Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part II – UK Constitutional Law Association

‘This is the second of a two-part discussion of this theme. The first part addressed the obligations under the Benn Act and the legal response to attempts to frustrate it; this second part addresses non-confidence motions, resignation and change of Government. Heading numbering is continued from Part 1.’

Full Story

UK Constitutional Law Association, 10th October 2019

Source: ukconstitutionallaw.org

Jeff King: The Prime Minister’s Constitutional Options after the Benn Act: Part I – UK Constitutional Law Association

‘This is the first of a two-part discussion of this theme. This first part addresses the obligations under the Benn Act and the legal response to attempts to frustrate it; the second part will address non-confidence motions, resignation and change of Government.’

Full Story

UK Constitutional Law Association, 9th October 2019

Source: ukconstitutionallaw.org

In Court – Stephen Sedley – London Review of Books

Posted October 2nd, 2019 in brexit, constitutional law, Crown, news, parliament, prorogation by sally

‘For at least four centuries the courts have contested the claims of monarchs to untrammelled authority. ‘The king,’ Chief Justice Coke said in 1611, ‘hath no prerogative but what the law of the land allows him.’ Although the historic settlement of 1688-89, which gave us today’s constitutional monarchy, left in existence a wide swathe of prerogative powers, these have become subject to two governing principles. One is that they cannot be enlarged. The other is that both their constitutional extent and their lawful use are subject to judicial review. If the rule of law is to mean anything, it has to mean this.’

Full Story

London Review of Books, 10th October 2019

Source: www.lrb.co.uk

Stephen Tierney: Prorogation and the Courts: A Question of Sovereignty – UK Constitutional Law Association

‘The request made by the Privy Council that the Queen prorogue Parliament was a clumsy and inappropriate attempt to shorten the time available for parliamentary scrutiny of the Brexit process. That much seems clear from papers submitted to the Court of Session in Cherry. It is therefore no surprise that the Inner House was receptive to the petitioners’ argument that the advice given to Her Majesty violated the conventional purposes for which prorogation ought to be used and was therefore unconstitutional (Cherry, [1]; see also Lord Sumption). Where the court erred was in concluding that the act of prorogation was itself unlawful. The intimate relationship between the prerogative power to prorogue and the supremacy of Parliament precludes such a conclusion. If, as seems correct, a response to this breach of convention is warranted, it is one that can, constitutionally, only come from Parliament itself.’

Full Story

UK Constitutional Law Association, 17th September 2019

Source: ukconstitutionallaw.org

Playing Hardball with the Queen – Oxford Human Rights Hub

Posted September 2nd, 2019 in bills, brexit, constitutional law, Crown, news, parliament, prerogative powers by sally

‘The idea of constitutional hardball was introduced to the world by Mark Tushnet. The sport is played when political actors decide the stakes are so high that any lawful action is justified, no matter how constitutionally problematic: hardball stays within the confines of the law, but runs against the spirit, and sometimes the conventions, of the constitution.’

Full Story

Oxford Human Rights Hub, 31st August 2019

Source: ohrh.law.ox.ac.uk

Could ministerial advice to the Queen to prorogue Parliament or to refuse assent to a Parliamentary Bill be challenged in the courts? – Brexit Law

‘This post continues the debate that has arisen following recent Parliamentary efforts to seize the initiative from the Government to avoid a no-deal Brexit, in particular the Cooper- Letwin Bill, and certain proposals that have emerged by which it is suggested the Government could thwart these efforts.’

Full Story

Brexit Law, 8th April 2019

Source: brexit.law

Stefan Theil: Unconstitutional Prorogation – UK Constitutional Law Association

‘Parliament voted on the evening of 1 April in a series of indicative votes to determine what, if any, alternative plan for withdrawal from the European Union could command the support of the House of Commons: all plans put forward again failed to command a majority. In a recent intervention, John Finnis has suggested that the government should prorogue Parliament until after 12 April in order to terminate the current parliamentary debate. Mark Elliott has offered a critique of the broader implications of this argument, namely the claim that such a course of action would be ‘(…) wholly legitimate as a matter of constitutional principle.’ Elliott concludes that parliamentary control of the process is entirely legitimate and in keeping with the British constitution. This piece adds to this analysis by elaborating why the prorogation Finnis advocates under these specific circumstances would be, as Elliott summarily puts it, ‘(…) an argument for unconstitutional action on the part of the Government.’ The piece develops a twofold argument: first, that ministerial advice tendered to seek a prorogation of Parliament under these circumstances is unconstitutional and that the Monarch should disregard it as a matter of constitutional convention; and second that holding otherwise would in effect grant the Prime Minister an unqualified veto over parliamentary business, leaving the government in an unconscionable position of power over the sovereign Parliament. Such an outcome would be fundamentally at odds with British parliamentary democracy, especially principles of democracy and representative and responsible government.’

