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Hillsborough Stadium Disaster ~ Jury determinations

<div style="text-align: left;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhauVn9w7LDnAObEFU8MhYWZzkwtmLAUjZgDwYCPRVy38Zo43BOohVxzGE8Tw6PHQvDE8DOOLaPX_BLSnCD0jWjzods93w1VJI3NyPFAd6wTC60EuC40RR09bnK_lQzXonEkPFERAUVB_t3/s1600/Hillsborough+1989.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="132" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhauVn9w7LDnAObEFU8MhYWZzkwtmLAUjZgDwYCPRVy38Zo43BOohVxzGE8Tw6PHQvDE8DOOLaPX_BLSnCD0jWjzods93w1VJI3NyPFAd6wTC60EuC40RR09bnK_lQzXonEkPFERAUVB_t3/s200/Hillsborough+1989.jpg" width="200" /></a></div>UPDATED 1200 hrs - <a href="https://hillsboroughinquests.independent.gov.uk/wp-content/uploads/2016/04/General-jury-questionnaire-FINAL-54004274_1.pdf">Answers to General Questionnaire</a> UPDATED 1445 hrs - <a href="https://hillsboroughinquests.independent.gov.uk/wp-content/uploads/2016/04/Individual-questionnaires-for-website.pdf">Individual determinations</a> <a href="https://hillsboroughinquests.independent.gov.uk/">Official Inquest Website</a> As a result of the events at Hillsborough Stadium, Sheffield on 15 April 1989, 96 men, women and children lost their lives. Following an application by the Attorney-General, the High Court quashed the verdicts in the original inquests and <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2012/3783.html" target="_blank">ordered fresh inquests to be held</a>.   The Rt Hon Sir John Goldring was appointed as Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) to conduct those inquests with a jury. (By the end of the inquest the jury had reduced, for medical reasons, from 11 to 9).  The inquest hearings started on Monday 31 March 2014.  Previous post 20th December 2012 - <a href="http://obiterj.blogspot.co.uk/2012/12/hillsborough-disaster-new-inquest-to-be.html">Hillsborough - New inquests to be held</a>.</div><div style="text-align: left;"> </div> Coroners - Some basic points: <a name='more'></a> <a href="https://www.blogger.com/null" name="more"></a> In modern law, the Coroner's Court makes determinations - <a href="http://www.legislation.gov.uk/ukpga/2009/25/section/5">Coroners and Justice Act 2009 section 5</a> - ascertaining (a) who the deceased was; (b) how, when and where the deceased came by his or death.  Section 5(2) is very important: Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. Section 5(2) came about as a result of judgments of the European Court of Human Rights and the decision of the House of Lords in R (Middleton) v HM Coroner for West Somerset [2004] 2 AC 182 - (<a href="http://swarb.co.uk/middleton-regina-on-the-application-of-v-coroner-for-the-western-district-of-somerset-hl-11-mar-2004/">the case is summarised here</a>).. The Hillsborough jury will have been primarily concerned with the HOW and WHEN (time).   The determinations of Coroner's Courts may not be framed in such a way as to appear to determine any question of - (a) criminal liability on the part of a named person, or (b) civil liability - <a href="http://www.legislation.gov.uk/ukpga/2009/25/section/10">2009 Act section 10</a>. Juries are fairly rare at Inquests but they are required in the instances set out in the <a href="http://www.legislation.gov.uk/ukpga/2009/25/section/7">2009 Act section 7</a>.   