Saturday, 20 May 2017

General Election - What will happen to Fixed-term Parliaments and Human Rights

Fixed-term Parliaments:

The Conservative Party manifesto commits to repealing the Fixed-term Parliaments Act 2011.  The Act was passed to underpin the Conservative - Liberal Democrat coalition established after the 2010 General Election.  It sought to prevent the Prime Minister - (then David Cameron) - from "calling an election" at a time of his choosing.

As we have seen recently, the Act did not prevent Prime Minister Theresa May from getting the general election she wanted but she had first to secure a favourable vote from the House of Commons. 

Friday, 19 May 2017

Brexit and the Party manifestos

The political party manifestos for the 2017 General Election have been published and they offer rather different positions regarding Brexit.  The Conservative and Unionist Party - (unlike 2015, they use their full title in the manifesto) - seeks a "deep and special partnership" with the EU but also states starkly that "no deal is better than a bad deal."  The Labour Party accepts Brexit but puts forward its case for a new approach to negotiations.  The Liberal Democrats will fight against a "hard Brexit" and offer a referendum on the deal reached with the EU.

The 2 year Article 50 clock is already ticking - Article 50(3) TEU -  and the immense amount of negotiation to be conducted is scheduled to begin on 19th June and negotiations will be conducted in accordance with EU Council guidelines - (previous post). The 2 year period is intended to be used to "negotiate and conclude an agreement ... setting out the arrangements for ... withdrawal, taking account of the framework for ... future relationship with the Union."  It is not entirely clear what a framework for future relationship entails but it seems likely that it will have to address fundamental points such as the UK's financial settlement and the rights of EU citizens in the UK and UK citizens in the EU(27).  Whatever the final content of the withdrawal agreement, much detail will remain to be addressed after the 2 year period expires.  Any view that everything can be concluded by March 2019 appears to be unrealistic.

Thursday, 18 May 2017

The Moors Murders ~ Death of Brady

At Chester assizes in 1966, Ian Brady (or Ian Stewart-Brady) and Myra Hindley were convicted of murder.  Described by the trial judge - Mr Justice Fenton Atkinson - as "two sadistic killers of the utmost depravity" - they were sentenced to life imprisonment and never released on parole.  For murder, a life imprisonment sentence had become mandatory following the abolition of capital punishment for murder in 1965 - Murder (Abolition of Death Penalty) Act 1965 (as originally enacted).  Hindley died in prison in 2002 and Brady died at Ashworth High Secure Hospital on 15th May 2017.

Tuesday, 16 May 2017

Brexit - Reflections on a pending divorce

: The UK prepares to leave the EU -  Some reflections on a pending divorce :

Accession to the European Communities:

In October 1971, doubts over many issues affecting Britain's future were aired in a House of Commons debate that lasted six days.  Hansard for 28th October 1971 records that the House of Commons approved the following motion by 356 votes to 244.

"That this House approves Her Majesty's Government's decision of principle to join the European Communities on the basis of the arrangements which have been negotiated."

 On 22nd January 1972 Ministers duly signed the European Treaties.  The European Communities Act 1972 received Royal Assent on 18th October 1972 and the UK acceded to the communities on 1st January 1973.

After 44 years of membership,

Friday, 12 May 2017

Friday roundup

Here is a brief Friday roundup of some legal items of interest.

Brexit - The European Parliament has published a study on the consequences of Brexit on acquired rights of EU citizens living in the UK and British citizens living in the EU-27.  This is a very important aspect of Brexit and it will have to be adequately addressed during negotiations with the EU.  It will be recalled that a considerable number of British citizens living in other EU member states were not permitted to vote in the 2016 referendum - see post of 24th May 2016.

Friday, 5 May 2017

EU Withdrawal ~ "divorce fee"

Updated 9th May

Remember the EU red bus?  "We send the EU £350 million a week - let's fund our NHS instead."  The £350 million per week was misleading and the statement regarding the NHS almost certainly had no true political intent behind it.

UK contributions as a member to the EU:

In February 2017 the government published European Union Finances 2016.  This is the 36th such document and describes the EU budget. 

