constitutional law – Page 3 – Current Awareness

Shona Wilson Stark and Raffael Fasel: Unconstitutionally Legal: How the UK Supreme Court Should Decide the Lord Advocate’s Reference – UK Constitutional Law Association

Posted October 4th, 2022 in constitutional law, news, parliament, referendums, Scotland, statutory interpretation, Supreme Court by sally

‘On 28 June 2022, the Lord Advocate referred to the UK Supreme Court (“UKSC”) the question of whether the Scottish Parliament has the power to legislate for a second independence referendum (“Indyref 2”) without an Order enabling it do so under section 30 of the Scotland Act 1998 (a “section 30 Order”). Assuming the UKSC will accept the reference, we argue that it should rule that the Scottish Parliament has no legal power to pass legislation facilitating an independence referendum without a section 30 Order. However, we propose that this does not prevent the UKSC from attempting to break the deadlock by declaring that the UK Government is acting unconstitutionally in a political sense if it does not make a section 30 Order. Of course, there is no guarantee that a section 30 Order would be issued – we consider alternative pathways to an Indyref 2, including possible invocations of constituent power, in a forthcoming article – but we argue that this would be a constitutionally proper and desirable approach for the UKSC to take.’

UK Constitutional Law Association, 3rd October 2022

Source: ukconstitutionallaw.org

Alexander Latham-Gambi: How Should We Teach the Johnson Government? (Possible) Pedagogical Shortcomings in the Face of (Arguable) Constitutional Vandalism – UK Constitutional Law Association

Posted September 16th, 2022 in constitutional law, government departments, legal education, news, universities by tracey

‘It may reasonably be argued that the Johnson Government launched a determined assault upon the UK constitutional settlement. We are failing in our duty as teachers of constitutional law if we do not equip our students with the tools to appraise this argument. Some of the features of the way in which public law is typically taught in UK universities stand in the way of so equipping our students. Or so I shall argue.’

UK Constitutional Law Association, 14th September 2022

Source: ukconstitutionallaw.org

Michael Foran: Interpretation after the Human Rights Act? The Principle of Legality and the Rule of Law – UK Constitutional Law Association

Posted September 12th, 2022 in bills, brexit, constitutional law, government departments, human rights, interpretation, news, rule of law, statutory interpretation by tracey

‘Last week Liz Truss’s cabinet decided to shelve the proposed British Bill of Rights. Quite a lot has been said about the Bill since it was announced and many have welcomed the quiet demise of what was perceived by some to be a dangerous inroad into our human rights protection. Others have suggested that the Bill would never have been able to make good on the hopes of those who wish to see the U.K. unshackled from the jurisdiction of the Strasbourg Court. Rajiv Shah, a former special advisor in the Ministry of Justice and the No 10 Policy Unit, argues that the Bill was presented as containing a lot of red meat – to encourage ECHR sceptics and dismay ECHR advocates – while in reality being little more than a vegan steak. On reflection this is a fairly accurate description. One area of concern, however, was the potential repeal of s. 3 of the Human Rights Act.’

UK Constitutional Law Association, 12th September 2022

Source: ukconstitutionallaw.org

Joshua Jowitt: Some Thoughts on the Animal Welfare (Sentience) Act 2022 – UK Constitutional Law Association

Posted September 7th, 2022 in animal cruelty, animals, constitutional law, news by sally

‘The Animal Welfare (Sentience) Act 2022 is a short piece of legislation of only six sections. The main purpose of the Act is the creation of a new Animal Sentience Committee (s.1; hereafter “ASC”). Comprised of independent, non-partisan experts from a range of relevant fields, their role is to scrutinise the extent to which the formulation or implementation of government policy has paid “due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings” (s.2(2)). Although the actual impact of the Act is as yet uncertain – to be expected given that, at the time of writing, the membership of the ASC has yet to be formally announced by the Department for Environment, Food and Rural Affairs – I hope that this post will show why the future operation of the ASC is not only of interest to Animal Lawyers, but to Public Lawyers more broadly.’

Constitutional Law Association, 7th September 2022

Source: ukconstitutionallaw.org

UK government submits indyref2 argument to Supreme Court – BBC News

Posted August 10th, 2022 in bills, constitutional law, devolution issues, government departments, news, referendums, Scotland, Supreme Court by sally

‘The UK government has submitted its argument in a case that could allow the Scottish Parliament to legislate for another independence referendum.’

BBC News, 9th August 2022

Source: www.bbc.co.uk

Lord Sales, Public Law Conference – Supreme Court

Posted August 2nd, 2022 in constitutional law, judiciary, lectures, news by tracey

‘Long Waves of Constitutional Principle in the Common Law.’

