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

Tom Hickman KC: Candour Inside-Out: Disclosure in Judicial Review – UK Constitutional Law Association

‘A feature of judicial review procedure is that disclosure of documents is not required. The procedural rules make no provision for disclosure (indeed, they state that parties are not required to provide disclosure). Despite this, disclosure is increasingly provided in judicial review litigation as a matter of course. This is welcome. Appropriately focused disclosure facilitates rather than impedes efficient judicial review proceedings. It ensures judges and claimants are properly sighted on the decision-making process and it avoids the dangers of spin and omission in the summarisation of documents. But the approach taken by public bodies varies markedly, depending on their interpretation of the requirements of the common law “duty of candour”. In the absence of any rules governing the process, defendants sometimes do not disclose important documents while other cases get bogged-down in elaborate search and disclosure exercises.’

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UK Constitutional Law Association, 16th October 2023

Source: ukconstitutionallaw.org

Joe Tomlinson, Eleana Kasoulide, Jed Meers & Simon Halliday: Targeted case reviews: a legitimate compliance exercise or a scandal in the making? – UK Constitutional Law Association

Posted October 23rd, 2023 in benefits, constitutional law, government departments, news by tracey

‘Government has a legitimate interest in seeking to prevent and reduce error in the benefits system and in taking action to recover funds lost. And there is widespread pressure for the Department for Work and Pensions to do just that. However, creating systems capable of doing this work is fraught with challenges, including in terms of maintaining fairness and legality. Chief amongst them is the complexity of undertaking error detection work at the scale necessary for effectiveness without harming benefit recipients, who are often vulnerable and for whom benefits are an essential source of financial support. Such challenges are also magnified when, as is typical in modern government, techniques such as outsourcing to private companies and risk assessment are adopted.’

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UK Constitutional Law Association, 23rd October 2023

Source: ukconstitutionallaw.org

Thomas Horsley: Managing the External Effects of Devolved Legislation: Virtual Representation, Self-Rule and the UK’s Territorial Constitution – UK Constitutional Law Association

‘The Scottish Government is presently seeking judicial review of the UK Government’s decision to block Royal Assent for the Gender Recognition Reform (Scotland) Bill (GRRB) using s.35 of the Scotland Act 1998 (SA). The Court of Session’s decision, which may yet end up before the UK Supreme Court on appeal, is eagerly awaited, not least given the electricity of political debates over gender recognition and its reform in Scotland and elsewhere.’

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UK Constitutional Law Association, 5th October 2023

Source: ukconstitutionallaw.org

Philip Murray: Reconsidering Ouster Clauses: The High Court’s Decision in Oceana – UK Constitutional Law Association

Posted July 7th, 2023 in constitutional law, news, parliament, rule of law by tracey

‘To many, ouster clauses represent a conflict between, on the one hand, the will of a sovereign Parliament and, on the other, the rule of law’s demands that public bodies act within the limits of their powers. The common law has traditionally sought to interpret ouster clauses restrictively, employing reasoning articulated classically (but far from the first time) in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and continued more recently in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. That reasoning provides that ouster clauses do not apply where a public body has acted outside its jurisdiction: the “decision”, “determination”, etc (in the language of the clause) is null and void, such that there is nothing in law to which the clause might attach. The courts are thus able to safeguard the supervisory jurisdiction of the High Court while still claiming to pay due respect to Parliament’s decrees.’

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UK Constitutional Law Association, 5th July 2023

Source: ukconstitutionallaw.org

Rhiannon Ogden-Jones: Legal Uncertainty and the Levelling-Up and Regeneration Bill 2023 – UK Constitutional Law Association

Posted July 3rd, 2023 in bills, constitutional law, local government, news, planning by tracey

