By Mark Elliott, Stephen Tierney and Alison Young
Author: Mark Elliott
By Mark Elliott and Stephen Tierney
In a new paper, I examine the way in which judges in the UK respond to ouster clauses — and reflect on what such responses might tell us about the nature of the contemporary British constitution and the courts’ perception of their place within it
In the Government’s first defeat on the European Union (Withdrawal) Bill, Parliament has insisted that a withdrawal agreement cannot be implemented without its approval. But does that really mean that Parliament is now in the driving seat when it comes to shaping the terms of Brexit?
In the preliminary agreement concerning the terms of Brexit, the UK Government promises to give EU citizens’ rights direct effect in UK law and to make them legally ironclad unless the legislating giving effect to them is itself expressly repealed. But does the principle of parliamentary sovereignty prevent such a high degree of protection from being accorded to citizens’ rights?
In the Privacy International case, the Court of Appeal accepted that an ouster clause precluded judicial review of the Investigatory Powers Tribunal. Sales LJ contended that the issue turned on ‘a short point of statutory construction’. The reality, however, is that such cases take the courts into the deepest of constitutional waters.
I recently finished work on a paper that will be published by the University of Queensland Law Journal in December 2017, in a special issue edited by Richard Ekins and Graham Gee on the topic of ‘Reflections on the Rise of Judicial Power’. In the paper, I begin from the premise that judicial power, in any rule
Some senior MPs have suggested that Parliament could stop Brexit in its tracks in a ‘no deal’ scenario. The reality, however, is far more complex. Parliament might be sovereign, but there are limits to what even it can legally achieve.
Talk of a ‘transitional’ or ‘implementation’ period as a means of smoothing the UK’s departure from the EU is now commonplace. But how would it work legally? A new briefing paper to which I have contributed explores that question.
Following her statement to the House of Commons on 9 October 2017 concerning the progress of Brexit negotiations, the Prime Minister was asked the following question by Ben Bradshaw MP: Is it the Prime Minister’s understanding that, if necessary, it is possible to halt the article 50 process? The Prime Minister replied: The position was