constitutional law – Page 3 – Current Awareness

Sammy Talalay: The Lord Chancellor, the independence of the judiciary and the rule of law – UK Constitutional Law Association

Posted December 19th, 2023 in constitutional law, constitutional reform, judiciary, lord chancellor, news, parliament, rule of law by tracey

‘At the beginning of the year, this blog covered the report from the House of Lords Constitution Committee into the Lord Chancellor and the Law Officers, with Conor Casey’s post focusing in particular on the latter. This post aims to ensure that 2023 is bookended by consideration of the issues addressed in the committee’s report – and in the subsequent Lords debate on that report in July – by providing a closer look at the role of the Lord Chancellor.’

UK Constitutional Law Association, 19th December 2023

Source: ukconstitutionallaw.org

Lewis Graham: On Ouster Clauses (Again) – UK Constitutional Law Association

Posted November 27th, 2023 in constitutional law, Crown Court, indictments, judicial review, news, sentencing by tracey

‘When we think of the most important ouster clauses in the law of judicial review, we might think of the relevant parts of the Foreign Compensation Order considered in Anisminic, or section 67(8) the Regulation of Investigatory Powers Act, crucial to the decision in Privacy International. We might consider section 2 of the Judicial Review and Courts Act, restricting Cart-type reviews. Or we might look to provisions in the recently-passed Illegal Immigration Act and forthcoming Victims and Prisoners Bill, which purport to shield the respective legislation from certain kinds of review under the Human Rights Act.’

UK Constitutional Law Association, 23rd November 2023

Source: ukconstitutionallaw.org

Robert Blackburn: The Formal Powers of the Royal Head of State: Terminology, Concepts, and Practice – UK Constitutional Law Association

Posted November 23rd, 2023 in constitutional law, Crown, news, royal family, royal prerogative by sally

‘This post argues that the terminology of “reserve powers” and “personal prerogatives” are inaccurate and misleading descriptions of the royal powers of prime ministerial appointment, the dissolution of Parliament, and royal assent. They should be described in our constitutional writing as the “formal” or “ceremonial” powers of the royal Head of State. They are distinguishable as being “direct” prerogatives of the Monarch, separate from other Crown prerogatives that are exercised “indirectly”, in the name of the Crown, by ministers.’

UK Constitutional Law Association, 23rd November 2023

Source: ukconstitutionallaw.org

Theodore Konstadinides: Reassessing the UK’s Rwanda Asylum Policy: Tinkering with International Law and the Constitution – UK Constitutional Law Association

Posted November 22nd, 2023 in appeals, asylum, constitutional law, deportation, government departments, human rights, immigration, international law, news, Rwanda, Supreme Court by sally

‘On 15 November, the Supreme Court issued its much-awaited judgment in the case of AAA and others v the Home Secretary, commonly referred to as the Rwanda asylum policy case. The decision came notably quickly, almost a month after the case was heard, indicating the Court’s responsiveness to the urgency and the wider public interest surrounding the case. Despite the swift turnaround, the judgment was meticulously formulated, reflecting the serious implications of the case.’

UK Constitutional Law Association, 21st November 2023

Source: ukconstitutionallaw.org

Adam Tucker: The Rwanda Policy, Legal Fiction(s), and Parliament’s Legislative Authority – UK Constitutional Law Association

Posted November 22nd, 2023 in appeals, asylum, constitutional law, deportation, government departments, human rights, immigration, news, Rwanda, Supreme Court by sally

‘Last week the Supreme Court (in R (AAA) v Home Secretary) found the UK government’s policy to send asylum applicants to Rwanda unlawful on the grounds that “removal … to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement” [149]. In response, the Prime Minister announced that the government intends to “take the extraordinary step of introducing emergency legislation” which “will enable Parliament to confirm that… Rwanda is safe”.’

UK Constitutional Law Association, 22nd November 2023

Source: ukconstitutionallaw.org

Philip Murray: Ouster Clause Redux: The Court of Appeal’s Decision in LA (Albania) – UK Constitutional Law Association

Posted November 21st, 2023 in constitutional law, judicial review, legislative drafting, news, parliament by sally

‘In the summer I wrote on this blog about the Administrative Court’s decision in R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin). Oceana was the first time the new ‘super ouster clause’ contained in section 11A of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’), introduced by section 2 of the Judicial Review and Courts Act 2022, fell for judicial consideration, and it was informative to observe how judges responded to the clause in judicial review. But while Oceana raised an important point of constitutional law, namely, Parliament’s ability to exclude judicial review with sufficiently express statutory language, the underlying case in Oceana was a weak one. It was little surprise, therefore, that Oceana did not fall for reconsideration on appeal. However, Saini J’s judgment in Oceana that Parliament is institutionally competent to exclude judicial review in certain circumstances has now come under further judicial scrutiny by the Court of Appeal in R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337. And so it is time for another blog post, addressing again the important question on the effectiveness of ouster clauses and the potential limits of Parliament’s legislative sovereignty.’

