‘Theresa May’s plan to implement Brexit without the authorisation of a vote in parliament would be “a contemporary necessity” rather than a misuse of outdated ancient royal powers, the attorney general said at the start of the most keenly awaited constitutional law case in recent memory.’
The Guardian, 5th December 2016
Source: www.guardian.co.uk
‘Brexiteers and their media allies have declared war on our judiciary. On behalf of the people, the supreme court must push back.’
The Guardian, 5th December 2016
Source: www.guardian.co.uk
‘Michael Zander QC reviews the written cases of the government & the lead claimants in next week’s Supreme Court hearing.’
New Law Journal, 1st December 2016
Source: www.newlawjournal.co.uk
‘Prerogative is the enemy of the people. This has been settled as matter of law for a very long time. The constitutional settlement of 1688 made a decision for responsible and representative government. We have had no constitutional moment of similar magnitude since. All constitutional changes – some very significant – have taken place within that foundational structure. The Bill of Rights treats prerogative as the antithesis of good government. Its primary target is a range of extra-legal powers hitherto asserted by the King, pride of place being given to the power to dispense with laws and the power to suspend Acts of Parliament.’
UK Constitutional Law Association, 2nd December 2016
Source: www.ukconstitutionallaw.org
‘Miller v Secretary of State for Exiting the European Union has stimulated quite a bit of debate. Some criticism of the decision has been well-informed and thoughtful, whilst some of it has been, to put it charitably, less worthy of engagement. In this post we respond to what we view as the strongest arguments against Miller, taking account of the Government’s written case for appeal. We discussed the reasoning used in the case in an earlier post written with Tom Hickman, and will not repeat that explanation here. This post assumes knowledge of that earlier piece, which was written with the lay reader in mind. The present piece, more legally detailed, is necessitated by the quite subtle replies to the argument in that original post and to the judgment in Miller.’
UK Constitutional Law Association, 22nd November 2016
Source: www.ukconstitutionallaw.org
‘In April 2009 Administrative Courts were established in Birmingham, Cardiff, Leeds and Manchester to deal with judicial review claims and other aspects of the Administrative Court’s jurisdiction. An important aim of this reform was to improve access to justice by ensuring that public law claims are issued and heard at the most appropriate location. In this post I consider some recent data relevant to whether the ‘regional’ Courts are continuing to achieve this aim in 2016.’
UK Constitutional Law Association, 16th November 2016
Source: www.ukconstitutionallaw.org
‘Shortly after the referendum on 23 June, demands were made that continuing EU membership should now be considered by Parliament, with a view it seems to stop BREXIT happening, and to frustrate the will of the 17 million who voted to leave. Indeed, the Guardian carried an article only five days later on ‘How we can stop Brexit – lobby our MPs’ (29 June 2016), no doubt as inflammatory and unacceptable to the BREXITEERS as subsequent developments have been to the REMAINERS. Fearing that Parliament was being enlisted with an agenda to defeat the referendum result, it is not surprising that the BREXITEERS should wish to exclude Parliament from the process altogether.’
UK Constitutional Law Association, 10th November 2016
Source: www.ukconstitutionallaw.org
‘I’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the parties at least were in agreement on the point after all: it is not (they say) reversible: R (Miller) v Secretary of State for Exiting the EU, para 10 (hereinafter “Miller”). However, I believe that there is a far simpler, and so far as I can see compulsory, route from the Supreme Court to Luxembourg in this matter, assuming that the Crown does indeed appeal today’s ruling to that court, and that is that (a) the case turns on the interpretation of the phrase “in accordance with its own constitutional requirements” from Article 50(1) of the Treaty on European Union (“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”), and (b) interpretation of the Treaty, or indeed any EU Law, is the exclusive competence of the Court of Justice of the EU (“CJEU”).’
UK Constitutional Law Association, 8th November 2016
Source: www.ukconstitutionallaw.org
‘In R. (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) judges had to decide, as a matter of law, on the constitutionally correct procedure for deciding whether and when to notify the President of the European Council that the UK intends to leave the EU, pursuant to Article 50 of the Treaty on European Union. This legal question is fraught with difficulty. The situation is unprecedented, so judges have to answer the question from constitutional first principles. Inevitably in such cases there is room for disagreement as to what the first principles are, and (more intractably) what weight each has as against the others in the particular circumstances of the case.’
UK Constitutional Law Association, 8th November 2016
Source: www.ukconstitutionallaw.org
‘The High Court judgment in Miller v Secretary of State for Exiting the European Union last Thursday made it clear that an Act of Parliament is required for a notice under article 50(2) of the Treaty of the European Union. My view is that an appeal is unlikely to be successful, but on any view we must be prepared for that outcome. The Government and Opposition should consider the form of such an Act without delay. So far, there has been little discussion about what form such legislation might take. This post seeks to begin that discussion, suggesting form, content and conditions that neither challenge the result of the 23 June 2016 referendum nor the Government’s stated timelines for giving notice.’
