Parliament suspension: What was the Queen’s role? – BBC News

‘It is most unlikely we will ever get any authoritative insight into what the Queen thought about the prime minister’s request for her to suspend Parliament.’

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BBC News, 29th August 2019

Source: www.bbc.co.uk

Parliament had failed on Brexit long before this prorogation – The Guardian

‘MPs had three years to come up with an alternative to no deal – and they failed.’

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The Guardian, 29th August 2019

Source: www.theguardian.com

Brexit: Gina Miller files for legal challenge to stop Boris Johnson’s ‘cynical and cowardly’ plan to prorogue parliament – The Independent

Posted August 29th, 2019 in brexit, constitutional law, judicial review, news, parliament, prorogation by tracey

‘Anti-Brexit campaigner Gina Miller has as filed an urgent application for a legal challenge to stop Prime Minister Boris Johnson’s “cynical and cowardly” plan to prorogue parliament.’

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The Independent, 29th August 2019

Source: www.independent.co.uk

Are there principles that trump democracy? The Reith Lectures, 2019: Lord Sumption’s Lecture and Responses – UK Human Rights Blog

Posted July 30th, 2019 in constitutional law, human rights, judges, news, rule of law by sally

‘Are there principles that trump democracy? This was one of a number of profound philosophical and legal questions addressed by former UK Supreme Court Justice Jonathan Sumption in his recent and controversial Reith Lectures, which addressed subjects such an law’s expanding empire, the challenges posed by human rights, and the advantage of an unwritten constitution.’

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UK Human Rights Blog, 29th July 2019

Source: ukhumanrightsblog.com

Mike Gordon: Privacy International, Parliamentary Sovereignty and the Synthetic Constitution – UK Constitutional Law Association

‘The case of R (Privacy International) v Investigatory Powers Tribunal is the latest in a series of high profile judicial engagements with the doctrine of parliamentary sovereignty. The case concerned the legal status of s.68(7) of the Regulation of Investigatory Powers Act 2000, and in particular, whether this provision constituted a successful attempt to oust the jurisdiction of the High Court to hear challenges to the decisions of the Investigatory Powers Tribunal by judicial review.’

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UK Constitutional Law Association, 26th June 2019

Source: ukconstitutionallaw.org

To shut down parliament would be simple. But it would be an outrage – The Guardian

‘The next prime minister will have the power to prevent MPs blocking a no-deal Brexit, though would he or she dare close the Commons for three months?’

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The Guardian, 13th June 2019

Source: www.theguardian.com

Sam Fowles: Can the Prime Minister Prorogue Parliament to Deliver a No Deal Brexit? – UK Constitutional Law Association

‘In recent days certain government backbenchers have proposed a new avenue to deliver a “no deal” Brexit.’

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UK Constitutional Law Association, 10th June 2019

Source: ukconstitutionallaw.org

Graham Gee and Chris McCorkindale: The Political Constitution at 40 – UK Constitutional Law Association

Posted June 4th, 2019 in constitutional history, constitutional law, news by sally

‘The constitution ‘is no more and no less than what happens’. So wrote Professor John Griffith in the 1978 Chorley Lecture, ‘The Political Constitution’, which was later republished in the Modern Law Review in 1979. It was not the first time that Griffith dangled this tantalizing aphorism before his readers, but it was this lecture that saw it melt into the vocabulary of public law. It might seem trite to spotlight this aphorism from what is a rich and intricate lecture full of important insights as well as memorable phrases. However, as we see it, constitutional practice over the last three years —or, for that matter, the last three months, the last three weeks, or even the last three days—underscores the continuing relevance of Griffith’s insights into the complex and contingent nature of the relationship between law, politics and the constitution.’

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UK Constitutional Law Association, 3rd June 2019

Source: ukconstitutionallaw.org

Stephanie Reynolds: Brexit and the (Not Quite) Constitutionalised Status of EU Citizenship – UK Constitutional Law Association

Posted April 24th, 2019 in brexit, citizenship, constitutional law, EC law, news by sally

‘Since its formal introduction in the Maastricht Treaty, EU citizenship has laid claim to a constitutional status. The Union Treaties – long described by the Court of Justice as the EU’s constitutional texts – explicitly confer the status of Union citizenship on all nationals of the Member States. The asserted significance of this was subsequently confirmed in the seminal Grzelczyk judgment, in which the Court famously declared that EU citizenship was ‘destined to be the fundamental status of nationals of the Member States’.’