The jurors are sworn to give a "true determination according to the evidence" (<a href="http://www.legislation.gov.uk/ukpga/2009/25/section/8">section 8</a>) and the jury is basically required to be unanimous BUT this is subject to <a href="http://www.legislation.gov.uk/ukpga/2009/25/section/9">section 9</a> which states that a determination or finding need not be unanimous if - (a) only one or two of the jury do not agree on it, and (b) the jury has deliberated for a period of time that the senior coroner thinks reasonable in view of the nature and complexity of the case. The Jury answered 14 questions: The answers to a questionnaire containing 14 important questions may be <a href="https://hillsboroughinquests.independent.gov.uk/wp-content/uploads/2016/04/General-jury-questionnaire-FINAL-54004274_1.pdf">read at Hillsborough Inquest website</a>.  Question 6 concerned unlawful killing -Are you satisfied, so that you are sure, that those who died in the Disaster were unlawfully killed?  7 of the 9 jurors answered YES to this question. History: The 27 years since the disaster have been marked by the sheer determination and dignity of the families searching for the truth of the matter.  The following links may be of interest: <a href="http://hillsborough.independent.gov.uk/repository/HWP000000180001.html">Interim report by Lord Justice Taylor</a> - Note: Evidence to the Taylor Inquiry was NOT on oath.  The interim report (para 13) states: "Witnesses were not sworn. Since this is a departmental inquiry, there was no power to administer the oath but there was no instance of any witness giving evidence which I considered might have been different had he or she been sworn." <a href="http://hillsborough.independent.gov.uk/repository/HOM000028060001.html">Final report by Lord Justice Taylor</a> <a href="http://hillsborough.independent.gov.uk/browse/by-contributor/sheffield-city-council/hillsborough-disaster-judicial-review-of-the-findings-of-the-coroners-inquests-brought-by-relatives-/perpage/20/page/1.html">Judicial review of the first inquests </a> <a href="http://hillsborough.independent.gov.uk/repository/HOM000045010001.html">Stuart Smith Scrutiny of Evidence - report 1998 </a> <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/eu/cases/ECHR/2009/478.html&query=%28%22Williams%22%29">Anne Williams v United Kingdom</a> [2009] ECHR 478 (17th February 2009) - European Court of Human Rights.  The court ruled Mrs Williams' application inadmissible due to lapse of time.  She had complained under Article 2 of the Convention that the United Kingdom authorities failed to investigate properly the circumstances of her son’s death. She alleged that there was no effective investigation, in particular (i) that there was no independent public investigation into the emergency response and planning; (ii) that there was no independent public investigation into whether any failings by state agents had an impact on the death of her son; and (iii) that no criminal or disciplinary charges were pursued by the authorities against the two police officers involved. The applicant complains about the lack of independence of the West Midlands police, the narrow scope of the inquest, the inadequate opportunities for participation and cross-examination in the inquiries, the fact that the inquiries were not public and the fact that the impact of new evidence on the death of Kevin Williams has not been adequately considered. <a href="http://hillsborough.independent.gov.uk/repository/report/HIP_report.pdf">Hillsborough Independent Panel Report </a>- September 2012 <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2012/3783.html">High Court ordered new inquests</a> and quashed the original "verdicts" Statements 26th April: <a href="http://www.cps.gov.uk/news/latest_news/cps_statement_following_hillsborough_inquest_verdict/">Crown Prosecution Service, the IPCC and Operation Resolve</a> <a href="http://www.southyorks.police.uk/news-syp/chief-constable-responds-hillsborough-verdicts">South Yorkshire Police</a>