‘The Levelling-Up and Regeneration Bill (“LURB”), currently before the House of Lords, aims to facilitate the government’s levelling-up agenda, which was set out in the ‘Levelling-Up the United Kingdom’ White Paper in 2022. At 222 clauses and 18 schedules, full consideration of the Bill (as amended in Committee, 24th May 2023) would require more than a blog post, but its legislative aims can be somewhat succinctly expressed. The Bill proposes a scheme of local government and planning reforms, each aimed at promoting regional growth and “levelling-up”. Part I sets out the scope of levelling-up, detailing the obligations of the government in determining a levelling-up agenda. Part II then proposes a series of reforms to local democracy, devolving governance powers further to county councils, and giving them greater control to determine regional projects. The theme of project infrastructure continues, with Parts III-V and VIII-IX of the Bill reforming planning law and establishing different support mechanisms for development, including an infrastructure levy and providing for development corporations. Alongside the planning provisions, Parts VI-VII reform Environmental Impact Assessments and Nutrient Pollution Standards, establishing a new framework for these environmental tests.’

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UK Constitutional Law Association, 28th June 2023

Source: ukconstitutionallaw.org

Josie Welsh: The Power of a (Lord) Chief Justice – UK Constitutional Law Association

Posted July 3rd, 2023 in constitutional law, diversity, judges, judiciary, news, women by tracey

‘From 1 October 2023, England and Wales will have its first female Lord Chief Justice (“LCJ”), with the recent news that His Majesty The King was “pleased to approve” Dame Sue Carr’s appointment to the office. Her appointment follows the announcement of the retirement of current Lord Chief Justice The Rt Hon. Lord Burnett at the end of September. In light of the news of change to England and Wales’ highest judicial office, questions will inevitably be asked about the role and its power within the judiciary and in the constitution as a whole. With this in mind, I want to make some initial observations about the role of the LCJ, noting that we may not necessarily understand the nature of LCJ power simply by reading relevant statutory provisions, since the power of the LCJ is partly a function of the role and partly of the character, personality and skills of the individual holding it. What this suggests is that the change in office-holder may prove to be more significant than it appears at first.’

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UK Constitutional Law Association, 3rd July 2023

Source: ukconstitutionallaw.org

Mark Hill KC & Simon Lee: State, Churches and Chancel Repairs – Twenty Years On – UK Constitutional Law Association

Posted June 26th, 2023 in appeals, Church of England, constitutional law, Law Commission, news, repairs by tracey

‘Twenty years ago today, on 26 June 2003, each of the five Law Lords in Aston Cantlow v Wallbank [2004] 1 AC 546 gave separate, detailed opinions on a matter at the cusp of public law and private law. Was the Parochial Church Council (PCC) of a beautiful parish church in Warwickshire responsible for the cost of necessary repairs to its fabric, or were the owners of a neighbouring farm subject to chancel repair liability? The church of St John the Baptist, Aston Cantlow, some three miles outside Stratford-upon-Avon, dated from Saxon times. In the first Elizabethan era, it is where William Shakespeare’s parents were married. In the second Elizabethan era, it attracted a judicial inquiry into the very nature of the Church of England.’

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UK Constitutional Law Association , 26th June 2023

Source: ukconstitutionallaw.org

Mike Gordon: Creating an Integrity and Ethics Commission in the UK: The Case for Reform and Challenges for Implementation – UK Constitutional Law Association

‘In an era of intense and continuing controversy over the rules of political responsibility, the question of how to reform the current framework of constitutional standards applicable to politicians requires serious consideration. In addition to the regularity with which allegations about ministerial irresponsibility are being raised and sometimes (eventually) addressed, there are clearly structural challenges relating to these accountability processes and practices. There are legitimate concerns about the consistency, certainty, efficacy, independence and transparency of decision-making in this context. These concerns apply to the way in which potential violations of ethical standards are investigated, and also to the way in which sanctions are (or are not – or are not for long) imposed on political actors who are found to have broken the rules. The systemic nature of the UK’s failings in this area shows the need to consider potentially radical constitutional reforms.’

