constitutional law – Page 3 – Current Awareness

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.’

UK Constitutional Law Association, 17th April 2023

Source: ukconstitutionallaw.org

Tarun Khaitan: A Fourth Branch of the State? On Constitutional Guarantors in the UK – UK Constitutional Law Association

Posted March 31st, 2023 in constitutional law, constitutional reform, Equality and Human Rights Commission, government departments, news, parliament by sally

‘In its Report setting the agenda for a likely Labour government after the next elections, the Brown Commission has set out an ambitious programme of constitutional reform. In a previous post, I examined its recommendation in relation to a fully elected second chamber to replace the House of Lords. In this post, I will examine its recommendations concerning bodies that comparative constitutional scholarship calls ‘fourth branch’ or guarantor institutions. The Report recommends the setting up of three new independent constitutional guarantors: an Integrity & Ethics Commission to enforce the code of ministerial conduct, an Appointments Commission for merit-only appointments to public bodies, and an Anti-Corruption Commissioner. It also recommends further empowerment of the Equality and Human Rights Commission to provide evidence on the implementation of the new proposed social rights, ‘with a remit, membership and staffing substantially altered to give it capacity to do so.’ It seeks to offer a new constitutional mandate to the UK Infrastructure Bank and rename it as the British Regional Business Investment Bank.’

UK Constitutional Law Association, 30th March 2023

Source: ukconstitutionallaw.org

Isobel Renzulli: Begum v SSHD (2023): A restrictive approach to Article 4 ECHR – UK Constitutional Law Association

Posted March 29th, 2023 in appeals, citizenship, constitutional law, government departments, human rights, immigration, news, terrorism, trafficking in human beings, victims by sally

‘On 22 February 2023, the judgment of the Special Immigration Appeals Commission (‘SIAC’ or ‘the Commission’) was published, upholding the Home Secretary’s decision to deprive Shamima Begum of her British citizenship under section 40(2) of the British Nationality Act 1981 (‘‘the BNA 1981’’) on the ground that it would be conducive to the public good to do so, because her return to the United Kingdom would present a national security risk.’

UK Constitutional Law Association, 29th March 2023

Source: ukconstitutionallaw.org

Jeremy Letwin: The Bill of Rights Bill and the Modern Mirror Principle – UK Constitutional Law Association

Posted March 15th, 2023 in bills, brexit, constitutional law, government departments, human rights, news by sally

‘The Bill of Rights Bill which is currently before Parliament aims, at least in some respects, to weaken the link between domestic courts and the ECtHR. Many predicted the Bill might seek to do this, and it has provoked considerable controversy. Though clauses 3(1) and 3(2) of the Bill are not without their critics, the controversy has mainly focused on clause 3(3)(b), which provides that the domestic courts “may adopt an interpretation of the right that diverges from Strasbourg jurisprudence”, and on clause 3(3)(a), which provides that domestic courts “may not adopt an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it”.’

UK Constitutional Law Association, 14th March 2023

Source: ukconstitutionallaw.org

Kacper Majewski: Re Allister: The End of ‘Constitutional Statutes’? – UK Constitutional Law Association

Posted February 23rd, 2023 in brexit, constitutional law, EC law, judicial review, news, Northern Ireland, prerogative powers, Supreme Court, treaties, ultra vires by sally

‘On 8 February, the Supreme Court handed down its unanimous judgment in Re Allister [2023] UKSC 5. What follows is an attempt to clarify the judgment’s significance for the doctrine of constitutional statutes, as first canvassed by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin).’

UK Constitutional Law Association, 21st February 2023

Source: ukconstitutionallaw.org

New Judgment: James Hugh Allister and others and Clifford Peeples v the Secretary of State for Northern Ireland and others [2023] UKSC 5 – UKSC Blog

Posted February 9th, 2023 in brexit, constitutional law, EC law, judicial review, news, Northern Ireland, prerogative powers, treaties, ultra vires by sally

‘These proceedings challenge the lawfulness of the Northern Ireland Protocol (“the Protocol”), which formed part of the agreement between the United Kingdom (“the UK”) and the European Union (“the EU”) regarding the UK’s exit from the EU. The Protocol was given legal effect by section 7A (“section 7A”) of the European (Withdrawal) Act 2018 (“the 2018 Act”).’

