The Law Review. Vol 1

BREXIT AND THE LAW

THE NORTH LONDON LAW REVIEW 1

Volume 1 May 2018

Contents: The Passage of the Bill

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The European Union (Withdrawal Bill) 2017-19

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Henry VIII Powers

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What is Article 50?

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Enforcement and Dispute Resolution

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The Effects of Brexit on Extradition

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Laws of Adverse Possession and the European Union

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Editorial Team: Editor-in-Chief:

Athena Kam

Editors:

Nadia Massoud Rose Sive

Contributors:

Darcey Goldstein Varuna Mitra Rachel White Emma Gasson

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The Passage of a Bill A Bill is a proposal for a new law or proposal for change to existing law, presented for debate in Parliament. It can start in either the House of Lords or House of Commons, and must be approved in the same form by both Houses before becoming a legally binding Act. The European Union (Withdrawal) Bill started in the House of Commons, and the stages for it becoming an Act are as follows: First Reading The short title of the Bill is read out and an order for the Bill to be printed is made

Second Reading The Government minister, spokesperson or MP responsible for the Bill opens the second reading debate. At the end of the debate, a vote is taken as to whether it should proceed onto the next stage

Committee Stage Detailed examination of the Bill by the Public Bill Committee, which have a minimum of 16 members and a maximum of 50. Evidence from experts and interests groups outside of Parliament can be taken. Amendments are debated and voted on until every clause in the Bill is agreed to

Report Stage MPs on the floor of the House can consider further amendments

Third Reading The final chance for the Commons to debate the contents of the Bill. Further amendments cannot be made, and at the end of the debate, the House decides whether to approve the third reading of the Bill

Move to House of Lords

First Reading The same as the procedure in the House of Commons

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Second Reading The first opportunity for members of the House of Lords to debate the key principles and main purposes of a bill, flagging up specific areas where they think amendments are needed

Committee Stage Detailed line by line examination of the separate parts (clauses and schedules) of a bill. Every clause on the bill has to be agreed to, and all suggested amendments has to be considered with no time constraint on the debating or restrictions on subjects – this is the key difference in procedure with the House of Commons

Report Stage All members of the Lords can examine and make amendments to the bill

Third Reading Amendments that have not been fully considered and voted on previously can be made – a difference in procedure with the House of Commons. It is a chance for members to ‘tidy up’ a bill and ensure the eventual law is workable and without loopholes

Consideration of Amendments The bill is passed back to the House of Commons for the amendments made by the House of Lords to be considered. If the Commons make an amendment, this would need to be considered by the Lords, who would send the bill back to Commons if there is any change made. The Bill ‘ping pongs’ between Houses until both Houses reach agreement. In exceptional cases where the two Houses do not reach agreement, the Bill fails

Royal Assent Royal Assent is the Monarch’s agreement to make the Bill into an Act. If there is no commencement order, the Act will come into force from midnight at the start of the day of the Royal Assent. A commencement order brings into force the whole or part of the Act at a date later than the date of the Royal Assent

By Athena Kam

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The European Union (Withdrawal) Bill 2017-19 The European Union (Withdrawal) Bill 2017-19 (which will be referred to as ‘the Bill’) is a key piece of legislation aimed at protecting British sovereignty after Brexit by ensuring European law will no longer apply in the UK. More commonly known as the ‘Repeal Bill’ or the ‘Great Repeal Bill’, and it intends to end the supremacy of EU law in the UK by repealing the European Communities Act 1972. This means the European Court of Justice will no longer have power in the UK. Existing EU legislation will be copied into the British legislation framework to ensure a smooth transition after Brexit day, avoiding leaving a “black hole in our statute books” as the government says.

The Bill performs 4 main functions: 1) It repeals the European Communities Act 1972 (ECA) 2) It converts EU law into domestic law before the UK leaves the EU 3) It creates powers to make secondary legislation, such as temporary powers to amend laws that would otherwise no longer operate after exit and to implement a withdrawal agreement 4) It maintains the current scope of transferred decision making powers in areas currently governed under EU

A report by the House of Commons library predicts that the Bill will be “one of the largest legislative projects ever undertaken in the UK”. The complication is trying to work out which bits of UK law is directly derived from EU law, because EU law is found in multiple places and in multiple forms. It would not be possible to simply transpose existing EU law into UK law, as many EU law refer to EU institutions that will no longer have power in the UK post-Brexit. While we have no single figure for how much EU law there is, the government gives a figure of 12,000 EU regulations (one type of EU law) in force. This figure does not include the 7900 statutory instruments passed by Parliament which implement EU legislation and the 186 Acts which incorporate a degree of EU influence. Parliament estimates that EU exit will require between 800 and 1000 statutory instruments, which are a form of legislation which allows provisions of Acts of Parliament to be changed without having to draft a new Act.

