The Brexit Bill.

And so it came to pass, that the UK government did finally publish a Brexit bill to present to the UK Parliament.

Yes, following the UK Supreme Court’s judgment that the UK Parliament must give its consent for the commencement of Brexit negotiations, the U.K. government tabled the bill which enables such a vote to obtain Parliamentary consent. It is this 137-word bill that will give Prime Minister Theresa May the power to trigger Art 50, and officially begin Brexit negotiations.

The European Union (Notification of Withdrawal) Bill was introduced to the House of Commons and given its First Reading on Thursday 26 January 2017. This stage was a formality, meaning that the bill is presented to the Speaker, its title read out, and all this takes place without any debate. In a statement with the bill, Secretary of State for Exiting the EU, David Davis said he trusted that the UK Parliament “will respect the decision taken by the British people and pass the legislation quickly”. In other words, neither he nor the Conservative government will brook no opposition to the bill, and will argue that to reject the government’s bill is to reject the overall decision of the UK to leave the EU in the 2016 referendum.

During Departmental question time, also on Thursday, Mr Davis refused to guarantee that the parallel government white paper on the withdrawal process, which was announced on Wednesday, would be published before the Art 50 bill had been debated in the Commons:

“It will be as expeditious as we can be, it takes time to do. But we won’t waste time in producing it for the house.”

The publication of this bill prompted UK Labour to table a series of proposed amendments, including one seeking to guarantee that the UK Parliament has a final say on any final deal.

The bill, containing just two clauses and only 137 words long, will be granted five days of time in the Commons, the government announced, prompting concern from some Labour MPs that it could not receive proper scrutiny in such a period. David Lammy MP, for example, said the bill was the “most important decision taken for generations” and allowing five days “shows contempt for parliamentary sovereignty”.

MPs will next consider the Bill at Second Reading, and this is the exciting bit in that MPs will have the opportunity to debate the bill. It is expected to have its Second Reading debate on 31 January 2017, with conclusion of Second Reading scheduled for 1 February 2017.

MPs can table ‘reasoned amendments’ to the motion for second reading, declining to give the Bill a second reading. The choice of any amendment to be considered is made by the Speaker. Any amendments that have been tabled are published in the Order Paper, and to date, five reasoned amendments have been tabled.

The Bill is then due to be considered in Committee on Monday 6 and Tuesday 7 February 2017, concluding in Committee on Wednesday 8 February 2017 when the remaining stages are also due to take place.

S1(1) of the Bill provides that the Prime Minister ‘may notify, under Article 50(2) of the Treaty on European  Union, the United Kingdom’s intention to withdraw from the EU.’. Moreover, s1(2) states that this section ‘has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.’

Interestingly, it is not the only Brexit bill tabled in the UK Parliament. Conservative MP and long-time Eurosceptic, Peter Bone, tabled the PMB, the Withdrawal from the European Union (Article 50) Bill 2016-17. This Bill was presented to Parliament on 30 November 2016, and is expected to have its second reading debate on Friday 24 February 2017.

There is a subtle difference between Mr Bone’s bill and that of the UK Conservative government’s. Whilst Mr Bone’s bill seeks ‘to require Her Majesty’s Government to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union’, the government’s bill aims ‘to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.’ The UK government’s bill, if/when passed by both the Commons and the Lords, directly confers the authority to invoke Art 50 on the Prime Minister. Mr Bone’s bill is basically a ‘hurry it up’ type of bill, stating a deadline for the Prime Minister to notify the EU of her intention to trigger Art 50.

Mr Davis might have commented that he hoped MPs would accept and support the bill, and so ensure the legislation was swiftly passed. However, there could be trouble ahead in the form of the Official Opposition. Labour is divided between following the lead of its leader, or listening to constituents.

The Labour leader, Jeremy Corbyn, confirmed he would seek to oblige his MPs to back the bill, a decision that seems set to cause considerable opposition within the party. (Quelle surprise.) Moreover, when speaking to Sky News, Mr Corbyn said he would impose a three-line whip to ensure the PLP backed the bill.

“It’s clearly a three-line whip…It is a vote on the Article 50 … We will put out a statement today to our members that we want them to vote for Article 50.”

Mr Corbyn acknowledged the pressures MPs faced from their own personal views on Brexit, and that of their constituents, but urged all Labour lawmakers to “unite around the important issues of jobs, economy, security, rights, justice” to help frame the UK’s relationship “with Europe in the future.”

Perhaps trying to achieve the best of both worlds and satisfy all sides, Labour has tabled seven planned amendments to the bill. One such amendment would guarantee a “meaningful vote in parliament” on any final deal. Another amendment would be to guarantee the protection of workers’ rights and securing “full tariff- and impediment-free access” to the EU’s single market.

The other five amendments are: to ensure Mr Davis reports on progress to the Commons at least every two months, guaranteeing the rights of foreign EU nationals living in the UK; obliging regular consultation with the devolved governments, require regular impact assessments on the effects of leaving the single market, and to oblige the government to keep all existing EU tax avoidance and evasion measures.The final amendment is targeted at the government’s threat that if the UK does not get a sufficiently good deal from the EU it will walk away and shift the economy towards low regulation and tax.