UK Constitutional Law Association, 21st November 2023

Source: ukconstitutionallaw.org

Leonid Sirota: (How) Can Big Government Be Kept Accountable? – UK Constitutional Law Association

Posted November 17th, 2023 in constitutional law, government departments, news, parliament by tracey

‘This project started from an experience that will be familiar to just about any law lecturer: persuading first-year students, bewildered in their first week at university, that your subject means something to them ― even if they don’t know that yet. In my case, one argument I came up with to sell my students on constitutional law was that government is a very big deal. I return to the question of just how big a deal it is presently. For now, suffice it to say that, although some public law rules (think of the Carltona doctrine, for instance) take this into account, on the whole, the size and also the shape of government go relatively unremarked upon in public law theory.

In this post I argue, however, that they matter for thinking about government accountability. They matter beyond this too, but accountability is my topic here. It is more difficult to keep a big government accountable than a small one. In particular, it is difficult and perhaps impossible to do so through political means. Political constitutionalists who want government accountability, primarily political control of government, and big government cannot have it all.’

UK Constitutional Law Association, 16th November 2023

Source: ukconstitutionallaw.org

The Crown and the constitution – House of Commons Library

Posted November 16th, 2023 in constitutional law, news, parliament, royal family by sally

‘A briefing paper on the constitutional aspects of the Crown.’

House of Commons Library, 13th November 2023

Source: commonslibrary.parliament.uk

George Peretz KC: Clause 19 of the Digital Markets, Competition and Consumers Bill: Power without accountability – UK Constitutional Law Association

Posted November 15th, 2023 in bills, competition, constitutional law, internet, news, ombudsmen by sally

‘Clause 19 of the Digital Markets, Competition and Consumers Bill (“the DMCC Bill”) gives the Competition and Markets Authority (“CMA”) wide powers to impose conduct requirements on undertakings that the CMA has designated as having strategic market status (“SMS”) in respect of a digital activity (essentially, “big tech”). The condition for the exercise of the power is that the CMA considers it “appropriate” to do so having regard to broadly drawn statutory objectives – the “fair dealing” objective, the “open choices” objective (essentially, enabling consumers to choose freely and easily between providers) and the “trust and transparency” objective (essentially, having the information to make properly informed decisions). The types of conduct requirement that may be imposed are set out in clause 20: essentially, there is no statutory limit to the types of requirement that may be imposed save that (whatever they are) they must be for the purpose of securing various objectives or of preventing various widely defined types of conduct (for example “using data unfairly”). Breach of a conduct requirement may result, if the CMA so decides, in an enforcement order that requires action to remedy the breach or payment of damages.’

UK Constitutional Law Assoication, 15th November 2023

Source: ukconstitutionallaw.org

Kate Ollerenshaw: Impact Assessment as an Accountability Mechanism: Past, Present and Future – UK Constitutional Law Association

Posted November 9th, 2023 in brexit, company law, constitutional law, EC law, government departments, news by sally

‘On 19th September, the Government published a revised version of the Better Regulation Framework Manual setting out its new approach to impact assessment for regulatory measures. The system it will replace was aligned with the Government’s formal mechanisms to incentivise a reduction in the burden of regulation on business and civil society, but the repeal of the statutory Business Impact Target (BIT) by s. 18 of the Retained EU Law (Revocation and Reform) Act 2023 and the Government’s commitment to ‘Smarter Regulation to Grow the Economy’ in the post-Brexit world prompted revisions. At first sight the proposals, including the creation of a new ‘options assessment’, seem to address some criticisms of the previous system. As always though, ‘the devil is in the detail’ and ‘the proof of the pudding will be in its eating’. This post looks at the proposed changes in the light of past practice to highlight areas where the effectiveness of impact assessment as an accountability mechanism might remain compromised. For reasons of space, this post focuses on impact assessment as a prospective tool rather than its role in post-implementation review.’

UK Constitutional Law Association, 9th November 2023

Source: ukconstitutionallaw.org

Guy Baldwin: The Case for Moderate Constitutionalism in the UK – UK Constitutional Law Association

Posted November 7th, 2023 in constitutional law, government departments, human rights, judiciary, news by sally

‘Part of the debate around accountability in the UK concerns the judiciary and its relationship with the elected parts of government. A potentially useful concept in assessing this relationship is constitutionalism. This post is a summary of my presentation at the recent UKCLA Conference in Liverpool, in which I engaged with some long-running debates around constitutionalism. I argue here that there is a version of constitutionalism, which I term “moderate constitutionalism”, that is normatively desirable and suited to the UK’s constitutional tradition. After discussing the situation of constitutionalism in the UK and setting out the case for moderate constitutionalism, I identify some possible implications of the analysis for the system of government in the UK. What is presented here is an early sketch, at a high level, of an account that I intend to develop in significantly greater detail in the future.’

