prerogative powers – Current Awareness

Daniel Skeffington and Philippe Lagassé: Principle, Practice, and Prerogative – UK Constitutional Law Association

Posted May 24th, 2024 in constitutional law, news, parliament, prerogative powers, royal family, royal prerogative by sally

‘It remains commonplace, both in political and public law discourse, to describe the Royal Prerogative as archaic or anachronistic. Executive power in the United Kingdom may begin with the Crown, but even the most venerated constitutional historians have long thought “the Crown” is a convenient cover for ignorance. Much like the sovereignty of Parliament, the more one explores its foundations, the more one suspects the bedrock will turn out to be quicksand. As the residue of the Crown’s discretionary authority, exercised by Ministers by convention without formal or legal restraint, it has been said prerogative remains difficult to translate into the modern era, precisely because it derives from the sixteenth century. A space devoid, on some accounts, of legality itself.’

UK Constitutional Law Association, 23rd May 2024

Source: ukconstitutionallaw.org

Letterbox contact can no longer be seen as appropriate regime for most cases, and should “certainly not be the norm”: Family President – Local Government Lawyer

Posted May 24th, 2024 in adoption, child abuse, children, constitutional law, families, family courts, judges, judiciary, local government, news, parliament, prerogative powers, royal family, victims by sally

‘The President of the Family Division, Sir Andrew McFarlane, has outlined the need for a “new approach” to post-adoption contact, noting that letterbox contact can “no longer be seen as the appropriate regime for most cases”.’

Local Government Lawyer, 23rd May 2024

Source: www.localgovernmentlawyer.co.uk

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

The Prerogative Rules, Not the Statute: How to Place Children under Sixteen in Unregulated Placements – St Ives Chambers

Posted November 2nd, 2021 in care orders, children, jurisdiction, local government, news, placement orders, prerogative powers by sally

‘On 9 September 2021, the law changed prohibiting local authorities from placing a child under the age of sixteen in an unregulated placement (The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021).’

St Ives Chambers, 12th October 2021

Source: www.stiveschambers.co.uk

Aileen McHarg and Alison L. Young: The Resilience of the (Old) British Constitution – UK Constitutional Law Association

Posted September 9th, 2021 in bills, brexit, constitutional law, EC law, elections, judicial review, news, parliament, prerogative powers by sally

‘In 2009, Vernon Bogdanor wrote about The New British Constitution. His thesis was that a decade of New Labour reforms had produced a shift in the nature of the constitution, from one based on parliamentary sovereignty, to one based on the “sovereignty of the constitution”. Since 2009, further constitutional reforms have been implemented by governments of various political stripes, apparently consolidating the legalisation of the constitution, and the dispersal of power from the institutions of central government to Parliament, the devolved institutions, and the courts. The New British Constitution appeared to be firmly established. Recent events, however, demonstrate the shaky foundations of this new constitutionalism, with a growing trend towards a weakening of both legal and political checks on Governmental power. This blog post draws attention to this worrying trend, focusing on three key examples. It is based on the findings of the first report of the Constitutional Monitoring Group (of which the authors are both members), established to provide a biannual barometer of the state of constitutional principles in the UK. The report raises concerns not just about the potential consequences of this trend, but of the piecemeal and rapid manner in which it is occurring, with some important constitutional changes appearing to happen under the radar.’

UK Constitutional Law Association, 8th September 2021

Source: ukconstitutionallaw.org

Knife, Stone, Paper – Stephen Sedley – London Review of Books

Posted June 24th, 2021 in constitutional history, constitutional law, legal history, news, parliament, prerogative powers by sally

‘Working in 2010 on a knotty judgment about the power of the home secretary to include additional criteria in immigration rules that she had previously laid before Parliament as required by statute, something clicked in my memory. Four centuries earlier, in 1611, in a decision known as the Case of Proclamations, it had been ruled that “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm … The King hath no prerogative, but that which the law of the land allows him.” It gave a key to the question, since immigration rules are made, without need of statutory authority, under the prerogative power to control entry into the realm, a power which is itself part of the common law and subject to its constraints. It was so when Elizabeth I’s autocratic successor, James I and VI, wanted to rule by proclamation; it was so in 2010 when Theresa May wanted to use the royal prerogative to bypass Parliament; it was still so in 2017 when it was proposed that the UK leave the EU by ministerial fiat rather than parliamentary authority, and again in 2019 when Elizabeth II was required by Boris Johnson to prorogue Parliament for no recognised reason.’

