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

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’

The Government’s case in the Article 50 litigation: A critique

Thanks to a court order, the Government’s case — its “detailed grounds of resistance” — in the Article 50 litigation currently pending before the High Court has been published. I have written before on this matter, arguing that the better view is that legislation is not needed for the purpose of triggering Article 50, but that there are strong policy arguments in favour of involving Parliament — including in relation to the initial decision concerning the initiation of the withdrawal process. The newly published Government case is — putting the point as diplomatically as possible — something of a mixed … Continue reading The Government’s case in the Article 50 litigation: A critique

A constitutional court for the UK? My letter to The Times

In a leading article published on 3 February 2016, The Times offered its support to the notion of establishing a constitutional court for the UK—an idea floated, if only obliquely, by the Justice Secretary Michael Gove. The attraction of a constitutional court, said The Times, is that it would enable the UK to stand up for national values in the face of any European laws that cut across them: Prime minister’s questions yesterday was never going to be straightforward for David Cameron. He came to parliament accused by his own backbenchers of failing to stand up for Westminster sufficiently robustly in his European … Continue reading A constitutional court for the UK? My letter to The Times

Youssef: Another Supreme Court decision, another set of obiter dicta on substantive judicial review

Supreme Court judgments addressing—but not resolving—the future direction of substantive judicial review have been coming thick and fast in the last year or two. Notable examples include Kennedy v The Charity Commission [2014] UKSC 20 (on which I posted here), Pham v Secretary of State for the Home Department [2015] UKSC 19 (blog post) and Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 (blog post). To that list can now be added Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 (press summary) (judgment). The challenge was to the Secretary of … Continue reading Youssef: Another Supreme Court decision, another set of obiter dicta on substantive judicial review

Clauses 1 and 2 of the Scotland Bill: Government Response to House of Lords Constitution Committee

I have written in previous posts about the Scotland Bill and, in particular, the possible constitutional implications—including for the doctrine of parliamentary sovereignty—of clauses 1 and 2 of the Bill, which respectively concern the ‘permanence’ of the Scottish Parliament and Government and the Sewel Convention. As noted in a previous post, the House of Lords Constitution Committee drew attention to these matters in its recent report on the Scotland Bill. The Government has now issued a response to the Committee’s report which has been published on the Committee’s website. On clause 1, concerning the permanence of the Scottish devolved institutions, … Continue reading Clauses 1 and 2 of the Scotland Bill: Government Response to House of Lords Constitution Committee

The House of Lords and secondary legislation: Some initial thoughts on the Strathclyde Review

The Strathclyde Review, which was prompted by the House of Lords’ opposition to secondary legislation on tax credits, has been published. Its recommendation is straightforward: that the House of Lords’ powers in respect of statutory instruments (which is the form taken by the majority of secondary legislation) should be brought broadly into line with its powers, under the Parliament Acts 1911–49, in respect of primary legislation. The upshot, if the Strathclyde recommendation were implemented, would be that the House of Lords would lose its power to veto statutory instruments, any attempt by the Lords to block a statutory instrument being vulnerable to … Continue reading The House of Lords and secondary legislation: Some initial thoughts on the Strathclyde Review