Yossi Nehushtan: The 14-Day Quarantine Policy is Illegal – UK Constitutional Law Association

‘Harsh criticism, mainly from politicians and the travel industry has been expressed regarding the new government policy, according to which, and from 8 June, nearly all international arrivals at UK ports must quarantine for 14 days. It is surprising that very little has been said about the clear illegality of this policy, despite a very recent judicial review process that has been brought against the policy by a few airline companies. In this post it is argued that the quarantine policy is irrational, unreasonable and disproportionate – and therefore illegal. A preliminary note about the differences between rationality and reasonableness will be followed by applying rationality, reasonableness and proportionality to our case.’

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UK Constitutional Law Association, 17th June 2020

Source: ukconstitutionallaw.org

Gregory Davies and Dan Wincott: Brexit, the press and the territorial constitution – UK Constitutional Law Association

Posted June 11th, 2020 in brexit, constitutional law, devolution, media, news by sally

‘In the early years of devolution, Feldman described constitutional discourse in the UK as ‘a sea of conflicting visions’. More than a decade later, Brexit and now Covid-19 remind us again just how differently the UK is understood.’

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UK Constitutional Law Association, 10th June 2020

Source: ukconstitutionallaw.org

Jake Hinks: The Coronavirus Act 2020: An Example of ‘Excessive Executive Dominance’ – UK Constitutional Law Association

‘The concept of executive dominance should be split into two: natural and excessive executive dominance. Executive dominance is the executive’s power to control, impede or perform the role of another branch of the constitution. The UK constitution lacks a clear-cut distinction between the three organs of the state and has evolved to achieve a balance between the three branches. The relationship between and the responsibilities of the executive and legislature are overlapping. In this evolved constitutional setup, natural executive dominance is necessary for the executive to carry out its constitutional role and the UK’s constitution to operate efficiently. Natural dominance is a consequence of the working of the UK constitution.’

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UK Constitutional Law Association, 9th June 2020

Source: ukconstitutionallaw.org

Yuan Yi Zhu: The Supreme Court: Options for Change – UK Constitutional Law Association

Posted June 8th, 2020 in constitutional law, news, parliament, Privy Council, Supreme Court by sally

‘Since the Conservative government’s landslide victory in the 2019 general election, constitutional reform has been on top of its agenda. The most high-profile target of its attention has been the Supreme Court, whose performance came under sustained Conservative criticism during Brexit, most notably in Miller II/Cherry. Few details have so far been published about the Government’s constitutional reform plans, and it remains possible that these never reach fruition, especially in the face of concerted political opposition. Nevertheless, given the government’s considerable parliamentary majority and the high priority given to constitutional reform at the political level, it seems that the Supreme Court’s days might indeed be numbered. Hence, it is worth considering, without offering an opinion on the desirability of reforming the Supreme Court, some possible options for change.’

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UK Constitutional Law Association, 8th June 2020

Source: ukconstitutionallaw.org

Mike Gordon: Dominic Cummings and the Accountability of Special Advisers – UK Constitutional Law Association

‘It is far from new for the conduct of Dominic Cummings to be a matter of political controversy. The man who is Prime Minister Boris Johnson’s current chief adviser was the Campaign Director of Vote Leave during the 2016 Brexit referendum, an organisation which was subsequently investigated by the Electoral Commission and fined for breaking electoral spending limits. Cummings has been held in contempt of Parliament, for refusing to attend a session of the House of Commons Digital, Culture, Media and Sport Committee into ‘Disinformation and “Fake News”’, examining issues raised during the referendum campaign about data use and targeted political advertising. And he is widely believed to have been a key architect of the Prime Minister’s unlawful attempt to prorogue Parliament for five weeks in September 2019, in an undemocratic attempt to subvert an intransigent and hostile legislature at a key moment in the planned process of exiting the EU.’

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UK Constitutional Law Association, 3rd June 2020

Source: ukconstitutionallaw.org

Tim Cochrane: The Impact of the CLOUD Act Regime on the UK’s Death Penalty Assurances Policy – UK Constitutional Law Association

‘This post discusses the impact of the new CLOUD Act international data sharing regime on the UK’s death penalty assurances policy. This regime—named after its enabling US legislation, the Clarifying Lawful Overseas Use of Data Act—is due to come into force in July 2020 following the signing of a bilateral US–UK agreement in October 2019 (US-UK Agreement). It provides a quicker alternative for law enforcement seeking access to electronic data overseas, beyond the existing mutual legal assistance (MLA) process, which operates through MLA treaties (MLATs) and other mechanisms. However, while the CLOUD Act regime has an admirable aim, its implementation weakens the UK’s existing death penalty assurances policy and thus risks exposing the UK and others to significant liability, as discussed below.’