UK Constitutional Law Association, 8th November 2016
Source: www.ukconstitutionallaw.org
‘The House of Lords Constitution Committee today publishes its report on the Wales Bill. The history of the Bill is a somewhat chequered one, a Draft Bill published in October 2015 having been subjected to excoriating criticism by (among others) the Assembly’s Legislative and Constitutional Affairs Committee. The centrepiece of the Bill is intended to be the shift from the ‘conferred powers’ model of devolution that presently operates in Wales to a ‘reserved powers’ model akin to that which is found in Scotland. However, the Constitution Committee concludes that ‘the current implementation of the reserved powers model in the Wales Bill undermines its key advantages: namely providing the devolved legislature with constitutional space to legislate and allowing for a relatively clear and simple division of powers’. In this post, we highlight a number of concerns raised by the Committee in its report, and conclude with some broader reflections on what the Wales Bill tells us about the state of the UK’s territorial constitution and the approach to constitutional design adopted in respect of it.’
UK Constitutional Law Association, 28th October 2016
Source: www.ukconstitutionallaw.org
‘Thursday 13 October 2016 marked the beginning of the hearing over the constitutional question of whether Article 50 may be triggered by the Government without further statutory authorisation. This post provides a report of the day’s proceedings. The two further days are scheduled for Monday and Tuesday next week.’
UK Constitutional Law Association, 14th October 2016
Source: www.ukconstitutionallaw.org
‘The need for Parliament to give its approval before the Brexit process starts is of huge “constitutional importance”, the High Court has heard.’
BBC News, 13th October 2016
Source: www.bbc.co.uk
‘Scores of QCs and lawyers will cram into court four on Thursday, the largest in London’s Royal Courts of Justice, to hear two and a half days of argument that could decide how – or conceivably even whether – the UK leaves the EU.’
The Guardian, 13th October 2016
Source: www.guardian.co.uk
‘On October 2, Theresa May set out plans for a ‘Great Repeal Bill’ to be included in the next Queen’s Speech. There is very little detail currently available, but it appears this Bill is intended to remove the European Communities Act (ECA) 1972 from the statute book following completion of the Brexit negotiations. It would also incorporate current applicable EU law into an Act of Parliament and then allow the government to decide if/when to repeal, amend or retain individual measures in the future, following Brexit.’
UK Constitutional Law Association, 10th October 2016
Source: www.ukconstitutionallaw.org
‘The Government should not trigger Article 50 to leave the EU without first consulting Parliament, an eminent committee of peers has said.’
The Independent, 13th September 2016
Source: www.independent.co.uk
‘In the immediate aftermath of the EU referendum result, political comment from a number of quarters suggested that the Scottish Parliament could vote to block Brexit. For the comprehensive reasons given by Mark Elliott on his blog, that was a triumph of hope over the constitutional competence of the institution. However, that is not to say that the structures of devolution do not have a significant role in the working out of Brexit, and may yet act as a trigger for wider constitutional change. This post will suggest that the place of the devolved institutions has been underplayed in the debate thus far, and seeks to identify some of the issues which will require to be addressed. These include: the operation of the Sewel convention and other steps to take account of the interests of devolved areas, discussions around the place of Scotland in the EU, and some effects on structures in Northern Ireland.’
Constitutional Law Association, 5th September 2016
Source: www.ukconstitutionallaw.org
‘This post sets out some of the legal issues arising after the referendum of 23 June 2016, taking a generous liberty with the interpretation of the lyrics of The Eagles’ song “Hotel California”.’
Littleton Chambers, 12th August 2016
Source: www.littletonchambers.com
‘With the constitution of a new UK Government formed around a policy of ‘Brexit’, and the creation of the new ministerial position of ‘Secretary of State for Exiting the European Union’, the likelihood that Article 50 will actually be triggered has increased significantly. In addition to the cavalcade of recent posts addressing who is constitutionally empowered to make the Article 50 notification, attention has also been given to the question of whether an Article 50 notification made in conformity with the constitutional requirements of the UK could be subsequently revoked. An interesting argument raised by Charles Streeten is that ‘an Article 50 notification can be withdrawn unilaterally at any point prior to the expiry of the two year guillotine imposed by Article 50’. This post responds by challenging this argument on two grounds, arguing that ultimately a Member State cannot unilaterally revoke an Article 50 notification once it is made. It will do so by firstly outlining the argument made by Streeten, before explaining its difficulties and attempting to clarify the legal position. In concluding, it will be argued that the decision to trigger Article 50 is one that should be taken with the greatest care; relying upon technical legal arguments to provide a safety net risks creating further uncertainty and undermining the position of the UK in subsequent negotiations.’
UK Constitutional Law Association, 27th July 2016
Source: www.ukconstitutionallaw.org
‘The only relevant question now left for the UK about the Art 50 notification is what needs to be done before it is given. It is politically inevitable that the referendum result will be accepted and the notification given, perhaps in January next year.’
UK Constitutional Law Association, 18th July 2016
Source: www.ukconstitutionallaw.org
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