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

All Hale Parliament: Responding to the Reith Lectures – UK Human Rights Blog

‘Lady Hale has thrown her wig into the debate on whether the law, represented by the courts, is gaining power while politics in Parliament is losing it. She is not the first to critique Lord Sumption’s Reith Lectures, as they were covered at ALBA’s Annual Conference too (see Law Pod UK episodes 88, 89, and 91).’

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UK Human Rights Blog, 16th October 2019

Source: ukhumanrightsblog.com

Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part II – UK Constitutional Law Association

‘This is the second of a two-part discussion of this theme. The first part addressed the obligations under the Benn Act and the legal response to attempts to frustrate it; this second part addresses non-confidence motions, resignation and change of Government. Heading numbering is continued from Part 1.’

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UK Constitutional Law Association, 10th October 2019

Source: ukconstitutionallaw.org

Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part I – UK Constitutional Law Association

‘This is the first of a two-part discussion of this theme. This first part addresses the obligations under the Benn Act and the legal response to attempts to frustrate it; the second part will address non-confidence motions, resignation and change of Government.’

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UK Constitutional Law Association, 9th October 2019

Source: ukconstitutionallaw.org

Finnian Clarke: Habeas Corpus and the Nature of “Nullity” in UK Public Law – UK Constitutional Law Association

‘In the case of The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland, the Supreme Court briefly directed its focus to its understanding of the nature of “nullity” following a finding of administrative unlawfulness. Its approach surprised some commentators, but in this post I will suggest that, far from being completely novel, the distinctions it appears to draw are familiar within the law of habeas corpus. This comparison will, I suggest, cast light upon the shifting and somewhat complex idea of “nullity” in UK public law.’

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UK Constitutional Law Association, 8th October 2019

Source: ukconstitutionallaw.org

The UK Supreme Court’s “One Off” Judgment – Oxford Human Rights Hub

‘It was a “one off”. A conclusive determination on a series of seismic constitutional clashes: representative democracy versus direct democracy, the executive versus Parliament, and the role of the Court in the separation of powers. Judges examining the constitution against a seething political background. But the lions emerged from beneath the throne, unanimously, in a judgment that unlocked the doors of Parliament and clearly, soberly reasserted our sovereign legislature.’

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Oxford Human Rights Hub, 9th October 2019

Source: ohrh.law.ox.ac.uk

Krishan Nadesan: Asking the Impossible: Benn, Kinnock and Extending Article 50 – UK Constitutional Law Association

‘Boris Johnson seems caught in an impossible bind. The European Union (Withdrawal) (No. 2) Act – the Benn Act for short – obliges him to seek an extension of Article 50 on 19 October. He can extend, honour the law, but break his promises. He can refuse to extend, honour his promises, but break the law. Or he can resign. The Benn Act appears to trap the Prime Minister between these unpalatable options. Nevertheless, he may be able to escape. For the Act may ask the impossible.’

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UK Constitutional Law Association, 1st October 2019

Source: ukconstitutionallaw.org

Theodore Konstadinides, Noreen O’Meara and Riccardo Sallustio: The UK Supreme Court’s Judgment in Miller/Cherry: Reflections on Its Context and Implications – UK Constitutional Law Association

‘On 24 September, the UK Supreme Court unanimously ruled that the Prime Minister’s advice to prorogue Parliament was unlawful, and that the resulting Order in Council and subsequent prorogation were ‘null, void and of no effect’. The litigation on the justiciability of prorogation and the lawfulness of the Prime Ministerial advice has led to one of the most engaging constitutional cases of recent times. As observers at the High Court and Supreme Court hearings, this post considers the context of the ruling, and certain striking implications of the judgment for the current and future Prime Ministers.’

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UK Constitutional Law Association, 2nd October 2019

Source: ukconstitutionallaw.org

In Court – Stephen Sedley – London Review of Books

Posted October 2nd, 2019 in brexit, constitutional law, Crown, news, parliament, prorogation by sally

‘For at least four centuries the courts have contested the claims of monarchs to untrammelled authority. ‘The king,’ Chief Justice Coke said in 1611, ‘hath no prerogative but what the law of the land allows him.’ Although the historic settlement of 1688-89, which gave us today’s constitutional monarchy, left in existence a wide swathe of prerogative powers, these have become subject to two governing principles. One is that they cannot be enlarged. The other is that both their constitutional extent and their lawful use are subject to judicial review. If the rule of law is to mean anything, it has to mean this.’

