EU withdrawal and family law

Notes on speech of Lady Sherlock in House of Lords


Extract from conclusion to speech of Lady Sherlock in House of Lords debate on EU withdrawal on 31 January 2017. The numbering is mine. Comments appear below each paragraph:


Procedure and European Court of Justice

1 What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.


The procedural point cannot be stressed too strongly. Each EU country keeps its own cultural roots in family law. No one tells the UK it must change its primitive adoption laws; nor dictates to any EU catholic country which may have different bases for dissolution of marriage. UK money distribution remains its own.


That said the primacy of children’s welfare in any decisions is one adopted by EU law and re-enforced by the European Court Neulinger and Shuruk v Switzerland Application No 41615/07 [2011] 1 FLR 122, ECtHR).


A bespoke arrangement

2 Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.


‘Slow and difficult’ is not an answer. We are here today with ‘exit day’ a matter of months away; so for the sake of the families and children concerned it must be dealt with by 2019. The opposing Brexit army abetted by MPs on both sides of the Commons, is advancing. Family lawyers cannot just say: ‘wait, we aren’t ready to fight’. We just have to work harder to prepare battle positions: ie a fresh Brussels IIA.


The ‘bespoke’ solution sounds a little like the second option put forward by family lawyers in reply to Brexit (October 2017). If nothing is ‘bespoken’, separating families and their children will fall off the famous Brexit cliff edge; and this is not for lack of warning. The problems families will suffer as outlined in the earlier part of the speech were predicted by the Supreme Court over a year ago in R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583 at para [71].


The painful fact of the matter is that unless EU and the Tories agree to keep such instruments as Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) on hold families like the one in the earlier part of Lady Sherlock’s will fall into a Brexit void where few hold will be barred between competing jurisdictions.


The Ministry of Justice and practising lawyers must get their heads together with individual jurisdictions to work out what reciprocity can be agreed following EU withdrawal and to agree how this is to be enforced. For the sake of the families and their children concerned, surely those who support EU withdrawal can agree that the European Court of Justice continue to have jurisdiction in those few cases where a neutral arbiter is needed?

3 I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.

4 I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.




The issues over children go must wider than anti-trafficking (crucial though this is). EU law is much more firm and clear – though still not always followed by UK law (as I explain ). UK is bound by eg Charter of Fundamental Rights of the European Union (2000/C 364/01), which the Government proposes to ditch. This gives children rights to express their views which still need clearer procedural expression in English and Welsh law. Outside EU there is a real risk that children’s rights will again suffer. The massive advances of Children Act 1989 twenty-five years later and without the impetus of EU law reform look tawdry in the area of children rights.


Without Brussels IIA children in care will find themselves caught in a jurisdictional cross-fire where parents leave UK, and children are in care in England and Wales (Brussels IIA Art 15: there are a number of recent reported decisions on this see eg Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge).


Agenda for EU withdrawal


If EU withdrawal is to go ahead


  • Lawyers and the Ministry of Justice must urgently engage with EU judges (through a representative body, or in each state)
  • Children law and children’s rights to be heard must be made more clear preferably by statute.


Without this families and children will suffer.

EU Charter of rights and children

A child’s Charter rights which will be lost


The Observer today reported that clause 5(4) in the European Union (Withdrawal) Bill which proposes to abolish Charter of Fundamental Rights of the European Union (‘the Charter’) will create a substantial ‘human rights deficit’. It will leave ‘many different groups in society without adequate protection’. Clause 5(4) is in brutally clear terms: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. This article concentrates on children’s rights under the Charter which will go on exit day.


An important means of protecting rights – apart from those rights already enshrined in a variety of other legislation and in the common law – is European Convention 1950. This is incorporated, most of it, into English law by Human Rights Act 1998. However there are two substantial qualifications to the importance of European Convention 1950, which the Charter helps to resolve. First, Human Rights Act 1998 does not override an Act of Parliament; though it can enable judges to declare them incompatible with the European Convention 1950. Secondly, the Charter’s protection means that if there is a conflict between basic rights contained in the Charter as against an Act of the Westminster parliament, the Charter – as EU law – will prevail over the Act.


Thus if there is – as there may be – a conflict between Children Act 1989 s 1(3) and Art 24 of the Charter for children rights, then the Charter will prevail; unless clause 5(4) becomes law when, after exit day – when UK leaves the EU – the Charter exits too.