London Review of Books, 1st July 2021

Source: www.lrb.co.uk

Alison L Young: The Draft Fixed-term Parliaments Act 2011 (Repeal) Bill: Turning Back the Clock? – UK Constitutional Law Association

Posted December 4th, 2020 in bills, constitutional law, news, parliament, prerogative powers, statutory interpretation by sally

‘Things were different in 2010. If schools closed and households found themselves stuck indoors, or unable to travel abroad, it was due to snowstorms and erupting Icelandic volcanoes, not because of a pandemic. Moreover, if the then Prime Minister wished to dissolve Parliament, he did not need to adhere to the requirements of the Fixed-term Parliaments Act 2011, which fixed parliamentary terms to five years, allowing for early parliamentary general elections either following a vote of two-thirds of the House of Commons in favour of an early parliamentary general election, or following a vote of no confidence. Instead, so the draft Fixed-term Parliaments Act 2011 (Repeal) Bill would have us believe, the Prime Minister could dissolve Parliament and instigate a new general election by use of a prerogative power, at a date of his choosing unchecked by the courts, subject only to ensuring Parliament did not exceed its maximum term of five years.’

UK Constitutional Law Association, 4th December 2020

Source: ukconstitutionallaw.org

Against the law: why judges are under attack, by the Secret Barrister – The Guardian

Posted August 25th, 2020 in brexit, constitutional law, judicial review, judiciary, news, prerogative powers, prorogation by sally

‘Branded “enemies of the people” by the media and falsely accused of taking sides in Brexit by Conservative ministers, the judiciary is under threat – as is democracy.’

The Guardian, 22nd August 2020

Source: www.theguardian.com

Daniella Lock: The ‘Third Direction case’ Part One: Miller (Nos 1 and 2) in the National Security Context? – UK Constitutional Law Association

Posted July 7th, 2020 in closed material, human rights, intelligence services, investigatory powers, judicial review, news, prerogative powers, torture by sally

‘The ‘Third Direction case’, soon to be brought before the Court of Appeal, concerns the lawfulness of a previously secret national security policy of the UK Government. The policy authorises agents of the Security Service (MI5) to engage in criminal activity, which the claimants allege include the carrying out of torture and murder. Hearings on the case were held in November last year in the Investigatory Powers Tribunal (IPT), a specialist tribunal which adjudicates complaints on state surveillance and the conduct of the Security Services (MI5, MI6 and GCHQ). The IPT produced a judgment remarkably quickly, published in December.’

UK Constitutional Law Association, 7th July 2020

Source: ukconstitutionallaw.org

Defining the Prerogative: The story of the Case of Proclamations – Falcon Chambers

Posted May 4th, 2020 in chambers articles, constitutional history, constitutional law, legal history, news, prerogative powers by sally

‘I am going to talk about some of the great politico-legal battles in the 17th Century which established the conceptual framework for what we call the Rule of Law. English constitutional history is no longer taught in our schools or as part of training for the Bar and so you may be unfamiliar with these three stories, all of which played a vital part in the development of our law and legal system.’

Falcon Chambers, April 2020

Source: www.falcon-chambers.com

Oliver Butler: Elgizouli v Secretary of State for the Home Department: The Fundamental Rights and Freedoms of the Data Subject – UK Constitutional Law Association

Posted April 21st, 2020 in constitutional law, data protection, death penalty, disclosure, execution, foreign jurisdictions, government departments, human rights, news, prerogative powers, Supreme Court by sally

‘Many will no doubt pore over the Supreme Court’s recent judgment in Elgizouli v Secretary of State for the Home Department to evaluate its significance for the common law constraint of prerogative power. Ultimately, however, the Supreme Court held that it was not the common law but rather a failure by the Home Secretary to consider his duties under the Data Protection Act 2018 that rendered the decision in question unlawful. This post considers the significance of the Data Protection Act 2018 for protecting the fundamental rights and freedoms of data subjects. Although the narrow ground upon which the judgment was decided will offer some procedural protections for fundamental rights and freedoms, the case’s significance lies in its suggestion as to how data protection law might offer some scope for extending the extraterritorial application of human rights beyond the limits of the European Convention on Human Rights.’