UK Constitutional Law Association, 7th November 2023

Source: ukconstitutionallaw.org

Tom Hickman KC: Candour Inside-Out: Disclosure in Judicial Review – UK Constitutional Law Association

Posted October 23rd, 2023 in civil procedure rules, constitutional law, disclosure, documents, duty of candour, judicial review, news by tracey

‘A feature of judicial review procedure is that disclosure of documents is not required. The procedural rules make no provision for disclosure (indeed, they state that parties are not required to provide disclosure). Despite this, disclosure is increasingly provided in judicial review litigation as a matter of course. This is welcome. Appropriately focused disclosure facilitates rather than impedes efficient judicial review proceedings. It ensures judges and claimants are properly sighted on the decision-making process and it avoids the dangers of spin and omission in the summarisation of documents. But the approach taken by public bodies varies markedly, depending on their interpretation of the requirements of the common law “duty of candour”. In the absence of any rules governing the process, defendants sometimes do not disclose important documents while other cases get bogged-down in elaborate search and disclosure exercises.’

UK Constitutional Law Association, 16th October 2023

Source: ukconstitutionallaw.org

Joe Tomlinson, Eleana Kasoulide, Jed Meers & Simon Halliday: Targeted case reviews: a legitimate compliance exercise or a scandal in the making? – UK Constitutional Law Association

Posted October 23rd, 2023 in benefits, constitutional law, government departments, news by tracey

‘Government has a legitimate interest in seeking to prevent and reduce error in the benefits system and in taking action to recover funds lost. And there is widespread pressure for the Department for Work and Pensions to do just that. However, creating systems capable of doing this work is fraught with challenges, including in terms of maintaining fairness and legality. Chief amongst them is the complexity of undertaking error detection work at the scale necessary for effectiveness without harming benefit recipients, who are often vulnerable and for whom benefits are an essential source of financial support. Such challenges are also magnified when, as is typical in modern government, techniques such as outsourcing to private companies and risk assessment are adopted.’

UK Constitutional Law Association, 23rd October 2023

Source: ukconstitutionallaw.org

Thomas Horsley: Managing the External Effects of Devolved Legislation: Virtual Representation, Self-Rule and the UK’s Territorial Constitution – UK Constitutional Law Association

Posted October 5th, 2023 in bills, constitutional law, judicial review, news, Scotland, Supreme Court, transgender persons by sally

‘The Scottish Government is presently seeking judicial review of the UK Government’s decision to block Royal Assent for the Gender Recognition Reform (Scotland) Bill (GRRB) using s.35 of the Scotland Act 1998 (SA). The Court of Session’s decision, which may yet end up before the UK Supreme Court on appeal, is eagerly awaited, not least given the electricity of political debates over gender recognition and its reform in Scotland and elsewhere.’

UK Constitutional Law Association, 5th October 2023

Source: ukconstitutionallaw.org

Philip Murray: Reconsidering Ouster Clauses: The High Court’s Decision in Oceana – UK Constitutional Law Association

Posted July 7th, 2023 in constitutional law, news, parliament, rule of law by tracey

‘To many, ouster clauses represent a conflict between, on the one hand, the will of a sovereign Parliament and, on the other, the rule of law’s demands that public bodies act within the limits of their powers. The common law has traditionally sought to interpret ouster clauses restrictively, employing reasoning articulated classically (but far from the first time) in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and continued more recently in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. That reasoning provides that ouster clauses do not apply where a public body has acted outside its jurisdiction: the “decision”, “determination”, etc (in the language of the clause) is null and void, such that there is nothing in law to which the clause might attach. The courts are thus able to safeguard the supervisory jurisdiction of the High Court while still claiming to pay due respect to Parliament’s decrees.’

UK Constitutional Law Association, 5th July 2023

Source: ukconstitutionallaw.org

Rhiannon Ogden-Jones: Legal Uncertainty and the Levelling-Up and Regeneration Bill 2023 – UK Constitutional Law Association

Posted July 3rd, 2023 in bills, constitutional law, local government, news, planning by tracey

‘The Levelling-Up and Regeneration Bill (“LURB”), currently before the House of Lords, aims to facilitate the government’s levelling-up agenda, which was set out in the ‘Levelling-Up the United Kingdom’ White Paper in 2022. At 222 clauses and 18 schedules, full consideration of the Bill (as amended in Committee, 24th May 2023) would require more than a blog post, but its legislative aims can be somewhat succinctly expressed. The Bill proposes a scheme of local government and planning reforms, each aimed at promoting regional growth and “levelling-up”. Part I sets out the scope of levelling-up, detailing the obligations of the government in determining a levelling-up agenda. Part II then proposes a series of reforms to local democracy, devolving governance powers further to county councils, and giving them greater control to determine regional projects. The theme of project infrastructure continues, with Parts III-V and VIII-IX of the Bill reforming planning law and establishing different support mechanisms for development, including an infrastructure levy and providing for development corporations. Alongside the planning provisions, Parts VI-VII reform Environmental Impact Assessments and Nutrient Pollution Standards, establishing a new framework for these environmental tests.’

