Tuesday, 15 October 2019

Extinction rebellion protests - a Section 14 Order

Global climate change is an issue to be taken seriously. I readily admit to being among the sceptics until I came across the serious and well-presented examination of the subject on the NASA website - Global Climate Change - Vital signs for our planet - where it is stated that scientific evidence for warming of the climate system is unequivocal.  It is claimed that - "The current warming trend is of particular significance because most of it is extremely likely (greater than 95 percent probability) to be the result of human activity since the mid-20th century and proceeding at a rate that is unprecedented over decades to millennia."

Extinction Rebellion

Saturday, 12 October 2019

Solving controversial problems - the judicial and the political roles - two eminent views

Jonathan Sumption, a retired Justice of the Supreme Court, delivered the 2019 Reith Lectures - earlier post of 25 June and see BBC's annual Reith Lectures

Lord Sumption followed up the lectures by publishing a very readable book - Trials of the State: Law and the Decline of Politics.

The book is based on the lectures, with additions and modifications provoked by the discussions which followed, and some expansion of points that could not be accommodated within the half-hour broadcast slots.

The subtitle of the book

Friday, 11 October 2019

Sovereignty and Accountability - fundamental principles - a note

The recent Supreme Court decision in Miller v Prime Minister [2019] UKSC 41 (the prorogation case) invoked what the judgment refers to (para 41) as - "Two fundamental principles of our constitutional law .." First, the principle of Parliamentary sovereignty. Secondly, Parliamentary accountability.

The judgment of the majority in Miller v Secretary of State for Exiting the EU [2017] UKSC 5 noted at para 40 that - "Unlike most countries, the United Kingdom

Wednesday, 9 October 2019

Parliament - Judicial Independence - Prorogation

Judiciary- Independence:
On 8 October the House of Commons held a short debate on Judicial Independence - Hansard 8 October - Judiciary: Independence. Robert Neill MP asked the Lord Chancellor (Robert Buckland MP)

"Consistent with the Lord Chancellor’s speech at the opening of legal year, will he confirm that there is no place for political involvement in the appointment of judges and no question but that the rulings of the courts must be observed by all?"

Mr Buckland replied -

Monday, 7 October 2019

Brexit and civil aviation ~ a note

Back in July 2018 this blog took a look at the possible impact of Brexit on the civil aviation sector. This post notes some developments which should, at least in the short term, minimise disruption to civil aviation in the event that Brexit takes place without an Article 50 withdrawal agreement.

This sector operates within a complex system of international regulation including regulation by European agencies such as the European Union Aviation Safety Agency (EASA) created by the EU in 2002.

EU Regulation 2019/502:

The UK government has

Thursday, 3 October 2019

In brief - proposal for new Ireland protocol - Prorogation

Updated 8 October

The British government has put a proposal to the EU Commission for a new protocol for Ireland / Northern Ireland - see UK Government Policy Paper 2 October 2019 where the letter from the Prime Minister to the President of the EU Commission can be seen as well as an Explanatory Note on the proposals.  A "legal text" has been sent to the Article 50 Taskforce.

The Prime Minister's statement in the House of Commons 3 October 2019. The Prime Minister said

Wednesday, 2 October 2019

Brexit ~ Further court actions in Scotland

Court of Session
Updated 9 October

In early September it was announced that proceedings had been commenced in Scotland's Court of Session by petitioners Joanna Cherry QC MP, Jolyon Maugham QC and businessman Dale Vince (a millionaire businessman and political donor who founded the renewable electricity company Ecotricity) - The Guardian 12 September 2019.  The petitioners are asking the court to apply the Scots Law concept of "nobile officium" so as to enable the court to sign a letter to European leaders requesting a Brexit extension in the event Mr Johnson refuses to do so.

The nobile officium

Friday, 27 September 2019

Case of Prorogation ~ Supreme Court judgment (2)

Links added at the end of the post .....

This is the second of two posts considering the Supreme Court's judgment in the prorogation appeals.  The first post looked at how the court held that the advice of the Prime Minister was justiciable and at the standard they set down for adjudicating upon lawfulness. This post considers the remainder of the judgment which addressed lawfulness itself and remedy.

Was the advice lawful?

The court pointed

Case of Prorogation ~ Supreme Court judgment (1)

My previous post (24 September) noted the Supreme Court's unanimous judgment in the two Prorogation appeals. The court held that the advice given to Her Majesty by the Prime Minister (Boris Johnson) to prorogue Parliament was justiciable and also unlawful.  The consequence of the advice being unlawful was that the Order in Council of 28 August 2019 was also unlawful, void and of no effect and should be quashed with the result that Parliament was not prorogued.

When this litigation commenced, there were

Tuesday, 24 September 2019

Prorogation Unlawful ~ Supreme Court judgment

UKSC 24 September 2019
On Tuesday 24 September the Supreme Court of the UK handed down judgment in the Prorogation-related judicial reviews - previous post.

It is a judgment that will resonate around the common law world in which many Parliamentary systems are based on the Westminster-model.

The court held unanimously that the advice given to Her Majesty by the Prime Minister (Boris Johnson) to prorogue Parliament was justiciable and also unlawful.  The court held

Sunday, 22 September 2019

Prorogation ~ Australia

The present prorogation of the UK Parliament is particularly controversial because of the imminence of Brexit and the fact that no withdrawal agreement has been reached. The present House of Commons is opposed to withdrawal from the EU without an agreement and has legislated to try to prevent that taking place without its consent - previous post.  The government, headed by Prime Minister Boris Johnson, has stated that it prefers the UK to leave the EU with an agreement but if one cannot be secured then Brexit should still take place on 31 October.  The prorogation has been challenged in the courts and judgment of the Supreme Court is expected in the coming week - previous post.

