Tim Sayer: Preserving Judicial Oversight: An Appeal to Self-Interest – UK Constitutional Law Association

‘Boris Johnson’s government takes the view that ours is a time of judicial overreach, necessitating redress in terms of the balance of judicial and executive power. This seems to have been driven by a number of high-profile cases, certain vocal thinktanks which appear to have the ear of government, and a wider constitutional prospectus of enhancing executive power to the detriment of the other branches of state. An endless series of projects and proposals have emerged, designed to remedy the perception of an overmighty judiciary. The Independent Review of Administrative Law, established with a view to curbing the perceived excesses of judicial review, reported recently in relatively tame terms, only to be swiftly followed by a further set of proposals. The Independent Human Rights Act Review potentially paves the way for satiation of long-held Conservative fantasies of amending the Human Rights Act. There are also, if leaks are to be believed, proposals to reform the UK Supreme Court.’

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UK Constitutional Law Association, 21st April 2021

Source: ukconstitutionallaw.org

Parliament’s power needs to be restored after its ‘shocking’ marginalisation by government – UCL Constitution Unit

‘The Constitution Unit has jointly written a briefing to all MPs – summarised in a letter in the Times published on 21 April 2021 – with the Hansard Society, Public Law Project and Bingham Centre for the Rule of Law warning that parliamentary accountability and control over decisions have diminished to a degree that would have been unthinkable before COVID-19. Individual MPs have also been shut out of participation, and the vast majority of Commons votes are now held by party whips.’

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UCL Constitution Unit, 21st April 2021

Source: www.ucl.ac.uk

‘No meaningful parliamentary debate or scrutiny’ of Covid laws, says former government legal chief – The Independent

‘The British government’s former top lawyer has called for urgent changes to the way coronavirus laws are made after a year without any “meaningful parliamentary debate or scrutiny”.’

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The Independent, 20th April 2021

Source: www.independent.co.uk

Covid-19 and the courts – The House of Lords Constitution Committee’s report – Transparency Project

Posted April 14th, 2021 in constitutional law, coronavirus, courts, inquiries, news, select committees by sally

‘In a report published at the end of last month the House of Lords Constitution Committee made a number of criticisms of the way the courts have responded to the coronavirus pandemic and the suspension of live hearings necessitated by the lockdown, and made various recommendations as to the need for more resources to reduce the backlog of cases and create a better justice system for the future.’

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Transparency Project, 11th April 2021

Source: www.transparencyproject.org.uk

Joe Tomlinson and Alison Pickup: Putting the Cart before the horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews – UK Constitutional Law Association

‘The Independent Review of Administrative Law has now reported. For a review process that was unnecessarily quick, the Expert Panel, led by Lord Faulks QC, has produced a substantial and detailed analysis. The Report has rightly drawn broad support from across the political spectrum—even if the Government’s support for the report has been accompanied by a new consultation which departs from the Report’s findings on various important points. No doubt, the focus will now shift to the new consultation. However, in this post we want to respectfully take issue with one of the firm conclusions of the Panel: that Cart judicial reviews ought to be discontinued on the basis they are a disproportionate use of judicial resource.’

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UK Constitutional Law Association, 29th March 2021

Source: ukconstitutionallaw.org

Florence Powell and Stephanie Needleman: How radical an instrument is Section 3 of the Human Rights Act 1998? – UK Constitutional Law Association

‘The operation of the Human Rights Act 1998 (the “HRA”) is currently being reviewed by the Government’s Independent Human Rights Act Review (the “Review”). One of the Review’s key themes is “the impact of the HRA on the relationship between the judiciary, the executive and the legislature”. In respect of this theme, the Terms of Reference ask how s.3 has operated and whether it should be amended or repealed.’

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UK Constitutional Law Association, 24th March 2021

Source: ukconstitutionallaw.org

Craig Prescott: Modernising the Monarchy: Moving Beyond the 1917 Letters Patent and the “George V Convention” – UK Constitutional Law Association

Posted March 23rd, 2021 in constitutional law, equality, news, peerages & dignities, royal family by sally

‘In March 2021, Meghan, Duchess of Sussex, gave one of the most extraordinary interviews ever held with a member of the Royal Family. It may have a profound and long-lasting effect on the monarchy, an institution that remains central to the UK’s constitutional arrangements. Already, there are calls for reform. This blog focuses on the section of the interview that discussed the lack of princely status for Archie, the Sussexes’ eldest child.’

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UK Constitutional Law Association, 23rd March 2021

Source: ukconstitutionallaw.org

Michael Foran: Shamima Begum, the Separation of Powers, and the Common Good – UK Constitutional Law Association

‘The Supreme Court has come under significant criticism for its handling of the Shamima Begum case, decided on 26 February. Much has already been said in relation to the deference that the court showed to the executive, with some arguing that it was improper or even a complete abdication of the judicial role itself. This post seeks to clarify what precisely the court did and did not do in relation to the exercise of its constitutional duty to review the legality of executive action. It will suggest that the Court did not engage in any strong deference as to the nature of Begum’s rights nor to the balance to be struck between those rights and the common good. Such questions remained wholly within the purview of the Court. While the Court did pay due respect to the executive’s authority to determine and pursue the common good, this was subject to an assessment of lawfulness. Any deference, if it can even be called deference, was to the rule of law, given both the statutory scheme in question and the common law distinction between review and appeal. The determination of the scope of individual rights entails an exercise of judicial interpretation which seeks to strike an appropriate balance between the applicable legal considerations. It is not deference for the court to include constitutional principles such as the separation of powers within those considerations.’

