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Inquests - legal aid for families

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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhDVXwHnYJIr0uR46FJSh6beh4tKQ1wGFn4Vdy5SOX8hOjSratdIQ32qZdZvvAwhPDXLqyWXYTTJh1BXkITO71P_7GZNNIVPOG0PLU03wv8biVd10H6Mvz_1cb9emsl7fr64vdI5p6YQDR5/s1600/Coroner+Court+sign.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="176" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhDVXwHnYJIr0uR46FJSh6beh4tKQ1wGFn4Vdy5SOX8hOjSratdIQ32qZdZvvAwhPDXLqyWXYTTJh1BXkITO71P_7GZNNIVPOG0PLU03wv8biVd10H6Mvz_1cb9emsl7fr64vdI5p6YQDR5/s200/Coroner+Court+sign.jpg" width="200" /></a></div>
An amendment to the <a href="http://services.parliament.uk/bills/2016-17/policingandcrime.html">Policing and Crime Bill</a> aimed at getting parity of representation for families at inquests failed in the House of Commons on 13th June. 
 
At the end of the debate Mr Andy Burnham MP said - "It is disappointing that the Government were not even able to accept the principle that we should have equal funding. It would have been a step forward if they had been able to do so. I understand that they are asking <a href="http://www.anglicannews.org/news/2016/04/bishop-james-jones-to-report-on-hillsborough-families-experience.aspx">Bishop James Jones to look at these matters</a>, but of course, this issue goes much broader than Hillsborough. It is about fairness in our criminal justice system, and I believe that the Government are missing an opportunity by not acting on it quickly. Quite frankly, it is obscene for police forces to continue to spend large amounts of money on hiring aggressive lawyers to challenge families in the way that they do at inquests. This scandal should not be allowed to continue, and we in the Opposition will continue to fight against it until there is real change." 
 
<a href="https://www.blogger.com/null" name="more"></a> 
 
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The <a href="https://hansard.parliament.uk/commons/2016-06-13/debates/1606138000001/PolicingAndCrimeBill">full debate is HERE</a> and the <a href="http://www.theyworkforyou.com/debates/?id=2016-06-13a.1510.2&s=andy+reed">voting for individual members is HERE</a>.   The new clause 63 (now defeated) is set out below.  It would have made funding for legal representation dependent on a recommendation by the Police and Crime Commissioner for the Police Force under investigation.  This would hardly have been seen as satisfactory. 
 
<a href="https://www.blogger.com/null" name="more"></a> 
 
Lack of legal representation at most inquests is a very serious issue for families particularly when a public authority is amply represented.  
 
The Policing and Crime Bill has now gone to the House of Lords where I hope that this matter will be revisited but with a view to providing funding for legal representation at inquests where ANY public authority is represented by lawyers.</div>
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New clause 63—Police and Crime Commissioners: parity of funding between police and families at inquests—</div>
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“(1) A police and crime commissioner has the duties set out in this section when the police force they are responsible for is a Properly Interested Person for the purposes of—</div>
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(a) an inquest into the death of a member of an individual’s family, or</div>
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(b) an inquest into the deaths of members of a group of families,</div>
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under the Coroners Act 1988.</div>
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(2) The police and crime commissioner must make recommendations to the Secretary of State as to whether the individual’s family or the group of families at the inquest require financial support to ensure parity of legal representation between parties to the inquest.</div>
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(3) If a police and crime commissioner makes a recommendation under subsection (2) then the Secretary of State must provide financial assistance to the individual’s family or the group of families to ensure parity of funding between families and the police.</div>
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(4) The individual’s family or the group of families may use funding authorised under this section solely for the purpose of funding legal representation at the inquest.”</div>

Inquests - legal aid for families

An amendment to the Policing and Crime Bill aimed at getting parity of representation for families at inquests failed in the House of Com...

8:37:00 PM

UK and the EU (12) - Final post of this series

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhgMCjXfBnHjhw0bODu3h_UVfRPIvvr4dpxRPGN9xIijP7jMG_iF4gJix1pBBzG87_XJC__CWbO9NiiE54ij4Se1mGVS40YffO3ao0XF0VD5zjt5Ot5Xo7q8MJYFEhV2hB5S9_d5u87lLbu/s1600/EU+referendum.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="112" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhgMCjXfBnHjhw0bODu3h_UVfRPIvvr4dpxRPGN9xIijP7jMG_iF4gJix1pBBzG87_XJC__CWbO9NiiE54ij4Se1mGVS40YffO3ao0XF0VD5zjt5Ot5Xo7q8MJYFEhV2hB5S9_d5u87lLbu/s200/EU+referendum.jpg" width="200" /></a></div>On Thursday 23rd June, the United Kingdom will make its decision in the EU Referendum: Remain or Leave.  This series of 12 posts and an earlier post (<a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a>) are an attempt to present factual information to assist with what is undoubtedly a most difficult decision about the future of our nation. <a name="more"></a> I spent a considerable amount of midnight oil writing a longer piece setting out my view and the reasons for it.  It was an interesting exercise but it led me to the conclusion that it is not the role of a law blog to seek to persuade anyone to vote one way or the other.  I have therefore settled for setting down the links to the main official information issued by government and Parliament as well as links to the earlier posts in this series. Above all, cast your vote.  As Abraham Lincoln said - "Elections belong to the people. It's their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”  The main official information: <a href="https://www.blogger.com/null" name="more"></a> The results of the Prime Minister's negotiations with EU leaders are set out in <a href="http://www.consilium.europa.eu/en/press/press-releases/2016/02/19-euco-conclusions/">European Council Conclusions of 18 and 19 February 2016.</a>  This "deal" will only apply if the UK referendum is in favour of the UK remaining a member.  This <a href="https://www.slaughterandmay.com/media/2535330/brexit-essentials-renegotiation-of-the-uk-relationship-with-the-eu.pdf">analysis by Slaughter and May </a>takes a useful look at the deal.  The Referendum Act 2015 required that certain material be published to inform the referendum - <a href="https://www.gov.uk/government/publications/the-best-of-both-worlds-the-united-kingdoms-special-status-in-a-reformed-european-union">The best of both worlds: the UK's special status in a reformed EU</a> <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf">Alternatives to membership: possible models for the UK outside the EU</a>  <a href="https://www.gov.uk/government/publications/rights-and-obligations-of-european-union-membership">Rights and Obligations of EU Membership</a> Parliament has published - <a href="http://www.parliament.uk/business/publications/research/eu-referendum/">The UK's EU Referendum 2016 explained</a> and  <a href="http://www.parliament.uk/mps-lords-and-offices/offices/commons/commonslibrary/commons-library-news/eu-referendum-page/">EU Referendum: impartial information to help you decide</a> and - <a href="http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7213">Impact of an EU exit in key UK policy areas </a> The <a href="https://www.gov.uk/guidance/review-of-the-balance-of-competences">Balance of Competencies Review</a> conducted between July 2012 and December 2014 produced 32 reports.   This was an extensive examination of most key policy areas.  It looked at what the EU does and how it affects the UK. <div style="text-align: center;">: Earlier posts in this series :</div> 20th February - <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a> - including link to the deal secured by the Prime Minister UK and the EU (1) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-1-history-and-background.html">History and Background</a> UK and the EU (2) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-2-eu-treaties-key-points.html">The EU Treaties - key points</a> UK and the EU (3) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-3-parliament-commission-and.html">The Parliament, the Commission and the Court</a> UK and the EU (4) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-4-freedom-of-movement-of.html">Freedom of movement of persons</a> UK and the EU (5) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-5-referendum-people-need.html">Referendum - People need facts not slogans (Lord King)</a> UK and the EU (6) -<a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-6-will-brexit-be-simple.html">Will Brexit be a simple process?</a> UK and the EU (7) -<a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-7-your-rights.html">Your Rights</a> UK and the EU (8) - <a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-8-trading-bloc-or-emergent.html">Trading bloc or emergent State </a> UK and the EU (9) - <a href="http://obiterj.blogspot.co.uk/2016/05/uk-and-eu-9-monumental-referendum.html">A monumental referendum - information to assist</a> UK and the EU (10) - <a href="http://obiterj.blogspot.co.uk/2016/06/uk-and-eu-10-what-if-it-is-brexit.html">What if it is Brexit </a> UK and the EU (11) - <a href="http://obiterj.blogspot.co.uk/2016/06/uk-and-eu-11-more-on-what-if-it-is.html">The event horizon approaches - What if it is Brexit</a> <div class="MsoNormal"> </div>

UK and the EU (12) - Final post of this series

On Thursday 23rd June, the United Kingdom will make its decision in the EU Referendum: Remain or Leave. This series of 12 posts and an earl...

