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Bedroom tax case: don’t forget the ECHR

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Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

  1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
  2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.

Paul and Susan Rutherford care for a grandson in a specially adapted three-bedroom house and require an overnight carer for the child, a situation not catered for in the regulations. Mrs Carmichael is disabled herself but doesn’t require “overnight care”; she simply cannot share a bedroom with her husband, Jayson. Both families therefore fell outside the regulations and had to rely on Discretionary Housing Payments (DHP) administered by the relevant local authority.

The claimants argued that the rules discriminated between categories of disabled people, so those not needing overnight carers were penalised for nevertheless needing an additional bedroom. The Government argued that the DHP regime was sufficient to comply with the law against discrimination.

Setting aside the human rights issues, the claimants (who included five others whose claims failed) sought to engage the Equality Act 2010 under which (in section 149) the “Public Sector Equality Duty” (PSED) requires a public authority (including the government in issuing regulations) to “have due regard to the need to eliminate discrimination” and “advance equality of opportunity between persons who share a relevant protected characteristic [here disability] and those who do not share it”. 

In the lower courts Mrs Carmichael’s case had failed. In R (MA) v Secretary of State at the Court of Appeal (actually the Carmichael case) the Government successfully argued its regulations could not reasonably cover an “imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space by reason of disability”. DHP was sufficient to cover such cases.

Furthermore the Government did not fall foul of the PSED, according to Court of Appeal judges, because “due regard” to the relevant considerations had been taken when making the decision. Toulson, in the Supreme Court, agreed with this position, saying:  

“Lord Dyson MR, [at para 91 of his court of appeal judgment in MA], accepted that it was not sufficient for a decision-maker to have a vague awareness of his legal duties. Rather, he must have a focused awareness of the duties under section 149 of the Equality Act and, in a disability case, their potential impact on people with disabilities. On the history of events and the evidence … the courts were well entitled to reach the conclusion that they did.”

So what of the successful ECHR-based case?

ECHR principles in play
Discrimination may be justified under European Human Rights law if there is good reason for it but

“A difference of treatment is … discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” (The Stec principle from Stec v United Kingdom 43 EHRR 47).

Economic reasons (such as government deficit reduction) or fair distribution of property or some important social strategy might be accepted as justification. A national Government might be given a “margin of appreciation” to set such policies on the basis that “national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds”.

The legal test used is whether the state’s action is “manifestly without reasonable foundation”, a test established in James v United Kingdom (1986) 8 EHRR 123. (In that case the policy objectives of leasehold enfranchisement were held to outweigh the rights of freeholders under Article 1 Protocol 1 of the European Convention regarding protection of property rights). 

So, the ECHR approach should not be seen as an easy ride for claimants. Governments will be given a good deal of deference on matters of high policy and a tough test will be applied before the presumption in their favour is overturned. The claimants argued the “manifestly without reasonable foundation” test was too tough under the circumstances since: “Their complaint is simply that the manner of implementation of the policy discriminates against a vulnerable group, and that it is right to require weighty reasons to justify the discrimination rather than the broader policy itself.”

The UK courts in the past had spotted gaps in provision “for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom”, Toulson noted – see R (Burnip) v Birmingham City Council and Gorry (same case).

As a result of Gorry, the rule that children of the same sex could sleep in the same room (so an additional room would attract the “bedroom tax” penalty even if a child was sleeping in each) was relaxed when one was disabled and needed a room of their own. But the rule change did not extend to adults so Mrs Carmichael was not covered. In the Rutherfords’ case, a rule change due to Burnip covered adults needing overnight care but not children.

Toulson declared: “There is no reasonable justification for these differences.” As a result: “I would therefore dismiss the Secretary of State’s appeal in the Rutherford case, [and] I would allow Mrs Carmichael’s appeal and would hold that in her case there has been a violation of article 14, taken with [private and family rights under] article 8.” In other words she could expect family rights protected under Art 8 and this ECHR right should be accorded her without discrimination, as per Article 14.

• One of the cases before the Supreme Court that failed was that of “A” a female victim of domestic violence living in accommodation adapted with a sanctuary room. The court rejected the view of the Court of Appeal that the reasoning in R (Burnip) v Birmingham City Council applied: there was discrimination “because Reg B13 had a disparate adverse impact on persons with disabilities”, that the discrimination could not be legally justified, and that such cases “were by their nature likely to be relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”. Toulson said however:

“The reason that A has three bedrooms is not that she needs three bedrooms, but that no two bedroom properties were available when she first moved there. As I have said her reasons for wanting to stay where she is are strong but unrelated to the size of the property. The fact that people may have strong personal or social reasons for wanting to stay in their property for reasons unrelated to the number of bedrooms (of which A is one example in her particular circumstances) was recognised and was planned to be taken account of through DHPs.”