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UK Constitutional Law Association, 17th March 2021

Source: ukconstitutionallaw.org

Mikołaj Barczentewicz: An empirical study of the gender of counsel before the UK’s highest court – UK Constitutional Law Association

‘During the live television coverage of the Supreme Court hearings in Miller (No 1), some commentators (and no doubt many members of the public) noted that almost all lawyers in the courtroom were male. That image of the UK’s “Supreme Court bar” (to borrow a US term), though not entirely accurate, highlighted an ongoing problem with gender representation. In a new study (available here), I analysed the trends of gender and seniority in counsel appearances before the House of Lords and the Supreme Court from 1970 to 2020 based on a unique dataset I created covering 5,041 lawyers and 2,714 judgments. I found that there are some very optimistic signs regarding appearances of the most junior counsel. However, gender balance among the more senior counsel is not as good and has not been clearly improving over the most recent years, which matters because counsel with more experience before the highest court dominate litigation in that court. The unprecedented representation of women among the most junior counsel in the Supreme Court gives nevertheless a reason to believe that the situation will improve also among the more senior counsel.’

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UK Constitutional Law Association , 15th March 2021

Source: ukconstitutionallaw.org

Max Taylor: Parliamentary Confirmation of Ministerial Nominations – UK Constitutional Law Association

Posted March 11th, 2021 in constitutional law, Crown, ministers' powers and duties, news, parliament by sally

‘In terms of government formation, there are two kinds of parliamentary system: “…countries where the government needs to win an investiture vote are said to have positive parliamentarism, while countries in which the government just needs to be tolerated by parliament are said to have negative parliamentarism”. By this definition, the UK has a negative parliamentary system (excepting s. 2(5), Fixed-Term Parliaments Act 2011): the Queen appoints the Prime Minister by inviting him to form a Government; and subsequent ministers are appointed by the Queen on the advice of the PM; but the House of Commons may move that it has no confidence in HM Government. Compared to a positive parliamentary system – e.g. Spain, where the appointment of the King’s prime ministerial nominee requires a successful vote of confidence by an absolute majority of the Congress of Deputies – a negative one has three disadvantages. These are that there is a democratic deficit in the Government; obscurity in a Government’s democratic mandate, under hung parliaments; and that there are inadequate checks and balances between the Government and Parliament.’

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UK Constitutional Law Association, 11th March 2021

Source: ukconstitutionallaw.org

Daniella Lock: The Shamima Begum Case: Difficulties with ‘democratic accountability’ as a justification for judicial deference in the national security context – UK Constitutional Law Association

‘No doubt much will be written on the Supreme Court’s Shamima Begum ruling handed down on 26 February. The ruling has a number of notable features. In particular, a high level of deference was afforded to the executive which seems to contrast with the Supreme Court’s approach in high profile constitutional cases of recent years (such as, for example, in the Miller cases). A key feature of this deference is that it is offered in a national security context, where judicial deference has often played a role. This deference is partly justified by the Court on the grounds that Ministers are democratically accountable for national security decisions. However, as this post argues, the extent to which democratic accountability is a legitimate ground for judicial deference to national security decisions is questionable in light of current UK practice. This post raises three difficulties with relying on democratic accountability as a ground for deference in the UK national security context.’

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UK Constitutional Law Association, 9th March 2021

Source: ukconstitutionallaw.org

Steven Chaplin: Review of Parliaments and the Pandemic – UK Constitutional Law Association

‘As the pandemic moves into its second year, the effects on Parliaments, not only as legislating and accountability bodies but as institutions, are becoming more apparent. What began as a series of emergency measures imposed by government, generally supported by all parties, has given way to longer term concerns regarding government accountability and the sidelining of Parliament, along with some consideration and re-imagining of post-pandemic Parliaments.’

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UK Constitutional Law Association, 8th March 2021

Source: ukconstitutionallaw.org

Daniella Lock, Fiona de Londras and Pablo Grez Hidalgo: Parliamentary Engagement with Human Rights under COVID-19 and the Independent Human Rights Act Review – UK Constitutional Law Association

‘As the deadline for submissions to Independent Human Rights Act Review (IHRAR) passes this week, the appropriate division of constitutional labour in respect of human rights protection continues to attract debate. The terms of reference for the IHRAR suggests a focus on the role of the courts in protecting rights under the Human Rights Act 1998 (HRA). In particular, it asks whether the roles of the courts, Parliament and the Government are appropriately “balanced” in this respect. In our submission to the IHRAR we have highlighted that, in line with the structure and principles of the UK constitution, the HRA is designed to give Parliament a leading role in human rights protection. In spite of this, however, we have further noted that Parliament too often fails to undertake appropriate rights-related deliberation, scrutiny and engagement of legislative and policy action.’

