17 April 2020
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. Continue reading >>
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06 April 2020
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. Continue reading >>20 November 2019
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. Continue reading >>
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23 Oktober 2019
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. Continue reading >>
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01 Oktober 2019
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. Continue reading >>
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16 September 2019
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’? Continue reading >>
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05 September 2019
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. Continue reading >>02 September 2019
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. Continue reading >>
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18 Juli 2019
Prorogation is a Paper Tiger, but Time is the Elephant
There are 15 weeks left until the UK’s scheduled departure from the EU. A new leader of the Conservative party, and so de facto Prime Minister, will be chosen by party members and presented to Parliament just before it plans to rise for summer recess on 25 July. A point of distinction between the two candidates for Conservative leadership is on the exercise of a power to prorogue Parliament in order to ensure the UK’s withdrawal on 31 October 2019: Jeremy Hunt will not use the power, Boris Johnson will not rule it out. The threat of prorogation, if serious, could prove a catalyst for constitutional crisis. Continue reading >>12 Juni 2018
Suffering from Withdrawal – Controversy in the UK EU (Withdrawal) Bill
Beginning today, the EU (Withdrawal) Bill (EUWB) will return to the UK House of Commons, where all 15 amendments made to the EUWB by the House of Lords will be debated over only two days. The EUWB is arguably one of the most contentious and complex pieces of legislation to be presented to the British Parliament in this century. The amendments are a response to the concerns regarding the broad discretion across an unknown expanse of law with an almost-unfettered use of legislative power by the executive. Continue reading >>
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