Treaty scrutiny -A brave new frontier for Parliament – UK Constitutional Law Association

Posted March 18th, 2020 in brexit, constitutional law, news, parliament, royal prerogative, treaties by sally

‘On Tuesday 17 March, the House of Lords endorsed a report by the Procedure Committee which has the effect of establishing a new Committee tasked with scrutinising international agreements, or treaties, that are negotiated and signed by the UK in 2020.’

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UK Constitutional Law Association, 18th March 2020

Source: ukconstitutionallaw.org

Against Consistency as a Ground of Review – UK Constitutional Law Association

Posted March 9th, 2020 in constitutional law, equality, judicial review, news by tracey

‘Equal treatment, the principle that like cases should be treated alike, occupies a paradoxically ambivalent place within moral and legal discussion of equality. In one sense, it is an essential feature of justice that similarly situated persons be afforded similar treatment and that differences in treatment be adequately justified. This principle is informed by and presupposes the moral equality of persons, without which the demand for justification of departures from consistent treatment would be unintelligible. However, in another sense, equalisation of treatment, purely for the sake of equalisation, gives rise to the now well established “levelling-down” objection: a requirement of equalisation can be satisfied either by treating people equally badly or by replicating wrongful forms of treatment, even when we are aware that the treatment in question is wrongful. The levelling-down objection indicates that equalisation for its own sake is unlikely to be intrinsically valuable, even if there may be some instrumental reasons to do so.’

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UK Constitutional Law Association, 9th March 2020

Source: ukconstitutionallaw.org

Hanna Wilberg: A Duty of Consistency? The Missing Distinction Between Its Two Forms – UK Constitutional Law Association

Posted February 28th, 2020 in appeals, constitutional law, news, Supreme Court by tracey

‘In R (Gallaher Group Ltd) v Competition and Markets Authority the Supreme Court ruled that UK domestic law “does not recognise equal treatment as a distinct principle of administrative law. Consistency … is a “generally desirable” objective, but not an absolute rule.” (para 24). It took the view that issues of consistency generally arise as aspects of the irrationality ground (paras 26, 50). This ruling has been seen as putting in doubt the previously established duty to decide consistently with relevant policy guidelines. In this post, I will show that the scope of the ruling does not extend this far.’

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UK Constitutional Law Association, 27th February 2020

Source: ukconstitutionallaw.org

Brian Christopher Jones: The Widely Ignored and Underdeveloped Problem with Judicial Power – UK Constitutional Law Association

Posted February 26th, 2020 in constitutional law, judges, judiciary, news, professional conduct by sally

‘As judicial power around the world increased immensely throughout the 20th and early 21st century—to the point where judges can invalidate legitimately passed constitutional amendments, strike down signature pieces of legislation, vote to dissolve successful political parties, and exercise a host of other significant powers—the idea of holding judges to account has become more relevant than ever. And while the general rule regarding holding public power is that the more you have of it, the more you should be held to account for it, worldwide we’ve seen that this mantra doesn’t apply to the judiciary in a straightforward manner, given its possible impact on judicial independence. However, the way this balance of power developed is also deeply ironic. For a branch that makes such a large claim of holding the powerful to account, judiciaries remain firmly (and hypocritically) against holding themselves to account.’

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UK Constitutional Law Association, 25th February 2020

Source: ukconstitutionallaw.org

The final constitutional steps to withdrawal – Brexit Law

Posted February 6th, 2020 in brexit, constitutional law, news, treaties by sally

‘At 11 pm GMT on 31 January 2020, the UK left the EU. But what final steps had to be taken for this to happen lawfully?’

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Brexit Law, 6th February 2020

Source: brexit.law

Craig Prescott: Harry and Meghan, Regency, Counsellors of State and a “Slimmed Down” Royal Family – UK Constitutional Law Association

Posted January 21st, 2020 in constitutional law, Crown, news, Privy Council, royal family by sally

‘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’.’

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UK Constitutional Law Association, 21st January 2020

Source: ukconstitutionallaw.org

Jack Simson Caird: The European Union (Withdrawal Agreement) Bill and the Rule of Law – UK Constitutional Law Association

Posted January 20th, 2020 in bills, brexit, constitutional law, courts, EC law, news, parliament, rule of law by sally

‘The general election on 12 December 2019 has fundamentally changed the political dynamic driving the Brexit process. The European Union (Withdrawal Agreement) Bill (WAB), which will become law before 31 January 2020, has been substantially revised (from the version which was presented in October 2019) to reflect this Government’s approach to Brexit. The Bingham Centre for the Rule of Law has published a report that looks in depth at some of the main Rule of Law issues in the WAB. This version of the WAB indicates that this Government will take a different approach from the previous one in terms of dealing with some of the key constitutional issues arising from Brexit. This post examines some of the Rule of Law implications of the main constitutional issues in the WAB.’

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UK Constitutional Law Association, 16th January 2020

Source: ukconstitutionallaw.org

10 cases that defined 2019 – UK Human Rights Blog

‘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?’

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UK Human Rights Blog, 19th December 2019

Source: ukhumanrightsblog.com

Lady Hale warns UK not to select judges on basis of political views – The Guardian

‘The government should not select judges on the basis of their political views as they do in the US, the outgoing president of the supreme court, Lady Hale, has warned.’