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UK Constitutional Law Association, 24th April 2019

Source: ukconstitutionallaw.org

David Howarth: Westminster versus Whitehall: Two Incompatible Views of the Constitution – UK Constitutional Law Association

Posted April 11th, 2019 in brexit, constitutional law, ministers' powers and duties, news, parliament by sally

‘Lawyers like to make as much sense as possible of the material in front of them, transforming it, if they can, from a jumble of decisions and remarks into a coherent whole. For constitutional lawyers that habit of mind is both a blessing and a curse. It is a blessing because it causes lawyers to look for subtleties others miss (albeit sometimes subtleties they themselves create). It is a curse because when the material is generated by underlying mechanisms and ideas that fundamentally conflict, it leaves lawyers at a loss, or, worse, going round in circles.’

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UK Constitutional Law Association, 10th April 2019

Source: ukconstitutionallaw.org

Could ministerial advice to the Queen to prorogue Parliament or to refuse assent to a Parliamentary Bill be challenged in the courts? – Brexit Law

‘This post continues the debate that has arisen following recent Parliamentary efforts to seize the initiative from the Government to avoid a no-deal Brexit, in particular the Cooper- Letwin Bill, and certain proposals that have emerged by which it is suggested the Government could thwart these efforts.’

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Brexit Law, 8th April 2019

Source: brexit.law

Ewan McGaughey: What Is Needed in Our Constitution to Revoke Article 50? – UK Constitutional Law Association

Posted April 4th, 2019 in brexit, constitutional law, news, parliament by sally

‘Professors Gavin Phillipson and Alison Young have argued on this blog that an Act of Parliament is needed to revoke article 50. An alternative view is that, while an Act may be desirable, it is not necessary. This is still an important issue because on Wednesday 27th of March 2019, 184 votes in the House of Commons were cast in favour of revoking article 50 before ‘exit day’ if no agreement had been reached, 293 votes were cast against, and 164 MPs abstained. By contrast, 400 MPs voted against ‘no deal’. Mathematically the question of revocation remains in play, because in an emergency a positive majority of the Commons may emerge. Because an Act takes longer than executive action, the question of the legal mechanism to revoke article 50 must be scrutinised.’

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UK Constitutional Law Association, 4th April 2019

Source: ukconstitutionallaw.org

Stefan Theil: Unconstitutional Prorogation – UK Constitutional Law Association

‘Parliament voted on the evening of 1 April in a series of indicative votes to determine what, if any, alternative plan for withdrawal from the European Union could command the support of the House of Commons: all plans put forward again failed to command a majority. In a recent intervention, John Finnis has suggested that the government should prorogue Parliament until after 12 April in order to terminate the current parliamentary debate. Mark Elliott has offered a critique of the broader implications of this argument, namely the claim that such a course of action would be ‘(…) wholly legitimate as a matter of constitutional principle.’ Elliott concludes that parliamentary control of the process is entirely legitimate and in keeping with the British constitution. This piece adds to this analysis by elaborating why the prorogation Finnis advocates under these specific circumstances would be, as Elliott summarily puts it, ‘(…) an argument for unconstitutional action on the part of the Government.’ The piece develops a twofold argument: first, that ministerial advice tendered to seek a prorogation of Parliament under these circumstances is unconstitutional and that the Monarch should disregard it as a matter of constitutional convention; and second that holding otherwise would in effect grant the Prime Minister an unqualified veto over parliamentary business, leaving the government in an unconscionable position of power over the sovereign Parliament. Such an outcome would be fundamentally at odds with British parliamentary democracy, especially principles of democracy and representative and responsible government.’

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UK Constitutional Law Association, 3rd April 2019

Source: ukconstitutionallaw.org

Philip Allott: Unexpected Denouement. The UK Remains in the EU by Mistake. The Brexit Saga Could Run and Run – UK Constitutional Law Association

Posted March 26th, 2019 in brexit, constitutional law, EC law, news, notification, time limits, treaties by sally

‘The two-year time-limit in Article 50 of the Treaty on European Union has come and gone. It is now possible that no withdrawal agreement between the European Council and the UK will be concluded. This means that the UK would leave the EU in catastrophic circumstances on April 12. An interesting final irony would be that the UK would be leaving the EU on the basis of a legal howler.’

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UK Constitutional Law Association, 26th March 2019

Source: ukconstitutionallaw.org

Jack Simson Caird and Ellis Paterson: Could the UK Courts Disapply Domestic Legislation to Enforce the Protocol on Ireland and Northern Ireland? – UK Constitutional Law Association

Posted February 19th, 2019 in brexit, constitutional law, EC law, Ireland, news, Northern Ireland by sally