Twitter: alrich0660

As mentioned above, the Lord Justice Laws judgment in R (MA) is examined on Thinking Legally: Laws’ law of non-intervention 

Housing blog Nearly Legal looks at Rutherford in the Court of Appeal here and in the Supreme Court here.

Other bedroom tax posts
Zahawi’s false assurance is here
Duncan Smith needs a new benefits thinking cap is here
What Raquel Rolnik really said on the bedroom tax is here
Duncan Smith’s vindictive ploy is here 

See also:
Human Rights Act: are these cases trivial?     

Burnip v Birmingham City Council Court of Appeal [2012] EWCA Civ 629,
R (MA & Others) in the
High Court: [2013] EWHC 2213 (Admin)
R (MA & Others) 
in the Court of Appeal: [2014] EWCA Civ 13   
in the
High Court 2014 EWHC 1631
Rutherford and Others v Secretary of State 
Court of Appeal [2016] EWCA Civ 29
R (MA/Carmichael and others), R (Rutherford and others) v Secretary of State 
(Supreme Court) [2016] UKSC 58

The Housing Benefit (Amendment) Regulations 2012 re B13:

Regulation B13(5) 
The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable)—
(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child,
and one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where each of them is).”

The claimant is entitled to one additional bedroom in any case where –
(a) a relevant person is a person who requires overnight care; or
(b)       a relevant person is a qualifying parent or carer

In this regulation ‘relevant person’ means –
(a)       the claimant;
(b)       the claimant’s partner;
(c)       a person (“P”) other than the claimant or the claimant’s partner who is jointly liable with the claimant or the claimant’s partner (or both) to make payments in respect of the dwelling occupied as the claimant’s home;
(d)       P’s partner.”       

 Article 14 ECHR
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 8 
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.



1297 And All That: how to impress a Brexit judge

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Turned down the chance to take the option on Medieval Law during your time as a legal scholar? Bad move. Ancient precedents are now cool – and the best way to impress our top judges when they are considering tricky matters such as the Brexit wrangle.

One of the teams in the Gina Miller/Dos Santos Brexit case came up with material going all the way back to 1297 to support their contention that Theresa May didn’t have power to start Brexit by issuing an Article 50  notification. But were they, how can one say it, a little economical with the historicité?

Helen Mountfield QC, for the People’s Challenge, said Henry IV had tried to suspend a 1297 Act which allowed foreigners to trade in London:

“So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time. The law itself which is referred to there has been, I think, tracked down by the industries of my friend Ms Simor QC, the law of 1297 at bundle E1, and it is perhaps unsurprising that it was Henry IV who wanted to ‘kill all of the lawyers’.”  Second day of case; digest here

This writer, of course, cannot pretend to have access to their lordships bundles. However one assumes that the 1297 Act must be Magna Carta – the Edward I inspeximus* re-issue, not the 1215 original. Strictly speaking it is a treaty (between the King and his people – or those who mattered) rather than an Act of Parliament but it was also enacted into law. It remains on the statute books, what’s left of it, and can be found here. But it wasn’t exactly the act of a “sovereign parliament” as we know it today.

Many statutes of this time (listed here) were of this nature. Those summoned to Parliament did not make law but brought petitions to the Monarch of the day on behalf of their constituents (the dominant Lords representing only themselves) relying on the Monarch’s grace (and his prerogative power) to grant their pleas – in exchange for new taxes for wars and whatnot. For example, the Statute on Tallage of the same year (also still on the statute books, here) is another such pledge by the King turned into a piece of quasi-legislation. 

The Chapter of Magna Carta presumably examined in the Brexit case (see below) was indeed “right on point” in the sense of showing an attempt to ensure free movement (for merchants, not workers who were bound to their feudal masters) and the right of establishment – to trade in England. But it wasn’t a law passed by parliamentarians since they would have no power to override the King’s prerogative right to allow past his borders or exclude whomsoever he wishes.

In modern days a sovereign Parliament can, through legislation, oust the Royal prerogative – and that is what the lawyers against the Government were arguing had happened with the passing of the European Communities Act 1972. But in medieval times the Monarch (and/or Church) was the source of sovereign law, not parliamentarians.