Hillsborough Stadium Disaster ~ Jury determinations

UPDATED 1200 hrs - Answers to General Questionnaire UPDATED 1445 hrs - Individual determinations Official Inquest Website As a result of t...

6:03:00 AM

Hillsborough ~ Investigations on-going

<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhlsb6E2Bc0oJttdp4FGZIgaV8BUCJNS11bO7ECYmRT7BHFJKabAfLj8iEM4bq4EC4TJ7DCNl77-7znOGYS8Bj6v6fVIkbIeum_pYjKesvV0l3gu5q2m1X8BrLarODfiRl1iMuOiCeNUn9R/s1600/Courtroom+at+Warrington.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="128" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhlsb6E2Bc0oJttdp4FGZIgaV8BUCJNS11bO7ECYmRT7BHFJKabAfLj8iEM4bq4EC4TJ7DCNl77-7znOGYS8Bj6v6fVIkbIeum_pYjKesvV0l3gu5q2m1X8BrLarODfiRl1iMuOiCeNUn9R/s200/Courtroom+at+Warrington.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">The inquest Court at Warrington</td></tr></tbody></table>Update 1 - <a href="https://www.gov.uk/government/speeches/determinations-and-findings-of-the-hillsborough-inquests">Statement in the House of Commons by the Home Secretary</a>. Update 2 - <a href="http://www.southyorkshire-pcc.gov.uk/News-and-Events/News/2016/April/Police-and-Crime-Commissioner-suspends-South-Yorkshires-Chief-Constable.aspx">South Yorkshire Police and Crime Commissioner - Suspension of Chief Constable</a> Update 3 - The Guardian 28th April - <a href="http://www.theguardian.com/football/2016/apr/28/hillsborough-families-to-sue-police-for-abuse-on-industrial-scale">Hillsborough Families commence legal action</a>  <a name='more'></a>  <div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;">"It would have been more seemly and encouraging for the future if responsibility had been faced" - Lord Justice Taylor - <a href="http://hillsborough.independent.gov.uk/repository/HWP000000180001.html">Interim report</a> at para. 285 </div> Anyone who has followed the Hillsborough Inquest should undoubtedly endorse all that was said in court as the inquest closed - <a href="https://hillsboroughinquests.independent.gov.uk/wp-content/uploads/2016/04/hill260416pmjurypresentallpm.pdf">Hillsborough Inquest 26th April 2016</a>.  Sir John Goldring - Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) - said: "I suspect I speak for most when I say how hugely impressed we have been.  Sitting on a jury for this length of time, in such a demanding and at times deeply moving case, is to perform a public service of the very highest order.  It is very important, indeed, that decisions in matters such as the Hillsborough disaster are taken not by lawyers, but by members of the public, such as you.  I thank you very much, indeed." On-going investigations: <a href="https://www.blogger.com/null" name="more"></a> The focus is now turned on to <a href="http://operationresolve.co.uk/">Operation Resolve</a> the on-going criminal investigation into Hillsborough.  This investigation was set up by the Home Secretary in 2012 following the publication of the Hillsborough Independent Panel report.  The aim is to undertake a thorough investigation into the events leading up to and including the disaster.  Fuller details of the areas under investigation are <a href="http://operationresolve.co.uk/the-investigation/">set out on the Resolve website</a>. Further focus is on the <a href="https://www.ipcc.gov.uk/hillsborough">Independent Police Complaints Commission (IPCC) investigation</a>.   The IPCC's investigation is examining whether or not the following offences were committed: - Conspiracy to pervert the course of justice - Perverting the course of justice - Perjury - Misconduct in public office. It is expected that these investigations will continue at least until the end of 2016.  After that, the focus will shift to the Crown Prosecution Service (CPS) which will have to consider whether any prosecutions will actually be instigated.  In making that decision, the CPS will have to apply the <a href="https://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html">FULL CODE TEST</a>.  In other words, the CPS will consider the detailed law governing all relevant offences and all the available evidence relating to the conduct of individuals and corporate bodies.  Even if the CPS considers that there is sufficient evidence on which to base a prosecution of an individual or body, the CPS must then go on to decide whether a prosecution would be in the public interest. It would be rash and unwise at this stage to try to even hazard a guess as to what the outcome of these processes may be.  All that is for the future and this blog will try to keep abreast of any developments. Civil litigation: Whether there will be any further civil litigation is unclear.  The<a href="http://hillsborough.independent.gov.uk/report/main-section/part-2/chapter-7/"> Hillsborough Independent report Chapter 7 considered the civil litigation</a> that had taken place prior to the report.   The litigation following Hillsborough led to some important developments in the law.  These will be the subject of a later post. Update: The Guardian 28th April - <a href="http://www.theguardian.com/football/2016/apr/28/hillsborough-families-to-sue-police-for-abuse-on-industrial-scale">Hillsborough Families commence legal action</a>

Hillsborough ~ Investigations on-going

The inquest Court at Warrington Update 1 - Statement in the House of Commons by the Home Secretary . Update 2 - South Yorkshire Police and...

