Jack Simson Caird and Ellis Paterson: Could the UK Courts Disapply Domestic Legislation to Enforce the Protocol on Ireland and Northern Ireland? – UK Constitutional Law Association

Posted February 19th, 2019 in brexit, constitutional law, EC law, Ireland, news, Northern Ireland by sally

‘If the Withdrawal Agreement is approved, then Parliament will be asked to legislate to give domestic legal effect to its content through the EU (Withdrawal Agreement) Bill. One of the most significant provisions of the Withdrawal Agreement, Article 4, purports to give the entire contents of the Withdrawal Agreement special status within the UK’s constitutional order. Even though the UK would no longer be a Member State, the effect of Article 4 (if implemented) would be to give all of the laws within the Withdrawal Agreement the equivalent legal effect of EU law within a Member State. As a result, the Protocol on Ireland and Northern Ireland (the Protocol), which forms part of the Withdrawal Agreement, would be supreme over any other domestic legislative provisions, and any provisions of the agreement which meet the conditions for direct effect would have direct effect. How the UK courts would be able to enforce this status will be determined by how the UK Parliament decides to legislate to give effect to Article 4 in the EU (Withdrawal Agreement) Act. It is probable that the Government will propose to give the courts the power to disapply domestic legislation inconsistent with the Withdrawal Agreement by replicating the effect of the European Communities Act 1972 (ECA 1972). Article 4 of the WA, as explored below, already includes the obligation to disapply provisions that contravene EU law. This post looks at the questions that might be raised if a UK court was ever asked to disapply domestic legislation on the basis that it was inconsistent with the Protocol. The potential constitutional effect of Article 4 is worth considering in view of the short time that Parliament is likely to have to consider the EU (Withdrawal Agreement) Bill. While the UK courts have been able to disapply domestic legislation since the European Communities Act 1972 (this power was more more fully explored in Benkharbouche v Sec’y of State for Foreign and Commonwealth Affairs in 2017 – see Alison Young’s helpful 2017 blog post on the outcome) was enacted, what is constitutionally novel about Article 4 is the proposal that the courts would be able to do so when the UK is no longer a Member State.’

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UK Constitutional Law Association, 19th February 2019

Source: ukconstitutionallaw.org

Case Comment: In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 – UKSC Blog

‘It may seem somewhat Dickensian that an unmarried parent would be ineligible for social benefits as a widow/er upon the death of their partner and co-parent, but that was the situation created by the legislation challenged in Re Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 (Lady Hale, Lord Mance, Lord Kerr, Lord Hodge and Lady Black). The issue under scrutiny was entitlement to widowed parent’s entitlement (WPA). WPA is a contributory social security benefit payable to parents of dependent children who are widowed; but, at the time of the claim, a widowed parent was only eligible for WPA if at the time of the death, s/he was married to, or the civil partner of, the deceased [para 1 of the judgment]. The appellant, who had four dependent children with her deceased partner, but had never married him, argued that this requirement discriminated against the survivor and/or the children on the basis of their marital or birth status, contrary to ECHR, art 14. The Supreme Court allowed the appeal majority of 4 to 1 (Lord Hodge dissenting) and made a declaration that s 39A is incompatible with ECHR, art 14 read with art 8, insofar as it precludes any entitlement to WPA by a surviving unmarried partner of the deceased.’

When Coroners are unsure – Park Square Barristers

‘The Court held that a Coroner was entitled to remain unsure about the particulars of the death of an individual who was shot by a member of the Royal Ulster Constabulary.’

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Park Square Barristers, 16th November 2018

Source: www.parksquarebarristers.co.uk

Brexit legal advice warns of UK being trapped by Irish backstop – The Guardian

‘Legal advice on the Brexit deal, published reluctantly after MPs found the government in contempt of parliament, warns the terms of the Irish backstop could trap the UK in “protracted and repeated rounds of negotiations” in the years ahead.’

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The Guardian, 5th December 2018

Source: www.theguardian.com

Tax tribunal rules that Arron Banks suffered political discrimination – UK Human Rights Blog

‘Banks v Revenue and Customs Commissioners [2018] UKFTT 617 (TC). Donations made by Arron Banks to the United Kingdom Independence Party (‘UKIP’) are subject to a tax regime which discriminates against the donor on grounds of his political opinion, the First-Tier Tribunal (Tax Chamber) has found.’

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UK Human Rights Blog, 14th November 2018

Source: ukhumanrightsblog.com

Case Comment: Lee v Ashers Baking Company Ltd & Ors [2018] UKSC 49 – UKSC Blog

‘It must be a rare moment in legal history, when cakes are at the centre of Supreme Court Knights_S_146668decisions in the same year on both sides of the pond.’

