constitutional law – Page 5 – Current Awareness

Elizabeth A. O’Loughlin, Gabriel Tan and Cassandra Somers-Joce: The Duty of Candour in Judicial Review: The Case of the Lost Policy – UK Constitutional Law Association

Posted December 7th, 2022 in constitutional law, disclosure, government departments, judicial review, news by sally

‘Earlier this year, in a Divisional Court judgment that garnered much attention from public lawyers, the Home Office conceded that its secret and blanket policy of seizing and downloading data from the mobile phones of all those arriving by small boats was unlawful: R (HM, MA and KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin). Having initially denied the existence of the blanket policy as “based on anecdote and surmise” in pre-action correspondence, a position from which the government did not resile following the commencement of judicial review proceedings, the defendant belatedly accepted in advance of the hearing that such a policy did indeed operate between April and November 2020 (para 32). The defendant ultimately accepted that their position prior to this point was “inadvertently inconsistent with the duty of candour” and offered an “unreserved apology” (para 32).’

UK Constitutional Law Association, 7th December 2022

Source: ukconstitutionallaw.org

Ronan Cormacain: The rise and rise of the super-enabling clause – UK Constitutional Law Association

Posted December 2nd, 2022 in constitutional law, legislation, news, rule of law by tracey

‘It has become increasingly popular to include what I term a “super-enabling clause” in primary legislation. It is my contention these clauses are bad for democracy and the rule of law. ‘

UK Constitutional Law Association, 30th November 2022

Source: ukconstitutionallaw.org

Colin Murray: A New Period of “Indirect” Direct Rule – The Northern Ireland (Executive Formation etc) Bill – UK Constitutional Law Association

Posted November 30th, 2022 in bills, brexit, constitutional law, EC law, government departments, news, Northern Ireland by sally

‘Only a few short months on from the passing of the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 and legislation is once again before Westminster to amend the Northern Ireland Act 1998 – as everyone knew that it would be. One of the key innovations in the 2022 Act, belatedly giving effect to a proposal in the New Decade, New Approach Agreement of January 2020, was that during its 24-week post-election period Northern Ireland Executive ministers would continue to hold office and take decisions within their remit. This period prevented what Lord Bingham referred to in Robinson as a “persisting vacuum in the conduct of devolved government” (para 15). Its extended duration under the 2022 legislation was intended to provide a sufficient window after an election for a new power sharing administration to be formed, but to keep a count-down to new elections in place to focus Northern Ireland’s major parties towards that end. This arrangement, however, has proven no more effective as an impetus than the terms that it replaced.’

UK Constitutional Law Association, 29th November 2022

Source: ukconstitutionallaw.org

Chris Himsworth: Referendum Bill Consequentials – UK Constitutional Law Association

Posted November 30th, 2022 in bills, constitutional law, devolution, devolution issues, news, parliament, referendums, Scotland, Supreme Court by sally

‘At paras 56-57 of their judgment, the court in Reference by the Lord Advocate of devolution issues ([2022] UKSC 31) declared: “The central issue is whether legislation for a referendum on Scottish independence would relate to a reserved matter…. The critical question is accordingly whether the proposed Bill would relate to the Union of the Kingdoms of Scotland and England or the Parliament of the United Kingdom”.’

UK Constitutional Law Association, 29th November 2022

Source: ukconstitutionallaw.org

New Judgment: Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31 – UKSC Blog

Posted November 24th, 2022 in bills, constitutional law, devolution, devolution issues, government departments, news, referendums, Scotland, Supreme Court by sally

‘The Scottish Government drafted a Scottish Independence Referendum Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?”. Under the Scotland Act 1998 (“the Scotland Act”), the power of the Scottish Parliament to make legislation (or its “legislative competence”) is limited. A provision of a Bill will be outside the legislative competence of the Scottish Parliament and therefore not law if it relates to the matters which have been reserved to the United Kingdom Parliament in Westminster (sections 29(1) and (2)(b)). These reserved matters include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)).’