UK Constitutional Law Association, 17th April 2020

Source: ukconstitutionallaw.org

10 cases that defined 2019 – UK Human Rights Blog

Posted December 20th, 2019 in appeals, asylum, benefits, birth certificates, brexit, Chagos Islands, citizenship, colonies, constitutional law, data protection, detention, EC law, equality, facial mapping, families, gender, housing, human rights, immigration, international law, investigatory powers, jurisdiction, news, parental rights, parliament, police, prerogative powers, privacy, prorogation, rent, Supreme Court, terrorism, transgender persons by tracey

‘And so, we reach the end of another year. And what a year it has been. As well perhaps the most tumultuous period in British politics for decades, this year saw the first ever image taken of a black hole, a victory for the England men’s cricket team at the World Cup, the discovery of a new species of prehistoric small-bodied human in the Philippines and signs that humpback whale numbers in the South Atlantic have bounced back thanks to intensive conservation efforts. And the law? Well, rather a lot has happened really. As the festive season draws near, what better way is there to celebrate than to rewind the clock and relive the 10 cases which have defined 2019?’

UK Human Rights Blog, 19th December 2019

Source: ukhumanrightsblog.com

Adam Perry: Enforcing Principles, Enforcing Conventions – UK Constitutional Law Association

Posted December 5th, 2019 in appeals, constitutional law, judicial review, news, parliament, prerogative powers, prorogation, Supreme Court by sally

‘Did the UK Supreme Court enforce a constitutional convention in Miller (No 2)? Most writers say no. I say yes.’

UK Constitutional Law Association, 3rd December 2019

Source: ukconstitutionallaw.org

Landmarks in law: the Brexit court ruling that thwarted Boris Johnson – The Guardian

Posted November 29th, 2019 in appeals, brexit, constitutional law, elections, judicial review, news, parliament, prerogative powers, prorogation, royal prerogative, Supreme Court by tracey

‘By declaring the prorogation of parliament to be unlawful, the Supreme Court made a decision with huge legal consequences.’

The Guardian, 29th November 2019

Source: www.theguardian.com

David Dennis: Llewellyn, Hart and Miller 2 – UK Constitutional Law Association

Posted October 30th, 2019 in constitutional law, judicial review, jurisdiction, news, parliament, prerogative powers, prorogation, royal prerogative by sally

‘The decision in Miller 2 has been described by Martin Loughlin as effecting a paradigmatic shift in constitutional law, displacing constitutional review based on common law reasoning of case law and precedent to one based on some overreaching framework of constitutional principles of which the Court acts as guardian.’

UK Constitutional Law Association, 29th October 2019

Source: ukconstitutionallaw.org

Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part II – UK Constitutional Law Association

Posted October 10th, 2019 in brexit, constitutional law, Crown, elections, ministers' powers and duties, news, parliament, prerogative powers, veto by tracey

‘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

Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part I – UK Constitutional Law Association

Posted October 10th, 2019 in brexit, constitutional law, Crown, elections, ministers' powers and duties, news, parliament, prerogative powers, veto by tracey

‘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

Finnian Clarke: Habeas Corpus and the Nature of “Nullity” in UK Public Law – UK Constitutional Law Association

Posted October 9th, 2019 in brexit, constitutional law, habeas corpus, judicial review, news, parliament, prerogative powers, prorogation, royal prerogative, Supreme Court by sally

‘In the case of The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland, the Supreme Court briefly directed its focus to its understanding of the nature of “nullity” following a finding of administrative unlawfulness. Its approach surprised some commentators, but in this post I will suggest that, far from being completely novel, the distinctions it appears to draw are familiar within the law of habeas corpus. This comparison will, I suggest, cast light upon the shifting and somewhat complex idea of “nullity” in UK public law.’

UK Constitutional Law Association, 8th October 2019

Source: ukconstitutionallaw.org

The UK Supreme Court’s “One Off” Judgment – Oxford Human Rights Hub

Posted October 9th, 2019 in brexit, constitutional law, judicial review, news, parliament, prerogative powers, prorogation, royal prerogative, Supreme Court by sally

‘It was a “one off”. A conclusive determination on a series of seismic constitutional clashes: representative democracy versus direct democracy, the executive versus Parliament, and the role of the Court in the separation of powers. Judges examining the constitution against a seething political background. But the lions emerged from beneath the throne, unanimously, in a judgment that unlocked the doors of Parliament and clearly, soberly reasserted our sovereign legislature.’

Oxford Human Rights Hub, 9th October 2019

Source: ohrh.law.ox.ac.uk

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