6:57:00 AM

Lord Judge ~ Ceding power to the Executive

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhHUGf27ZChPKUCSZGHvpxutJ2aHoMQg3FqwRKh4fukXUQ8mH3py6SL3lR8zrzmnXb1etDQuf02eRDfLmwzmAc04JnYznN_LqnCXA9bPZ-sK9Ij0hgb3QO4-W6CaXxlzIlAaH3Zkh-E8iYS/s1600/Lord+Judge+and+Henry+VIII.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="100" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhHUGf27ZChPKUCSZGHvpxutJ2aHoMQg3FqwRKh4fukXUQ8mH3py6SL3lR8zrzmnXb1etDQuf02eRDfLmwzmAc04JnYznN_LqnCXA9bPZ-sK9Ij0hgb3QO4-W6CaXxlzIlAaH3Zkh-E8iYS/s200/Lord+Judge+and+Henry+VIII.jpg" width="200" /></a></div>Most members of the public would be surprised to learn that Parliament frequently hands to Ministers massive powers to make legislation.  The outcome is an enormous volume of material and that is, in itself, a cause for concern.  Whilst Parliament exercises some controls over this "Ministerial legislation" it is more often than not quite minimal.  Even more concern arises from the insertion of Henry VIII provisions into many Acts of Parliament.  Here is a brief look at the issue. Henry VIII clauses: <a name="more"></a> The <a href="http://www.legislation.gov.uk/ukpga/2016/5/section/4">Childcare Act 2016</a> is, by any standards, a very short Act with a mere 8 sections.  The Act requires the Secretary of State to secure free of charge childcare for qualifying children of working parents for, or for a period equivalent to, 30 hours in each of 38 weeks in any year.   <div class="LegClearFix LegP3Container"> </div><div class="LegClearFix LegP3Container">To enable the Minister to do this he is given extensive powers to make "Regulations" and those regulations may, amongst other things, amend, repeal or revoke any provision made by or under an Act (whenever passed or made).</div> <a href="https://www.blogger.com/null" name="more"></a> This is an example of a so-called Henry VIII power - a reference to the despotic Tudor King.  In essence, the Minister is empowered to write the detailed law.  The Childcare Act is therefore little more than skeleton legislation enabling Ministers to devise a scheme and enact legislation to implement it.  Flexibility to alter the scheme is retained without the need to go back to Parliament to seek an amending Act. Another example of Henry VIII in action is <a href="http://www.legislation.gov.uk/ukpga/2010/25/section/51">section 51 of the Constitutional Reform and Governance Act 2010</a> which enables Ministers to "amend, repeal or revoke" any "existing statutory provision."  Parliament should ensure that - (a) any such clauses inserted into legislation are strictly justified and (b) that there is adequate control over legislation made using such powers.  Unless Parliament does those things then Ministerial power (that is Executive Power) is increased at the expense of Parliamentary control over the executive. Often, Parliament will require that any legislation made under such powers requires an<a href="http://www.parliament.uk/site-information/glossary/affirmative-procedure/"> affirmative resolution</a> of each House of Parliament. In practice, debate on the detail will not usually be extensive and there is no power to amend the draft legislation.  It has to be either affirmed or rejected.  Parliament could alter that arrangement if it were to be so minded. Concern and criticism: Concern about Henry VIII clauses is not new but, in recent years, there has been repeated criticism.   <a href="https://en.wikipedia.org/wiki/Igor_Judge,_Baron_Judge">Lord Judge of Draycote</a> had  a distinguished judicial career culminating in him being Lord Chief Justice from 2008 to 2013.   On 13th July 2010 he spoke at The Mansion House, London and, as part of his speech, he expressed serious concern at the extensive and growing use of Henry VIII powers  - <a href="http://russellandcarol.co.uk/blogs/carol/bin-henry-viii-clauses-ken-clarke-told-lord-chief-justice-used-lord-mayors-annual-dinner">Lord Judge's 2010 speech may be read here</a> and Joshua Rozenberg published an <a href="http://www.theguardian.com/law/2010/jul/15/law-kenneth-clarke-henry-viii">article about it in The Guardian 15th July 2010</a>. Recently, in a <a href="https://www.kcl.ac.uk/law/newsevents/newsrecords/2015-16/Ceding-Power-to-the-Executive---Lord-Judge---130416.pdf">speech at King's College London on 12th April 2016</a>, Lord Judge has renewed his attack on such powers.  His speech concluded by saying  - "Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self-inflicted blow, each one boosting the power of the executive. Is that what we want? Is that how our constitutional arrangements must continue to develop? Should we allow the powers of the executive to increase and the sovereignty of Parliament to be diminished? Examples of others criticising the use of Henry VIII clauses are: Richard Gordon QC - <a href="http://www.publiclawproject.org.uk/data/resources/220/WHY-HENRY-VIII-CLAUSES-SHOULD-BE-CONSIGNED-TO-THE-DUSTBIN-OF-HISTORY.pdf">Why Henry VIII clauses should be consigned to the dustbin of history</a>. House of Lords Delegated Powers and Regulatory Committee - <a href="http://www.publications.parliament.uk/pa/ld201213/ldselect/lddelreg/19/19.pdf">3rd report of session 2012-13</a>. House of Lords Constitution Committee - <a href="http://www.publications.parliament.uk/pa/ld201516/ldselect/ldconst/116/11602.htm">9th report 2015-16</a> In his latest speech, Lord Judge noted how the Parliament of the day reacted to the Statute of Proclamations 1539 by placing some limits on the use of Proclamations by the monarch.  Perhaps there is a lesson there for modern Parliamentarians though they will have to find time in a busy Parliamentary schedule that is largely controlled by the executive!  Certainly, the reports of the various committees seem to have been placed in the dustbin!

Lord Judge ~ Ceding power to the Executive

Most members of the public would be surprised to learn that Parliament frequently hands to Ministers massive powers to make legislation. Th...