UKSC Blog, 23rd November 2022

Source: ukscblog.com

Saba Shakil: Bridging the gap between remedial reform and judicial practice: A study of challenges to delegated legislation – UK Constitutional Law Associaton

Posted November 24th, 2022 in bills, constitutional law, government departments, human rights, judiciary, news by sally

‘The resurrected Bill of Rights Bill (BoRB) shows that the government is continuing to grasp at the wrong end of the remedies stick – and it will continue to do so until it pays attention to the evidence. ‘

UK Constitutional Law Association, 24th November 2022

Source: ukconstitutionallaw.org

Supreme court rules against Scottish parliament holding new independence referendum – The Guardian

Posted November 23rd, 2022 in bills, constitutional law, devolution, devolution issues, government departments, news, referendums, Scotland, Supreme Court by sally

‘The Scottish parliament cannot hold a second independence referendum without Westminster approval, the UK supreme court has ruled, in a unanimous judgment likely to anger Scottish nationalists who say the country’s future is for Scottish voters to decide.’

The Guardian, 23rd November 2022

Source: www.theguardian.com

What is the supreme court’s Scottish independence ruling about? – The Guardian

Posted November 23rd, 2022 in bills, constitutional law, devolution, devolution issues, government departments, news, referendums, Scotland, Supreme Court by sally

‘All you need to know about decision on whether Scotland can hold new referendum without Westminster approval.’

The Guardian, 23rd November 2022

Source: www.theguardian.com

Jane Rooney: The Extraterritorial Application of the Human Rights Act: Overseas Military Operations and Beyond – UK Constitutional Law Association

Posted November 22nd, 2022 in armed forces, bills, constitutional law, human rights, news by sally

‘With the reinstatement of Dominic Raab as Secretary of State for Justice, the Bill of Rights Bill, currently before Parliament, is once again a possibility only weeks after Liz Truss halted its progression on account that it was a ‘complete mess’. This post examines the Bill’s provisions on overseas military operations, how they compare with the UK judiciary’s approach, the Overseas Operations (Service Personnel and Veterans) Act 2021, and the European Court of Human Rights (ECtHR) jurisprudence. Also highlighted are other extraterritoriality issues outside overseas military operations that the UK will have to consider.’

UK Constitutional Law Association, 22nd November 2022

Source: ukconstitutionallaw.org

Christian Magaard: Reconciling the Proactive Principle of Legality with Parliamentary Sovereignty – UK Constitutional Law Association

Posted November 18th, 2022 in bills, constitutional law, human rights, news, parliament by tracey

‘Rising like an arguably rather dark phoenix from the ashes, the Bill of Rights Bill now appears back on the legislative agenda. Yet again, the repeal of the Human Rights Act 1998 (HRA) seems somewhat inevitable, unless cabinet will once again implode in turmoil. In this light, the potential of the common law to provide a system of rights protection of similar vigour to that of the HRA has rightly gained much attention. The previous debate has largely focused on the content and development of common law rights and the structural potentials of the common law constitution. In contrast, this post will shed some light on what Mark Elliott described as the rigour of rights protection. The repeal of s. 3 HRA is surely one of the major cuts of judicial competences that the Bill of Rights Bill aims to undertake. Reinforcing a suggestion made by Eirik Bjorge and Michael Foran, it will hence be argued that the judiciary may well fill this protection gap by applying the proactive principle of legality (PoL). The use of this principle, however, can only be justified by acknowledging a new doctrinal foundation that reconciles it with parliamentary sovereignty.’

UK Constitutional Law Association, 17th November 2022

Source: ukconstitutionallaw.org

Shona Wilson Stark: Section 4 of the Human Rights Act 1998: Still Standing, or Standing Still? – UK Constitutional Law Association

Posted November 18th, 2022 in bills, constitutional law, human rights, news by tracey

‘In previous work, I have criticised the courts’ apparent confusion and/or uneasiness with the making of declarations of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”). I have argued that the courts have paid insufficient mind to the fact that the regime under sections 3-4 of the HRA is different to the regime under HRA sections 6-9. The related questions of who has standing to bring a section 4 claim and what “incompatibility” means are unresolved. In this post, I recap my argument and attempt to ignite a discussion about the proper purpose of section 4, prior to any future human rights reform.’

