Category: constitutional law

Sean Molloy: Covid-19, Emergency Legislation and Sunset Clauses – UK Constitutional Law Association

Posted April 9th, 2020 in constitutional law, coronavirus, emergency powers, limitations, news, statutory interpretation by sally

‘On 25 March, the UK passed the Coronavirus Act 2020 as part of its attempt to manage the coronavirus outbreak. The Act introduces a wave of temporary measures designed to either amend existing legislative provisions or introduce new statutory powers in order to mitigate the effects of the COVID-19 (See Nicholas Clapham’s Conversation post here on the content of Bill). As countries around the world enact similar laws, there are notable concerns regarding not only the impact of emergency provisions on human rights, but also the potential of emergency powers to become normalised. One response is to utilise sunset clauses. This piece argues that while sunset clauses are both welcome and necessary, they should nevertheless be approached with a degree of caution.’

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UK Constitutional Law Association, 8th April 2020

Source: ukconstitutionallaw.org

Gethin Thomas: Back to the Wellbeing of Future Generations Bill – UK Constitutional Law Association

Posted April 8th, 2020 in bills, climate change, constitutional law, consultations, coronavirus, duty of care, environmental protection, health, news, Wales by sally

‘On 24 March 2020, the Wellbeing of Future Generations Bill 2020 was introduced into the House of Commons, for its first reading, by Caroline Lucas MP. The Bill had been introduced into the House of Lords on 21 October 2019, by Baroness Jenny Jones, on behalf of Lord John Bird (who is best known as the founder of Big Issue). Whilst the Bill is not supported by the Government, it has garnered cross party support, and the Bill’s co-sponsors are drawn from all of the major UK political parties.’

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UK Constitutional Law Association, 7th April 2020

Source: ukconstitutionallaw.org

Why did government not use the Civil Contingencies Act? – Law Society’s Gazette

Posted April 6th, 2020 in constitutional law, coronavirus, emergency powers, news, parliament, proportionality by sally

‘The Civil Contingencies Act 2004 (‘CCA’) represents a legal landmark. It updated and consolidated laws which enabled public authorities to prepare for, and respond effectively to, emergencies, replacing the Emergency Powers Act 1920 with a more comprehensive and consensual design. While it was motivated by domestic and global crises, it was not enacted in haste but benefited from a prolonged consultation period led by a special parliamentary joint committee. The final draft systematically furnished the executive with all conceivable powers, yet contained vital legal and parliamentary oversight to avert disproportionate action. The CCA addressed the widest range of possible eventualities: terrorist attacks, protests, environmental events – and human and animal disease pandemics. In other words, there already existed legislation designed to tackle the circumstances of coronavirus which indubitably qualifies as an emergency. Yet, rather than utilise this framework, the government has resorted to fresh legislation in the Coronavirus Act 2020. Why?’

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Law Society's Gazette, 2nd April 2020

Source: www.lawgazette.co.uk

Lewis Graham: Life Sentences under the Convention: Law or Politics? – UK Constitutional Law Association

Posted April 6th, 2020 in constitutional law, drug offences, drug trafficking, extradition, government departments, human rights, news by sally

‘Sometimes cases stand for far more than their strict ratio decidendi. The High Court’s recent ruling in Hafeez v Secretary of State for the Home Department is a prime example of such a case. The facts are simple. The US sought from the UK the extradition of Mr Hafeez, the alleged leader of an international crime syndicate and so-called “Sultan of drugs”. Unsurprisingly, Mr Hafeez resisted that motion, claiming that were he to be extradited, he would in all likelihood be sentenced to life without parole in the US, which would breach his rights under the ECHR. The UK, he argued, would be complicit in breaching his rights were it to proceed with the extradition. The High Court was to determine whether this was in fact the case.’

