Category Archives: EU law

Brexit case Miller/Santos: third day digest

Here are some of what seem to this writer crucial exchanges during the third day of the Brexit High Court case R (Miller and Santos) v Secretary of State. They concentrate on exchanges between the judges in the case and the lawyers. The original runs to 160 pages. The digested version of the first day is here. And the second day is here. The links to the transcripts appear at the bottom along with quoted cases and comment. (Note, some page numbers are included; they come at the bottom of the relevant pages ie refer to the text above).

The third day of this case (Oct 18)

James Eadie QC on how the Article 50 notification process would work. He notes “there will on any view be considerable further Parliamentary involvement in the future” to which the Lord Chief Justice replied “Mm-hm”.

MR EADIE: [I]f there was an Article 50(2) withdrawal agreement, that would be a treaty between the United Kingdom and the EU.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: As such, it is likely that it will come within the procedures in CRAG [Constitutional Reform and Governance Act 2010]. … It will be a treaty, but I say likely to fall within the procedures within CRAG, because CRAG, like the Ponsonby memorandum which it sought to embody … CRAG only applies to treaties which are subject to a formal process of ratification. See, amongst other things, section 25(3) and (4), and indeed the process of ratification which is the cornerstone of the Act in section 20. Now, almost all treaties are, but not all treaties are, subject to ratification. In other words you can on the international plane enter into an agreement without ratification necessarily following … those agreements do happen but they are pretty rare, and it is considered very likely that this agreement, if entered into, in other words the 50(2) agreement, would be a treaty requiring ratification. Of course one can’t exclude the theoretical possibility that it wouldn’t be.

Eadie describes the “double negative” procedure whereby the Treaty is placed in both Houses of Parliament for ratification or rejection. He agrees with the LCJ that “in the contingency that there was an agreement, Parliament could say no”.

MR EADIE: It is ultimately dependent upon the agreement of the parties to the treaty, whether they want it to be

page 6

subject to ratification or not. But as I say, the view within government is that it is very likely that this treaty will be subject to ratification process in the usual way. Most of them are. It is a pretty rare event for the things to take effect immediately upon accession, as it were. Continue reading

3 Comments

Filed under Analysis, Comment, Constitution, EU law, Human rights, Immigration law, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics

The Brexit court case (Miller/Santos): Day two digested

Here is the second part of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. They try to avoid simply setting out presentations and disquisition of cases and look more at questions put by the judges in the case and the answers. Nevertheless they (will) give a fairly full idea of what was going on, particularly for those not wishing to read the 580-odd pages of the transcript. The links to the transcripts appear at the bottom along with quoted cases and comment. The digested version of the first day is here. And the third day is here.

Note: This is a work in progress mainly containing Eadie’s second day arguments on behalf of the Government at present – but more will be added.

The second day of the case (Oct 17)

Ms MOUNTFIELD: Since the passage of the European Communities Act, no EU treaty has ever been ratified without prior Parliamentary authority, and I submit that that is necessary because of the two otherwise inconsistent constitutional principles. The Crown can make treaties, but not if, or to the extent, that they confer rights or impose liabilities in domestic law, or withdraw rights and liabilities in domestic law.  I say that the consequence of that is that while the European Communities Act is in force, the prerogative power, either to make further treaties or to amend treaties, or to withdraw from treaties is impliedly abrogated, because otherwise it would be the Crown and not Parliament which would be conferring or withdrawing rights.If there is any doubt about that, section 2 of the European Union Act expressly provides that the Crown may not ratify a treaty which amends or replaces the existing treaties without Parliamentary authority, through various procedures.

I submit that since the purpose of that provision is to prevent the Crown from altering the foundations of EU  law as it applies within the UK without Parliamentarysanction, and we have quoted William Hague introducing the 2011 Act saying that, by necessary implication, that restriction extends to any act of the Crown which would withdraw from or revoke those treaties without  Parliamentary sanction, and thereby remove directly enforceable rights.

I don’t have more time to develop that argument in detail, but I would invite the court to consider  carefully the submissions on this in our skeleton argument at paragraphs 29 to 41 and 47 to 50. I then turn to my fifth proposition, which is thatnotification of withdrawal from the EU, using the prerogative, would be unlawful because it would be  ultra vires the Bill of Rights. … The relevant provision is very well known, the late dispensing power.

“The pretended power of dispensing with laws or the execution of laws by word    regal authority as it had been assumed and exercised of late is illegal.”

… I invite you to find that the relevant definitions of “dispense” in this context are to forego or to disregard; and to execute a law or purpose is to put it into effect.  So to forego or to disregard the putting into effect of a law or the purpose behind the law. So for this limb of my submissions, I have to submit that in practical terms, the putting into effect of the purpose of the European Communities Act, that purpose being to enlarge the EU by having the UK as a member of it, would be foregone or disregarded if a minister of the Crown were to act so as to require the UK to leave the EU.  So too would the purpose and putting into effect of many other laws, like the name    European Parliamentary Elections Act 2002.

Page 11

I want to take your Lordships, I am conscious of the   time, to three authorities which support this   submission. The first is the case of  Proclamations …  of course it pre-dates the Bill of Rights. But I want to show you it, because it is an example of the pretended power, or gives an example of the pretended power of regal authority, which Lord Coke gave as an example of a legal action, to which in my submission the Bill of Rights was referring when it said this these dispensing powers had been used, assumed and exercised, illegally before it was brought in to force. Lord Coke said: “We do find diverse precedents of proclamations which are utterly against law and reason and for that void.” [Coke continued:]

“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.”

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.

