CICA v Hutton: The law/fact distinction and the opportunities and risks of post-analytical reasoning

One of the first posts I wrote on this blog concerned the Supreme Court’s decision in Jones  v First-tier Tribunal [2013] UKSC 19. At the heart of the case was the distinction between questions of law and fact, and its implications for judicial oversight of tribunals. The distinction is important because if an issue that has been erroneously determined is one of law, then an error of law has been committed, rendering the tribunal’s decision vulnerable whether on appeal on a point of law or on judicial review. In contrast, a determination flawed by an error of fact is not … Continue reading CICA v Hutton: The law/fact distinction and the opportunities and risks of post-analytical reasoning

‘She is constitutionally absolutely wrong’: The Lord Chief Justice on the Lord Chancellor

In his annual evidence session before the House of Lords Constitution Committee on 22 March 2017, the Lord Chief Justice, Lord Thomas, subjected the Lord Chancellor and Justice Secretary, Liz Truss, to extraordinary criticism. I use the word ‘extraordinary’ not in order to imply that anything said by Lord Thomas was inappropriate, but merely to signal how unusual it is for a very senior judge to criticise a senior Minister in such excoriating terms. But, as Lord Thomas told the Committee, this was not an occasion for ‘mincing words’. He certainly did not do that. Lord Thomas’s remarks were prompted … Continue reading ‘She is constitutionally absolutely wrong’: The Lord Chief Justice on the Lord Chancellor

The Admin Law Blog

Today sees the launch of a new, multi-author blog concerning administrative law in the common law world. I am pleased, at the request of the editors of the Admin Law Blog, to cross-post the following piece, in which they announce the launch of their site and set out their vision for it. The Admin Law Blog can be followed on Twitter via @adminlawblog; the editors welcome submissions to alawblogorg@gmail.com.  The Admin Law Blog is a forum for the discussion of ideas and developments of interest to scholars of administrative law across the common law world. It aims to connect administrative law scholars to each other and to … Continue reading The Admin Law Blog

European Union (Notification of Withdrawal) Bill: Report of House of Lords Constitution Committee

The House of Lords Constitution Committee has published a report on the European Union (Notification of Withdrawal) Bill. The Bill, which is presently being considered by the House of Lords, was introduced into Parliament in the wake of the Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, in which it was held that legislation was needed before the initiation of the process whereby the UK will withdraw from the EU under Article 50 of the Treaty on European Union. The Bill, as presently drafted, authorises the Prime Minister to invoke … Continue reading European Union (Notification of Withdrawal) Bill: Report of House of Lords Constitution Committee

Oakley v South Cambridgeshire District Council: The maturing of the common law duty to give reasons

In Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71, a Court of Appeal with strong public law credentials — consisting of Elias, Patten and Sales LJJ — addressed the scope of the common law duty to give reasons. In this area, the orthodox position has long been understood to consist in the principle — laid down by Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] AC 531 — that there is no ‘general duty’ to give reasons, coupled with the guidance given by Sedley J in R v Higher Education … Continue reading Oakley v South Cambridgeshire District Council: The maturing of the common law duty to give reasons

The ‘Three Knights Opinion’ on Brexit: A response

Bindmans LLP have published a fascinating opinion which argues that the EU (Notification of Withdrawal) Bill that is presently before Parliament does not authorise Brexit, and that a further Act of Parliament will be required if Brexit is to occur in a way that is lawful as a matter of UK law. The opinion is written by Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC, Helen Mountfield QC and Gerry Facenna QC. The authors of what Bindmans have dubbed the ‘Three Knights Opinion’ — including those who are not knights — are leading authorities … Continue reading The ‘Three Knights Opinion’ on Brexit: A response

Distinguishing Anisminic? Ouster clauses, parliamentary sovereignty and the Privacy International case

Senior judges occasionally find it hard to resist the temptation to speculate about whether parliamentary sovereignty is ‘absolute’ — which, of course, amounts to speculating about whether Parliament is really sovereign at all. One of the principal triggers for such speculation is the question whether Parliament is capable of ousting the courts’ judicial review jurisdiction. Perhaps most notable in this regard is Lady Hale’s speech in R (Jackson) v Attorney General [2005] UKHL 56, delivered not long after the Government, yielding to intense criticism, removed an ouster clause from what became the Asylum and Immigration (Treatment of Claimants, etc.) Act … Continue reading Distinguishing Anisminic? Ouster clauses, parliamentary sovereignty and the Privacy International case