By Athena Kam

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Henry VIII Powers

According to the Parliament Glossary, Henry VIII Clauses is a term ‘used as parliamentary shorthand for any attempt by the Government to create for itself new powers to govern ‘by order’, thereby allowing future decisions to bypass parliamentary scrutiny’

Henry VIII Powers (also known as Henry VIII Clauses) are, in short, the use of secondary legislation to amend the text of primary legislation. They enable the government to change any Act of parliament. As well as this, the government also have the ability to reject it, after it has been passed (and without need to pass through parliament a second time.) The clauses take their name from the 1539 Statute of Proclamations, which allowed Henry VIII to rule by royal proclamation, for example by decree. In addition the Act appointed machinery for their enforcement. Henry VIII clauses were used by numerous Tudor monarchs, who ruled by decree when they desired. Elizabeth I also used his clauses to grant monopolies, which resulted in a celebrated showdown with the House of Commons.

Henry VIII Powers are intended solely to help the government deal with issues that require quick action.

However, they are usually controversial, for example currently in the age of Brexit. In terms of Brexit, rather than put every single change required to alter clauses in laws and protocols, the government is proposing to use Henry VIII Powers to make the necessary amendments itself. Many perceived his clauses as representing the growth in a powerful bureaucracy (a system of government in which most of the important decisions are taken by state officials rather than by elected representatives.) This displays how Henry VIII’s main desire was to enlarge his powers to make proclamations (a royal formal announcement.) Sir William Blackstone called the Act "a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed."

In terms of the effect that the Henry VIII Powers will have on Brexit, there are many due to the fact that the ‘biggest’ Henry VIII clause is found in the European Communities Act 1972, the piece of legislation that will be repealed in order for Brexit to take place. Section 2 of the Act deals with types of EU legislation and rulings that need to be transposed into UK law. Normally, this is the job of EU directives, however its individual members have to decide how to transpose or implement it. People argue that this limits British sovereignty. It is said that after Brexit, the government will want to use Henry VIII clauses to adapt EU laws to ‘make them British.’ However, part of the European Union (Withdrawal) Bill that worries critics is the one that the European Court of Justice and other entities like it that will no longer have any influence in Britain, post Brexit. The government argues that Henry VIII clauses are needed to sort this problem out.

By Darcey Goldstein

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What is Article 50?

As more and more news surrounding Brexit emerges, Article 50 is talked about more. But what actually is Article 50? And why is it so important?

Article 50 is from the Treaty of Lisbon. Initially known as The Lisbon Treaty was signed by the Reform Treaty, this document is an international the heads of state and government agreement that amends the two treaties that form the of the 27 EU Member States on 13 constitutional. It was signed by the EU member states on December 2007. It is intended to the 13th of December 2007 and was put into practice on reform the functioning of the the 1st of December 2009. The two treaties referred to European Union following the two earlier are the Maastricht Treaty, now commonly known waves of enlargement which have as the Treaty on European Union, and the Treaty of Rome, taken place since 2004 and which which is currently called the Treaty on the Functioning of have increased the number of EU the European Union. The Treaty of Lisbon brought many Member States from 15 to 27. prominent changes including the abolition of the unanimous vote in at least 45 policy areas in the Council of Ministers and the creation of a long-term President of the European Council. The Treaty also made the European Union’s bill of rights, the Charter of Fundamental Rights, legally binding. However, the most important change it brought about was the giving of the explicit legal right to leave the EU to member states, and the procedure to do so.

Article 50 states: ‘Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.’ It specifies that a leaver should notify the European council of its intention, negotiate a deal on its withdrawal and establish legal grounds for a future relationship with the EU. On the European side, the agreement needs a ‘qualified majority’ (72%) of member states and consent of the European parliament. The most important detail in the article is that it gives negotiators two years from the date it is in invoked to conclude new arrangements. If this does not happen, the exiting state will ‘fall out’ of the EU, with no new provisions in place, unless every one of the remaining EU states agrees to extend the negotiations. Britain will be the first country to ever invoke article 50.

It is unclear whether article 50 can be reversed and there is a lot of debate regarding the likelihood of British politicians wanting to reverse it, if possible.

Theresa May triggered article 50 at the end of March 2017 by handing a letter over to the European Council’s president, Donald Tusk. May declared it to ‘the moment for the country to come together.’

By Nadia Massoud

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Enforcement and dispute resolution

The Court of Justice of the European Union (CJEU) interprets EU law to ensure that it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions.