The Case of Proclamations
This little wrangle between Henry IV and London traders has come down to us via Sir Edward Coke and the Case of Proclamations in 1610. Coke, then Chief Justice of the Common Pleas, was among judges who were asked by James I whether the King through his prerogative could control building in London – in particular the use of timber since, presciently enough, James saw in it a danger of terrible conflagration – and making starch from wheat – which was harmful to the environment. So he was trying to do good. But Coke saw the Henry IV issue as a useful precedent to challenge the King’s power, noting:

“An Act was made by which foreigners were licensed to merchandise within London. Henry IV, by proclamation, prohibited the execution of it, and that it should be in suspense until the next Parliament, which was against the law.”

That’s it. No further details or argument are given. Coke was under some pressure to find precedents for overruling the Crown’s prerogative since he had been given this brief by the Lord Chancellor:

“[T]he Lord Chancellor said, that every precedent had first a commencement, and that he would advise the Judges to maintain the power and prerogative of the King; and in cases in which there is no authority and precedent, to leave it to the King to order in it, according to his wisdom, and for the good of his subjects, or otherwise the King would be no more than the Duke of Venice [ie the elected Doge].”

So Coke looked into his books (as Jessica Simor QC no doubt did to find the 1297 reference for Mountfield) and came up with the Henry IV case (if that is what it amounts to).  

The Case of Proclamations is one of Coke’s law reports – not as we have them today, contemporaneous transcripts of judge’s decisions, but a series of volumes in which Coke writes at leisure after his sacking about old cases he knew of or those he was involved in.

His reports were, it must be said, partial and political (see the Note below on how he could manipulate precedents); Coke was at the intellectual forefront of the 16th century struggle against the monarchy – and also a great proponent of the Common Law, not least because he made his money from the Common Law.

The Case of Proclamations is taken as a great constitutional document holding that “the King cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament”. It has been the foundation of the legal notion that the laws of a sovereign Parliament trump the Crown Prerogative – which the Government is seeking to use to issue the Article 50 Brexit notification.

But, in fact, it is less a ruling than an opinion. King James, for all his reputation as a Divine Right of Kings man, actually was insistent he had to follow the laws and traditions of his new kingdom – England. He invited judges in to advise on this issue because he wanted to be guided by the country’s jurists in his actions (though, ultimately, he got rid of Coke because he gave the wrong answers on this and other matters). And it seems James ignored the advice arising out of the Case of Proclamations. According to one account:

“notwithstanding the above Opinion there have been Instances of Persons who have been sentenced in the Star Chamber [the Monarch’s prerogative court] upon Proclamations against the Increase of Buildings; and particularly where a Person was fined in the Star-Chamber for building without Brick, tho’ upon old Foundations; and it is there said that such buildings had an ill Effect from the Danger of Fire, Consumption of Timber and Difficulty of Feeding, Cleaning and Governing the City; and it was said in general that Proclamations were so far just as they were made pro Bono Publico and for public Utility.” A New Abridgement of the Law Vol 4 Matthew Bacon 1793.

Doubtless Theresa May would argue that she and her Three Brexiteers are acting pro bono publico in seeking to leave the EU – not least given the threat of millions of Faragists taking to the streets or marching on Westminster if they don’t get their way. So the Prime Minister might put her lawyers to finding some even dustier precedents of her own to back up her position.

As to the lawyers on the other side who will take the Brexit case to the UK Supreme Court, they had better be on their mettle. For we have among the learned Justices one of the flowers of medieval scholarship in Jonathan Sumption. Some pretty thorough research by Ms Simor et al will be required to impress this Lordship.

Twitter: alrich0660 

*”An inspeximus issue of a charter is one in which the granter states that an older charter has been examined (Latin: inspeximus, we have examined), and then recites and confirms the provisions of that original.”

More Brexit material can be found here.
• The extended Note below is really “Quite Interesting”, so further reading is highly recommended.

Historical posts include:
• Magna Carta: Is it such a great charter?
Capturing the British Constitution
Harry Potter and the misleading case of habeas corpus
Torture: A history (also points out Coke’s inconsistency as below)

Note on Non Obstante case
In the New Abridgement volume cited above there is another case in which Sir Edward Coke’s precedents are examined – and found wanting. It relates to the King’s prerogative of non obstante – to dispense with a law when, according to the author of the volume,

“a Law that is good in general might be mischievous in some Particular Cases; and therefore and for the publick Good the Law intrusts the King (who is intrusted with the Execution of the Law) to judge of such Circumstances … to exempt it out of Penalty of the general law”.