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UK Constitutional Law Association, 22nd June 2023

Source: ukconstitutionallaw.org

Tim Sayer: The Passive Virtues and the Abuse of Delegated Legislation: Courts, the Political Constitution and the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – UK Constitutional Law Association

Posted June 21st, 2023 in constitutional law, judicial review, news by tracey

‘In 1961 Alexander Bickel argued that the US Supreme Court should adopt what he called the “passive virtues” – minimising engagement with hard constitutional questions so as to keep its powder dry for the most essential issues. One such question that appears headed for the UK courts is the Home Secretary’s decision to use delegated powers in the Police, Crime, Sentencing and Courts Act 2022 (“the 2022 Act”) to introduce the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (“the Regulations”) conferring additional powers on the police to impose restrictions on protests and processions. Notwithstanding existing concerns around the use of delegated legislation to introduce substantive and controversial policy, the unusual and serious constitutional issue here is that the Regulations make changes to the law specifically rejected by Parliament during debates on the 2022 Act.’

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UK Constitutional Law Association, 19th June 2023

Source: ukconstitutionallaw.org

Brian Christopher Jones: Leadership exit points in the UK constitution – UK Constitutional Law Association

Posted June 5th, 2023 in constitutional law, government departments, news, parliament by sally

‘The UK constitution contains numerous ways that a serving Prime Minister can be deposed. Although we’ve seen this happen frequently in recent history—and especially over the past year—a wider discussion about these various exit points and their significance for the UK constitution has yet to emerge. But these exit avenues are undoubtedly important. Many world leaders have consolidated power in various ways in recent years, and some have floated refusing to leave office or staunchly resisted doing so. UK constitutional actors can and should be aware of these threats, and take measures to prevent them from happening. This post identifies four mechanisms for how UK leaders may be ousted: two formal options and two less formal options. It then further reflects on these mechanisms in terms of operation and recent events. At a time when many people lament the upholding of norms and values in the UK constitution, analysing these mechanisms could prove useful when assessing the need for and potential prospects of reform.’

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UK Constitutional Law Association, 5th June 2023

Source: ukconstitutionallaw.org

Eliza Bechtold: Recent Efforts to Regulate Expression by Conservatives in the UK and the US Highlight a Shift Toward Illiberalism – UK Constitutional Law Association

‘Conservative politicians in the UK and the US are making headlines for regulatory efforts targeting core free speech principles under the guise of protecting members of the public from harm. Four days prior to the coronation of King Charles III – a coincidence according to the UK government – the controversial Public Order Act 2023 (POA 2023), introduced by former Home Secretary Priti Patel, received royal assent. The application of the new law, in conjunction with the expansive powers granted to police under prior legislation, led to the controversial targeting and arrest of dozens of peaceful anti-monarchy protesters during the coronation proceedings. In the US, Republicans are responsible for a flurry of recent regulations censoring expression concerning sexual orientation, race, and other issues at the forefront of the so-called ‘culture war’ in public school classrooms and libraries across the country. These regulatory efforts highlight the increasingly illiberal posture of conservative parties in these countries, which undermines shared democratic values and reflects a broader shift toward the use of anti-democratic means to achieve political ends.’

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UK Constitutional Law Association, 1st June 2023

Source: ukconstitutionallaw.org

Stephen Tierney and Alison L. Young: The House of Lords Constitution Committee Reports on the Illegal Migration Bill – UK Constitutional Law Association

‘The Constitution Committee has released its report on the Illegal Migration Bill 2022-23. The Committee raises a number of concerns, including its potential impact on the rule of law, human rights, devolution, delegated powers, and parliamentary scrutiny. We await the report of the Joint Committee on Human Rights which will most likely comment in more detail on the implications of the Bill for the United Kingdom’s international obligations.’

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UK Constitutional Law Association, 23rd May 2023

Source: ukconstitutionallaw.org

Tom Hickman KC and Gabriel Tan: Reversing Parliamentary Defeat by Delegated Legislation: The Case of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – UK Constitutional Law Association

‘In a report published on 11 May, the House of Lords Secondary Legislation Scrutiny Committee (“SLSC”) drew attention to a constitutional issue of considerable interest and novelty. The SLSC drew the attention of the House of Lords to draft regulations that, if they come into effect, will allow police in England and Wales to impose restrictions on protests and processions that cause “more than minor” hindrance to day-to-day activities for other people, including going to and fro on the highway (The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023). The changes would also allow the police to take into account the cumulative effect of repeated protests. The changes amend sections 12 and 14 of the Public Order Act 1986 and effectively alter the meaning of the threshold criterion of causing “serious disruption to the life of the community” in respect of processions and assemblies by defining that term in a way that imposes a lower threshold than its ordinary words suggest.’