6:56:00 AM

The Baronetcy of Pringle of Stichill ~ Reference under Judicial Committee Act 1833 s.4

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpA8QmOOizra1Z2s36bL7e2OKkXkj_g9PpthQUc_8sLlKMpGljD55jjnVnMwTb8Na-o-7P6G-vWLOVjkGf5RVE5qNEgRxlsg2VTCTW7BLtE9ekBeEsqVfekuCauT699Y28awUxjQBp8CHu/s1600/Pringle_of_Stichill_arms.svg.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpA8QmOOizra1Z2s36bL7e2OKkXkj_g9PpthQUc_8sLlKMpGljD55jjnVnMwTb8Na-o-7P6G-vWLOVjkGf5RVE5qNEgRxlsg2VTCTW7BLtE9ekBeEsqVfekuCauT699Y28awUxjQBp8CHu/s200/Pringle_of_Stichill_arms.svg.png" width="181" /></a></div>Updated 20th June: On Monday 20th June, the Judicial Committee of the Privy Council will give its advice to Her Majesty in the Pringle Baronetcy reference - see <a href="https://www.jcpc.uk/cases/jcpc-2015-0079.html">Judicial Committee website</a>.  On the 10th of November 2014, HM The Queen made a reference to the Judicial Committee of the Privy Council under section 4 of the Judicial Committee Act 1833 so as to obtain the Opinion of the Committee as to which of the Applicant (Norman Murray Pringle) or Respondent (Simon Robert Pringle) should be entered on the Official Roll of the Baronetage in respect of the Baronetcy of Stichill. <a name="more"></a> <a href="http://obiterj.blogspot.co.uk/2015/10/a-legal-rarity.html">Previous post 14th October 2015</a>. The Judicial Committee of the Privy Council has advised Her Majesty that Norman Murray should be enrolled as the Baronet - <a class="more" href="https://www.jcpc.uk/cases/docs/jcpc-2015-0079-judgment.pdf" title="Judgment (PDF)">Judgment (PDF)</a> and <a class="more" href="https://www.jcpc.uk/cases/docs/jcpc-2015-0079-press-summary.pdf" title="Press summary (PDF)">Press summary (PDF)</a>

The Baronetcy of Pringle of Stichill ~ Reference under Judicial Committee Act 1833 s.4

Updated 20th June: On Monday 20th June, the Judicial Committee of the Privy Council will give its advice to Her Majesty in the Pringle Baron...

6:56:00 AM

UK and the EU (11) - The event horizon approaches - What if it is Brexit

<div class="separator" style="clear: both; text-align: center;"></div><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh7lYrGfTPJsJmVROjhJ5XI5zdV_RLu7wXdMUSWoPCAtK8fZQDWuAFmWgcIcnnhZdMISgPU-AJxvlqtJAtSTBztrxXIfBat1l0ovVSEj90zKhuZZ-0Tb23gQXgFTwZwrMGOmi2dLnv8PpqP/s1600/Event+horizon.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="112" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh7lYrGfTPJsJmVROjhJ5XI5zdV_RLu7wXdMUSWoPCAtK8fZQDWuAFmWgcIcnnhZdMISgPU-AJxvlqtJAtSTBztrxXIfBat1l0ovVSEj90zKhuZZ-0Tb23gQXgFTwZwrMGOmi2dLnv8PpqP/s200/Event+horizon.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><a href="https://www.youtube.com/watch?v=iA53l7AG7Pg">Event Horizon</a></td></tr></tbody></table>Suppose that the outcome of the EU Referendum is Leave.  The UK will then start its journey along Brexit Road - a road without any detailed road map.  This post takes a somewhat speculative look at some of the matters that might arise along the way.  First of all, a couple of points of law: <a name="more"></a> 1.   The referendum result does NOT bind the UK government or Parliament in law.  There is nothing in this Referendum Act (or elsewhere) to require - as a matter of law - the government or Parliament to either do anything at all or to do any particular thing.  For further discussion on this point see the article by David Allen Green in the Financial Times (£) - <a href="http://blogs.ft.com/david-allen-green/2016/06/14/can-the-united-kingdom-government-legally-disregard-a-vote-for-brexit/">Can the UK government legally disregard a vote for Brexit</a>? 2.   The Treaty on European Union (TEU) <a href="http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html">Article 50</a>  sets out the ground rules for withdrawal.  Art 50(1) - "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements." So, what are the constitutional requirements in the UK?  Since this referendum result will not, in domestic law, bind the government or Parliament it would seem that Parliament ought to somehow endorse the result.  Unless that is done there may not actually be a "Decision" for the purposes of Article 50. The formal process set out in Article 50 does not begin until the British government gives notice to the European Council.  The notice would trigger everything including the 2 year (possibly extendable) timescale as set out in the Article - see Art 50(3).  Precisely what constitutes "notice to the European Council" seems not to be specified but it probably requires a formal communique of some sort from the British government to the European Council President. <a href="https://www.blogger.com/null" name="more"></a> The process of leaving - some issues arising: Things would undoubtedly be very tricky POLITICALLY and there would be much to do BEFORE any formal Article 50 notice of Brexit is given to the EU.   1.   The government will have to respond in an appropriate way to the Brexit vote.  That will require a sensible withdrawal plan setting out clearly the steps to be taken.  There would be little point posting a letter straightaway to the European Council giving notice of withdrawal as required by <a href="http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html">Article 50</a> (TEU). All that would do is kick start the withdrawal process without any clear idea of how the process would be conducted.  The government would do well to take a sensible period (say 6 months or so) to establish and consult about such a withdrawal plan. 2.   Parliament itself may feel the need to assert its right to be consulted at all stages.  That might entail some form of Parliamentary Committee being established to monitor and report on events as they unfold. 3.   Talks with the EU about the withdrawal process would be essential and these should take place before any notice is given under Article 50.  That would enable both sides to have a clear understanding of the process to be followed. Article 50(2) requires that an agreement shall be negotiated in accordance with <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E218&from=EN">Article 218</a>(3) of the TFEU and it shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. Article 218 TFEU sets out a procedure for negotiation of agreements: - "The Commission, ........, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team" - [Art 281(3) with some words omitted]. <div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;">In passing, it can be noted that Art 218(11) provides that a Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. </div>4.   A further point is Art 50(4) which would operate to exclude the UK from certain discussions in the European Council including any decision on whether to extend the 2 year timescale.  Particular clarity would be required on the matter of participation.  Crucially, this could make it very difficult (if not impossible) for the UK to assume the <a href="http://www.consilium.europa.eu/en/council-eu/presidency-council-eu/">EU Council Presidency</a> planned for July 2017. 5.  Before giving formal notice, the UK would have to have some clear idea about whatever trading and other arrangements it wanted to have with the EU in the future.  Similarly, the European Union would need to have a clear view as to what it was prepared to accept.  At least that would form a starting point for Brexit negotiations. 6.  Before giving formal notice the British government would have to have a very clear understanding of the position of the devolved governments in the UK.  As an example, if the referendum result was a Brexit majority in England but not in Scotland then what would happen?  Even to ask such a question is to get a glimpse of the Pandora's Box which may open. 7.  Would the approval of Parliament be required before giving formal notice of withdrawal? Article 50 is not in play here since the Article states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements." Negotiations to enter into a new Treaty are normally the province of Ministers who negotiate under prerogative powers (see <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/243164/7239.pdf">Ministry of Justice Consultation Paper 26/2007</a>).  Parliament is involved in the ratification of treaties - see <a href="http://www.legislation.gov.uk/ukpga/2010/25/part/2">Part 2 of the Constitutional Reform and Governance Act 2010</a>. Negotiations about withdrawal from the EU Treaties would be conducted by (or on behalf of) Ministers.  Parliament would inevitably become involved since the European Communities Act 1972 would have to be repealed (and replaced with appropriate new legislation). At least, all of this seems to point to a political need to obtain the approval of Parliament before entering into formal negotiations.   In any event, Parliament would expect to have its say on the outcome of any talks with the EU prior to the time of formal notice. Could the UK give notice under Article 50 but rescind the notice later? Art 50(5) - If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49. It seems that there is nothing legally to prevent the UK rescinding its notice to quit but it is a moot point whether this situation would ever arise.  It appears that it would be a matter for agreement between the UK government and the EU. Could a Brexit Vote lead to a General Election? One possibility is that the Prime Minister resigns having been unable to win his Remain argument.  The most recent Prime Ministerial resignation is that of Tony Blair in 2007.  HM The Queen appointed Gordon Brown as Prime Minister and he held the office until the General Election in 2010.  Thus, a Prime Ministerial resignation does not trigger a General election.  (Whether it should do so is another issue). The Fixed-Term Parliaments Act (FTPA) determines when there may be another General Election.  The FTPA is discussed in <a href="http://obiterj.blogspot.co.uk/2016/06/uk-and-eu-10-what-if-it-is-brexit.html">UK and the EU - No. 10</a> Essentially, the next election will be in May 2020 unless a general election is called because one of the procedures in <a href="http://www.legislation.gov.uk/ukpga/2011/14/section/2/enacted">section 2 of the FTPA</a> is applied.  These are basically - (1) that the House of Commons votes for an early election (note the two-thirds requirement) or (2) that there is a successful motion of no confidence in the government and that is not reversed within 14 days.  Parliament cannot be otherwise dissolved. The only other way to a General Election would be for Parliament to repeal the FTPA and, as part of doing so, put other arrangements in its place.  (Note: I do not think that simple repeal of the FTPA would result in a return to the "Prime Minister can call the shots" system that existed before the FTPA though Parliament could legislate for such a system). Could a Brexit vote be ignored or not acted upon? It would be politically impossible to simply ignore a Brexit vote.  The more likely approach will be that Ministers will enter into talks with the EU - (not at this point formal negotiations) - to see what the EU position is.  Similarly, they will see what the view of the devolved governments is. It is quite possible to envisage scenarios where the government (or Parliament) might think that the result was not decisive enough. An article <a href="https://constitution-unit.com/2016/04/28/in-the-event-of-a-leave-vote-brexit-would-dominate-westminster-for-years/">by Lord Lisvane (a former Clerk of the House of Commons)</a> and published by the Constitution Unit suggests this possibility - "If the result is narrow and the turnout is low then the possibilities become a lot more complicated. Remember that the outcome of the Scottish independence referendum was 55.3 per cent No, 44.7 per cent Yes, on an extremely high turnout of 84.59 per cent. If the result on June 23 was, say, 51 to 49 in favour of Leave on a turnout of 55 per cent then that would move quite a lot of goalposts – especially if Scotland had voted to stay and England to leave. The Prime Minister could say that such a result is not sufficiently decisive and so we will negotiate heads of agreement on withdrawal, and then have a second referendum to decide whether to trigger the exit process on that basis." How would Brexit itself be handled? Legislation will be necessary to deal with the vast volume of legislation involved in the UK's membership of the EU.  The aim of any such legislation would be to implement the final withdrawal agreement by whatever date membership ceases.  It would not necessarily involve the removal from domestic law of everything linked to the EU since the withdrawal agreement will have to deal with the on-going UK-EU relationship.  It is perfectly possible to envisage a number of matters remaining in place such as the European Arrest Warrant system. To cope effectively with what is likely to be a lengthy and complicated process, it seems likely that Parliament will enact enabling legislation and leave it to Ministers to make implementing legislation.  I have a vision of yet another Act<a href="http://obiterj.blogspot.co.uk/2016/06/lord-judge-ceding-power-to-executive.html"> amounting to an enormous Henry VIII power</a> ! Endpiece: Withdrawal from the EU will be a legally interesting process but it is potentially a nightmare politically.  The UK government would need to obtain the best possible deal for the British people.  The EU will obviously act (as it must) in its own best interests.  What those are in these circumstances must be a matter of speculation at the moment. Those who have read the above may well think that Brexit is a process best avoided.  Alternatively,   you may think that the difficulties are not insurmountable and that travelling along Brexit Road is necessary.   You might think either of those things - I cannot possibly comment!    <div style="text-align: center;">: Earlier posts in this series :</div> 20th February - <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a> - including link to the deal secured by the Prime Minister UK and the EU (1) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-1-history-and-background.html">History and Background</a> UK and the EU (2) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-2-eu-treaties-key-points.html">The EU Treaties - key points</a> UK and the EU (3) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-3-parliament-commission-and.html">The Parliament, the Commission and the Court</a> UK and the EU (4) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-4-freedom-of-movement-of.html">Freedom of movement of persons</a> UK and the EU (5) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-5-referendum-people-need.html">Referendum - People need facts not slogans (Lord King)</a> UK and the EU (6) -<a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-6-will-brexit-be-simple.html">Will Brexit be a simple process?</a> UK and the EU (7) -<a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-7-your-rights.html">Your Rights</a> UK and the EU (8) - <a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-8-trading-bloc-or-emergent.html">Trading bloc or emergent State </a> UK and the EU (9) - <a href="http://obiterj.blogspot.co.uk/2016/05/uk-and-eu-9-monumental-referendum.html">A monumental referendum - information to assist</a> UK and the EU (10) - <a href="http://obiterj.blogspot.co.uk/2016/06/uk-and-eu-10-what-if-it-is-brexit.html">What if it is Brexit </a>

