constitutional law – Current Awareness

Tasneem Ghazi: Political Accountability for the Abuse of Guidance: Comparing English and Irish Guidance during the Coronavirus Lockdown – UK Constitutional Law Association

Posted February 4th, 2025 in constitutional law, coronavirus, government departments, Ireland, news by tracey

‘This blog post compares how the government of Ireland and the UK government exercising its responsibility for England used non-statutory guidance during the pandemic to reinforce two severe intrusions upon peoples’ liberty: the orders requiring people to stay home and to refrain from public gatherings.’

UK Constitutional Law Association, 3rd February 2025

Source: ukconstitutionallaw.org

Katie Lines: Law and Guidance in a Public Health Emergency – UK Constitutional Law Association

Posted January 29th, 2025 in constitutional law, coronavirus, government departments, health, news, rule of law by tracey

‘The use of law and guidance in a public health emergency was one of the issues explored by the Independent Commission on UK Public Health Emergency Powers. The Commission, chaired by the Rt. Hon. Sir Jack Beatson FBA and supported by the Bingham Centre for the Rule of Law, conducted an intensive review of the constitutional and rule of law dimensions of the UK’s Covid-19 response and emergency powers framework. Neither the UK nor Scottish Covid-19 Inquiries are focussing on these aspects of the pandemic response, and so the Commission was launched to fill this gap. Its report was published last spring and makes 44 recommendations for changes in law, policy, practice and procedure.’

UK Constitutional Law Association, 29th January 2025

Source: ukconstitutionallaw.org

Dane Luo: R (Jwanczuk) v Work and Pensions Secretary: Bringing a Comparative Lens to Judicial Precedent on Inter-jurisdictional Laws – UK Constitutional Law Association

Posted January 22nd, 2025 in appeals, bereavement, constitutional law, courts, government departments, jurisdiction, news, Northern Ireland, pensions, Supreme Court by Lily

‘The Supreme Court will hear the appeal in R (Jwanczuk) v Secretary of State for Work and Pensions (UKSC/2023/0152) on 11 and 12 March 2025. One of the issues is the circumstances in which courts in England and Wales may depart from decisions of appellate courts in Northern Ireland and Scotland regarding laws of inter-jurisdictional operation (that is, laws passed by the Westminster Parliament that apply throughout the UK, or where identical or materially similar laws have been enacted in multiple jurisdictions). On one hand, the classical exposition of stare decisis is that it operates vertically, such that decisions by extra-hierarchical courts are never binding. But if stare decisis is concerned with predictability and enabling the public to legitimately rely on past decisions in carrying out their affairs, those aspirations would not be met if the same provisions were given two different meanings depending on whether one is north or south of the Tweed (or if one is to the east or west of the Irish Sea in Great Britain or Northern Ireland).’

UK Constitutional Law Association, 22nd January 2025

Source: ukconstitutionallaw.org

Cassandra Somers-Joce and Joe Tomlinson: When Are Public Bodies Legally Required to Proactively Collect Data? – UK Constitutional Law Association

Posted January 20th, 2025 in asylum, constitutional law, equality, government departments, immigration, news, pregnancy by tracey

‘In a recent Administrative Court decision, the Secretary of State for the Home Department was found to be in breach of the Public Sector Equality Duty (the “PSED”), contained in s.149 of the Equality Act 2010, due to failing to collect and monitor statistical equality data relating to the provision of asylum accommodation to vulnerable individuals. The judgment in R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin) (“DXK”) builds upon a developing line of cases which have found that the duty to have ‘due regard’ under the PSED may require a decision maker to proactively obtain information, rather than simply to consider existing information. It also provides an interesting exploration of the relationship between the circumstances in which the PSED will require the collection of information by a public body decision maker, and the common law duty of inquiry.’

UK Constitutional Law Association, 20th January 2025

Source: ukconstitutionallaw.org

David Erdos: A Clear Oversight? Inquiring into the Information Commissioner’s 2024 Statutory Review of Journalism – UK Constitutional Law Association

Posted December 20th, 2024 in constitutional law, data protection, inquiries, media, news, privacy by sally

‘2024 was billed to be the year of the first ‘robust and comprehensive’ UK statutory review of the extent of journalism’s compliance with data protection law and good practice, a formal appraisal which was (and is) meant to become a clear ‘part of the media landscape’ as reformed by the Data Protection Act (DPA) 2018 in the wake of the general/first part of the Leveson Inquiry. In sum, the Information Commissioner’s Office (ICO) was obliged to assess and report on the extent of journalistic compliance with data protection law and good practice during the first four years of the new regime (as well as over subsequent five year periods). Reflecting the admittedly very challenging nature of this task, the ICO also gained unprecedented and far-reaching powers (Sch. 17) which enabled it to compel the provision of relevant information with only 24 hours’ notice (para. 2) and even to assess activity on site through assessment notices (para. 3). Unfortunately, as this blog will explicate, the ICO did not use any of these powers or undertake a Review which can be seen as either robust or comprehensive, produced an Outcomes Report which failed to come to any definitive view as to the extent of journalistic compliance and also elected not to proactively publicise its Review Report in any way at the time of its release.’

