Lord Sumption and the Limits of the Law: Is the Human Rights Project Undemocratic and Elitist? – Family Law Week

Posted January 5th, 2017 in constitutional law, human rights, judges, judiciary, news, treaties by tracey

‘David Bedingfield, barrister of 4 Paper Buildings, considers the arguments in a debate of vital importance to family lawyers.’

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Family Law Week, 4th January 2017

Source: www.familylawweek.co.uk

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David Howarth: On Parliamentary Silence – UK Constitutional Law Association

Posted December 13th, 2016 in constitutional law, EC law, news, parliament, referendums, royal prerogative, treaties by sally

‘One of the most striking aspects of the arguments of counsel in Miller, as Rachel Jones has pointed out, was how much the disagreement between the parties focussed on the meaning of silence. The government’s case boiled down to an assertion that silence on the issue of whether legislation was needed to invoke Article 50 of the Treaty of European Union in a succession of statutes – the European Communities Act 1972, the Referendum Act 1975, the European Union (Amendment) Act 2008, the European Union Act 2011 and the European Union Referendum Act 2015 – should be interpreted as parliament intending that the government was permitted to use the prerogative to invoke Article 50. For example, counsel for the government repeatedly argued that because some of these statutes, especially the 2008 and 2011 Acts, put restrictions on the exercise of the government’s foreign affairs prerogative power, it must follow that those statutes mean that other aspects of the prerogative must have been intended to have been left unfettered. Expressio unius exclusio alterius. On the other side, the applicants argued that parliament’s silence, especially in the 1972 Act, meant that it intended a specific pre-existing rule to apply, namely the rule that ministers could not use the prerogative, and in particular the foreign affairs prerogative, to change the law. They also argued that parliament’s subsequent silence in the other statutes confirmed that original choice.’

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UK Constitutional Law Association, 13th December 2016

Source: www.ukconstitutionallaw.org

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Rachel Jones: The Importance of Silences in the “Brexit” Appeals – UK Constitutional Law Association

‘Statutory silences are crucial to both sides. For Ms Miller, Lord Pannick contends that Parliament’s silence in the EU Referendum Act 2015 means that the Executive is not empowered to start the Article 50 process. Mr Eadie for the Government relies on the same silence for the diametrically opposed position.’

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UL Constitutional Law Association, 7th December 2016

Source: www.ukconstitutionallaw.org

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Theresa May faces new Brexit legal challenge – Daily Telegraph

Posted December 12th, 2016 in constitutional law, EC law, judicial review, news, Supreme Court, treaties, veto by sally

‘Theresa May faces a new challenge to her bid to start the process to take Britain out of the European Union after it emerged that opponents plan to launch a fresh legal action on Monday.’

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Daily Telegraph, 11th December 2016

Source: www.telegraph.co.uk

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Supreme court Brexit hearing: 10 things we learned – The Guardian

‘From the royal prerogative and Henry VIII clause to what makes lawyers laugh – and how to interpret a judge’s choice of tie.’

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The Guardian, 8th December 2016

Source: www.guardian.co.uk

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Lawyer urges supreme court to throw out Brexit case after article 50 vote – The Guardian

Posted December 9th, 2016 in constitutional law, news, parliament, prerogative powers, Supreme Court, trials by sally

‘The supreme court has been urged to throw out a momentous legal challenge to the government’s powers to trigger Brexit, with Downing Street lawyers claiming parliament’s support for exiting the EU was conclusively demonstrated this week.’

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The Guardian, 8th December 2016

Source: www.guardian.co.uk

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Robert Craig: Miller: The Statutory Basis Argument – A Primer – UK Constitutional Law Association

Posted December 6th, 2016 in appeals, constitutional law, EC law, news, royal prerogative, Supreme Court, treaties by sally

‘This is a brief (1200 words brief) summary of the ‘statutory basis’ argument. This post responds directly to the fact that, in the Supreme Court case being heard today, Lord Mance directly asked Mr Eadie QC whether Article 50 had been incorporated. Mr Eadie said that it was not because it did not have ‘direct effect’. It is suggested that the failure to claim Article 50 is in fact part of domestic law was mistaken. A strong argument can be made that triggering Article 50 could be done under an existing statutory power.’