UK and the EU (11) - The event horizon approaches - What if it is Brexit

Event Horizon Suppose that the outcome of the EU Referendum is Leave. The UK will then start its journey along Brexit Road - a road without...

6:56:00 AM

Extending the Voter registration deadline

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj9t-75tfPLHFouXgoTsdRYI-LCx_16tQtRBInRMRH0Y6vghnQvzF5XayBMo-8XAr0C0KmrEX2Gxh3iAq3SOMkGYfl1cU3jsFS6BUqGNLW-opOEAW2jyW4hBIabTUG4jX1Luzr2BgqHKyyB/s1600/Last+chance+to+register.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="111" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj9t-75tfPLHFouXgoTsdRYI-LCx_16tQtRBInRMRH0Y6vghnQvzF5XayBMo-8XAr0C0KmrEX2Gxh3iAq3SOMkGYfl1cU3jsFS6BUqGNLW-opOEAW2jyW4hBIabTUG4jX1Luzr2BgqHKyyB/s200/Last+chance+to+register.jpg" width="200" /></a></div>Update 10th June:  The Regulations were approved by both Houses of Parliament on 9th June.  It seems likely that House of Commons will examine further the problems that arose.  See <a href="http://www.legislation.gov.uk/uksi/2016/636/pdfs/uksi_20160636_en.pdf">The Regulations</a> - "made" at 6.29 pm on Thursday 9th June.  Somewhat in excess of 400,000 people were added to the electoral register over 8th and 9th June. <a name="more"></a> Original post: Here is a link to the draft Regulations which are to be put to Parliament for approval today (9th June) - <a href="http://www.legislation.gov.uk/ukdsi/2016/9780111147405/pdfs/ukdsi_9780111147405_en.pdf">The European Union Referendum (Voter Registration) Regulations 2016</a>.   See also <a href="http://www.parliament.uk/business/news/2016/june/mps-debate-european-union-voter-registration-regulations-2016/">House of Commons - Debate on Voter Registration Regulations</a>. The power to make these Regulations is stated to be - sections 4(1) and (5), 9(5) and 11(1) of the <a href="http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted">European Union Referendum Act 2015</a>. The reason for the extension (from midnight Tuesday 7th June to midnight Thursday 9th June) is that the computer system handling registrations was unable to cope with late demand on Tuesday evening - <a href="http://www.bbc.co.uk/news/uk-politics-eu-referendum-36462425">BBC News 8th June</a>. Convoluted law-making: <a href="https://www.blogger.com/null" name="more"></a> The UK does not have specific tailor-made legislation for referendums and so it has been necessary to legislate on each occasion that a national referendum has been held.  The process adopted (so far) is to apply existing electoral law to the referendum but with some changes where appropriate. The <a href="http://www.legislation.gov.uk/ukpga/2015/36/section/4/enacted">Referendum Act 2015 section 4 </a>enables Ministers to make "Conduct Regulations" and permits those regulations to apply (with or without modifications) the <a href="http://www.legislation.gov.uk/ukpga/1983/2/contents">Representation of the People Act 1983</a> to the referendum.  <a href="http://www.legislation.gov.uk/ukdsi/2016/9780111142967/contents">The European Union Referendum (Conduct) Regulations 2016 </a>were duly made. <a href="http://www.legislation.gov.uk/ukdsi/2016/9780111147405/pdfs/ukdsi_9780111147405_en.pdf">The European Union Referendum (Voter Registration) Regulations 2016</a> will amend <a href="http://www.legislation.gov.uk/ukdsi/2016/9780111142967/schedule/1">Schedule 1</a> (cut and paste technique) of the <a href="http://www.legislation.gov.uk/ukdsi/2016/9780111142967/contents">The European Union Referendum (Conduct) Regulations 2016</a> Individuals will have registered between midnight 7th June and the making of the Regulations.  Questions of retrospective legislation may arise.  Even if the <a href="http://www.legislation.gov.uk/ukpga/1978/30/section/4">Interpretation Act 1978</a>* ensures that registrations on 9th June are in order then it is possible that registrations on 8th June may not be covered.  However that may be legally, I cannot see anyone actually trawling the computer system to see who registered on 8th June - but you never know! For now, let's see how this goes! Extra note 10th June - Having said the above, the actual Voter Registrations Regulations were made at 16.29 hours on 9th June and they come into force (according to regulation 1) when they are made - i.e. 16.29 hours on 9th June.  This may mean that there is a legal gap between midnight 7th June and 16.29 on 9th.  Whether this will matter is a moot point but it's of interest.  On this see <a href="http://www.headoflegal.com/2016/06/09/the-draft-eu-voter-registration-regulations-2016/">Carl Gardner's Head of Legal blog 9th June 2016</a>. <a href="http://www.electoralcommission.org.uk/faq/voting-and-registration/what-is-individual-electoral-registration">Individual Voter Registration explained</a>  Footnote: *Section 4 states .... An Act or provision of an Act comes into force— (a)where provision is made for it to come into force on a particular day, at the beginning of that day; (b)where no provision is made for its coming into force, at the beginning of the day on which the Act receives the Royal Assent. This extends to subordinate legislation because of <a href="http://www.legislation.gov.uk/ukpga/1978/30/section/23">section 23</a>.

