the duty of the Lord Chancellor to defend that independence. The Lord Chancellor takes that duty very seriously. She has been very clear that she supports the independence of the judiciary but that she also believes in a free press, where newspapers are free to publish, within the law, their views.”

Image by FruitMonkeyOwn work, CC BY-SA 3.0, Link

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ECJ Date Retention Ruling Goes Against UK


The Investigatory Powers Act (IPA) overhauls laws governing how the state gathers and retains private communications or other forms of data to combat crime. Broadband and mobile phone providers are compelled to hold a year’s worth of communications data. Known by critics as the snoopers’ charter, there is serious concern about the number of agencies that will get access to the communications data and other privacy issues. Read the full story

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The Brexit Papers


Brexit could undermine London’s status as a highly profitable international legal centre, according to the Bar Council, which represents barristers in England and Wales.

The Government must put the public interest at the heart of its Brexit strategy, the Bar Council has warned as it publishes the Brexit Papers, written by members of the Brexit Working Group set up by the Bar Council to examine the range of complex issues arising from Brexit and to help the Government identify the legal and constitutional priorities.

Led by the Chair of the Brexit Working Group, Hugh Mercer QC, the group has drawn on the combined expertise and experience of the profession across a wide range of practice areas. Mercer said: “EU law currently impacts nearly all areas of life. We need a plan to make sure that people do not suffer from uncertainty and ultimately end up worse off. If we are going to minimise the adverse impacts on UK citizens, a huge number of highly technical areas of law need looking at in fine detail.”

The Bar Council did not take a position on leaving or remaining in the EU. Chairman of the Bar, Chantal-Aimée Doerries QC said: “There has not been a more profound legal and constitutional challenge in living memory with which the UK Government has had to grapple, in terms of legal complexity, or significance for the long-term health and stability of the economy…Our interest is in helping to ensure that Brexit delivers the best deal possible for Britain.”

The report refers to cases in which claimants are being advised not to choose English jurisdiction clauses in their contracts where previously they would have been almost an automatic choice. Some cases that would normally be launched in England are being started in other EU jurisdictions due to uncertainty over the ultimate enforceability of English judgments.

According to the ‘Guardian’, the UK legal services market generates £25.7bn a year in revenue and employs 370,000 people. It produced £3.3bn of net export revenue last year. In the short to medium term Brexit may benefit lawyers whose legal advice is sought in a period of uncertainty, but the long-term prospects are not as good.

Peter Wilding, the man credited with inventing the term Brexit in 2012, said “This is not stopping Brexit, this is shaping it. The country demands a win-win, smart Brexit, not a lose-lose ideological hard Brexit which will damage the UK, damage Europe and for which there is no need and no mandate.”

The Law Society welcomed the bar’s Brexit Papers publication, which it said echoes positions set out by Chancery Lane in the wake of the referendum vote. Law Society president Robert Bourns said that: “Throughout this year the bar and the solicitor profession have been engaging with the government to examine the ramifications of Brexit, and put robust information before ministers, parliamentarians and officials.”

Hugh Mercer said “There is a great deal of work to be done. The resources of the Brexit Working Group, as well as those of the Bar Council and the Bar as a profession, are being made available to the Government, parliamentarians and the media, as well as to the public, so that Brexit delivers the best deal possible for Britain.”

The full text of The Brexit Papers can be found at:
http://www.barcouncil.org.uk/media/508513/the_brexit_papers.pdf

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How went the battle?


It is quite something when the deliberations of 11 very senior judges is the hottest ticket in town. There should be twelve judges but at the moment there is one unfilled vacancy. Nevertheless this is the first time that that all Supreme Court members have convened to decide a case.

There was standing room only as the battle for Brexit began. At issue is whether the government, through its executive powers, or parliament, can trigger article 50 of the treaty on European Union. The four-day hearing on the divisive constitutional issue was broadcast live. The High Court had ruled that parliament was sovereign in this case and the government was appealing that decision.

Emotions are running high. Ukip has accused those behind the claim of being “arrogant federalists” intent on blocking Brexit, the Daily Mail has branded the high court judges who found against the government in the first round as “enemies of the people”, and individual challengers – such as Gina Miller – have received death threats.

Before legal argument began the president of the Court, Lord Neuberg, stressed the court’s determination to assert its impartiality in the proceedings. He went on to say “various individuals have received threats of serious violence and unpleasant abuse on emails.” He warned that there are “legal powers designed to ensure that access to the courts is available to everyone.”

Labour’s shadow attorney general, Shami Chakrabarti, told BBC Radio 4’s Today programme: “the political aspect of the case had been hyped in parts of the media.” She said: “This is about process. It is not about outcomes.” She said it was unfair for newspapers to delve into the personal lives or supposed opinions of the judges.

Opening the government’s submission, the attorney general, Jeremy Wright QC and MP, said that royal prerogative powers were an essential part of the UK’s unwritten constitution and the high court had been wrong to rule last month that article 50 could only be triggered following a vote in Parliament.

