10 January 2025
Miller II, Part II?
Earlier this week, Canadian Prime Minister Justin Trudeau announced that he would resign as Prime Minister once a new Liberal leader was selected. He also revealed that he had advised the Governor General to prorogue Parliament and that she had granted the request, with Parliament set to return on March 24. Following the Prime Minister’s announcement, a judicial review application was filed in Federal Court challenging the prorogation. In this blog post, I analyse what we know about the legal challenge so far. Continue reading >>
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09 May 2023
50 Years of Kesavananda Bharti
India is celebrating the 50th anniversary of the landmark Kesavananda Bharti decision this year, which concretized the ‘basic structure doctrine’. Created by the judiciary in response to an overzealous executive branch, it stipulates that the legislature cannot damage or destroy the basic features of the Constitution that are fundamental to its identity. This blogpost explains the circumstances of the doctrine's inception, its substance and controversies as well as its continued importance for Indian democracy. Continue reading >>
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12 April 2023
Democracy, Sovereignty and Europe
Fifty years after Ireland and UK joined the EEC together in January 1973, the two states find themselves on radically different European trajectories. Both are common law countries with shared traditions of parliamentary governance and strong cultural links to the wider Anglosphere. However, in Ireland there is broad elite and popular support for maintaining alignment with the requirements of EU and ECHR law – while, in the UK, such European influences trigger a sharp allergic reaction. What explains this dramatic divergence? The answer perhaps lies partially in the differing ‘constitutional imaginaries’ of Ireland and the UK, and how EU and ECHR alignment is understood to impact on the exercise of popular sovereignty in both states. Continue reading >>
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27 March 2023
The Quality of Sovereignty
It can generally be agreed that the purpose of sovereignty is to enable a government to protect the best interests of its citizens. To what extent did UK membership of the EU preclude this? In the context of the EU, the discussion on sovereignty tends to focus on quantity – the greater the scope of action of the EU and its institutions, the lower the sovereignty of the member states. From this perspective, sovereignty is a zero-sum affair – less means less. However, sovereignty can also be assessed from a qualitative perspective, with a focus on its quality, or character, rather than its scope. Continue reading >>
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21 March 2023
Post-Brexit Sovereignty
In thinking about sovereignty within the United Kingdom, it is helpful to separate out two ways in which sovereignty has historically been identified in both the United Kingdom and elsewhere. Sovereignty is, first, a power over others, most notably absolute and final authority over a territory. If this allows those holding it to achieve considerable things, it also generates apprehension as it allows them to do many things to others. Sovereignty is, secondly, a constitutive power. Continue reading >>
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21 October 2022
Playing Hide-and-seek with UK’s Parliamentary Supremacy
The ambiguous status of ‘retained EU law’ – this new category of domestic law consisting of the EU law applicable in the United Kingdom until 31 December 2020 – led the UK government to draft the Retained EU Law (Revocation and Reform) Bill, known also as the Brexit Freedoms Bill (‘the Bill’), with the promise to align retained EU law with ‘the UK’s priorities for unlocking growth’. It is the most recent effort of the government to achieve what it has not achieved so far: to scrap the supremacy of EU law once and for all or, to put it differently, to restore the supremacy of the UK Parliament. However, rather than restoring, the government’s legislative proposal threatens the fundamental principle of the UK’s constitution. Continue reading >>
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11 October 2019
Miller/Cherry 2 Goes to Kashmir
There are certain principles which emerge from Miller/Cherry 2 which are meaningful for cases involving judicial review of executive powers. The application of these principles, especially in cases where the line between the executive and legislature is thin (resulting in what Bagehot described as the ‘fusion of powers’), can guide comparative lawyers to hitherto underexplored areas of administrative law accountability of the executive to legislative bodies. Continue reading >>
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01 October 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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26 September 2019
“Constitutional Paternalism” and the Inability to Legislate
On 25 September 2019, the Italian Constitutional Court (ICC) has made clear that assisted suicide is not punishable under specific conditions. The judgment came one year after the ICC had ordered the Italian Parliament to legislate on the matter – which it did not do. The entire story is indicative of the inability of Parliaments to respond to social demands as well as the current trend of high courts to act as shepherds of parliaments rather than as guardians of the constitution. Continue reading >>14 September 2019