Author Archives: UKCLA blog editors

About UKCLA blog editors

The UKCLA blog is edited by NW Barber (Oxford) and Jeff King (UCL).

Andrew Le Sueur: announcing the launch of UKAJI

UKAJI logo 2014UKCLA members and blog followers interested in administrative justice will want to know about the launch of a new project to create the United Kingdom Administrative Justice Institute (UKAJI). Based at the University of Essex School of Law for the next three years, the initiative is made possible thanks to a £350,000 grant from the Nuffield Foundation.

The project is cross-disciplinary and has three aims (1) linking the policy, practice and research communities involved in administrative justice; (2) developing a coordinated research agenda; and (3) identifying and tackling capacity constraints. More information about the project is on the UKAJI website and blog; and you can follow the project on Twitter. Work will start in earnest in October 2014. In the meantime, we are seeking to appoint a senior research officer.

The ‘core team’ of the project consists of:

  • Varda Bondy, Senior Research Fellow, De Montfort University, formerly Director of Research, Public Law Project
  • Ray Burningham, formerly Chief Executive, Administrative Justice and Tribunals Council, currently adviser to Welsh Government on Administrative Justice
  • David Cowan, Professor of Law and Policy, University of Bristol
  • Christian Gill, Lecturer in Administrative Justice, Queen Margaret University
  • Christopher Hood, Gladstone Professor of Government and Public Administration, Oxford
  • Andrew Le Sueur, Professor of Constitutional Justice, University of Essex
  • Tom Mullen, Professor of Law, University of Glasgow
  • Lucinda Platt, Professor of Social Policy, LSE
  • Steve Pudney, Professor of Economics, Institute for Social and Economic Research, Univeristy of Essex
  • Vania Sena, Professor of Business Economics and Entrepreneurship, Director of the ESRC Business and Local Government Data Research Centre, University of Essex
  • Maurice Sunkin, Professor of Public Law and Socio Legal Studies, University of Essex.

 Andrew Le Sueur is president of the UK Constitutional Law Association and Professor of Constitutional Justice at the University of Essex, UK

Suggested citation: A. Le Sueur, ‘Announcing the launch of UKAJI U.K. Const. L. Blog (13th August 2014) (available at http://ukconstitutionallaw.org).

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Andrew Le Sueur: report on IACL 9th World Congress in Oslo

I’m not sure what the collective noun for constitutional law scholars is, but whatever the word, there were a lot of them in Norway last week for the 9th world congress of the International Association of Constitutional Law (IALC). The event, which ran from 16th to 20th June 2014, attracted over 600 participants –24 from the United Kingdom – from 87 countries.

Many delegates commented the significant proportion of younger scholars present, a sign that the future of the IACL is strong. Since the IACL was formally inaugurated at its first world congress in 1983 (held in Belgrade), it is has developed into an association of associations (the UK Constitutional Law Association is one of the national associations affiliated to the IACL), which also offers individual membership, and provides support for several active research groups. Roundtables on specific topics are held two or three times a year.

Plenary sessions

The opening ceremony, attended by the Crown Prince, provided the local organisers with an opportunity to mark the 200th anniversary of Norway’s constitution. With the ceremonial part of the proceedings over, the congress’s broad theme of “Constitutional Challenges: Global and Local” was rolled out in plenary sessions, which saw an array of public intellectuals, from law and beyond, speak, standing under Edvard Munch’s fabulous mural entitled “The Sun”,  in Oslo University law faculty’s Aula. The keynote speakers were:

  • Martti Koskenniemi, University of Helsinki, Finland
  • Wojciech Sadurski, University of Sydney, Australia
  • Saskia Sassen, Columbia University, USA
  • Catharine MacKinnon, University of Michigan / Harvard, USA
  • Tariq Modood, University of Bristol, United Kingdom
  • Etienne Le Roy, Université de Paris I (Sorbonne), France
  • Daniel Weinstock, McGill University, Canada.
Plenary session 3: judges' panel on proportionality in constitutional adjudication

Plenary session 3: judges’ panel on proportionality in constitutional adjudication

By tradition, the final plenary session was a panel of judges – who spoke frankly about the difficulties and potential for using proportionality in human rights and constitutional litigation. @UKCLA was tweeting throughout the session, so look at our feed for 140-character attempts to capture some of the debate. The judges taking part were:

  • Susanne Baer, Justice, Constitutional Court of Germany
  • Amine Benabdallah, Professor, Member of the Constitutional Council of Morocco
  • William A. Fletcher, Judge, United States Ninth Circuit Court of Appeals
  • Françoise Tulkens, Former Judge and Vice-President of the European Court of Human Rights

Workshops

Participants wanting something new, and to meet scholars working in similar fields, were well served by 17 workshops spread over three days. The accepted papers are online for anybody to read (see here), and these provide rich pickings from established and emerging scholars.

