‘All you need to know about decision on whether Scotland can hold new referendum without Westminster approval.’
The Guardian, 23rd November 2022
Source: www.theguardian.com
‘With the reinstatement of Dominic Raab as Secretary of State for Justice, the Bill of Rights Bill, currently before Parliament, is once again a possibility only weeks after Liz Truss halted its progression on account that it was a ‘complete mess’. This post examines the Bill’s provisions on overseas military operations, how they compare with the UK judiciary’s approach, the Overseas Operations (Service Personnel and Veterans) Act 2021, and the European Court of Human Rights (ECtHR) jurisprudence. Also highlighted are other extraterritoriality issues outside overseas military operations that the UK will have to consider.’
UK Constitutional Law Association, 22nd November 2022
Source: ukconstitutionallaw.org
‘Rising like an arguably rather dark phoenix from the ashes, the Bill of Rights Bill now appears back on the legislative agenda. Yet again, the repeal of the Human Rights Act 1998 (HRA) seems somewhat inevitable, unless cabinet will once again implode in turmoil. In this light, the potential of the common law to provide a system of rights protection of similar vigour to that of the HRA has rightly gained much attention. The previous debate has largely focused on the content and development of common law rights and the structural potentials of the common law constitution. In contrast, this post will shed some light on what Mark Elliott described as the rigour of rights protection. The repeal of s. 3 HRA is surely one of the major cuts of judicial competences that the Bill of Rights Bill aims to undertake. Reinforcing a suggestion made by Eirik Bjorge and Michael Foran, it will hence be argued that the judiciary may well fill this protection gap by applying the proactive principle of legality (PoL). The use of this principle, however, can only be justified by acknowledging a new doctrinal foundation that reconciles it with parliamentary sovereignty.’
UK Constitutional Law Association, 17th November 2022
Source: ukconstitutionallaw.org
‘In previous work, I have criticised the courts’ apparent confusion and/or uneasiness with the making of declarations of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”). I have argued that the courts have paid insufficient mind to the fact that the regime under sections 3-4 of the HRA is different to the regime under HRA sections 6-9. The related questions of who has standing to bring a section 4 claim and what “incompatibility” means are unresolved. In this post, I recap my argument and attempt to ignite a discussion about the proper purpose of section 4, prior to any future human rights reform.’
UK Constitutional Law Association, 16th November 2022
Source: ukconstitutionallaw.org
‘Before it entered the statute books, before it even had been brought to Parliament, the Human Rights Act (HRA) was subject to opposition which was to only strengthen over time. The nature of that opposition has varied since the publication of White Paper Rights Brought Home in October 1997, but it has served as a vehicle, and site of contestation, for many constitutional debates and disagreements over the past quarter century. Opposition to the HRA is also a reflection of broader social change in British society in the twenty-first century and this understanding is key to any analysis of contemporary proposals for reform.’
UK Constitutional Law Association, 14th November 2022
Source: ukconstitutionallaw.org
‘Recently I have had the great pleasure of convening the SLS Annual Seminar – The Human Rights Act After 22 Years. Rather than formal papers, and yet another edited collection, it was agreed that following the event we would try to capture the contributions in a series of blog posts for the UKCLA Blog. Having learned so much during the seminar, I am now getting things started with this short post.’
UK Constitutional Law Association, 9th November 2022
Source: ukconstitutionallaw.org
‘Judgment was given in the famous Wednesbury case 75 years ago today, on 10th November 1947. Readers of this blog know full well the facts of the case, the judgment of Lord Greene (reported [1948] 1 KB 223), the mythical status of “Wednesbury unreasonableness” and critiques thereof, such as Lord (previously Sir Robin) Cooke’s dislike of what he saw as Lord Greene’s circumlocution, a “retrogressive” decision and the unnecessary use of “the geographical epithet” of Wednesbury.’