The sort of law open to the King’s non obstante include just the sort of trade-related statutes that Henry IV apparently wished to suspend:

“Carrying Bell-Metal or beer &c out of the Realm, importing certain Merchandizes in foreign Ships &c. Selling wines beyond a certain price, Exporting Wool to any other place than Calais, Coining Money of a base Alloy and other Matter of a like Nature”.

It was accepted, though, that the King could not generally bar statutory rights especially if the statute expressly ousts non obstante. The case (late 17th or early 18th century, about a Colonel’s failure to offer service) looked back at a case Coke reports (12 Rep 18) about whether the King could overrule a law restricting sheriff’s service to a year. Coke used it to establish that

“no Act can bind the King from any prerogative which is sole and inseparable to his person [“which” should strictly be “that” here], but that he may dispense with by a Non Obstante, as a Sovereign Power to command any of his Subjects to serve him for the Weal [good of the] Public”.

This is contrary to the position he is more famous for, that of the Case of Proclamations. The 19th century historian Henry Hallam notes the words were written “before he had learned the bolder tone of his declining years” (Constitutional History Vol III Chap XIV). In a marginal note to the Abridgement, that volume’s editor notes: “Strange Doctrine! tantamount to saying that the Constitution had invested the King with a Power to ruin any Subject that was obnoxious to him”. Enforced service to the King was not necessarily deemed a great honour.

 Coke had referred to a statute of Henry VI (23 H6 Cap 8 according to the volume but actually 23 Henry 6 Cap 7 on tenure of sheriffs, for those of you particularly interested – as you must be to have read this far) and the lawyer in the later (Colonel’s) case, Sir Edward Nortby, notes that it

“was an Act purely restraining that power the King had of commanding, and was rather a Disabling the King than the Subject; for it took away the power of the King and of granting the Office for Years, Life and Inheritance, and by Consequence was a total Depriving him of the Use of some of his Subjects as some Times; and I may very well allow that such Acts of Parliament did not nor can bind the King.”

So the lawyer is arguably saying that such Statutes that bind the Monarch’s prerogative amount to treaties with the people rather than binding law. They cannot oust the King’s prerogative unless he allows them to. 

The same principle presumably might have applied to Chap 30 of Magna Carta – at least until Coke came along and changed the course of constitutional history. It is now wholly accepted that legislation can remove prerogative powers, and has periodically done so. Thus James Eadie QC, putting the government case in Miller/Santos, said: “the correct and true principle is that the prerogative is the residue of powers left in the hands of the Crown by Parliament” (Third day digested here).

We don’t have the details of the Henry IV affair so we don’t know how it was established that Henry’s suspension of the Act “was against the law”, as Coke put it. Henry may have simply backed down without any judicial decision.

Coke’s precedents
The Non Obstante case published in A New Abridgement is also interesting for the lawyer’s comment on Coke’s precedents. Nortby says:

“… he is mistaken in the Case on which he relies; for by the Book 2 H 7 6 on which he relies, it appears plainly that there never was such Resolution as he cites, but a sudden Opinion given, and at which Time the Judges declared they would not be bound by what they had said”.

In another case Coke cited “it appears nothing more was ever done in the Matter but it rested and was never adjudged”. This certainly suggests Coke played fast and loose with the precedents, implying judicial authority when there was none. The lawyer concludes:

“The great Foundation [of Coke’s case] failing, the Superstructure of Lord Coke thereon, and his Opinion, must needs fall and be rejected as an Opinion grounded on palpable Mistake.”

Elsewhere, the 12th Volume of Coke’s reports, which contains the sheriff’s non obstante case (12 Rep 18), is held to be “not fit to be allowed” while one senior legal figure of the 18th century, Serjeant Hill, noted on his copy that 12 Rep 18 “might justify the King in acting against the law and afforded grounds for him to erect arbitrary power”. Reports of Cases by John Bayly Moore, Joseph Payne 1813.

It would seem to be unwise to take everything Lord Coke wrote on trust.