Workshop 8: the internet and the constitution, chaired by Adrienne Stone (Australia) and Djedjro Meledje (Ivory Coast)

Workshop 8: the internet and the constitution, chaired by Adrienne Stone (Australia) and Djedjro Meledje (Ivory Coast)

 IACL governance

The IACL world congress enables the election of a president for the next four years. Professor Manuel José Cepeda Espinosa takes over as president from Professor Martin Scheinin.  Manuel Cepeda – described by one journalist as “el supermán jurídico” – taught at the Universidad de los Andes Law School, was a member of the constitutional court of Columbia 2001-2009, and is a senior legal advisor to government. Professor Adrienne Stone, of Melbourne Law School, was elected as first vice-president. I was elected to serve a further 4-year term on the IACL executive committee.

The new executive committee postponed making a decision about the venue for the next world congress until November, to enable further analysis of three bids from national associations in Australia , China, and South Korea. Let’s meet in Melbourne, Beijing, or Seoul in 2018 …

If you would like to support the work of UKCLA, which runs this blog and is affiliated to the IACL, please join. Membership is £15 for the 2014 calendar year.

Andrew Le Sueur is president of the UK Constitutional Law Association and Professor of Constitutional Justice at the University of Essex, UK

(Suggested citation: A. Le Sueur, ‘Report  on IACL 9th World Congress in Oslo’ U.K. Const. L. Blog (23rd June 2014) (available at http://ukconstitutionallaw.org/)).

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Andrew Le Sueur: Imagining judges in a written UK Constitution

Andrew Le SueurThe tide of interest (among those who care about these things) in the idea of a written, codified constitution for the United Kingdom rises and falls. At the moment the tide is quite high, but certainly not high enough to flow into the estuaries of government policy making.

In 2010, Richard Gordon QC —a public law scholar-practitioner at Brick Court Chambers, London —wrote a book length blue print for a codified constitution (though expressing himself tentatively in terms of aiming to stimulate a debate). In Repairing British Politics, he rejects parliamentary supremacy as a defining principle and envisages judges having broad and deep powers to enforce the constitution. As my Essex colleague Anthony King put it in a review of the book: “By implication — and notwithstanding a passing reference to ‘the available resources of the State’— unelected judges would even have the power to order other authorities to provide citizens with the aforementioned food, water, clothing, housing and free health and social care services”.

Meanwhile, across the road at the LSE, Conor Gearty is leading a “trailblazing project that invites members of the public to participate in, offer advice on and eventually to draft a new UK constitution through crowdsourcing”. On Thursday 26 June 2014, the project will be hosting a “Constitutional Carnival”when “All those involved in the project, and many others joining for the first time, will be invited to come together to have their say on what should be included in a UK constitution”. One session will be on “Where should judges fit in a written constitution?”. It will be interesting to see what emerges.

The latest contribution to the debate comes today from the House of Commons Political and Constitutional Reform Committee, which publishes its report on Constitutional role of the judiciary if there were a codified constitution (14th report of Session 2013-14, HC 802). Chaired by veteran Labour MP Graham Allen, this cross-party select committee has been toiling away since it was set up in June 2010 “to consider political and constitutional reform, scrutinising the work of the Deputy Prime Minister in this area”. Two major planks of Nick Clegg’s agenda have fallen off the lorry since then: House of Lords reform and an alternative vote electoral system for the House of Commons. With time on its hands to mull over the bigger picture, the PCRC launched a wide ranging inquiry in September 2010 on “Mapping the path to codifying — or not codifying — the UK’s Constitution”, supported by researchers at the Centre for Political and Constitutional Studies at King’s College London. Today’s report on the role of the judiciary is one aspect of that inquiry.

The PCRC’s report starts by acknowledging that the British judiciary already have a role in relation to constitutional matters, quoting examples I gave in my written evidence:

determining legal disagreements about the respective powers of different institutions within the constitution, for example between the UK Parliament and the UK Government, or between the central and local government;

dealing with legal questions about the division of powers between the UK and the European Union, under the guidance of preliminary rulings by the European Court of Justice;

adjudicating on legal questions about the exercise of powers by executive and legislative institutions in Scotland, Wales and Northern Ireland in accordance with the devolution settlements created by the UK Parliament;

protecting fundamental rights of individuals, including those in the Human Rights Act 1998, taking into account the case law of the European Court of Human Rights. [...]

judicial review of executive action and delegated legislation, ensuring that public bodies remain within the powers conferred on them by Acts of Parliament and operate in accordance with judge-made legal principles of (for example) fairness and rationality.

The report goes on to “welcome the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law”.

From there, however, the committee feels unable to say much more about what would change, in relation to the judiciary, if there were to be a written constitution:

The role of the judiciary would undoubtedly change should the UK adopt a codified constitution, but the precise nature of that change will be difficult to assess until there is an agreed definition of the current constitutional role of the judiciary. In our terms of reference we set out to explore the current constitutional role of the judiciary but this needs further work.

That’s quite right. There are a number of different ways in which the British constitution could be “written”and each model —including a non-legal constitutional code, a consolidation Act bringing together current statute law on the constitution into a single enactment, and a full blown constitution —would have different implications for the role of judges.