Full Story

UK Constitutional Law Association, 3rd April 2019

Source: ukconstitutionallaw.org

Disclaiming Disclaimer – Hardwicke Chambers

Posted December 12th, 2018 in abuse of process, bona vacantia, Crown, leases, news by sally

‘When a company is dissolved, all its property and rights (including leasehold property) are deemed to be bona vacantia and accordingly belong to the Crown. Pursuant to s.1013 of the Companies Act 2006, where property so vests in the Crown, the Crown’s title to it may be disclaimed by a notice signed by the Crown representative. By s.1017 of the Act, the court may make an order vesting disclaimed property in a person with an interest in it.’

Full Story

Hardwicke Chambers, 11th December 2018

Source: hardwicke.co.uk

Smoking ban cannot be enforced in jails, UK supreme court rules – The Guardian

Posted December 20th, 2017 in Crown, health & safety, news, prisons, smoking, Supreme Court by sally

‘A prisoner suffering from poor health has lost his attempt to enforce the smoking ban in English and Welsh jails after the supreme court ruled that crown premises are effectively exempt from the enforcement of health regulations.’

Full Story

The Guardian, 19th December 2017

Source: www.theguardian.com

Civil way – New Law Journal

‘Before I embark on this little tale, let me put you straight. So long as they act in good faith, as they always do, judges incur no liability for erroneous decisions. So that’s alright, then. And the Crown has no liability for anything done by any person discharging judicial responsibilities? Not quite, as highlighted by LL v The Lord Chancellor [2017] EWCA Civ 237, [2017] All ER (D) 123 (Apr). If a court orders a person to be arrested or detained in contravention of Art 5 of the European Convention on Human Rights then that person is entitled to damages in a claim against the Crown (ss 7(1) and 9 of the Human Rights Act 1998) and proceedings would have to be brought against the Lord Chancellor (as if he didn’t have enough to worry about already). Detention will be unlawful if the court acted without jurisdiction (which is why judges should take the Green Book with them wherever they go) or where there was a gross and obvious irregularity in the court’s procedure or a flagrant denial of justice.’

Full Story

New Law Journal, 7th July 2017

Source: www.newlawjournal.co.uk

Loose v Lynn Shell Fish Ltd and others (Le Strange Meakin, Part 20 defendant) (Crown Estate Comrs intervening) – WLR Daily

Posted April 20th, 2016 in Crown, fisheries, law reports, prescription by sally

Loose v Lynn Shell Fish Ltd and others (Le Strange Meakin, Part 20 defendant) (Crown Estate Comrs intervening) [2016] UKSC 14

‘An estate adjoining the foreshore on the east side of the Wash owned a private fishery with an exclusive right to take shellfish over part of the foreshore. In 1970 the estate granted a lease of that exclusive right to the claimant. The claimant brought proceedings against the defendants alleging that they had been fishing for cockles in areas of foreshore which were part of the private fishery of which he was the lessee. The defendants accepted that a private fishery had been established by prescription but disputed its extent. In particular, they contended that it did not extend to large sandbanks which had been detached from the foreshore until the channels separating them had silted up; that such sandbanks were not subject to the doctrine of accretion, properly understood; and that, even if they were, it would not follow that the fishery rights had increased commensurately since that would have required a Crown grant and the power of the Crown to make such a grant had been removed by Magna Carta. The judge, however, held that the terms of the grant presumed as a result of the past prescriptive activities was a grant before 1189 of a fishery extending over the whole of the foreshore as it varied from time to time, and accordingly included the sandbanks; that on that basis, the defendants were liable in damages; and that the most practical of the various alternative lines put forward as the defined seaward boundary of the fishery was the mean low water mark of spring tides, rather than extreme low water as contended for by the claimant. The defendants appealed and the claimant cross-appealed. The Court of Appeal dismissed the defendants’ appeal and held that as conditions changed and more or less of the seabed was exposed at low water, the area of the private fishery would expand or shrink, and held, allowing the claimant’s cross-appeal in part, that the fishery extended in law as far as lowest astronomical tide, which was the lowest point to which the tide fell as a result of normal astronomical forces.’