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London Review of Books, 10th October 2019

Source: www.lrb.co.uk

Anurag Deb: A Constitution of Principles: From Miller to Minerva Mills – UK Constitutional Law Assocation

‘In a succinct and surprisingly unanimous judgment in Miller and Cherry [2019] UKSC 41 the UK Supreme Court delivered an unprecedented rebuke to the Prime Minister in deciding that he had not shown “any reason – let alone a good reason” to advise the Queen to prorogue Parliament, ruling that the prorogation was unlawful, void and of no effect. While the Court was anxious (and perhaps over-eager) to stress that the judgment was a “one-off”, constitutional lawyers have and will continue to debate the far-reaching effects of the ruling on the UK Constitution for decades to come. One discrete point that will divide commentators is the precise juridical basis for the decision, with eyebrows raised at the repeated appeals by the Court to common law constitutionalism in arriving at its decision. Aiden O’Neill QC, for the Cherry respondents referenced the landmark Marbury v Madison ruling of the US Supreme Court to highlight the significance of Wightman v Brexit Secretary and perhaps remind the Supreme Court of the momentousness of the prorogation appeals before it. Indeed, commentators have made comparisons between the UK Supreme Court and the US Supreme Court in the course of the increasingly fraught recent constitutional cases. While such comparisons may mushroom in the days (and years) to come, I argue that a tellingly apposite comparison in the underlying ratio of Miller and Cherry lies with a constitutional court on the other side of the world: The Supreme Court of India.’

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UK Constitutional Law Association, 1st October 2019

Source: ukconstitutionallaw.org

Ep 95: A Rogue Prorogation – Law Pod UK

‘Emma-Louise Fenelon talks to Jo Moore and Jon Metzer from 1 Crown Office Row about the UK Supreme Court decision in R (Miller) v The Prime Minister and Cherry & Ors v Advocate General for Scotland.’

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Law Pod UK, 27th September 2019

Source: audioboom.com

After 10 years, the supreme court is confident in its role – The Guardian

‘Next Tuesday, 1 October, marks the 10th anniversary of the supreme court. Over the past decade, its neo-gothic portico, beneath which lawyers, litigants, protesters and politicians parade, has become an increasingly recognisable feature of national life.’

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The Guardian, 26th September 2019

Source: www.theguardian.com

Sam Fowles: Cherry/Miller: What’s Next? – UK Constitutional Law Association

‘Yesterday the Supreme Court handed down its unanimous judgement in Cherry and Others v The Advocate General and Miller v the Prime Minister. The court found that the Prime Minister’s decision to prorogue parliament was unlawful and, consequently, null and void. This article aims to identify some of the immediate constitutional and political impacts of that decision.’

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UK Constitutional Law Association, 26th September 2019

Source: ukconstitutionallaw.org

Parliament was not prorogued: Michael Zander QC assesses the Supreme Court’s remarkable decision – New Law Journal

‘The decision of the Supreme Court is remarkable for many reasons. One is that it was produced in such a short time. Another, of immense importance, is that it is unanimous. A third is that it rejects the reasoning of the Divisional Court’s unanimous decision given by the Lord Chief Justice, the Master of the Rolls and the President that the issue was not justiciable.’

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New Law Journal, 24th September 2019

Source: www.newlawjournal.co.uk

Supreme Court: Suspending Parliament was unlawful, judges rule – BBC News

‘Boris Johnson’s decision to suspend Parliament was unlawful, the Supreme Court has ruled.’

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BBC News, 24th September 2019

Source: www.bbc.co.uk

Supreme court poised to rule against Boris Johnson, say legal experts – The Guardian

‘Boris Johnson would have no option but to recall MPs to Westminster if the supreme court rules he misled the Queen, senior legal sources told the Observer yesterday.’

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The Guardian, 22nd September 2019

Source: www.theguardian.com