Extending the Voter registration deadline

Update 10th June: The Regulations were approved by both Houses of Parliament on 9th June. It seems likely that House of Commons will exam...

6:55:00 AM

EU Referendum - Voter Registration - A nightmare of a paper chase!

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhjQXYs8gL4G9xgf65143pgtzZeRqcTMxJ6y6bDocWUWg4J43X6KWzSGmn4c-2ps8ol66juWjjErxaS4Pit1NktwpEEkAlEnE1KGGne1WW2wJGYbNMHn6s7wqYzChO_TEDgl_5qmnj4UGMa/s1600/Kinder+Downfall.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhjQXYs8gL4G9xgf65143pgtzZeRqcTMxJ6y6bDocWUWg4J43X6KWzSGmn4c-2ps8ol66juWjjErxaS4Pit1NktwpEEkAlEnE1KGGne1WW2wJGYbNMHn6s7wqYzChO_TEDgl_5qmnj4UGMa/s200/Kinder+Downfall.jpg" width="200" /></a></div>I had planned to do a walk today: fresh air and exercise and all that.  Unfortunately, the weather turned dull with bouts of heavy rain so I abandoned the idea of the walk.  I suppose that I could have found something better to do but I ended up delving into the law behind Voter Registration for the EU Referendum.  Get a life I hear you say!  OK - but it demonstrated what an absolute mess our statute law is in. <a name="more"></a> It is now over 14 years since Lord Justice Laws expressed dismay in the "<a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2002/195.html&query=(Thoburn)+AND+(Sunderland)+AND+(Laws)">Metric Martyrs</a>" case about the "nightmare of a paper chase" involved in weights and measures legislation.  He was dealing with criminal offences relating to how vegetables were weighed out for customers and said - "I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation." The same could be said of Voter Registration.  I will try to demonstrate - as briefly as possible - why. <a href="https://www.blogger.com/null" name="more"></a>  <div class="MsoNormal">Our journey begins with the <a href="http://www.legislation.gov.uk/ukpga/1983/2/contents">Representation of the People Act 1983</a> (RPA).   </div><div class="MsoNormal"> </div><div class="MsoNormal">This already heavily amended Act was amended again when the <a href="http://www.legislation.gov.uk/ukpga/2013/6/section/16">Electoral Registration and Administration Act 2013 section 16</a> inserted section 13AB into the RPA.    </div><div class="MsoNormal"> </div><div class="MsoNormal">Section 13AB was then amended by the <a href="http://www.legislation.gov.uk/ukpga/2015/25/schedule/2">Recall of Members of Parliament Act 2015</a> (Schedule 2 paragraphs 1 and 4). </div><div class="MsoNormal"> </div><div class="MsoNormal">Parliament then enacted the <a href="http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted">European Union Referendum Act 2015</a> and sections 4(1) and (5), 9(5) and 11(1) of the Referendum Act made it possible to make subordinate legislation so that the RPA could be applied to the EU Referendum.  </div><div class="MsoNormal"> </div><div class="MsoNormal">Enter the <a href="http://www.legislation.gov.uk/ukdsi/2016/9780111142967/schedule/1">European Union (Conduct) Regulations 2016</a>.   Schedule 1 paragraph 4 of this beings - "In relation to England, Wales and Scotland, section 13AB of the 1983 Act applies for the purposes of the referendum but as if ...." and then a lengthy set of changes to the RPA section 13AB follows.</div><div class="MsoNormal"> </div><div class="MsoNormal">Earlier this week, when the need to extend Voter Registration arose, the Conduct Regulations were amended by the <a href="http://www.legislation.gov.uk/uksi/2016/636/pdfs/uksi_20160636_en.pdf">The European Union (Voter Registration) Regulations 2016</a>.  These amended the European Union (Conduct) Regulations 2016 which, as already noted, amended the RPA section 13AB.</div><div class="MsoNormal"> </div>So there you have it!  I still don't have an accurate text of the RPA as amended by all of this.  I suspect that very few will have one!  It may emerge in the next few days or so once the "cut and paste" experts have burned some midnight oil. There may be a problem.  The <a href="http://www.legislation.gov.uk/uksi/2016/636/pdfs/uksi_20160636_en.pdf">European Union (Voter Registration) Regulations</a> tell us precisely when they were made - 16.29 hours on 9th June.  According to Regulation 1, these Regulations commence when made - i.e. 1629 hours on 9th June.  It seems, as <a href="http://www.headoflegal.com/2016/06/09/the-draft-eu-voter-registration-regulations-2016/">Carl Gardner points out in his Head of Legal post of 9th June</a>, that the period from midnight 7th June to 16.29 on 9th June may not be covered.  Whether this will matter remains to be seen.  Probably not. In any event, I think that in this instance it is clearly implicit that Parliament intended the Voter Registration Regulations to cover the period from midnight 7th to midnight 9th.  Any common law presumption against retrospective legislation may be overcome by necessary implication especially where the new law is made to deal with a matter of such fundamental democratic importance as the right to vote.   Perhaps next time I will do my planned walk but it's a pity that, in a democracy where voting is vital, our statutory electoral law is in such a mess.   Time for a pint in the local.  <a href="https://www.gov.uk/weights-measures-and-packaging-the-law/units-of-measurement">Yes, beer may still be legally sold in pints</a>!

EU Referendum - Voter Registration - A nightmare of a paper chase!