Children law an EU withdrawal: out with the Brexit bathwater…


An area of law which will be appreciably affected in a number of ways by EU withdrawal is children law, in particular where they and one of their parents are living in UK, and the other is in a EU member state. That is a subject which is beyond the scope of this article. I want to concentrate here only on the Charter; and referring only to law which does not remain part of English law. Art 24 of the Charter is concerned specifically with children’s rights (as is, though in slightly different terms, United Nations Convention on the Rights of the Child 1989 Art 12).


Under European Convention 1950 children do not have specific rights. Like anyone else a child has rights under the Convention, such as to respect for the child’s private life (Art 8); but a child does not have the specific rights protected by Art 24.


Charter of Fundamental Rights of the European Union Art 24 says:


1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.


EU Charter Art 24: children to express views freely


I have broken this Article down into its component rights and have set out the Charter rights – ie part of English law as it now stands; and nothing to do with European Convention 1950 human rights. Alongside the Art 24 rights I have shown the parallel English law right – ie all that will remain if the EU Charter is abolished by the Brexit law (as under cl 5(4)). Where there is a blank there is no equivalent provision in English law; though plainly the right at 1 is the subject of a substantial part of a variety of legislation, including local authority involvement with children under Children Act 1989 Parts 3 to 5. It is the right to express views (at 2) which is unique to the Charter:


  Charter of Fundamental Rights of the European Union Art 24: children’s rights English law Source of English law
1 Children have a right to such protection and care as is necessary for their well-being    
2 Children may express their views freely    
3 Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. When a court is making an order about a child, it shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) Children Act 1989 s 1(3)(a) and (4)
4 In all children cases… the child’s best interests must be a primary consideration. When a court determines any question with respect to – (a) the upbringing of a child; or the child’s welfare shall be the court’s paramount consideration. Children Act 1989 s 1(1)
5 Every child shall have the right to maintain a personal relationship and direct contact with both his or her parents, unless that is contrary to the child’s interests A court is entitled to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. Children Act 1989 s 1(2A)[1]


Child’s views, according to age and maturity


The passages in Art 24 with which I am concerned here are at 2 and 3; since 2 is not re-produced in English law in terms which are, in effect, mandatory as is the case in Art 24. If a child wants to express a view, the child ‘may’ do so; and means must be found to ensure this. Even now that is not done properly in English children proceedings. The provision at 2 in the table does not exist in English law, save – whilst the Charter remains part of English law – in Art 24.


The importance of Art 24 has been asserted by the Court of Appeal in a judgment approved by the Supreme Court in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 where Lord Justice Ryder explained why a seven-year old Bulgarian child should have had ‘an opportunity to be heard’. This does not mean the child necessarily has to appear in court; but the ‘opportunity’ must be there which it had not been in the Bulgarian courts.


The terminology ‘opportunity to be heard’ derives from EU legislation – Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility – to give it its full title; generally known as ‘Brussels IIA’, or Brussels IIR. That legislation will also go with EU withdrawal, a fact which was noted (at para [71]) by the Supreme Court in the Gina Miller case (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583).


The alignment of Brussels IIA and the Charter will be considered in another article. For now it is sufficient to say that Brussels IIA as part of its preliminary provisions includes:


(33) [Brussels IIA] recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union,


Views: an opportunity to be heard


So, said Ryder LJ, in Re D (above) that the child’s right to an opportunity to be heard is a ‘child-centred issue’. It ensures that the child is engaged in the process and is accorded due respect in that process. It is thus part of the rule of law in England and Wales that a child has the right to participate in the process about the child (emphasis added) he said, and then continued:


[44]  … That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation (my italics).


To me this issue turns on the two forms of legislation at 3 above. Childrens’ views shall be taken into consideration on matters which concern them in accordance with their age and maturity, is the EU Charter version. English law says that when making  a decision about a child’s future the court ‘shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’.


To me – and I am trying very hard not to load my pro-European views onto this – the English version of the law, from a child’s point of view, is appreciably weaker under Children Act 1989 s 1(3)(a). A child’s ‘wishes and feelings’ are but one of six factors to be considered by the court. None of the six are to be given priority. In EU law the child has a right – unconditionally – to have his or her views taken into account (if that is what the child wants).


Under the EU withdrawal bill those child’s rights will go. Children Act 1989 s 1(3)(a) will be all that is left to protect such rights as children are accorded by family courts.