The power to prorogue

Friday, 20 September 2019

The prorogation litigation 17-19 September 2019

UKSC - September 2019
Update 23 September - Judgment will be handed down at 1030 on 24 September.

Prorogation of parliament was ordered on 28 August and took place on 9 September. The prorogation lasts until 14 October and was ordered by HM The Queen acting, via the Privy Council, on the "advice" of the Prime Minister.  It is widely thought that the true reason for this lengthy prorogation is to remove an awkward House of Commons from the political scene so that the government can get on unhindered with its Brexit policy.

The prorogation removes

Tuesday, 17 September 2019

Prorogation of Parliament: Supreme Court to hear challenges

"The prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases" - Erskine May at para 8.5.

That statement sets out the basic legal position relating to prorogation.  Prorogation is dealt with in greater detail by Graham Cowie in a House of Commons Library Briefing Paper - CBP8589. In practice, the prerogative power to prorogue parliament is exercisable

Friday, 13 September 2019

The European Union (Withdrawal) (No 2) Act 2019

The Prime Minister said that "he would rather be dead in a ditch" than seek a further extension of UK membership of the EU and Michael Gove (Chancellor of the Duchy of Lancaster), in an interview with Andrew Marr, refused to guarantee that government would obey legislation to block a no-deal Brexit - The Guardian 1 September 2019.

The European Union (Withdrawal) (No 2) Act 2019 is now law and imposes certain duties relating to Brexit on Ministers including duties on the Prime Minister.

That Ministers are under an obligation

Wednesday, 11 September 2019

Prorogation and the courts

England and Wales:

The High Court (Divisional Court of the Queen's Bench Division) - Lord Burnett CJ, Sir Terence Etherton MR and Dame Victoria Sharp (President QBD) held that the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts-  - Judiciary - Gina Miller v Prime Minister and others [2019] EWHC 2381 (QB). 


In Scotland's Court of Session (Outer House) - Lord Doherty - reached

Tuesday, 10 September 2019

Extraordinary times ~ Parliament 9 September 2019

Extraordinary times:

It is wholly inadequate to say that the political events of the last few days have been "utterly extraordinary." Even during the many turmoils since the end of World War 2 it is impossible to find a situation in which there has been this degree of breakdown in the trust required between government and parliament. Political actors have to be trusted to observe the laws and conventions underpinning the UK's uncodified and, at times, ill-defined constitutional arrangements. In particular, trust is crucial so that government respects the role of parliament and vice versa.


Suspicion was confirmed by

Thursday, 5 September 2019

4 September ~ What happened

Updated 6 September:

Proceedings in the House of Commons on 4 September 2019 included the passage of the European Union (Withdrawal) (No 6) Bill (the No.6 Bill) through all its House of Commons stages. The Bill then proceeded to the House of Lords.  The Commons also held a vote, under the Fixed-term Parliaments Act 2011, for an early general election.


The Prorogation Order requires the prorogation of Parliament

Wednesday, 4 September 2019

3 September 2019 ~ What happened: minus the rhetoric!

Court of Session
On 3 September 2019, the House of Commons returned after its summer recess which commenced 25 July. The day also saw the substantive hearing in Scotland's Court of Session of a judicial review relating to the prorogation of Parliament.

House of Commons:

An application to hold an emergency debate was made by Sir Oliver Letwin MP who said - " ...in the light of the Government’s decision to prorogue Parliament next week it has become an urgent matter for Parliament, and particularly this House, to discuss whether it can accept a no-deal exit. I therefore ask you to grant an urgent debate under Standing Order No. 24."  The Speaker

Monday, 2 September 2019

Notable cases (7) ~ M v Home Office

M v Home Office [1993] UKHL 5, [1993] 3 WLR 433, [1994] 1 AC 377 was decided by the House of Lords in 1993.  The appeal gave rise to issues of constitutional importance.  The case concerned the breach of an injunction requiring the return to the UK of M who had been removed to Zaire. A finding of contempt was made against the Home Secretary, then Mr Kenneth Baker MP, but only in his official capacity and not his personal capacity. For the first time, a Minister of the Crown was held in contempt of court.

The House of Lords (Lords Keith, Templeman, Griffiths, Browne-Wilkinson, Woolf) rejected the proposition that the courts did not have power to enforce the law against a Minister of the Crown. Applications for judicial review were not 'proceedings against the Crown' for the purposes of the Crown Proceedings Act 1947: accordingly injunctive relief against a Minister or officer of the Crown is available in judicial review.

The most detailed speech

Thursday, 29 August 2019

Prorogation announced

Updated 4 September - additional link

Tuesday 27 August - A meeting of MPs took place on Tuesday (27 August) at Church House, Westminster and put forward a cross-party plan to use "whatever mechanism possible" to stop a no-deal Brexit being forced through - ITV News 27 August 2019.  The MPs agreed "on the urgency to act together to find practical ways to prevent no-deal ... "including the possibility of passing legislation and a vote of no confidence." The legislative route to stopping no-deal was preferred over the alternative but securing parliamentary time for such legislation is difficult given that the government normally has control over the agenda of the House of Commons.

The Church House meeting