‘If the Withdrawal Agreement is approved, then Parliament will be asked to legislate to give domestic legal effect to its content through the EU (Withdrawal Agreement) Bill. One of the most significant provisions of the Withdrawal Agreement, Article 4, purports to give the entire contents of the Withdrawal Agreement special status within the UK’s constitutional order. Even though the UK would no longer be a Member State, the effect of Article 4 (if implemented) would be to give all of the laws within the Withdrawal Agreement the equivalent legal effect of EU law within a Member State. As a result, the Protocol on Ireland and Northern Ireland (the Protocol), which forms part of the Withdrawal Agreement, would be supreme over any other domestic legislative provisions, and any provisions of the agreement which meet the conditions for direct effect would have direct effect. How the UK courts would be able to enforce this status will be determined by how the UK Parliament decides to legislate to give effect to Article 4 in the EU (Withdrawal Agreement) Act. It is probable that the Government will propose to give the courts the power to disapply domestic legislation inconsistent with the Withdrawal Agreement by replicating the effect of the European Communities Act 1972 (ECA 1972). Article 4 of the WA, as explored below, already includes the obligation to disapply provisions that contravene EU law. This post looks at the questions that might be raised if a UK court was ever asked to disapply domestic legislation on the basis that it was inconsistent with the Protocol. The potential constitutional effect of Article 4 is worth considering in view of the short time that Parliament is likely to have to consider the EU (Withdrawal Agreement) Bill. While the UK courts have been able to disapply domestic legislation since the European Communities Act 1972 (this power was more more fully explored in Benkharbouche v Sec’y of State for Foreign and Commonwealth Affairs in 2017 – see Alison Young’s helpful 2017 blog post on the outcome) was enacted, what is constitutionally novel about Article 4 is the proposal that the courts would be able to do so when the UK is no longer a Member State.’

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UK Constitutional Law Association, 19th February 2019

Source: ukconstitutionallaw.org

The case for a referendum re-run – New Law Journal

Posted January 23rd, 2019 in brexit, constitutional law, news, political parties, referendums by sally

‘How close is Plan B for a People’s Vote? David Wolchover reports.’

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New Law Journal, 18th January 2019

Source: www.newlawjournal.co.uk

Adam Tucker: Parliamentary Intention, Anisminic, and the Privacy International Case (Part One) – UK Constitutional Law Association

‘Earlier this month, the Supreme Court heard argument in R (Privacy International) v Investigatory Powers Tribunal. This litigation has already attracted substantial scholarly attention in the published literature (notably in articles by Paul Scott and Tom Hickman in Public Law) and online (including a symposium at the Administrative Law in the Common Law World blog). In this two-part post, I seek to situate the case in its wider constitutional context, and argue that the Supreme Court ought to abandon the narrow approach the courts have adopted so far.’

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UK Constitutional Law Association, 18th December 2018

Source: ukconstitutionallaw.org

Aris Georgopoulos: Revoking Article 50 TEU (C-621/18 Wightman and others): “Iphigenia Must Reach the Altar” – UK Constitutional Law Association

Posted December 18th, 2018 in brexit, constitutional law, EC law, news, treaties by sally

‘The CJEU’s ruling in C-621/18 Wightman and others clarifying that Member States can unilaterally revoke the withdrawal notification of Article 50 (2) TEU, is bound to have repercussions; in the case of Brexit and beyond.’

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UK Constitutional Law Association, 17th December 2018

Source: ukconstitutionallaw.org

Kenneth Armstrong: The Advent of Brexit – Can It Be Paused? – UK Constitutional Law Association

Posted December 12th, 2018 in brexit, constitutional law, EC law, news, notification, time limits, treaties by sally

‘As each day passes, a new window seems to be thrown open exposing a fresh legal issues to be solved as the UK continues its journey towards its withdrawal from the European Union. It’s like an advent calendar for lawyers.’

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UK Constitutional Law Association, 12th December 2018

Source: ukconstitutionallaw.org

Gavin Phillipson and Alison L. Young: Wightman: What Would Be the UK’s Constitutional Requirements to Revoke Article 50? – UK Constitutional Law Association

Posted December 10th, 2018 in brexit, constitutional law, EC law, news, notification, referendums, Scotland, treaties by sally

‘Today the Court of Justice of the European Union delivered its judgment in Wightman. This followed the opinion of Advocate General Campos Sánchez-Bordona, concluding that the UK may unilaterally revoke its notification of its intention to leave the EU. In a similar manner to the AG, the CJEU placed conditions on this unilateral revocation. A formal process would be needed to notify the European Council of the UK’s intention to revoke article 50. Such notice of revocation would have to be unequivocal and unconditional (para 74), and, importantly, ‘in accordance with the constitutional requirements of the Member State’, in this case, the UK, and following a ‘democratic process’ (para 66). It would also have to take place before the end of the Article 50 negotiation period, or any agreed extension, and before a Withdrawal Agreement between the exiting state and the EU had been ‘concluded’ – i.e. entered into force (para 73). In addition, the AG’s opinion was that any revocation would have to be in ‘good faith’ and in line with the requirement of ‘sincere cooperation’ between the Member State and the EU and. Further, although not required, it would be reasonable for the Member State to provide its reasons for revoking the Article 50 notification.’

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UK Constitutional Law Association, December 2018

Source: ukconstitutionallaw.org