[1] Added by amendment by Children and Families Act 2014 from April 2014

Top twelve family law cases for 2017


Miller to Mental Capacity Act 2005


A review of my top twelve family law cases for 2017 must mention – no more – R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583. It drew attention Brussels IIA (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility) as being an example of legislation which any ‘Great Reform Bill’ (such a silly name, now European Union (Withdrawal) Bill)) could not replace. It requires co-operation from other EU legislatures and judiciary which may – or may not: we do not know yet – be forthcoming.


Lady Black must be congratulated for her promotion to the Supreme Court; but for clarity of law-making her brother McFarlane LJ remains the star. In the High Court it is hard to choose only a handful of cases when we have lawyers of the calibre of Peter Jackson (now LJ), Cobb, Keehan, MacDonald, Hayden and Baker JJ pushing out the judgments (I don’t mention Mostyn J, who is too self-indulgent; and he is too wobbly as a lawyer to be a good judge).


It is odd that it is the male judges who send in their judgments to BAILII. The common law (for it is reported, not unreported decisions which frame the law) – like other things in life, perhaps? – tends to be made by boys, even in family law. I have limited each Family Division judge to only one case. No women reach this cut, which may be very unfair: where are Parker or Theis, Russell or Roberts JJ, for example? Not even Lady Hale, whose judgements in her thirteen years in the Supreme Court have done so much to reform and define family law, makes it in Supreme Court judgments this year.


Nor have I found it possible to include in my dozen one judgement from the President, Sir James Munby. Perhaps in part this is because amongst his duties is work on obscure subjects like HRH Princess Margaret’s will and cases brought by the Queen’s Proctor such as Grasso v Naik (twenty-one irregular divorces) [2017] EWHC 2789 (Fam). Twenty-one divorce petitions issued from the same address by a struck-off barrister were revoked or set aside. After the initial explanation of the law and a scan of the evidence you could tell that Sir James was thoroughly bored by the whole thing. Neither case – the will and the QP application – add much to the use or ornament of the principles of family law.


The appellate courts


2017 began with all eleven Supreme Court Justices delivering their split (8:3) judgements in Miller. Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 explained that an undertaking, pre-curial to a court order could be varied in narrow and appropriate circumstances (Birch by the way was ignored by Mostyn J in his administrative exercise of CH v WH (Power to order indemnity) [2017] EWHC 2379 (Fam) as explained here R (UNISON) v Lord Chancellor (Equality and Human Rights Commission and another intervening) [2017] UKSC 51, [2017] 3 WLR 409 makes the cut as a family law case. It is pervasive to all litigation. It elegantly and authoritatively defines rights to justice and the rule of law.


The star for me of Court of Appeal cases is Re T (A Child) [2017] EWCA Civ 1889 in which McFarlane LJ explains the breadth and utility to parties and children in family proceedings of the non-molestation order under Family Law Act 1996 s 42; in this case to protect a child who was in foster care. In so doing he refuses to define ‘molestation’ or ‘domestic abuse’ (see, by contrast, the effort to do so in the revised FPR 2010 PD12J para 3: for a pre-Re T discussion of PD12J see It depends on the circumstances and whether they come within the broad meaning of molestation in Family Law Act 1996 s 42.


In Hart v Hart [2017] EWCA Civ 1306 Moylan LJ produced a master-class on the back-ground to the modern – ie post White v White [2000] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 – law on ancillary relief; and in particular in relation to ‘non-matrimonial assets’ (eg inherited, after acquired or earned by exceptional effort assets). Mrs Hart, much to the unbridled disgust of her own lawyers, Irwin Mitchell (who should have restrained their comments on the judgment) failed in her appeal. A judge has a wide discretion in these things. All lawyers, Irwin M included, must learn that discretion does not always fall the way you expect – or in the way you have advised your client to expect.


In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 Sir Ernest Ryder (as President of Appeals Tribunals) emphasised that care is needed by courts in how they treat the evidence of vulnerable witnesses (here in an immigration appeals tribunal). It is an important case for anyone acting for a vulnerable party or witness in any form of court proceedings: criminal, family, civil or administrative tribunal (as here). Two particular issues arose which are relevant also eg to children proceedings: the way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and the importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done) (please note authors of the recent FPR 2010 Pt 3A on vulnerable witnesses: and see David Burrows on ‘Evidence of children and vulnerable witnesses: Part 1’).


