Constitutional law

Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful

Originally published on the U.K. Const. L. Blog, 18 November 2016


In its judgment in Miller (the Article 50 litigation), the High Court had no doubts that it was defending constitutional orthodoxy. The issue at stake was that of the limits of executive action in the international sphere when this has consequences in UK law. The Court relied on the principle that the crown cannot change law without statutory authority. John Finnis, David Feldman, as well as Mark Elliott and Hayley Hooper argued that the Court erred by an over-broad reading of the principle and in its application. Finnis framed his argument using an analogy between withdrawing from a double-taxation treaty and withdrawing from the EU Treaties. However, some may have a worry that the analogy fails because EU law has a sufficiently special status in UK law or for some more technical reason.

I show here that even if that is the case, there is another class of executive actions rendered unlawful if one accepts the High Court’s reasoning in Miller. I am referring to voting by UK ministers in the EU Council in favour of EU secondary legislation that diminishes any individual rights derived from UK or EU law. It is difficult to assess exactly how many times, on this argument, UK ministers broke UK constitutional law since the UK joined the European Economic Community (EEC) in 1973. What is not difficult to see is how staggeringly surprising is the conclusion that such law-breaking has been taking place. I neither criticise nor defend this conclusion here. My ambition is merely to develop the argument for it, applying faithfully the logic adopted by the High Court.

The Supreme Court Should Not Refer to the EU Court of Justice on Article 50

Originally published on the U.K. Const. L. Blog, November 11, 2016

One of the most discussed aspects of the forthcoming appeal in the Article 50 litigation is the issue whether the Supreme Court should make a reference to the Court of Justice of the European Union. George Peretz QC and professor Mike Wienbracke argued that it should not (or at least will not), whereas Richard Lang and professor Daniel Sarmiento argued that it should. There are, however, two arguments for why the Supreme Court should not make the reference that have not yet received adequate attention. First, establishing whether an Article 50 notification is revocable is not necessary for the Supreme Court to decide the case because the claimants ought to lose even if it is irrevocable (and not merely because both parties stipulated irrevocability). Second, even if the first argument is wrong and the case does turn on revocability, it is still the case that no UK court has a legal power to make a reference to the EU Court, because the European Communities Act 1972 does not incorporate EU law that purports to regulate withdrawal from the EU.

What is the Government really arguing in the Article 50 litigation? A response to Mark Elliott

Originally published by the Judicial Power Project, October 5, 2016

The litigation on the lawfulness of any Government notification of a decision to leave the European Union without specific prior authorisation in an Act of Parliament is of high legal and political significance. It is therefore right that the submissions of the parties to that litigation are being publicly discussed, with the Government’s skeleton argument receiving most attention so far. Mark Elliott published an insightful and, to a large extent, critical comment. I believe that Elliott’s critique of the Government’s chief argument partially relies on an uncharitable interpretation of the skeleton argument and that in fact the Government’s submission is stronger than Elliott suggests. However, the Government can be criticised for not elucidating their points much more clearly.

Report: ‘Constitutional Change in New Zealand (and a Bill of Rights for Britain?)’

Originally published on the OxHRH Blog, 25 February 2016

On 17 February 2016, Oxford’s Programme for the Foundations of Law and Constitutional Government hosted a talk by Sir Geoffrey Palmer, former Prime Minister of New Zealand, Minister of Justice and President of the Law Commission. The talk and the subsequent discussion were devoted to the issue of the New Zealand Bill of Rights Act 1990 (‘NZBORA’) and Sir Geoffrey’s proposal for major constitutional change in New Zealand. In his comment, Professor Richard Ekins noted both the historical links between the NZBORA and the United Kingdom Human Rights Act 1998 (‘HRA’) and drew on the New Zealand experience to suggest a modest proposal for a reform of the HRA.