The party will also support two more amendments, drafted by Melanie Onn MP, connected to protecting workers’ rights.

There has now been over sixty pages worth of amendments submitted, including a joint amendment from the SNP and SDLP, who are advocating the Scottish and Northern Irish Remain mandates respectively, and seek to uphold the devolved administrations’ role in the negotiations.

The issue becomes, of course, whether any of the numerous amendments will succeed: they would require cross-party support to pass. With so many amendments, there comes a risk that amendments will fall as parties feel other parties’ amendments do not go far enough, or go too far.

It had been wondered whether Mrs May might have to contend with trouble from within her own ranks, let alone from across the aisle. After all, Mrs May has a slim majority in the Commons, and one which she must guard and monitor carefully. A handful of backbench rebels, especially on Brexit, would present the perception to the public that she cannot control her own party, let alone the Brexit negotiations which will soon take place.

However, it appears that the Prime Minister might be able to strike one concern off the list: she most likely will face no rebellion, and will only have to face down any Labour MPs who rebel Mr Corbyn’s three-line whip, and other MPs who have vowed to vote against the government’s bill, including the Lib Dems, the SNP, and the SDLP.

Indeed, news came today that potential Conservative rebels are now quietly backing away from supporting amendments proposed by Labour, or other opposition parties. Moreover, a band of Conservative MPs fighting in particular against a hard Brexit are indicating they have been largely satisfied by the prime minister’s promise of a white paper. Consequently, Labour and the Liberal Democrats now believe there is very little chance of getting enough cross-party votes for amendments – the very issue I had previously addressed. They had hoped to win support on issues such as guaranteeing the rights of EU nationals, and a more meaningful vote at the end of the two-year negotiations or protections in the House of Commons. Instead, opposition parties are now concentrating on getting the government to concede points voluntarily, with Labour MPs believing the most likely proposal to be accepted is a demand for the Prime Minister to provide quarterly updates to the UK Parliament on the negotiations.

This does not mean that MPs will not seek to hold the UK government to account. Indeed, some MPs may still table amendments or support tabled amendments in an effort to restrain the Prime Minister in her quest for a hard Brexit. For example, MPs may come together to focus on ensuring the UK is not taking out of the Single Market without a Parliamentary vote. After all, the referendum last year asked the electorate whether they wanted the UK to remain in or leave the EU – it never mentioned anything about withdrawing from the Single Market, or the Customs Union.

Mrs May is aiming to have the bill passed through both the Commons and the Lords to meet her self-imposed deadline of invoking Art 50 by the end of March. It seems more than likely her government’s Brexit bill will pass, but not without debate and bumps along the way. How she emerges at the other end before triggering Brexit remains to be seen, but it is important that she does not appeared weakened after a bloody battle with MPs.

 

 

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UK justice is not a priority during Brexit negotiations.

I have recently written about the legal ramifications of Brexit, whether in relation to the jurisdiction of the ECJ to the registration of British lawyers with the Irish Law Society.

It is evident that the overall majority decision of the UK to vote to withdraw from the EU has wide-reaching consequences, particularly within the legal sector. A pity that this was never fully addressed or considered during the referendum campaign – by either side – but I suppose it does not suit to dwell on the past, and the lack of clarity provided during the campaign.

Yet, following the discourse surrounding Brexit since the referendum last summer, it becomes apparent that the economy and immigration seems to be high on the UK government’s priorities. Whether discussing trade agreements, creating a stronger economy, reducing EU red tape, or debating freedom of movement and the need for borders (see: Northern Ireland), it seems the UK government is only interested in the financial aspect of Brexit. It seems to have forgotten about other issues, let alone law and order.

Interestingly enough, the Justice Committee in the UK Parliament is currently undertaking an inquiry into the implications of Brexit for the UK justice system. With regards to the scope of this inquiry, the Committee is interested in views on the likely effects of Brexit on the processes of criminal and civil justice, as well as views on the financial effects on the legal sector and business and the economy more widely. It is also interested on steps which should be taken in the process of Brexit negotiations or by other means to minimise any adverse effects and enhance any positive effects.

It was whilst giving evidence to this Committee inquiry that criminal law practitioners recently highlighted the challenge that leaving the EU will pose to international criminal justice cooperation. Moreover, it was suggested that the topic of justice is not currently high on the UK government’s Brexit agenda.

Members of the Criminal Law Solicitors’ Association and Criminal Bar Association spoke in relation to the importance of the European arrest warrant (EAW). However, both representative bodies told Committee members the UK government had not consulted them on the mechanisms for the EAW to continue post-Brexit. It seems rather incredible that the UK government would fail to consult on such an important legal issue, but there we have it.

CLSA member and solicitor Michael Gray, founding partner of Gray & Co Solicitors, told MPs it was disappointing that the justice debate had not happened sooner:

‘because it would have been useful for the public generally to see what an intricate, complicated web of cross-border cooperation we have in place, and that people have worked hard to put in place’.