UKSC Blog, 8th February 2023

Source: ukscblog.com

Gordon Guthrie: Brown vs Dewar – The Labour Commission on the UK’s Future – UK Constitutional Law Association

Posted February 8th, 2023 in constitutional law, constitutional reform, devolution, devolution issues, news, political parties, Scotland by sally

‘With the publication of Labour’s Commission on the UK’s Future it is worth contrasting the approach that Gordon Brown and his colleagues have taken with the very successful devolutionary legacy of Donald Dewar.’

UK Constitutional Law Association, 8th February 2023

Source: ukconstitutionallaw.org

Conor Casey: House of Lords Constitution Committee Rejects Significant Reform to UK Law Officers – UK Constitutional Law Association

Posted February 1st, 2023 in attorney general, constitutional law, constitutional reform, government departments, news, select committees by sally

‘The Attorney General and Solicitor General are the UK government’s principal legal advisors. Known collectively as the Law Officers, the origins of these ancient constitutional officers date back to the 13th Century. Historically, the Law Officers were leading barristers who acted as the Crown’s personal lawyers, fiercely representing their interests in legal proceedings. As political power passed from the Crown to the Prime Minister and their Cabinet, the Law Officers eventually became salaried ministers. Appointed and removed by the Crown on the advice of the Prime Minister, Law Officers today are typically qualified lawyers with experience in practice who are also political figures; as members of one of the Houses of Parliament, a member of government, and senior member of the governing political party.’

UK Constitutional Law Association, 31st January 2023

Source: ukconstitutionallaw.org

Robert Greally: The Brown Report: Political Legitimacy and the Power of the Assembly – UK Constitutional Law Association

Posted January 27th, 2023 in constitutional law, constitutional reform, news, parliament, peerages & dignities, reports by sally

‘The Brown Commission has recommended replacing the House of Lords with an elected Assembly of the Nations and Regions of the UK. In recent posts, the Commission’s proposals for legally empowering the Assembly to scrutinise bills and to protect the constitution have come under criticism on several grounds. First, there are concerns that the Assembly would be unable effectively to scrutinise ordinary bills, as unlike the Lords, the Assembly would lack the legal power to delay such bills. Second, the Assembly would be vested with the power to veto bills which amend existing constitutional arrangements. Yet the Commission not only fails to provide a definitive list of existing constitutional statutes that could be protected by the veto but also envisaged that in exceptional circumstances the House of Commons may still assert its primacy through a specific but currently undetermined processes. Thus, it has been argued the proposed position is not drastically different from the existing legislative process established by the Parliament Acts. Third, there is an implicit concern that the Assembly’s elected membership may hinder rather than facilitate the Assembly in scrutinising and protecting the constitution.’

UK Constitutional Law Association, 26th January 2023

Source: ukconstitutionallaw.org

Don’t meddle with law officers, thinktank warns government – Law Society’s Gazette

Posted January 18th, 2023 in attorney general, constitutional law, constitutional reform, government departments, news by tracey

‘Ministers should resist calls to end the political role of government law officers, a centre-right thinktank argues today in the run-up to publication of an influential parliamentary report. In a paper “Between Law and Politics: The Future of the Law Officers in England & Wales”, published by Policy Exchange, Dr Conor Casey of the University of Liverpool School of Law argues that the current configuration of the attorney general and solicitor general as law officers with legal and political dimensions works well. Moving to an alternative model of, for example, law officers without any political involvement is not worth it and has potential serious downsides, Casey states.’