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UK Constitutional Law Association, 3rd April 2020

Source: ukconstitutionallaw.org

Jeff King: The Lockdown is Lawful: Part II – UK Constitutional Law Associaiton

Posted April 2nd, 2020 in constitutional law, coronavirus, emergency powers, freedom of movement, health, human rights, news, proportionality, statutory interpretation by sally

‘In the post published yesterday, I explained that under Part 2A of the Public Health (Control of Diseases) Act 1984, UK and Welsh ministers can make regulations to protect public health that can impose ‘special restrictions’ on persons, things and premises. They can impose such restrictions in the same way that Justices of the Peace may do against individuals and groups. However, there are four exceptions to that general rule (section 45D(3)). The general regulation-making powers cannot be used to force a person to (a) submit to medical examination; be (b) removed to or (c) detained in a hospital or similar establishment, or, and mostly notably, (d) ‘be kept in isolation or quarantine.’ The rationale for the exclusions seems to be that these highly invasive things must be done on a case-by-case (i.e. person or group) instead of community-wide basis.’

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UK Constitutional Law Association, 2nd April 2020

Source: ukconstitutionallaw.org

Jeff King: The Lockdown is Lawful – UK Constitutional Law Association

Posted April 1st, 2020 in constitutional law, coronavirus, emergency powers, freedom of movement, news, statutory interpretation by sally

‘The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8) both provide in identical wording that ‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’ Both also enumerate thirteen exceptions (‘reasonable excuses’) to the rule. These are the restrictions widely referred to as the ‘lockdown.’ There is a question at the moment about whether they are so invasive as to be unlawful. This two-part post briefly reviews the legal basis for the confinement. I argue that the lockdown is lawful.’

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UK Constitutional Law Association, 1st April 2020

Source: ukconstitutionallaw.org

Theodore Konstadinides and Lee Marsons: Covid-19 and its impact on the constitutional relationship between Government and Parliament. – UK Constitutional Law Association

Posted March 30th, 2020 in bills, constitutional law, coronavirus, emergency powers, government departments, news, parliament by sally

‘The Coronavirus Act 2020, the UK’s most substantial legislative response to the Covid-19 pandemic, received Royal Assent yesterday after a fast-tracked procedure through both Houses. Indisputably, the pandemic falls within the range of situations under which it is constitutionally acceptable for Bills to be fast-tracked. While there is no corollary between an expedited piece of legislation and a bad piece of legislation, fast-tracking the Coronavirus Bill carries important implications for the constitutional relationship between Government and Parliament. Not least, parliamentarians had limited time to scrutinise legislation containing measures that have been described by the Bingham Centre for the Rule of Law as ‘the most sweeping powers ever taken by the UK Government outside of wartime’. But, in this context, the implications for the balance between Government and Parliament extend beyond the immediate passage of the Act. Therefore, while Tierney and King stressed the dilemma between safeguarding public health and the protection of individual liberties vis-a-vis fast-tracked legislation, the purpose of this post is to outline a number of concerns provoked by this pandemic on the Government-Parliament relationship more broadly, while also making some comments on the Act itself.’

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UK Constitutional Law Association, 26th March 2020

Source: ukconstitutionallaw.org

Treaty scrutiny -A brave new frontier for Parliament – UK Constitutional Law Association

Posted March 18th, 2020 in brexit, constitutional law, news, parliament, royal prerogative, treaties by sally

‘On Tuesday 17 March, the House of Lords endorsed a report by the Procedure Committee which has the effect of establishing a new Committee tasked with scrutinising international agreements, or treaties, that are negotiated and signed by the UK in 2020.’

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UK Constitutional Law Association, 18th March 2020

Source: ukconstitutionallaw.org

Against Consistency as a Ground of Review – UK Constitutional Law Association

Posted March 9th, 2020 in constitutional law, equality, judicial review, news by tracey

‘Equal treatment, the principle that like cases should be treated alike, occupies a paradoxically ambivalent place within moral and legal discussion of equality. In one sense, it is an essential feature of justice that similarly situated persons be afforded similar treatment and that differences in treatment be adequately justified. This principle is informed by and presupposes the moral equality of persons, without which the demand for justification of departures from consistent treatment would be unintelligible. However, in another sense, equalisation of treatment, purely for the sake of equalisation, gives rise to the now well established “levelling-down” objection: a requirement of equalisation can be satisfied either by treating people equally badly or by replicating wrongful forms of treatment, even when we are aware that the treatment in question is wrongful. The levelling-down objection indicates that equalisation for its own sake is unlikely to be intrinsically valuable, even if there may be some instrumental reasons to do so.’

