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  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
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
As a phrase, the “rule of law” is a powerful rhetorical device. To condemn something as being “contrary to the rule of law” amounts to strong criticism. However, at least in popular discourse, the term is used loosely. This reflects two respects in which the rule of law, as a matter of both legal theory and constitutional reality, is both uncertain and contested. First, what is it that makes something contrary to the rule of law — in other words, what does the rule of law in the first place require? And, second, if something is contrary to the rule … Continue reading 1,000 words The Rule of Law
The legal saga concerning the “black-spider memos” that Prince Charles is in the habit of sending to Ministers, inflicting upon them his often-eccentric views, is a long one. It has its origins in freedom-of-information requests issued to several Government departments by a Guardian journalist. Disclosure was sought of “advocacy correspondence” — that is, letters setting out Charles’s views about matters of public policy — sent to the relevant Departments by Charles in the mid-2000s. Today, such requests would be doomed to failure, since section 37 of the Freedom of Information Act 2000 was amended in 2010 so as to render communications with the heir to the throne absolutely exempt from disclosure. However, that amendment does not bite upon the correspondence that is the subject of the present proceedings. In a path-breaking decision issued in 2012, the Administrative Appeals Chamber of the Upper Tribunal ordered the release of the letters, holding that the constitutional role of the heir to the throne was not such as to generate a public-interest justification for withholding them. Continue reading “Of Black Spiders and Constitutional Bedrock: The Supreme Court’s Judgment in Evans“
Over the last couple of weeks, I have been teaching new Constitutional Law students in Cambridge about the fundamental, architectural aspects of the UK constitution, including the rule of law, the separation of powers and the sovereignty of Parliament. The House of Lords’ rejection earlier this week of parts of a Government Bill that aimed restrict the availability of judicial review of executive action is an excellent example of the way in which these principles interact.
Part 4 of the Criminal Justice and Courts Bill, in the form in which it was approved by the House of Commons, would have made it more difficult, in certain circumstances, for courts to scrutinse government action in order to determine its lawfulness. I have written before (here and here) about some of the intended limitations, and there is an excellent summary of this week’s House of Lords debate, and analysis of its implications, on the UK Human Rights Blog. However, it is the fact that the government and House of Commons have sought to introduce significant limitations upon judicial review, rather than the precise nature or effect those limitations, with which I am concerned in this post. I argue that this episode illuminates three key issues relating to the UK constitution. Continue reading “What a (for now failed) attempt to curb judicial review tells us about the UK’s constitution”
Last night, Lord Neuberger, the President of the UK Supreme Court, gave the 2013 Tom Sargant Memorial Lecture. His text, available here, is worth reading in full, but here are some choice excerpts. The rule of law, said Lord Neuberger, “can mean different things”: At its most basic, the expression connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires more than that. First, the laws must be freely accessible: that means as available and as … Continue reading Lord Neuberger on the rule of law and access to justice
I wrote recently about the what might happen if—as is an increasingly less-fanciful prospect—human rights law in the UK were to be fundamentally altered through repeal of the Human Rights Act 1998 and perhaps even withdrawal from the European Convention on Human Rights. In that piece, I suggested that while such changes would be far from insignificant, their importance ought not to be overestimated. This is so, I argued, because—with or without the HRA/ECHR regime—the doctrine of common-law constitutional rights would remain. Against that background, yesterday’s Supreme Court decision in Osborn v Parole Board  UKSC 61 is of considerable interest. Continue reading “Osborn: The common law, the Convention, and the right to an oral hearing”