Brexit, sovereignty, and the contemporary British constitution: Four perspectives on Miller

To say that the Miller case has stimulated a wide-ranging constitutional debate would be to engage in rash understatement. The pages of the UK Constitutional Law Association Blog, in particular, are replete with posts that examine the issues raised by the case from a rich variety of perspectives and which advance a broad spectrum of views. As the debate has progressed, I have increasingly found myself wondering why the questions raised by the case have invited such strongly contrasting answers from those who have contributed to the discussion. Indeed, a particularly striking feature of the debate is the way in … Continue reading Brexit, sovereignty, and the contemporary British constitution: Four perspectives on Miller

Judicial Power’s 50 “problematic” cases and the limits of the judicial role

The Judicial Power Project has published a list of 50 “problematic” cases. It makes for interesting reading. The aim of the Judicial Power Project is to address the “problem” of “judicial overreach” which, it is said, “increasingly threatens the rule of law and effective, democratic government”. It is odd, therefore, to find on Judicial Power’s list of 50 “problematic” cases Liversidge v Anderson — which is criticised by the editors of the list as showing “excessive deference to the executive’s wide discretionary powers in wartime” and for “giving no effect to a statutory provision requiring the Home Secretary to have … Continue reading Judicial Power’s 50 “problematic” cases and the limits of the judicial role

Theresa May’s case for withdrawal from the ECHR: Politically astute, legally dubious, constitutionally naïve

The Home Secretary, Theresa May, has argued in a speech staking out her position on Brexit that, although she is in favour of the UK’s remaining in the European Union, it should withdraw from the European Convention on Human Rights (ECHR). The purpose of this post is not to address the arguments for or against withdrawal. Rather, it engages with the quality of the Home Secretary’s underlying arguments. It concludes that however politically savvy May’s position might be, it does not withstand analysis. In particular, it turns upon legally specious distinctions between the EU and ECHR legal regimes, and is … Continue reading Theresa May’s case for withdrawal from the ECHR: Politically astute, legally dubious, constitutionally naïve

Henry VIII powers: A follow-up post

I wrote earlier this week about Lord Judge’s recent lecture on Henry VIII powers — that is, powers conferred on the executive to amend or repeal provisions in Acts of Parliament — and parliamentary sovereignty. This post briefly raises two points by way of follow-up. How many Henry VIII powers? No idea, says the Government Since publishing that post, I have become aware of an interesting exchange involving Shadow Human Rights Minister Andy Slaughter MP, the House of Commons Procedure Committee and the Cabinet Office. (The correspondence referred to below has been shared with me by Andy Slaughter, to whom … Continue reading Henry VIII powers: A follow-up post

Lord Judge on Henry VIII Powers and Parliamentary Sovereignty

Earlier this week, Lord Judge, a former Lord Chief Justice, delivered a lecture at King’s College London entitled: “Ceding Power to the Executive; the Resurrection of Henry VIII”. The reference to Henry VIII is to Henry VIII powers — that is, clauses in Acts of Parliament authorising the executive branch of government to make secondary legislation that amends or repeals provisions in primary legislation. Lord Judge takes as his starting point the principle of parliamentary sovereignty which, he says, is so elementary that we take it for granted. It is the foundation for our half written constitution. Democracy and the … Continue reading Lord Judge on Henry VIII Powers and Parliamentary Sovereignty

Parliamentary sovereignty and European Union law: A short reading list

Now that the starting gun has been fired on the EU referendum campaign, the idea of parliamentary sovereignty—what it means, whether it is compatible with EU membership, and whether it can meaningfully be reasserted whilst the UK remains a member of the EU—is much discussed. I have written a number of blogposts over recent weeks and months, and academic articles over a longer a period of time, dealing with these matters. Here, then, is a short reading list for anyone who is interested in finding out more about this issue: Continue reading “Parliamentary sovereignty and European Union law: A short reading list”

Factortame and the voluntary acceptance of limits on sovereignty: A response to Professor Mead

I recently wrote a 1,000 words post on parliamentary sovereignty and the supremacy of EU law. In response, Professor David Mead wrote a thought-provoking blogpost in which he expresses doubt about the notion—invoked by Lord Bridge in the seminal Factortame case—of Parliament having ‘voluntarily accepted’ any limits upon its sovereignty implied by EU membership. The following is an edited and expanded version of a comment I posted on Professor Mead’s blog. To me, the ‘voluntary acceptance’ point has always seemed important because it appears to challenge one of the fundamental premises that underpins Wade’s conception of sovereignty. As I understand … Continue reading Factortame and the voluntary acceptance of limits on sovereignty: A response to Professor Mead