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UK Constitutional Law Association, 9th March 2020

Source: ukconstitutionallaw.org

Hanna Wilberg: A Duty of Consistency? The Missing Distinction Between Its Two Forms – UK Constitutional Law Association

Posted February 28th, 2020 in appeals, constitutional law, news, Supreme Court by tracey

‘In R (Gallaher Group Ltd) v Competition and Markets Authority the Supreme Court ruled that UK domestic law “does not recognise equal treatment as a distinct principle of administrative law. Consistency … is a “generally desirable” objective, but not an absolute rule.” (para 24). It took the view that issues of consistency generally arise as aspects of the irrationality ground (paras 26, 50). This ruling has been seen as putting in doubt the previously established duty to decide consistently with relevant policy guidelines. In this post, I will show that the scope of the ruling does not extend this far.’

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UK Constitutional Law Association, 27th February 2020

Source: ukconstitutionallaw.org

Brian Christopher Jones: The Widely Ignored and Underdeveloped Problem with Judicial Power – UK Constitutional Law Association

Posted February 26th, 2020 in constitutional law, judges, judiciary, news, professional conduct by sally

‘As judicial power around the world increased immensely throughout the 20th and early 21st century—to the point where judges can invalidate legitimately passed constitutional amendments, strike down signature pieces of legislation, vote to dissolve successful political parties, and exercise a host of other significant powers—the idea of holding judges to account has become more relevant than ever. And while the general rule regarding holding public power is that the more you have of it, the more you should be held to account for it, worldwide we’ve seen that this mantra doesn’t apply to the judiciary in a straightforward manner, given its possible impact on judicial independence. However, the way this balance of power developed is also deeply ironic. For a branch that makes such a large claim of holding the powerful to account, judiciaries remain firmly (and hypocritically) against holding themselves to account.’

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UK Constitutional Law Association, 25th February 2020

Source: ukconstitutionallaw.org

The final constitutional steps to withdrawal – Brexit Law

Posted February 6th, 2020 in brexit, constitutional law, news, treaties by sally

‘At 11 pm GMT on 31 January 2020, the UK left the EU. But what final steps had to be taken for this to happen lawfully?’

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Brexit Law, 6th February 2020

Source: brexit.law

Craig Prescott: Harry and Meghan, Regency, Counsellors of State and a “Slimmed Down” Royal Family – UK Constitutional Law Association

Posted January 21st, 2020 in constitutional law, Crown, news, Privy Council, royal family by sally

‘On 19th January, after discussions within the Royal Family, it was announced that the Duke and Duchess of Sussex will step back from royal duties, no longer receive public funds, or ‘formally represent the Queen’. Neither will they use their HRH titles, and more generally they will not be classed as ‘working members of the Royal Family’. Instead, the Sussexes will pursue a new life in Canada, outside the structure of the Royal Family, although they have committed to continue to ‘uphold the values of Her Majesty’.’

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UK Constitutional Law Association, 21st January 2020

Source: ukconstitutionallaw.org

Jack Simson Caird: The European Union (Withdrawal Agreement) Bill and the Rule of Law – UK Constitutional Law Association

Posted January 20th, 2020 in bills, brexit, constitutional law, courts, EC law, news, parliament, rule of law by sally

‘The general election on 12 December 2019 has fundamentally changed the political dynamic driving the Brexit process. The European Union (Withdrawal Agreement) Bill (WAB), which will become law before 31 January 2020, has been substantially revised (from the version which was presented in October 2019) to reflect this Government’s approach to Brexit. The Bingham Centre for the Rule of Law has published a report that looks in depth at some of the main Rule of Law issues in the WAB. This version of the WAB indicates that this Government will take a different approach from the previous one in terms of dealing with some of the key constitutional issues arising from Brexit. This post examines some of the Rule of Law implications of the main constitutional issues in the WAB.’

