Bremainers Ask ….. Jessica Simor QC

Bremainers Ask ….. Jessica Simor QC

Jessica is recognised as one of the country’s leading specialists in public/regulatory, EU and human rights law, and has particular experience in data protection, tax, regulatory/competition law and in civil liberties work.

Jessica represented the second Claimant, Dos Santos, in R (Miller & Anor) v Secretary of State for Exiting the European Union & Others [2017], the challenge to the Prime Minister’s decision to use the Royal Prerogative to notify the EU of the UK’s intended withdrawal under Article 50 of the Treaty on European Union. She also represented Sue Wilson and others in the Wilson vs. the Prime Minister (Theresa May) – UK in EU Challenge.

Valerie Chaplin: With the economy set to suffer enormously from the current crisis, how can the Government be held to account: a) for their mishandling of COVID-19, and b) for ploughing ahead with a damaging Brexit, when an extension to the transition period would be welcomed by the majority?

Ultimately, the only way that the Government can be held to account is at the ballot box. Of course, Select Committees also provide for accountability but ultimately, they produce reports and findings, whose impact depends on the Government abiding by Conventions and acting honourably in responding to Committee findings and recommendations. There will also surely be a public inquiry in relation to both COVID-19 and ultimately, the Brexit debacle. Since the Government is in charge, however, of setting the terms of reference of such inquiries, we may be disappointed by them. It depends largely I suppose on who is appointed to run them, whether they are really useful and effective.

There will no doubt also be litigation about the Government’s handling of COVID-19 – indeed, I have been asked about such litigation but at the moment feel it is not timely. That is not because I do not think it has any prospect of success; to give but one example, there are clearly very serious issues surrounding what happened in relation to care homes, where people were undoubtedly put at a foreseeable risk to life that could, with sensible precautions, have been avoided. My hesitation is my sense that this is really not the right moment for litigation. In fact, I represented the family of a prisoner who died of asthma in the first case in the UK in which the Home Secretary was ordered by a Court to carry out a public inquiry into a death pursuant to Article 2 of the Convention. This was just after the Human Rights Act came into force. In that case, there was no nebuliser in the inmate’s cell despite the prison knowing he was at risk. The Court held that there was an arguable breach of Articles 2 and 3 (right to life and right not to be subjected to ill treatment) since the prison (for which the Home Secretary is responsible) had not taken reasonable steps to protect against a foreseeable risk to his life. I also acted for the soldier who died of heat illness in Iraq (and other British soldier Iraq death cases) – again raising the foreseeable risk to life point. This ultimately led to the finding that the Government is responsible for safeguarding British soldiers’ human rights, including when they are oversees. The same arguments will be made in relation to COVID-19, without the jurisdictional difficulties that arose in the Iraq cases.  It will be more difficult to establish any right to inquiries into the deaths however, at least in a hospital setting, because there is a line of case law concerning healthcare that excludes the need for public inquiries. This probably does not apply in relation to care homes, however. It is concerning that the Head Coroner has already issued a statement to say that systemic failings should not be investigated in any COVID-19 inquests. This will no doubt be tested in litigation.

Wilson vs PM

Helen Johnston: Do you think there is any scope for further legal action to hinder a damaging no-deal/bad-deal Brexit, to extend the transition period, or to prevent the loss of citizens’ rights?


Parliament has given its permission for no deal by enshrining in primary legislation that the transition period shall end on 31 December and that there shall be no extension. I cannot see therefore how there could be any further litigation on this. I’m afraid I am highly pessimistic about any litigation to argue that UK citizens have any right to retain EU citizenship (I know a case is pending). As for other rights, whilst we still have the Human Rights Act, we still have Convention rights, albeit that they can be removed by Parliament even without the Human Rights Act being repealed. And, whilst we are still in the Council of Europe, we have these rights even then as a matter of international law. We have yet to see whether Britain would really leave the Council of Europe and lose its last vestige of international standing. I know there are proponents of this course in Cabinet but still find it hard to believe they would take that step.

John Hodges: Is it time to make MPs Code of Conduct legally binding and enforced with appropriate punishment?

This is a very interesting question, which I have been puzzling over. The problem I suppose is always who should be the judge/enforcer. It certainly struck me as absurd that Dominic Cummings could be held in Contempt of Parliament, as was the Government itself, without there being any consequence. There does come a point where codes become less than useless – they provide cover but not deterrent. And it seems that we have reached that point. Perhaps the answer would be to have a small panel of MPs selected by Parliament (like the Speaker) that are charged with judging and enforcing a Code of Conduct. It would be very controversial, and I think a bad idea, for Judges to take this role.

Lisa Ryan Burton: After Johnson prorogued Parliament, there were many attacks on the judiciary from media and high-profile individuals, including some in the government itself. Considering the way politics is changing, do you feel it would be beneficial for the UK to have a written Constitution and a Constitutional court?