MR EADIE [for the Government]: The prerogative, it has often been said, is the residue of powers left in the hands of the Crown. We submit that words need to be added to the end of that description of the prerogative and the correct and true principle is that the prerogative is the residue of powers left in the hands of the Crown by Parliament. That is true as a general proposition. It is all the more true in circumstances in which Parliament has decided to impose some, but specific, controls in the relevant area, where the prerogative operates.

LORD CHIEF JUSTICE: But the basic principle is, it is reflected in the cases dealing with our adherence to the European Convention before the Human Rights Act; that if the Crown enters into a treaty, no rights can be derived by citizens under that treaty as a matter of domestic law and so it can’t affect domestic law, so you don’t quarrel with that principle.

MR EADIE: I don’t, I don’t quarrel with that basic principle.

THE LORD CHIEF JUSTICE: Okay.

It is accepted by everyone that if the Crown enters into a treaty it has no effect on the rights of the citizen until it is given effect to by domestic law. But what is clear you are saying, I think, is that the opposite isn’t true; that you can withdraw from a treaty defeat the rights that Parliament has conferred.

Continue reading

3 Comments

Filed under Analysis, Constitution, EU law, Human rights, Immigration law, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics

The Brexit court case (Miller/Santos): Day one digested

Here are some of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. They try to avoid simply setting out presentations and disquisition of cases and look more at questions put by the judges in the case and the answers. Nevertheless they (will) give a fairly full idea of what was going on, particularly for those not wishing to read the 580-odd pages of the transcript. The links to the transcripts appear at the bottom along with quoted cases and comment.

Note: This is a work in progress mainly containing Pannick’s first day day arguments on behalf of Miller in favour of a vote in Parliament on issuuing the Article 50 Brexit notification.

Firstly, two extracts from the first day of this case (Oct 13)

Exchange between Lord Justice Sales and Lord Pannick QC (for Miller) at page 54/55 of the draft transcript:

SALES LJ: Am I right in thinking that you  say that the effect of the argument for the government  would be that there wouldn’t need to be a repeal of the  1972 Act or section 2 of it, it is just that the content  of the obligation in section 2, EU rights, would fall  away, because they would cease to be EU rights?
16   LORD PANNICK: Precisely. Your Lordship is very aware and  I am not going to enter into any political debate, but  your Lordship knows that the government have announced  that there is going to be a great repeal bill which is  to be produced some time in the next session. I say  that the consequence of the defendant giving  notification will be that at a point in the future, it  is inevitably the case that the United Kingdom leaves  the EU and the consequence of that, as a matter of law,  is that all of the rights enjoyed under section 2(1) and

page 55
section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say  nothing about that. It will not affect those questions.  Those rights will fall away as a consequence of the  United Kingdom leaving the EU. Because when we leave,  there are no treaty obligations. That is the whole  point of leaving. And indeed that is the government’s  intention. This is not a happenstance, this is the  whole point of notification. Notification is intended  to remove the current substance of section 2(1) and  3(1). Continue reading

2 Comments

Filed under Analysis, Business law, Comment, Constitution, EU law, Henry VIII powers, Human rights, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics

Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the new Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to “Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases”) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.
Continue reading

1 Comment

Filed under Analysis, Comment, Constitution, ECHR, Equal-opportunities, Equality, EU law, European Convention on Human Rights, Human rights, Law, Legal, Politics, Public law, Social welfare, UK Constitution, UK Law, UK Politics, Uncategorized

Neuberger, Charles’s black spider memos – and the coming constitutional crisis

Judges in Britain are not supposed to strike down primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.

For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk  “of judges arrogating to themselves greater powers than they have at the moment”.   Continue reading

Leave a comment

Filed under Analysis, Comment, Constitution, ECHR, EU law, European Convention on Human Rights, Human rights, Law, Legal, Media, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized

PLT Anti-Marketing cold-call blocking: not a ‘scam’ after all?

An attempt to close down a company accused by the UK Government of a cold-call blocking “scam” has hit something of a stalemate in the Court of Appeal. PLT Anti-Marketing Ltd charges £40 a year for a cold-calling and junk mail blocking service already available free from official providers. The court has quashed a judge’s finding that PLT breached regulations and Lord Justice Briggs has produced strong arguments in favour of the company despite an attempt by the Department of Business (BIS) to close it down.

Nevertheless PLT remains barred from pursuing its business as it wishes until a full trial – when judgment could turn against it. The litigation has so far been going on for more than a year and a half – during which time PLT has been able to continue charging current customers but not to take on new ones without telling them about the free service. The whole affair raises the issue of whether current legislation is adequate for dealing with alleged consumer scams of this sort.

The free cold-calling and direct mail blocking services are available from Telephone Preference Service (TPS – provided by Ofcom; see: Regulation 26 of the Electronic Communications (EC Directive) Regulations 2003) and the Mail Preference Service (MPS – offered by the Direct Marketing Association in co-operation with the Post Office). PLT takes the names of its paying customers and adds them to the free lists. It maintains a service for its customers to complain about any continued unwanted calls and mail, but that also links into the free official services. Customers continue to pay on a monthly or annual basis. 

The Department of Business (BIS) started investigating PLT in 2012. In April 2013 it issued a “public interest winding up petition” under Companies Act 1985 S.124A – and the matter has been bogged down in court hearings ever since.

Continue reading

Leave a comment

Filed under Analysis, Business, Business law, Comment, EU law, Law, Legal, Politics, UK Law, UK Politics

What are the perceived problems with the European Arrest Warrant?

The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned about 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? The issues that come up again and again are:  Continue reading

2 Comments

Filed under Criminal law, EU law, Human rights, Law, Media, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized