Stop the coup …?

Photo by Samuel Zeller on Unsplash

On 28 August 2019, the UK Prime Minister, Boris Johnson MP announced that he would seek the permission of Queen Elizabeth II, the British Head of State to prorogue (suspend) the sitting of the Westminster Parliament between 10 September and 14 October 2019. The Queen duly acceded to this request – though in her defence she could not really refuse being a mere ceremonial Head of State i.e. without possessing real executive powers

The Prime Minister has argued that there was nothing untoward or sinister about this development and that it was a necessary step to introduce a new Queen’s Speech which would set out the priorities of the Government which he leads.

This did not convince opposition politicians (Jeremy Corbyn, Nicola Sturgeon and Jo Swinson et al) who predictably labelled the move a “coup” i.e. an unlawful seizure of power and the undermining of British democracy. They argued that the move to suspend Parliament for 5 weeks was more about the Prime Minister driving his Brexit agenda through without proper parliamentary scrutiny – not about a new legislative programme.

In any event, the courts have now become involved in the matter: 78 British parliamentarians (representing all strands of political tradition) petitioned Scotland’s Court of Session to have Prime Minister Johnson’s action declared invalid.

A preliminary hearing took place last week and the judge, Lord Doherty was refused to grant the petitioners an interim interdict (a temporary court order) preventing the Prime Minister from carrying out his intention to prorogue the UK Parliament. A full hearing of the Court followed on Tuesday 3 September in Edinburgh, where both sides (the petitioners and the UK Government) set out their respective legal arguments in full.

As of this morning (Wednesday 4 September 2019), Lord Doherty has made his decision whereby he has declined to uphold the petition to prevent the Prime Minister from proroguing Parliament.

A link to Lord Doherty’s opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh70.pdf?sfvrsn=0

The underlying rationale of Lord Doherty’s judgement seems to be that this political and not a legal matter. In other words, it will be for members of the UK Parliament – or ultimately the British electorate – to sort out this matter.

A link to the Evening Standard’s website containing video footage of Lord Doherty delivering the substance of his opinion can be found below:

https://www.standard.co.uk/news/politics/scottish-courts-throw-out-challenge-to-boris-johnson-proroguing-parliament-a4228621.html

This will not be the final word on the matter – there are bound to be appeals against Lord Doherty’s judgement (and he may well be relieved to be exiting stage left). I would not be surprised if this matter ultimately proceeds to the UK Supreme Court for a definitive judgement.

This, of course, is one of the problems with having an unwritten British Constitution. In other countries, which have written constitutions (France, Germany, Italy and the USA), there are very clear rules about suspending Parliament or the national legislature. Only last week in Italy, the prominent politician Matteo Salvini withdrew his party (the Northern League) from the Government in an attempt to force fresh, national elections. Mr Salvini miscalculated because the Italian President (the Head of State) decided not to dissolve Parliament and call new elections. Rather the President gave Salvini’s ex-coalition partner, the 5 Star Movement, and the Democratic Party an opportunity to form a new government (which they have duly managed to achieve). President Mattarella was clearly entitled to take this action under the relevant Articles of the Italian Constitution.

This does not mean that, in political systems with written constitutions, the courts have no role. Of course they do. It is an accepted part of the political culture of these countries that a Supreme Court or a Constitutional Court will be the final arbiter of very thorny legal and political issues e.g. the role of the US Supreme Court in legalising abortion (Roe v Wade 410 U.S. 113 (1973)) or same sex marriage (Obergefell v Hodges 576 U.S. ___ (2015)). They may be controversial in nature and generate heated debate for decades to come, but very few US citizens would contest the right of the Supreme Court to make such judgements.

As a point of contrast, note the hysteria which was generated when judges of the English High Court permitted Gina Miller’s action to succeed in blocking former Prime Minister Theresa May’s attempt to trigger Article 50 of the Treaty on European Union without, first, securing UK parliamentary approval (see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

The UK tabloid newspaper, The Daily Mail ran an astonishing front page on 4 November 2016 branding the judges “enemies of the people”. More prosaically, the High Court’s judgement (later approved by the UK Supreme Court in early 2017) was merely clarifying the law surrounding the Prime Minister’s use of the Royal prerogative in foreign affairs. You would not have thought this from the media and political reaction in certain quarters.

In such circumstances, it’s hardly surprising that Lord Doherty is only too happy to pass the buck to the politicians … for now anyway …

Watch this space.

Postscript

The Inner House of the Court of Session (consisting of Lords Carloway, Brodie and Drummond Young) will now hear an appeal by the petitioners against Lord Doherty’s judgement. This is scheduled to take place the week beginning Monday 9 September 2019.

In a separate, but connected, legal challenge, the English High Court rejected a bid by the campaigner, Gina Miller, to have the prorogation of Parliament declared unlawful. Leave to appeal to the UK Supreme Court has been granted.

Copyright Seán J Crossan, 4 and 6 September 2019

A fishy tale …

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Alexander Boris de Pfeffel Johnson (or just Boris if you’re one of his legions of adoring followers) has been caught out yet (again) when pontificating about the UK’s unbalanced relationship with the European Union (see my previous blog “Private prosecutions” published on 29 May 2019).

The man most likely to be the next British Prime Minister May have thought that it was very clever (and theatrical no doubt) to brandish a kipper during a final hustings event of Conservative Party members in his pitch to win the Party’s leadership campaign.

By using the kipper, Mr Johnson wanted to make a broader point about the apparent interference of the EU in Britain’s laws. Now, I often teach students about the supremacy of EU law in the UK by dint of the fact that the Westminster Parliament passed the European Communities Act 1972, but if Mr Johnson had been one of my students he would have failed his EU Law exam.

Why?

Firstly, the kipper originated from the Isle of Man – which although a British Crown dependency – isn’t technically part of the UK and, therefore, not part of the EU.

Secondly, the food safety rules which govern items like kippers (which are deemed to be preserved rather than fresh fish) fall within the legislative competence of the UK – not the EU. Although the Isle of Man is not part of the UK, the UK Food Standards Agency would regulate the product since it is being sold in this country.

It would seem that Mr Johnson was either unaware of these facts or simply chose to ignore them.

Then again, Mr Johnson has a long track record of EU bashing from his time as a Brussels based journalist with The Daily Telegraph, so it would seem that he is doing what, for a long time, has just come naturally to him.

On a serious point, however, interventions by individuals such as Mr Johnson make it very difficult for the public to have an informed debate about the UK’s relationship with the EU. This is a state of affairs that we may come to regret given the predictions by the UK Office of Budget Responsibility of the grim consequences if this country crashes out of the EU without a proper and effective withdrawal agreement.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/eu-exposes-johnsons-kipper-red-tape-claim-as-nonsense-11765805

Copyright Seán J Crossan, 19 July 2019

EU Law marches on …

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We’re now 3 months on from the UK’s Brexit Day (according to the European Union (Withdrawal) Act 2018 the date was scheduled for 31 March 2019).

Obviously, this didn’t happen as planned and our current Prime Minister, The Right Honourable Theresa May MP was sent (by the House of Commons) to an emergency summit in Brussels to seek an extension to Britain’s membership of the EU.

Without going into all the parliamentary shenanigans, the Prime Minister failed on 3 occasions to secure the necessary support of the House of Commons for the UK’s withdrawal agreement that she had negotiated with the other 27 EU member states.

As things stand currently, the UK will leave the EU on 31 October 2019, but expect reality to dawn in the mind of the new UK Prime Minister (whether it is Boris Johnson or Jeremy Hunt) before this deadline.

My previous blogs which have dealt with aspects of Brexit have emphasised the fact that, while the UK remains a member state of the EU, the European Communities Act 1972 remains in force. This legislation paved the way for the UK to enter the European Communities (the EEC, the Coal and Steel Community and Euratom).