WLR Daily, 13th April 2016

Source: www.iclr.co.uk

Loose v Lynn Shellfish Ltd and others (Le Strange Meakin, Part 20 defendant) – WLR Daily

Posted June 25th, 2014 in Crown, fisheries, law reports by sally

Loose v Lynn Shellfish Ltd and others (Le Strange Meakin, Part 20 defendant) [2014] EWCA Civ 846; [2014] WLR (D) 280

‘A presumed lost grant from the Crown prior to 1189 of a right of private fishery was to be understood as extending to all such part of the seabed as might from time to time be exposed at low water.’

WLR Daily, 19th June 2014

Source: www.iclr.co.uk

Government Response to the Justice Select Committee’s Report ‘Crown Dependencies: developments since 2010’ – Ministry of Justice

Posted March 17th, 2014 in Crown, Guernsey, Jersey, parliamentary papers by tracey

‘Her Majesty’s Government welcomes the Justice Select Committee’s latest report on the relationship between the UK and the Crown Dependencies. This relationship is a valuable, historical and special one and the Government accordingly takes its responsibilities towards the Islands very seriously.’

Full text

Ministry of Justice, 17th March 2014

Source: www.gov.uk/government/organisations/ministry-of-justice

Power of sale – can the mortgagee be forced to wait? – New Square Chambers

Posted November 5th, 2013 in Crown, jurisdiction, mortgages, news, sale of land, Turks and Caicos Islands by sally

“In Temple Mortgage Fund Ltd v Att-Gen for the Turks and Caicos Islands (unreported, Supreme Court of the Turks and Caicos Islands, 26 July 2013), until just before the trial the only issue appeared to be the timing of the mortgagee’s exercise of its power of sale. However, at a very late stage the Defendant raised a further issue, namely whether certain provisions in the Plaintiff’s charge were binding on the Crown at all. Both issues were determined in favour of the Plaintiff.”

Full story (PDF)

New Square Chambers, 31st October 2013

Source: www.newsquarechambers.co.uk

Regina v Austin (Herbert) – WLR Daily

Regina v Austin (Herbert): [2013] EWCA Crim 1028;   [2013] WLR (D)  257

“It was the Crown’s responsibility to carry out the duties of disclosure. Judicial involvement could only properly be triggered by an application under the Criminal Procedure and Investigations Act 1996 by the prosecutor or by the defence. There was no provision for a trial judge to superintend the decisions of disclosure made by the prosecution on his own motion by inspecting unused material himself.”

WLR Daily, 27th June 2013

Source: www.iclr.co.uk

Pamphlet on Royal consent legislation published – The Independent

Posted January 16th, 2013 in Crown, freedom of information, legislation, news, royal prerogative by sally

“Official legal advice about when Royal consent is required for legislation to proceed has been published after a long-running battle by the Cabinet Office to keep it under wraps.”

Full story

The Independent, 15th January 2013

Source: www.independent.co.uk

Related link: Queen’s or Prince’s Consent (PDF)

Royal succession bill published – BBC News

Posted December 14th, 2012 in bills, Crown, news, royal family, sex discrimination, succession by tracey

“A new law which will end discrimination against women in the line of succession
to the British throne has been published.”

Full story

BBC News, 13th December 2012

Source: www.bbc.co.uk

Crown sidelined from new Supreme Court – Daily Telegraph

Posted October 8th, 2009 in Crown, news, Supreme Court by sally

“The Crown has been sidelined from the new Supreme Court in a move that breaks with traditions dating back almost 1,000 years.”

Full story

Daily Telegraph, 7th October 2009

Source: www.telegraph.co.uk

Isle of Anglesey County Council and another v Welsh Ministries and others – WLR Daily

Posted February 24th, 2009 in Crown, fisheries, law reports, ultra vires by sally

Isle of Anglesey County Council and another v Welsh Ministries and others [2009] EWCA Civ 94; [2009] WLR (D) 66

“In determining the effect of an Act of 1868 considerations of common sense and the principle of legal certainty made it permissible to take account of the subsequent history.”

WLR Daily, 23rd February 2009

Source: www.lawreports.co.uk

Please note once a case has been fully reported in one of the ICLR series the corresponding WLR Daily summary is removed.

Succession law changes ‘needed’ – BBC News

Posted December 10th, 2008 in constitutional law, Crown, news, succession by sally

“A cabinet minister has called for progress to be made on ending the 300-year old legal ban on Roman Catholics succeeding to the throne.”

Full story

BBC News, 10th December 2008

Source: www.bbc.co.uk