Mr Gray was responding to Committee member Keith Vaz MP, who had noted justice had not been a priority for the UK government. Indeed, Mr Vaz pointed out that discussions pertaining to Brexit has consistently focused only on trade, immigrations, and the economy to date.

Earlier in the session Mr Gray told the committee that the EAW was a ‘very powerful tool’ being used on a daily basis, adding that it was not just an important tool in the fight against crime, but also in bringing justice for all those concerned.

However, he predicted ‘huge problems’ in future negotiations, noting Norway and Iceland’s lengthy efforts to establish their own bilateral extradition agreements that mirror the EAW.

Meanwhile, CBA chair Francis FitzGibbon QC acknowledged there was no reason why access to the European Criminal Records Information System should not be negotiable. At present, no non-EU member states can access the system, which was set up in 2012.

However, Mr FitzGibbon warned that to get access to that kind of information, the UK would have to be compliant with EU data protection standards. Moreover, Mr FitzGibbon pointed out that difficulties would arise when the UK was outside of the EU with regards to the sharing of data. This would subsequently cause problems for co-operation across the board when it came to law and order matters.

In addition, Mr FitzGibbon predicted that the implications of the judgment on surveillance handed down in Secretary of State for the Home Department v Watson and Others in the ECJ, and forthcoming data protection reforms, could potentially cause ‘significant’ problems post-Brexit.

It is obvious that there are many issues to contend with and consider regarding Brexit, particularly in the legal sector. I will follow the Justice Committee’s inquiry, which evidently is much-needed. It is simply frustrating to read the comments given by representatives from the CLA, and CBA, and remember how little consideration was truly given to the potential consequences of the UK withdrawing from the EU when the decision to propose holding a referendum first came to pass.

The UK government only appears concerned with matters of law and order and justice when constantly repeating that with Brexit, the UK courts are now sovereign. It is a vague mention, and it is not enough. More thorough consideration is needed going forward.

The Conservative Party, the ECHR, and the endless quest for British Bill of Rights.

Too many u-turns, and your neck will ache as though you could put in for a whiplash claim.

At least, this is how I feel when it comes to the British government, and the British Prime Minister, Theresa May, in particular with regards to the European Convention of Human Rights (ECHR). Will they withdraw the UK from the Convention, or will they not? Will we have the so-called British Bill of Rights, or will we not?

It feels as though this hemming and hawing has been going on for years. That’s because it has.

It started in 2010, in the Conservative Party’s manifesto for the General Election. The party pledged to repeal the Human Rights Act 1998, and replace it with a British Bill of Rights. Sound familiar? It should: the same pledge was included in the party’s 2015 General Election manifesto. (The same manifesto which promised to hold a referendum on the UK’s membership of the EU, and look how well that one turned out.)

Why is the Conservative party so desperate to repeal the Human Rights Act 1998, and implement instead a British Bill of Rights? After all, the aforementioned Bill of Rights would undoubtedly contain rights already legally recognised and protected in the 1998 Act. But the 1998 Act enshrines the ECHR rights into domestic application, and the ECHR just feels ‘foreign’ to the Conservative party. It’s probably the ‘European’ in ‘European Convention of Human Rights’ that does it.

The thought process of the Tories seems to be that by scrapping the 1998 Act, any formal link between British courts and the European Court of Human Rights (ECtHR) will be broken, and so the British courts ‘reclaim sovereignty’. Moreover, the reasoning goes, severing this link and withdrawing from the jurisdiction of the ECtHR would empower the UK Supreme Court as the highest legal authority. Conservatives argue foreign nationals who have committed serious crimes are able to use the freedoms guaranteed within the 1998 Act to justify remaining in the UK. They have also expressed their concern at perceived overreaching by the ECtHR, attempts to overrule decisions made by the UK Parliament and the courts e.g. lifting the ban on prisoners’ voting rights, or banning whole-life sentences for serious crimes.

The Conservatives therefore plan to introduce this infamous British Bill of Rights rooted in “British values”. The Human Rights Act contains a “laudable” set of principles for a modern democratic nation, says the party, and it does not plan to introduce new basic rights. Instead, the intention is to restore common sense and tackle this apparent misuse of the rights contained in the ECHR. The Conservatives published a short strategy paper outlining some of the key ideas in 2014 and promised to publish a full draft bill before the 2015 general election, but this never materialised.

The fun fact is, there are major blocks before the Conservative government, and always have been. In 2010, it was their coalition partners, the Liberal Democrats, who refused to back the repeal of the 1998 Act. In more recent times, the Commons, the House of Lords and the devolved Assemblies are set to be headaches for the UK government.

In the Commons, it must be remembered that Prime Minister May holds only a thin majority. Any backbench Tory rebellion against a proposed repeal bill/introduction of a British Bill of Rights, any suddenly Mrs might find herself caught in a tight spot by a relatively small number of rebels joining Labour and SNP ranks. This isn’t unthinkable: several prominent Tories have already voiced their criticism, including former justice minister Ken Clarke and former attorney general Dominic Grieve QC. They have warned repealing the 1998 Act could undermine the rule of law and risks putting the UK into conflict with the European court. Even if any bill managed to scrape pass the Commons, the Tories are outnumbered in the House of Lords.