Law Society's Gazette, 17th January 2023

Source: www.lawgazette.co.uk

Mohamed Moussa: The ‘Absent Word’ Canon and Asymmetrical Sovereignty – UK Constitutional Law Association

Posted December 21st, 2022 in bills, constitutional law, drafting, interpretation, news, Scotland, statutory interpretation by sally

‘The UK Supreme Court (UKSC) recently issued its unanimous judgment which found the draft Scottish Independence Referendum Bill to be outside the legislative competence of the Scottish Parliament. While the facts of this case are distinctively different from previous Scottish cases, a common theme remains in the Court’s insistence on ‘ordinary meaning of words’ as its ‘general approach to the interpretation of the Scotland Act’. According to such an approach, the Court prioritises ‘the language carefully chosen by the Parliamentary drafter and enacted by Parliament’ as ‘[t]he best way of ensuring a coherent, stable and workable outcome’. The purpose of this blog post is not to explore the facts of this particular case. Rather, it focuses on the UKSC’s repeated stress of textualism. A similarity is found in the Court’s textual interpretation of Section 28(7), which was understood to affirm the doctrine of parliamentary sovereignty and served as the crux of its previous cases on devolution. The aim of the post is to show the questionable nature of the Court’s textual fidelity and highlight that it runs counter to foundational canons of interpretation. For space constraints, my argument focuses mainly on Section 21 from the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill Reference (UNCRC Incorporation Bill case) after briefly discussing section 17 of the Scottish Legal Continuity Bill.’

UK Constitutional Law Association, 20th December 2022

Source: ukconstitutionallaw.org

Adam Tucker: Entrenchment, Parliamentary Sovereignty, and the Limited Radicalism of the Brown Report – UK Constitutional Law Association

Posted December 16th, 2022 in constitutional law, constitutional reform, news, parliament, peerages & dignities, reports by tracey

‘The publication of the Report of the Commission on the UK’s Future is attracting widespread attention. The centrepiece of its constitutional content is the replacement of the House of Lords with a new second chamber with new composition and a reformed role, which would have particular responsibility for territorial aspects of the constitution (discussed here) and act as guardian of (newly) entrenched elements of the constitution –not just in the devolution context but also more widely.’

UK Constitutional Law Association, 15th December 2022

Source: ukconstitutionallaw.org

Permacrisis in Public Law? With Sir Jonathan Jones KCB KC – Law Pod UK

Posted December 13th, 2022 in brexit, constitutional law, human rights, judicial review, news, Northern Ireland, standards by sally

‘Emma-Louise Fenelon speaks with Jonathan Jones about recent developments in UK public law and the Constitution. The discussion covers recent political turbulence, the Union, the Northern Ireland Protocol, Judicial Review reforms, Human Rights Act reforms and standards and ethics in public life.’

Law Pod UK, 12th December 2022

Source: audioboom.com

Elizabeth A. O’Loughlin, Gabriel Tan and Cassandra Somers-Joce: The Duty of Candour in Judicial Review: The Case of the Lost Policy – UK Constitutional Law Association

Posted December 7th, 2022 in constitutional law, disclosure, government departments, judicial review, news by sally

‘Earlier this year, in a Divisional Court judgment that garnered much attention from public lawyers, the Home Office conceded that its secret and blanket policy of seizing and downloading data from the mobile phones of all those arriving by small boats was unlawful: R (HM, MA and KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin). Having initially denied the existence of the blanket policy as “based on anecdote and surmise” in pre-action correspondence, a position from which the government did not resile following the commencement of judicial review proceedings, the defendant belatedly accepted in advance of the hearing that such a policy did indeed operate between April and November 2020 (para 32). The defendant ultimately accepted that their position prior to this point was “inadvertently inconsistent with the duty of candour” and offered an “unreserved apology” (para 32).’

