Kenneth Armstrong: Can the UK Breach the Withdrawal Agreement and Get Away With It? – the United Kingdom Internal Market Bill – UK Constitutional Law Association

‘Can the UK Breach the Withdrawal Agreement and Get Away With It? – the United Kingdom Internal Market Bill.’

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UK Constitutional Law Association, 9th September 2020

Source: ukconstitutionallaw.org

Rodney Brazier: Why is Her Majesty’s Government so big? – UK Constitutional Law Association

Posted September 7th, 2020 in constitutional law, government departments, news by sally

‘Before they entered government, both Dominic Cummings and Dominic Raab called for massive cuts in the size of the British Government. Raab suggested in 2013 that half of all government departments should be scrapped in order to save money; Cummings argued the following year that the Cabinet should consist of only six or seven people. I agree with them – at least to the extent that consideration is long overdue of whether there are too many government departments and too many Ministers.’

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UK Constitutional Law Association, 7th September 2020

Source: ukconstitutionallaw.org

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

‘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.’

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The Guardian, 22nd August 2020

Source: www.theguardian.com

Stevie Martin: Bullying, threatening and animus: what remains of the rule against apparent bias following the Supreme Court’s judgment in Serafin? – UK Constitutional Law Association

‘At the heart of the Supreme Court judgment in Serafin v Malkiewicz was the question of whether the Court of Appeal was correct in finding that the defamation proceedings before Justice Jay had been unfair (though the Court’s reasons with respect to the public interest defence under s 4 of the Defamation Act 2013 are also profoundly significant).’

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UK Constitutional Law Association, 22nd July 2020

Source: ukconstitutionallaw.org

Ronan Cormacain: “Social Distancing” of Emergency Legislation during the Covid-19 Pandemic – UK Constitutional Law Association

Posted July 10th, 2020 in constitutional law, coronavirus, emergency powers, news by sally

‘Ordinary legislation is different in its content and method of enactment from emergency legislation. But the risk is that the longer the Covid-19 pandemic continues, the less distinct these two types of law become, and that emergency legislation becomes the new normal. The structural solution proposed to this problem is “social distancing” of emergency legislation – that emergency laws are kept separate and distinct from ordinary laws. The more we conceive of them as abnormal, the more we maintain a gap between them and our ordinary laws, the easier it will be to dump emergency laws when the pandemic is over, and the less chance they will be used for illegitimate purposes.’

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UK Constitutional Law Association, 10th July 2020

Source: ukconstitutionallaw.org

Paul Daly: The Culture of Justification in Administrative Law – UK Constitutional Law Association

Posted July 6th, 2020 in constitutional law, judicial review, news by sally

‘By any measure the breadth and depth of substantive judicial review of administrative action have increased remarkably in recent decades. It is interesting to ask why this has happened. In a typically interesting and trenchant contribution, my friend Jason Varuhas attributes recent changes to judicial review procedure to a substantive turn to rights review and systemic review.’

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UK Constitutional Law Association, 6th July 2020

Source: ukconstitutionallaw.org

Samuel Ley: Consistency and Conceptual Confusion – UK Constitutional Law Association

Posted July 3rd, 2020 in constitutional law, judicial review, news, Supreme Court by sally

‘This post seeks to explain and clarify the status of “consistent/equal treatment” in UK judicial review. The status of consistency in judicial review was recently considered by the UK Supreme Court in Gallaher, but the meaning of ‘consistency’ was not clearly explained. The main aim of this post is therefore one of clarification. This author hopes to put consistency on a sure conceptual footing which has otherwise been lacking in the discourse on consistency.’

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UK Constitutional Law Association, 3rd July 2020

Source: ukconstitutionallaw.org

Simon Halliday, Jed Meers, and Joe Tomlinson: Public Attitudes on Compliance with COVID-19 Lockdown Restrictions (Part 2) – 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 central purpose of which is to protect public health by both containing the rate of infection and protecting the NHS’ capacity to treat a potential influx of COVID-19 patients. As part of our ongoing research on Law and Compliance during COVID-19, we have now undertaken two public opinion surveys to better understand public attitudes to the lockdown. We want to understand more about how people understand the rules, if they see themselves as compliant, what drives compliance, and how the rules relate to ordinary perceptions of rights.’

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UK Constitutional Law Association, 25th June 2020

Source: ukconstitutionallaw.org

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