UK Constitutional Law Association, 16th November 2022

Source: ukconstitutionallaw.org

Frederick Cowell: The Three Eras of Opposition to the Human Rights Act – UK Constitutional Law Association

Posted November 14th, 2022 in constitutional law, government departments, human rights, immigration, legal history, news, political parties by tracey

‘Before it entered the statute books, before it even had been brought to Parliament, the Human Rights Act (HRA) was subject to opposition which was to only strengthen over time. The nature of that opposition has varied since the publication of White Paper Rights Brought Home in October 1997, but it has served as a vehicle, and site of contestation, for many constitutional debates and disagreements over the past quarter century. Opposition to the HRA is also a reflection of broader social change in British society in the twenty-first century and this understanding is key to any analysis of contemporary proposals for reform.’

UK Constitutional Law Association, 14th November 2022

Source: ukconstitutionallaw.org

Merris Amos: The place of human rights in the Constitution of the United Kingdom – UK Constitutional Law Association

Posted November 11th, 2022 in constitutional law, human rights, news by tracey

‘Recently I have had the great pleasure of convening the SLS Annual Seminar – The Human Rights Act After 22 Years. Rather than formal papers, and yet another edited collection, it was agreed that following the event we would try to capture the contributions in a series of blog posts for the UKCLA Blog. Having learned so much during the seminar, I am now getting things started with this short post.’

UK Constitutional Law Association, 9th November 2022

Source: ukconstitutionallaw.org

Simon Lee: Wednesbury’s 75th Anniversary – UK Constitutional Law Association

Posted November 11th, 2022 in constitutional law, judges, legal history, licensing, local government, news, ultra vires by tracey

‘Judgment was given in the famous Wednesbury case 75 years ago today, on 10th November 1947. Readers of this blog know full well the facts of the case, the judgment of Lord Greene (reported [1948] 1 KB 223), the mythical status of “Wednesbury unreasonableness” and critiques thereof, such as Lord (previously Sir Robin) Cooke’s dislike of what he saw as Lord Greene’s circumlocution, a “retrogressive” decision and the unnecessary use of “the geographical epithet” of Wednesbury.’

UK Constitutional Law Association, 10th November 2022

Source: ukconstitutionallaw.org

Sam Guy: Eroding Public Law’s Exclusions? Charting the Landscape of Crowdfunding in Judicial Review – UK Constitutional Law Association

Posted November 9th, 2022 in constitutional law, judicial review, news by sally

‘The use of crowdfunding to access public law litigation is a matter which attracts much online commentary but has thus far, with notable exceptions, received considerably less rigorous scholarly engagement. Accordingly, several important questions remain unanswered as to the dynamics of crowdfunded litigation – amongst others, who are the actors bringing (and defending) these cases, how much money do cases raise, and how do they fare in the judicial review system? In a recent article published open access in the Modern Law Review, I report the results of an empirical study which charts the landscape of judicial review crowdfunding systematically for the first time. In the study, I analyse 413 crowdfunding pages by people seeking funding for judicial review claims, posted on CrowdJustice, the leading litigation crowdfunding website. Here, I highlight some of the study’s results, and emphasise the difficulties facing prospective litigants in accessing judicial review, even with the advent of crowdfunding, a problem which has, previously on this blog, been termed ‘public law’s disgrace’.’

