Tag Archive | "Theresa May"

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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Deport first, appeal later


This week the Supreme Court ruled that the government’s system for deporting foreign criminals before they have had a chance to appeal breaches their human rights. In a landmark case concerning two foreign national criminals, the court ruled that having to appeal from abroad denied the men an effective appeal.

‘Deport first, appeal later’ was introduced as part of the Immigration Act 2014. It removes a foreign criminal’s right to appeal in the UK unless they can show a ‘real risk of serious irreversible harm’ if they are deported to their country of origin. It was designed to reduce the number of offenders fighting deportation by using human rights grounds, especially the right to a private and family life. More than 1,100 foreign criminals have been removed from Britain under the system. It was a Conservative manifesto pledge.

The ruling, handed down by the deputy president of the supreme court, Lady Hale, and four other justices, said the system breached foreign criminals’ human right to an appeal as their ability to present their case from abroad was likely to be obstructed in a number of ways.

The case involved two men convicted of drug offences who had both served prison sentences. In both cases the home secretary (then Theresa May) issued certificates that their human rights claims were “clearly unfounded” under 94B of the Nationality, Immigration and Asylum Act 2002. This had the effect of ensuring that they could only appeal against their deportation after they had returned to Kenya and Jamaica.

The court ruling says that the financial and legal barriers to the men giving their evidence live on screen are almost insurmountable. The justices say the MoJ’s failure to provide facilities abroad to enable them to give evidence means they have been deported without any human rights-compliant system in place that enables them to conduct their appeal.

Leading counsel for one of the appellants said the ruling would halt the use of the power in the deportation of foreign national criminals. “The supreme court’s judgment will very heavily limit, if not entirely curtail, the home secretary’s use of the controversial ‘deport first, appeal later’ power for ‘foreign criminals’ who wish to challenge deportation decisions on the basis that deportation will infringe the right to family or private life. The court has made clear its disapproval of the routine use of such a power,” he said.

Clive Coleman, BBC legal affairs correspondent, writes that “the ruling is a hammer blow to the Home Office. Appeals will have to be ‘effective’ and that will often mean that they have to be conducted with the appellant in the UK. ‘Deport first, appeal later’ is damaged.

“Since December, in what amounts to a ‘remove first, appeal later’ policy, the process for certifying removal before appeal has been extended to other cases such as those brought by people who are not convicted criminals, but have overstayed their leave to remain here.” He adds that the decision “is likely to have significant implications for both the deportation of foreign offenders and the removal of others who are in the UK unlawfully.”

For the government, Immigration Minister Brandon Lewis said: “We are disappointed by the Supreme Court’s judgment and are carefully considering the implications.”

Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants, welcomed the ruling and said: “The Supreme Court has accepted, as we warned from the beginning, that it is almost impossible to appeal from abroad. They have also upheld the rule of law by making it clear that the Home Secretary cannot simply avoid scrutiny by removing from the UK anybody who disagrees with her decision.“

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Enabling tax avoidance


According to the ‘Gazette’, solicitors, with the exception of those in-house, are among the main losers from last week’s spring budget. A combination of higher national insurance contributions and increased taxes on dividends will hit self-employed practitioners, partners and director shareholders.

In addition, accountants, lawyers, tax planners and advisers who provide advice on how to avoid tax will face tough penalties under new proposals being consulted on by the government. Under the plans set out in an HMRC consultation document enablers of tax avoidance could have to pay a fine of up to 100 per cent of the tax the scheme’s user underpaid. The fines are designed to be levied against accountants and lawyers who create tax avoidance schemes of the kind used by celebrities. 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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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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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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Birmingham and after


The King is dead, long live the Queen. With brisk efficiency the Birmingham conference airbrushed David Cameron out of the Tory pantheon.

In a populist speech to her party, the prime minister painted June’s referendum result as a “quiet revolution” that should force politicians to tackle public concerns, repeatedly telling delegates that “change must come.” But in true party conference tradition the speeches were long on rhetoric but short on practical details. Read the full story

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The Lord Chancellor


When appointing a Lord Chancellor what was once rare is now almost routine.

The Coalition government in 2010 appointed Chris Grayling to the post, which is also that of Secretary of State for Justice. He was the first non lawyer to be given the job since the middle ages. It showed.

In the reshuffle following the 2015 election Michael Gove got the job. He also is not legally qualified. He made a promising start, clearing up some of the mess left by Grayling, and promising reforms. He became one of the more sensational casualties of the post referendum chaos as he was cast into the political wilderness.

Now Liz Truss has got the job. Also not legally qualified, she is the first female Lord Chancellor in the thousand-year history of the role. 41 today, she has been MP for South West Norfolk since 2010. Rapid promotion saw her appointment as Parliamentary Under-Secretary of State from 2012 to 2014, with responsibility for education and childcare. She became a member of the Cabinet as Secretary of State for the Environment, Food and Rural Affairs in 2014. On 14 July 2016 she was appointed Justice Secretary and Lord Chancellor by new Prime Minister Theresa May.