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UK Constitutional Law Association , 22nd May 2023

Source: ukconstitutionallaw.org

Jeevan Hariharan: The Changing Face of Horizontal Effect – UK Constitutional Law Association

Posted May 19th, 2023 in constitutional law, human rights, judges, news, privacy, speeches by tracey

‘On 10 March, Lord Sales delivered the Cambridge Freshfields Annual Law Lecture on the topic of “constitutional values in the common law of obligations”. The lecture, which has not been discussed so far on this blog, seeks to explain how constitutional values familiar from the world of public law (such as freedom of expression, liberty and access to justice) feature in private law areas such as tort and contract. In the course of the speech, Lord Sales articulates a particular conception of how the European Convention on Human Rights (ECHR) relates to the way UK courts resolve disputes between private parties, an issue commonly referred to following the Human Rights Act 1998 (HRA) as “horizontal effect”. Lord Sales’ picture, which is summarised briefly below, is revealing because it offers an insight into how the Supreme Court, as currently constituted, seems to have shifted its approach in relation to horizontal effect. As I explain, the HRA’s horizontal effect was central in particular to the development of the English law of privacy. More recently, however, there is evidence of the court rejecting arguments based on the ECHR and HRA in the private law context. This can be understood as a continuation of a well-documented and controversial trend discernible in public law decisions, where the court has criticised the tendency to focus on the HRA and increasingly championed common law constitutional rights.’

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UK Constitutional Law Association, 17th May 2023

Source: ukconstitutionallaw.org

John Stanton: Law, Localism, and the Constitution: A Comparative Perspective – UK Constitutional Law Association

Posted April 27th, 2023 in constitutional law, local government, news, parliament by sally

‘Local government is an aspect of UK constitutional law that is often neglected or overlooked. Councils, though, are a vital part of our governmental order, providing the services and opportunities, and making the decisions and policies, that shape a large part of our day-to-day lives. They are also the institutions of government with which the population interact most frequently. Local government across the UK, however, is hampered by the constitutional system of which it is part. The predominance of the sovereign Parliament and the lack of any codified constitutional provision means that councils in the UK are at the mercy of the centre and that they do not enjoy any protection from easy change, manipulation or prescription. This has a profound effect on the way in which councils operate, as my new book, “Law, Localism, and the Constitution: A Comparative Perspective”, explores.’

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UK Constitutional Law Association, 27th April 2023

Source: ukconstitutionallaw.org

Cassandra Somers-Joce: Government by WhatsApp: Where are we now? – UK Constitutional Law Association

‘A new Cabinet Office policy has recently been published which provides guidance on the use of instant messaging technologies, such as WhatsApp, by government officials. The policy discourages the use of non-corporate communications channels (“NCCCs”), particularly when these platforms are accessed on personal devices. The new policy is a welcome development in the regulation of “government by WhatsApp,” and demonstrates better practice with respect to the public law duties which are applicable in this context, namely, the Public Records Act 1958, the Freedom of Information Act 2000 and the common law duty of candour.’

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UK Constitutional Law Association, 22nd April 2023

Source: ukconstitutionallaw.org

David Erdos: Leave to Remain? Data Protection’s ‘Immigration Exemption’ Returns to Court – UK Constitutional Law Association

Posted April 17th, 2023 in bills, constitutional law, data protection, immigration, news by tracey

‘With both the Illegal Migration Bill and the Data Protection and Digital Information (No. 2) Bill currently before Parliament, it is clear that both immigration control and data protection are high on the UK political agenda. Both areas have also been prominent before the courts. Moreover, litigation by the Open Rights Group and the The3million challenging the UK data protection’s so-called “immigration exemption” (DPA 2018, Sch. 2, para. 4) has brought these areas together in a materially impactful way.’

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UK Constitutional Law Association, 17th April 2023

Source: ukconstitutionallaw.org