Supreme Court, 19th July 2022

Source: www.supremecourt.uk

Edmund Robinson: Fumbling with interpretation – Clause 5 of the Bill of Rights and the positive obligations challenge – UK Constitutional Law Association

Posted July 27th, 2022 in bills, brexit, constitutional law, human rights, interpretation, news by sally

‘The ‘Bill of Rights Bill’, repealing and replacing the Human Rights Act, has already attracted significant criticism. This post focuses on clause 5, with which the government seeks to give effect to its previously expressed scepticism regarding ‘positive obligations’. These are duties on the authorities to take positive measures to protect individuals from human rights breaches, rather than merely refraining from breaching those rights with their own actions. The obligation to protect those suffering domestic violence is such an obligation.’

UK Constitutional Law Association, 27th July 2022

Source: ukconstitutionallaw.org

When is a Right not a Right? The British Bill of Rights – Oxford Human Rights Hub

Posted July 8th, 2022 in bills, brexit, constitutional law, human rights, news by sally

‘The Bill of Rights Bill, which repeals the Human Rights Act 1998, claims to ‘give effect’ to the rights set out in the European Convention on Human Rights. (Cl. 2). But its core aim is to ‘increase democratic oversight of human rights issues’ (Explanatory Note 2. B. p. 3). This aim is sought in a number of ways, one of the most important being set out in Clause 7.’

Oxford Human Rights Hub, 7th July 2022

Source: ohrh.law.ox.ac.uk

Brian Christopher Jones: The emerging ‘Nothing to See Here’ judicial review defences – UK Constitutional Law Association

Posted July 8th, 2022 in constitutional law, judicial review, news by sally

‘The dominant narrative in the discussion over judicial review—and especially in relation to judicial overreach—focuses on major cases, and what can be gleaned from these in terms of doctrine, constitutional principle, and the balance of powers within the UK constitution. But this seems to be changing. There’s an emerging empirical trend (chp 7) in judicial review research that pushes back against this focus, and seeks to understand and portray JR in a wider context than is often presented in more traditional legal scholarship. The mindset of the empirical movement is reflected in a line from a recent Public Law article by Paul Craig, who quips: “I do not mind how many times Evans is cited, it still only counts as one case” (Jan 2022, p 24). That may be true, but there remain significant problems with this mentality when assessing judicial overreach, and though the research is relevant and important, there are reasons to be sceptical about these empirical defences of judicial review.’

UK Constitutional Law Association, 7th July 2022

Source: ukconstitutionallaw.org

Stefan Theil: Henry VIII on steroids – executive overreach in the Bill of Rights Bill – UK Constitutional Law Association

Posted July 7th, 2022 in bills, constitutional law, constitutional reform, human rights, ministers' powers and duties, news, statutory interpretation by sally

‘Constitutional bombshells do not come along very often, most change is incremental and piecemeal – or at least that was the conventional wisdom that prevailed on the UK constitution for many decades. More recently, it appears that scarcely a month passes without suggestions, discussions, proposals, or enactments of far-reaching constitutional reforms – whether through government consultations, changes to the ministerial code, the political and legal constitution and devolution, or bills specifically introduced into Parliament to break international law.’

UK Constitutional Law Association, 6th July 2022

Source: ukconstitutionallaw.org

Anurag Deb and Nicholas Kilford: The UK Internal Market Act: Devolution Minimalism and the Competence Smoke Screen – UK Constitutional Law Association

Posted July 6th, 2022 in constitutional law, devolution, devolution issues, news, Scotland by sally

‘The UK’s territorial constitution is, at present, under a great deal of pressure. Those familiar with one force unsettling the devolution framework — the attempts to override the Northern Ireland Protocol — will no doubt recall the legislation that first countenanced a similar approach: the UK Internal Market Act 2020 (UKIMA). This piece of legislation is, however, once again causing its own stir, this time in the form of a clash between Scottish and UK ministers over gene-editing regulations.’

UK Constitutional Law Association, 4th July 2022

Source: ukconstitutionallaw.org

Iain Jamieson: Effect of the Bill of Rights upon the meaning of Convention Rights under the Scotland Act – UK Constitutional Law Association

Posted July 6th, 2022 in brexit, constitutional law, devolution issues, human rights, news, Scotland by sally

‘The relationship between the Scotland Act 1998 (“the SA”), Convention rights and the Human Rights Act 1998 (“the HRA”) is well known.’

UK Constitutional Law Association, 5th July 2022

Source: ukconstitutionallaw.org

Research briefing: The UK Overseas Territories and their Governors – House of Commons Library

Posted July 5th, 2022 in colonies, constitutional law, news by tracey

‘The UK has 14 Overseas Territories. The paper describes the role of UK-appointed Governors to make law and policy on reserved topics, such as external affairs.’

