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For those interested in studying Law at Cambridge: This week’s open days

It’s open day week in Cambridge. If you are thinking about applying to study Law here, there are a number of opportunities to find out more, including at the Faculty of Law’s open day on Wednesday 1 July and the University-wide open days on Thursday 2 and Friday 3 July. In addition, many Colleges are having open days this week or are open to coincide with the University open days. My own College, St Catharine’s, is having open days on Wednesday 1 and Saturday 4 July, and is also open for the University open days on Thursday 2 and Friday 3 July.

If you would like to talk with me about studying Law at Cambridge, you will find me in room B7 in St Catharine’s College on Thursday 2 and Friday 3 July between 10.30 am and 12.30 pm, and on the Law stand in the Faculty of Law foyer on Friday 3 July between 2.00 and 3.00 pm.

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RightsInfo: 50 human-rights cases that transformed Britain

I wrote in April about the launch of RightsInfo, a new initiative from Adam Wagner, the founding editor of the UK Human Rights Blog. Following a crowdsourcing project (to which I contributed), RightsInfo has now published its full set of “50 human-rights cases that transformed Britain”, accompanied by a fantastic infographic that enables readers to dip into and find out more about those cases. Continue reading

New paper: A Tangled Constitutional Web — The Black-Spider Memos and the British Constitution’s Relational Architecture

I have written before about the Evans case concerning the Government’s attempt to block the release under the Freedom of Information Act 2000 of correspondence between the Prince of Wales and Ministers. I have now completed work on an article on this case that will appear in the October 2015 issue of the journal Public Law. The abstract of the article is as follows:

This paper examines the decision of the UK Supreme Court in R (Evans) v Attorney-General [2015] UKSC 21, [2015] 2 WLR 813. The case, which concerned the legality of the UK Government’s attempt to block the disclosure under the Freedom of Information Act 2000 of correspondence between the Government and the Prince of Wales, raises a series of interlocking constitutional questions. The paper considers the significance of the Supreme Court’s judgment by reference to those questions, paying particular attention to the light it casts upon the relationship between the constitutional doctrines of parliamentary sovereignty, the rule of law and the separation of powers. The paper distinguishes two distinct judicial techniques adopted in the case – turning respectively upon administrative-law and constitutional-law methodology – and assesses the legitimacy of the strikingly activist approach evidenced by those judges who adopted the latter methodology.

The full text of a draft version of the article can be downloaded here via SSRN.

Now published: Wilberg and Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow

Wilberg, ElliotI am pleased to announce the publication of The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow, which I co-edited with Hanna Wilberg.

Inspired by the work of the late 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

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Why a Sovereignty Act makes no legal sense: A short response to Daniel Hannan MEP

Daniel Hannan MEP argues on ConservativeHome today that the UK Parliament should enact a “Sovereignty Act” to reassert its supremacy in the face of European Union law and the European Convention on Human Rights. Writing that EU law “overrides the law of our own democratic institutions”, his proposed solution to this perceived problem is that the UK should take a step that “requires no one else’s permission”:

We could amend Sections 2 and 3 of the 1972 European Communities Act to reassert the supremacy of Parliament. We could make clear that, in any conflict between Westminster and Brussels, Westminster has the final word.

Whether the UK Parliament should have the final word is a question of perspective. I do not propose to engage with that question here. However, analysed as a matter of law, Hannan’s proposal reveals three fundamental misconceptions that go to the heart of the debate concerning the UK’s relationship with both the EU and the ECHR. Given that that debate is likely to run for some time, it is as well to be as clear as possible about the legal groundrules.  Continue reading

Human Rights in the United Kingdom: Where Now?

I have made a short video for the Cambridge Faculty of Law’s Law in Focus series concerning the proposal to repeal the Human Rights Act 1998 and enact a British Bill of Rights. The video can be accessed here or viewed above. In my talk, I address three key questions raised by these proposals. First, what lies behind the desire of some politicians to secure the Human Rights Act’s repeal? Second, how might a British Bill of Rights differ from the present legislation? And, third, what constitutional obstacles might lie in the way of the implementation of these reforms?

In relation to the last of those three issues, the argument is developed that although the UK Parliament has the legal power to legislate for the proposed changes, the increasingly multi-layered nature of the British constitution limits Parliament’s capacity to exploit its sovereign legislative authority. In particular, the constraining effects of international law – in the form of the European Convention on Human Rights – and the devolved nature of the modern British constitution are likely to limit the UK Government’s room for manoeuvre. As a result, it is likely to be difficult to deliver upon the manifesto commitments that were made in a legally coherent and constitutionally legitimate manner.

UK Constitutional Law Association Conference: Debating the Constitution after the Election

Screen Shot 2015-05-18 at 10.12.24On Wednesday 24 June, the UK Constitutional Law Association will be holding a one-day conference at the University of Manchester on the subject of “Debating the Constitution after the Election”. I am delighted to be giving the opening address.

The aim of the day is to allow discussion, in the aftermath of the general election, about topical constitutional issues — and, in particular, about how the policies of the new Conservative Government are likely to shape constitutional developments in the coming years. Further details about the conference can be found in the flyer (right) and in this post on the UK Constitutional Law Association Blog.

Members of the UK Constitutional Law Association can attend the conference free of charge provided that they register by e-mailing UKCLACON15@manchester.ac.uk. (Information about joining the UKCLA can be found here.) Alternatively, it is possible to attend the conference by registering via this EventBrite link and paying a one-off £10 fee.

Union jack: hugely symbolic.

Could the devolved nations block repeal of the Human Rights Act and the enactment of a new Bill of Rights?

In my last post on the proposed repeal of the Human Rights Act 1998 and the enactment of a British Bill of Rights, I considered the extent to which the House of Lords might thwart the Government’s plans. My conclusion was that the Lords might plausibly assert itself so as to delay the legislation, traditional understandings of the Salisbury Convention notwithstanding, but that the Parliament Act 1911 clearly deprives the Lords of any absolute veto. What, however, of the devolved nations? Could they block the implementation of the UK Government’s proposals?  Continue reading

Book chapter: From Bifurcation to Calibration — Twin-Track Deference and the Culture of Justification

I am pleased to be able to share a near-final draft of my chapter in The Scope and Intensity of Substantive Judicial Review: Traversing Taggart’s Rainbow. The book is a collection of essays, inspired by the work of the late Professor Michael Taggart, and edited by Hanna Wilberg and me. It will be published shortly by Hart Publishing. My chapter develops ideas that I sketched in a blog post published in 2013, and which I first presented in 2011 at a seminar given at the Faculty of Law at The University of Auckland. The piece, entitled “From Bifurcation to Calibration — Twin-Track Deference and the Culture of Justification”, can be downloaded here. Continue reading

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Replacing the Human Rights Act: The House of Lords, the Parliament Acts and the Salisbury Convention

It is clear that repealing the Human Rights Act and enacting a British Bill of Rights will be far from straightforward. One potential complicating factor is the House of Lords, which is unlikely to meet these proposals with equanimity. What role, then, might the House of Lords play in this area? To what extent may it constitute an obstacle to, or a brake upon, the new Conservative Government’s legislative plans in this area? Continue reading