• Here’s the Abridgement Volume 4 reference.
• And here is a selection of Coke’s writings including the Non Obstante case at page 423 et seq
The selected writings of Sir Edward Coke – Online Library (pdf)

Magna Carta 1297 Chap 30
“All merchants, unless they have before been publicly prohibited, shall have safety and security in going out of England, and in coming into England, and in staying and in travelling through England, as well by land as by water, to buy and sell, without any unjust exactions, according to ancient and right customs, excepting in the time of war, and if they be of a country at war against us: and if such are found in our land at the beginning of a war, they shall be apprehended, without injury of their bodies or goods, until it be known to us, or to our Chief Justiciary, how the merchants of our country are treated who are found in the country at war against us: and if ours be in safety there, the others shall be in safety in our land.”



The Brexit court case (Miller/Santos): Link to extracts

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Our sister blog Thinking Legally is publishing digested versions of the Brexit High Court case R (Miller and Santos) v Secretary of State for Exiting the European Union. The first two days currently have extracts from Lord Pannick QC (for Gina Miller) and James Eadie QC (for the Government). Material will be added later and the third day is forthcoming.

First day: Thinking Legally 1

Second day: Thinking Legally 2

Third day: Thinking Legally 3.

Here are some Brexit pieces on Al’s Law.

The case: full (uncorrected) transcripts
The first day transcript 13 Oct of the Miller/Santos court case is here (MoJ pdf).
• The second day transcript: Full day transcript for 17 October 2016.
• Third day Full day transcript for 18 October 2016.
• All available at the Ministry of Justice

The Brexit High Court case: actually Parliament already holds all the cards

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There is a paradox at the centre of the great Brexit High Court case. The applicants demanding a parliamentary vote on leaving the EU assert the doctrine of parliamentary sovereignty – yet to gain their point they have to prove a piece of parliamentary legislation can be overthrown at the whim and say-so of the Prime Minister – by issuing her EU exit notification under Article 50 of the Lisbon Treaty.

But Brexit cannot occur in any effective form without Parliament’s clear and overt agreement – enshrined in legislation. A pro-EU Parliament is in a powerful position, but Theresa May and her Three Brexiteers are not rushing to inform MPs and Peers of the strength of their hand.

The point is that the European Communities Act 1972 is a piece of sovereign legislation – and it will remain intact after the Article 50 notification goes out – and even after Britain leaves the EU if Parliament decides to leave it there. If Parliament says so, it will remain good law, actionable in the British courts and indeed in the Court of Justice of the European Union.

Mrs May can issue her Article 50 notice under Royal prerogative, break with the EU if she wants, but the legislation stays in place – forever, if that is what Parliament wants. Furthermore it can continue to be effective law for as long as the EU continues to exist if that is the will of Parliament. Britain could be outside the EU – yet governed by its treaties, laws, Court of Justice decisions. It could all continue to apply and the UK courts will (or should) apply it insofar as it is practical to do so.

That is because, to hammer home the point, Parliament is sovereign – and the meaning of parliamentary sovereignty is that British courts will recognise the legislation that passes through Parliament and is signed into law by the Monarch (see Edinburgh and Dalkeith Railway Company v John Wauchope).

Now, Mrs May has offered a Great Repeal Bill so Parliament can sweep aside the ECA – but she hasn’t pointed out that Parliament need not sweep it aside at all if it doesn’t want to (otherwise why have a “repeal” Act?). If Parliament wants Britain to be governed by EU law it can be. Which puts Parliament in a powerful position to amend the ECA (via the Great “Repeal” Bill) to dictate the nature of Britain’s continuing relationship with the EU – soft Brexit, hard Brexit, European Economic Area membership or some other system. Or it can leave Britain in the, admittedly anomalous position, of being a sovereign nation governed in part by foreign law. Read the rest of this entry

The Brexit Great Repeal Bill – a rather cunning ploy

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Note: The High Court has been unpersuaded by the sort of arguments set out below and has now ruled that the Government does not have power to issue its Article 50 notification. The post nevertheless remains relevant regarding the background and possible political implications of the judgment. The 3 November 2016 judgment is available here.

British Prime Minister Theresa May’s announcement of a Great Repeal Bill to set the seal on Britain’s march out of Europe has not received much good press (or good blog, if that’s a thing) among the legal pundits. “No news here”, “inevitable, really”, “bound to have happened at some point” – this has been the general tenor of informed opinion on the matter.

Yet for some reason informed opinion has failed to recognise it as a remarkably clever wheeze that manages to shoot a number of Opposition and Anti-Brexit foxes with one twitch on the trigger. It has undermined the legal case for giving Parliament a direct say on whether Britain leaves the EU and helped shift the political debate to whether Parliament should merely have “oversight” of the process or a say in the final form Brexit would take.