Wednesday, 3 May 2017

Those unavoidable international courts

Updated 9th May

The United Nations has the International Court of Justice.  The World Trade Organization has a Dispute process including an Appellate Body.  Then there is the European Free Trade Area (EFTA) court and the Court of Justice of the EU (CJEU). These are all examples of international arrangements having specific processes for dealing with disputes.

Writing in The Guardian 3rd May 2017,  Helena Kennedy QC  says that -

Tuesday, 2 May 2017

Will the Withdrawal Agreement from the EU agreement require a referendum?

Will any future treaties agreed with the European Union (EU) require a referendum in the UK?   The Independent "Theresa May warned of fresh court challenge ..." indicates that Dr Andrew Watt, a former radiologist from Glasgow, has sent a letter before action – usually the first step in taking disputes to court – to the Prime Minister, in which he argues that section 2 of the European Union Act 2011 requires a referendum before the UK can leave the EU.

Article 50 TEU:

Article 50(2) of the Treaty on European Union states:

Monday, 1 May 2017

The EU is in charge ~ Article 50 TEU ~ the phased approach

The message that the European Council is in control of Brexit negotiations come over very clearly from the European Council guidelines for Brexit negotiations finalised on 29th April - previous post.

They refer to a "phased approach" to the negotiations and state that the "main purpose of the negotiations will be to ensure the United Kingdom's orderly withdrawal so as to reduce uncertainty and, to the extent possible, minimise disruption caused by this abrupt change."  Two phases are envisaged for the negotiations - described in this post as (1) Orderly withdrawal and (2) Future relationship.

The European Council is very much in overall control of the negotiating process and the Council reserves the right to alter the guidelines as necessary.  It is crystal clear from the guidelines that a non-member of the EU "cannot have the same rights and enjoy the same benefits as a member."

Sunday, 30 April 2017

Special European Council Meeting 29th April 2017

The European Council has approved guidelines for the Brexit negotiations - see the Council announcement and see European Council (Art 50) Guidelines.

The EU (27) will present a united front in the negotiations which will be conducted in transparency and as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately.  The EU will engage with the UK exclusively through channels set out in the guidelines and negotiating directives. The European Council will remain permanently seized of the matter, and will update the guidelines in the course of the negotiations as necessary. Negotiating directives will be adjusted accordingly. 

Saturday, 29 April 2017

27th April ~ Bills receiving Royal Assent

The Dissolution of the 2015-2017 Parliament is on 3rd May.  The General Election on 8th June.  The following Bills received Royal Assent on 27th April.  This is the result of the so-called "Wash Up" process.

Thursday, 27 April 2017

Manslaughter by motor vehicle ~ Death of Police Officer

On 5th October 2015, Constable David Phillips of the Merseyside Police was killed when he was struck by a stolen vehicle, driven at speed towards him by Clayton Ronald Williams, who was then aged 18.

On 21st March 2016, in the Crown Court at Manchester (William Davis J and a jury) Clayton Williams was convicted of manslaughter. He was sentenced for that offence and also for offences of burglary and aggravated vehicle taking resulting in death, to which he had previously pleaded guilty.  The sentence was - imprisonment for 20 years for the manslaughter and concurrent terms of 2 years for burglary and 8 years for aggravated vehicle taking resulting in death.  He was also disqualified from driving for life.

Saturday, 22 April 2017

Road Traffic ~ Speeding penalties ~ Dangerous driving

Speeding fines are subject to new sentencing guidelines which are effective from 24th April 2017 - Sentencing Council Guidelines - Speeding.   For an explanation of Fine Bands - see here.   The driver with a recorded speed of 41 to 50 mph in a 30 mph limit will face a Band B fine and 4 to 6 penalty points.  Disqualification is also possible.

Here are two recent cases involving dangerous driving.

Tania Chikwature:

The offence of dangerous driving is defined in the Road Traffic Act 1988 section 2 and the meaning of dangerous driving is set out in section 2A.   One recent example of dangerous driving is that of Tania Chikwature who was driving a Nissan Qashqai in December 2016.  The website of the Cambridgeshire Police has details of the case including video taken from the cab of a lorry which was overtaken by Chikwature on the approach to a roundabout.