Limits of the Domestic Judicial Power to Disregard EU Law – Chester in Reverse

Originally published on the U.K. Const. L. Blog, February 24, 2016

Domestic courts in the United Kingdom have a power (and a duty) to disregard EU law when it exceeds the scope of incorporation by the European Communities Act 1972. It is for UK courts to determine whether any particular measure is within the scope of incorporation or not. The contrary view on this matter, taken by the Court of Justice of the European Union (from the perspective of EU law), does not affect this conclusion. This, in brief, is the argument I advance in a new paper. However, given the current Government’s designs – in my view not strictly necessary – to affirm that UK courts have such a power, even those who disagree with my starting point should be interested in the proper scope of the domestic judicial power to disregard EU law and whether the law as it is now already provides limitations on that power. I believe that it does. At least part of the answer has been suggested by Lord Mance in Chester (in a somewhat different context) and this is an analogy that I will explore.

How many members does the Polish Constitutional Court have?

Originally published on Völkerrechtsblog, 8 January 2016

The Polish Constitutional Court (the ‘Court’) will soon consider the constitutionality of a new statute that regulates the Court’s procedure (case K 47/15). The statute in question, amending the Act on the Constitutional Court, introduced inter alia a novel decision-making procedure and has been criticised as infringing the Court’s constitutionally guaranteed independence. One highly problematic aspect of the new statute is that it aims to disable the Court from using the old procedure to assess the constitutionality of the new procedure. The Court has already opted to proceed notwithstanding the new rules, acting directly on the basis of the Polish Constitution, thus implicitly confirming that it does not view itself bound by the new statutory procedure (or, for that matter, by the old procedure). It will not be possible here to do justice to all the complex issues involved (a longer overview is available here). Hence I will focus on the crucial issues concerning the required quorum and of the number of the Court’s members.

The Legal Duty of UK Officials to Comply with International Law: a Response to Dapo Akande and Eirik Bjorge

Originally published on the Judicial Power Project website, 16 December 2015

In a thought-provoking post on the UK Constitutional Law Association Blog, Dapo Akande and Eirik Bjorge take issue with the defence offered by Richard Ekins and Guglielmo Verdirame of the recent change in the wording of the Ministerial Code. The change in question consisted in a removal of a reference to complying with ‘international law and treaty obligations’ in the description of the scope of the overarching duties of Ministers. In this short response I address only one of the points made by Akande and Bjorge, arguing that they misstate the domestic legal duty of UK officials, under UK law, to comply with international law.

Judicial Power, the EU and the UK

Originally published on the Judicial Power Project website, 26 November 2015

The debate over removing the explicit reference to an overarching duty to comply with international law from the Ministerial Code is of direct relevance to the question of the relationship between domestic law and EU law. The EU’s supreme court, the Court of Justice in Luxembourg (‘CJEU’), has a somewhat imperialistic vision of its own power and of the relationship between EU law and national law. According to this vision, the CJEU is the sole arbiter of the limits of its own authority, as well as of the limits of the EU’s competences. However, the UK Supreme Court has recently suggested in HS2 and in Pham that this vision is at odds with UK law. From the perspective of UK law, it is UK law that has the final say on the nature and scope of both the legal effect of EU law and of the CJEU’s jurisprudence.

The US Same-Sex Marriage Decision: Unconstitutional Constitutional Change?

Originally published on the Int’l J. Const. L. Blog, July 8, 2015

Much will be written about Obergefell v Hodges, the momentous decision of the US Supreme Court endorsing a constitutional right to same-sex marriage, but in this short blog post I will limit myself to one aspect of the judgment: does it constitute unconstitutional constitutional change?

It may seem a strange question to ask about a judgment of a supreme court with a recognized broad power of judicial review and yet my prediction is that at least some critics of Obergefell will portray it as just that – unconstitutional change in American constitutional law (some already have – if not in these exact words – e.g., Ryan Anderson and David Upham on SCOTUSblog). Reading the dissent penned by Chief Justice John Roberts, one can hardly escape an impression that this is what Chief Justice accuses the Court’s majority of (see, e.g., his dissent at 2-3). I do not think that as a matter of positive law this particular charge ultimately succeeds, but this is not a claim I shall hazard to defend fully in such a short text.