Removing UK climate protesters’ defence ‘could erode right to trial by jury’ – The Guardian

‘A UK government attempt to remove one of the last remaining defences for climate protesters would be a slippery slope to the erosion of the constitutional right to trial by jury, the court of appeal was told on Wednesday.’

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The Guardian, 21st February 2024

Source: www.theguardian.com

Raffael N. Fasel: Ouster Clauses and the Silent Constitutional Crisis – UK Constitutional Law Association

Posted February 20th, 2024 in constitutional law, judicial review, judiciary, news, parliament, Supreme Court by tracey

‘In a recent comment on the Government’s Rwanda Bill and on speculations about an unprecedented strike down by the Supreme Court, Professor Mark Elliott asked a question that has been on many UK public lawyers’ minds lately: “Are we headed for a constitutional crisis?” This question, to be sure, is not new. However, with a Government and Parliament increasingly willing to act with disregard for cardinal constitutional principles such as the rule of law and with certain judges’ growing outspokenness about their intention to resist further attacks on the country’s constitutional fundamentals, determining whether we are indeed in a constitutional crisis has gained great urgency. For if we are already in a crisis, then it may be necessary to take action to prevent the situation from spiralling out of control.’

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UK Constitutional Law Association, 20th February 2024

Source: ukconstitutionallaw.org

Brian Christopher Jones: Nigel Farage and the UK Constitution – UK Constitutional Law Association

Posted February 5th, 2024 in brexit, constitutional law, news by sally

‘The upheaval of the UK constitution from 2016 onwards has been associated with a host of individuals, from David Cameron to Boris Johnson to Dominic Cummings, who have received the significant bulk of academic attention in recent years. And yet, another individual has had a substantial impact upon the UK constitution during this time: Nigel Farage. But his impact has not been as direct as other constitutional actors, and has often been scorned, sidelined, or generally undocumented. I can find only passing mentions of Farage on this blog, in addition to other major blogs on the UK constitution. Most of the articles mentioning him do so fleetingly, casting him in a negative light in relation to populism and his influence on Brexit (although some take a slightly more nuanced look). And yet, controversial though he is, Mr Farage deserves more attention. Although it may be easy to discount Farage as a fringe politician that has never held domestic political office, some of the issues and challenges his involvement in politics has brought forward go to the heart of the UK’s constitutional system.’

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UK Constitutional Law Association, February 2024

Source: ukconstitutionallaw.org

Aradhya Sethia: Constitutional Accountability, Intra-party Processes, and Tortoise Media – UK Constitutional Law Association

Posted January 31st, 2024 in constitutional law, news, parliament, political parties by tracey

‘It is difficult to provide a satisfying account of constitutional accountability in the UK without considering the internal processes of major political parties (especially the governing party and the largest opposition party). Yet, intra-party processes often do not receive the attention of constitutional scholars. Therefore, in this blog, I will discuss the constitutional importance and the legal treatment of intra-party processes. I will start with the constitutional significance of certain intra-party processes. Subsequently, I will discuss the consequences of the existing private law status of parties. I will then comment on the amenability of intra-party processes to judicial review in light of a recent judgment delivered by Fordham J in R (Tortoise Media) v Conservative Party [2023] EWHC 3088 (Admin) (“Tortoise Media”). The blog concludes with a caution against a blanket rejection of judicial review of intra-party processes.’

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UK Constitutional Law Association, 31st January 2024

Source: ukconstitutionallaw.org

Jeff King: The House of Lords, Constitutional Propriety, and the Safety of Rwanda Bill – UK Constitutional Law Association

‘The Safety of Rwanda (Asylum and Immigration) Bill will receive its second reading in the House of Lords on 29 January 2024, having cleared the House of Commons unamended. There are a great many problems with the Rwanda Bill, any of which might weigh with the Lords, but this blog post focuses on just one: the likelihood that, if enacted, the Bill may well trigger a constitutional crisis between the courts and Parliament. It would be a crisis that is likely to endure beyond the life of the policy embodied in the Bill. I argue here that one of the roles of the House of Lords is to act as a constitutional safeguard, a steam-valve, and, in exercise of this function under the rare circumstances that attend this Bill, it would be legitimate for the Lords to not only make and insist upon far-reaching changes to the Bill, but even to refuse to pass it altogether. This post is not concerned with the realpolitik of whether peers would in fact vote the Bill down – though I come to the point in the conclusion. It rather seeks to refute the constitutional argument that it would be illegitimate to block or make potent amendments to it.’

