Rosie Slowe: Article 50 Notice and Implied Conditionality – UK Human Rights Blog

‘More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.’

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UK Human Rights Blog, 7th April 2017

Source: www.ukhumanrightsblog.com

The government’s ‘English votes for English laws’ review: an assessment – UCL Constitution Unit

Posted April 7th, 2017 in constitutional law, devolution, news, parliament, reports, veto by tracey

‘Last Thursday the government published its technical review of the operation of the “English votes for English laws” (EVEL) procedures in the House of Commons. The review concluded against making “any substantive changes”. Daniel Gover and Michael Kenny argue that this is a missed opportunity. The decision to close down this chance for parliament to engage in meaningful debate about the EVEL system is regrettable, and may prove to be short-sighted.’

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UCL Constitution Unit, 5th April 2017

Source: www.ucl.ac.uk/constitution-unit

Elizabeth Campion: The Constitutional “Ripple Effect” of the European Union (Notification of Withdrawal) Act 2017 – UK Constitutional Law Association

‘Miller and others v Secretary of State for Exiting the European Union [2017] UKSC 5 was highly anticipated as perhaps the most signficant constitutional case of this generation, stirring up such strong reactions that the judges of the Divisional Court who initially decided in favour of Ms. Miller were dubbed “Enemies of the People”. Two months after a majority of an 11-member Supreme Court confirmed that prerogative powers could not be used to invoke Article 50, however, the European Union (Notification of Withdrawal) Act 2017 (hereafter referred to as the “Withdrawal Act”) received Royal Assent, conferring power on the Prime Minister to give the notification required to begin the process of the United Kingdom’s withdrawal from the European Union. The passage of the Withdrawal Act fulfilled the constitutional requirements identified in Miller formally, within the purely political timetable set by the Prime Minister at the Conservative Party’s conference and without any additional legal requirements being imposed by way of amendment. This not only sets the stage but also prepares the way for a more permanent sidelining of Parliament as the supreme legislative body in the UK’s constitution as part of the process of leaving the European Union.’

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UK Constitutional Law Association, 27th March 2017

Source: www.ukconstitutionallaw.org

Alexander Horne: Select Committee Powers of Enforcement – UK Constitutional Law Association

‘On 7 March 2017, the House of Commons Committee of Privileges announced a new inquiry into the exercise and enforcement of the powers of the House in relation to select committees and contempts of Parliament.’

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UK Constitutional Law Association, 23rd March 2017

Source: www.ukconstitutionallaw.org

Theresa May warned that Brexit is ‘heading back to the courts’ after she refuses to give MPs a ‘meaningful vote’ – The Independent

Posted March 14th, 2017 in brexit, constitutional law, constitutional reform, EC law, news, parliament, treaties by tracey

‘Theresa May has been warned that Brexit is heading back to the courts after she refused to give MPs a “meaningful vote” on any final deal.’

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The Independent, 13th March 2017

Source: www.independent.co.uk

Rosie Slowe: Reflections on the ‘Three Knights Opinion’ and Article 50 TEU – UK Human Rights Blog

‘On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.’

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UK Human Rights Blog, 9th March 2017

Source: www.ukhumanrightsblog.com

Mark Elliott and Stephen Tierney: The ‘Great Repeal Bill’ and Delegated Powers – UK Constitutional Law Association

‘A good deal of the legal and constitutional interest generated by Brexit has so far, perhaps unsurprisingly, focussed upon the very beginning of the withdrawal process. Initially, all eyes were on the courts, with the Supreme Court holding in R (Miller) v Secretary of State for the European Union [2017] UKSC 5 that the Article 50 mechanism can be activated only with Parliament’s legislative blessing. As a result of that landmark judgment, attention has now switched to Parliament, through which the European Union (Notification of Withdrawal) Bill is presently passing.’

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UK Constitutional Law Association, 7th March 2017

Source: www.ukconstitutionallaw.org

Speech by Mr Justice Singh: Divided by a common language – American and British perspectives on constitutional law – Courts and Tribunals Judiciary

‘Divided by a common language: American and British perspectives on constitutional law.’

