Prince Philip’s will to remain secret for 90 years, high court rules – The Guardian

Posted September 17th, 2021 in constitutional law, news, privacy, royal family, wills by tracey

‘The Duke of Edinburgh’s will is to remain secret to protect the “dignity” of the Queen because of her constitutional role, the high court has ruled. Philip – the nation’s longest-serving consort – died aged 99 on 9 April, just two months before he would have turned 100.’

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The Guardian, 17th September 2021

Source: www.theguardian.com

Vernon Bogdanor: Reply to McHarg and Young – UK Constitutional Law Association

Posted September 15th, 2021 in brexit, constitutional law, devolution, human rights, London, news, parliament by tracey

‘Aileen McHarg and Alison Young believe that the new British constitution, which I wrote about in my book of that name published in 2009 is less securely based than I suggested. The pillars of that new constitution were, I argued, the Human Rights Act, the devolution settlement, the referendum, and the new arrangements for the government of London which provided for Britain’s first directly elected mayor.’

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UK Constitutional Law Association, 14th September 2021

Source: ukconstitutionallaw.org

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

‘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.’

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UK Constitutional Law Association, 8th September 2021

Source: ukconstitutionallaw.org

Tom Hickman QC: Quashing Orders and the Judicial Review and Courts Act – UK Constitutional Law Association

‘Despite commissioning a wide-ranging review of administrative law, the Judicial Review and Courts Bill 2021, unveiled this week, does not include restrictions on judicial review that many had feared. Indeed, it says relatively little about judicial review.’

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UK Constitutional Law Association, 26th July 2021

Source: ukconstitutionallaw.org

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

‘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.’

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London Review of Books, 1st July 2021

Source: www.lrb.co.uk

2005 Constitutional Reform Act up for review – Law Society’s Gazette

‘The government intends to revisit the role of lord chancellor as part of a ‘careful review’ of the Blair administration’s 2005 Constitutional Reform Act, current incumbent Robert Buckland QC MP has revealed.’

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Law Society's Gazette, 14th June 2021

Source: www.lawgazette.co.uk

Lewis Graham: Suspended and prospective quashing orders: the current picture – UK Constitutional Law Association

Posted June 11th, 2021 in constitutional law, government departments, judicial review, news by tracey

‘The government is currently pursuing reform of judicial review remedies. Out of the many possibilities canvassed over the last year or so, two proposals in particular have emerged as likely contenders for legislative action: suspended quashing orders and prospective quashing orders. In this post, I examine these proposals, alongside the court’s existing powers in relation to issuing quashing orders, in order to discern what the real impact of any legislative intervention would be.’

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UK Constitutional Law Association, 7th June 2021

Source: ukconstitutionallaw.org

Paolo Sandro: Do You Really Mean It? Ouster Clauses, Judicial Review Reform, and the UK Constitutionalism Paradox – UK Constitutional Law Association

‘The Conservative government’s response to the IRAL report has raised plenty of alarm bells from UK constitutional scholars. The widespread observation that the government’s judicial review reform plans appear to go well beyond what the Independent Panel recommended points to a more fundamental problem: that the government seems to proceed from a very partial understanding (at best) of the UK “constitution”.’

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UK Constitutional Law Association, 1st June 2021

Source: ukconstitutionallaw.org

Mark K Heatley: The Implications of the Hertfordshire County Council Case for Local Democracy – UK Constitutional Law Association

‘The High Court recently delivered its judgment in the case of Hertfordshire County Council v Secretary of State for Housing, Communities and Local Government, finding that remote meetings of local councils could not continue after 7 May 2021. This article looks at the decision and considers its impact for future local democracy.’

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UK Constitutional Law Association, 2nd June 2021

Source: ukconstitutionallaw.org

Finnian Clarke: Be careful what you wish for: The government’s judicial review consultation on public law nullity – UK Constitutional Law Association

‘In its “Judicial Review Reform: the Government Response to the Independent Review of Administrative Law” consultation document, the government puts forward a number of suggestions for reform of the concept of “nullity” within UK public law. They suggest among other things that only jurisdictional errors should be deemed void ab initio, and/or that courts ought to have a presumption against a finding of nullity. Though the recent Queen’s speech included a Judicial Review Bill, it made no mention of these specific proposals, suggesting that the government may be minded to shelve these ideas for now. In this post I’ll argue that the government would be well-advised to leave nullity alone.’

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UK Constitutional Law Association, 24th May 2021

Source: ukconstitutionallaw.org

Max Taylor: The Dissolution and Calling of Parliament Bill: Missed Opportunities – UK Constitutional Law Association

Posted May 19th, 2021 in bills, constitutional law, news, parliament, prorogation by sally

‘The newly introduced Dissolution and Calling of Parliament Bill (“the Bill”) – like the Draft Fixed-term Parliaments Act (Repeal) Bill which preceded it – is a missed opportunity. It has failed to unify and define the scope and exercise of the powers of proroguing and dissolving Parliament, in one statute, which were in need of clarification post-Miller II. Now that the Government has decided on the form which it would like the Bill repealing the Fixed-term Parliaments Act to take, the moment has gone and, as a niche of constitutional law, it is unlikely to garner enough political capital for these issues to be deemed worth addressing for the meantime.’

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UK Constitutional Law Association, 18th May 2021

Source: ukconstitutionallaw.org

Gareth Evans: The Senedd Election and the Constitutional Prospects for Welsh Devolution – UK Constitutional Law Association

‘On 6 May 2021, the people of Wales went to the polls in the sixth Senedd election. More so than in previous Senedd elections, the focus of the debate centred around a catalogue of distinctly Welsh political issues, including the constitutional future of the Welsh devolution settlement. Among the constitutional possibilities offered to voters at the election were proposals for both the abolition of the Senedd and Welsh independence, together with the more muted options of maintaining the constitutional status quo, or seeking the devolution of additional powers in areas such as justice and policing, transport and broadcasting.’