The devolved administrations would serve as a thorn in the side of the UK government. In Scotland, First Minister Nicola Sturgeon has repeatedly vowed to oppose the plans. In Northern Ireland, moves by the UK government to repeal the 1998 Act would breach the Good Friday Agreement, in direct violation of international law. (The Good Friday Agreement is recognised as an international treaty, and was lodged with the UN.)

The plans also contravene various national agreements. The Sewel convention dictates that parliament cannot legislate for devolved matters without the consent of Scotland and Wales. Pushing any proposed bill through would therefore violate this convention. This, and the breach of the Good Friday Agreement, would provoke a constitutional crisis in the UK.

However, none of the above seems to have deterred the Prime Minister, and her Cabinet, from pursuing their objectives. That is, not until the outcome of last summer’s referendum on the UL’s membership of the EU. Since then, we have seen an interesting turnabout in rhetoric and policy.

In December 2016, it was reported that Theresa May was planning on putting withdrawal from the ECtHR at the core of the 2020 Conservative general election manifesto. Before she became the Leader of the Conservative party, and Prime Minister, Mrs May had made clear that she wanted the UK to withdraw from the ECHR, and the jurisdiction of the ECtHR.  In a speech in April she said the ECHR:

 “can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals and does nothing to change the attitudes of governments like Russia’s when it comes to human rights”.

Yet during her leadership bid, Mrs May said pulling out of the ECHR was not something she could pursue in this Parliamentary mandate because of the Conservative’s slim majority.

And interestingly enough, the details of the Bill of Rights plans were initially drawn up by former Justice Secretary Michael Gove, who was sacked as part of Mrs May’s 2016 summer reshuffle.

Since becoming Prime Minister, it was then reported Mrs May planned to fight the 2020 General Election on a platform of leaving the ECHR. It was reported the Prime Minister sought to “lift and shift” rights protections so people in the UK could only seek rights protections in UK courts, not the ECtHR. It was also reported Mrs May “has decided that she cannot start that fight with the prospect of negotiating Britain’s exit from the European Union set to dominate Parliament over the next few years.” Therefore, Conservative plans to replace the 1998 Act with a British Bill of Rights were seemingly put on hold, albeit temporarily, because of the Brexit result.

The report also said:

A senior Government source said: “We would have been looking at having a huge row with a Parliament to get through the Cameron plan and we might even have failed. A clean break is by far the best option and, if we put it in the manifesto, even those Tory MPs who are squeamish about the idea will have to get behind it. A manifesto pledge also means the Lords will have to let it through eventually. All the signs are that the Prime Minister is up for this.”

You have to note the irony here: the Conservatives’ long-hyped promise to repeal the 1998 Act was admitted to have been temporarily shelved because of the delivery of another manifesto promise, that of the EU referendum.

But it does not end there. You see, come January 2017, it becomes apparent that perhaps the shelving of the plans was not going to be temporarily after all.

It was reported that Theresa May was preparing to permanently abandon plans for a British Bill of Rights after the UK leaves the European Union, because of the belief that Brexit would strengthen the sovereignty of UK courts.

Comments delivered in the House by Sir Oliver Heald, a Justice Minister, had suggested a decision on whether to introduce a British Bill of Rights will not be made until after the General Election in 2020. Yet, it was suggested the drafting and implementation of a British Bill of Rights is now unlikely to happen at all due to concerns that Mrs May would face a rebellion by Conservative MPs. And as previously outlined, all it would take is a small band of backbench Conservative rebels to cause trouble, given Mrs May’s slim majority in the Commons.

Of course, the Prime Minister could call for a snap election in an attempt to boost her majority. Whilst this is unlikely, it is not completely so: British Labour is struggling in the polls, and as the UK Supreme Court recently ruled the UK Parliament must be granted a vote on Art 50, Mrs May might think it better to increase her majority now for an easier life in the long run.

Whilst Mrs May and her Cabinet might have agreed to quietly abandon the plans to repeal the 1998 Act and introduce a British Bill of Rights, I wonder whether those who supported the plans within the Conservative backbenches will also stay quiet.

Mrs May imposed a March 2017 deadline to invoke Art 50, and thus commence the negotiations with the EU which would conclude with the UK leaving the EU. It will be interesting to see whether or not repealing the 1998 Act will be brought back, especially if there should be a snap election. Would this once more be a pledge in a manifesto?

Whatever happens, it must be noted that any move to withdraw the UK from the ECHR and the jurisdiction of the EctHR is something to be cautious about.

Skirts, photographs, and the Law.

There will come a time when hemlines and skirts and dresses do not provide a course of contention and frustration.

“Leah, you cannot go out in that dress,” my mother would say in a horrified exclamation. “it’s too short!”

Who would think taking a photograph of a woman’s skirt, and indeed underneath it, would ever been held as a legal act? Well, in some parts of the world, that is exactly the case.