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UKSC Blog, 12th November 2018

Source: ukscblog.com

Lee v Ashers Baking Company Ltd and others – Blackstone Chambers

‘The Supreme Court unanimously and comprehensively reversed the Northern Ireland Court of Appeal’s decision in the “gay cake” case. The Supreme Court, in a decision of considerable significance for the United Kingdom as a whole, and beyond, held that the bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was an arguable case of discrimination on grounds of political opinion, no justification has been shown for overriding the bakery’s ECHR protections against compelled speech.’

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Blackstone Chambers, 10th October 2018

Source: www.blackstonechambers.com

Stephen Tierney: Governing Northern Ireland without an Executive: Quick Fix or Constitutional Minefield? – UK Constitutional Law Association

Posted October 31st, 2018 in bills, civil servants, constitutional law, news, Northern Ireland, public interest by sally

‘The Northern Ireland (Executive Formation and Exercise of Functions) Bill, which arrives in the House of Lords today, is set to be enacted by way of fast-track legislative procedure this week. The Bill intends to facilitate the formation of an Executive in Northern Ireland while providing for the exercise of executive functions by civil servants in the interim. In effect, the Bill suspends the statutory duty on the Secretary of State to call a Northern Ireland Assembly election. This is little more than a continuation of the present situation in which the UK Government has kept administration in Northern Ireland ticking over since March 2017. Much more controversially, the Bill gives civil servants within Northern Ireland departments general powers for the administration of Northern Ireland, introducing a public interest test for the exercise of these powers.’

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UK Constitutional Law Association, 30th October 2018

Source: ukconstitutionallaw.org

Joanna Bell: The Supreme Court’s Approach to the Finality Clause in Lee v Ashers: A Response to Anurag Deb & Conor McCormick & Looking Forward to Privacy International – UK Constitutional Law Association

‘Lee v Ashers Baking Company Ltd [2018] UKSC 49 (“gay cake”case) has probably not escaped the attention of any public lawyer. As Anurag Deb & Conor McCormick have usefully pointed out in a recent blog post, however, what may have been overlooked is that this case is not only important from a human rights or equality perspective, but from an administrative law perspective too. This is because the case contains a judgment, delivered by Lord Mance, which offers the unanimous court’s view on the meaning of a finality clause contained in the County Courts (Northern Ireland) Order 1980.’

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UK Constitutional Law Association, 23rd October 2018

Source: ukconstitutionallaw.org

Anurag Deb and Conor McCormick: Lee v Ashers: A Recipe for Jurisdictional Confusion? – UK Constitutional Law Association

‘On 10 October 2018, the UK Supreme Court handed down its judgment in Lee v Ashers Baking Company Ltd [2018] UKSC 49, sparking much debate and commentary. The judgment is legally important for how it conceptualises freedom of expression, and for the surprising evidence of judicial overreaching it contains. Given that others have already considered the former issue in some depth (see Chandrachud and Rowbottom on this blog alone), we focus on the latter in this post.’

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UK Constitutional Law Association, 18th October 2018

Source: ukconstitutionallaw.org

Jacob Rowbottom: Cakes, Gay Marriage and the Right against Compelled Speech – UK Constitutional Law Association

‘In the high-profile decision in Lee v Ashers, the Supreme Court had to consider a customer’s rights against discrimination along with the baker’s right to freedom of expression. In its finding for the baker, the Supreme Court took an important step in developing a domestic doctrine against ‘compelled speech’. While the outcome of the case divides opinion, the reasoning of the Court requires further consideration of when a person has a right not express a particular view.’

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UK Constitutional Law Association, 16th October 2018

Source: ukconstitutionallaw.org

Conscience and cake: the final chapter – UK Human Rights Blog

‘Lee v. Ashers Baking Company Ltd. On Wednesday the Supreme Court handed down its much-anticipated judgment in the ‘gay cake’ case. The Court unanimously held that it was not direct discrimination on grounds of sexual orientation or political opinion for the owners of a Northern Irish bakery to refuse to bake a cake with the message ‘Support Gay Marriage’ on it, when to do so would have been contrary to their sincerely held religious beliefs.’

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UK Human Rights Blog, 15th October 2018

Source: ukhumanrightsblog.com

Baker’s refusal to bake gay marriage cake not direct discrimination – OUT-LAW.com

‘A Christian bakery’s refusal to bake a cake iced with a message supportive of same sex marriage was not direct discrimination, the UK’s highest court has ruled.’

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OUT-LAW.com, 11th October 2018

Source: www.out-law.com

‘Gay cake’ row: Supreme Court rules in favour of Ashers – BBC News

‘The Christian owners of a Northern Ireland bakery have won their appeal in the so-called “gay cake” discrimination case.’