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UK Constitutional Law Association, 1st June 2020

Source: ukconstitutionallaw.org

Brian Christopher Jones: A single written UK constitution may only make things worse – UK Constitutional Law Association

‘Arguments for and against a single written (or “codified”) UK constitution often revolve around flexibility versus rigidity or transparency versus opacity. Recently, another common objection is that it would just be inconvenient, or impossible given the current levels of polarisation. These objections are reasonable and legitimate, but they are hardly the full extent of the story. In fact, much room exists for a more principled stance: that implementing a single written constitution may just be unwise, and ultimately lead to a number of democracy-hindering downsides.’

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UK Constitutional Law Association, 25th May 2020

Source: ukconstitutionallaw.org

Attorney general faces calls to resign after she defends Dominic Cummings – The Guardian

‘The attorney general, Suella Braverman, is facing calls to resign after she joined the chorus of Downing Street loyalists defending Dominic Cummings’s trip to Durham during lockdown.’

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The Guardian, 25th May 2020

Source: www.theguardian.com

Ronan Cormacain: Can I go to the park please Dad? Everyday lessons in legal certainty in the English Coronavirus Regulations – UK Constitutional Law Association

‘This post analyses the changes made on 13 May 2020 to the coronavirus social distancing regulations for England. The criterion for analysis is the basic Rule of Law requirement of legal certainty. Certainty allows us to plan our actions, lets the police know what it is they should be enforcing, and most importantly stops us from inadvertently breaking the law. The very limited case-study is the question posed in many households today – can I go to the park please Dad?’

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UK Constitutional Law Association, 15th May 2020

Source: ukconstitutionallaw.org

Tom Hickman: A very English lockdown relaxation – UK Constitutional Law Association

‘The changes were made in part by amendment to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350. A note about the unsatisfactory process by which the changes were brought about. The policy was announced by the Prime Minister on television on Sunday night. This was in contravention of the constitutional principle, embodied in the Ministerial Code 9.1 (page 23), that important policy announcements will be made first to Parliament. Draft amendment regulations were then not published until Tuesday afternoon and they came into effect the following day, without any Parliamentary approval. This was possible because the Government used the “emergency procedure” under s.45R of the Public Health (Control of Disease) Act 1984, on the basis that the Health Secretary was prepared to state his belief that, “by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament”. It is however impossible to understand what that urgency was. After all, the amendment regulations gave effect to a relaxation not a tightening of the lockdown: there is no urgent public health reason for such a step. There is no evident reason why proper procedure could not be complied with and Parliament had to be bypassed. Whilst no doubt many people have been itching to get to a garden centre for weeks, resorting to emergency procedures that delay (and in effect largely remove) Parliamentary scrutiny damages public trust in emergency powers precisely at a time when public trust in such powers is most needed. The episode aggravates and underscores the problem which I and others have previously identified, that the regulations require a bespoke statutory basis and that resorting to the Public Health Act as the legal basis for such regulations is an unsatisfactory and constitutionally suspect expedient.’

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UK Constitutional Law Association, 14th May 2020

Source: ukconstitutionallaw.org

Simon Halliday, Jed Meers, and Joe Tomlinson: Public Attitudes on Compliance with COVID-19 Lockdown Restrictions – UK Constitutional Law Association

‘In March 2020, the government introduced a set of restrictions to ‘lockdown’ the UK in response to the COVID-19 pandemic (The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020; The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020; The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020). These lockdown restrictions form the central plank of a wide range of government interventions, which to date include the 359-page Coronavirus Act 2020, 61 statutory instruments (emerging from 46 different parent acts), and an even greater amount of policy and guidance. The central purpose of the lockdown restrictions is to protect public health, by both containing the rate of infection and protecting NHS capacity to treat the influx of COVID-19 patients. There has been a lively legal debate about the restrictions—described as ‘almost certainly the most severe restrictions on liberty ever imposed.’ In addition to the legal debate, however, we also need a socio-legal analysis. An examination of how the public understand and experience the lockdown, and the significance of these perceptions for compliance, is essential to developing a clear picture of how the lockdown restrictions are working. Understanding the role of law in society, and not only in strict ‘legal’ terms, has rarely been so important.’

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UK Constitutional Law Association, 8th May 2020

Source: ukconstitutionallaw.org

Sean Molloy: Elgizouli v Secretary of State for the Home Department: The Missing Rationality Challenge – UK Constitutional Law Association

‘The long anticipated judgment in Elgizouli v Secretary of State for the Home Department was handed down by the Supreme Court on the 25th March. The 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 (DPA) that rendered the decision of the then Home Secretary- Sajid Javid- to hand over evidence to US authorities unlawful. While others have commented on the DPA aspect of this case (see here, here, and here), this post touches on the common law strand. However, rather than interrogating the Court’s decision, here I discuss the under-examined issue of rationality, arguing that the factual matrix of the case warranted a greater examination of the Home Secretary’s decision.’

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UK Constitutional Law Association, 6th May 2020

Source: ukconstitutionallaw.org

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

‘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.’