6:03:00 AM

1. Ministers disagree over Human Rights ~ 2. Hillsborough and Human Rights

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEigSF6GBRUrs1aAzvJGlONpYN_H8enraS35953CId3z5OZ7LgzoZHqqGLtw7BK2fq6kBvQn3hB9cYR2_-SbYudXbeOqnx3NX-3XsLri_ReLKTXSOVOxwvFR_1GZbvAoCFBHNxA2T-9G8msn/s1600/May+Theresa.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="112" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEigSF6GBRUrs1aAzvJGlONpYN_H8enraS35953CId3z5OZ7LgzoZHqqGLtw7BK2fq6kBvQn3hB9cYR2_-SbYudXbeOqnx3NX-3XsLri_ReLKTXSOVOxwvFR_1GZbvAoCFBHNxA2T-9G8msn/s200/May+Theresa.jpg" width="200" /></a></div>The Home Secretary (Rt. Hon. Theresa May MP) wants the UK out of the European Convention on Human Rights - <a href="http://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum">The Guardian 25th April</a>.   <a href="https://www.gov.uk/government/speeches/home-secretarys-speech-on-the-uk-eu-and-our-place-in-the-world">The full speech is here</a>.  As far as the EU is concerned, she wishes the UK to remain a member. The Secretary of State for Justice (Rt. Hon. Michael Gove MP) wants the UK to remain in the European Convention on Human Rights - <a href="http://www.telegraph.co.uk/news/2016/04/26/michael-gove-and-dominic-raab-turn-on-theresa-may-over-human-rig/">The Telegraph 26th April</a>.   He wishes the UK to leave the EU.  Mr Gove spoke to Parliament about human rights recently - <a href="http://obiterj.blogspot.co.uk/2016/02/human-rights-eu-renegotiation.html">post of 2nd February</a>.  In December 2015 Mr Gove attended the House of Lords Constitution Committee - <a href="http://obiterj.blogspot.co.uk/2015/12/human-rights-proposals-delayed-lord.html">previous post</a>.  <a name='more'></a> The European Convention stems from the separate <a href="http://www.coe.int/en/">Council of Europe</a> and not from the EU. Little wonder that the general public wonders just what is going on!  Rights Info has looked at the Ministerial disagreement - "<a href="http://rightsinfo.org/government-european-convention/">So what does the government want to do about the European Convention now?</a>"  For more detailed analysis of Theresa May's speech see the post by Professor Mark Elliot on the <a href="https://publiclawforeveryone.com/2016/04/26/theresa-mays-case-for-withdrawal-from-the-echr-politically-astute-legally-dubious-constitutionally-naive/">Public Law for Everyone blog</a>. <a href="https://www.blogger.com/null" name="more"></a>The European Convention places certain constraints on Ministerial power.  Mrs May doesn't seem to like that but it is the whole point of the convention: the protection of the basic rights of the individual against unfettered State power. <div style="text-align: center;">: Hillsborough Inquest and Human Rights :</div> It is also worth reflecting on the fact that the Hillsborough Inquest was able to consider not just how the 96 died but the circumstances in which they died.  At the <a href="http://hillsboroughinquests.independent.gov.uk/wp-content/uploads/2015/01/Transcript-of-morning-hearing-1-April-2014.pdf">opening hearing of the inquest Sir John Goldring told the jury</a>:   "As was said by our highest court in one important case - and, again, I am going to quote something: <div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;"> </div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;">"The purposes of such an investigation are clear: to ensure, so far as possible, that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of wrongdoing, if unjustified, is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."   As I have said, and as you know, having heard the names read out to you, 96 people died. The purpose of the inquest in respect of each of them is, first, to identify, as far as possible, the medical cause of death and, second, to answer four important questions: who the person who died was; when the person died; where the person died; and how the person died. How the person died is the most difficult and important question.  How a person dies is not simply a question of the physical causes of death, it covers the means and circumstances of death. As part of your task, you will, I anticipate, have to consider the underlying circumstances which contributed to the cause of these deaths, whether opportunities were lost which might have prevented the deaths or saved lives. I have said that an inquest is an investigation, that it isn't criminal or civil by way of a trial. That means that you can't decide, or appear to decide, the criminal responsibility of any named person. You cannot decide any question of civil liability. What you can do, however, is reach significant and critical judgments about the circumstances in which the deaths occurred, where that is appropriate."</div><div class="MsoNormal" style="line-height: normal; margin-bottom: 0.0001pt;"> </div> The case referred to by the learned Coroner was R (Middleton) v HM Coroner for West Somerset [2004] 2 AC 182.  The House of Lords judgment was based on the jurisprudence of the European Court of Human Rights and it now has the recognition of Parliament in the <a href="http://www.legislation.gov.uk/ukpga/2009/25/section/5">Coroners and Justice Act 2009 section 5</a> It is fair to say that the Hillsborough Inquest would not have taken such a detailed look at all the circumstances but for the impact of human rights.  <a href="http://www.1cor.com/1155/records/1245/Where_Inquests_Raise_A_Question_of_Human_Rights180109.pdf">When Inquests raise a question of human rights </a>- Jeremy Hyam, January 2010.

1. Ministers disagree over Human Rights ~ 2. Hillsborough and Human Rights

The Home Secretary (Rt. Hon. Theresa May MP) wants the UK out of the European Convention on Human Rights - The Guardian 25th April . The f...