I had planned to do a walk today: fresh air and exercise and all that. Unfortunately, the weather turned dull with bouts of heavy rain so I...

6:55:00 AM

Imprisonment for Public Protection ~ R v Roberts and others

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As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP   
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Imprisonment for Public Protection ~ R v Roberts and others

As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a signi...

7:32:00 AM

Da Silva v United Kingdom ~ European Court of Human Rights 30th March 2016

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The European Court of Human Rights has handed down judgment in the case of Da Silva v United Kingdom.    
 
Charles de Menezes was shot dead at Stockwell underground station (London) on 22nd July 2005, soon after he had been mistakenly identified as a suicide bomber just 2 weeks after the 7 July <a class="u-underline" data-component="auto-linked-tag" data-link-name="auto-linked-tag" href="http://www.theguardian.com/uk/london">London</a> bombings in which 52 people died. 
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Da Silva v United Kingdom ~ European Court of Human Rights 30th March 2016

The European Court of Human Rights has handed down judgment in the case of Da Silva v United Kingdom. Charles de Menezes was shot...

7:32:00 AM

R v Adam Johnson

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<tr><td class="tr-caption" style="text-align: center;">Crown Court ~ Bradford</td></tr>
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Updated - with link to sentencing remarks  
 
Former Sunderland professional footballer Adam Johnson will come before a judge at the Crown Court in Bradford today for sentencing on 3 counts:  Two of sexual activity with a child (<a href="http://www.legislation.gov.uk/ukpga/2003/42/part/1/crossheading/child-sex-offences/section/9">Sexual Offences Act 2003 section 9</a>) and one offence of Meeting a child following sexual grooming (<a href="http://www.legislation.gov.uk/ukpga/2003/42/section/15">Sexual Offences Act 2003 section 15</a>). 
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R v Adam Johnson

Crown Court ~ Bradford Updated - with link to sentencing remarks Former Sunderland professional footballer Adam Johnson will come bef...

7:32:00 AM

Human Rights concerns

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British Bill of Rights: 
 
Things have gone quiet on the government's plans for a British Bill of Rights.  This may be due to the impending referendum on the United Kingdom's membership of the European Union.  Regular readers will no doubt recall that, back in February 2016, the Secretary of State for Justice told Parliament's EU Justice Sub-Committee that something would appear "soon." Mr Gove added that he was "at the mercy of the Prime Minister" but we would not have "too long to wait" - <a href="http://obiterj.blogspot.co.uk/2016/02/human-rights-eu-renegotiation.html">Post of 2nd February 2016</a> (see the end of the recorded session where Mr Gove responded to a question by Baroness Kennedy). 
 
Concerns about Foreign Affairs: 
 
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Human Rights concerns

British Bill of Rights: Things have gone quiet on the government's plans for a British Bill of Rights. This may be due to the impen...

7:32:00 AM

Compensation for Miscarriage of Justice

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The Court of Appeal (Civil Division) - Lord Dyson MR; Sir Brian Leveson P and Hamblen LJ - has dismissed appeals of Sam Hallam and Victor Nealon - <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2016/355.html">R (Hallam and Nealon) v Secretary of State for Justice</a> [2016] EWCA Civ 355. The appeals were concerned with whether the two men should be paid compensation for miscarriage of justice following the quashing of their convictions. 
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Compensation for Miscarriage of Justice

The Court of Appeal (Civil Division) - Lord Dyson MR; Sir Brian Leveson P and Hamblen LJ - has dismissed appeals of Sam Hallam and Victor ...

7:31:00 AM

Justice Committee ~ The Magistracy

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On 22nd March the House of Commons Justice Committee took <a href="http://parliamentlive.tv/event/index/5512b223-eced-4008-9f98-b5faca30a968">evidence on the role of the magistracy</a>.  I am sure that many will find the session interesting - to say the least!  You may have to wait a few seconds for the video playback to appear. 
 
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Justice Committee ~ The Magistracy

On 22nd March the House of Commons Justice Committee took evidence on the role of the magistracy . I am sure that many will find the se...

7:31:00 AM

Happy Valley ~ a look at some of the legal angles

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The BBC's crime drama "<a href="http://www.bbc.co.uk/programmes/b06zqjpj">Happy Valley</a>" has just completed its second series.  It was full of legal interest.  Set in and around West Yorkshire's <a href="https://en.wikipedia.org/wiki/Calderdale">Calder Valley</a>, this gritty and sometimes violent story line was centred on Police Sergeant Cawood played by Sarah Lancashire and the various people she encountered as part of her work including a young man - Tommy Lee Royce (James Norton) - who is the father of Cawood's grandson.  Royce is a dangerous individual who copes with life by taking control of everything and everyone around him. 
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Happy Valley ~ a look at some of the legal angles

The BBC's crime drama " Happy Valley " has just completed its second series. It was full of legal interest. Set in and ar...

7:31:00 AM

Undercover Policing Inquiry

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<tr><td class="tr-caption" style="text-align: center;">Pitchford LJ</td></tr>
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Concerns about undercover policing have been rumbling on for some time - Guardian article by Helen Steel 23rd March 2016 "<a href="http://www.theguardian.com/commentisfree/2016/mar/23/police-abuses-brought-to-light-undercover-officers-spied-on-me">Under cover police spied on me.  Who else did they do it to?</a>" 
 
An Inquiry - being held under the <a href="http://www.legislation.gov.uk/ukpga/2005/12/contents">Inquiries Act 2005</a> - is underway under the chairmanship of Lord Justice Pitchford - <a href="https://www.ucpi.org.uk/">Inquiry website</a>.  The Inquiry opened 28th July 2015 when the chairman made his <a href="https://www.ucpi.org.uk/wp-content/uploads/2015/07/Opening-Remarks.pdf">Opening Remarks</a>.  More details of the Inquiry are <a href="https://www.ucpi.org.uk/about-the-inquiry/">available HERE</a> and see the <a href="https://www.ucpi.org.uk/wp-content/uploads/2015/07/160314-TOR-for-the-Website.pdf">Terms of Reference</a>. 
 
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Undercover Policing Inquiry

Pitchford LJ Concerns about undercover policing have been rumbling on for some time - Guardian article by Helen Steel 23rd March 2016 ...

7:31:00 AM

Supreme Court orders retrial in Jogee (Joint Enterprise) case

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The Supreme Court, after receiving submissions from the parties, has ordered a retrial in the "Joint enterprise" Jogee case - see the <a href="https://www.supremecourt.uk/news/r-v-jogee-retrial.html">Court's announcement 7th April</a>. 
 
The Supreme Court's judgment in R v Jogee and also the Judicial Committee of the Privy Council decision in Ruddock were

Supreme Court orders retrial in Jogee (Joint Enterprise) case

The Supreme Court, after receiving submissions from the parties, has ordered a retrial in the "Joint enterprise" Jogee case - se...

7:31:00 AM

Operation Midland ends. The question of anonymity.