It can also be used, in certain circumstances, by individuals, companies or organisations to take action against an EU institution, if they feel it has somehow infringed their rights

When the UK leaves the EU in March 2019, the direct jurisdiction of the Court of Justice of the European Union (CJEU) within the UK will end. The CJEU is divided into 2 courts; the European Court of Justice (ECJ) and the General Court. The question of how any deal between the EU and the UK will be upheld is therefore problematic. It makes little sense for a sovereign state to enter into any agreement whereby the final interpretation of any such agreement is given by the courts of the other party. The ECJ is, understandably, considerably biased in favour of ‘deeper European integration’, which will of course leave the UK at a disadvantage in any dispute.

However, any eventual agreement reached between the UK and EU whilst being binding for the two parties under international law, will not alter our domestic law until Parliament has itself enacted legislation giving the agreement effect. This means that any dispute arising from how the agreement is interpreted or applied will require a sufficiently neutral arbiter.

The EU has before, on a number of occasions reached agreements with other non-member states, and any dispute arising from them have not been settled by the ECJ. The ‘Enforcement and dispute resolution’ paper published recently by the government explores some of the options available including referencing previous precedent, considering a Joint Committee, and looking to other arbitration models, amongst other things.

The European Free Trade Association Court (‘which oversees access and membership to the single market for non-EU members Iceland, Liechtenstein and Norway within the framework of EU rulings and European law’) is briefly mentioned in the paper and could potentially provide some sort of solution yet would create many more problems.

The main problem for the UK would be that the EFTA follows relevant ECJ case law, and in this way, the ECJ would still, indirectly, have jurisdiction in the UK. The president of the EFTA has suggested that London could be allowed two judges rather than the one given to existing members. Furthermore, ‘national supreme courts are not under written obligation to refer European law cases to the EFTA Court and decisions by it are “strictly advisory” rather than mandatory’. Yet, even so, this does not seem like a desirable outcome for the UK. Any remedies must be offered in International law and not under the EU’s jurisdiction, however indirect the extent of it may be.

By Varuna Mitra

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The Effects of Brexit on Extradition Extradition is a legal term in which a jurisdiction can request the return of a criminal from another jurisdiction, when a crime has been committed in the former country. It is defined as ‘the removal of a person from a requested state to a requesting state for criminal prosecution or punishment’ in the Wex Legal Dictionary. If an extradition treaty is in place between countries, the chances of any serious lawbreaker escaping from the country in which the crime was committed to another country immediately decreases.

Within the European Union, there stands the European Convention on Extradition and the European Arrest Warrant (EAW). The EAW has been operational since 2004, and it was established in order that the system of extradition may be quicker and more effective concerning the countries of the EU. A warrant issued by judicial authority in one EU country is valid within the whole territory of the EU. There are 6 main differences between the EAW and traditional extradition: 1

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3 4 5 6

Strict time limits – The request for the surrender of a certain criminal can either be filed pre-trial, provided the crime is punishable by 12 months or more prison time, or posttrial, a minimum of 4 months. The strict time limit for the execution of a request, a span of 60 days, enables for the system of judicial justice to run efficiently within the European Union.

Double criminality check – for 32 categories of offences, there is no requirement for verification on whether the Act is a criminal offence in both countries, unlike traditional extradition. The only requirement is that the Act should be punishable by at least 3 years of imprisonment in the issuing country.

No political involvement – There are no political considerations involved in the EAW, as decisions are made solely by judicial authorities Surrender of nationals – EU countries can no longer refuse to surrender their own nationals to the issuing country without valid reason (see point 6), unless they take over the execution of the prison sentence against the wanted person.

Guarantees – the EAW allows the requests of certain guarantees to the country that executes the EAW, such as the right to ask for review if the punishment imposed on the person is a life sentence.

Limited grounds of refusal – there are very limited circumstances in which a country can refuse to surrender the requested person, provided one of the grounds for mandatory or optional refusal applies.

The mandatory grounds of refusal are: - The person has already been judged for the same offence - The person is a minor (i.e. they have not reached the age of criminal responsibility in the country that executes the EAW) - The coverage of their offence by an amnesty The optional grounds of refusal are:

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Lack of double criminality for offences that are not part of the 32 categories of offences covered (see point 2) Territorial jurisdiction Pending criminal procedure in the executing country Statute of limitations, which are laws which provides timescales within which action may be taken

Furthermore, the EAW looks beyond nationality and status, not only ensuring everyone is subjected to the same European law, but also ensures that a country is not able to harbour one of its own citizens.

Having said this, the European Court of Human Rights can be brought forth to excuse prosecutions in certain countries where the prison systems are a violation of human rights. For instance, in 2015 Romania was filed for 27 violations of Article 3 ECHR because of “overcrowding, inappropriate hygiene and lack of appropriate health care.” Therefore, a significant proportion of requests for surrender are not met because of the readily available backdoor of calling forth the European Court of Human Rights.

If an extradition treaty is in place between countries, the chances of any serious lawbreaker escaping from the country in which the crime was committed to another country immediately decreases.

