constitutional law – Page 4 – Current Awareness

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

Brian Christopher Jones: Leadership exit points in the UK constitution – UK Constitutional Law Association

Posted June 5th, 2023 in constitutional law, government departments, news, parliament by sally

‘The UK constitution contains numerous ways that a serving Prime Minister can be deposed. Although we’ve seen this happen frequently in recent history—and especially over the past year—a wider discussion about these various exit points and their significance for the UK constitution has yet to emerge. But these exit avenues are undoubtedly important. Many world leaders have consolidated power in various ways in recent years, and some have floated refusing to leave office or staunchly resisted doing so. UK constitutional actors can and should be aware of these threats, and take measures to prevent them from happening. This post identifies four mechanisms for how UK leaders may be ousted: two formal options and two less formal options. It then further reflects on these mechanisms in terms of operation and recent events. At a time when many people lament the upholding of norms and values in the UK constitution, analysing these mechanisms could prove useful when assessing the need for and potential prospects of reform.’

UK Constitutional Law Association, 5th June 2023

Source: ukconstitutionallaw.org

Eliza Bechtold: Recent Efforts to Regulate Expression by Conservatives in the UK and the US Highlight a Shift Toward Illiberalism – UK Constitutional Law Association

Posted June 2nd, 2023 in constitutional law, demonstrations, freedom of expression, human rights, news, political parties by sally

‘Conservative politicians in the UK and the US are making headlines for regulatory efforts targeting core free speech principles under the guise of protecting members of the public from harm. Four days prior to the coronation of King Charles III – a coincidence according to the UK government – the controversial Public Order Act 2023 (POA 2023), introduced by former Home Secretary Priti Patel, received royal assent. The application of the new law, in conjunction with the expansive powers granted to police under prior legislation, led to the controversial targeting and arrest of dozens of peaceful anti-monarchy protesters during the coronation proceedings. In the US, Republicans are responsible for a flurry of recent regulations censoring expression concerning sexual orientation, race, and other issues at the forefront of the so-called ‘culture war’ in public school classrooms and libraries across the country. These regulatory efforts highlight the increasingly illiberal posture of conservative parties in these countries, which undermines shared democratic values and reflects a broader shift toward the use of anti-democratic means to achieve political ends.’

UK Constitutional Law Association, 1st June 2023

Source: ukconstitutionallaw.org

Stephen Tierney and Alison L. Young: The House of Lords Constitution Committee Reports on the Illegal Migration Bill – UK Constitutional Law Association

Posted May 24th, 2023 in asylum, bills, constitutional law, deportation, devolution, human rights, immigration, judicial review, news, rule of law by sally

‘The Constitution Committee has released its report on the Illegal Migration Bill 2022-23. The Committee raises a number of concerns, including its potential impact on the rule of law, human rights, devolution, delegated powers, and parliamentary scrutiny. We await the report of the Joint Committee on Human Rights which will most likely comment in more detail on the implications of the Bill for the United Kingdom’s international obligations.’

UK Constitutional Law Association, 23rd May 2023

Source: ukconstitutionallaw.org

Tom Hickman KC and Gabriel Tan: Reversing Parliamentary Defeat by Delegated Legislation: The Case of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – UK Constitutional Law Association

Posted May 22nd, 2023 in bills, climate change, constitutional law, demonstrations, freedom of expression, government departments, news, parliament by tracey

‘In a report published on 11 May, the House of Lords Secondary Legislation Scrutiny Committee (“SLSC”) drew attention to a constitutional issue of considerable interest and novelty. The SLSC drew the attention of the House of Lords to draft regulations that, if they come into effect, will allow police in England and Wales to impose restrictions on protests and processions that cause “more than minor” hindrance to day-to-day activities for other people, including going to and fro on the highway (The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023). The changes would also allow the police to take into account the cumulative effect of repeated protests. The changes amend sections 12 and 14 of the Public Order Act 1986 and effectively alter the meaning of the threshold criterion of causing “serious disruption to the life of the community” in respect of processions and assemblies by defining that term in a way that imposes a lower threshold than its ordinary words suggest.’

UK Constitutional Law Association , 22nd May 2023

Source: ukconstitutionallaw.org

Jeevan Hariharan: The Changing Face of Horizontal Effect – UK Constitutional Law Association

Posted May 19th, 2023 in constitutional law, human rights, judges, news, privacy, speeches by tracey

‘On 10 March, Lord Sales delivered the Cambridge Freshfields Annual Law Lecture on the topic of “constitutional values in the common law of obligations”. The lecture, which has not been discussed so far on this blog, seeks to explain how constitutional values familiar from the world of public law (such as freedom of expression, liberty and access to justice) feature in private law areas such as tort and contract. In the course of the speech, Lord Sales articulates a particular conception of how the European Convention on Human Rights (ECHR) relates to the way UK courts resolve disputes between private parties, an issue commonly referred to following the Human Rights Act 1998 (HRA) as “horizontal effect”. Lord Sales’ picture, which is summarised briefly below, is revealing because it offers an insight into how the Supreme Court, as currently constituted, seems to have shifted its approach in relation to horizontal effect. As I explain, the HRA’s horizontal effect was central in particular to the development of the English law of privacy. More recently, however, there is evidence of the court rejecting arguments based on the ECHR and HRA in the private law context. This can be understood as a continuation of a well-documented and controversial trend discernible in public law decisions, where the court has criticised the tendency to focus on the HRA and increasingly championed common law constitutional rights.’