European cases


Maybe I’ve been a little biased in singling out EU regulation cases; but the hole being bored in our family justice system is still only present, for now, in its ignoral by most family lawyers. In B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) MacDonald J explained the background to the stay jurisdiction and why in this case the former wife and the English courts must await a decision from the Milan court. In FE v MR & Ors [2017] EWHC 2298 (Fam) Baker J considered whether Brussels IIA Art 15 enables the court of a member state (a requesting court, R) to request another to transfer a case from that member state’s court to R’s court. Were the children’s circumstances exceptional and would the requesting court ‘be better placed to hear the case’ (Art 15.1). Baker J considers the factors which should influence him in requesting a Spanish court to transfer a case to the English courts, where two children aged 14 and 11 of Spanish parents, were living in England, but had been subject to proceedings in Spain for four years.


One money, one ‘private law’ children case; and finally a ‘public law’ case, all under Brussels IIA. In Redbridge LBC v D, E, F and G (Children: Art 15 – transfer of the proceedings) [2017] EWFC B82, HHJ Carol Atkinson as High Court judge dealt with an application under Art 15 in respect of 4 Roma heritage children from Romania. An application for a transfer of the proceedings to Romania, pursuant to Art 15 was issued by the mother in April 2017. The English court had jurisdiction based on habitual residence. Judge Atkinson provides a text-book analysis of the law to determine this application, by reference to leading case law and concluded that it would not be in the ‘best interests’ of the children to transfer the children; at least not at this stage.


In the tragic case of Re Gard (A Child) [2017] EWHC 1909 (Fam) (and see ‘Lessons from Gard’), Francis J did what a Family Division judge sometimes has to do, and he did so with great dignity and care. Charlie suffered severe brain damage and could not see or hear or breathe because of a mitochondrial condition. Your heart bleeds for his parents, who – or on whose behalf – every legal and medical stone was turned. Spare a thought too for the Family Division judge who has to say a child must die.


In Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J – with enormous care, and attention to detail of the evidence – explained why children should go into care and why the ABE evidence adduced before him was admissible and credible. An oddity of the case remains that information which should have been covered by legal professional privilege – as I read the report (see eg here) – was compelled to be produced by a lawyer who took part in the early stages of the case.


Peter Jackson J (as he then was) would be the first to accept that Re A (Letter to a Young Person) (Rev 1) [2017] EWFC 48 broke no new ground, in law. It has to be included here as a very real attempt to open up to a ‘young person’ (a young boy who had, originally, made his own application to go to live with his father in a ‘Scandinavian’ country). When courts are being reminded daily that the views of those children mature enough to be consulted – if they want to be consulted – must be taken into consideration (see Charter of Fundamental Rights of the European Union Art 24: also proposed to go with EU withdrawal), for a judge to ensure that the traffic flows in both directions is surely a very good thing?


My favourite case of 2017 is Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam). In it Cobb J combines, with the typical sensitivity of a fine children lawyer, an understanding of how one of my favourite cases of all time – Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – with a subject which is essential to all family lawyers Mental Capacity Act 2005. He shows how these two subjects complement one another in relation to a child’s or other person’s understanding and ability to consent (see eg ‘Capacity to consent’).


Happy Christmas to any and all of my readers…


David Burrows

24 December 2017


Retained law and the EU Withdrawal Bill

‘Retained law’: defined


The concept of ‘retained law’ is essential to an understanding of how the EU withdrawal bill  cls 2 to 6 are intended to work. This will define what EU law is to stay in UK law and what laws are intended to develop from ‘exit day’? In what follows these clauses will be considered followed by a guide to the powers retained by ministers further to amend primary legislation by delegated powers (‘Henry VIII powers’) in cls 7-9. For the family lawyer the position under retained law must then be compared with each individual case with a EU component: that is where one or both parents are in another EU country and the children (with the other parent or looked after by a local authority) remain in UK or are in a EU country.


Clause 6 defines what forms of law will be retained according to the following definitions in cl 6(7):


  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision in cl 5;
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of cls 2, 3 or 4 or sub-cls 5(3) or (6).
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day.


Cls 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:


(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,…


Cl 5 defined the intended status of retained EU law (see (3) above):


  • Cl 5(1) provides that the principle of supremacy of EU principle no longer applies to any enactment or rule made or passed on or after exit day.
  • Similarly, cl 5(2) provides that the EU supremacy principle does apply when questions arise after exit-day as to the interpretation, disapplication or quashing of pre-exit enactments and rules; and
  • Cl 5(3) says that the arrangement set out in clause 5(2) applies even if a relevant pre-exit enactment or rule is amended post-exit, provided that ‘the application of the principle is consistent with the intention of the modification’.


