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Category Archives: Constitution

So-called Article 61 of Magna Carta – and the so-called right to rebel

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Protesters who occupied Edinburgh Castle have claimed they are doing it under “Article 61” of Magna Carta – in reality Chapter 61. This, they would presumably argue, offers a “right to rebellion” against the monarch. Of course that is nonsense, not least because Chapter 61 was an agreement between King John and his magnates – the barons whose rebellion led to the signing (or rather sealing) of Magna Carta in 1215. It was an acceptance that those barons could rebel – or temporarily abandon their fealty to the monarch – but return to the fold without loss of their feudal estates once the issue at hand was resolved. It was not a carte blanche for hoi polloi to rise up and seize royal castles.

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Begum judgment: a dilemma for liberals

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How awkward! For Lisa Nandy, for Labour MPs in general only just getting used to donning the Union Jack waistcoat, and for all liberal constitutionalists who are believers in the rule of law and defenders of judges from allegations of “treachery” and “activism”.

The Begum Supreme Court ruling that “Jihadi bride” Shamima Begum cannot return to Britain to fight for her British citizenship has put them in a very contorted position. These, after all, are the people who believe it is right that judges stand in judgment over the executive; that they are a bulwark against oppressive government actions. That, after all, is the “rule of law”.

Yet here is a case where the highest court in the land supported the Government against the individual, backed the Goliath against a tragic single mother seeking to assert her rights, declared, indeed, that the courts should not intervene in such government policymaking.

The position of Nandy, the shadow Foreign Secretary, epitomises the agony on the liberal left. In the past she has, in principle, backed Begum’s return, saying (according to this Labour site last July): “The law was on the side of bringing her back to the UK, because it’s not legal to deny someone a fair trial or to make them stateless.” Here, though, is what she said on BBC 4’s Any Questions in response to the Begum decision (with emphases added):

  “I suppose first of all to say we respect the court’s decision. The judgment that the Home Office put forward was that it would create national security risks for her to return to the UK to appeal against the decision to strip her of her citizenship. She wants to have that heard in the UK. The Home Office wants that to be heard remotely from the camp that she is currently in and the Supreme Court ruled with the Home Secretary essentially that this [her return] creates national security risks. We wouldn’t welcome the prospect of anyone returning to the UK who wishes us harm.”

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Coronavirus crisis: just the time for an experiment in deregulating child safeguarding

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Everyone agrees: the coronavirus lockdown is putting particular pressure on vulnerable children. They are more at risk of violence and abuse when confined to their own homes and less able to seek help. Only 5% of them are believed to be at school, where they have a right to go despite the lockdown.

So the Government will have put much thought into helping under-pressure local authorities and their social workers to have the emergency legal backing to perform their child safeguarding duties in these particularly challenging circumstances, right?

Wrong. In fact what has most exercised the Department for Education is launching an experiment to reduce or remove certain statutory local authority child safeguarding duties – using the coronavirus crisis as an excuse. Hence the  Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – a piece of secondary legislation published by the Government on 23 April in a Parliament of MPs scattered around a country on lockdown and passed into law the morning after.

The worry is that the Government has used coronavirus as a stalking horse for an experiment in what it has already been trying to do for some years despite Parliament’s opposition – producing a less regulated system of child safeguarding. The fear is that emergency legislation is actually crafted as a response to a longstanding Conservative bugbear – that councils should be relieved of safeguarding obligations – rather than a response to the Covid-19 emergency. Read the rest of this entry

Can Boris Johnson defy a commons vote of no confidence?

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For those British MPs wanting to stop a no-deal Brexit, the options are running out. Among  avenues apparently blocked, according to some, is a motion of no confidence in Boris Johnson’s government. The prime minister’s senior adviser, Dominic Cummings, has declared it is too late for such a motion to halt Brexit on 31 October. Even if he loses a motion of no confidence, Johnson can, according to Cummings, refuse to make way for a new Prime Minister and stay on until he decides to have a General Election – probably during or after Brexit on 31 October.

Meanwhile, the bad news for the ant-Brexit proponents of the “government of national unity” is that, even if Johnson follows correct procedure and quits, it is Jeremy Corbyn who should most likely be invited to set up a new government, not a cross-party coalition. There is no parliamentary mechanism for such a coalition to take power unless it is led by Labour.
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Is Jeremy Corbyn’s no confidence vote ‘stunt’ a bigger deal than he realises?

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Could Britain’s Labour Party leader Jeremy Corbyn inadvertently stumble into achieving what he has so far balked at even attempting: bringing down the Theresa May government? He has tabled a “symbolic” motion of no confidence in her personally while shying away from a motion under the Fixed-term Parliaments Act 2011 that could actually produce a general election.

