By Mark Elliott and Stephen Tierney A good deal of the legal and constitutional interest generated by Brexit has so far, perhaps unsurprisingly, focussed upon the very beginning of the withdrawal process. Initially, all eyes were on the courts, with the Supreme Court holding in R (Miller) v Secretary of State for the European Union  UKSC 5 that the Article 50 mechanism can be activated only with Parliament’s legislative blessing. As a result of that landmark judgment, attention has now switched to Parliament, through which the European Union (Notification of Withdrawal) Bill is presently passing. The questions that have … Continue reading The ‘Great Repeal Bill’ and Delegated Powers
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
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”
The Administrative Court gave judgment earlier today in R (Evans) v Attorney-General  EWHC 1960 (Admin). The case concerns a challenge to the legality of the Attorney-General’s decision to use s 53 of the Freedom of Information Act 2000 to block the disclosure of letters written to Ministers by Prince Charles. The s 53 veto was issued in order to avoid having to release the letters following a decision by the Upper Tribunal holding that the public interest required their disclosure. I have commented in previous posts on the decision of the Upper Tribunal and on the Attorney-General’s decision to override that decision by invoking s 53. Continue reading “Prince Charles, freedom of information, judicial review and the separation of powers: R (Evans) v Attorney-General”