Wright was followed by James Eadie, known as the Treasury Devil, but he ran into a barrage of queries from the justices in the court challenging the source of the royal prerogative.

Lord Pannick, QC, opening the argument on behalf of the lead claimant of the case, Gina Miller, dismissed as “inherently implausible” the government’s assertion that it was entitled to deliver notice of the UK’s intention to leave the EU under article 50. He described the referendum as “plainly an event of considerable political significance”, but was not a matter for the court because “it was irrelevant to the legal issue of whether ministers enjoy prerogative powers to set aside the 1972 Act.”

‘Guardian’ sketch writer John Crace had fun with the performing personnel. Of Lord Pannick he said: “Seldom has a man been less well named…a Pannick attack is a thing of zen like beauty.” Lord Keen, for the Scots, was described as being “breathless in a way that only a tortoise could ever know. Glaciers move more quickly than Lord Keen.” John Larkin, attorney general for Northern Ireland “dropped his bundles and lost his place to deliver one of the more hapless performances ever witnessed by the supreme court. Still his job was done. By making himself appear so useless, he might just have made Eadie and Keen look a little better.”

Judgement is expected mid- January.

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Enemies of the people


As the ‘Observer’ rightly said, “Our judges do not do politics. They do law. They are selected to be judges on their legal ability.”

The high court’s ruling on article 50 sent the clear message that the government does not have free rein to sweep away any legislation it finds disagreeable.

But the quality and impartiality of this judgment finds no favour with the Brexit media, led by the ‘Daily Mail’, which, under the infamous headline “Enemies of the people”, mounted a vicious assault on the three high court judges who ruled in the case. The government appeared to be fuelling this attack. Sajid Javid, the local government secretary, described the judges as seeking to “thwart the will of the people”. Read the full story

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Parliament alone has the power to trigger Brexit


The High Court has ruled that Parliament must vote on whether the UK can start the process of leaving the EU. This means that the government cannot trigger Article 50 of the Lisbon Treaty on its own.

One of the most important constitutional court cases in generations, it has created a nightmare scenario for the government. The decision has huge implications, not just on the timing but also on the terms of Brexit. Read the full story

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Brexit in the High Court


Last Tuesday the High Court concluded its hearing of the legal challenge over Brexit. Opponents are fighting to stop Theresa May triggering Article 50 of the Lisbon Treaty to leave the European Union without a vote from MPs in Westminster. Government lawyers argued before three judges that the Prime Minister is legally entitled to use the royal prerogative to commence Britain’s exit from the EU.

A number of campaigners have mounted legal challenges against the Prime Minister’s strategy for Brexit in what has been described as one of the most important constitutional cases in generations.

At stake is the question of whether the government is within its rights to begin the process of leaving the EU by triggering Article 50 of the Lisbon Treaty without the consent and authorisation of Parliament. It was established on both sides that the issue was justiciable, falling within the auspices of the courts to decide upon.

Lord Pannick QC represented the lead challenger, Gina Miller, in the claim. He argued that the inevitable consequence of triggering Article 50 is that statutory rights enjoyed by some UK and EU citizens will be taken away. That can only be done by Parliament, and not by the executive using the crown prerogative.

He contended that there was a direct causal link between the irrevocable triggering of Article 50 and the ultimate stripping away of statutory rights, such as that of UK citizens to stand and vote in European elections, to petition the European Court of Justice and to seek the European Commission’s intervention to uphold competition law.

The Government case, led by attorney general Jeremy Wright, argued that the mandate to trigger Article 50 is clear from the referendum. As Parliament did not take the opportunity to prevent a restriction on the use of royal prerogative for the triggering of Article 50, the executive has the power to trigger as it pleases. He said the “notification – once given – will not be withdrawn. It is our case that Parliament’s consent is not required.”

He told the court that the power to activate Article 50 was a “classic example of the proper and well established use of royal prerogative” with regard to treaty making and breaking.

Sky’s Faisal Islam wrote that “The concerning news for the Government is that the three High Court judges appeared far more sceptical about its case than many had expected. The Lord Chief Justice said twice that their argument ‘baffled’ him. It is entirely plausible that the Government will lose this case, which might come as a shock to Westminster.”

It depends on the three judges. The 582-page transcript of the High Court hearing is a formidable hurdle to a quick ruling. “We shall take time to consider the matter and will give our judgements as quickly as possible,” said Lord Chief Justice John Thomas, Britain’s most senior judge, who has been hearing the case with two other leading justices.

Whichever side loses will almost certainly appeal to the Supreme Court, the UK’s highest judicial body, which will give a final verdict in December.

It is not impossible that the Supreme Court could refer the case to the European Court of Justice. Now that would be ironic.

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The Government should not trigger Article 50 without consulting Parliament


The influential House of Lords constitution committee has published a report declaring that it would be “constitutionally inappropriate” for the prime minister to act on an advisory referendum without referring back to parliament.

Ian Lang, the Conservative peer and chairman of the House of Lords constitution committee, said:” Our constitution is built on the principle of parliamentary sovereignty and the decision to act following the referendum should be taken by parliament.

