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Lady Hale gave the 2015 Bryce Lecture earlier this month, taking “The Supreme Court in the United Kingdom Constitution” as her title. The lecture does not break any new ground, but is a helpful overview of a range of issues concerning the constitutional authority of the courts vis-a-vis the other branches of government, with particular reference to contemporary issues relating to parliamentary sovereignty. In particular, Lady Hale considers the Jackson and AXA judgments, the implications for parliamentary sovereignty of devolution and membership of the European Union, and the courts’ role in relation to protecting fundamental rights. Law students, in particular, are likely to find this to be a useful survey. The full text of the lecture can be found here.

The Draft Scotland Bill — which aims to implement “the vow” made by the leaders of the major UK political parties in the closing days of the referendum campaign — has now been published. The first two sections of the Draft Bill are of interest (to me, at least) from a UK constitutional law perspective. They purport to implement proposals contained in the Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament to make the Scottish Parliament “permanent” and to put the Sewel convention — according to which the UK Parliament will not normally intervene in devolved affairs absent the consent of the relevant devolved legislature — “on a statutory footing”. Continue reading…

The House of Lords returned again yesterday to the implications for judicial review of the Criminal Justice and Courts Bill. (I have written about the Bill in several previous posts, the most recent of which can be found here.) The speech made by Lord Pannick in yesterday’s House of Lords debate sets out in emphatic and compelling terms why judicial review is constitutionally imperative, and why government attempts to clip the courts’ wings must be viewed with grave suspicion. The speech is worth reading in its entirety, but the following passage is particularly powerful:  Continue reading…

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I have written on several previous occasions — most recently in this post — about the Government’s attempts to restrict access to judicial review through the Criminal Justice and Courts Bill and, in particular, about the attempts of the Justice Secretary, Chris Grayling MP, to justify the Government’s position. As part of ongoing legislative ping-pong between the House of Commons and the House of Lords on this matter, the Bill returned to the Commons yesterday, and the Commons, unsurprisingly, sided with the Government.

In my earlier post, I said that the Justice Secretary’s stance revealed five fundamental misconceptions concerning the UK’s constitutional arrangements and the place of judicial review within them. Nothing in yesterday’s debate causes me to revise that assessment. One passage, however, does stand out. Grayling said:  Continue reading…

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David Davies MP (not to be confused with David Davis MP) has called for the repeal of the Human Rights Act 1998 in the light of the murder in Paris yesterday of 12 members of staff at the French satirical magazine Charlie Hebdo. In an article on his website entitled “Paris attacks show need to scrap Human Rights Act”, Davies writes: Continue reading…

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. Continue reading…

Wilberg, ElliotI 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. Continue reading…