Moohan: Prisoner voting, the independence referendum and the common law

I have been thinking a good deal recently — partly because I will soon be giving a Current Legal Problems lecture on the topic — about the relationship between common-law constitutional rights and rights enshrined in the ECHR and given domestic effect by the Human  Rights Act 1998. A stream of recent Supreme Court decisions — including Osborn v Parole Board [2013] UKSC 61, Kennedy v The Charity Commission [2014] UKSC 20, R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 and A v BBC [2014] UKSC 25 — has placed new emphasis upon the common law as a source of fundamental rights and values, and it is hard to resist the supposition that the ground is thus being prepared for the possible repeal of the HRA and withdrawal from the ECHR, both of which possibilities are now explicitly contemplated by the Conservative Party.

Against this background, the risk arises of approaching the common law through rose-tinted spectacles: even of going so far as to suppose that if the HRA were repealed and the UK to withdraw from the Convention, not much would change because the common law would fill the resulting gap. There is some force in this argument: as the cases mentioned above remind us, the common law has not gone away — and nor, as Lord Reed pointed out in Osborn, has it necessarily remained static while the HRA and the Convention have been centre-stage. At the same time, however, it cannot simply be assumed that business as usual would continue in the absence of the HRA and the ECHR.

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Wilberg & Elliott (eds): The Scope and Intensity of Substantive Review

Wilberg, Elliot

I recently completed work on a book, co-edited with Hanna Wilberg of The University of Auckland, entitled The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. The book will be published in 2015 by Hart Publishing. In the meantime, a copy of the editors’ introduction can be downloaded here.

Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds such as unreasonableness be expanded and intensified? In their contributions to the volume, Sir Jeffrey Jowell (Bingham Centre for the Rule of Law and Emeritus Professor, University College London), Jason Varuhas (University of Cambridge/University of New South Wales) and I agree with Taggart that proportionality should not “sweep the rainbow”, but propose different schemes for organizing and conceptualizing substantive review. Meanwhile, Matthew Groves (Monash University), Greg Weeks (University of New South Wales) and Cora Hoexter (University of the Witwatersrand, Johannesburg) evaluate the state of substantive review in Australia and South Africa respectively.

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Dominic Grieve on the Conservative Party’s human-rights proposals

The recently sacked Attorney-General, Dominic Grieve, gave a powerful and thoughtful lecture last night at UCL, entitled “Why Human Rights should matter to Conservatives“. The lecture is worth reading in full, and I will not attempt to summarise it here. However, the following passages — which form part of a trenchant critique of the Conservative Party’s proposals to repeal the Human Rights Act and enact a domestic Bill of Rights that would contemplate non-compliance with ECHR obligations — are particularly noteworthy.

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Chris Grayling

The Justice Secretary on Judicial Review: Five Basic Misconceptions

The House of Commons yesterday voted to reverse amendments made by the House of Lords to the Criminal Justice and Courts Bill. I have written about the Bill, and the House of Lords’ amendments, previously — most recently here — and will not go into detail about the substance of the Bill or the Lords’ amendments in this post. The essential constitutional question raised by the Bill concerns the extent to which the Government, by causing the enactment of primary legislation, should be able to shield its decisions from judicial scrutiny.

Any attempt by Government to do so has an obviously self-serving quality, and close examination of its motives is appropriate. The Lord Chancellor and Justice Secretary, Chris Grayling MP, therefore had a heavy burden to discharge in yesterday’s Commons debate. Far from discharging that burden, his contribution to the debate revealed several fundamental misconceptions about the nature and purpose of judicial review.

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A “permanent” Scottish Parliament and the sovereignty of the UK Parliament: Four perspectives

The Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament has been published. It contains an array of significant proposals concerning the devolution of further authority to the Scottish Parliament. Stepping back from the detail, however, it also contains two — related — proposals that are potentially of constitution significance in bigger-picture terms.

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Book chapter: The principle of parliamentary sovereignty in legal, constitutional and political perspective

I have just finished work on a book chapter entitled “The Principle of Parliamentary Sovereignty in Legal, Constitutional and Political Perspective”, the abstract for which is as follows:

Parliamentary sovereignty has long been regarded — by most, at least — as an axiomatic feature of the United Kingdom’s constitutional arrangements. The orthodox view holds that the UK Parliament has authority that is unlimited in domestic law, meaning that it is legally free to enact any legislation it wishes. However, precisely what parliamentary sovereignty means — and, ultimately, whether it accurately describes the reality of Parliament’s relationship with other institutions — is a less cut-and-dried matter than orthodox accounts may suggest. This chapter examines the sovereignty of Parliament by reference to phenomena that may be considered to sit uncomfortably with it. In particular, devolution, British membership of the European Union, the UK’s being a party to the European Convention on Human Rights and common-law constitutional principles are addressed. The implications for parliamentary sovereignty of these matters are examined not only in legal, but also constitutional and political, perspective. The conclusion is reached that different pictures are revealed when legal and other lenses are applied, and that whether — and, if so, to what extent —political and constitutional forms of constraint may sound in the legal realm is inherently uncertain. Such uncertainty concerning the extent of Parliament’s legislative authority reflects a necessary tension between the judicial and political branches, the unresolved nature of that tension evidencing a form of institutional comity that is imperative to the functioning of an unwritten constitutional system.

The chapter will appear in the eighth edition of Jeffrey Jowell, Dawn Oliver and Colm O’Cinneide (eds), The Changing Constitution. The book will be published by Oxford University Press in 2015.

Lord Reed on EU law and the UK constitution

A brief post to draw attention to Lord Reed’s recent Sir Thomas More Lecture entitled “EU Law and the Supreme Court”. Lord Reed devotes part of the lecture to a discussion of the Supreme Court’s decision in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324. Three points are particularly noteworthy.

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