House of Commons Library , 30th June 2022

Source: commonslibrary.parliament.uk

Karolina Szopa and Jamie Fletcher: The Future of Abortion Rights under the European Convention on Human Rights in Light of Dobbs – UK Constitutional Law Association

Posted July 4th, 2022 in abortion, constitutional law, human rights, news, pregnancy, women by tracey

‘On Friday 24th June 2022, in Dobbs v Jackson Women’s Health Organization, the US Supreme Court (SCOTUS) overruled the right to an abortion nearly 50 years since it first declared it a constitutionally protected right. An outpour of protests and condemnation followed the release of the opinion, with many legal professionals, politicians and NGOs across Europe speaking out against the devastating consequences this decision will have on women’s and other pregnant people’s rights in the US. Pregnancy holds implications for women’s physical and social identity, with repercussions on the woman’s economic status, her chance for education, career and ability to pursue the life she chooses, not least to mention her physical health. In the opinion of this blog’s authors, a pivotal decision such as access to an abortion should be shielded from state interference.’

UK Constitutional Law Association, 30th June 2022

Source: ukconstitutionallaw.org

Daniella Lock: Three Ways the Bill of Rights Bill Undermines UK Sovereignty – UK Constitutional Law Association

Posted June 27th, 2022 in bills, brexit, constitutional law, government departments, human rights, news, parliament by tracey

‘The Bill of Rights Bill is framed by the Government as necessary to ensure “meaningful democratic oversight” of human rights protection in the UK, with Conservative MPs keen to present the Bill as a means to restore sovereignty in the face of interfering judges – both at the level of the European Court of Human Rights (ECtHR) and UK courts. However, as this post will argue, the Bill undermines sovereignty and meaningful democratic oversight of rights protection in at least three ways not acknowledged by the Government and the Bill’s supporters. These are in the Bill’s process, presentation and procedures. That is, sovereignty is undermined by, first, the Bill’s process through Parliament, second, its presentation to Parliament by the Government, and third, via the procedures contained in the Bill that facilitate executive interference with judicial scrutiny of human rights protection. As we will see, while the Government purports to be placing parliamentary authority at the centre of UK human rights protection, in reality the executive is seeking more power to manipulate human rights law to its own advantage.’

UK Constitutional Law Association, 27th June 2022

Source: ukconstitutionallaw.org

Ronan Cormacain: Does the Vienna Convention provide a legal off-ramp for unilaterally changing the Northern Ireland Protocol? – UK Constitutional Law Association

Posted June 15th, 2022 in brexit, constitutional law, EC law, government departments, international law, news, Northern Ireland by sally

‘The Northern Ireland Protocol is part of the Withdrawal Agreement, designed to set out the legal parameters of the withdrawal of the UK from the EU. The Government proposes to introduce legislation to unilaterally change the Protocol. On the face of it, this would appear to place the Government on the highway to a breach of international law. But are there any off-ramps which allow it to avoid this destination? This blog post examines one possible off-ramp, that this course of action is consistent with the Vienna Convention on the Law of Treaties 1969.’

UK Constitutional Law Association, 13th June 2022

Source: ukconstitutionallaw.org

Sir Jonathan Jones QC (Hon): The Northern Ireland Protocol, International Law and the Attorney General – UK Constitutional Law Association

Posted May 30th, 2022 in attorney general, brexit, constitutional law, international law, news, Northern Ireland by sally

‘The Times recently (11 May 2022) reported that the Attorney General, Suella Braverman, had received, and given, legal advice to the effect that proposed government action in relation to the Northern Ireland Protocol was compatible with international law. As I write, we have still not seen details of either the proposals or the legal arguments on which the government intends to rely. What is going on?’

UK Constitutional Law Associaiton, 30th May 2022

Source: ukconstitutionallaw.org

Lady Rose, Oxford Union talk – Supreme Court

Posted May 13th, 2022 in constitutional law, judges, judiciary, speeches, Supreme Court by tracey

‘Lady Rose, Oxford Union talk.’

Supreme Court, 12th May 2022

Source: www.supremecourt.uk

The Government’s Proposed Bill Of Rights Is A ‘Power Grab’ – Each Other

Posted May 12th, 2022 in bills, constitutional law, consultations, criminal justice, human rights, news by sally

‘On the same day Prince Charles declared in the Queen’s Speech that the government intends to replace the Human Rights Act (HRA) with a new Bill of Rights, civil liberties activists rallied behind a campaign in what may be a last attempt to protect it.’

Each Other, 11th May 2022

Source: eachother.org.uk

Gabriel Tan: Recent developments on declaratory relief in Public Law – UK Constitutional Law Association

Posted April 8th, 2022 in constitutional law, declaratory judgment, news by sally

‘It is often thought trite that remedies in public law are the quintessential area where judges enjoy a significant amount of discretion. In the words of Sir Clive Lewis (now Lewis LJ), “There is no perceivable rule governing which remedy to use [to remedy unlawful acts] and no particular pattern emerges from the case law.”’

UK Constitutional Law Assoication, 6th April 2022

Source: ukconstitutionallaw.org

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