A very good example of EU Law coming into force – despite the UK Government’s desire to leave the organisation – is a provision contained in Regulation (EU) No 540/2014 of the European Parliament and of the Council. This legal instrument was passed on 16 April 2014 and relates to the sound level of motor vehicles and of replacement silencing systems (amending Directive 2007/46/EC and repealing Directive 70/157/EEC).

The provision means that, from 1 July 2019, any new electric car that is produced or sold in the EU will have to be equipped with a device which emits a certain noise level. This is to address public safety concerns that such vehicles are too quiet and represent a potential hazard to pedestrians.

So, with Brexit postponed for now, EU Law is definitely marching on in the UK.

A link to the story as reported by the BBC can be found below:

Electric cars: New vehicles to emit noise to aid safety

The EU rule for new models follows concerns cars put pedestrians at risk because they are too quiet.

Copyright Seán J Crossan, 1 July 2019

Happy Brexit Day!

Photo by Kevin Grieve on Unsplash

Brexit Day: 29 March 2019

Something really seismic was going to happen at 2300 hours today (Friday 29 March 2019). Brexit!

Major spoiler alert:

Just in case you weren’t aware about the worst kept secret in UK politics: Brexit (the UK’s withdrawal from the European Union) isn’t happening today.

Section 20 of the European Union (Withdrawal) Act 2018 states that “exit day” should be interpreted as meaning 29 March 2019 at 11.00 p.m. Section 1 of the Act explicitly repeals the European Communities Act 1972 which made this country a member state of the European Communities from 1 January 1973.

I have deliberately avoided writing about Brexit (except where it relates to incidental matters covered in earlier Blogs) because no one knows what is going to happen.

This Friday afternoon, Prime Minister Theresa May’s third attempt at holding a meaningful vote on part of the withdrawal agreement she negotiated with the EU has (once again) hit the buffers. The House of Commons has rejected the Prime Minister’s motion by 344 votes to 286.

The legal position

What does this situation actually mean?

The UK remains a member state of the EU (for how long who can say?).

From a legal point of view, the UK will continue to be subject to EU law and policy – as much as any other of the 27 member states.

We should be very clear: the withdrawal agreement, which is causing Prime Minister May all sorts of nightmares, is merely the terms of the divorce. The future (trading) relationship between the UK and the EU is still to be worked out. Good luck with that – although Liam Fox MP, the International Trade Secretary did assure us that this would be the easiest trade deal in history:

https://www.theguardian.com/politics/2017/jul/20/liam-fox-uk-eu-trade-deal-after-brexit-easiest-human-history

In any event, EU law, as a source of Scots Law, was never going to disappear overnight even if the UK Government had managed the process of Brexit successfully. The reason for this is that much of EU Law is hardwired into the Scottish and English legal system. Admittedly, the European Union (Withdrawal) Act 2018 did attempt to address this by carrying over existing EU Law into domestic legislation. The Scottish Parliament also introduced its own Continuity Bill to deal with Brexit (the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill), but this has not received Royal Assent due to a successful legal challenge by the UK Government.

It would have been sheer stupidity for the UK to withdraw unilaterally from EU Law on Brexit Day. What would have been the law relating to such diverse areas such as consumer rights, employment rights, the environment and equality? Instead of legal certainty, there would have been chaos (well more chaos than is currently the case).

The continuity provisions of the EU (Withdrawal) Act 2018 deal with the problem of direct EU Law such as Regulations and Decisions (secondary legislation) which are already in force on Exit Day. These legislative acts will continue to form part of the legal terrain in the UK until such time as they were either retained (if so desirable) or repealed (if no longer desirable).

An example of this is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (better known as the General Data Protection Regulation) which came into force in the UK on 25 May 2018. This very important legislative instrument will almost certainly survive Brexit for the time being.

The General Data Protection Regulation is also an interesting example of the well established legal principle of the supremacy of EU Law over domestic law in the UK (or any other member state for that matter). The Regulation was passed on the 27 April 2016 – nearly two months before the Referendum of 23 June 2016 – and implemented across the EU member states on 25 May 2016 – nearly two years after the Referendum.