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The Guardian, 18th December 2019

Source: www.theguardian.com

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

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

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UK Constitutional Law Association, 3rd December 2019

Source: ukconstitutionallaw.org

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

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

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The Guardian, 29th November 2019

Source: www.theguardian.com

Miller 2, the Supreme Court and the politics of constitutional interpretation – Counsel

Posted November 20th, 2019 in brexit, constitutional law, news, parliament, prorogation, Supreme Court by sally

‘In the aftermath of the Miller 2/Cherry judgment, delivered on 24 September 2019, the Supreme Court has come under attack for making a ‘political’ intervention. This had led to some calls for political supervision of judicial appointments on the basis that the Supreme Court is now a ‘political player’. In reality these arguments do not seem to have gained much traction but these criticisms, nevertheless, raise some important questions about the boundaries between law and politics in the UK.’

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Counsel, November 2019

Source: www.counselmagazine.co.uk

Ten years on: how has the Supreme Court fared? – Counsel

‘An assessment of the court’s performance in decision-making delivered over its first ten years; and what bearing, if any, the Article 50 and Prorogation cases have on the big picture.’

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Counsel, November 2019

Source: www.counselmagazine.co.uk

Anthony Arnull: The European Union (Withdrawal Agreement) Bill – UK Constitutional Law Association

Posted November 4th, 2019 in bills, brexit, constitutional law, news by sally

‘The European Union (Withdrawal Agreement) Bill is intended to give effect in the UK to the Withdrawal Agreement (WA) agreed by the UK with the EU-27 on 1 October 2019. The Bill received its second reading on 22 October 2019 and is currently in ‘limbo’ pending the start of the committee stage. If and when it is adopted, the Bill will make significant amendments to (inter alia) the European Union (Withdrawal) Act 2018 (EUWA).’

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UK Constitutional Law Association, 4th November 2019

Source: ukconstitutionallaw.org

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

‘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.’

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UK Constitutional Law Association, 29th October 2019

Source: ukconstitutionallaw.org

How Brexit may have changed Parliament forever – OUP Blog

Posted October 30th, 2019 in brexit, constitutional law, news, parliament by sally

‘During 2019, the Brexit process has radically changed the dynamics between the prime minister and the House of Commons. Normally the United Kingdom’s government, led by the prime minister and her Cabinet, provides leadership, and drives and implements policy while Parliament exercises control over the government by scrutinising its actions and holding it to account. This is a carefully balanced relationship, although a government with a strong majority can dominate decision making in the House of Commons.’

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OUP Blog, 30th October 2019

Source: blog.oup.com

What’s (or what’s not) in the Johnson draft Withdrawal Agreement Bill? – Monckton Chambers

Posted October 29th, 2019 in bills, brexit, constitutional law, EC law, news, parliament by sally

‘The European Union (Withdrawal Agreement) Bill (“WAB”) is (to put it mildly) a web of complexity.’

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Monckton Chambers, 25th October 2019

Source: www.monckton.com

Tanzil Chowdhury: Miller (No 2), the Principle-isation of Ministerial Accountability and Military Deployments – UK Constitutional Law Association

‘Has the court in Miller (No 2) done the very thing it said it wouldn’t do in Miller (No 1)? Has it given legal enforceability to the constitutional convention of ministerial accountability? Several authors appear to suggest that is has (here, here and here). Indeed, conventions were given rather peculiar judicial treatment in Miller (No 1) not least when placed against Miller (No 2), but also due to the general unenforceability of ‘statutory conventions’ (more here). But back to the apparent elevation of the convention of ministerial accountability (CoMA) to a constitutional principle – or what I refer to as the principle-isation of the convention.’

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UK Constitutional Law Association, 24th October 2019

Source: ukconstitutionallaw.org

Court asked to consider if PM’s Brexit delay tactic is lawful – BBC News

Posted October 21st, 2019 in appeals, brexit, constitutional law, delay, news, parliament, Scotland by sally

‘Scotland’s highest court is to consider whether Prime Minister Boris Johnson has fully complied with a law requiring him to ask for a Brexit delay.’

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BBC News, 21st October 2019

Source: www.bbc.co.uk

Anurag Deb: Identity: Northern Ireland’s Gordian Knot – UK Constitutional Law Association

‘ On 14 October 2019, the Upper Tribunal (UT) handed down judgment in SSHD v De Souza, immediately dividing commentators both in and outside Northern Ireland. Briefly, the UT had heard the Home Secretary’s appeal against the First-tier Tribunal (FTT) decision which had declared that the American claimant (respondent in the UT) was entitled to apply to reside in Northern Ireland under the EU Citizen’s Directive because his wife was permitted to self-identify as an Irish national in accordance with the provisions of the Good Friday Agreement (GFA). British nationality, the FTT declared, could not be “imposed” on her at birth, flying in the face of the British Nationality Act 1981 (BNA), section 1 of which, it was argued, does precisely that. The UT allowed the appeal and overturned the FTT judgment, revealing a tension which goes far beyond immigration law.’

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UK Constitutional Law Association, 17th October 2019

Source: ukconstitutionallaw.org