During last summer, a  US court ruled it is legal to film up a woman’s skirt without consent because of a “gap” in the law surrounding invasion of privacy. I kid you not.Taking mobile phone pictures or videos up a woman’s skirt without her consent is perfectly legal in Georgia, a Georgia Court of Appeals ruled last July

It goes like this. A man confessed to using his mobile phone to record a video, placing it under a woman’s skirt within a supermarket. Brandon Lee Gary was prosecuted in 2013 on a single count of ‘unlawful eavesdropping and surveillance’ after he was witnessed several times on CCTV footage taking video recordings with a mobile phone beneath the skirt of a customer while she was shopping. He duly appealed his conviction to the Appeals Court, which held the state’s voyeurism law did not prohibit his actions.

Incredibly, the state’s law – the Invasion of Privacy Act – prohibits such recording only if they “occur in any private place and out of public view.” By recording under a women’s skirt in plain sight in a public setting, the supermarket, this man was not breaking the law. His actions were within the realm of the law.

Now, voyeurism laws as such this were typically passed to protect people from non-consensual filming in private places like homes, dressing rooms and locker rooms—not in public spaces like a supermarket store. In Georgia, the ruling came down to the interpretation of ‘place’ within the legislation. The Appeals Court was divided, but ultimately, the majority opinion held that ‘place’ referred to a physical location, not an area of the body. Therefore, the non-consensual photos taken were deemed to be legal.

In other US states, it is the narrow interpretation of a phrase ‘reasonable expectation of privacy’ in voyeurism laws that ensures so-called upskirt photos can be held as legal because generally, one cannot have a reasonable expectation of privacy whilst present in a public space. The expectation of being entitled to privacy derives from being in private, such as one’s house.

However, some US states have changed their laws or passed new ones specifically to address upskirt recordings. In the state of Virginia, for example, state lawmakers added a specific clause expressly prohibiting taking photos or recordings ‘of the person’s intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public.’

The voyeurism law in Washington state is another example of legislation which clearly prohibits this kind of recording. To provide a paralell between the states of Georgia and Washington and their respective laws – a few days prior to the handing down of the Appeals Court’s judgment, a Transportation Security Administrator agent was arrested on suspicion of taking upskirt photos of female passengers at the Seattle-Tacoma International Airport. 

Georgia Appeals’ Court Judge Elizabeth Branch wrote:

“The question before this court, however is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated.

“Rather, the only issue presented by this appeal is whether the defendant’ s conduct constitutes a criminal invasion of privacy…”

“[I]t is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct,” she writes.

“Unfortunately, there is a gap in Georgia’s criminal statutory scheme, in that our law does not reach all of the disturbing conduct that has been made possible by ever-advancing technology.”

Evidently, this judge was aware that the law required adaptation and reform, highlighting there was a gap in the law which had not caught up with technological advances. It is here perhaps that US states like Georgia could follow the lead of Massachusetts and Texas lawmakers.

In 2010, a Massachusetts Bay Transit Authority undercover female police officer caught a man named Michael Robertson taking photos and videos up female riders’ skirts and dresses with his mobile phone. His case went to the Massachusetts Supreme Judicial Court, where the judges ruled in March 2014 that the upskirt photos he took were legal because the women were fully clothed. However, legislators in Massachusetts immediately drafted a new law making it illegal for someone to take secret photographs and recordings, even when someone is fully clothed. The governor signed it into law a mere two days after the court’s ruling. The court had to adhere to the law, but state legislators realised the law needed reform, and drafted a new, modernised law.

A similar scenario played out in Texas last year, where a new law was passed prohibiting upskirt recordings soon after the wording of the previous law allowed a man to get away with taking photos up a woman’s skirt as she shopped in a store.

You may wonder why I am writing about these cases and laws, why I am shocked at the state law in Georgia. You might therefore wonder why it is important to prohibit such behaviour, especially if many women are unaware that they are being recorded.

Put it this way: it is wrong, for it encroaches into someone’s private sphere of their body. It violates their dignity. It is done without consent. Taking recordings up someone’s skirt, simply does not add anything positive to society. Instead, it can make women feel less safe and comfortable in public spaces, just because of the knowledge that they could be the target of such actions. If they have been recorded before or know someone who has, they may feel violated, upset and distrusting while in public spaces. Upskirt recordings are a form of gender-based street harassment, a problem which ranges from lewd and sexual comments to following and groping. It makes citizens feel less safe, emotionally wrought, might be re-traumatising for any survivors of sexual abuse, and simply implies that they are worth no more than their body.

Why do we need a law against upskirt recordings? Laws generally serve to set the tone that certain behaviour is unacceptable. 

Moreover, bystanders can play a role. If you see someone taking an upskirt photo and you feel safe to do so, call them out, videotape them, or take some other type of action that lets them (and everyone else nearby) know that this behaviour is wrong. Social shaming can be a powerful deterrent.

It takes all of us to help ensure that everyone feels safe in public spaces. We all deserve respect for our self, our rights, and our dignity.

