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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

House of Lords

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

HRA

What does a Conservative government mean for the future of human rights in the UK?

It seems that the Conservative Party is on its way to forming an expectation-defying single-party government — which makes its plans for human-rights reform suddenly more relevant than they seemed a couple of days ago. What is clear — it is explicitly stated in the manifesto — is that the Conservative Party wishes to see the Human Rights Act 1998 repealed and replaced with a “British Bill of Rights”. Indeed, they promised precisely this in 2010, but were constrained by their Liberal Democrat coalition partners from getting rid of the HRA, instead kicking the issue into the long grass by establishing a Commission on a UK Bill of Rights. What is less clear is what would be in such a Bill of Rights (a draft was promised last year, but has not yet materialised) and whether the adoption of such legislation might turn out, by design or by accident, to place the UK on a collision course with the European Court of Human Rights that would result in the UK’s withdrawal from the Convention. Continue reading

Hung Parliaments: Some election-night reading

One of the few things that can be predicted with any confidence about today’s general election is that it will not deliver an overall majority for any single political party. [Edit: I was wrong — along with nearly every pollster!] Against that background, the media is awash with discussion, not all of it well-informed, about the constitutional position that applies in the event of a hung Parliament. The position is governed principally by constitutional conventions — the most authoritative statement of which is to be found in the Cabinet Manual — but is also affected by the Fixed-term Parliaments Act 2011. Continue reading

Books HD

Revising for your 2015 Public Law exam? Here are some of this year’s key developments and blog highlights

For some readers (perhaps soon to be ex-readers) of this blog, their Public Law exam will be looming. As the end of the academic year approaches, I have been reflecting on some of the key developments in Public Law that have taken place during the last 12 months. The following is not intended in any sense to be comprehensive. Like my 2014 review post, this one simply reflects themes and issues that have caught my interest; the developments on which I have chosen to focus are matters on which I have written in more detail in earlier posts (to which links can be found below). They fall into three broad categories, respectively concerning the British constitution’s changing architecture, the nature of human-rights protection in the UK, and the courts’ perception of their role within the contemporary British constitution. Continue reading

A short follow-up post on the Fixed-term Parliaments Act

I wrote yesterday about the Fixed-term Parliaments Act 2011, responding to what I consider to be errors in an analysis of the same legislation published by Professor Colin Talbot. Talbot has now responded. Such to-and-fro academic exchanges can be profitable, but it is unfortunate when they become personal. I will not therefore dignify with a response Talbot’s characterisation of me (and of people who take the same view) as a “dinosaur”. Instead, I will make four brief substantive points by way of a (final) response.

Continue reading