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Courts and Tribunals Judiciary, 27th February 2017

Source: www.judiciary.gov.uk

Miller and the modern British Constitution – Counsel

‘Miller reveals the malleability of the parliamentary sovereignty doctrine, argues Professor Mark Elliott in his examination of the many tensions which lie at the heart of the majority judgment.’

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Counsel, March 2017

Source: www.counselmagazine.co.uk

Mikolaj Barczentewicz: The Principle of Legality and the EU-withdrawal Statute – UK Constitutional Law Assocition

Posted February 22nd, 2017 in bills, constitutional law, EC law, legislative drafting, news, parliament, treaties by sally

‘Legal criticism of the EU (Notification of Withdrawal) Bill is quickly amassing. Notably, Paul Daly suggested that general phrasing of an authorisation to notify the UK’s intention to withdraw from the EU by the executive, of the sort contained in the Bill, may not suffice to ground lawfulness of such notification (or of withdrawing from the EU). It may not suffice, because the principle of legality could be said to require more specificity in conveying Parliament’s legislative choice to authorise withdrawal with all the possible detrimental consequences to individual rights. A similar argument was also presented in the “Three Knights Opinion” of Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC, Helen Mountfield QC and Gerry Facenna QC.’

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UK Constitutional Law Association, 21st February 2017

Source: www.ukconstitutionallaw.org

Miller, BrEXIT and BreUK-up – Counsel

‘The Supreme Court’s treatment of the devolution issues in Miller is troubling, argues Aidan O’Neill QC, who examines the UK’s complex multi-national constitutional history and potential impact on the devolved political constitution.’

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Counsel, March 2017

Source: www.counselmagazine.co.uk

Supreme Court Brexit ruling may affect legal action against Tony Blair and other ‘state officials’ over Iraq War – The Independent

Posted February 15th, 2017 in constitutional law, Iraq, news, prerogative powers, referendums, Supreme Court, war by sally

‘The Supreme Court Brexit ruling may affect attempts to take legal action against Tony Blair and other “state officials” over their role in the Iraq War, it has emerged.’

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The Independent, 14th February 2017

Source: www.independent.co.uk

Philip Allott: Taking Stock of the Legal Fallout from the EU (Notification of Withdrawal) Act 2017 – UK Constitutional Law Association

‘Some of the accumulated noxious legal dust will now settle with the enacting of the grossly mistitled EU (Notification of Withdrawal) Act 2017. We may have witnessed our first post-legal legal event. Populist law. If many people say a legally incorrect thing many times, it may come to be treated as if it were correct. Alternative law.’

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UK Constitutional Law Association, 2nd February 2017

Source: www.ukconstitutionallaw.org

Oliver Garner: Conditional Primacy of EU Law: The United Kingdom Supreme Court’s Own “Solange (so long as)” Doctrine? – UK Constitutional Law Association

Posted January 31st, 2017 in brexit, constitutional law, EC law, news by sally

‘In circumstances of “normal” membership of the European Union, the UK Supreme Court’s dicta in the Miller judgment that EU law is an “independent and overriding source of domestic law” [Paragraph 65] may well have caused a constitutional storm. In the current unprecedented tempest of Brexit, however, Lord Neuberger’s announcement of this statement passed as little more than a side-wind. This short post will briefly turn the magnifying glass on this judicial formulation, which will be labelled the “conditional primacy” of EU law within the United Kingdom’s domestic constitutional order.

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UK Constitutional Law Association, January 2017

Source: www.ukconstitutionallaw.org

Patrick O’Brien: All for Want of a Metaphor: Miller and the Nature of EU Law – UK Constitutional Law Association

Posted January 30th, 2017 in constitutional law, EC law, international law, Supreme Court by sally

‘The judgments in Miller highlight the fact that the common law has never managed to arrive at a satisfactory intellectual framework for European law. I will focus first on Lord Reed’s dissent. On Lord Reed’s account, the situation is simpler than anyone who had observed UK and EU law for the past 45 years could have imagined. The UK takes a dualist approach to international law, and EU law is international law. Once this characterisation is accepted the case is over.’