Depending of course on the shape of the UK’s future relationship with the EU, it may be the case that, despite Brexit, EU Law may continue to have some influence in this country.

For an example of a country which is not an EU member state, but still has to implement certain EU Laws, please see a link to an article below:

Brexit: Can Norway say no to the EU?

Nick Boles MP says Norway refused to adopt an EU directive. Is he right?

EU Directives

Directives, on the other hand, present something of a more difficult problem.

The sheer task of dealing with the impact of EU Directives is truly staggering. According to the House of Commons Research Library, in 2016, there were 900 extant European Directives – the vast majority of which had been transposed into the legal systems of the UK:

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7943

These legal principles contained in these Directives (come Brexit) will not simply vanish into thin air. They have introduced to Scots Law primarily by way of Acts of Parliament and UK statutory instruments. The courts have also played a role in ensuring that Scots Law (and English/Welsh/Northern Irish Law) complies with the principles contained in Directives (think of Equal Pay cases from the 1980s).

The Equality Act 2010 is one such example. Its provisions cover the following matters:

  • Age discrimination
  • Pregnancy and maternity discrimination
  • Race discrimination
  • Religion and belief discrimination
  • Sexual orientation discrimination

The general prohibition concerning these types of discrimination were originally contained in European Directives and decisions of the Court of Justice of the European Union.

We also have very specific statutory instruments which implement the objectives of Directives:

  • The Working Time Regulations 1998
  • The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  • The Fixed-Term Temporary Employees (Prevention of Less Favourable Treatment) Regulations 2002
  • The Information and Consultation of Employees Regulations 2004
  • The Transfer of Undertakings (Protection of Employment) Regulations 2006
  • The Agency Workers Regulations 2010

In relation to consumer law, the following examples of legislation have been heavily influenced by EU Law:

  • The Consumer Credit Act 1974
  • The Consumer Protection Act 1987
  • The Consumer Protection from Unfair Trading Regulations 2008
  • The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
  • The Consumer Rights Act 2015

Conclusion

This is not a pro or anti Brexit article. My point is that it will not be easy for any future UK Parliament to eradicate, depending on your political view) (the virus?) of EU Law from the Scottish legal bloodstream. Taking back control will involve a lot of legislative time being expended to this end. We only have to look at Brexit and its consequences have engulfed our law-makers since the Referendum was held on 23 June 2016.

Furthermore, for the last 46 years, Scots lawyers have become accustomed to the application of EU legal principles in the exercise of their professional duties. Quite simply, for many such individuals, they will have been dealing with EU legal rules for the entirety of their careers. I confess: I have never known anything else.

The transformative nature of EU Law was recognised as far back as 1974 by the famous English judge, Lord Denning MR in HP Bulmer Ltd and another v J Bollinger SA and others [1974] 2 ALL ER 1226.

But when we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute. The governing provision is s 2(1) of the European Communities Act 1972. The statute …is expressed in forthright terms which are absolute and all-embracing. Any rights or obligations created by the treaty are to be given legal effect in England without more ado. Any remedies or procedures provided by the treaty are to be made available here without being open to question. In future, in transactions which cross the frontiers, we must no longer speak or think of English law as something on its own. We must speak and think of Community law, of Community rights and obligations, and we must give effect to them. This means a great effort for the lawyers. We have to learn a new system. The treaty, with the regulations and directives, covers many volumes. The case law is contained in hundreds of reported cases both in the European Court of Justice…We must get down to it.”

Postscript 🇪🇺🇬🇧

At a European Council meeting on 10 April 2019, the heads of government of the other 27 EU member states agreed to give the UK an extension to Article 50 until 31 October 2019.

A short video of Donald Tusk, the President of the European Council, announcing the Brexit extension can be found below:

A link to the EU’s response to Brexit can also be found below:

https://www.consilium.europa.eu/en/brexit/

Copyright Seán J Crossan, 29 March 2019

When to exit because of Brexit?