According to George Monbiot in the ‘Guardian’, interviewers have said that she is “indissolubly wedded to a set of theories about how the world should be, that are impervious to argument, facts or experience. She was among the first ministers to put her own department on the block in the latest spending review, volunteering massive cuts.”

She set courts reform as one of her top priorities during the traditional swearing-in ceremony. She also stressed she was a great supporter of reform and modernisation through the courts and tribunals system. “That urgent task will be high on my agenda in the months ahead, as I know it is for senior members of the judiciary,” she added.

Her appointment has not met with a uniform welcome. As one disgruntled contributor to the ‘Gazette’ plaintively wrote “Why do the Tories persistently want to pee off the profession by making non lawyers Lord or Lady Chancellors. It is frankly insulting.” More officially, the Tory chair of the Commons justice select committee, Bob Neill, has become the latest senior political figure to question her credentials.

As reported in the ‘Gazette’, he said “My concern is this: while it’s not necessary for the lord chancellor to have a legal background, they have a specific role under the Constitutional Reform Act to represent the interests of the judiciary and to represent the judiciary, including its independence within government.

“It helps if the person in charge has been a lawyer or has been a senior member of the cabinet. I have a concern, with no disrespect to Liz, that it would be hard for someone without that history to step straight in and fulfil that role.”

Neill’s comments follow a claim by former shadow lord chancellor Lord Falconer that prime minister Theresa May broke the law in appointing Truss. Writing in the ‘Times’, Falconer said: “The lord chancellor has to be someone with the weight and stature to stand up to the prime minister or the home secretary when, for instance, they want to compromise on complying with the law in an attempt to placate the public. Or when the politicians are determined to blame the judges when their policies go wrong.”

Lord Faulks said last week that he resigned as Lords justice spokesman over fears that Truss would not have the necessary leverage to challenge the prime minister over crucial issues such as judicial independence.

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Investigatory Powers Bill


The snoopers charter, known as the Investigatory Powers Bill , is with us again. While tightening up privacy safeguards in proposed new spying laws, the government is seeking to give the police more power to see internet browsing records.

Published on Tuesday, the Bill will force service providers to store browsing records for 12 months. It will also give legal backing to bulk collection of internet traffic. It expands the purposes for which police can obtain internet connection records. It says they can be acquired for a “specific investigation” provided it is “necessary and proportionate.” Ministers say the new powers are needed to fight terrorism, but internet firms have questioned their practicality, and civil liberties campaigners say it clears the way for mass surveillance,

In her written statement to Parliament, Theresa May said that the government is not seeking sweeping new powers and had taken on board the criticisms of three parliamentary committees. She said: “The privacy safeguards are stronger and clearer. The Bill incorporates additional protections for journalists, removing a key exemption for the security and intelligence agencies when seeking to identify journalists’ sources. And it incorporates statutory protections for lawyers.”

May said the latest version reflected the majority of the 122 recommendations made by MPs and peers, including strengthening safeguards, enhancing privacy protections and bolstering oversight arrangements.

She also said that the revised measure would strengthen the office and powers of the investigatory powers commissioner, giving the lord chief justice a role in his or her appointment. “This is vital legislation and we are determined to get it right…Terrorists and criminals are operating online and we need to ensure the police and security services can keep pace with the modern world and continue to protect the British public from the many serious threats we face.”

May said the Bill is not asking companies to weaken their security by undermining encryption. New safeguards for interception and equipment interference warrants are introduced, reducing the period of time within which urgent warrants must be reviewed by a Judicial Commissioner from five to three days.

She said: “The Bill as amended strengthens the office and powers of the new Investigatory Powers Commissioner, giving the Lord Chief Justice a role in his or her appointment and allowing for the Commissioner to inform people who have suffered as a result of the inappropriate use of powers.

“The ‘double-lock’ authorisation model endorsed by the Joint Committee – involving judges in the approval of warrants for the most intrusive powers – remains on the face of the Bill and has been strengthened further in respect of urgent warrants.”

Ministers want the new bill to become law by the end of the year, citing the urgent demands of national security and crime prevention.

The ‘Guardian’ reports that Shami Chakrabarti, director of Liberty, said: “Less than three weeks ago MPs advised 123 changes to the majorly flawed draft bill. The powers were too broad, safeguards too few and crucial investigatory powers entirely missing. Government must return to the drawing board and give this vital, complex task appropriate time.” Lord Strasburger, a Liberal Democrat member of the scrutiny committee on the draft bill, said nothing had changed. “The Home Office just doesn’t do privacy. It does security and ever more intrusive powers they claim will make us safer, but not privacy.”

The ‘Guardian’ editorial says the bill “is, in its way, a triumph for [Edward] Snowden: it involves the British security state coming clean about the extraordinary existing facility to snoop that he exposed, spelling the powers out in statute for the first time… It will become possible to build up exhaustive logbooks on the lives of others. Bluntly described powers to switch on cameras and microphones on people’s own phones starkly reveal how the tide of technology is washing away all need for the old art of installing bugs…”

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