Brexit and the CJEU.

Prime minister Theresa May last Tuesday vowed to end the influence of the Court of Justice of the European Union (CJEU) over UK law, in a much-trailed speech in which she confirmed the UK would not remain a member of the single market.

The Prime Minister confirmed that remaining in the single market would mean ‘not leaving the EU at all’ as it would have to accept continued jurisdiction of the CJEU, which she said would have a ’direct legal authority in our country’.

“Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast,” Mrs May said. “And those laws will be interpreted by judges not in Luxembourg but in courts across this country.”

Whilst this portion of the speech provided clarity and certainty to the legal world regarding the CJEU, understandably the general response to the speech was a cautious one.

Bar Chair Andrew Langdon QC said: “[Tuesday’s] speech from the prime minister has provided some much needed clarity on the government’s direction of travel over Brexit. Central to our success is the ability of barristers, solicitors and other legal professionals to provide legal services across national borders within the EU, and we support the prime minister’s welcome reassurance that the UK will remain open to international talent.”

After all, for all of Mrs May’s words, it should be noted that withdrawing from the jurisdiction of the CJEU is easier said than done. Moreover, the Prime Minister might not actually want a rapid withdraw from the CJEU: she stressed there would be a transition phase, and an implementation phase that would deliver the full future relationship going forward. She has been careful to reassure businesses by highlighting the intention for the continuity of laws post-Brexit.

Another consequence of leaving the CJEU is that the recognised jurisdictional rules on recognition and enforcement embedded in the EU framework would no longer apply. However, the UK and EU will be open to agree bespoke arrangements based on their mutual interests, which may go beyond existing conventions.

May’s commitment to leaving the CJEU appears to contradict the government’s previously signalled intention to accept aspects of CJEU authority by agreeing to sign up for the European Unified Patent Court (UPC), part of which will be based in London.

Last week, The Law Society listed continued access to the CJEU as a priority for English and Welsh lawyers. In its submission to the Department for Exiting the European Union and the Ministry of Justice, Chancery Lane also said the UK should focus on ‘maintaining, or introducing arrangements equivalent to EU directives on establishment and professional qualifications, mutual recognition and enforcement of judgments and maintaining collaboration in policing, security and criminal justice.

In her speech, Mrs May did stress she wanted the UK to create its own laws but confirmed that EU law would, at least temporarily, remain in place after UK withdrew from the EU. She said:

“The same rules and laws will apply on the day after Brexit as they did before. And it will be for parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.”

May also agreed with Chancery Lane’s calls for collaboration in policing, security and criminal justice saying: ‘I want our future relationship with the EU to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies.’

It should be noted that whilst Mrs May might have a stance on the legal issues and ramifications of the vote to Leave, she must acknowledge the position of the EU, and the Member States who will form a united bloc during the negotiation period.

Indeed, Joseph Muscat, Prime Minister of Malta – which has assumed the EU’s rotating Presidency – recently stated that EU law will continue to apply in the UK as an essential part of any transition deal. He stressed that the writ of the EU court was an essential part of any deal to smooth the path to Brexit, saying:

“It is not a transition period where British institutions take over, but it is a transition period where the European court of justice is still in charge of dishing out judgments and points of view.”

Interestingly, whilst the EU’s chief negotiator, Michel Barnier, has spoken in private about avoiding an overly comfortable transition, Mr Muscat’s comments marked the first time an EU leader has publicly stated that the CJRU must be part of a transitional deal.

Clearly, EU law and the CJEU will play an important role during the Brexit negotiations. So, law students – expect to still be subject to studying EU constitutional law for a while yet.

UK Supreme Court and Brexit.

This week, a date was released and confirmed which set many legal eagles on Twitter aflutter with excitement and anticipation. The date promises to be a landmark in UK constitutional law, dealing as it does with the tangle that is law, politics, Parliamentary sovereignty, and royal prerogative. I am of course referring to the important legal challenges to Brexit, which last year reached the highest court in the UK, the UK Supreme Court.

The UK Supreme Court will deliver its long-awaited judgment on Tuesday 24th January on whether UK government Ministers or the UK Parliament have the legal authority to invoke Art 50, and thus trigger Brexit. More specifically, the ruling will resolve whether the UK government, through its inherited use of royal prerogative powers, may invoke Art 50 TEU without the explicit approval of MPs and peers. Invoking Art 50 formally begins the process of the UK’s withdrawal from the EU. If a majority of justices decide, as is widely expected, that parliamentary support is required, then the judgment is expected to specify that a legislative act is needed.

Art 50 states any member state may leave “in accordance with its own constitutional requirements”, an undefined term that has allowed the UK government and the citizens behind the legal challenges to pursue rival interpretations. Consequently, and unsurprisingly, the case has opened prompted debate over the interpretation of the unwritten constitution of the UK.