So Ed Miliband’s comments this week included this: “It would be a complete outrage if May were to determine the terms of Brexit without a mandate from parliament. There is no mandate for hard Brexit, and I don’t believe there is a majority in parliament for [it] either.” This is far from a demand for an In/Out vote for parliamentarians before Article 50  notification of EU exit is issued under Royal prerogative in March.

Brexit Secretary David Davies was at pains in his statement this week (October 10) to point out that a vote on the Great Repeal Bill will involve plenty of debate on the issue – but not offer MPs to vote against Brexit: “This Bill is separate issue to when Article 50 [notice of EU exit] is triggered … it [the Bill] won’t take us out of the EU.”  Read the rest of this entry

Bonfire of EU rights: Bring on the Brexit bureaucrats!

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So what happens after Theresa May’s Great Repeal Bill and Brexit? A disturbing prospect has arisen of a bonfire of legal rights currently held by British citizens could be brought about on little more than the say-so of government ministers. No parliamentary debate, little likelihood of votes by MPs, rights lost by administrative order rather than new laws passing through both Houses of Parliament.

Here is the plan: Given there are many legal rights enshrined in UK law that derive from the European Union and which, under the Great Repeal plan, will remain in effect after Britain leaves, an efficient way must be found to comb through them and disapply them where necessary. It could take mammoth parliamentary sessions passing complex repealing legislation. Instead, and rather chillingly, Conservative barrister Martin Howe QC (among others) has said ministers should be “given powers” to disapply them bit by bit as and when it is deemed appropriate.

So Parliament will be asked to pass a piece of primary legislation, possibly in the Great Repeal Bill itself, handing those powers to ministers, in other words allowing the ministers to repeal or disapply European law at will through secondary legislation, probably statutory instruments (see below). It will be “the quickest way of taking the necessary decisions … to reemploy or replace them” he told BBC Radio 4’s Unreliable Evidence 14 Sept 2016.  

But giving such powers to the Government would in effect leave whole areas of law at the mercy of ministers including employment and equality rights, privacy and consumer rights, environmental law, copyright protections, safety law, food hygiene and many laws affecting business. It is difficult to establish how much British law is driven by the EU but says this:

“An estimated 13% of Acts [primary legislation] and Statutory Instruments have an EU influence, whereas that rises to 62% when EU regulations are included in addition to Acts and Statutory Instruments.”

So, if all this is open to repeal or amendment by statutory instrument, MPs may as well go home for the duration. There will be hardly any other business and in effect the Government will be able to pass wholly new legislation in large areas of law – presumably not quite the victory for  the sovereignty of Parliament (not Government) that some Brexiters said they wanted. The proposal is constitutionally dubious, impractical – and wholly oppressive.

But does this plan even make sense? In particular what about all the EU law that is not part of the 13% that has been rendered into British legislation – the Regulations, Decisions and rulings of the Court of Justice of the European Union at Luxembourg? If FullFact is right, this must make up getting on for 40% of UK law – yet it is not written into our legislation and so can’t obviously be “repealed” by Parliament or government ministers. What will happen to it all? Read the rest of this entry

Why the sovereign UK Parliament has no backdoor exit out of Brexit

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Note: The High Court has now ruled that the Government does not have power to issue Article 50 notification. The 3 November 2016 judgment is available here.

Britain’s Prime Minister Theresa May has said there will be “no attempts to sort of stay in the EU by the back door”. She’s right. Those anti-Brexit voices hoping that a “sovereign UK Parliament” has a constitutional right to halt May’s European Union exit plans are wrong. A debate and vote by MPs would have no more constitutional weight than, let us say, the “advisory” referendum of June 23 (arguably rather less). Nor does the Prime Minister have a duty to give MPs a vote before she issues her withdrawal notice to the European Council under Article 50 of the Lisbon Treaty.

But if and when May does that, she will be entering a complicated constitutional maze – rooted in a treacherous political quagmire – with no predictable way through. Britain could be in limbo with Parliament and Government unable to agree, judges unable or unwilling to give clear guidance, a crisis “Brexit election” – which will resolve nothing and will not get May out of the hole left by her predecessor.

Wiser heads than this blogger have written at length on these issues, particularly regarding whether Parliament has a final say in taking Britain out of the EU. Unfortunately they have come to diametrically opposed views – with others taking up positions of various polarised degrees around the unsquared circle that is Britain’s Brexit crisis. What follows is simply an attempt to give some guidance through the maze.
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