UK Constitutional Law Association, 8th November 2022

Source: ukconstitutionallaw.org

David Torrance: Constitutional mirrors: Coronations and the territorial constitution – UK Constitutional Law Association

Posted October 28th, 2022 in constitutional law, news, royal family by tracey

‘Writing about the “work” of the Queen in 1958, the journalist and Herald Dermot Morrah claimed there had been “scarcely any allusion” in her coronation ceremony to the fact that Elizabeth II “was Queen of seven distinct and sovereign realms”. Indeed, added Morrah, “she was crowned not even as Queen of the United Kingdom, but of England alone”.

This was a peculiarly Anglo-centric take, particularly so coming from the pen of a Herald, usually such sticklers for detail. At first glance, the coronation of a British monarch is indeed a very English affair. It takes place at the Abbey Church of Westminster and the service is given by the Archbishop of Canterbury.

Yet a closer examination of coronations between 1714 and 1953 reveals them to be constitutional mirrors in which were reflected changes to the territorial constitution. And by highlighting these reflections, one can draw some preliminary observations as to the likely ceremonial at the coronation of King Charles III on 6 May 2023.’

UK Constitutional Law Association, 27th October 2022

Source: ukconstitutionallaw.org

Michael Foran: Prime Ministers, Party Members, and the Efficient Secret – UK Constitutional Law Association

Posted October 27th, 2022 in constitutional law, ministers' powers and duties, news, parliament, political parties by sally

‘The office of Prime Minister is a creature entirely of constitutional convention. While legislation references the office itself, setting out pay for example, this is only statutory recognition of the existence of an office which arises purely by virtue of convention. It is by convention that the Monarch appoints as Prime Minister someone who is capable of commanding the confidence of the House of Commons and it is by convention that he exercises certain prerogative powers only on the advice of the Prime Minister (or another minister in his government). The mechanism for choosing a Prime Minister is, however, not entirely covered by convention. While they must command the confidence of a majority of MPs in the Commons, it is not necessary that they be chosen directly by the Commons. This is because of the party system and the presumption that the leader of a given party has the confidence of their MPs, even if they might not always have their full support.’

UK Constitutional Law Association, 26th October 2022

Source: ukconstitutionallaw.org

Kate Ollerenshaw: More Haste, Less Speed: Sunset Clauses in the Retained EU Law (Revocation and Reform) Bill – UK Constitutional Law Association

Posted October 11th, 2022 in brexit, constitutional law, EC law, news, regulations, statute law revision by tracey

‘There are many points of note for those interested in Constitutional law in the recently published Retained EU Law (Revocation and Reform) Bill 2022 (“the Bill”). This post focuses on the proposal to bind the Government to accomplishing the complex process of assimilating desirable retained EU law into domestic legislation before a stated deadline using the sunsetting provisions in clauses 1 and 3 of the Bill. It asks why sunsetting is needed, suggesting the motivation lies, at least in part, in the Government’s desire to reap the so-called “Brexit dividend” by reducing the burden of regulation from EU-derived measures as quickly as possible. It goes on to question whether the sunset clauses will ultimately assist in that aim.’

UK Constitutional Law Association, 10th October 2022

Source: ukconstitutionallaw.org

Supreme Court indyref2 judgment could take ‘six to eight weeks’, Lord Hope says – The Independent

Posted October 10th, 2022 in bills, constitutional law, devolution issues, news, referendums, Scotland, Supreme Court by tracey

‘The Supreme Court’s judgment on the legality of a Scottish independence referendum could be provided within six to eight weeks, its former deputy president has said.’

The Independent, 9th October 2022

Source: www.independent.co.uk

Stephen Tierney: The Lord Advocate’s Reference: Referendums and Constitutional Convention – UK Constitutional Law Association

Posted October 6th, 2022 in bills, constitutional law, devolution, news, parliament, referendums, Scotland, statutory interpretation by sally

‘Section 29(1) of the 1998 Act provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. A provision is outside that competence so far as it “relates to reserved matters” (s.29(2)(b)), and whether or not it relates to a reserved matter is to be determined by “reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances” (s.29(3)).’

UK Constitutional Law Association, 4th October 2022

Source: ukconstitutionallaw.org

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