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UK Constitutional Law Association, 26th January 2024

Source: ukconstitutionallaw.org

Robert Craig: The constitutional implications of legislating to exonerate the Post Office sub-postmasters – UK Constitutional Law Association

‘Some commentators have claimed that the decision to expedite the process of formally exonerating the sub-postmasters potentially runs afoul of certain core constitutional principles, in particular the separation of powers. It has also been claimed that the “crown does not have a prerogative of justice but only a prerogative of mercy”. This blog considers and challenges those claims.’

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UK Constitutional Law Association, 16th January 2024

Source: ukconstitutionallaw.org

Sanjit Nagi: The Stranglehold of New Labour and Lord Irvine’s Rights-based Constitution – UK Constitutional Law Association

‘Last year’s Supreme Court decision in R (AAA) v Home Secretary – which found the British government’s Rwanda policy to be unlawful – has reignited broader debates about the position of a government which commands a majority in Parliament vis a vis the judiciary, the separation of powers, the extent to which legislating against judicial decisions is constitutionally proper or compatible with the rule of law, and the appropriateness of disapplying sections of the Human Rights Act 1998 (HRA 1998). This post does not restate or reengage with such topics; substantive attention has already been given by Tom Hickman KC, Professor Mark Elliott, Adam Tucker, Professor Sarah Singer, and Richard Ekins KC et al. Neither does it take a position on the feasibility or desirability of any specific government policy, the continued operation of HRA 1998, or membership of the European Convention on Human Rights (ECHR).

Instead, this post will argue that the backlash to and disapproval of the British government’s response to R (AAA) – the introduction of the Safety of Rwanda Bill, which, amongst other measures, allows Parliament to diverge from the Supreme Court’s judgment – neatly evidences the intended effect of New Labour and Lord Derry Irvine’s HRA 1998 system and judicial reforms.’

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UK Constitutional Law Association, 15th January 2024

Source: ukconstitutionallaw.org

‘Dangerous path to go down’: four legal experts on the Post Office exoneration bill – The Guardian

‘The government’s decision to pass a law overturning the convictions of post office operators has left many lawyers and judges uneasy.’

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The Guardian, 11th January 2024

Source: www.theguardian.com

Cassandra Somers-Joce: Public Inquiries, the Public Record, and Governmental Accountability – UK Constitutional Law Association

Posted December 20th, 2023 in constitutional law, disclosure, government departments, inquiries, news by sally

‘“Public inquiries are one of Britain’s only growth industries,” the Financial Times has suggested recently. Research from the Institute for Government demonstrates that there were 69 public inquiries launched between 1990 and 2017, compared with 19 in the previous 30 years. Several high-profile public inquiries are open at time of writing, including the Grenfell Inquiry, the Covid-19 Inquiry, and the Post Office Horizon Inquiry. The near-constant media coverage of the Covid-19 Inquiry, chaired by Baroness Heather Hallett, serves as a reminder of the role that public inquiries play in ensuring accountability and scrutiny. Each week of the Covid-19 Inquiry has painted a fuller picture of governmental decision making during the pandemic. The Covid-19 Inquiry has, however, demonstrated the shortcomings in governmental record-keeping and disclosure, particularly with respect to decisions which were taken via private communications platforms such as WhatsApp.’

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UK Constitutional Law Association, 20th December 2023

Source: ukconstitutionallaw.org

Sammy Talalay: The Lord Chancellor, the independence of the judiciary and the rule of law – UK Constitutional Law Association

‘At the beginning of the year, this blog covered the report from the House of Lords Constitution Committee into the Lord Chancellor and the Law Officers, with Conor Casey’s post focusing in particular on the latter. This post aims to ensure that 2023 is bookended by consideration of the issues addressed in the committee’s report – and in the subsequent Lords debate on that report in July – by providing a closer look at the role of the Lord Chancellor.’