UK Constitutional Law Association, 10th November 2022
Source: ukconstitutionallaw.org
‘The use of crowdfunding to access public law litigation is a matter which attracts much online commentary but has thus far, with notable exceptions, received considerably less rigorous scholarly engagement. Accordingly, several important questions remain unanswered as to the dynamics of crowdfunded litigation – amongst others, who are the actors bringing (and defending) these cases, how much money do cases raise, and how do they fare in the judicial review system? In a recent article published open access in the Modern Law Review, I report the results of an empirical study which charts the landscape of judicial review crowdfunding systematically for the first time. In the study, I analyse 413 crowdfunding pages by people seeking funding for judicial review claims, posted on CrowdJustice, the leading litigation crowdfunding website. Here, I highlight some of the study’s results, and emphasise the difficulties facing prospective litigants in accessing judicial review, even with the advent of crowdfunding, a problem which has, previously on this blog, been termed ‘public law’s disgrace’.’
UK Constitutional Law Association, 8th November 2022
Source: ukconstitutionallaw.org
‘Writing about the “work” of the Queen in 1958, the journalist and Herald Dermot Morrah claimed there had been “scarcely any allusion” in her coronation ceremony to the fact that Elizabeth II “was Queen of seven distinct and sovereign realms”. Indeed, added Morrah, “she was crowned not even as Queen of the United Kingdom, but of England alone”.
This was a peculiarly Anglo-centric take, particularly so coming from the pen of a Herald, usually such sticklers for detail. At first glance, the coronation of a British monarch is indeed a very English affair. It takes place at the Abbey Church of Westminster and the service is given by the Archbishop of Canterbury.
Yet a closer examination of coronations between 1714 and 1953 reveals them to be constitutional mirrors in which were reflected changes to the territorial constitution. And by highlighting these reflections, one can draw some preliminary observations as to the likely ceremonial at the coronation of King Charles III on 6 May 2023.’
UK Constitutional Law Association, 27th October 2022
Source: ukconstitutionallaw.org
‘The office of Prime Minister is a creature entirely of constitutional convention. While legislation references the office itself, setting out pay for example, this is only statutory recognition of the existence of an office which arises purely by virtue of convention. It is by convention that the Monarch appoints as Prime Minister someone who is capable of commanding the confidence of the House of Commons and it is by convention that he exercises certain prerogative powers only on the advice of the Prime Minister (or another minister in his government). The mechanism for choosing a Prime Minister is, however, not entirely covered by convention. While they must command the confidence of a majority of MPs in the Commons, it is not necessary that they be chosen directly by the Commons. This is because of the party system and the presumption that the leader of a given party has the confidence of their MPs, even if they might not always have their full support.’
UK Constitutional Law Association, 26th October 2022
Source: ukconstitutionallaw.org
‘There are many points of note for those interested in Constitutional law in the recently published Retained EU Law (Revocation and Reform) Bill 2022 (“the Bill”). This post focuses on the proposal to bind the Government to accomplishing the complex process of assimilating desirable retained EU law into domestic legislation before a stated deadline using the sunsetting provisions in clauses 1 and 3 of the Bill. It asks why sunsetting is needed, suggesting the motivation lies, at least in part, in the Government’s desire to reap the so-called “Brexit dividend” by reducing the burden of regulation from EU-derived measures as quickly as possible. It goes on to question whether the sunset clauses will ultimately assist in that aim.’
UK Constitutional Law Association, 10th October 2022
Source: ukconstitutionallaw.org
‘The Supreme Court’s judgment on the legality of a Scottish independence referendum could be provided within six to eight weeks, its former deputy president has said.’
The Independent, 9th October 2022
Source: www.independent.co.uk
‘Section 29(1) of the 1998 Act provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. A provision is outside that competence so far as it “relates to reserved matters” (s.29(2)(b)), and whether or not it relates to a reserved matter is to be determined by “reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances” (s.29(3)).’
UK Constitutional Law Association, 4th October 2022
Source: ukconstitutionallaw.org
‘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
‘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
‘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
‘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
‘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
‘Long Waves of Constitutional Principle in the Common Law.’
Supreme Court, 19th July 2022
Source: www.supremecourt.uk
‘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
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