The effect of these provisions is that for retained EU law will the EU supremacy principle will apply to pre-exit day legislation, but not after exit day. Thus, if questions arise about the relative priority of pre-exit domestic legislation and retained EU law, retained EU law will prevail. It will therefore, for instance, be possible for a court to disapply pre-exit Acts of Parliament if they conflict with retained EU law. But when questions arise about the relative priority of post-exit domestic legislation and retained EU law, the EU supremacy principle will be disregarded, meaning, for instance, that post-exit Acts of Parliament will be capable of taking priority over retained EU law. As already mentions, cl 5(4) provides that the EU Charter of Fundamental Rights is not part of domestic law on or after exit day; though, for the avoidance of doubt, under cl 5(5) fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself. To that extent it therefore remains part of domestic law.


Interpretation of ‘retained EU law’


Cl 6 provides for ‘Interpretation of retained EU law’. Courts are no longer to be bound by decisions of the CJEU, from exit day; and no case or other matter can be referred to the European Court after that day (cl 6(1)). No court need ‘have regard to anything done on or after exit day by the European Court [unless] it considers it appropriate to do so’ (cl 6(2)). Thus decisions of the CJEU made after exit day will not be binding on UK courts and tribunals; domestic courts cannot refer cases to the CJEU on or after exit day; and UK courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.


Cl 6(3) requires courts national courts to resolve questions regarding the validity, meaning or effect of retained EU law in accordance with the case law of the Court of Justice and general principles of Union law as both existed at the date of the UK’s departure from the EU. The ‘explanatory note’ to the bill expands on this: any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre‐exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the travaux preparatoires (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law).


After exit day UK courts will also no longer be able to refer questions concerning the interpretation of Union law to the CJEU. Clause 6(4) of the Withdrawal Bill substitutes the UK Supreme Court for the CJEU when it comes to issuing binding interpretations of retained Union law. Both national courts will also enjoy exclusive competence to depart from previous decisions of the EU Court where they consider it ‘right to do so’ – following established domestic rules on judicial precedent (cl 6(5)).


All that said, s 6(2) affords domestic courts – under the leadership of the Supreme Court – a discretion to develop, or at least to permit, continued links with the EU jurisprudence after exit day.


Henry VIII powers


Cls 7, 8 and 9 provides ministers with substantial powers by order or other delegated legislation to amend statutory provisions: that is by ‘Henry VIII powers’. First a Henry VIII power must be defined. This was done recently by Lord Neuberger in the Supreme Court in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387 where he explained that the term, by reference to Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9 as ‘commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.’ He continued:


[25] … When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.

[26] … In the case of an “amendment that is permitted under a Henry VIII power”, to quote again from Craies (above) para 1.3.11: ‘…as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.


Each of the three clauses provide a similar formula, first to deal with ‘deficiencies arising from withdrawal’, thus:


(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.


Similar sub-clauses are included for complying with international agreements (cl 8) and for implementing withdrawal (cl 9); and all three clauses (7(4), 8(2) and 9(2)) add the henry VIII cover provision: that any ‘Regulations under this section may make any provision that could be made by an Act of Parliament’. And then, if that is challenged in the High Court the courts, says Lord Neuberger, must check whether the power was in truth ‘outside the legislature’s contemplation’ though subject to the fact that in each case the powers are not general, but are granted in each clause for specific purposes.

‘Bias’ and the judge’s role

Judicial disqualification (‘recusal’)


The question of whether or not Lord Neuberger should sit in the Supreme Court on the appeal from the EU withdrawal case (R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)) has recently arisen. His wife is believed to have made comments supporting the United Kingdom remaining in the European Union (


On a binary question (IN or OUT as it was put in the referendum) as to whether or not to remain in the EU the Supreme Court judges are likely all to have a view. They are voters. That does not mean they cannot adjudicate. There are many cases where the judge will have a personal view about a person s/he must deal with in court – a judge, personally, may take an intense dislike to a defendant; but the court’s decision may go in an opposite direction from that personal view. Judges will be well-insulated against that sort of personal bias.


In the case of Lord Neuberger, his wife’s views – and even his own – are irrelevant. He is being asked to decide a point of law; and whichever way he decides, he would not be the first judge who has had to decide one way whilst his/her personal preferences go in the opposite direction. Whatever his own sympathies, he may find that the law requires him to go in an opposite direction.