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UK Constitutional Law Association, 30th January 2017

Source: www.ukconstitutionallaw.org

Pavlos Eleftheriadis: The Systematic Constitution – UK Constitutional Law Association

Posted January 30th, 2017 in constitutional law, EC law, news, repeals, Supreme Court, treaties by sally

‘The Supreme Court judgment in Gina Miller is not merely an affirmation of what the High Court said. The eight member majority confirmed the earlier decision, but also took the opportunity to restate a fundamental principle, which had been left implicit by the court below. The High Court said that the substantive rights arising out of EU law and the European Communities Act 1972, in employment, environment, consumer protection, competition or free movement, could not be abolished merely by the exercise of the royal prerogative. This was a standard interpretation of existing law, adapted for the context of Article 50. The Supreme Court accepted that this was correct, but added one additional reason.’

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UK Constitutional Law Association, 30th January 2017

Source: www.ukconstitutionallaw.org

The supreme court Brexit judgment isn’t a victory for me, but for our constitution – The Guardian

Posted January 24th, 2017 in appeals, brexit, constitutional law, EC law, judgments, news, parliament, Supreme Court, treaties by sally

‘An overriding principle of British law is that parliament is sovereign – and we should be grateful to the judges, in the face of huge pressure, for upholding it.’

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The Guardian, 24th January 2017

Source: www.guardian.co.uk

Simon Renton: Historical Perspectives and the Miller Case – UK Constitutional Law Association

Posted January 20th, 2017 in constitutional law, EC law, news, parliament, prerogative powers, referendums, treaties by sally

‘Unlike many legal subjects, constitutional law involves an awareness of history. Conversely, a student of British Constitutional History benefits from an understanding of legal concepts. (Though, as a history undergraduate who in 1969 was taught the subject by Jenifer Hart, the wife of HLA Hart, any mention of the “rule of recognition” would have been lost on me.) As we await the decision of the Supreme Court, it is germane to consider the story of the UK’s accession to the EEC and other Communities in 1971-1973. The debates in the House of Commons in 1971-72 provide one with a good understanding of the legal and constitutional issue which were at play; as well, of course of the international, political and economic issues which engaged the attention of Ministers and backbenchers.’

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UK Constitutional Law Association, 19th January 2017

Source: www.ukconstitutionallaw.org

Lord Sumption and the Limits of the Law: Is the Human Rights Project Undemocratic and Elitist? – Family Law Week

Posted January 5th, 2017 in constitutional law, human rights, judges, judiciary, news, treaties by tracey

‘David Bedingfield, barrister of 4 Paper Buildings, considers the arguments in a debate of vital importance to family lawyers.’

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Family Law Week, 4th January 2017

Source: www.familylawweek.co.uk

David Howarth: On Parliamentary Silence – UK Constitutional Law Association

Posted December 13th, 2016 in constitutional law, EC law, news, parliament, referendums, royal prerogative, treaties by sally

‘One of the most striking aspects of the arguments of counsel in Miller, as Rachel Jones has pointed out, was how much the disagreement between the parties focussed on the meaning of silence. The government’s case boiled down to an assertion that silence on the issue of whether legislation was needed to invoke Article 50 of the Treaty of European Union in a succession of statutes – the European Communities Act 1972, the Referendum Act 1975, the European Union (Amendment) Act 2008, the European Union Act 2011 and the European Union Referendum Act 2015 – should be interpreted as parliament intending that the government was permitted to use the prerogative to invoke Article 50. For example, counsel for the government repeatedly argued that because some of these statutes, especially the 2008 and 2011 Acts, put restrictions on the exercise of the government’s foreign affairs prerogative power, it must follow that those statutes mean that other aspects of the prerogative must have been intended to have been left unfettered. Expressio unius exclusio alterius. On the other side, the applicants argued that parliament’s silence, especially in the 1972 Act, meant that it intended a specific pre-existing rule to apply, namely the rule that ministers could not use the prerogative, and in particular the foreign affairs prerogative, to change the law. They also argued that parliament’s subsequent silence in the other statutes confirmed that original choice.’

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UK Constitutional Law Association, 13th December 2016

Source: www.ukconstitutionallaw.org