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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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Note: the Government has now (30 March 2017) published its Great Repeal Bill white paper here and it states that delegated legislation will be used to “correct” UK law so that the legacy of EU law can continue to operate (eg by removing references to EU institutions). EU law will therefore be enshrined as freestanding UK law. It has also produced the European Union (Withdrawal) Bill (July 2017) since when many people have raised the fears expressed in this piece. It also remains relevant regarding the sources of EU law and the complexity of enshrining them in UK law.

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 in the “Great Repeal Bill”, handing those powers to ministers, in other words allowing the ministers to repeal or disapply European law at will through secondary (delegated) 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 could 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 FullFact.org 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 delegated legislation, 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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(Alleged) torturers welcome to Britain – just pick up your certificate of immunity

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The lives of high profile war criminals, torturers and despots have just got a little easier. No longer need they strike Britain off the list of destinations when they fancy a foreign jolly out of fear that some officious busybody will spoil their fun by having them arrested for their crimes.

All they have to do is get the Foreign Office to declare them on a “special mission” and they become untouchable. They have immunity, not because the UK Parliament has given them immunity through a statute fully debated and passed by MPs and Peers. Instead a couple of High Court judges have declared they have immunity as part of English Common Law. As such immunity for those on special missions has always been the law.*

The High Court case was prompted by a visit to Britain by Lieut General Mahmoud Hegazy, the director of the Egyptian Military Intelligence Service blamed for the “atrocities” that arose from the crushing of a demonstrators opposing the coup against Mohamed Morsi in July 2013. Hegazy came to Britain in 2015 to meet government ministers, but part of his “official” mission was a visit to a London arms fair, according to the Guardian.

On the face of it the judgment (R (Freedom and Justice Party) v the Foreign Office) – in favour of the Foreign Office position – flies in the face of the Government’s insistence in 2013 that it had the “firm policy of ending impunity for the most serious international crimes and a commitment to the protection of human rights”. On the other hand it does get the Government and state agents such as the police and Director of Public Prosecutions off an embarrassing hook when a torturer or despot comes calling on “official” business.

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Can’t get about? Get a taxi, disability benefit claimant told

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A man who says his anxiety and agoraphobia mean he cannot get to unfamiliar places unaccompanied has had his disability benefit claim rejected – on the grounds he could always get a taxi. The Devon man was denied Employment and Support Allowance (ESA), a decision upheld by a tribunal which said:

“We found on the balance of probability that he would be able to use a taxi for example to get to an unfamiliar place and that therefore he would be able to get to a specified place with which he was unfamiliar without being accompanied by another person.”

In evidence to the Upper Tribunal, where the man, known as AB sought permission to appeal, a lawyer for the Department of Work and Pensions insisted “where a claimant is taken to a destination in a taxi the taxi driver, who is simply providing a paid-for transport service, cannot be said to accompany that claimant”.

An Upper Tribunal judge has now referred the case back to the First-tier Tribunal raising the question of whether “in such circumstances, such a journey could not be described as one made ‘without being accompanied by another person’ given the presence of a taxi driver”.

The issue may be crucial to interpreting one of the ESA tests used to qualify for financial support for those who are unable to work. Number 15(c) on a list set out in the Employment and Support Allowance Regulations 2008 says: “Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person.”  Read the rest of this entry

Home Office plays the long – and costly – game to deport 70-year-old widow

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In these straitened times the Ministry of Justice has had to crack down on the costs of the UK legal system. But there is one area where apparently money is no object: chasing 70-year-old Pakistani widows from Britain’s shores.

Even when their chums at the Home Office are on a two-year losing streak during which judges twice rejected the case for removing Razia Begum as “disproportionate” given she retains no ties in Pakistan, one last desperate (and expensive) throw of the dice was bankrolled by the public purse. 

Thus it was that Home Office lawyers fetched up at the Court of Appeal a couple of weeks ago demanding another go at removing Mrs Begum, even though they had missed an appeal deadline a year and a half ago – owing to “mere oversight”. Their claim for an extension was based on the notion that they “had a good case” against Mrs Begum.

But “the need for litigation to be conducted efficiently and at proportionate cost” is a principle of legal procedure far pre-dating current MoJ rigours. So the notion that the Home Office could, at great expense, lay out its case before two Lord Justices to persuade them it was good enough for it to proceed, then at some later point lay out the whole case again before yet more learned justices during the substantive appeal was not one likely to find favour in the Court.
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Gunman v gander: whose side is the law on in the Sandon goose case?

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So is it illegal to shoot a goose? Police are investigating the alleged drive-by shooting of the Sandon goose some (possibly only the media) called Grumpy Gertie (though it was actually a gander).

Gertie (if that was actually his/her name) was of unknown origin but had housed itself in an old phone box in the Hertfordshire village. It was renowned for adopting ducks and ducklings, hissing at strangers, amusing locals and was generally considered a good egg. There is even, apparently, a £250,000 reward out for the alleged killer. But what is the offence that may have been committed?

Certainly under the Wildlife and Countryside Act 1981 Section 1(a) it is an offence if someone “kills, injures or takes any wild bird”. But there are exceptions allowing hunters to go about their jolly sport. Sandon sits within prime huntin’ and shootin’ land, so maybe someone disappointed in their bag of wildfowl for the day decided to pop one off at poor old Gertie (Gary?).

If so, he should have checked the schedule to the act of “birds that may be killed or taken”, which does include various sorts of geese. Canada Goose? Go get ’em. Greylag? Pinkfooted? White Fronted? They are there for the taking. But the breed of common farmyard or Emden goose of which Gertie (Gary? We’ll call him Gary) was a member? Completely off limits to the sporting gun fraternity.
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