Photo by Taras Bulba on Unsplash

An interesting story (Friday 15 February 2019) from BBC Scotland’s Chief Political correspondent, Glenn Campbell about the practicalities of Brexit.

The date for the UK to leave the European Union is 29 March 2019 and this is set down in law (the European Union (Withdrawal) Act 2018).

In any event, Mr Campbell reports that the President of the Court of Justice of the European Union does not seem to have been told by the UK Government when British judges appointed to the Court will cease their participation in the institution.

A link to the story on the BBC website can be seen below:

Brexit: Questions over UK judges on European Court of Justice

The president of European Court of Justice says he is waiting to hear from London when UK judges will stop sitting.

Copyright Seán J Crossan, February 2019

In … definitely not out … yet

photo-1531412501799-1b4c354ca957.jpg

Photo by Christian Wiediger on Unsplash

You might be forgiven for thinking that the United Kingdom has already left the European Union, but this country remains very much a member state – for the time being. This means that the UK is still subject to all of its legal obligations under European primary legislation (e.g. the Treaty on the Functioning of the European Union) and EU secondary legislation (Regulations, Directives, Decisions etc).

An interesting example of this was reported in The Independent (4 February 2019) where it would appear that the European Commission is in the process of taking enforcement action against the UK in relation to untreated sewage leaks at sites in Sunderland and London.

The link to the article in The Independent can be found below:

UK facing EU court after failing to stop sewage spills

https://edition.independent.co.uk/editions/uk.co.independent.issue.040219/data/8761361/index.html

This article has been gifted to you by an Independent Subscriber. If you enjoyed reading this, why not take out a free trial subscription to the Daily Edition?

Apparently, this has been an ongoing environmental problem for some 5 or 6 years now – despite assurances given by the water companies that the issue has been rectified. Enforcement action by the European Commission is governed by Article 258 of the Treaty on the Functioning of the European Union (TFEU). Article 279 of the TFEU, covering interim measures, may also be relevant here. Sometimes an ongoing breach of Treaty or legal obligations by a member state can cause serious, irreparable harm and (interim) measures may be required to prevent this. It should be appreciated that EU enforcement action could take several years before a judgment is issued and this is why the possible option of interim measures is so useful for the European Commission.

The UK Government has received a Letter of Notice from the European Commission which highlights alleged breaches of the EU Urban Waste Treatment Directive (Council Directive 91/271/EEC). At Whitburn in Sunderland, the European Commission has calculated that 300,000 tonnes of untreated sewage had managed to get into the water system in the period from January to August 2018.

The Independent article goes on to quote several Labour Party Members of the European Parliament who voice their fears about the very real prospect of declining environmental standards when the UK finally leaves the EU.

This is not the first time that the UK has got itself into bother with EU environmental protection laws (since victory of “Vote Leave” in the Referendum of 23 June 2016) as the link to an article in The Guardian from January 2018 demonstrates:

UK taken to Europe’s highest court over air pollution

https://www.theguardian.com/environment/2018/may/17/uk-taken-to-europes-highest-court-over-air-pollution

Conclusion

This dispute over water quality may rumble on – even after Brexit – and there is the possibility of fines being imposed on the UK for failure to comply with the Urban Waste Treatment Directive. Some might ask why the UK would continue to be bound by the consequences of the Directive after Brexit? Well, it’s like any divorce: when you’re a party to a pre-existing, legally enforceable agreement, it doesn’t simply end upon dissolution of the marriage. This is perhaps something that we’re going to appreciate more fully when Brexit finally happens.

As Yannis Varoufakis, the Economist and former Greek Finance Minister, stated in September 2016: the EU is like the Hotel California (the 1976 song made famous by US rock group, The Eagles). “You can check out any time you like, But you can never leave!”

So … for the moment, we’re definitely still in.

Copyright Seán J Crossan, February 2019