6:03:00 AM

Legal aid - Supreme Court ruled the planned "Residence Test" unlawful

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiZXeQDqGsuorW-de4ILCl0V8a6fepw7TFN3ffrjwf3pLKi19wj1k2-K230q3nvaETbE8Z3czHWWyXAScNaoezgOyNnxlqkvnH0zD3L62Okbu2y4PaYeYgv9OnpbdmhHuKDmwEtnQ2bNiQB/s1600/UKSC+Court+1.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="149" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiZXeQDqGsuorW-de4ILCl0V8a6fepw7TFN3ffrjwf3pLKi19wj1k2-K230q3nvaETbE8Z3czHWWyXAScNaoezgOyNnxlqkvnH0zD3L62Okbu2y4PaYeYgv9OnpbdmhHuKDmwEtnQ2bNiQB/s200/UKSC+Court+1.jpg" width="200" /></a></div>Legal aid axemanship: Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was brutal axemanship by uncaring Ministers on the essential principle of access to justice.  Whole swathes of cases were removed from eligibility for legal aid and thousands of "litigants-in-person" have struggled to present their cases before the courts and tribunals.  (See, for example, <a href="http://www.barcouncil.org.uk/media/303419/laspo_one_year_on_-_final_report__september_2014_.pdf">Bar Council - LASPO One Year On: Final Report</a>).  As far as I can see, there is still almost no political will to reverse these cuts or, for that matter, to even commission a thorough review of their impact.  The legislation contains provision for "exceptional funding and it appears that the number of applications being granted has risen gradually since 2013 although only around 45% of applications seem to be succeeding at the moment - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486034/legal-aid-statistics-bulletin-jul-to-sep-15.pdf">Ministry of Justice Statistics July 2015-December 2015</a>. A residence test? <a name='more'></a> <a href="https://www.blogger.com/null" name="more"></a> Against this background of dire legal aid provision, the government attempted to introduce a RESIDENCE test for legal aid eligibility.  Legal aid would not have been granted to those who were unable to show lawful residence in the UK (or Crown Dependencies or British Overseas) for at least 12 months prior to bringing a claim.  Some very limited exceptions were to be permitted.  The detail was in the <a href="http://www.legislation.gov.uk/ukdsi/2014/9780111113073/article/2">Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014</a>  and <a href="http://www.legislation.gov.uk/ukdsi/2014/9780111113073/memorandum/contents">Draft Explanatory Memorandum</a>.  An entire class of individuals were to be removed from legal aid eligibility regardless of the seriousness or complexity of their claim. This governmental plan did not escape the vigilance of bodes such as JUSTICE which attempted to raise awareness of the lack of fairness inherent in the scheme - <a href="http://justice.org.uk/draft-legal-aid-sentencing-punishment-offenders-act-2012-amendment-schedule-1-order-2014-2/">2014 REPORT by JUSTICE</a>.  There was also <a href="http://www.publications.parliament.uk/pa/ld201314/ldselect/ldsecleg/176/17603.htm">concern within  Parliament</a>.  Justice considered the changes to be "unnecessary and ill-considered" as well as being incompatible with equal protection before the law.  Equality before the law is inherent in the common law and the changes would almost certainly have been in breach of European Union Law on Freedom of Movement (Treaty on European Union Art 24) as well as Article 14 of the European Convention on Human Rights.  <a href="http://justice.org.uk/draft-legal-aid-sentencing-punishment-offenders-act-2012-amendment-schedule-1-order-2014-2/"></a> In the courts: The High Court held that introduction of the residence test was ultra vires and unjustifiably discriminatory. The Court of Appeal overturned that decision - see <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2015/1193.html" target="_blank" title="Opens new window">[2015] EWCA Civ 1193</a>.  The matter then went to the Supreme Court which has ruled that the Residence Test was ultra vires (beyond the powers of) the Act (LASPO).   In other words, the Act did not permit Ministers to introduce a residence test by using secondary legislation.  The principle that those given powers must act within them is a basic principle of our common law.  The court's judgment is to be handed down later.  At the end of the hearing on 18th April the Supreme Court announced that it was allowing the appeal on the ultra vires ground. The Court indicated that it did not consider it necessary to hear argument on whether the Order was unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998. Acts of Parliament frequently permit Ministers to make secondary legislation.  To a point this is necessary since it avoids the Act having to deal with all the minutiae connected with implementation of the Act.  <a href="http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">LASPO 2012</a> section 9(2) states:  The Lord Chancellor may by order— (a) add services to Part 1 of Schedule 1, or (b) vary or omit services described in that Part, (whether by modifying that Part or Part 2, 3 or 4 of the Schedule). The resurgence of Henry VIII: Here then is an example of "Henry VIII legislation" enabling Ministers to alter the enabling Act itself.  The Lord Chancellor could amend the Schedule to the Act providing for civil legal aid.  However, the Supreme Court has held that the power granted to the Lord Chancellor did NOT go so far as to allow him to remove a whole class of people from legal aid when the reason for their removal was essentially who they were. The decision does not prevent Ministers trying to get their way eventually but they will now have to do so by way of Primary Legislation. The extensive use of Henry VIII powers has not escaped criticism.  The phrase is of course based on the dictatorial Tudor Monarch - Henry VIII (1491-1547) who ruled from 1509 until his death .  Lord Judge, a former Lord Chief Justice spoke about them at King's College London on 12th April 2016 - "<a href="https://www.kcl.ac.uk/law/newsevents/newsrecords/2015-16/Ceding-Power-to-the-Executive---Lord-Judge---130416.pdf">Ceding power to the executive; the Resurrection of Henry VIII</a>."   See also Professor Mark Elliott - Public Law for Everyone 15th April - <a href="https://publiclawforeveryone.com/2016/04/15/henry-viii-powers-a-follow-up-post/">Henry VIII powers: a follow-up post</a> Supreme Court Judgment: Link to be added later.