Thursday, 20 April 2017

General election on 8th June

There WILL be a general election on 8th June.  The preceding post looked at the requirements for an "early election" in the Fixed-Term Parliaments Act 2011 and the necessary majority was secured in the House of Commons on Wednesday 19th April.  MPs approved the motion for an early general election by 522 to 13.  The support of two-thirds of all MPs required for this motion to pass was reached - Parliament 19th April.

Parliament has to be dissolved 25 working days before Polling Day (8th June).  This means that Parliament will be dissolved on Wednesday 3rd May.

Tuesday, 18 April 2017

Prime Minister wants a general election on 8th June 2017

There MAY be a general election on 8th June 2017 - BBC NEWS 18th April.  This will be subject to securing a vote in the House of Commons for an early election as required by the Fixed Term Parliaments Act 2011

Section 2 of the Act specifies when an early election may be held.   An early parliamentary general election is to take place if -

(a)  the House of Commons passes a motion in the form set out in subsection (2), and

Monday, 17 April 2017

Tony Blair, the Iraq War and Aggression

The war against Iraq began on 20th March 2003.  It caused deep divisions among the people of the UK.  On 18th March 2003, the House of Commons - in which the Labour Party held a large majority - passed a motion supporting the war - 396 votes to 217.

According to The Guardian 16th April 2017, an attempt to bring a private prosecution of Tony Blair for the crime of aggression was rejected by a District Judge (Magistrates' Courts) at Westminster Magistrates' Court.  The judge refused to issue a summons but, as far as I can ascertain, the reasons of the judge for doing so were not published.  The Guardian report goes on to say that the present Attorney General - Jeremy Wright QC - is involved in proceedings in the High Court in which the District Judge's decision is being challenged.  The Attorney seeks to stop the prosecution and the basis for doing so is that the crime of aggression is unknown to English law.

Friday, 7 April 2017

School attendance ~ Isle of Wight Council v Platt

The Education Act 1996 section 444 defines two offences applying to parents of children of compulsory school age.

(1)  If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(1A)  If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

The Supreme Court

Tuesday, 4 April 2017

Police Bail Pre Charge ~ A note on changes to the law

The Policing and Crime Act 2017 is yet another large Act comprising 184 sections (divided into 9 Parts) and 19 Schedules.  A further 204 pages of Explanatory Notes have been published.  Police Powers are the subject of Part 4 of the Act which encompasses several aspects of the law including amendment of the law relating to PRE-charge Bail.

The problem:

A considerable number of cases have raised concern about the length of time that individuals have been subjected to Police Bail whilst investigation continues.  Conditions attached to such "pre-charge bail" have, at times, been very onerous.  One high profile example was the case of BBC Presenter Mr Paul Gambaccini who was falsely accused of a sexual offence - see Telegraph 10th October 2014 and The Independent 3rd March 2015.  Apart from the trauma of being falsely named as a suspect, Mr Gambaccini was suspended from work by the BBC.

Saturday, 1 April 2017

Gibraltar - a rock and a hard place

Updated 5th April 

The DRAFT guidelines of the European Council for the forthcoming Brexit negotiations contain much that is sensible but paragraph 22 is an "elephant in the room":  "After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom."

This post offers some tentative thoughts on this paragraph which brings into the arena the long-standing tension between the UK and Spain over Gibraltar. 

Friday, 31 March 2017

EU Commission - Brexit negotiation taskforce

The previous post looked at the DRAFT guidelines  issued by the European Council for the conduct of Brexit negotiations with the UK.  The European Commission will do most of the actual negotiation.

The EU Commission has published details of the negotiating team (or Taskforce) that will be handling the UK's Brexit negotiations - see Taskforce on Article 50 negotiations with the UK   The EU negotiating team will be head by French politician Michel Barnier.

The European Parliament has published Article 50: How the future of EU-UK relations will be decided and, on 29th March, a DRAFT was published of Conditions for approving UK withdrawal agreement.  The draft will be debated and voted on by the European Parliament on Wednesday 5th April. It attaches great importance to fair treatment of EU-27 citizens and stresses the need for reciprocity and non-discrimination between UK citizens living in the EU and EU citizens living in the UK.

On 1st March the EU presented a White Paper on the future of Europe: Avenues for unity for the EU at 27.  This paper has relevance because it looks at ways in which the EU will develop towards 2025 and those will be crucial years for the UK as it departs from the EU.