‘Bias’ – for this is what we are speaking of here – is a technical term in law; and if it is found to exist, a judge must take him/herself off the case. The immediate problem – which I personally do not see as an issue over Miller in the Supreme Court, either in respect of Lord Neuberger or of Lady Hale (her comments on the case in Kuala Lumpur) – is that it is the judge who is the arbiter of whether or not bias arises, and therefore whether or not s/he should be disqualified (‘recused’, the technical term) from hearing the case.


‘Actual’ bias: automatic disqualification


Judicial impartiality, says the Court of Appeal, is ‘the fundamental principle of justice, both at common law and under European Convention 1950 Art 6’ Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 at§[6]. If it is breached a judge is disqualified from hearing a case (recused). It is not a matter for a discretionary case management decision.


‘Actual’ bias gives rise to automatic disqualification by the judge or other tribunal by him/herself from continuing to deal with the case. This occurs where the judge has a personal interest – however dispassionate s/he may be about it – in the case. For example, in Dimes v Proprietors of Grand Junction Canal (1852) 3 HLCas 759, 793–794 orders made by the Lord Chancellor, Lord Cottenham – a shareholder in the company concerned – were set aside:


No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest….


‘Actual’ bias is not limited to a financial interest. In R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2)) [1999] UKHL 1; [2000] 1 AC 119 Lord Hoffman was disqualified and the House of Lords disposal of the case set aside, because of his undisclosed interest in Amnesty International, a party to the House of Lords appeal. Lord Browne-Wilkinson (at 135) explained this – a point which could, just conceivably, be argued against Lord Neuberger):


The rationale of the whole rule is that a man cannot be a judge in his own cause…. If, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.


‘Apparent’ bias


The judge must recuse him/herself if it is accepted that the judge is, or appears to be, biased; but a decision on the point is a matter for the judge on the particular facts of the case. The test for bias of either category is whether the ‘fair-minded and informed observer’ would conclude that there was a real possibility of bias (per Lord Hope in Porter v McGill (orse McGill v Weeks) [2001] UKHL 67):


[103] The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.


This form of bias is less easy to define or to detect than ‘actual’ bias; for it may occur – when it does – in a variety of forms. This is not because judges may fail to detect their own possible bias when it is drawn to their attention. It is because two particular and separate factors combine: first, that the judge must adjudicate on the issue of which he is the subject (as mentioned above); and, secondly, that in doing so the judge will be conscious that it is a principle of judicial administration that a party may not chose or reject the judge who is to deal with his/her case. If judges gave in too easily to every application before them for recusal it would undermine this second principle.


In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004, [2000] QB 451 the Court of Appeal – in which sat the then Lord Chief Justice (Lord Bingham), Lord Woolf MR and Sir Richard Scott VC – gave a judgment of all three senior judges which, at the time, was intended to deal with the question of bias. It concluded, on the subject of perceived bias and of the question of categorising types of perceived bias, as follows:


[25] It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge….


The court considered a number of instances where perceived bias would be unlikely to be found. They went on to suggest circumstances where it might be found:


[25] …By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind….


The ‘fair-minded’ observer


Lord Hope, in Porter v McGill (above), coined the term the ‘fair-minded and informed observer’ to apply in this context; and he has since returned to the same ‘relative newcomer’ in the legal lexicon in Helow v Secretary of State for the Home Department and another [2008] UKHL 62. In that case (at §§[1] and [2]) he further explained. The main points in which the judge, in the guise of the informed observer, should determine the application (generally against his/her own involvement in the case) includes the following:


  • The informed observer will reserve judgment and a decision on the recusal (disqualification) until he or she has seen and fully understood both sides of the argument.


  • The approach to determination of the issue must be distinguished clearly from not be confused with that of the complainant: there must be a clear measure of detachment. The complainant’s assumptions can only be adopted by the observer if they ‘can be justified objectively’.


  • However, the observer must not be complacent if a real complaint is made out: ‘a judge must be, and must be seen to be, unbiased’.


Lord Hope then went on briefly to consider the ‘informed’ observer, stressing the main attribute of this person, as part also of the ‘fair-minded’ observer, is the extent to which this person will take the trouble to be fully informed as to the matters which are relevant to the complaint before the court:


[3] Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.


Informed observer


Where actual bias on established facts is proved, the decision will almost invariably be clear: the personal interest of the judge will disqualify him or her. If perceived bias is alleged the judge must be guided notionally by the ‘informed observer’. The judge will ask: to the ‘impartial outsider’ could my involvement in this case or my comments concerning it, or one of the parties, be seen as being biased one way or the other?