POSTS BY Joelle Grogan

Defending the Open Society against its Enemies

On 18 June 2020, in the case of Commission v Hungary (Transparency of associations), the Grand Chamber of the Court of Justice held that Hungarian authorities “introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations” when it adopted a new legislation on NGO in 2017. How will the Hungarian government react? Six potential scenarios can be outlined from not doing anything (scenario 1) – an unlikely option due to the threat of pecuniary sanctions – to full and good faith compliance with the judgment resulting in the total repeal of the Lex NGO (scenario 6) – equally unlikely. Between these two, four additional ones may be foreseen.

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States of Emergency

The fifty days of the ‘COVID-19 and States of emergency’ Symposium covered the height of the global legal reaction to the pandemic, offering a snapshot of countries in collective crisis. It began with a call for a global conversation on the kind of legal norms which should govern the situation of worldwide pandemic. This final contribution aims to trace the central themes, questions and issues raised by the Symposium.

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Right Restriction or Restricting Rights? The UK Acts to Address COVID-19

The UK initially downplayed concerns arising from the spread of COVID-19: Prime Minister Boris Johnson suggesting Britain should ‘take it on the chin’, pursued a policy which introduced no significant measures beyond encouraging hand-washing for 20 seconds. This changed, abruptly, on 12 March. On the same day schools and businesses were shut in Ireland and France, and three days after Italy was locked down, Prime Minister Boris Johnson announced a move to the delay phase and advised, though did not direct, over-70s to stay home, and travellers to avoid cruises. People should ‘avoid pubs and restaurants’, but they would not be closed. Large gatherings, such as the Cheltenham Festival, would not be prevented from going ahead. On 19 March following the rapid spread of the virus, the government announced that there was ‘zero prospect’ of a lockdown in London which would place limits on peoples’ movement. Four days later, on 23 March, the capital entered lockdown along with the rest of the country. ‘Zero prospect’ had lasted less than four days.

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Introduction & List of Country Reports

As states of emergency are declared throughout the world in response to the spread of COVID-19, concerns arise as to the use – and potential abuse – of power in a time of crisis. In this Symposium, comparative country reports examine the use of emergency powers from the perspective of democracy, human rights, and the rule of law.

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This is not the End: What lies ahead for the VDL Commission in terms of Brexit

Brexit is the ‘shock’ that united Europe according to the President-elect of the Commission, Ursula von der Leyen. There’s certainly an element of truth to this. Despite some occasional signs of disagreement, the EU-27 have given every show of maintaining a unified position in all stages of the Brexit process so far. There may be a tempting political expediency of prioritising a unified position on Brexit (no doubt in ‘protection of the European project as a whole’) above holding individual Member States’ governments’ to account for measures which further and entrench rule of law backsliding. This post aims to outline only some of those challenges, and highlight outstanding issues, in the years of the Brexit process ahead.

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Fools Rush Out

Few actions when done quickly are done well – and law-making has certainly never been one of them. Late in the evening of 22 October, the House of Commons was asked to approve of a legislative programme which would only have allowed it three days to consider, debate and amend a law which is bound to radically alter the constitutional, political, and economic foundations of the UK. This programme was rightly rejected.

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The Rule of Law, not the Rule of Politics

On 24 September 2019, just two weeks after Parliament had been controversially prorogued by Prime Minister, Boris Johnson, the UK Supreme Court handed down a unanimous judgment holding that such prorogation was ‘unlawful, null, and of no effect’. Parliament was not and had never been prorogued. But this is not likely to be the end of such questioning of the fundamentals of the constitution and – in particular – the limits of executive power.

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Where Power Lies or Where Power Lied?

Tomorrow, on Tuesday 17 September, the UK Supreme Court will be asked to consider appeals from the Court of Session in Scotland, and the High Court in England on the question of whether prime minister Boris Johnson’s advice to the Queen to prorogue parliament was lawful. Such a question will oblige the court to consider foundational questions of the separation of powers and the division between law and politics. It will also have to decide whether the motives of executive decision-making can be judged against principles of parliamentary sovereignty, democracy and the rule of law. If the Supreme Court finds the advice was unlawful, an even more difficult question arises in what sort of order may be given to remedy such a legal wrong: can the court order Parliament to return to a session which has ended, or the Queen to ‘un-prorogue’?

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The Commission’s Rule of Law Blueprint for Action: A Missed Opportunity to Fully Confront Legal Hooliganism

In its first Communication entitled “Further strengthening the Rule of Law within the Union” published on 3 April 2019, the Commission offered a useful overview of the state of play while also positively inviting all stakeholders to make concrete proposals so as to enhance the EU’s “rule of law toolbox”. A follow up Communication from July 2019 sets out multiple “concrete actions for the short and medium term”. This post will highlight the most innovative actions proposed by the Commission before highlighting what we view as the main weakness of its blueprint: a reluctance to fully accept the reality of rule of law backsliding.

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The Next Few Days Will Reveal where the Heart of Power Lies in the British Constitution

Were the UK government to ignore a Supreme Court judgment finding the advice to prorogue illegal, or even refuse to recognise an Act of Parliament directing action to prevent a no-deal Brexit, this would be a constitutional crisis. This will bring all institutions into conflict – most immediately the crown, which may be obligated (one way or another) to make an extremely polarising political choice.

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