I am not someone who believes that a written constitution would provide a complete solution to what is going on. Constitutions are only as good as the people and institutions they govern and there is no doubt that some of the worst regimes have some of the best Constitutions. However, I am in favour of a written Constitution primarily because people simply do not understand our unwritten one. The role of the judiciary as a key pillar in our Constitution (and democracy) is the prime example of that. The great benefit of a Constitution is that it can be taught in schools, read by everyone and referred to by those seeking to hold those in charge accountable. A lot of ‘unconstitutional’ things have happened in the last three years but these have involved breaches of conventions that are unwritten and unenforceable. Very few people, including MPs, know about them or understand them and they get no traction in the press. But for all that, they are important in ways that are difficult to explain. We need more clarity. And people need to understand that democracy is much more than casting your vote at the ballot box.

Matt Burton: If we leave the EU with no comprehensive deal and therefore no close alignment at the end of this year, what rights do you see the UK government side-lining first and what would be your greatest initial worry?

UkinEU Challenge

There will probably be some deregulation and possibly reduced employment rights. What concerns me most though is the loss of rights that follows directly from leaving the EU – our rights (individual and corporate) in 31 countries. That for me is the worst thing about Brexit.

Steve Wilson: You recently tweeted of Keir Starmer that he “manifests a life-long training in handling information, questioning contradictions/falsehoods and seeking answers”. Do you think lawyers generally make good politicians, and would you ever consider going into politics yourself?

I think that the training of a lawyer is extremely useful. There are so many different parts of our job that are potentially useful. The engagement with experts in other fields, the need to ask questions and understand different areas of life/work, the need to interrogate one’s own arguments and consider the other side’s, the need to consider wider issues than how to win a case, including the overall objective of the client, tactics, strategy and risk. All of these, as well obviously as an understanding of how legislation and institutions work seems to me hugely useful for effective legislators. Keir Starmer has also of course, run a large institution and has widely developed legal skills because he has worked in criminal, civil and constitutional law and internationally as well. The challenge of politics for a lawyer is probably its slowness and the sense of not achieving anything. We tend to get stuck into detail with the aim of getting the ‘right’ answer, which does not exist in politics. And then there are internal party politics, which I think must be very difficult to handle. I have always considered going into politics and, indeed, stood in the European Parliament elections, albeit so low down the list that there was no chance of me getting a seat. I’m not sure I am tribal enough to do it though, although as the tribes have become clearer and clearer, it has become easier and easier to identify with one side.


Anon: With your experience in data protection, what are your thoughts on the government tracking app currently undergoing tests?

There needs to be not just absolute anonymity but also a guarantee of the data being deleted after a short period of time. I am not confident that this will happen. Unless it does, I cannot see how the app will comply with data protection laws. I acted for Privacy International in the case that David Davis and Tom Watson brought against the Home Secretary (then Theresa May) regarding the Data Retention Regulations. The Court of Justice held that the retention of data was unlawful because of the effect that that had on how we approach our lives. Private life is so fundamental to who we are – and how our society functions, as George Orwell’s 1984 shows us.

Many thanks to Jessica for taking part. Our guest for June’s Bremainers Ask feature is Spanish NHS nurse and campaigner, Joan Pons Laplana.

Europe Day 9th May- Bremainers Celebrate with Memories

Europe Day 9th May- Bremainers Celebrate with Memories

Europe Day is held on 9 May every year in celebration of peace and unity in Europe. The date marks the anniversary of the historic Schuman declaration‘. At a speech in Paris in 1950, Robert Schuman, the French foreign minister, set out his idea for a new form of political cooperation in Europe, which would make war between Europe’s nations unthinkable. Schuman’s proposal is considered to be the beginning of what is now the European Union.

Tragically, the UK was no longer a member state of the European Union for the seventieth anniversary of Schuman’s speech. This Europe Day was, therefore, all the more poignant. The loss was felt by Brits in the EU, EU citizens in the UK and Remainers everywhere. It saddens us that the freedoms we took advantage of, to live, love, work, study & retire in the EU, will be denied to future generations. A message of solidarity and friendship from the ambassadors of all the EU nations to the British people underlined how much we are losing, but also how much there still is to fight for.

On Saturday May 9 this year, inspired by Steve Bray’s #2020MarchForEU virtual March on Parliament, Bremain members celebrated Europe Day. In a break from our usual business, Facebook Group members shared their photographs & memories of the last 4 years of marching, campaigning & waving the EU flag. We marched in rain and sunshine, we held rallies, signed petitions, we wrote letters and e-mails, and we never gave up. And we forged friendships that will continue to unite us across Europe, whatever the next few years bring.


Please view our gallery images. Click to enlarge and simply scroll through.

“Growing blue hair and blowing a whistle!”


“Bremain in Spain – keeping me sane!”

“Would not have missed it for the world”


“As always, great to meet so many lovely kindred spirits and to feel the solidarity!”

“Some amazing memories and lovely friendships”


“Happy Europe Day one and all. Too many photos to choose from!”

What will Brits in Spain need to get ‘settled status’?

What will Brits in Spain need to get ‘settled status’?

Sue Wilson of Bremain in Spain provides some reassurance for British people resident in Spain.
With the British government pushing its controversial Immigration Bill through parliament last week, the focus was on the rights of EU citizens. In particular, the ruling that requires immigrants to pay into the NHS, regardless of their existing tax contributions, seems especially unfair. The government’s dramatic U-turn to remove the fee for healthcare workers was welcome, but the issue of double taxation for other EU citizens remains.