UK Constitutional Law Association, 28th June 2023

Source: ukconstitutionallaw.org

Josie Welsh: The Power of a (Lord) Chief Justice – UK Constitutional Law Association

Posted July 3rd, 2023 in constitutional law, diversity, judges, judiciary, news, women by tracey

‘From 1 October 2023, England and Wales will have its first female Lord Chief Justice (“LCJ”), with the recent news that His Majesty The King was “pleased to approve” Dame Sue Carr’s appointment to the office. Her appointment follows the announcement of the retirement of current Lord Chief Justice The Rt Hon. Lord Burnett at the end of September. In light of the news of change to England and Wales’ highest judicial office, questions will inevitably be asked about the role and its power within the judiciary and in the constitution as a whole. With this in mind, I want to make some initial observations about the role of the LCJ, noting that we may not necessarily understand the nature of LCJ power simply by reading relevant statutory provisions, since the power of the LCJ is partly a function of the role and partly of the character, personality and skills of the individual holding it. What this suggests is that the change in office-holder may prove to be more significant than it appears at first.’

UK Constitutional Law Association, 3rd July 2023

Source: ukconstitutionallaw.org

Mark Hill KC & Simon Lee: State, Churches and Chancel Repairs – Twenty Years On – UK Constitutional Law Association

Posted June 26th, 2023 in appeals, Church of England, constitutional law, Law Commission, news, repairs by tracey

‘Twenty years ago today, on 26 June 2003, each of the five Law Lords in Aston Cantlow v Wallbank [2004] 1 AC 546 gave separate, detailed opinions on a matter at the cusp of public law and private law. Was the Parochial Church Council (PCC) of a beautiful parish church in Warwickshire responsible for the cost of necessary repairs to its fabric, or were the owners of a neighbouring farm subject to chancel repair liability? The church of St John the Baptist, Aston Cantlow, some three miles outside Stratford-upon-Avon, dated from Saxon times. In the first Elizabethan era, it is where William Shakespeare’s parents were married. In the second Elizabethan era, it attracted a judicial inquiry into the very nature of the Church of England.’

UK Constitutional Law Association , 26th June 2023

Source: ukconstitutionallaw.org

Mike Gordon: Creating an Integrity and Ethics Commission in the UK: The Case for Reform and Challenges for Implementation – UK Constitutional Law Association

Posted June 22nd, 2023 in civil servants, constitutional law, ministers' powers and duties, news, political parties, standards by tracey

‘In an era of intense and continuing controversy over the rules of political responsibility, the question of how to reform the current framework of constitutional standards applicable to politicians requires serious consideration. In addition to the regularity with which allegations about ministerial irresponsibility are being raised and sometimes (eventually) addressed, there are clearly structural challenges relating to these accountability processes and practices. There are legitimate concerns about the consistency, certainty, efficacy, independence and transparency of decision-making in this context. These concerns apply to the way in which potential violations of ethical standards are investigated, and also to the way in which sanctions are (or are not – or are not for long) imposed on political actors who are found to have broken the rules. The systemic nature of the UK’s failings in this area shows the need to consider potentially radical constitutional reforms.’

UK Constitutional Law Association, 22nd June 2023

Source: ukconstitutionallaw.org

Tim Sayer: The Passive Virtues and the Abuse of Delegated Legislation: Courts, the Political Constitution and the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – UK Constitutional Law Association

Posted June 21st, 2023 in constitutional law, judicial review, news by tracey

‘In 1961 Alexander Bickel argued that the US Supreme Court should adopt what he called the “passive virtues” – minimising engagement with hard constitutional questions so as to keep its powder dry for the most essential issues. One such question that appears headed for the UK courts is the Home Secretary’s decision to use delegated powers in the Police, Crime, Sentencing and Courts Act 2022 (“the 2022 Act”) to introduce the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (“the Regulations”) conferring additional powers on the police to impose restrictions on protests and processions. Notwithstanding existing concerns around the use of delegated legislation to introduce substantive and controversial policy, the unusual and serious constitutional issue here is that the Regulations make changes to the law specifically rejected by Parliament during debates on the 2022 Act.’

UK Constitutional Law Association, 19th June 2023

Source: ukconstitutionallaw.org

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