21 September 2019
Justiciable but not Necessarily Illegal
The UK Supreme Court is about to decide the fate of the UK Government’s decision to prorogue Parliament. Two are the main issues: First, justiciability – whether the Government’s decision can be subject to judicial scrutiny or whether it lies beyond the Judiciary’s remit. Second, if judicial review is available, whether the Government’s decision is lawful. Although the two issues prima facie appear to be distinct, in this case they are intertwined. I believe that the issue of prorogation in this case is justiciable and that the Government’s decision to prorogue falls within the legal boundaries of the Constitution. Continue reading >>
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08 March 2017
South Africa’s Withdrawal from the ICC: The High Court Judgment and its Limits
Domestic legal challenges to the South Africa government’s decision to withdraw from the ICC are underway, and while the first instalment has a distinctly Brexit flavor, it also foreshadows more substantive constitutional arguments to come. Continue reading >>03 February 2017
The Miller decision: Legal constitutionalism ends not with a bang, but a whimper
Miller was essentially a case which was argued before, and decided by, the court on the basis of the English Imperial constitutional tradition forged in the Victorian age. This judgment has made the political constitution of the devolved United Kingdom as a whole more unstable, more brittle, more fragile and more likely to break-up precisely because it denies the devolved nations’ institutions any legal right to participate in the Brexit process. Continue reading >>
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24 January 2017
Brexit in the Supreme Court: An Opportunity Missed?
For all that this case has been written-up in the media as a ‘defeat’ for the government, this was a case in which the Supreme Court passed up a significant opportunity to compensate for the UK’s newly imbalanced constitutional framework. Continue reading >>24 January 2017
The Supreme Court in Miller – some early comments
The UK Supreme Court’s decision in the Miller appeal was probably greeted with a sigh of relief in 10 Downing Street. Sure, the Government will now need to seek parliamentary approval for triggering Article 50 TEU and starting the formal process of withdrawing from the EU, but the much greater political danger of having to also seek the consent of the devolved parliaments of Scotland, Northern Ireland, and Wales, has not materialised. What follows are a few brief comments on the Supreme Court’s reasoning and an assessment of its implications for the future. Continue reading >>
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24 January 2017
Europarecht, Prärogative und Devolution: Der UK Supreme Court entscheidet über den Brexit
In seinem heutigen Urteil zum Brexit hat der britische Supreme Court entschieden, dass die britische Regierung nur nach gesetzlicher Ermächtigung den Austritt aus der EU erklären darf. Die Mehrheit des Gerichts sieht das Unionsrecht als eigene Rechtsquelle an, die nur das Parlament trocken legen kann. Dass es das nun tun wird, steht außer Frage. Continue reading >>
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