Moreover, the ruling will have implications outside of England. The devolved administrations in Edinburgh, Cardiff and Belfast will also read the judgment closely to see whether it grants them any procedural or consultative role in the process. (This should be interesting in the case of Northern Ireland, given that Stormont will be dissolved from 26th January onwards due to a snap election being held in March.) The judgment will test the significance of the Sewel convention, which says that if Westminster is introducing legislation on issues that have been devolved it “normally” has to seek the consent of the devolved parliaments.

The lead claimant in ‘main’ case (the one which the Anglo-Welsh High Court found in favour of the applicant) is the investment manager Gina Miller. Ms Miller, who says she has received death threats, has said her case is about asserting Parliamentary Sovereignty and not an attempt to reverse Brexit. Another claim was brought by a London hairdresser, Deir Dos Santos.

The case was conducted on the basis that Article 50, and therefore Brexit, cannot be reversed once begun. But it shall not be the only legal challenge on the matter – a separate legal challenge is due to take place in Dublin this spring to test its revocability. Another is due to be heard in London to establish whether the UK automatically quits the single market or European Economic Area when it leaves the EU.

The panel of 11 justices is the largest ever assembled for a single case since the law lords were created in 1876. This large sitting is recognition of the constitutional significance and political sensitivity of the cases at hand. The court normally sits in panels of five.

The reading of the summary by Lord Neuberger is expected to last only five minutes. The proceedings will be broadcast live on the supreme court’s website. Lead counsel from the main parties will be given sight of the judgment an hour and a half in advance of its delivery.

The full judgment will be put online at around 9.35am. The court’s judgment may be divided into several sections depending on whether or not individual justices choose to deliver dissenting – or concurring judgments stressing different aspects of the ruling.

Draft versions of judgments are often circulated to parties involved in a case several days beforehand. Government sources have already signalled that they expect to lose the main point of their appeal and have begun drafting versions of a bill to put before parliament approving Brexit.

Tuesday 24th January will prove to be a monumental occasion in both UK law and politics. It will be interesting to see which side the UK Supreme Court finds in favour of, and interesting to see the response of the UK government going forward.

Brexit means Brexit means a Speech.

And so it came to pass, in the year of our Lord 2017, that the Prime Minister of the UK finally did deliver a speech pertaining to Brexit which was more than mere soundbites and promises of what Brexit entails. (Which to date had entailed Brexit, apparently.)

For yes, after weeks of speculation with regards to what exactly the British government is seeking to achieve upon the commencement of the negotiations to withdraw from the EU, and trailed hints to the media, Mrs May did set out her vision for the future in a speech this week. Evidently, the Prime Minister hoped to silence those critics who have said she has been evasive about her plans, or indeed even lacking in plans. Whilst some aspects of the UK’s negotiating position had already been revealed over the past few months, there were interesting statements within the speech.

I thought that POLITICO EU’s take on the speech was rather apt:

“David Cameron would complain that Theresa May was like a submarine, disappearing for months only to emerge at the time of her choosing. As prime minister, she is behaving no differently.

Having spent months preparing for her big Brexit reveal, she resurfaced with intent Tuesday, taking control of Britain’s exit from the European Union just as it threatened to run away from her.

Reporters, starved of phone signal and breakfast, had trudged up the stairs from their dingy holding pen in the bowels of Lancaster House in central London dreading more platitudes and soundbites.

They needn’t have worried.

…May set out her stall with a clarity that left few in Westminster — or in Europe — complaining. Not everyone will like what she is saying, but May can no longer be accused of not knowing what she wants.”

Before Theresa May delivered her speech, there were some details of which we already were aware of, as well as areas we knew she would address.

For example, we knew Mrs would firmly rule out the possibility of the UK staying in the European single market, and she would seek to make immigration controls a priority in Brexit negotiations. It had been trailed that ending unlimited EU immigration and abolishing the European Court of Justice’s role in British courts will be among 12 “negotiating principles”, Mrs May would discuss during the speech at Lancaster House in London, along with creating the freedom to negotiate bilateral trade deals outside Europe. The decision to withdraw from the single market was seemingly to ensure that the British government delivers on Leave voters’ desire to take back control over immigration.Yet, it had been said that the Prime Minister would be less definitive on whether the UK will seek to remain in the bloc’s customs union, which allows goods to move freely without customs checks.

This trailing in the media prior to the delivery of the speech was unsurprising. After all, Theresa May and David Davis, the Secretary of State for Exiting the EU, had both already implicitly ruled out the UK remaining in the single market. This however wasn’t the brave and bold political statement is sounded like, but rather an expression of political reality. There is no way the EU would allow the UK to remain a member of the single market whilst it insisted on imposing restrictions on free movement and pulling out of the European Court of Justice.

As for continued membership of the customs union – this is a very complex area. Moreover, despite some claims from politicians, there is not a binary choice between membership of the customs union, and the ability to do free-trade deals with other countries. Turkey, for example, has a customs agreement with the EU, but does have some limited flexibility to initiate its own trade agreements. Precise arrangements are open to negotiation. So on that basis, it was expected that Theresa May would place an emphasis on the ability of the UK to set its own trade policy post-Brexit as a priority.

 

So what exactly did the Prime Minister outline on Tuesday?