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Falcon Chambers, April 2020

Source: www.falcon-chambers.com

Nyasha Weinberg: Parliament must legislate on the government’s plans for contact tracing apps – UK Constitutional Law Association

‘ Today the Joint Committee on Human Rights will take evidence from the Information Commissioner, academics and the CEO of NHSX on the risks to the right to privacy (Article 8 ECHR) if a contact tracing app is introduced to track and slow the spread of the coronavirus. This is helpful scrutiny of the government’s plans. Yet if the government goes ahead with its proposed contact-tracing application it is essential that the processing of large amounts of personal data by the state, even if done in the public interest, needs a clear legal basis in the form of specific legislation.’

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UK Constitutional Law Association, 4th May 2020

Source: ukconstitutionallaw.org

Frederick Cowell: Lifting the Lockdown: The Human Rights Issues – UK Constitutional Law Association

‘The Coronavirus Act 2020, which was passed in less than three days by Parliament, does not contain the restrictions governing the lockdown in England. These are contained in the Health Protection (Coronavirus, Restrictions) (the Regulations) passed under the Public Health (Control of Diseases) Act 1984. Devolved governments have pursued similar strategies in this respect. As Professor Jeff King has argued on this blog, s.45 of the 1984 Act can be ‘construed literally to confer powers to impose the lockdown’ because it allows for restrictions on ‘persons, things or premises in the event’ of a threat to public health. Like all secondary legislation, following s.3 of the Human Rights Act 1998 this needs to be compatible with the European Convention on Human Rights (ECHR). Yet, as this post sets out, some difficult rights trade-offs and restrictions may come from lifting lockdown restrictions requiring us to revaluate what we consider as normal in terms of balancing rights and liberties.’

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UK Constitutional Law Association, 1st May 2020

Source: ukconstitutionallaw.org

Paul Bowen QC: Learning lessons the hard way – Article 2 duties to investigate the Government’s response to the Covid-19 pandemic – UK Constitutional Law Association

‘As we watch the Covid-19 pandemic unfold our attention is naturally on the steps that HM Government (“HMG”) is taking to mitigate the immediate crisis. The time is approaching, however, when it will be necessary to evaluate HMG’s preparation for, and response to, the pandemic. Calls are being made by the TUC and doctors’ groups for a public inquiry into one aspect of its response, namely failures to procure adequate personal protective equipment (“PPE”) for NHS staff, at least 100 of whom are believed to have died having contracted the virus while treating patients. HMG is accused of failing to respond to a national exercise in 2016 testing the UK’s resilience to a similar flu pandemic which highlighted an increased need for ventilators. Other criticisms go further. This blog argues that the state owes a duty under Article 2 of the European Convention on Human Rights to investigate some deaths caused by Covid-19. This duty will require not only inquests into individual deaths but also a public inquiry under the Inquiries Act 2005 to address those systemic issues not suitable for determination by an inquest. The post builds on and responds to posts by Conall Mallory, James Rowbottom and Elizabeth Stubbins Banes. It also foreshadows the need for reform in this area.’

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UK Constitutional Law Association, 29th April 2020

Source: ukconstitutionallaw.org

Conall Mallory: The Right to Life and Personal Protective Equipment – UK Constitutional Law Association

‘Military analogies have been deployed with vigour in the early weeks of the United Kingdom’s battle against COVID-19. Initially the government told the public to ‘keep calm and carry on’. When the lockdown came, the Prime Minister ‘enlisted’ us all to slow its spread. A ‘war cabinet’ was formed and those in the health and social care sectors, who would be most regularly exposed to the virus, were referred to as being on the ‘frontline’ of the battle.’

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UK Constitutional Law Association, 21st April 2020

Source: ukconstitutionallaw.org

Alexander Latham-Gambi: What is Parliament doing when it legislates? Legislative Intention and Parliamentary Sovereignty in Privacy International – UK Constitutional Law Association

‘In this post I argue, with reference to Privacy International, that the nature of legislation as a speech act entails that the tension between parliamentary sovereignty and the rule of law is not as profound as is often thought.’

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UK Constitutional Law Association, 20th April 2020

Source: ukconstitutionallaw.org

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

‘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.’

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UK Constitutional Law Association, 17th April 2020

Source: ukconstitutionallaw.org

Coronavirus and the Proceduralisation of Rights – Oxford Human Rights Hub

‘The House of Lords Constitution Committee recently published its recommendations in relation to the government’s fast-tracked Coronavirus Bill 2020. The House of Lords debates have welcomed the government’s decision not to derogate from the ECHR (in contrast to several other contracting parties). However, in seeking to ensure ECHR-compliance of the proposed scheme, the Committee placed significant emphasis on the availability of judicial review and administrative oversight of the powers contained therein to ensure their legality and constitutional acceptability. In this piece I suggest that, whilst these suggestions are no doubt welcome, the Committee’s focus on procedure rather than on the substantive requirements of human rights is indicative of wider concerning trends in human rights discourse.’

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Oxford Human Rights Hub, 9th April 2020

Source: ohrh.law.ox.ac.uk