UK Constitutional Law Association, 17th December 2024

Source: ukconstitutionallaw.org

Anurag Deb: The language of laws: Situating legislative drafting in its proper context – UK Constitutional Law Association

Posted December 16th, 2024 in bills, constitutional law, drafting, news by tracey

‘One aspect of the recent debates surrounding the Terminally Ill Adults (End of Life) Bill moved by Kim Leadbeater MP was the criticism expressed of the Bill’s drafting – that is, the actual text of the Bill’s provisions as distinct from their underlying policy objectives or purposes. The concerns with this language were largely put to bed when it emerged that the Bill had been drafted by Dame Elizabeth Gardiner, the former First Parliamentary Counsel (FPC, the head of the Office of the Parliamentary Counsel – the legal drafters who draft Bills moved in the UK Parliament).

In this post, I want to challenge two ideas about how the language of a Bill emerges, not least because legislative drafting is a seldom discussed, and (with respect to those who have engaged with this issue in the context of the Leadbeater Bill) considerably underappreciated, aspect of how primary legislation is made at Westminster and its devolved counterparts.’

UK Constitutional Law Association, 16th December 2024

Source: ukconstitutionallaw.org

Francesca Jackson: Should the Monarch Pay Inheritance Tax? – UK Constitutional Law Association

Posted December 2nd, 2024 in constitutional law, Crown, inheritance tax, news, royal family by tracey

‘The recent protests by farmers over changes to the rules on inheritance tax have raised questions over who, if anyone, should be exempt from paying it – including King Charles, as an episode of Newsnight has recently highlighted.’

UK Constitutional Law Association, 2nd December 2024

Source: ukconstitutionallaw.org

Stevie Martin: Differentiation in dying: Can limiting assisted suicide to the terminally ill be justified? – UK Constitutional Law Association

Posted November 27th, 2024 in assisted suicide, bills, constitutional law, health, human rights, news, suicide by sally

‘With the second reading of Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill fast approaching, debate persists as to whether limiting eligibility to terminally ill adults could be successfully challenged as discriminatory under Article 14 of the European Convention on Human Rights (ECHR) before the domestic courts and/or the European Court of Human Rights (ECtHR). This blog post does not seek to rehash well-trodden ground in this respect (see here, here and here for posts that discuss it in detail). Rather, it seeks only to contribute a comparative lens which indicates a potential basis upon which the UK Government could justify limiting assisted dying to the terminally ill.’

UK Constitutional Law Association, 27th November 204

Source: ukconstitutionallaw.org

Francesca Jackson: What Does the Debate Over Slavery Reparations Tell Us About the Cardinal Convention, Soft Power and the Public Service Monarchy? – UK Constitutional Law Association

Posted November 21st, 2024 in colonies, compensation, constitutional law, Crown, news, prerogative powers by sally

‘There is a good reason why the constitutional convention requiring the monarch to exercise his prerogative powers on the advice of his government is known as the “Cardinal Convention”: it is ‘the most fundamental’ constitutional convention relating to the monarchy – something King Charles is finding out when it comes to slavery reparations.’

UK Constitutional Law Association, 21st November 2024

Source: ukconstitutionallaw.org

Philip Murray: Assisted Suicide and the ECHR: Some Further Thoughts – UK Constitutional Law Association

Posted November 19th, 2024 in assisted suicide, bills, constitutional law, health, human rights, news, suicide by tracey

‘My recent post on Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill, which seeks to legalise assisted suicide for terminally ill adults and so modify the blanket ban provided by s. 2 of the Suicide Act 1961, has attracted some attention. There I raised questions as to the compatibility of the Bill with articles 8 and 14 of the European Convention on Human Rights (“ECHR”), suggesting that extending assisted suicide only to terminally ill adults might be considered unlawfully discriminatory. I argued that there can therefore be no guarantees that the Bill would not have to expand in the future if the UK is to continue to adhere to its obligations under the ECHR. Alex Ruck Keene KC, who represented Noel Conway in his legal challenge to the UK’s blanket ban, has made a similar argument.’