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UK Constitutional Law Association, 16th January 2020

Source: ukconstitutionallaw.org

10 cases that defined 2019 – UK Human Rights Blog

Posted December 20th, 2019 in appeals, asylum, benefits, birth certificates, brexit, Chagos Islands, citizenship, colonies, constitutional law, data protection, detention, EC law, equality, facial mapping, families, gender, housing, human rights, immigration, international law, investigatory powers, jurisdiction, news, parental rights, parliament, police, prerogative powers, privacy, prorogation, rent, Supreme Court, terrorism, transgender persons by tracey

‘And so, we reach the end of another year. And what a year it has been. As well perhaps the most tumultuous period in British politics for decades, this year saw the first ever image taken of a black hole, a victory for the England men’s cricket team at the World Cup, the discovery of a new species of prehistoric small-bodied human in the Philippines and signs that humpback whale numbers in the South Atlantic have bounced back thanks to intensive conservation efforts. And the law? Well, rather a lot has happened really. As the festive season draws near, what better way is there to celebrate than to rewind the clock and relive the 10 cases which have defined 2019?’

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UK Human Rights Blog, 19th December 2019

Source: ukhumanrightsblog.com

Lady Hale warns UK not to select judges on basis of political views – The Guardian

Posted December 19th, 2019 in brexit, constitutional law, judges, judicial appointments commission, judiciary, news, political opinion discrimination, political parties, Supreme Court by sally

‘The government should not select judges on the basis of their political views as they do in the US, the outgoing president of the supreme court, Lady Hale, has warned.’

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The Guardian, 18th December 2019

Source: www.theguardian.com

Adam Perry: Enforcing Principles, Enforcing Conventions – UK Constitutional Law Association

Posted December 5th, 2019 in appeals, constitutional law, judicial review, news, parliament, prerogative powers, prorogation, Supreme Court by sally

‘Did the UK Supreme Court enforce a constitutional convention in Miller (No 2)? Most writers say no. I say yes.’

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UK Constitutional Law Association, 3rd December 2019

Source: ukconstitutionallaw.org

Landmarks in law: the Brexit court ruling that thwarted Boris Johnson – The Guardian

Posted November 29th, 2019 in appeals, brexit, constitutional law, elections, judicial review, news, parliament, prerogative powers, prorogation, royal prerogative, Supreme Court by tracey

‘By declaring the prorogation of parliament to be unlawful, the Supreme Court made a decision with huge legal consequences.’

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The Guardian, 29th November 2019

Source: www.theguardian.com

Miller 2, the Supreme Court and the politics of constitutional interpretation – Counsel

Posted November 20th, 2019 in brexit, constitutional law, news, parliament, prorogation, Supreme Court by sally

‘In the aftermath of the Miller 2/Cherry judgment, delivered on 24 September 2019, the Supreme Court has come under attack for making a ‘political’ intervention. This had led to some calls for political supervision of judicial appointments on the basis that the Supreme Court is now a ‘political player’. In reality these arguments do not seem to have gained much traction but these criticisms, nevertheless, raise some important questions about the boundaries between law and politics in the UK.’

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Counsel, November 2019

Source: www.counselmagazine.co.uk

Ten years on: how has the Supreme Court fared? – Counsel

Posted November 7th, 2019 in appeals, brexit, constitutional law, judicial review, jurisdiction, news, parliament, prorogation, statutory interpretation, Supreme Court by sally

‘An assessment of the court’s performance in decision-making delivered over its first ten years; and what bearing, if any, the Article 50 and Prorogation cases have on the big picture.’

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Counsel, November 2019

Source: www.counselmagazine.co.uk