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UK Constitutional Law Association, 3rd March 2021

Source: ukconstitutionallaw.org

James Bevan: ‘10-year prison sentences for breaching COVID-19 entry requirements into the United Kingdom’? Governmental Decree is undermining the Rule of Law – UK Constitutional Law Association

‘The Secretary of State for Health, Matt Hancock, announced in Parliament on Tuesday 9th February that those returning from ‘red list’ countries who fail to disclose that fact could receive a 10-year prison sentence following conviction (see The Telegraph).’

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UK Constitutional Law Association, 24th February 2021

Source: ukconstitutionallaw.org

Does judicial review of delegated legislation under the Human Rights Act 1998 unduly interfere with executive law-making?- UK Constitutional Law Association

‘The relationship between delegated legislation and the Human Rights Act 1998 (HRA) is seemingly becoming a more contentious constitutional issue. Professor Richard Ekins published, as part of the Policy Exchange’s Judicial Power Project, an agenda for constitutional reform under the title of Protecting the Constitution. Amongst an extensive set of reform suggestions, Ekins proposes that the relationship between human rights, the courts, and delegated legislation ought to be recast.’

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UK Constitutional Law Association, 22nd February 2021

Source: ukconstitutionallaw.org

Ronan Cormacain: Queen’s Consent and the Crown’s exemption from lockdown rules – are we all in this together? – UK Constitutional Law Association

‘There have been recent revelations about the use of the Queen’s consent procedure in relation to Government Bills. At the heart of the issue is the role of the Queen and the Prince of Wales, in vetting Acts of Parliament before they are made. With that background, this paper examines the applicability of some of the coronavirus lockdown rules to Crown land. My conclusion is that the Crown has special and unjustified privileges in the both the content of legislation and the procedure for making it.’

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UK Constitutional Law Association, 15th February 2021

Source: ukconstitutionallaw.org

How the Queen lobbied for changes in the law to hide her wealth – The Guardian

Posted February 10th, 2021 in bills, constitutional law, news, parliament, podcasts, royal family by sally

‘Government memos discovered in the National Archives reveal that the Queen lobbied ministers to alter proposed legislation. The Guardian’s David Pegg follows the trail and explains its implications for a monarchy which is supposed to stay out of politics.’

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The Guardian, 10th February 2021

Source: www.theguardian.com

Davor Jancic: The UK-EU Trade Deal: Five Important Implications for the UK Parliament – UK Constitutional Law Association

Posted January 22nd, 2021 in bills, brexit, constitutional law, EC law, news, parliament by sally

‘The announcement of the UK-EU Trade and Cooperation Agreement (TCA) on Christmas Eve 2020 may have come as a surprise given endless media reports about the negotiators’ intransigence and the imminent threat of a cliff edge. Add to this the Covid-19 pandemic and some ten months and just nine formal rounds of negotiations make it remarkable that any deal has been reached, let alone one that spans 1246 pages. To put this in context, only a fortnight before the deal was reached, Australia concluded its own 9th formal round of negotiations with the EU; however, this was after over two and half years of negotiations, which will continue for the foreseeable future. And while the resounding parliamentary vote in favour of implementing the TCA (521 votes in favour and 73 against) is good for the political legitimacy of the deal, the swiftness of the vote is less good in terms of democratic process and participation.’

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UK Constitutional Law Association, 20th January 2021

Source: ukconstitutionallaw.org

Ronan Cormacain: Protecting Veterans or Protecting the Ministry of Defence? Clarity in the Overseas Operations Bill – UK Constitutional Law Association

‘Legislation needs to be clear so that citizens can understand it and parliamentarians know what they are voting for. The need for clarity in legislation is set out as the first principle of Bingham’s definition of the Rule of Law, and the need for intelligibility in legislation is a requirement of the Venice Commission Checklist on the Rule of Law. This is one of the rationales for a parliamentary democracy. The Overseas Operations (Service Personnel and Veterans) Bill is designed to offer legal protections to UK armed forces, and the Ministry of Defence, in relation to overseas military operations. The Bill’s Second Reading took place this week in the House of Lords. But the Bill is disingenuous: in form it is about protecting veterans, whilst in substance it is about protecting the Ministry of Defence.’

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UK Constitutional Law Association, 22nd January 2021

Source: ukconstitutionallaw.org

Carwyn Jones: Is Dicey dicey? – UK Constitutional Law Association

Posted January 18th, 2021 in constitutional law, devolution, news, parliament, rule of law, Supreme Court by sally

‘For nearly a hundred and fifty years, parliamentary sovereignty or supremacy (the terms are used interchangeably) has been taken as immutable and unchanging by the UK Parliament and the courts. As devolution has developed, the concept deserves greater examination to see whether the concept is as sound as it has been supposed.’

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UK Constitutional Law Association, 18th January 2021

Source: ukconstitutionallaw.org