He may not realise it but his motion could actually bring down the Government – if enough Tories become desperate enough to ditch May and put Brexit on hold.

Corbyn said the motion was to “put pressure” on May to name a date for the “meaningful vote” on her Brexit deal – and when she did name a date, he pressed on regardless. This vote has certainly been spun as merely symbolic: that’s how the Guardian saw it , presumably after talking to Labour sources:

“The form of the motion is such that it would not lead to a general election or even the ousting of Theresa May if she were to be defeated – rather it would amount to a symbolic defeat of the prime minister.”

Coincidentally, though, a week earlier, a report from the Commons Public Administration and Constitutional Affairs Committee was released here (pdf) on the very subject of confidence votes in the House – with this dire warning: “Any clear expression of ‘no confidence’ could topple Government”. Read the rest of this entry

Great Repeal Bill Brexit row: Keep Henry VIII’s name out of it

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One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament. 

The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.     

But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument. 

The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.

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What if James Eadie was right about Brexit?

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Pity poor James Eadie QC, the lawyer tasked with swaying at least six Justices of the UK Supreme Court to his rather unappealing view that David Davis can sweep away 40-odd years of EU rights with the scrawl of his crabbed hand on an Article 50 notice.      

When smooth-as-silk Silk Lord Pannick stood to address their Lordships and Ladyship in the Gina Miller Brexit case, one could sense the hearts aflutter and knees atremble in chambers up and down the country as he caressed the precedents and drove his points home with firm but gentle force. Expect the CSI-effect to kick in during the next round of university applications – an upswing in applications to law schools from 18-year-olds who suddenly really want to be constitutional lawyers. There is, in contrast, no such thing as the Eadie effect.     

Where Pannick was a gallant schooner expertly managing the light zephyrs wafted his way by the assembled justices, deftly avoiding the gentle sandbanks and glittering coral reefs to reach his haven, Eadie was an oil-bespattered tramp steamer buffeted by blizzards, bouncing of rocks and barely making it into port.   

He found his craft beached in his final gasping moments on a very poor (and probably unconstitutional) point in which he seemed to suggest the Justices check what MPs had been doing in the Commons the night before (passing the Brexit motion) and somehow take it into account in their judgment.   

But what if (one can put it no higher) – what if Eadie turns out to be right? Even half right might be good enough. So, what does his somewhat incoherent case amount to?   Read the rest of this entry

Bedroom tax case: don’t forget the ECHR

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Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

  1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
  2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.
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1297 And All That: how to impress a Brexit judge

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Turned down the chance to take the option on Medieval Law during your time as a legal scholar? Bad move. Ancient precedents are now cool – and the best way to impress our top judges when they are considering tricky matters such as the Brexit wrangle.

One of the teams in the Gina Miller/Dos Santos Brexit case came up with material going all the way back to 1297 to support their contention that Theresa May didn’t have power to start Brexit by issuing an Article 50  notification. But were they, how can one say it, a little economical with the historicité?

Helen Mountfield QC, for the People’s Challenge, said Henry IV had tried to suspend a 1297 Act which allowed foreigners to trade in London:

“So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time. The law itself which is referred to there has been, I think, tracked down by the industries of my friend Ms Simor QC, the law of 1297 at bundle E1, and it is perhaps unsurprising that it was Henry IV who wanted to ‘kill all of the lawyers’.”  Second day of case; digest here

This writer, of course, cannot pretend to have access to their lordships bundles. However one assumes that the 1297 Act must be Magna Carta – the Edward I inspeximus* re-issue, not the 1215 original. Strictly speaking it is a treaty (between the King and his people – or those who mattered) rather than an Act of Parliament but it was also enacted into law. It remains on the statute books, what’s left of it, and can be found here. But it wasn’t exactly the act of a “sovereign parliament” as we know it today. Read the rest of this entry

The Brexit court case (Miller/Santos): Link to extracts

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Our sister blog Thinking Legally has published digested versions of the Brexit High Court case R (Miller and Santos) v Secretary of State for Exiting the European Union. 

First day: Thinking Legally 1

Second day: Thinking Legally 2

Third day: Thinking Legally 3.

Here are some Brexit pieces on Al’s Law.

The High Court case: full (uncorrected) transcripts
The first day transcript 13 Oct of the Miller/Santos court case is here (MoJ pdf).
• The second day transcript: Full day transcript for 17 October 2016.
• Third day Full day transcript for 18 October 2016.
• All available at the Ministry of Justice

The High Court case has now been superseded by the Supreme Court case (December 2016). Transcripts and other material can be found here on the Supreme Court site. A report/analysis of the Supreme Court case is here: What if James Eadie was right?

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