Single Market

Theresa May confirmed the UK cannot and will not remain a member of the single market after it leaves the EU. She said this was because, as European leaders have stressed, the UK would have to accept EU rules and regulations and be bound by the European Court of Justice. So instead, she said, the UK will push for a new “comprehensive free trade agreement”, giving it “the greatest possible access” to the single market.

The deal might contain “elements” of the current arrangements, she said, singling out the the motor trade and financial services as examples.

Customs Union

The Prime Minister specified that the UK will exit the EU customs union, saying elements of it (the Common Commercial Policy and the Common External Tariff) prevented the UK from striking trade deals around the world.

At the same time, she said she wanted the UK “to have a customs union agreement with the EU”. (Basically, a rose by any other name would still smell as sweet.)

She added: “Whether that means we must reach a completely new customs agreement, become an associate member of the customs union in some way, or remain a signatory to some elements of it, I hold no preconceived position.”

Immigration

The British government has concstantly made clear that there will be restrictions to EU migration as a result of the referendum. This was reiterated by Mrs May in her speech this week.

She said: “The message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver.”

But the precise model to be used has not yet been confirmed. (It is easier to make promises, before you realise the complex issues arising from actually keeping the promise.)

During the referendum campaign, Vote Leave called for a “points-based” system, similar to that used in Australia. But this model, which would involve applications being accepted on the basis of skills, has been rejected by Mrs May, who says it would not give sufficient control to the government.

An alternative, which Home Secretary Amber Rudd has said is under consideration, is to require migrants to have a work permit before coming to work in the UK, with ministers able to prioritise different sectors.

Parliamentary vote

The Prime Minister confirmed that upon the conclusion of the negotiations, Parliament shall vote on the agreed deal. She said: “l will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.”

After her speech, the Secretary of State for Exiting the EU, David Davis, told MPs the UK would be leaving the EU whatever the outcome of the vote.

But bear in mind that the British government will also be forced to consult Parliament prior to even commencing negotiations if it should lose the legal challenge over Article 50. (The UK Supreme Court recently announced it shall hand down judgment on this issue next Tuesday 24th January.)

Deal or no deal

The Prime Minister gave her strongest warning yet ahead of the negotiations, saying a “punitive deal that punishes Britain” would be “an act of calamitous self-harm for the countries of Europe” and would “not be the act of a friend”.

She added that “no deal for Britain is better than a bad deal for Britain”, and threatened to walk away from the table should any proposed deal not be considered good enough for the UK.

There was another warning for the EU in the speech, as she told her fellow leaders to “respect difference”, rather than “trying to hold things together by force, tightening a vice-like grip that ends up crushing into tiny pieces the very things you want to protect”.

UK contributions to the EU Budget

As it will not be in the single market, Mrs May vowed that the UK will not pay “huge sums” to EU budgets.

In some circumstances it may have to make an “appropriate contribution” to be part of European schemes, she said. Yet she added: “But the principle is clear: the days of Britain making vast contributions to the European Union every year will end.”

(Good news, NHS! You might just receive some of that long-foretold £350m a week… Oh wait. Nevermind.)

In sum: Theresa May sought to take charge of the upcoming Brexit talks by deciding what they will be about. She will not even try to squeeze new concessions on free movement out of Brussels while staying in the single market. Instead, the UK will be leaving the free-trade bloc of its own accord.

We now know for certain the British government wants a trade deal so that it can exit stage left from almost all of Europe’s legal and economic strands and regulations. In setting out her cards this way, Mrs May lowered the UK demands, but took control over what will be laid out on the table.

Whilst that sounds as though it is Theresa 1, the EU 0, it isn’t all that it appears at first glance.You see, the Prime Minister might have seized control of the agenda but she has sacrificed time. In calling for everything, including a new trade deal between the UKand the EU, to be concluded within two years she has bound herself in a restricted schedule most people in Brussels will consider impossible.

In addition, any successful deal will rest on the length and scope of “the transition,” which Mrs May admitted was vital to avoiding a cliff edge for the economy. The Prime Minister attempted to dress up the plea for time in strident terms, saying the UK would not accept an “unlimited transition”. The problem is that whilst this was an attempt to strongarm the EU into ensuring a smooth and timely transition period and therefore protect the UK’s economy, the EU will not consider the length of the UK’s transition peroid to affect it, and so will not strive to look out for the UK’s interests.

Mrs May also called for a “phased process of implementation.” This was open-ended and potentially wide-ranging.A transition might be about immigration controls, she said, or the new customs agreement, or criminal justice matters. “For each issue,” she said, “the time we need to phase-in the new arrangements may differ.”Again, there is another problem for the Prime Minister: the EU is fine with a transition, so long as the UK sticks to the rules of the club. Again, it will not seek to curb the length of a transition period.

Mrs May admitted the “arrangements” would be a matter of negotiation, but she will be hard pressed to enter the 2020 general election without full control of many of the Brexit promises, particularly immigration.

Whilst Mrs May’s long-awaited speech did eventually provide some detail and a dash of certainty, I also wonder whether it provoked more questions than answers.