UK Constitutional Law Association, 17th May 2023

Source: ukconstitutionallaw.org

John Stanton: Law, Localism, and the Constitution: A Comparative Perspective – UK Constitutional Law Association

Posted April 27th, 2023 in constitutional law, local government, news, parliament by sally

‘Local government is an aspect of UK constitutional law that is often neglected or overlooked. Councils, though, are a vital part of our governmental order, providing the services and opportunities, and making the decisions and policies, that shape a large part of our day-to-day lives. They are also the institutions of government with which the population interact most frequently. Local government across the UK, however, is hampered by the constitutional system of which it is part. The predominance of the sovereign Parliament and the lack of any codified constitutional provision means that councils in the UK are at the mercy of the centre and that they do not enjoy any protection from easy change, manipulation or prescription. This has a profound effect on the way in which councils operate, as my new book, “Law, Localism, and the Constitution: A Comparative Perspective”, explores.’

UK Constitutional Law Association, 27th April 2023

Source: ukconstitutionallaw.org

Cassandra Somers-Joce: Government by WhatsApp: Where are we now? – UK Constitutional Law Association

Posted April 24th, 2023 in codes of practice, constitutional law, electronic mail, freedom of information, government departments, news, public records, telecommunications by tracey

‘A new Cabinet Office policy has recently been published which provides guidance on the use of instant messaging technologies, such as WhatsApp, by government officials. The policy discourages the use of non-corporate communications channels (“NCCCs”), particularly when these platforms are accessed on personal devices. The new policy is a welcome development in the regulation of “government by WhatsApp,” and demonstrates better practice with respect to the public law duties which are applicable in this context, namely, the Public Records Act 1958, the Freedom of Information Act 2000 and the common law duty of candour.’

UK Constitutional Law Association, 22nd April 2023

Source: ukconstitutionallaw.org

David Erdos: Leave to Remain? Data Protection’s ‘Immigration Exemption’ Returns to Court – UK Constitutional Law Association

Posted April 17th, 2023 in bills, constitutional law, data protection, immigration, news by tracey

‘With both the Illegal Migration Bill and the Data Protection and Digital Information (No. 2) Bill currently before Parliament, it is clear that both immigration control and data protection are high on the UK political agenda. Both areas have also been prominent before the courts. Moreover, litigation by the Open Rights Group and the The3million challenging the UK data protection’s so-called “immigration exemption” (DPA 2018, Sch. 2, para. 4) has brought these areas together in a materially impactful way.’

UK Constitutional Law Association, 17th April 2023

Source: ukconstitutionallaw.org

Tarun Khaitan: A Fourth Branch of the State? On Constitutional Guarantors in the UK – UK Constitutional Law Association

Posted March 31st, 2023 in constitutional law, constitutional reform, Equality and Human Rights Commission, government departments, news, parliament by sally

‘In its Report setting the agenda for a likely Labour government after the next elections, the Brown Commission has set out an ambitious programme of constitutional reform. In a previous post, I examined its recommendation in relation to a fully elected second chamber to replace the House of Lords. In this post, I will examine its recommendations concerning bodies that comparative constitutional scholarship calls ‘fourth branch’ or guarantor institutions. The Report recommends the setting up of three new independent constitutional guarantors: an Integrity & Ethics Commission to enforce the code of ministerial conduct, an Appointments Commission for merit-only appointments to public bodies, and an Anti-Corruption Commissioner. It also recommends further empowerment of the Equality and Human Rights Commission to provide evidence on the implementation of the new proposed social rights, ‘with a remit, membership and staffing substantially altered to give it capacity to do so.’ It seeks to offer a new constitutional mandate to the UK Infrastructure Bank and rename it as the British Regional Business Investment Bank.’

UK Constitutional Law Association, 30th March 2023

Source: ukconstitutionallaw.org

Isobel Renzulli: Begum v SSHD (2023): A restrictive approach to Article 4 ECHR – UK Constitutional Law Association

Posted March 29th, 2023 in appeals, citizenship, constitutional law, government departments, human rights, immigration, news, terrorism, trafficking in human beings, victims by sally

‘On 22 February 2023, the judgment of the Special Immigration Appeals Commission (‘SIAC’ or ‘the Commission’) was published, upholding the Home Secretary’s decision to deprive Shamima Begum of her British citizenship under section 40(2) of the British Nationality Act 1981 (‘‘the BNA 1981’’) on the ground that it would be conducive to the public good to do so, because her return to the United Kingdom would present a national security risk.’

