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Tag Archives: European Union

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

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Our sister blog Thinking Legally has published digested versions of the Brexit High Court case R (Miller and Santos) v Secretary of State for Exiting the European Union. 

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 High Court 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The High Court case has now been superseded by the Supreme Court case (December 2016). Transcripts and other material can be found here on the Supreme Court site. A report/analysis of the Supreme Court case is here: What if James Eadie was right?

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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

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.
Read the rest of this entry

Anderson and surveillance: RIPA is still the law – and it’s being broken

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The Anderson report on surveillance (according to the media) suggested that UK security services should “keep” their powers of bulk surveillance – the downloading and storing of communications and internet material, basically without limit except the limitations of the technology they have. The report has come out in the same week that the Metropolitan Police were unable to confirm or deny (for which read “confirmed”) that dummy mobile phone towers, or Stingers, were lifting material from the phones of passers-by, apparently ad hoc and without specific investigatory purpose.

But it is really not clear that bulk surveillance powers do have legal sanction in Britain – and nor does Anderson say unequivocally that they do. Which is why, under Theresa May’s new “snooper’s charter” (the draft investigatory powers bill), she will be seeking to legalise something she claims is perfectly legal already – but really isn’t.

So what is the law? The key piece of legislation is the Regulation of Investigatory Powers Act 2000 (RIPA) – which Anderson wants replaced. This is often referred to as source of surveillance powers for just about anyone from GCHQ to schools checking on the residency of parents of local authorities looking at our recyling.

In fact it is intended to control, curb, restrict and limit surveillance – and in particular it is intended to prevent the state’s (and private bodies’) disproportionate bulk downloading and retention of the private information – which is just what the security forces do now as far as they technically can and which they will be able to do far more effectively under the investigatory powers bill, requiring ISPs, Google and the rest to keep such information for them. Read the rest of this entry

Conservatives’ Bill of Rights: suddenly they are all relativists now

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Quick, we need some long-held, deeply felt convictions – and we need them fast. You know: stuff we can bung in a written UK constitution based on centuries of history, shared values and culture – that sort of thing. Why? Because that way we can keep the European Court of Human Rights off our backs.

The Conservative Party, you see, has noticed that the Strasbourg court – known for riding roughshod over UK government actions – is sometimes willing to let countries get away with things. But only if those countries have long-held, deeply felt convictions that emerge from their history, shared values and culture – and are written into their constitution.

Britain doesn’t have a written constitution, hence the new “UK Bill of Rights and Responsibilities” that the Conservatives are working on.

The rationale being used for the new Bill of Rights – that human rights are relative, not absolute – would not be out of place if uttered by a 1970s leftie lecturer at a bog-standard polytechnic. Here is arch-Tory Charlie Elphicke introducing his Bill of Rights (which will be the basis of the official Conservative Party version) in a parliamentary Private Member’s Bill last year:

The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights.”

So Strasbourg judges have been too objective, apparently. Elphicke is wholly insistent on this subjectivity point, rejecting the principle that judges should come to decisions on a straightforward objective reading of the law. They should take account of each country’s history, shared values and culture before making decisions on their governments’ alleged breaches of human rights.

Read the rest of this entry

Theresa May and the European Arrest Warrant: Assange awaits her decision

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British Tory MPs are furious that the Home Secretary Theresa May has gone soft on the European Arrest Warrant. Among others also annoyed at the UK Government’s U-turn, backing a new version of the EAW, will be Julian Assange – one of the victims of the measure that makes it easier to extradite alleged criminals without too much legal protection in their host countries. Assange, as explained below, might have benefited from a more nationalistic, less Eurocentric extradition regime.

The EAW is one of the 133 European Union law and order measures in the European Union Lisbon Treaty that May opted out of – and also one of 35 she wants to opt right back into, though in a reformed version. The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned by human rights issues. Enfield North MP Nick de Bois for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. (Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? Read the rest of this entry

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