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UK Constitutional Law Association, 13th May 2021

Source: ukconstitutionallaw.org

Mikołaj Barczentewicz: Should Cart Judicial Reviews be Abolished? Empirically Based Response – UK Constitutional Law Association

‘The Government adopted a recommendation of the Independent Review of Administrative Law that Cart judicial reviews should be abolished. The reasons given by the Review for that recommendation have been criticised on this blog by Joe Tomlinson & Alison Pickup and by Joanna Bell. The Review (and the Government) claimed that there is only a 0.22% rate of success in Cart judicial reviews (“Cart JRs”), which makes the expenditure of judicial resources on dealing with Cart claims disproportionate. Tomlinson & Pickup and Bell noted that this figure is almost certainly incorrect, but they were not able to say what the true rate of success is due to the unavailability of necessary data. To address that, I conducted an unprecedented empirical study concluding that the success rate of Cart reviews is at least over ten times higher than the Review’s calculation. Here, I briefly summarize the results of my study and argue that in the light of that evidence the Government should propose to put the Cart procedure on a statutory footing, but not abolish it.’

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UK Constitutional Law Association, 5th May 2021

Source: ukconstitutionallaw.org

Ep 143: Henry VIII Powers undermining parliamentary supremacy – Law Pod UK

‘In this episode, Rosalind English discusses with Sarabjit Singh and Isabel McArdle of 1 Crown Office Row a number of laws containing “Henry VIII” powers which allow ministers to avoid full parliamentary debate.’

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Law Pod UK, 4th May 2021

Source: audioboom.com

Nicholas Reed Langen: Confronting Climate Change in the Courts – UK Constitutional Law Association

‘Talk is cheap. Governments, particularly wealthy, western ones, have been quick to make promises on climate change. They swear blind that they understand the threat the world faces, and that they will implement a policy response commensurate with it. Few nations have adopted this rhetoric as determinedly as the UK, with the British government promising to transform the UK into a net-zero country by 2050, an oath enshrined in law through the passing of the Climate Change Act 2008 (Order 2019) by Parliament in the summer of 2019.’

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UK Constitutional Law Association, 27th April 2021

Source: ukconstitutionallaw.org

Tim Sayer: Preserving Judicial Oversight: An Appeal to Self-Interest – UK Constitutional Law Association

‘Boris Johnson’s government takes the view that ours is a time of judicial overreach, necessitating redress in terms of the balance of judicial and executive power. This seems to have been driven by a number of high-profile cases, certain vocal thinktanks which appear to have the ear of government, and a wider constitutional prospectus of enhancing executive power to the detriment of the other branches of state. An endless series of projects and proposals have emerged, designed to remedy the perception of an overmighty judiciary. The Independent Review of Administrative Law, established with a view to curbing the perceived excesses of judicial review, reported recently in relatively tame terms, only to be swiftly followed by a further set of proposals. The Independent Human Rights Act Review potentially paves the way for satiation of long-held Conservative fantasies of amending the Human Rights Act. There are also, if leaks are to be believed, proposals to reform the UK Supreme Court.’

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UK Constitutional Law Association, 21st April 2021

Source: ukconstitutionallaw.org

Parliament’s power needs to be restored after its ‘shocking’ marginalisation by government – UCL Constitution Unit

‘The Constitution Unit has jointly written a briefing to all MPs – summarised in a letter in the Times published on 21 April 2021 – with the Hansard Society, Public Law Project and Bingham Centre for the Rule of Law warning that parliamentary accountability and control over decisions have diminished to a degree that would have been unthinkable before COVID-19. Individual MPs have also been shut out of participation, and the vast majority of Commons votes are now held by party whips.’

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UCL Constitution Unit, 21st April 2021

Source: www.ucl.ac.uk

‘No meaningful parliamentary debate or scrutiny’ of Covid laws, says former government legal chief – The Independent

‘The British government’s former top lawyer has called for urgent changes to the way coronavirus laws are made after a year without any “meaningful parliamentary debate or scrutiny”.’

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The Independent, 20th April 2021

Source: www.independent.co.uk

Covid-19 and the courts – The House of Lords Constitution Committee’s report – Transparency Project

Posted April 14th, 2021 in constitutional law, coronavirus, courts, inquiries, news, select committees by sally

‘In a report published at the end of last month the House of Lords Constitution Committee made a number of criticisms of the way the courts have responded to the coronavirus pandemic and the suspension of live hearings necessitated by the lockdown, and made various recommendations as to the need for more resources to reduce the backlog of cases and create a better justice system for the future.’

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Transparency Project, 11th April 2021

Source: www.transparencyproject.org.uk

Joe Tomlinson and Alison Pickup: Putting the Cart before the horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews – UK Constitutional Law Association

‘The Independent Review of Administrative Law has now reported. For a review process that was unnecessarily quick, the Expert Panel, led by Lord Faulks QC, has produced a substantial and detailed analysis. The Report has rightly drawn broad support from across the political spectrum—even if the Government’s support for the report has been accompanied by a new consultation which departs from the Report’s findings on various important points. No doubt, the focus will now shift to the new consultation. However, in this post we want to respectfully take issue with one of the firm conclusions of the Panel: that Cart judicial reviews ought to be discontinued on the basis they are a disproportionate use of judicial resource.’

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UK Constitutional Law Association, 29th March 2021

Source: ukconstitutionallaw.org