UK Constitutional Law Association, 7th December 2022

Source: ukconstitutionallaw.org

Ronan Cormacain: The rise and rise of the super-enabling clause – UK Constitutional Law Association

Posted December 2nd, 2022 in constitutional law, legislation, news, rule of law by tracey

‘It has become increasingly popular to include what I term a “super-enabling clause” in primary legislation. It is my contention these clauses are bad for democracy and the rule of law. ‘

UK Constitutional Law Association, 30th November 2022

Source: ukconstitutionallaw.org

Colin Murray: A New Period of “Indirect” Direct Rule – The Northern Ireland (Executive Formation etc) Bill – UK Constitutional Law Association

Posted November 30th, 2022 in bills, brexit, constitutional law, EC law, government departments, news, Northern Ireland by sally

‘Only a few short months on from the passing of the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 and legislation is once again before Westminster to amend the Northern Ireland Act 1998 – as everyone knew that it would be. One of the key innovations in the 2022 Act, belatedly giving effect to a proposal in the New Decade, New Approach Agreement of January 2020, was that during its 24-week post-election period Northern Ireland Executive ministers would continue to hold office and take decisions within their remit. This period prevented what Lord Bingham referred to in Robinson as a “persisting vacuum in the conduct of devolved government” (para 15). Its extended duration under the 2022 legislation was intended to provide a sufficient window after an election for a new power sharing administration to be formed, but to keep a count-down to new elections in place to focus Northern Ireland’s major parties towards that end. This arrangement, however, has proven no more effective as an impetus than the terms that it replaced.’

UK Constitutional Law Association, 29th November 2022

Source: ukconstitutionallaw.org

Chris Himsworth: Referendum Bill Consequentials – UK Constitutional Law Association

Posted November 30th, 2022 in bills, constitutional law, devolution, devolution issues, news, parliament, referendums, Scotland, Supreme Court by sally

‘At paras 56-57 of their judgment, the court in Reference by the Lord Advocate of devolution issues ([2022] UKSC 31) declared: “The central issue is whether legislation for a referendum on Scottish independence would relate to a reserved matter…. The critical question is accordingly whether the proposed Bill would relate to the Union of the Kingdoms of Scotland and England or the Parliament of the United Kingdom”.’

UK Constitutional Law Association, 29th November 2022

Source: ukconstitutionallaw.org

New Judgment: Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31 – UKSC Blog

Posted November 24th, 2022 in bills, constitutional law, devolution, devolution issues, government departments, news, referendums, Scotland, Supreme Court by sally

‘The Scottish Government drafted a Scottish Independence Referendum Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?”. Under the Scotland Act 1998 (“the Scotland Act”), the power of the Scottish Parliament to make legislation (or its “legislative competence”) is limited. A provision of a Bill will be outside the legislative competence of the Scottish Parliament and therefore not law if it relates to the matters which have been reserved to the United Kingdom Parliament in Westminster (sections 29(1) and (2)(b)). These reserved matters include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)).’

UKSC Blog, 23rd November 2022

Source: ukscblog.com

Saba Shakil: Bridging the gap between remedial reform and judicial practice: A study of challenges to delegated legislation – UK Constitutional Law Associaton

Posted November 24th, 2022 in bills, constitutional law, government departments, human rights, judiciary, news by sally

‘The resurrected Bill of Rights Bill (BoRB) shows that the government is continuing to grasp at the wrong end of the remedies stick – and it will continue to do so until it pays attention to the evidence. ‘

UK Constitutional Law Association, 24th November 2022

Source: ukconstitutionallaw.org

Supreme court rules against Scottish parliament holding new independence referendum – The Guardian

Posted November 23rd, 2022 in bills, constitutional law, devolution, devolution issues, government departments, news, referendums, Scotland, Supreme Court by sally

‘The Scottish parliament cannot hold a second independence referendum without Westminster approval, the UK supreme court has ruled, in a unanimous judgment likely to anger Scottish nationalists who say the country’s future is for Scottish voters to decide.’

The Guardian, 23rd November 2022

Source: www.theguardian.com

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