UK Constitutional Law Association, 19th November 2024

Source: ukconstitutionallaw.org

Gabriel Tan: A confused approach to irrationality: Oakley and Sneddon v Secretary of State for Justice – UK Constitutional Law Association

Posted November 4th, 2024 in appeals, constitutional law, Ministry of Justice, news, parole, prisons by tracey

‘On 28 October 2024, the Court of Appeal handed down its eagerly-awaited judgment in Oakley and Sneddon v Secretary of State for Justice, concerning the proper approach to cases where the Secretary of State rejects advice from the Parole Board to transfer prisoners to open prison conditions.’

UK Constitutional Law Association, 4th November 2024

Source: ukconstitutionallaw.org

Assisted Dying: What Role for the Judge? – Transparency Project

Posted October 31st, 2024 in assisted suicide, bills, constitutional law, families, family courts, health, judges, judiciary, news, suicide by sally

‘The Terminally Ill Adults (End of Life) Bill had its first, purely formal, reading in the House of Commons on 16 October 2024, when it was presented by Kim Leadbeater MP. The important second reading is fixed for 29 November 2024.’

Transparency Project, 30th October 2024

Source: transparencyproject.org.uk

Philip Murray: Looking down the slippery slope: Can assisted suicide be restricted to the terminally ill? – UK Constitutional Law Association

Posted October 31st, 2024 in assisted suicide, bills, constitutional law, health, human rights, news, suicide by sally

‘Kim Leadbeater has recently introduced a Private Member’s Bill in the House of Commons which seeks to legalise assisted suicide for the terminally ill. Despite its second reading being scheduled for 29 November, the text of the Bill is, somewhat remarkably given its significance, still to be published. Yet the outline of Leadbeater’s proposals has already become known. As such, I seek to offer here a legal analysis of some of the issues relating to legalising assisted suicide in the UK, and particular the idea that any law can be effectively limited to terminally ill adults.’

UK Constitutional Law Association, 30th October 2024

Source: ukconstitutionallaw.org

Thomas Horsley, Coree Brown Swan, Nicola McEwen and Lisa Claire Whitten: Westminster Rules: The United Kingdom Internal Market Act and Devolution – UK Constitutional Law Association

Posted October 21st, 2024 in brexit, constitutional law, devolution, devolution issues, news by tracey

‘The UK Labour Government is committed to resetting relations with the devolved institutions. Yet, in its manifesto, Labour made no mention of any plans to reform the United Kingdom Internal Market Act 2020 (UKIMA) – regulating intra-UK trade post-Brexit – to deliver that commitment. In government, Labour now appears reluctant to engage directly with the Act, preferring to work around, rather than with it (Horsley, 2024). In a new report on the operational impact of the UKIMA on devolution, we call on the UK Government to change tack and address the Act directly in collaboration with the devolved institutions. We conclude that reform is essential to restore intergovernmental trust – the desired ‘relations reset’ – and rebalance the authority of the UK and devolved institutions with respect to regulating intra-UK trade.’

UK Constitutional Law Association, 17th October 2024

Source: ukconstitutionallaw.org

Andrii Koshman: Judicial Accountability in the Digital Justice System of Tomorrow – UK Constitutional Law Association

Posted October 4th, 2024 in civil justice, constitutional law, dispute resolution, families, family courts, internet, judiciary, news, tribunals by sally

‘In 2018, Sir Ernest Ryder warned that the future shift to online dispute resolution for most, and in some areas all disputes, risks eroding judicial accountability and fostering a democratic deficit. The pandemic, the £1.3 billion court modernisation program and six years later, the future of resolving the majority of disputes online appears to be much closer. The implementation of a truly holistic Digital Justice System – an integrated system of online advice services, online public and private out-of-court dispute resolution services (mediation and arbitration portals, ombuds services) and online courts – can make this future a reality. In fact, it is expressly intended that the majority of civil, family, and tribunal disputes will be settled or resolved online through the Digital Justice System, in accordance with rules specifically developed by the Online Procedure Rule Committee (OPRC) to cover the online pre-action and action space. It is also notable that such a system of various online private and public portals will have a common data architecture based on the open digital standards developed by OPRC. It is not yet known when this system will become operational, but as we approach such a reality, the potential loss of accountability and democratic deficit needs to be addressed as an extremely urgent threat.’