Legal aid - Supreme Court ruled the planned "Residence Test" unlawful

Legal aid axemanship: Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was brutal axemanship by uncaring Min...

6:02:00 AM

UK and the EU (8) ~ Trading bloc or emergent State?

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj6FSbLY3-qlDohIa92KSAzf0tEzMfyewa8otMnO0Ptv-7ggZWm77LVDVsQLEHPxRl8KE1B6L9iOOn2P-RZa7gXmbwLN2hoUd76AbmVLeweiaTd3YVzG7w0J-_qFVupzSgS4nTkjWUsKlv0/s1600/Euro+bank+notes.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="146" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj6FSbLY3-qlDohIa92KSAzf0tEzMfyewa8otMnO0Ptv-7ggZWm77LVDVsQLEHPxRl8KE1B6L9iOOn2P-RZa7gXmbwLN2hoUd76AbmVLeweiaTd3YVzG7w0J-_qFVupzSgS4nTkjWUsKlv0/s200/Euro+bank+notes.jpg" width="200" /></a></div>  <div class="MsoNormal">The Treaty on European Union expresses a desire for an “ever closer union” among the peoples of Europe and for integration of economic and monetary policy.  The EU has legal personality but only has those competencies conferred on it by the Treaties.  The EU issues its own currency: the EURO (€).  A Common Foreign and Security Policy (CFSP) has also developed and this has a Defence dimension.  It is hardly surprising that many see the EU as going well beyond a mere trading arrangement between States.  Certain characteristics of Statehood undoubtedly exist.  This post looks, albeit very briefly, at "Ever Closer Union", Criminal Justice; Foreign Policy; Defence and Monetary Union.  The UK has only partially embraced some of the common policies (e.g. defence) and has not entered into monetary union ("the Eurozone"). <a name='more'></a> <a href="https://www.blogger.com/null" name="more"></a> This is Number 8 in a series of posts seeking to inform the EU Referendum debate by looking, in as straightforward a way as possible, at various aspects of the European Union (EU) and its relationship to the UK.  Links to previous posts in the series are below.    </div><div class="MsoNormal"> Ever Closer Union: The Treaties refer to the EU being resolved to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity - (Preamble to the Treaty on European Union).  The <a href="http://uk.mobile.reuters.com/article/idUKKCN0VS2SH?irpc=932">Special Status Deal</a> (February 2016) deal, negotiated by the Prime Minister with the EU, recognises that - "... the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union.  The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom."  For more on this, see the <a href="http://uk.mobile.reuters.com/article/idUKKCN0VS2SH?irpc=932">Special Status Deal </a>- Section C - Sovereignty. The Special Status deal also indicates that - "the purpose of the principle of subsidiarity is to ensure that decisions are taken as closely as possible to the citizen. The choice of the right level of action therefore depends, inter alia, on whether the issue under consideration has transnational aspects which cannot be satisfactorily regulated by action by Member States and on whether action at Union level would produce clear benefits by reason of its scale or effects compared with actions at the level of Member States." This statement may be politically useful but it is questionable whether it adds anything to the position of subsidiarity in EU law.  For more on the Subsidiarity Principle see <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Aai0017">EUR lex - The Principle of Subsidiarity</a>  and the <a href="http://eur-lex.europa.eu/legal-content/EN/AUTO/?uri=uriserv:OJ.C_.2010.083.01.0001.01.ENG#d1e186-201-1" shape="rect">Protocol on the application of the principles of subsidiarity and proportionality</a>  </div> The precise legal status of the Special Status Deal was a matter of some debate - see this blog at  <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a>   The government believes that the deal is binding in international law - <a href="https://www.gov.uk/government/publications/the-best-of-both-worlds-the-united-kingdoms-special-status-in-a-reformed-european-union">information published under section 6</a> of the Referendum Act   Criminal Justice: There are areas where international co-operation in combating crime is essential.  The EU came to have considerable influence over more than 100 aspects of law enforcement.  The UK secured an "opt out" from many of those measures but the "opt out" provisions also enabled the UK to "opt back in" to those measures it wished to retain.  