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgw8dYXzZA-fPfb8iCCPAcPxIuU4Va6UADTwFIPAJjg3Oo-rhXQdaQ_ZSnGyeX2N6QlAjdJ5mt-T91snIooLdGgDLisnK65b4gpGGYhq3qZaDBLEuAySf5Xs7PKyEqOMxLLD7EYrczgursa/s1600/Scotland+Yard.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="149" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgw8dYXzZA-fPfb8iCCPAcPxIuU4Va6UADTwFIPAJjg3Oo-rhXQdaQ_ZSnGyeX2N6QlAjdJ5mt-T91snIooLdGgDLisnK65b4gpGGYhq3qZaDBLEuAySf5Xs7PKyEqOMxLLD7EYrczgursa/s200/Scotland+Yard.jpg" width="200" /></a></div>Operation Midland, an investigation by the Metropolitan Police into allegations of a VIP paedophile ring,  has been concluded without any charges being brought.  See the <a href="http://www.bbc.co.uk/news/uk-35863580">BBC News report 21st March</a> ; Telegraph "<a href="http://www.telegraph.co.uk/news/uknews/crime/12200180/Operation-Midland-The-story-behind-the-Mets-controversial-VIP-paedophile-ring-investigation.html">Operation Midland: The story behind the Met's controversial VIP paedophile ring investigation</a>" and the <a href="http://news.met.police.uk/news/statement-on-operation-midland-156699">Statement by the Metropolitan Police</a>. <a name="more"></a> Established in November 2014, Operation Midland was set up to examine historical claims that a VIP paedophile ring operated in Westminster, with allegations that boys were abused by a group of powerful men from politics, the military and law enforcement agencies.  The investigation was triggered by allegations made by a man referred to as "Nick" who claimed that he had been personally abused during the period 1975 to 1984. <a href="https://www.blogger.com/null" name="more"></a> The Police referred to Nick's claims as "credible and true" but, in a belated attempt to correct this, the Police statement now states that - "In September 2015 the MPS acknowledged that the use of the phrase "credible and true" at a media appeal could have given the wrong impression that the outcome of the investigation was being pre-empted. However, an open mind was retained throughout."   The inquiry was also intended to examine claims that three boys were murdered during the alleged ring's activities. Operation Midland related to locations across southern England and in London in the 1970s and 1980s, and focused on the private Dolphin Square estate in Pimlico, south-west London. As <a href="http://barristerblogger.com/2016/03/21/operation-midland-miserable-end-miserable-affair/">noted by Barrister Blogger (Matthew Scott)</a>, this is a "miserable outcome to a miserable affair."  The Police statement comments that the Police will "not apologise for carrying out its duty to investigate serious allegations of non-recent abuse...."  Of course the Police must investigate allegations BUT the complaint here is not the fact of the investigation but the manner in which it was conducted. The Police statement also notes that - "The Commissioner has previously announced that <a href="http://obiterj.blogspot.co.uk/2013/11/henriques-j.html">Sir Richard Henriques</a> has been asked to carry out an independent review of this and other investigations.  He will make recommendations about whether there are ways to improve the process for all of those involved in it in the future. The key findings of the review and the recommendations will be published later this year, but the full review will contain confidential and sensitive information and will be a private report for the Commissioner." Anonymity: "Nick" is entitled to anonymity.  Individuals who became subject to either suspicion or investigation were not entitled to anonymity.  Those making an allegation of almost any sexual offence are given anonymity under the <a href="http://www.legislation.gov.uk/ukpga/1992/34/contents">Sexual Offences (Amendment) Act 1992</a>.   There is a power in the Act for application to be made to the trial judge to displace this. Whether anonymity ought to be extended to those under investigation is a controversial point but a good case can be put forward for it given the immensely damaging nature of an accusation of sexual offending.  See, for example, the argument in <a href="http://www.halsburyslawexchange.co.uk/sex-cases-should-the-defendant-have-anonymity/">Halsbury's Law Exchange 3rd July 2014</a> : " ... those accused of sexual offences ought not to be named unless they are charged. This would offer a person who is investigated but then exonerated the chance to move forward with their life without negative publicity. It would also ensure that if the CPS were making a charging decision they would look only at the offence charged and assess the weight of the evidence to see whether there is a reasonable prospect of success, rather than looking at numerous allegations and allowing potentially weaker allegations to be charged in order to shore up a conviction on potentially stronger cases – as happened in the <a href="http://www.theguardian.com/uk-news/2014/apr/10/how-case-against-nigel-evans-fell-apart">case of Nigel Evans MP</a> who faced allegations of sexual assault that even the complainants didn’t believe amounted to sexual assault, all so that the prosecution could use those allegations to support one of rape. Once charged then it is right and proper that a suspect be named, as they would be in any other criminal case. As to complainants, it is vital that their right to anonymity remains. They should only be named if it is subsequently shown that they have deliberately lied to the police and are charged with perverting the course of justice. This approach would encourage genuine complainants and hopefully dissuade wrongful allegations. There is no perfect solution; the nature of our adversarial system is that there are winners and losers. We should do all we can to make the process before the verdict as fair and dignified as possible." Whether one agrees with this viewpoint or not, it has to be noted that the law now contains "anonymity" provisions relating to teachers - <a href="http://www.legislation.gov.uk/ukpga/2011/21/section/13">Education Act 2011 section 13</a> - inserting section 141F into the <a href="http://www.legislation.gov.uk/ukpga/2002/32/contents">Education Act 2002</a>.   The protection offered to teachers ends if the teacher is charged with a criminal offence. Is there any good reason why similar protection should not be offered to anyone under investigation for sexual offences?  Perhaps this debate is set to continue without action on the part of politicians to resolve it - see <a href="http://www.parliament.uk/business/publications/research/key-issues-parliament-2015/justice/anonymity-for-defendants/">Parliament - Anonymity for defendants</a> Note: The Sexual Offences (Amendment) Act 1976 gave anonymity to both complainant and defendant in rape cases but the latter was removed by the Criminal Justice Act 1988.  The Sexual Offences (Amendment) Act 1992 extended complainant anonymity to almost any sexual offence.

Operation Midland ends. The question of anonymity.

Operation Midland, an investigation by the Metropolitan Police into allegations of a VIP paedophile ring, has been concluded without any ch...

7:09:00 AM

UK and the EU (5) - Referendum - "People need facts not slogans" (Lord King)

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj1T3tsglDFib2JtUeKl8YGBsPHD8PlyN5J2MXCL4ppcK1MWuZ22_PZUC1vssOgL7IzsW2T_To8KQ50EGFNO1O_QZytZlWtr7n_iQC4KE0vJppq3vxM57kqYDO2iqoDaM_Ns2vDLBIXa1o_/s1600/EU+Ship+with+flags.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj1T3tsglDFib2JtUeKl8YGBsPHD8PlyN5J2MXCL4ppcK1MWuZ22_PZUC1vssOgL7IzsW2T_To8KQ50EGFNO1O_QZytZlWtr7n_iQC4KE0vJppq3vxM57kqYDO2iqoDaM_Ns2vDLBIXa1o_/s200/EU+Ship+with+flags.jpg" width="190" /></a></div>The <a href="http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted/data.htm">European Union Referendum Act 2015</a> stipulates that the government must publish certain information prior to the referendum.  This duty has been complied with:- The Statement required by section 6 was announced by the Prime Minister on 22nd February - "<a href="https://www.gov.uk/government/publications/the-best-of-both-worlds-the-united-kingdoms-special-status-in-a-reformed-european-union">The best of both worlds: the UK's special status in a reformed EU</a>"  Statement required by section 7 - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf">Alternatives to membership</a> Second statement under section 7 (April 2016) - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/516501/Rights_and_obligations_of_European_Union_membership_web_version.pdf">Rights and obligations of EU membership</a>. <a name="more"></a> Previous "background" posts relating to the referendum are:- <a href="https://www.blogger.com/null" name="more"></a> 20th February - <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a> - including link to the deal secured by the Prime Minister UK and the EU (1) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-1-history-and-background.html">History and Background</a> UK and the EU (2) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-2-eu-treaties-key-points.html">The EU Treaties - key points</a> UK and the EU (3) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-3-parliament-commission-and.html">The Parliament, the Commission and the Court</a> UK and the EU (4) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-4-freedom-of-movement-of.html">Freedom of movement of persons</a> This series of posts is aimed at providing essential background information. There has been a regrettable absence of serious "for and against" debate and the general public lacks hard factual information on which to base any informed decision about what is unquestionably THE most important decision ever to be taken by the public in a referendum.  Instead we have heard the opinions of various politicians and some other public figures such as the <a href="https://www.politicshome.com/foreign-and-defence-home-affairs/articles/story/archbishop-canterbury-concern-about-migration-not">Archbishop of Canterbury</a> and <a href="http://www.bbc.co.uk/news/uk-politics-eu-referendum-35752776">Lord King (former Governor of the Bank of England)</a>. There are many difficult and frequently controversial aspects of the EU / UK relationship and I intend to try to follow up on some of these in subsequent posts.