UK Constitutional Law Association, 29th March 2023

Source: ukconstitutionallaw.org

Jeremy Letwin: The Bill of Rights Bill and the Modern Mirror Principle – UK Constitutional Law Association

Posted March 15th, 2023 in bills, brexit, constitutional law, government departments, human rights, news by sally

‘The Bill of Rights Bill which is currently before Parliament aims, at least in some respects, to weaken the link between domestic courts and the ECtHR. Many predicted the Bill might seek to do this, and it has provoked considerable controversy. Though clauses 3(1) and 3(2) of the Bill are not without their critics, the controversy has mainly focused on clause 3(3)(b), which provides that the domestic courts “may adopt an interpretation of the right that diverges from Strasbourg jurisprudence”, and on clause 3(3)(a), which provides that domestic courts “may not adopt an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it”.’

UK Constitutional Law Association, 14th March 2023

Source: ukconstitutionallaw.org

Kacper Majewski: Re Allister: The End of ‘Constitutional Statutes’? – UK Constitutional Law Association

Posted February 23rd, 2023 in brexit, constitutional law, EC law, judicial review, news, Northern Ireland, prerogative powers, Supreme Court, treaties, ultra vires by sally

‘On 8 February, the Supreme Court handed down its unanimous judgment in Re Allister [2023] UKSC 5. What follows is an attempt to clarify the judgment’s significance for the doctrine of constitutional statutes, as first canvassed by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin).’

UK Constitutional Law Association, 21st February 2023

Source: ukconstitutionallaw.org

New Judgment: James Hugh Allister and others and Clifford Peeples v the Secretary of State for Northern Ireland and others [2023] UKSC 5 – UKSC Blog

Posted February 9th, 2023 in brexit, constitutional law, EC law, judicial review, news, Northern Ireland, prerogative powers, treaties, ultra vires by sally

‘These proceedings challenge the lawfulness of the Northern Ireland Protocol (“the Protocol”), which formed part of the agreement between the United Kingdom (“the UK”) and the European Union (“the EU”) regarding the UK’s exit from the EU. The Protocol was given legal effect by section 7A (“section 7A”) of the European (Withdrawal) Act 2018 (“the 2018 Act”).’

UKSC Blog, 8th February 2023

Source: ukscblog.com

Gordon Guthrie: Brown vs Dewar – The Labour Commission on the UK’s Future – UK Constitutional Law Association

Posted February 8th, 2023 in constitutional law, constitutional reform, devolution, devolution issues, news, political parties, Scotland by sally

‘With the publication of Labour’s Commission on the UK’s Future it is worth contrasting the approach that Gordon Brown and his colleagues have taken with the very successful devolutionary legacy of Donald Dewar.’

UK Constitutional Law Association, 8th February 2023

Source: ukconstitutionallaw.org

Conor Casey: House of Lords Constitution Committee Rejects Significant Reform to UK Law Officers – UK Constitutional Law Association

Posted February 1st, 2023 in attorney general, constitutional law, constitutional reform, government departments, news, select committees by sally

‘The Attorney General and Solicitor General are the UK government’s principal legal advisors. Known collectively as the Law Officers, the origins of these ancient constitutional officers date back to the 13th Century. Historically, the Law Officers were leading barristers who acted as the Crown’s personal lawyers, fiercely representing their interests in legal proceedings. As political power passed from the Crown to the Prime Minister and their Cabinet, the Law Officers eventually became salaried ministers. Appointed and removed by the Crown on the advice of the Prime Minister, Law Officers today are typically qualified lawyers with experience in practice who are also political figures; as members of one of the Houses of Parliament, a member of government, and senior member of the governing political party.’

UK Constitutional Law Association, 31st January 2023

Source: ukconstitutionallaw.org

Robert Greally: The Brown Report: Political Legitimacy and the Power of the Assembly – UK Constitutional Law Association

Posted January 27th, 2023 in constitutional law, constitutional reform, news, parliament, peerages & dignities, reports by sally

‘The Brown Commission has recommended replacing the House of Lords with an elected Assembly of the Nations and Regions of the UK. In recent posts, the Commission’s proposals for legally empowering the Assembly to scrutinise bills and to protect the constitution have come under criticism on several grounds. First, there are concerns that the Assembly would be unable effectively to scrutinise ordinary bills, as unlike the Lords, the Assembly would lack the legal power to delay such bills. Second, the Assembly would be vested with the power to veto bills which amend existing constitutional arrangements. Yet the Commission not only fails to provide a definitive list of existing constitutional statutes that could be protected by the veto but also envisaged that in exceptional circumstances the House of Commons may still assert its primacy through a specific but currently undetermined processes. Thus, it has been argued the proposed position is not drastically different from the existing legislative process established by the Parliament Acts. Third, there is an implicit concern that the Assembly’s elected membership may hinder rather than facilitate the Assembly in scrutinising and protecting the constitution.’

UK Constitutional Law Association, 26th January 2023

Source: ukconstitutionallaw.org

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