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UK Constitutional Law Association, 5th December 2016

Source: www.ukconstitutionallaw.org

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Royal prerogative takes centre stage as supreme court Brexit case opens – The Guardian

‘Theresa May’s plan to implement Brexit without the authorisation of a vote in parliament would be “a contemporary necessity” rather than a misuse of outdated ancient royal powers, the attorney general said at the start of the most keenly awaited constitutional law case in recent memory.’

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The Guardian, 5th December 2016

Source: www.guardian.co.uk

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The judges protect us. It’s time to stand up for them – The Guardian

‘Brexiteers and their media allies have declared war on our judiciary. On behalf of the people, the supreme court must push back.’

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The Guardian, 5th December 2016

Source: www.guardian.co.uk

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Art 50: the clash of the Brexit case arguments – New Law Journal

Posted December 2nd, 2016 in constitutional law, EC law, news, parliament, prerogative powers, referendums, treaties by sally

‘Michael Zander QC reviews the written cases of the government & the lead claimants in next week’s Supreme Court hearing.’

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New Law Journal, 1st December 2016

Source: www.newlawjournal.co.uk

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Thomas Poole: Losing our Religion? Public Law and Brexit – UK Constitutional Law Association

‘Prerogative is the enemy of the people. This has been settled as matter of law for a very long time. The constitutional settlement of 1688 made a decision for responsible and representative government. We have had no constitutional moment of similar magnitude since. All constitutional changes – some very significant – have taken place within that foundational structure. The Bill of Rights treats prerogative as the antithesis of good government. Its primary target is a range of extra-legal powers hitherto asserted by the King, pride of place being given to the power to dispense with laws and the power to suspend Acts of Parliament.’

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UK Constitutional Law Association, 2nd December 2016

Source: www.ukconstitutionallaw.org

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Jeff King and Nick Barber: In Defence of Miller – UK Constitutional Law Association

‘Miller v Secretary of State for Exiting the European Union has stimulated quite a bit of debate. Some criticism of the decision has been well-informed and thoughtful, whilst some of it has been, to put it charitably, less worthy of engagement. In this post we respond to what we view as the strongest arguments against Miller, taking account of the Government’s written case for appeal. We discussed the reasoning used in the case in an earlier post written with Tom Hickman, and will not repeat that explanation here. This post assumes knowledge of that earlier piece, which was written with the lay reader in mind. The present piece, more legally detailed, is necessitated by the quite subtle replies to the argument in that original post and to the judgment in Miller.’

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UK Constitutional Law Association, 22nd November 2016

Source: www.ukconstitutionallaw.org

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Sarah Nason: Justice Outside London? An Update on ‘Regional’ Judicial Review – UK Constitutional Law Association

Posted November 17th, 2016 in Administrative Court, constitutional law, courts, judicial review, news by sally

‘In April 2009 Administrative Courts were established in Birmingham, Cardiff, Leeds and Manchester to deal with judicial review claims and other aspects of the Administrative Court’s jurisdiction. An important aim of this reform was to improve access to justice by ensuring that public law claims are issued and heard at the most appropriate location. In this post I consider some recent data relevant to whether the ‘regional’ Courts are continuing to achieve this aim in 2016.’

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UK Constitutional Law Association, 16th November 2016

Source: www.ukconstitutionallaw.org

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Keith Ewing: A Review of the Miller Decision – UK Constitutional Law Association

‘Shortly after the referendum on 23 June, demands were made that continuing EU membership should now be considered by Parliament, with a view it seems to stop BREXIT happening, and to frustrate the will of the 17 million who voted to leave. Indeed, the Guardian carried an article only five days later on ‘How we can stop Brexit – lobby our MPs’ (29 June 2016), no doubt as inflammatory and unacceptable to the BREXITEERS as subsequent developments have been to the REMAINERS. Fearing that Parliament was being enlisted with an agenda to defeat the referendum result, it is not surprising that the BREXITEERS should wish to exclude Parliament from the process altogether.’