On this side of the Channel, Brits in Europe are mourning the loss of their freedom of movement rights, which enabled us to make new lives for ourselves in EU countries. Those opportunities, that we took full advantage of, are sadly being taken away from future generations. Those of us already residing here must focus on protecting the lives we’ve built.

Regarding our status in Europe, Michael Gove recently wrote to Michel Barnier. In his letter, Gove criticised the EU for being too slow to implement systems to secure future residency rights for British citizens. Gove cited the UK’s ‘settled status’ scheme for EU citizens in the UK and expressed concerns that the EU would not meet its Withdrawal Agreement obligations in a timely fashion.

For those of us living in Spain, what will be required by the Spanish authorities in order for our status to be ‘settled’?

UK Ambassador Hugh Elliott and Sue Wilson

Here’s what we know so far. Spain’s existing identity card for foreigners, known as the ‘tarjeta de identidad de extranjero’ (TIE) will replace the current documentation for British residents.  

The TIE proves legal status and is issued to foreigners authorised to stay in Spain for longer than six months. Those Brits registering for the first time will be issued with a TIE; those holding existing residency documents will be able to swap these for the TIE.

To read the article in full head over to The Local. 

Coronavirus is the perfect scapegoat, even for Brexit

Coronavirus is the perfect scapegoat, even for Brexit

Sue Wilson analyses the latest round of post-Brexit trade negotiations and the obvious need for an extension to the transition period.

A further round of trade negotiations between the UK and EU ended on Friday, without any noticeable progress.

The talks were described as “tetchy” and “disruptive” and Michel Barnier, the European Commission’s chief negotiator, said the UK was still wanting the “best of both worlds”.

Midweek, an unnamed EU source again raised the possibility of an extension to the transition period.

The source claimed that the UK could still secure an extension, even if it didn’t ask for one. All that’s required is for both sides to agree to extend, rather than requiring a formal request from the UK. Unsurprisingly, the UK government is sticking to its position that the transition will end on 31 December, with or without a trade deal.

Although the talks have largely been over key issues, such as fishing policy or maintaining a level playing field on standards, the rights of citizens were also discussed.

Against the background of legal action by the EU against the UK government over EU citizens’ rights, the minister for the cabinet office, Michael Gove, hit back on Thursday. In a letter to European Commission vice president, Maros Sefcovic, Gove said there was a “serious risk” that the EU would be in breach of its obligations under the terms of the Withdrawal Agreement (WA).

You can read the article in full at The Local.

UK needed an exit strategy, they got another slogan!

UK needed an exit strategy, they got another slogan!

Sue Wilson compares the mixed messages from Downing Street with the clear road map issued by the Spanish government.

This week, Spain takes another tentative step towards lifting its lockdown restrictions. Many regions are entering the new “Phase 1”, with further freedoms granted to the 51 percent of residents affected.

The relaxing of lockdown here echoes the efforts of other countries across Europe. Governments are considering what steps to take, and when. 

They are coming under increased pressure from opposition parties, business, media and public to juggle the demands of economic wealth versus public health. In some cases, not least in Britain, protecting livelihoods seems more of a priority than protecting lives.

Much as we might want a return to “business as usual”, it’s hard to see how that could happen anytime soon. We must adjust to new ways of doing everything, while remaining conscious of the health threat. As Boris Johnson might say, we must “stay alert” to the dangers.

While the message from the Spanish government about the lifting of restrictions was clear, the message from the UK government was not. For several days before Johnson’s Sunday evening announcement, the British media was full of the ‘news’ that lockdown measures were about to ease.

Mixed messaging from the British government during the coronavirus crisis is nothing new. Last weekend was no different and required minister after minister to downplay media speculation.  It seems talk of additional freedoms had been somewhat exaggerated.

Word had spread that the government was dropping its “stay at home” message, to be replaced with the new slogan, “stay alert” – whatever that’s supposed to mean. A damage limitation exercise was then required to persuade the British public to stay home during the bank holiday weekend.

You can read the article in full in The Local. 

Mixed emotions on stepping out …..

Mixed emotions on stepping out …..

As I stepped outside my front door on Saturday, after weeks of lockdown, it was with mixed emotions. Like millions of people across Spain, I was eagerly anticipating my first walk, having been no further than the rubbish bins for seven weeks. Sharing the experience with my husband was a bonus.

On a beautiful spring morning, in our beautiful village, the feeling of freedom was one I had expected. The feeling of nervousness was one I had not.

Lockdown has caused many of us to consider what we’ve most been looking forward to once restrictions are lifted. The simple pleasures in life – such as taking a stroll with my other half – rank high on my list. It never occurred to me that going for a walk might make me concerned for our safety.


The ways in which we’ve come to terms with lockdown – both the implementation and de-escalation – vary a lot according to our age, personal circumstance and even personality.

Those living in flats will have experienced a very different lockdown to those with gardens. The experience of city dwellers will not reflect that of those living in the countryside. Families will have reacted differently to those isolated and alone.

You can read the article in full at The Local.