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

Deal or no deal: Government ‘concedes’ parliamentary vote on terms of Brexit

Parliament is currently considering the European Union (Notification of Withdrawal) Bill. If enacted, it will authorise the Prime Minister to trigger Article 50, thus beginning the process whereby the UK will leave the EU. The Bill, as drafted by the Government, is very short indeed: the Government is evidently hopeful that Parliament will accept a Bill doing the bare minimum required by the Miller case, in which the Supreme Court held that legislation was necessary. But the Government has now accepted, in the course of today’s debate in the House of Commons, that there will be a vote in Parliament on any deal negotiated by the UK … Continue reading Deal or no deal: Government ‘concedes’ parliamentary vote on terms of Brexit

House of Lords Constitution Committee takes evidence on ‘Great Repeal Bill’

On 1 February, the House of Lords Constitution Committee took evidence from Professors John Bell, Paul Craig and Alison Young on the likely constitutional implications of the ‘Great Repeal Bill’. The ‘Great Repeal Bill’ is not to be confused with the European Union (Notification of Withdrawal) Bill, which is currently before Parliament. The latter Bill was introduced into Parliament in response to the UK Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, which held that the process under Article 50 of the Treaty on European Union, whereby the UK will withdraw from the EU, cannot … Continue reading House of Lords Constitution Committee takes evidence on ‘Great Repeal Bill’

Article for Counsel magazine: Miller and the modern British constitution

This article reflects on the key constitutional issues raised by the judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. It is available on Counsel magazine’s website and was published in the March 2017 print edition of Counsel. The article is republished here with permission. There are few aspects of the modern British constitution that the Supreme Court’s judgment in Miller does not at least engage. Among others, it raises questions about the nature of parliamentary sovereignty, the extent of the executive’s prerogative authority, the status within the domestic legal system of European … Continue reading Article for Counsel magazine: Miller and the modern British constitution