“Parliament should be asked to approve the decision to trigger article 50 – a decision which will start the formal process of the UK leaving the EU and set a deadline for the UK’s exit. Parliament’s assent could be sought by means of legislation or through resolutions tabled in both Houses of Parliament.”

The report says: “In our representative democracy, it is constitutionally appropriate that parliament should take the decision to act following the referendum. This means that parliament should play a central role in the decision to trigger the article 50 process, in the subsequent negotiation process, and in approving or otherwise the final terms under which the UK leaves the EU.”

The question of whether parliament or the prime minister has the authority to trigger article 50 is the central issue in a legal challenge against the government. Last week the High Court began a hearing of the legal challenge over Brexit in what has been described as the most important constitutional case in generations. Opponents are fighting to stop Theresa May triggering Article 50 of the Lisbon Treaty to leave the European Union without a vote from MPs in Westminster.

Recognising the possibility of conflict with this legal action, the consultation committee said: “We do not intend therefore to express a view as to the merits or otherwise of the differing legal arguments…Rather we consider whether, and if so how, it would be constitutionally appropriate for Parliament to be involved, irrespective of whether the courts decide that parliamentary involvement is a legal requirement.”

The report goes on to say: “It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval—particularly one with such significant long-term consequences. The Government should not trigger Article 50 without consulting Parliament… We consider it constitutionally appropriate that the assent of both Houses be sought for the triggering of Article 50.”

The committee goes on to recommend that: “Any legislation or resolution should clearly set out Parliament’s recognition and acceptance of the referendum result, but should seek to make clear the distinction between that acceptance and the decision as to when Article 50 should be triggered. Article 50 should be triggered only when it is in the UK’s best interests to begin the formal two-year negotiation process.”

For the future, the constitution committee concludes that: “The focus must now be on how Parliament and the Government will work together to that end. That co-operation should start now. Parliament and the Government should, at this early stage, take the opportunity to establish their respective roles and how they will work together during the negotiation process. The constitutional roles of each—the Executive and the Legislature—must be respected, beginning with parliamentary involvement and assent for the invoking of Article 50.”

The full text of the constitution committee report ‘The invoking of Article 50’ can be found at:
http://www.publications.parliament.uk/pa/ld201617/ldselect/ldconst/44/4407.htm

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Who is Mrs Miller?


As the lead claimant in a historic legal action against the prime minister, Gina Miller has been thrust into the national limelight, but the investment manager is no stranger to taking on powerful establishments.

She was born in Guyana but grew up in Britain. A serial entrepreneur, she is also a philanthropist. In her own words her focus is “supporting small heroic charities that are at the coal face of negative society trends”. The True and Fair Foundation also gives advice to other “time-poor philanthropists who wish to give responsibly.”

According to the ‘Guardian’, the 51-year-old co-founded the firm SCM Private in 2014, but she also set up the True and Fair Campaign in 2012 with her hedge-fund manager husband which called for more transparency, and an end to hidden fund charges and miss selling in the City of London’s fund management industry.

Now represented by Mishcon de Reya, she is leading the judicial review of the government’s triggering of article 50, which will start the negotiations about the UK’s exit from Europe. She is reported as telling ‘Business Insider’: “I believe these things should be debated and looked at in parliament. It would be the first time that we would have a proper, serious, grown-up debate about all the factors that will influence us leaving the EU. There should be a debate about the consequences for different sectors. MPs should listen to their constituents. Then, if MPs vote in favour of invoking article 50, primary legislation [should be passed].”

Miller is joined by other applicants including support from the crowdfund People’s Challenge.

Yesterday the High Court began a hearing of the legal challenge over Brexit in what has been described as the most important constitutional case in generations. Opponents are fighting to stop Theresa May triggering Article 50 of the Lisbon Treaty to leave the European Union without a vote from MPs in Westminster. Government lawyers will argue before three judges that the Prime Minister is legally entitled to use the royal prerogative to commence Britain’s exit from the EU.

Three of the most senior judges – the lord chief justice, Lord Thomas of Cwmgiedd, the master of the rolls, Sir Terence Etherton, and Lord Justice Sales – are hearing the challenge. The attorney general, Jeremy Wright QC, will lead the government’s case and Lord Pannick QC, represents the lead challenger in the claim.

In a preliminary, but very significant, skirmish the government has been forced by a senior judge to reveal secret legal arguments for refusing to let parliament decide when and how the UK should withdraw from the European Union. The government had refused to allow its legal opponents to reveal before the case its explanation of why it ought to be able to use royal prerogative powers to trigger article 50. But in an order handed down by Mr Justice Cranston last Tuesday, he told both parties: “Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under [court] rules.”

In the released documents, lawyers for the government argue that it is “constitutionally impermissible” for parliament to be given the authority rather than the prime minister and dismiss any notion that the devolved nations – Scotland, Northern Ireland and Wales – will have any say in the process.

And, in a direct challenge to Downing Street’s authority over Brexit, the House of Lords constitution committee has published a report declaring that it would be “constitutionally inappropriate” for the prime minister to act on an advisory referendum without referring back to parliament.

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