UK and the EU (5) - Referendum - "People need facts not slogans" (Lord King)

The European Union Referendum Act 2015 stipulates that the government must publish certain information prior to the referendum. This duty ...

7:08:00 AM

25 years ago today ~ release of the Birmingham Six ~ problems remain

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgse4xpnpPbeNahMBB64DuKkYe2vLe9P_tn8pZJl_CDIXUfaSkRzZt6fDScu6NJbiZMgChfZOVQu6OUU3qnIFVnjqdT9wByr9bnHgBLeKu0bZnwai6LJBGAH7fojaH_iUks1GY-tpqjgXqa/s1600/Birmingham+Six+released.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="121" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgse4xpnpPbeNahMBB64DuKkYe2vLe9P_tn8pZJl_CDIXUfaSkRzZt6fDScu6NJbiZMgChfZOVQu6OUU3qnIFVnjqdT9wByr9bnHgBLeKu0bZnwai6LJBGAH7fojaH_iUks1GY-tpqjgXqa/s200/Birmingham+Six+released.jpg" width="200" /></a></div>25 years ago today the "Birmingham Six" were released - <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/march/14/newsid_2543000/2543613.stm">BBC Home On this Day 14th March 1991</a>- after their convictions for murder were quashed.  There have been no subsequent arrests. On 21st November 1974 two explosions in Birmingham wrecked the Mulberry Bush and the Tavern in the Town.  21 people were killed and 182 injured.  A third explosive device failed to detonate.  Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of <a href="http://www.matthewpemmott.co.uk/2011/11/lancaster-castle.html">Lancaster Castle</a> before Bridge J and a jury. <a name="more"></a>  The trial commenced on 9th June 1975 and the men, having been convicted, were sentenced to life imprisonment on 15th August 1975.  Bridge J's career was to go on to the pinnacle of the judiciary.  He sat as a Lord of Appeal In Ordinary in the Appellate Committee of the House of Lords from 1980-92 - (<a href="http://www.independent.co.uk/news/obituaries/lord-bridge-of-harwich-judge-who-presided-over-the-trial-of-the-birmingham-six-760722.html">Obituary in The Independent</a>). The six convicted men were to spend 16 years in prison.  In <a href="http://obiterj.blogspot.co.uk/2014/11/the-birmingham-pub-bombings-1974.html#more">November 1974 I blogged about the case</a> and its aftermath including the Royal Commission on Criminal Justice which reported in 1993 and the subsequent setting up of the <a href="http://www.ccrc.gov.uk/about-us/">Criminal Cases Review Commission</a> (CCRC). <a href="https://www.blogger.com/null" name="more"></a> When the men were convicted, the inquests into the deaths of the pub bombing victims were adjourned  and they have not since been resumed.  Relatives are currently engaged in an attempt to persuade the Coroner to resume the inquests since they see this as a last opportunity to seek justice for those who died.  Resumption of the inquests is opposed by the Police.  <a href="http://www.bbc.co.uk/news/uk-england-35534745">BBC News England 10th February 2016</a> and <a href="http://www.birminghammail.co.uk/news/midlands-news/pub-bombings-historic-legal-bid-10863260">Birmingham Mail 10th February 2016</a>.   This BBC report also notes the point that, after the convictions were quashed, the former Director of Public Prosecutions (Barbara Mills) placed a 75-year embargo on files relating to a Devon and Cornwall Police inquiry into the West Midlands Police investigation.  Jon Robins writing at The Justice Gap reports on his interview with Patrick Hill one of the Birmingham Six - <a href="http://thejusticegap.com/2016/03/paddy-hill-its-not-the-system-thats-wrong-its-the-bastards-on-the-bench/">"It's not the system that's wrong: it's the bastards on the bench"</a>.  Hill is highly critical of the Criminal Cases Review Commission which he sees as lacking "the balls to stand up to the Court of Appeal."  Hill also expressed the view that the CCRC is a "bastardisation of the original proposals." The Royal Commission did not envisage anything more than an authority that would be independent of the court structure with a power to refer cases to the Court of Appeal and this is substantially the present day position.  The CCRC is empowered only to refer cases to the Court of Appeal and will do so where it considers that there is a "real possibility" that a miscarriage of justice has occurred.  The power to quash a conviction therefore remains fully with the Court of Appeal.  The House of Commons Justice Committee has called for the CCRC to be given the resources and powers it needs to be more effective and the Justice Committee also recommended that the Law Commission conduct a review of the Court of Appeal's grounds for allowing appeals. This includes looking at the current application of the constitutional doctrine of the primacy of the jury. If such a review leads to a change then there should be a subsequent review of the 'real possibility' test used by the CCRC in deciding whether to refer a case.  In the meantime, the Committee recommends that the CCRC be less cautious in its application of the test. The CCRC should err on the side of making a referral if in doubt about a case.  See the <a href="http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/criminal-cases-review-commission-report/">Justice Committee report March 2015</a>.  The CCRC has the power to require public bodies to disclose documents for its investigations, but this power has never applied to private bodies. With private bodies performing more functions traditionally performed by public bodies, this lack of power has hindered the CCRC in some of its investigations. An attempt to remedy this defect is currently progressing through Parliament - see the Private Members <a href="http://services.parliament.uk/bills/2015-16/criminalcasesreviewcommissioninformation.html">Criminal Cases Review Commission (Information) Bill 2015-16</a> and please see this <a href="http://obiterj.blogspot.co.uk/2015/07/criminal-cases-review-commission-powers.html">earlier post</a>. Would it be an easier today for a prisoner to secure a referral to the Court of Appeal?   Paul May writing in The Justice Gap thinks that it would not - <a href="http://thejusticegap.com/2016/03/12768/">25 years on, and it's harder than ever for innocent prisoners to achieve justice</a>.  This article looks at the Birmingham Six appeal in 1987 where the Court of Appeal rejected allegations of ill-treatment by West Midlands Police.  (Why is there a 75 year embargo on release of that matter?).  The article then expresses the view that the Court of Appeal has traditional obduracy towards those claiming innocence and that this has led to the CCRC progressively adopting an extremely timid approach to referral decisions.  The CCRC is also underfunded (as the Justice Committee also noted) and this leads to limited funds for investigation and causes delays in the handling of cases.  Limited legal aid also plays a crucial part. Finally, there is clearly political reluctance at the present day to compensate those who have suffered miscarriage of justice.  Under the <a href="http://www.legislation.gov.uk/ukpga/2014/12/section/175">Antisocial Behaviour, Crime and Policing Act 2014 section 175</a>, in cases of newly discovered evidence, compensation will only be payable if the new evidence shows beyond reasonable doubt that the person did not commit the offence.  This is examined further in a previous post - <a href="http://obiterj.blogspot.co.uk/2015/06/compensation-for-miscarriage-of-justice_14.html">Compensation for Miscarriage of Justice</a> - 14th June 2015.

25 years ago today ~ release of the Birmingham Six ~ problems remain

25 years ago today the "Birmingham Six" were released - BBC Home On this Day 14th March 1991 - after their convictions for murder ...

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25 years ago today ~ release of the Birmingham Six ~ problems remain

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