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UK Constitutional Law Association, 10th November 2016

Source: www.ukconstitutionallaw.org

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Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer – UK Constitutional Law Association

‘I’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the parties at least were in agreement on the point after all: it is not (they say) reversible: R (Miller) v Secretary of State for Exiting the EU, para 10 (hereinafter “Miller”). However, I believe that there is a far simpler, and so far as I can see compulsory, route from the Supreme Court to Luxembourg in this matter, assuming that the Crown does indeed appeal today’s ruling to that court, and that is that (a) the case turns on the interpretation of the phrase “in accordance with its own constitutional requirements” from Article 50(1) of the Treaty on European Union (“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”), and (b) interpretation of the Treaty, or indeed any EU Law, is the exclusive competence of the Court of Justice of the EU (“CJEU”).’

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UK Constitutional Law Association, 8th November 2016

Source: www.ukconstitutionallaw.org

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David Feldman: Brexit, the Royal Prerogative, and Parliamentary Sovereignty – UK Constitutional Law Association

Posted November 9th, 2016 in constitutional law, EC law, news, parliament, referendums, royal prerogative, treaties by sally

‘In R. (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) judges had to decide, as a matter of law, on the constitutionally correct procedure for deciding whether and when to notify the President of the European Council that the UK intends to leave the EU, pursuant to Article 50 of the Treaty on European Union. This legal question is fraught with difficulty. The situation is unprecedented, so judges have to answer the question from constitutional first principles. Inevitably in such cases there is room for disagreement as to what the first principles are, and (more intractably) what weight each has as against the others in the particular circumstances of the case.’

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UK Constitutional Law Association, 8th November 2016

Source: www.ukconstitutionallaw.org

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Jeff King: What Next? Legislative Authority for Triggering Article 50 – UK Constitutional Law Association

Posted November 8th, 2016 in appeals, constitutional law, EC law, legislation, news, parliament, treaties by sally

‘The High Court judgment in Miller v Secretary of State for Exiting the European Union last Thursday made it clear that an Act of Parliament is required for a notice under article 50(2) of the Treaty of the European Union. My view is that an appeal is unlikely to be successful, but on any view we must be prepared for that outcome. The Government and Opposition should consider the form of such an Act without delay. So far, there has been little discussion about what form such legislation might take. This post seeks to begin that discussion, suggesting form, content and conditions that neither challenge the result of the 23 June 2016 referendum nor the Government’s stated timelines for giving notice.’

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UK Constitutional Law Association, 8th November 2016

Source: www.ukconstitutionallaw.org

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Mark Elliott and Stephen Tierney: House of Lords Constitution Committee Reports on Wales Bill – UK Constitutional Law Association

Posted October 31st, 2016 in constitutional law, news, reports, select committees, Wales by sally

‘The House of Lords Constitution Committee today publishes its report on the Wales Bill. The history of the Bill is a somewhat chequered one, a Draft Bill published in October 2015 having been subjected to excoriating criticism by (among others) the Assembly’s Legislative and Constitutional Affairs Committee. The centrepiece of the Bill is intended to be the shift from the ‘conferred powers’ model of devolution that presently operates in Wales to a ‘reserved powers’ model akin to that which is found in Scotland. However, the Constitution Committee concludes that ‘the current implementation of the reserved powers model in the Wales Bill undermines its key advantages: namely providing the devolved legislature with constitutional space to legislate and allowing for a relatively clear and simple division of powers’. In this post, we highlight a number of concerns raised by the Committee in its report, and conclude with some broader reflections on what the Wales Bill tells us about the state of the UK’s territorial constitution and the approach to constitutional design adopted in respect of it.’

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UK Constitutional Law Association, 28th October 2016

Source: www.ukconstitutionallaw.org

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Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union – UK Constitutional Law Association

Posted October 21st, 2016 in constitutional law, EC law, news, parliament, prerogative powers, referendums, treaties by sally

‘Thursday 13 October 2016 marked the beginning of the hearing over the constitutional question of whether Article 50 may be triggered by the Government without further statutory authorisation. This post provides a report of the day’s proceedings. The two further days are scheduled for Monday and Tuesday next week.’

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UK Constitutional Law Association, 14th October 2016

Source: www.ukconstitutionallaw.org

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Brexit case ‘of fundamental constitutional importance’ – BBC News

Posted October 14th, 2016 in constitutional law, EC law, news, parliament, prerogative powers, referendums, treaties by sally

‘The need for Parliament to give its approval before the Brexit process starts is of huge “constitutional importance”, the High Court has heard.’

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BBC News, 13th October 2016

Source: www.bbc.co.uk

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