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UK Constitutional Law Association, 19th December 2023

Source: ukconstitutionallaw.org

Lewis Graham: On Ouster Clauses (Again) – UK Constitutional Law Association

Posted November 27th, 2023 in constitutional law, Crown Court, indictments, judicial review, news, sentencing by tracey

‘When we think of the most important ouster clauses in the law of judicial review, we might think of the relevant parts of the Foreign Compensation Order considered in Anisminic, or section 67(8) the Regulation of Investigatory Powers Act, crucial to the decision in Privacy International. We might consider section 2 of the Judicial Review and Courts Act, restricting Cart-type reviews. Or we might look to provisions in the recently-passed Illegal Immigration Act and forthcoming Victims and Prisoners Bill, which purport to shield the respective legislation from certain kinds of review under the Human Rights Act.’

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UK Constitutional Law Association, 23rd November 2023

Source: ukconstitutionallaw.org

Robert Blackburn: The Formal Powers of the Royal Head of State: Terminology, Concepts, and Practice – UK Constitutional Law Association

Posted November 23rd, 2023 in constitutional law, Crown, news, royal family, royal prerogative by sally

‘This post argues that the terminology of “reserve powers” and “personal prerogatives” are inaccurate and misleading descriptions of the royal powers of prime ministerial appointment, the dissolution of Parliament, and royal assent. They should be described in our constitutional writing as the “formal” or “ceremonial” powers of the royal Head of State. They are distinguishable as being “direct” prerogatives of the Monarch, separate from other Crown prerogatives that are exercised “indirectly”, in the name of the Crown, by ministers.’

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UK Constitutional Law Association, 23rd November 2023

Source: ukconstitutionallaw.org

Theodore Konstadinides: Reassessing the UK’s Rwanda Asylum Policy: Tinkering with International Law and the Constitution – UK Constitutional Law Association

‘On 15 November, the Supreme Court issued its much-awaited judgment in the case of AAA and others v the Home Secretary, commonly referred to as the Rwanda asylum policy case. The decision came notably quickly, almost a month after the case was heard, indicating the Court’s responsiveness to the urgency and the wider public interest surrounding the case. Despite the swift turnaround, the judgment was meticulously formulated, reflecting the serious implications of the case.’

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UK Constitutional Law Association, 21st November 2023

Source: ukconstitutionallaw.org

Adam Tucker: The Rwanda Policy, Legal Fiction(s), and Parliament’s Legislative Authority – UK Constitutional Law Association

‘Last week the Supreme Court (in R (AAA) v Home Secretary) found the UK government’s policy to send asylum applicants to Rwanda unlawful on the grounds that “removal … to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement” [149]. In response, the Prime Minister announced that the government intends to “take the extraordinary step of introducing emergency legislation” which “will enable Parliament to confirm that… Rwanda is safe”.’

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UK Constitutional Law Association, 22nd November 2023

Source: ukconstitutionallaw.org

Philip Murray: Ouster Clause Redux: The Court of Appeal’s Decision in LA (Albania) – UK Constitutional Law Association

Posted November 21st, 2023 in constitutional law, judicial review, legislative drafting, news, parliament by sally

‘In the summer I wrote on this blog about the Administrative Court’s decision in R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin). Oceana was the first time the new ‘super ouster clause’ contained in section 11A of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’), introduced by section 2 of the Judicial Review and Courts Act 2022, fell for judicial consideration, and it was informative to observe how judges responded to the clause in judicial review. But while Oceana raised an important point of constitutional law, namely, Parliament’s ability to exclude judicial review with sufficiently express statutory language, the underlying case in Oceana was a weak one. It was little surprise, therefore, that Oceana did not fall for reconsideration on appeal. However, Saini J’s judgment in Oceana that Parliament is institutionally competent to exclude judicial review in certain circumstances has now come under further judicial scrutiny by the Court of Appeal in R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337. And so it is time for another blog post, addressing again the important question on the effectiveness of ouster clauses and the potential limits of Parliament’s legislative sovereignty.’

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UK Constitutional Law Association, 21st November 2023

Source: ukconstitutionallaw.org

Leonid Sirota: (How) Can Big Government Be Kept Accountable? – UK Constitutional Law Association

Posted November 17th, 2023 in constitutional law, government departments, news, parliament by tracey

‘This project started from an experience that will be familiar to just about any law lecturer: persuading first-year students, bewildered in their first week at university, that your subject means something to them ― even if they don’t know that yet. In my case, one argument I came up with to sell my students on constitutional law was that government is a very big deal. I return to the question of just how big a deal it is presently. For now, suffice it to say that, although some public law rules (think of the Carltona doctrine, for instance) take this into account, on the whole, the size and also the shape of government go relatively unremarked upon in public law theory.

