Constitutional law


One of the easiest things for a reporter to produce is knocking copy about the judiciary and the legal system. The “law is an ass” piece almost writes itself. Readers are more than ready to nod-along with any attack on a supposed judicial idiocy or misapplication of the law.

Alongside the copy will be the usual photographs of a grown-up wearing a silly costume and wig. (For, as Danny in Withnail and I avers in his story of the defendant accused by a judge of wearing fancy dress: “You think you look normal, your honour?”) Add to this the inherent human interest in stories of apparent injustice, and an element of class prejudice against posh and out-of-touch judges, and then you understand why monstering the judiciary is a staple of the popular press. Such pieces can be fun to write and fun to read. Read more

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The UK government on Thursday published the bill that will enable the Article 50 notification to be made. A bill is essential because of the Supreme Court decision on Wednesday.

The bill is a short one. It could hardly be shorter. It is so short its wording could be fitted on the side of a bus and still be read. It is what is known as a “one-clause bill”. The bill provides for a discretion — though not an obligation — for the prime minister to send the Article 50 notification.

The operative clause, in its entirety provides:

“(1)The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.”

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The government has lost its appeal at the UK Supreme Court in the Article 50 case, which means triggering Brexit requires parliamentary approval in the form of an act of parliament.

The court was asked for a “declaration” as to whether prime minister Theresa May can use the so-called “royal prerogative” to formally commence the process for Britain to leave the EU. The ruling, by a majority of eight to three, was the second possible outcome I outlined in my earlier post, which means the earlier High Court is upheld and Theresa May has to bring a bill before parliament. Read more

The Supreme Court appeal heard this week what may turn out to be the UK constitutional law case of a generation. Read more

Britain's justice secretary Liz Truss

When Elizabeth Truss was appointed Lord Chancellor and justice secretary there was considerable disquiet. The first holder of the combined roles Lord Falconer went so far to call the appointment “unlawful” and inappropriate. Others like Joshua Rozenberg (and myself) reserved judgment. After all, natural justice requires everyone to be assessed on their merits. Read more

The Houses of Parliament

The Houses of Parliament  © Getty Images

It is one thing to assert “Brexit is Brexit” and quite another to make it come about. Any departure of the UK from the EU is not going to happen by mere incantation of a grand phrase. There also has to be some legal means. So what are the legal means by which Brexit can happen?

Some say it can be done by the prime minister (with or without cabinet) as part of the so-called “royal prerogative” – the legal fiction that a minister may exercise the remaining powers of the crown which have not been limited by statute. The prime minister can, for example, enter into treaties on the basis of the royal prerogative.

Others say it can only be by an Act of Parliament — and these people are willing to litigate the point. The argument here is that there is legislation such as the European Communities Act which give individuals rights under EU law so it is not open to the executive to frustrate or circumvent this statute. Primary legislation would therefore be needed. Read more

The established order in any society can sometimes be wrong-footed, but they are usually not wrong-footed for long. Genuine revolutionaries know this, and they act quickly to take full advantage of any temporary advantage. Soon, however, the established order will regroup and refocus, with renewed determination.

The generally pro-EU political class in the United Kingdom has certainly had a fright. They were not expecting to lose the EU referendum. British political leaders were so confident of victory they even casually said that the people’s decision would be implemented “straight away”. And now there is a crisis, but only for a while. Read more

Various EU politicians can demand what they want but they may as well be whistling Read more

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Not all problems have solutions. And the political problem now caused by the decisive Leave vote in the UK does not lend itself to any straightforward solution in practice.

Part of this is because there was never a good objective reason for the referendum in practice, and part is because the referendum did not have any legal effect. It was always an unnecessary referendum with no legal consequences. In legal terms, it was a glorified opinion poll. Read more

The referendum on Britain’s EU membership is unnecessary. There is no objective reason for it to take place: no new treaty or proposed treaty amendment. It is merely a vote on whether the U.K. continues to be part of an international organisation of which it has been a member for over forty years. There is no more reason to have a referendum on this issue in June 2016 than in June 2015 or June 2017.

The referendum is also not binding as a matter of law. As set out in my earlier post, there is no legal consequence contingent on the result of the vote. The government could have legislated for an immediate legal effect but it chose not to do so. As such the referendum is advisory and not mandatory. The key decision by the government in the event of a “Leave” vote is whether to invoke the (seemingly) irreversible exit procedure in Article 50, and the government can make the relevant notification at a time of its choosing (subject perhaps to a parliamentary vote) or even not make such a notification at all. Read more

In June 2006, 10 years ago this month, David Cameron, then leader of the opposition, promised to replace the Human Rights Act of 1998 with a “British bill of rights” when he and the Conservatives obtained power.