With respect to all this, in general the United Kingdom’s eagerness, following on from Brexit, to remain part of the European Convention of Extradition is clear. Over the weekend of 17th - 18th February, Theresa May voiced her opinion that the EAW was ‘in the national interest’ of Britain at the Munich security conference. While the remain voters and most of Brexit voters are in favour of remaining within this part of the European judicial system, there are a small number of Brexiters who believe that remaining within the system of the European Arrest Warrant is a betrayal of the Brexit vote. After the invocation of Article 50 on 29th March 2017, negotiations have been underway and the chances of a bilateral agreement, like Iceland, with European Union members is the most likely option at the present moment.

During this time, while our country has been in political limbo, a case has arisen between Britain and Ireland concerning Thomas Joseph O’Connor on a tax fraud conviction in 2007. The man fled to Ireland while on bail and due to the nature of Brexit, the Supreme Court of Ireland declined to extradite the company director because by the time his prison sentence is over on March 29th 2019, Britain would have left the EU. This is about one of the 20 cases that Britain faces currently.

By Rachel White

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Laws of Adverse Possession and the European Union Adverse possession is a system of laws commonly known as “squatter’s rights” under which a person is able to obtain land for free, provided they fulfil certain criteria, such as using the land for over ten years. If a person can meet the required criteria, they become the legal owner of that land without any compensation available to the previous owners.

Essentially there are two key parts of adverse possession. Firstly, in regards to “adverse”, one must be occupying the land without the owner’s permission or consent. This is generally true regardless of the intentions of the squatter, for example they may be acting in good faith, using the land The International accidentally, or they can be doing so in bad faith where they are overtly Squatter's Symbol trying to steal the land. In fact, one key way to protect against squatters is to welcome them to the land as it prevents them from fulfilling this requirement. In terms of “possession”, one must show an intention to possess the land; for example by using the land as if it were your own. Beyond this, the technicalities of how long one must “possess” the land and whether the current owners may be notified are determined by whether the land is registered or not.

This is a unique area of law and only applies to land; it seems contradictory as arguably it rewards trespassing and other such illegal behaviour. However, there are many benefits to this system. For example, it helps to establish an owner for land. This is particularly important for unregistered land, which constitutes 14% of all land in the UK. Adverse possession also helps to bring the law in line with real life, enabling those who use land to become those who own it, encouraging active use of land. Moreover, according to the philosopher John Locke’s labour theory, if a person invests their effort in something, then they are more deserving to own it.

A highly significant example of this is the Pye vs Graham case in the Allowing 1990s. A 23 hectare plot of agricultural land in rural Berkshire was compensation in this valued at over £10m, partly due to its proximity to London making it instance would lead good for development. The Pye company bought this land and agreed to claims from all with their neighbours, Mr & Mrs Graham, that they could use the land past landowners who for farming in the meantime before the company used it for had lost land due to development. Hence, from 1982 to 1984 both parties acted under a adverse possession legal agreement to enable this to happen. In 1984 the Graham’s wrote laws. to Pye, asking to renew their agreement. While Pye did not renew the agreement, they enabled their neighbours one more cut of hay. At the end of the summer of 1984, the Grahams’ again asked Pye to renew the agreement, but never got a response and so kept using the land. 12 years later, in 1997 the Grahams became the legal owners of the £10m plot through laws of adverse possession. Here, the Graham’s successfully possessed the land, by farming it for over 12 years, and it was “adverse”, as from 1 Sep 1984 their contract with Pye had expired yet they still used the land.

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Understandably Pye was furious about their loss, and they tried to appeal to the House of Lords to deny the legal ownership of the land to the Grahams, but this was unsuccessful. They then tried to make a claim against the British government for violating EU human rights laws surrounding possessing property. They initially won their case, but the UK applied the case to the Grand Chamber (the highest EU court) to repeal the decision, arguing that it was unfair to use taxpayers’ money to compensate Pye for "the consequences of its own incompetence". The UK government also made the argument that allowing compensation in this instance would lead to claims from all past landowners who had lost land due to adverse possession laws. Eventually, the court decided, with 10 votes to 7, that the UK government should not compensate Pye as the law did not breach the EU court of human rights.

Admittedly this is an example of a previous version of the UK law, under which the land title was automatically transferred after 12 years of adverse possession. Currently, following the Land Registration Act of 2002 it is more difficult to obtain land in such a way, as the current owners are automatically notified if a potential claim against them may be made. Moreover, since September 2012 squatting in a residential building has been criminalised, punishable by prison and/or a fine. This is different to the previous laws under which it was treated as a civil matter. However, this does not affect the laws of adverse possession – if you successfully squat illegally for the required years then you can still claim adverse possession and obtain land for free.

By Emma Gasson

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