UK Constitutional Law Association, 3rd October 2024

Source: ukconstitutionallaw.org

Stephen Tierney: Towards a Principle of Positive Engagement?: The House of Lords Constitution Committee reports on The Governance of the Union – UK Constitutional Law Association

Posted September 27th, 2024 in bills, brexit, constitutional law, coronavirus, devolution, devolution issues, inquiries, news, Scotland, select committees by sally

‘Over the past decade the House of Lords Constitution Committee has immersed itself in the principles, purposes and operation of devolution. Last week marked 10 years since the referendum on Scottish independence, and in that time the Committee has published multiple reports on the changing face of the territorial constitution, offering encouragement, detailed critique and practical recommendations. A number of these publications are cited in the introduction to its most recent report on The Governance of the Union: Consultation, Co-operation and Legislative Consent, which is published today. This report addresses the new system of intergovernmental relations introduced in 2022, the operation of the Sewel convention, the use of secondary legislation in devolved areas and plans by the new Labour Government for further devolution in England. Most notably, it recommends that a “principle of positive engagement” be added to the existing principles for intergovernmental relations, currently listed in The Review of Intergovernmental Relations policy document of January 2022.’

UK Constitutional Law Association, 27th September 2024

Source: ukconstitutionallaw.org

Thomas Horsley: Relations Reset or Regression? Devolution and the Product Regulation and Metrology Bill – UK Constitutional Law Association

Posted September 17th, 2024 in bills, constitutional law, government departments, markets, news by tracey

‘On 4 September 2024, the UK Government published the Product Regulation and Metrology Bill (the PRMB). Introduced in the Lords, the PRMB is certainly not the most headline-grabbing Bill announced in the King’s Speech. Its substance – product standards and weights and measures – is important, but unlikely to excite the masses. However, as the new UK Government’s first intervention to regulate the UK internal market, the Bill is remarkable for at least two reasons.’

UK Constitutional Law Association, 17th September 2024

Source: ukconstitutionallaw.org

Outside Appointments – London Review of Books

Posted August 21st, 2024 in constitutional law, government departments, news by sally

‘Keir Starmer has made several eye-catching appointments to his new government from outside Parliament, continuing the practice of his predecessor, Rishi Sunak, who appointed David Cameron as foreign secretary last November, making him a peer in order to do so. Many find the practice of making outside appointments constitutionally suspect. However, the constitutional issue that requires rectification isn’t so much the way in which prime ministers appoint ministers but the way in which prime ministers themselves are appointed.’

London Review of Books, 15th August 2024

Source: www.lrb.co.uk

Anurag Deb and Colin Murray: An Unfortunate Legacy: Fixing the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 – UK Constitutional Law Association

Posted July 29th, 2024 in bills, constitutional law, government departments, news, Northern Ireland by sally

‘The Labour Government comes into office seeking to indicate, as a priority, that it is making a break from its predecessors. That much is central to a manifesto simply entitled Change. Prominent within this agenda is an effort to reset relations with the Irish Government and attempt to restore a partnership around Northern Ireland affairs. This relationship, already strained by years of fraught Brexit negotiations, was upended when the Conservative Government pushed through the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Legacy Act’) in an effort to draw a line under legal actions relating to the conflict in Northern Ireland.’

UK Constitutional Law Association, 29th July 2024

Source: ukconstitutionallaw.org

Sanjit Nagi: “A Mandate for Change!”: Popular Sovereignty and the Labour Party – UK Constitutional Law Association

Posted July 23rd, 2024 in constitutional law, elections, government departments, news, parliament by tracey

‘The recent general election saw the Labour Party being elected with a majority of 171 seats in Parliament. The following morning, in his first speech as Prime Minister, Sir Keir Starmer claimed the nation had given the Labour Party a “clear mandate”. Similarly, the new Chancellor of the Exchequer, Rachel Reeves, stated the British people had voted for change and she had “begun the work necessary to deliver on that mandate” by implementing the economic ideas set out in the Labour Party’s manifesto. Lastly, in one of his first acts as Secretary of State for Energy Security and Net Zero, Ed Miliband’s lifting of the onshore wind ban was justified on the grounds of the new Labour government being “elected with a mandate to take immediate action to boost Britain’s energy independence”. Overall, there has been a heavy emphasis on the direct relationship between the electoral mandate given by the British people and the implementation of policies.

Whether intentional or not, this speaks to a socialistic-constitutional tradition that developed within the Labour Party from 1900 to 1951. This tradition saw a reformulation of the Diceyan view of parliamentary sovereignty in the British constitution. More specifically, it departed from a legal notion of sovereignty and understood the authority of the elected majority in Parliament, its legislators, and its political and policy agenda as deriving from the citizenry themselves. As such, reframing sovereignty as popular sovereignty was the basis for implementing an uninhibited, electorally sanctioned, social and economic agenda. The short and simple aim of this post is to provide a legal-historical account of this reimagination of sovereignty by key figures within the Labour Party.’

UK Constitutional Law Association, 22nd July 2024

Source: ukconstitutionallaw.org

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