‘The recent protests by farmers over changes to the rules on inheritance tax have raised questions over who, if anyone, should be exempt from paying it – including King Charles, as an episode of Newsnight has recently highlighted.’
UK Constitutional Law Association, 2nd December 2024
Source: ukconstitutionallaw.org
‘There is a good reason why the constitutional convention requiring the monarch to exercise his prerogative powers on the advice of his government is known as the “Cardinal Convention”: it is ‘the most fundamental’ constitutional convention relating to the monarchy – something King Charles is finding out when it comes to slavery reparations.’
UK Constitutional Law Association, 21st November 2024
Source: ukconstitutionallaw.org
‘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
‘Sovereign immunity has been upheld in the Court of Appeal in a case involving allegations that the former king of Spain harassed a woman over a two-year period.’
Law Society's Gazette, 14th December 2022
Source: www.lawgazette.co.uk
‘No two Accessions are the same. That of King Edward VII in 1901 was characterised by widespread confusion regarding custom and practice, for Queen Victoria’s succession to the Throne had long ago faded from the public consciousness. This time, the “official mind” was better prepared and the major difference between the Accession of King Charles III in 2022 and that of his mother Queen Elizabeth II in February 1952 was its visibility. By comparing the ceremonial surrounding these Accessions (and some others), this article reveals developments in what Walter Bagehot called the “dignified” constitution over the past seven decades.’
UK Constitutional Law Association, 28th September 2022
Source: ukconstitutionallaw.org
‘In terms of government formation, there are two kinds of parliamentary system: “…countries where the government needs to win an investiture vote are said to have positive parliamentarism, while countries in which the government just needs to be tolerated by parliament are said to have negative parliamentarism”. By this definition, the UK has a negative parliamentary system (excepting s. 2(5), Fixed-Term Parliaments Act 2011): the Queen appoints the Prime Minister by inviting him to form a Government; and subsequent ministers are appointed by the Queen on the advice of the PM; but the House of Commons may move that it has no confidence in HM Government. Compared to a positive parliamentary system – e.g. Spain, where the appointment of the King’s prime ministerial nominee requires a successful vote of confidence by an absolute majority of the Congress of Deputies – a negative one has three disadvantages. These are that there is a democratic deficit in the Government; obscurity in a Government’s democratic mandate, under hung parliaments; and that there are inadequate checks and balances between the Government and Parliament.’
UK Constitutional Law Association, 11th March 2021
Source: ukconstitutionallaw.org
‘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’.’
UK Constitutional Law Association, 21st January 2020
Source: ukconstitutionallaw.org
‘This is the second of a two-part discussion of this theme. The first part addressed the obligations under the Benn Act and the legal response to attempts to frustrate it; this second part addresses non-confidence motions, resignation and change of Government. Heading numbering is continued from Part 1.’
UK Constitutional Law Association, 10th October 2019
Source: ukconstitutionallaw.org
‘This is the first of a two-part discussion of this theme. This first part addresses the obligations under the Benn Act and the legal response to attempts to frustrate it; the second part will address non-confidence motions, resignation and change of Government.’
UK Constitutional Law Association, 9th October 2019
Source: ukconstitutionallaw.org
‘For at least four centuries the courts have contested the claims of monarchs to untrammelled authority. ‘The king,’ Chief Justice Coke said in 1611, ‘hath no prerogative but what the law of the land allows him.’ Although the historic settlement of 1688-89, which gave us today’s constitutional monarchy, left in existence a wide swathe of prerogative powers, these have become subject to two governing principles. One is that they cannot be enlarged. The other is that both their constitutional extent and their lawful use are subject to judicial review. If the rule of law is to mean anything, it has to mean this.’
London Review of Books, 10th October 2019
Source: www.lrb.co.uk
‘The request made by the Privy Council that the Queen prorogue Parliament was a clumsy and inappropriate attempt to shorten the time available for parliamentary scrutiny of the Brexit process. That much seems clear from papers submitted to the Court of Session in Cherry. It is therefore no surprise that the Inner House was receptive to the petitioners’ argument that the advice given to Her Majesty violated the conventional purposes for which prorogation ought to be used and was therefore unconstitutional (Cherry, [1]; see also Lord Sumption). Where the court erred was in concluding that the act of prorogation was itself unlawful. The intimate relationship between the prerogative power to prorogue and the supremacy of Parliament precludes such a conclusion. If, as seems correct, a response to this breach of convention is warranted, it is one that can, constitutionally, only come from Parliament itself.’
UK Constitutional Law Association, 17th September 2019
Source: ukconstitutionallaw.org
‘The idea of constitutional hardball was introduced to the world by Mark Tushnet. The sport is played when political actors decide the stakes are so high that any lawful action is justified, no matter how constitutionally problematic: hardball stays within the confines of the law, but runs against the spirit, and sometimes the conventions, of the constitution.’
Oxford Human Rights Hub, 31st August 2019
Source: ohrh.law.ox.ac.uk
‘This post continues the debate that has arisen following recent Parliamentary efforts to seize the initiative from the Government to avoid a no-deal Brexit, in particular the Cooper- Letwin Bill, and certain proposals that have emerged by which it is suggested the Government could thwart these efforts.’