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BBC News, 10th October 2018

Source: www.bbc.co.uk

Colin Murray: Brexit and the “Constitutional Integrity” of the United Kingdom – UK Constitutional Law Association

Posted September 25th, 2018 in constitutional law, news, Northern Ireland, treaties by sally

‘The Foreign Office records regarding the Paris Peace Conference of 1919 must be amongst the most regularly requested papers held at the National Archives. One file, FO 608/65, is part of the herculean effort to redraw the map of Europe after the First World War. It recounts the efforts of officials and ministers to work out how to provide Poland with meaningful access to the Baltic. The focus of this attention was the port city of Danzig. The two options before the Council of Ten were to include the city as part of Poland, but place limits on how Poland exercised its national sovereignty over this part of its territory, or to create a “free city”, administered by a League of Nations High Commissioner, which was tied into a customs union with Poland. In late March 1919 Lloyd George expressed the UK’s support for the former option in the Council. Behind the scenes, however, the Foreign Office was preparing the alternate plans for a free city, which Lloyd George backed to decisive effect in April 1919. Concerns that this reversal might destabilise the fledgling Polish state were summarily dismissed.’

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UK Constitutional Law Association, 25th September 2018

Source: ukconstitutionallaw.org

Supreme Court rules in favour of unmarried mother in benefits case – Family Law

‘The UK’s Supreme Court has ruled in favour of Siobhan McLaughlin, an unmarried mother of four from County Antrim, gaining access to Widowed Parent’s Allowance following her partner’s death in 2014.’

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Family Law, 31st August 2018

Source: www.familylaw.co.uk

Landmark Judgment for Women’s Rights – Oxford Human Rights Hub

Posted June 18th, 2018 in abortion, human rights, news, Northern Ireland, Supreme Court by sally

‘The Supreme Court of the United Kingdom concluded on the 7th June 2018 that Northern Ireland’s laws on termination of pregnancy are incompatible with human rights. More specifically, in situations of rape, incest and fatal foetal abnormality a majority of the judges concluded that the law breaches the right to private life protected by article 8 of the European Convention on Human Rights. The Court highlighted the disproportionate nature of the interference, which stresses and humiliates women and girls experiencing a time of crisis. It further recognised the possibility that individual cases, in the three circumstances, may fall within the scope of article 3 and reach the threshold of severity required to be considered inhuman and degrading.’

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Oxford Human Rights Hub, 14th June 2018

Source: ohrh.law.ox.ac.uk

Law Pod UK Ep. 35: Lessons from Bloody Sunday and Hillsborough – 1 COR

Posted June 18th, 2018 in armed forces, health & safety, inquests, inquiries, news, Northern Ireland by sally

‘Matthew Hill discusses the lessons and warnings from the Bloody Sunday inquiry and the Hillsborough inquest in this talk recorded at One Crown Office Row’s 2018 seminar.’

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Law Pod UK, 14th June 2018

Source: audioboom.com

Shona Wilson Stark: In Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27: A Declaration in All but Name? – UK Constitutional Law Association

‘All eyes were on the UK Supreme Court (UKSC) last week as it gave judgment in In Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27, the case challenging the European Convention on Human Rights (ECHR) compatibility of Northern Ireland’s abortion legislation. Such a case is always bound to be headline-grabbing and controversial. But even more heat than usual was generated by this case. For starters, it followed swiftly after the Republic of Ireland’s referendum vote to repeal the Eighth Amendment of its Constitution, which acknowledges the equal right to life of the unborn child. That led to public and political pressure for change on the other side of the border too. But the Northern Ireland Assembly has been suspended since January 2017 and Westminster legislating in this area in its absence – particularly if prompted by the UKSC – would provoke controversy. The Conservative Government’s Confidence and Supply Agreement with the traditionally pro-life Democratic Unionist Party (DUP) further complicates the possibility of reform on this side of the Irish Sea. The outcome of a challenge to the compatibility of the Northern Ireland legislation was therefore keenly anticipated by many. In the event, a Court of seven declined (by a majority) to make the declaration of incompatibility due to a lack of standing. Given the Court’s conclusions, however, the judgment may effectively be a declaration in all but name.’

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UK Constitutional Law Association, 12th June 2018

Source: ukconstitutionallaw.org

Supreme Court rules on challenge to abortion ban in Northern Ireland – UK Human Rights Blog

Posted June 12th, 2018 in abortion, appeals, human rights, news, Northern Ireland by sally

‘On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.’

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UK Human Rights Blog, 11th June 2018

Source: ukhumanrightsblog.com