In 2014, the opt-back-in was applied to some 35 measures. The list of measures to which the opt-back-in applied (as at July 2014) may be seen in  <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/326698/41670_Cm_8897_Accessible.pdf">this document published by the government</a> at pages 6 to 8. <div class="MsoNormal">The measures that continue to apply to the UK include action relating to child pornography, football disorder and, more controversially, the European Arrest Warrant.  The UK also participates in some aspects of the <a href="http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen-information-system/index_en.htm">Schengen Information System </a>(SIS II).   SISII is a European-wide IT system that helps facilitate European cooperation for law enforcement, immigration and border control purposes. The UK connected into SISII on 13 April 2015 but only participates in the law enforcement aspects.</div><div class="MsoNormal"> </div><div class="MsoNormal">Would these measures cease to apply in the event of Brexit?  That would depend on the exit deal to be negotiated.  It would seem that there would continue to be mutual benefit for all parties in continuing such arrangements even if they were under different UK / EU agreements.</div><div class="MsoNormal"> Foreign Policy: The EU has developed a Common Foreign and Security Policy (CFSP) - fuller details at <a href="http://europa.eu/pol/cfsp/index_en.htm">Europa.eu</a> and also from<a href="http://ec.europa.eu/policies/external_relations_foreign_affairs_en.htm"> European Commisson</a>.  This enables the EU to speak and act as one in world affairs.  CFSP is one of the most controversial areas of EU activity. This is partly because of the close association of foreign policy and defence with national sovereignty, the long histories of many member states as world powers in their own rights, and the wide range of bilateral relationships between member states and other parts of the world.  The 2009 Lisbon Treaty strengthened this policy area by creating <ul><li>the post of <a href="http://eeas.europa.eu/background/high-representative/index_en.htm" title="EU High Representative for Foreign Affairs & Security Policy">EU High Representative for Foreign Affairs and Security Policy</a> </li><li>the <a href="http://eeas.europa.eu/index_en.htm" title="European External Action Service (EEAS)">European External Action Service (EEAS)</a> – the EU's diplomatic corps.</li></ul>EU foreign and security policy seeks to <ul><li>preserve peace and strengthen international security</li><li>promote international cooperation</li><li>develop and consolidate <ul><li>democracy</li><li>the rule of law</li><li>respect for human rights and fundamental freedoms. </li></ul></li></ul></div><div class="MsoNormal">The EU maintains a delegation to the United Nations - <a href="http://eu-un.europa.eu/">EU Delegation to the UN</a> </div><div class="MsoNormal"></div><div class="MsoNormal">Defence:</div><div class="MsoNormal"> <table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-rvwtRLoqxBptiJ6hX8Pr50Q0Q9T50AJ_gXfiPzF_iA6ts5f8s7ZvxznO320VZYWWy08Pyze-ZFXeXLpfFh2N1FjWuoEaNJ3QUFn5hzCfFPGT6hkw3n0RxsTjJbxKAyI_JIRDDm31hJ1F/s1600/EU+Battlegroup.png" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-rvwtRLoqxBptiJ6hX8Pr50Q0Q9T50AJ_gXfiPzF_iA6ts5f8s7ZvxznO320VZYWWy08Pyze-ZFXeXLpfFh2N1FjWuoEaNJ3QUFn5hzCfFPGT6hkw3n0RxsTjJbxKAyI_JIRDDm31hJ1F/s200/EU+Battlegroup.png" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">EU Battlegroups</td></tr></tbody></table> Part of the EU's Common Foreign and Security Policy (CFSP) is the development of a "common defence" - (see, for example, <a href="http://europa.eu/pol/pdf/consolidated-treaties_en.pdf">TEU Art 42</a>).  The aim is to provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.  The EU Institute for Security Studies traced <a href="http://www.iss.europa.eu/uploads/media/Brief_40_EU_Battlegroups.pdf">the development of EU Battlegroups</a> in an article in November 2013. Whilst the EU is aiming in the direction of a "common defence" the Treaty on European Union provides that the policy of the Union shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO).  <div style="text-align: justify;">The <a href="https://www.eda.europa.eu/Aboutus/who-we-are/member-states">European Defence Agency</a> is an intergovernmental Agency of the European Council. Currently, 27 countries – all EU Member States except Denmark – participate in EDA.  