Tag Archive | "David Davis"

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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The Supreme Court has ruled

Parliament must vote on whether the government can start the Brexit process, the Supreme Court has ruled. The judgement means Theresa May cannot begin talks with the EU until MPs and peers give their backing, although this is expected to happen in time for the government’s 31 March deadline.

Reading out the judgement, Supreme Court President Lord Neuberger said: “By a majority of eight to three, the Supreme Court today rules that the government cannot trigger Article 50 without an act of Parliament authorising it to do so.

“Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights. The UK’s constitutional arrangements require such changes to be clearly authorised by Parliament.”

Attorney General Jeremy Wright said the government was “disappointed” but would “comply” and do “all that is necessary” to implement the court’s judgement. The government had argued that, under the Royal Prerogative (powers handed to the government by the Crown), it could make this move without the need to consult Parliament.

The court also rejected, unanimously, arguments that the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly should get to vote on Article 50 before it is triggered.

Key points of the judgement include the fact that the 1972 Act that took the UK into the then EEC creates a process by which EU law becomes a source of UK law, and so long as that act remains in force, it means that EU law is an “independent and overriding source” of the UK’s legal system. Withdrawal from the EU makes a fundamental change to the UK’s constitutional arrangements because it will cut off the source of EU law. The UK constitution requires such changes can only be made by Parliament.

Dominic Casciani, BBC home affairs correspondent, writes: “”This momentous judgement is about one thing alone: the rule of law and how the UK, as a champion of that steady, calm form of government, gets on with the business of leaving the EU.

He added: “But what it also makes clear is that membership of the EU is messy in constitutional terms – so only Parliament has the right to pull us out. It can’t be done by the stroke of a minister’s pen.”

BBC Political Editor Laura Kuenssberg detected “sighs of relief” in Whitehall for two reasons. The verdict from the justices doesn’t take away from the reality that having to go to Parliament before triggering Article 50 is a political inconvenience that Theresa May very much wanted to avoid. But “the justices held back from insisting that the devolved administrations would have a vote or a say on the process. That was, as described by a member of Team May, the ‘nightmare scenario’.”

She said: “Second, the Supreme Court also held back from telling the government explicitly what it has to do next. The judgement is clear that it was not for the courts but for politicians to decide how to proceed next.” Explicit instructions from the court about the kind of legislation they had to introduce would have made ministers’ lives very difficult.

David Davis stated that the government supported the right of the judges to come to their conclusion, after the ‘Daily Mail’ argued: “Yet again, the elite show their contempt for Brexit voters.” There followed a statement from the justice secretary, Liz Truss, who faced criticism for not defending the appeal court justices denounced by sections of the media as “enemies of the people” after they ruled against the government.

Truss said: “Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our supreme court justices are people of integrity and impartiality.”

The shadow attorney general, Shami Chakrabarti, argued that it was not enough, and that the prime minister should also speak out.

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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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Investigatory Powers Act

Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy.

This was the very solid base for coalition home secretary Theresa May’s snooper’s charter bill four years ago which would have allowed GCHQ to conduct real-time surveillance of a person’s communications and their web usage. Downing Street initially brushed aside libertarian objections but then plans were put on hold after being condemned by MPs of all parties. Nick Clegg, then Deputy Prime Minister, announced that the contentious measures would only be published in draft form and would be subject to widespread consultation, concessions that could delay the proposals for at least a year. Read the full story

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Investigatory Powers Bill

Britain leads the world in the use of CCTV, and surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy.

Coalition home secretary Teresa May’s snooper’s charter bill, introduced three years ago, would have allowed GCHQ to conduct real-time surveillance of a person’s communications and their web usage. The intelligence services and police would have had powers to insist that internet and phone companies hand over our data without our knowledge. Read the full story

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“Turbo-charged snoopers’ charter”

Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy.

This was the very solid base for coalition home secretary Teresa May’s snooper’s charter bill three years ago which would have allowed GCHQ to conduct real-time surveillance of a person’s communications and their web usage. The intelligence services and police would have had powers to insist that internet and phone companies hand over our data without our knowledge. She stressed the need to move quickly. Read the full story

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‘Unqualified thicko justice secretary’

Yet another blow for the justice secretary, Chris Grayling. In the latest episode, guidance on who is eligible for legal aid in exceptional cases is “unlawful”, judges have ruled.

The High Court had said the guidelines on who was still eligible were “too restrictive” and overturned refusals of legal aid in six immigration cases. The government appealed against that decision but Court of Appeal judges have now upheld the original ruling. Read the full story

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Challenge to DRIP

Drip is the acronym of the Data Retention and Investigatory Powers Act which was rushed through Parliament with unseemly haste in three days last week in response to a European Court of Justice ruling in April that challenged the rights of phone and other communications providers to keep records of information on people’s calls and emails.

Prime Minister David Cameron and Deputy Prime Minister Nick Clegg said that the accelerated passage of the bill through Parliament was necessary because of the April ruling. They warned this would deny police and security services access to vital data about phone and email communications. “Lives could be lost”, said Home Secretary Theresa May. Read the full story

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Secret trials

Back in the heady days of May 2010 a Tory and Liberal coalition agreement was produced at break-neck speed.

Section 10 of the agreement was about civil liberties. The preamble stated: “The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.” The agreement specifically promised the protection of historic freedoms through the defence of trial by jury. Read the full story

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