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Bourgass in the Supreme Court: Solitary Confinement, the Carltona Doctrine and Procedural Fairness

A post to draw attention to an interesting administrative-law case decided by the Supreme Court today. The central question in R (Bourgass) v Secretary of State for Justice [2015] UKSC 54 was straightforward: Had the prison authorities acted lawfully by subjecting the claimant prisoners to solitary confinement for unbroken periods of several months? Both prisoners were alleged to have been involved — although, in one of the two cases, only indirectly — in assaults upon another prisoner, and to have proselytised. The Court concluded that the claimants’ solitary confinement (or “segregation”) had been lawful for the first 72 hours but unlawful thereafter. This post is concerned with two issues that the Court considered in Bourgass; it does not address a further issue concerning the applicability of Article 6 ECHR to segregation decisions. Continue reading

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Michael Gove, the Justice Committee and the Human Rights Act

The new Justice Secretary and Lord Chancellor, Michael Gove, gave evidence for the first time today to the House of Commons Justice Committee. We learned a little, but not a great deal, about the Government’s current thinking in relation to the replacement of the Human Rights Act 1998 with a British Bill of Rights. However, five points made by Gove are worth noting. Continue reading

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Amending the Hunting Act: Would English votes for English laws make a difference?

It is reported today that the Scottish National Party plans to vote against proposals to amend the Hunting Act 2004 so as to relax (but not remove) the prohibition on hunting wild animals with dogs. The Government’s proposal is that the Act should be amended through the enactment of secondary legislation which would require the approval of both Houses of Parliament. The issue is politically and constitutionally sensitive because the Hunting Act applies only to England and Wales. If the SNP and the other opposition parties were to vote against these changes, it would take only a modest number of Conservative MPs — given the slimness of the Government’s majority — to join with the opposition for the proposals to fail in the House of Commons. Indeed, this prospect has now caused the Government to delay the vote on these proposals. Continue reading

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The UK Supreme Court and the British Constitution

I recently contributed the foreword to this year’s volume of the United Kingdom Supreme Court Annual Review. In my foreword, I address what I consider to be a significant new wave of constitutional jurisprudence emerging from the Supreme Court, including such judgments as R (HS2 Action Alliance) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, Osborn v Parole Board [2013] UKSC 61, [2014] AC 1115, Kennedy v Charity Commission [2014] UKSC 20, [2014] 2 WLR 808 and R (Evans) v Attorney-General [2015] UKSC 21, [2015] 2 WLR 813. Continue reading

Devolution in the UK: Constitutional Law and Constitutional Convention

I recently wrote a short contribution to an edited collection on the implications of the Scottish independence referendum. The abstract is as follows:

In this contribution, I address the proposals in the Scotland Bill to make the Scottish devolved institutions permanent and to place the Sewel Convention, regulating the exercise of the UK Parliament’s legislative authority in respect of Scottish devolved matters, on a statutory footing. In considering the constitutional implications of those matters, I present two contrasting readings premised respectively upon legal and political modes of constitutionalism, arguing that the contemporary reality of devolution in the UK cannot properly be understood unless viewed through both legal and political lenses.

My paper will be published in due course in Alessandro Torre (ed), Il Regno è ancora Unito? La Scozia tra indipendenza e devolution [Is the Kingdom Still United? Scotland between Independence and Devolution] (Maggioli, Italy, 2015), which forms part of the series Nuovi studi di diritto pubblico estero e comparato [New Studies in Foreign and Comparative Public Law]. In the meantime, a near-final draft of my contribution can be found on SSRN

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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