The European Defence Agency is ascribed four functions - <a href="https://www.eda.europa.eu/Aboutus/Missionandfunctions">Mission Statement </a>:</div></div><div class="MsoNormal"><ul><li style="text-align: justify;">developing defence capabilities;</li><li style="text-align: justify;">promoting defence Research and Technology;</li><li style="text-align: justify;">promoting armaments cooperation;</li><li style="text-align: justify;">creating a competitive European Defence Equipment Market and strengthening the European Defence Technological and Industrial Base.</li></ul></div> <div class="MsoNormal"></div>EUR Lex - <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Aai0025">Foreign and Security Policy at EU level</a> European Parliament March 2015 - <a href="http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/551346/EPRS_BRI%282015%29551346_EN.pdf">European Defence Cooperation</a> Politics.co.uk - <a href="http://www.politics.co.uk/reference/common-foreign-and-security-policy">Common Foreign and Security Policy</a>  Monetary Union: European Commission - <a href="http://ec.europa.eu/economy_finance/euro/emu/index_en.htm">Economic and monetary union</a>.  <a href="http://europa.eu/about-eu/basic-information/money/euro/index_en.htm">Europa - The Euro</a>. The euro is the most tangible proof of European integration – the common currency in 19 out of 28 EU countries (the Eurozone) and used by some 338.6 million people every day.  The Economic and Monetary Union involves the coordination of economic and fiscal policies, a common monetary policy and the euro as the common currency. The euro was launched on 1 January 1999 as a virtual currency for cash-less payments and accounting purposes. Banknotes and coins were introduced on 1 January 2002. The Treaty on European Union requires the EU to establish an economic and monetary union (EMU) whose currency is the Euro.  The EU has exclusive competence over monetary policy for Member States whose currency is the euro.  Entry to the eurozone is therefore a major surrender of national power to the EU.  The European Central Bank has the exclusive right to authorise the issue of euro banknotes within the EU. The UK is not within the Eurozone and the present government has made it clear that it has no intention of joining it.   The "Special Status" deal (link above) states that - "Emergency and crisis measures designed to safeguard the financial stability of the euro area will not entail budgetary responsibility for Member States whose currency is not the euro, or, as the case may be, for those not participating in the banking union."  The deal indicates that this will be incorporated into the Treaties at the time of their next revision. Previous posts in this series: 20th February - <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a> - including link to the deal secured by the Prime Minister UK and the EU (1) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-1-history-and-background.html">History and Background</a> UK and the EU (2) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-2-eu-treaties-key-points.html">The EU Treaties - key points</a> UK and the EU (3) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-3-parliament-commission-and.html">The Parliament, the Commission and the Court</a> UK and the EU (4) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-4-freedom-of-movement-of.html">Freedom of movement of persons</a> UK and the EU (5) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-5-referendum-people-need.html">Referendum - People need facts not slogans (Lord King)</a> UK and the EU (6) -<a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-6-will-brexit-be-simple.html">Will Brexit be a simple process?</a> UK and the EU (7) -<a href="http://obiterj.blogspot.co.uk/2016/04/uk-and-eu-7-your-rights.html">Your Rights</a> Government information: The <a href="https://www.gov.uk/government/publications/the-best-of-both-worlds-the-united-kingdoms-special-status-in-a-reformed-european-union">information published under section 6</a> of the Referendum Act  The information published under section 7 of the Referendum Act - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf">Possible models for the UK outside the EU</a> and <a href="https://www.gov.uk/government/publications/rights-and-obligations-of-european-union-membership">Rights and Obligations of EU Membership</a> <a href="http://www.politics.co.uk/reference/common-foreign-and-security-policy"></a>

UK and the EU (8) ~ Trading bloc or emergent State?

The Treaty on European Union expresses a desire for an “ever closer union” among the peoples of Europe and for integration of economic and ...

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UK and the EU (8) ~ Trading bloc or emergent State?

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