Brexit Law, 8th April 2019
Source: brexit.law
‘Parliament voted on the evening of 1 April in a series of indicative votes to determine what, if any, alternative plan for withdrawal from the European Union could command the support of the House of Commons: all plans put forward again failed to command a majority. In a recent intervention, John Finnis has suggested that the government should prorogue Parliament until after 12 April in order to terminate the current parliamentary debate. Mark Elliott has offered a critique of the broader implications of this argument, namely the claim that such a course of action would be ‘(…) wholly legitimate as a matter of constitutional principle.’ Elliott concludes that parliamentary control of the process is entirely legitimate and in keeping with the British constitution. This piece adds to this analysis by elaborating why the prorogation Finnis advocates under these specific circumstances would be, as Elliott summarily puts it, ‘(…) an argument for unconstitutional action on the part of the Government.’ The piece develops a twofold argument: first, that ministerial advice tendered to seek a prorogation of Parliament under these circumstances is unconstitutional and that the Monarch should disregard it as a matter of constitutional convention; and second that holding otherwise would in effect grant the Prime Minister an unqualified veto over parliamentary business, leaving the government in an unconscionable position of power over the sovereign Parliament. Such an outcome would be fundamentally at odds with British parliamentary democracy, especially principles of democracy and representative and responsible government.’
UK Constitutional Law Association, 3rd April 2019
Source: ukconstitutionallaw.org
‘When a company is dissolved, all its property and rights (including leasehold property) are deemed to be bona vacantia and accordingly belong to the Crown. Pursuant to s.1013 of the Companies Act 2006, where property so vests in the Crown, the Crown’s title to it may be disclaimed by a notice signed by the Crown representative. By s.1017 of the Act, the court may make an order vesting disclaimed property in a person with an interest in it.’
Hardwicke Chambers, 11th December 2018
Source: hardwicke.co.uk
‘A prisoner suffering from poor health has lost his attempt to enforce the smoking ban in English and Welsh jails after the supreme court ruled that crown premises are effectively exempt from the enforcement of health regulations.’
The Guardian, 19th December 2017
Source: www.theguardian.com
‘Before I embark on this little tale, let me put you straight. So long as they act in good faith, as they always do, judges incur no liability for erroneous decisions. So that’s alright, then. And the Crown has no liability for anything done by any person discharging judicial responsibilities? Not quite, as highlighted by LL v The Lord Chancellor [2017] EWCA Civ 237, [2017] All ER (D) 123 (Apr). If a court orders a person to be arrested or detained in contravention of Art 5 of the European Convention on Human Rights then that person is entitled to damages in a claim against the Crown (ss 7(1) and 9 of the Human Rights Act 1998) and proceedings would have to be brought against the Lord Chancellor (as if he didn’t have enough to worry about already). Detention will be unlawful if the court acted without jurisdiction (which is why judges should take the Green Book with them wherever they go) or where there was a gross and obvious irregularity in the court’s procedure or a flagrant denial of justice.’
New Law Journal, 7th July 2017
Source: www.newlawjournal.co.uk
‘An estate adjoining the foreshore on the east side of the Wash owned a private fishery with an exclusive right to take shellfish over part of the foreshore. In 1970 the estate granted a lease of that exclusive right to the claimant. The claimant brought proceedings against the defendants alleging that they had been fishing for cockles in areas of foreshore which were part of the private fishery of which he was the lessee. The defendants accepted that a private fishery had been established by prescription but disputed its extent. In particular, they contended that it did not extend to large sandbanks which had been detached from the foreshore until the channels separating them had silted up; that such sandbanks were not subject to the doctrine of accretion, properly understood; and that, even if they were, it would not follow that the fishery rights had increased commensurately since that would have required a Crown grant and the power of the Crown to make such a grant had been removed by Magna Carta. The judge, however, held that the terms of the grant presumed as a result of the past prescriptive activities was a grant before 1189 of a fishery extending over the whole of the foreshore as it varied from time to time, and accordingly included the sandbanks; that on that basis, the defendants were liable in damages; and that the most practical of the various alternative lines put forward as the defined seaward boundary of the fishery was the mean low water mark of spring tides, rather than extreme low water as contended for by the claimant. The defendants appealed and the claimant cross-appealed. The Court of Appeal dismissed the defendants’ appeal and held that as conditions changed and more or less of the seabed was exposed at low water, the area of the private fishery would expand or shrink, and held, allowing the claimant’s cross-appeal in part, that the fishery extended in law as far as lowest astronomical tide, which was the lowest point to which the tide fell as a result of normal astronomical forces.’
WLR Daily, 13th April 2016
Source: www.iclr.co.uk
‘A presumed lost grant from the Crown prior to 1189 of a right of private fishery was to be understood as extending to all such part of the seabed as might from time to time be exposed at low water.’
WLR Daily, 19th June 2014
Source: www.iclr.co.uk
‘Her Majesty’s Government welcomes the Justice Select Committee’s latest report on the relationship between the UK and the Crown Dependencies. This relationship is a valuable, historical and special one and the Government accordingly takes its responsibilities towards the Islands very seriously.’
Ministry of Justice, 17th March 2014
Source: www.gov.uk/government/organisations/ministry-of-justice
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