In this post I argue, however, that they matter for thinking about government accountability. They matter beyond this too, but accountability is my topic here. It is more difficult to keep a big government accountable than a small one. In particular, it is difficult and perhaps impossible to do so through political means. Political constitutionalists who want government accountability, primarily political control of government, and big government cannot have it all.’

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UK Constitutional Law Association, 16th November 2023

Source: ukconstitutionallaw.org

The Crown and the constitution – House of Commons Library

Posted November 16th, 2023 in constitutional law, news, parliament, royal family by sally

‘A briefing paper on the constitutional aspects of the Crown.’

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House of Commons Library, 13th November 2023

Source: commonslibrary.parliament.uk

George Peretz KC: Clause 19 of the Digital Markets, Competition and Consumers Bill: Power without accountability – UK Constitutional Law Association

Posted November 15th, 2023 in bills, competition, constitutional law, internet, news, ombudsmen by sally

‘Clause 19 of the Digital Markets, Competition and Consumers Bill (“the DMCC Bill”) gives the Competition and Markets Authority (“CMA”) wide powers to impose conduct requirements on undertakings that the CMA has designated as having strategic market status (“SMS”) in respect of a digital activity (essentially, “big tech”). The condition for the exercise of the power is that the CMA considers it “appropriate” to do so having regard to broadly drawn statutory objectives – the “fair dealing” objective, the “open choices” objective (essentially, enabling consumers to choose freely and easily between providers) and the “trust and transparency” objective (essentially, having the information to make properly informed decisions). The types of conduct requirement that may be imposed are set out in clause 20: essentially, there is no statutory limit to the types of requirement that may be imposed save that (whatever they are) they must be for the purpose of securing various objectives or of preventing various widely defined types of conduct (for example “using data unfairly”). Breach of a conduct requirement may result, if the CMA so decides, in an enforcement order that requires action to remedy the breach or payment of damages.’

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UK Constitutional Law Assoication, 15th November 2023

Source: ukconstitutionallaw.org

Kate Ollerenshaw: Impact Assessment as an Accountability Mechanism: Past, Present and Future – UK Constitutional Law Association

Posted November 9th, 2023 in brexit, company law, constitutional law, EC law, government departments, news by sally

‘On 19th September, the Government published a revised version of the Better Regulation Framework Manual setting out its new approach to impact assessment for regulatory measures. The system it will replace was aligned with the Government’s formal mechanisms to incentivise a reduction in the burden of regulation on business and civil society, but the repeal of the statutory Business Impact Target (BIT) by s. 18 of the Retained EU Law (Revocation and Reform) Act 2023 and the Government’s commitment to ‘Smarter Regulation to Grow the Economy’ in the post-Brexit world prompted revisions. At first sight the proposals, including the creation of a new ‘options assessment’, seem to address some criticisms of the previous system. As always though, ‘the devil is in the detail’ and ‘the proof of the pudding will be in its eating’. This post looks at the proposed changes in the light of past practice to highlight areas where the effectiveness of impact assessment as an accountability mechanism might remain compromised. For reasons of space, this post focuses on impact assessment as a prospective tool rather than its role in post-implementation review.’

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UK Constitutional Law Association, 9th November 2023

Source: ukconstitutionallaw.org

Guy Baldwin: The Case for Moderate Constitutionalism in the UK – UK Constitutional Law Association

Posted November 7th, 2023 in constitutional law, government departments, human rights, judiciary, news by sally

‘Part of the debate around accountability in the UK concerns the judiciary and its relationship with the elected parts of government. A potentially useful concept in assessing this relationship is constitutionalism. This post is a summary of my presentation at the recent UKCLA Conference in Liverpool, in which I engaged with some long-running debates around constitutionalism. I argue here that there is a version of constitutionalism, which I term “moderate constitutionalism”, that is normatively desirable and suited to the UK’s constitutional tradition. After discussing the situation of constitutionalism in the UK and setting out the case for moderate constitutionalism, I identify some possible implications of the analysis for the system of government in the UK. What is presented here is an early sketch, at a high level, of an account that I intend to develop in significantly greater detail in the future.’

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UK Constitutional Law Association, 7th November 2023

Source: ukconstitutionallaw.org