Ten years later the Human Rights Act is still the law of the land, even if it now seems Mr Cameron — prime minister since 2010 — may not be in office much longer. The Human Rights Act is as safe (or as unsafe) as it has ever been, and it looks as though the act will survive the premiership of Mr Cameron. Read more

What follows any referendum vote next week for the United Kingdom to leave the EU? From a legal perspective, the immediate consequence is simple: nothing will happen.

The relevant legislation did not provide for the referendum result to have any formal trigger effect. The referendum is advisory rather than mandatory. The 2011 referendum on electoral reform did have an obligation on the government to legislate in the event of a “yes” vote (the vote was “no” so this did not matter). But no such provision was included in the EU referendum legislation. Read more

After signing the Good Friday Agreement in 1998, British prime minister Tony Blair (right), US senator George Mitchell and Irish prime minister Bertie Ahern (left)

In 1998 the Good Friday Agreement was signed by Tony Blair (right), George Mitchell and Bertie Ahern (left)  © Getty Images

A significant parliamentary report is published today. It is a report about something that has not happened yet, and does not look like happening soon. If the report is read carefully, it explains why the thing may never happen at all. Read more

Sir Edward Coke

Sir Edward Coke  © Getty Images

This post is the first of a series on law and legislation. Read more

BRITAIN-ECONOMY-BUDGET-POLITICS

The Houses of Parliament  © Getty Images

Public policy in England seems to have a rather illiberal tone at the moment. (And this post deliberately refers to England as, since devolution, it is increasingly hard to generalise about all the national governments in the UK.) Almost every day comes some new announcement about how the government wants to have more power at the expense of its citizens. Is England getting more illiberal? If so, how has this come about? And will any such illiberal trend continue?

First, the evidence of illiberalism. At its most stark, it is about life and death. In the last few weeks alone the prime minister has called for the army to be put above the law and for the law to be changed so as to make it easier for the police to shoot people. It would appear that David Cameron sees no role for the law in restraining those who can exercise lethal force on behalf of the state.

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CeBIT 2012 Technology Trade Fair

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This week the Home Office will be launching the new Investigatory Powers Bill. It had previously sought to obtain these powers under the “Snoopers’ Charter” proposals in the last parliament but it failed.

This time the government is sensibly not relying on the brute strength of parliamentary votes or the standard “FUD” tactic of promoting fear, uncertainty and doubt. Such methods of stealth and FUDery may not be sufficient, so something more is needed to get the Bill over the bumps of this first week or two. The Home Office wants your heads to nod along too.

Many people say that the problem with politics is that there is too much cynicism. The problem with UK politics, however, is not that people are too cynical but that they are too gullible. Our politics is beset and bedeviled by the phenomenon of mass nodding along. Just get the catchphrases correct, and you will get all the audience applause you need. The trick is saying the right things at the right time. Read more

Magna Carta  © Getty Images

Last week the UK’s Cabinet Office sought silently to remove the reference to “international law” from the Ministerial Code.

The text had stated that there was an “overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”. The new version states that there is an “overarching duty on ministers to comply with the law and to protect the integrity of public life”.

Does this matter? From a strict legalistic perspective, there is an argument that it makes no difference: inclusion or exclusion of text from a ministerial code by acts of ministerial or civil service discretion do not create or change substantive law. And there is some force in this contention, though the courts can and do look at such documents when construing the obligations of the state under public law and the legitimate expectations of individuals who can be affected by state actions. Read more

David Cameron Attends Prime Minister's Questions In Parliament

Michael Gove  © Getty Images

If there is an epitome of just how bad the tenure was of the previous Lord Chancellor and Secretary of State for Justice it has to be the prison books fiasco. This remarkable policy — even more than the time the Ministry of Justice instructed counsel to submit to the High Court that the Lord Chancellor should be able to disregard the rule of law — told observers all they needed to know about the ways in which Chris Grayling was running his department.

The thing about the prison books fiasco was that it was not even a deliberate policy decision: the listing of books as a “privilege” in an elaborate prisoner incentive scheme was the sort of error that a bureaucracy can make from time to time. Nobody perhaps realised, or cared, that making books harder to obtain was contrary to the government’s own project of promoting literacy among prisoners. No government department is really “joined-up”. Read more

The State Opening Of Parliament

Michael Gove at the State Opening Of Parliament  © Getty Images

A curious Martian looking down at the government departments in Whitehall would not work out much about the British party political system. The alien would not grasp that there is supposedly a policy division between Conservatives, Labour, and the Liberal Democrats. Read more

The State Opening Of Parliament

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The Queen’s Speech last week had one notable omission: the firm commitment to a new Bill within months to repeal the Human Rights Act 1998 and for it to be replaced with a “British Bill of Rights”. Read more