Having rehearsed some well trodden pros and cons of parliamentary supremacy (and whether it should or indeed could be retained in a written constitution), the PCRC expresses interest in the idea (which I share) of a “declaration of constitutionality” modelled on similar lines to section 4 of the Human Rights Act 1998, which would give courts power to declare that an Act of Parliament is inconsistent with a norm of the constitution without striking down the offending provision. It would then be left to government and Parliament to decide how to respond.

In a statement that will I’m sure provide inspiration to setters of undergraduate essay questions in years to come, the committee states “Before the UK could move towards a codified constitution there would need to be a precise definition of the ‘rule of law”’. I am not sure that is right: arguably, the committee gets this back to front. A better way of understanding the umbrella concept of the rule of law is to say that it includes what is written down in a constitution.

Sharing a view previously expressed by the House of Lords Constitution Committee, the PCRC shows little appetite courts having power to undertake  pre-enactment review of legislation. Nor is there much support for setting up a specialist constitutional court: based on the evidence received (including mine), the report concludes that “the Supreme Court could adjudicate on constitutional matters”.

All in all, it is difficult to resist the view that the PCRC’s report is a damp squib on the big issues. It offers little new on the key question of whether parliamentary supremacy could or should be retained under a new constitutional document. To be fair, it is unrealistic to expect a cross-party select committee, midway through a larger inquiry, to say much more on this contentious issue. In the press release accompanying today’s report, the committee’s chair Graham Allan is quoted as saying “The Committee expects to publish the results of its wider inquiry into codifying, or not codifying, the UK’s constitution in the summer.” Let’s see.

In my written evidence to the committee I argued for political realism in the debate about the role of the judiciary. I said that, thinking about the topic of judges in the constitution generally, it is possible to envisage a range of possible roles.

At the maximalist end of the spectrum would be a design that (for example) empowers the judges to adjudicate on the constitutionality of Acts of the UK Parliament with a remedial power to quash Acts that are incompatible with the UK Constitution; the UK Constitution might also include legally enforceable socio-economic rights (to health, housing, education and so on); there might also be ‘abstract’ judicial review of bills before they receive Royal Assent. A design of this sort would involve a shift in the balance of power to decide matters of national interest away from the UK Parliament and Government towards the courts.

A minimalist design of the judicial role in the UK Constitution would not give the courts power to quash Acts of Parliament (so preserving the existing principle of parliamentary supremacy), would avoid creating justiciable socio-economic rights (confining rights to the civil and political ones familiar from the European Convention on Human Rights currently incorporated into national law by the Human Rights Act 1998), and would not have a system for abstract judicial review of bills.

Where on the maximalist-minimalist spectrum a UK Constitution should sit has to depend on (a) efficacy and (b) political acceptability. Efficacy is concerned with what is needed, from a ‘technical’ legal perspective, for the UK Constitution to make a real improvement compared to current constitutional arrangements. Political acceptability is about being realistic as to what political elites and the general public would find attractive or tolerable.

In the current political climate it is difficult to imagine that mainstream political opinion would accept an enlargement of the role of judges in adjudicating on legal questions that relate to controversial matters of public policy. The existing powers of courts under the Human Rights Act 1998 and in judicial review claims are regularly called into question by members of the Government and have few champions within Parliament. There is little public understanding of the role of courts in these areas and the constitutional function of the judges is routinely disparaged and misrepresented in the press. This political background against which the continuing debates about a UK Constitution take place is unlikely to change in the foreseeable future. Politically realistic constitutional reformers should therefore favour a minimalist role for judges in a codified constitution and provide reassurance to sceptics and opponents of judicial power that adoption of a UK Constitution need not involve the judges in novel legal tasks.

I stick to that view. At a time when the government, including the Lord Chancellor, find judicial review of administrative action unpalatable, it is not practical politics to argue for greater powers for the UK courts to strike down “unconstitutional”Acts of Parliament. Anti-judicial review sentiments were not invented by the present coalition government. Under previous administrations, ministers did not see the point of it. In 2003, David Blunkett MP, when a minister in Tony Blair’s Labour government, captured what I sense to be the dominant view of all recent governments: “Frankly, I’m personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them”.

Andrew Le Sueur is Professor of Constitutional Justice at the University of Essex and president of the UK Constitutional Law Association.

(Suggested citation: A. Le Sueur, ‘Imagining judges in a written UK Constitution’ U.K. Const. L. Blog (14th May 2014) (available at: http://ukconstitutionallaw.org/).

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Event tomorrow: ALBA/UKCLA Seminar on Right to an Oral Hearing

UKCLA logoA reminder to UKCLA members and blog readers … Tomorrow, 14 May 2014, the UKCLA will hold a joint seminar with ALBA (the Constitutional and Administrative Law Bar Association). The topic addresses questions of procedural fairness  in relation to the right to an oral hearing.  The speakers are  Hugh Southey QC and Professor David Feldman, with Mr Justice Silber in the chair. The speakers will consider recent case law in which the courts have considered the circumstances in which fairness requires (and does not require) an oral hearing. The seminar will be held from 17.45-19.15, in Gray’s Inn, in the Large Pension Room. 1½ CPD  points will be applied for. The seminar is free, but please register in advance through the ALBA website  www.adminlaw.org.uk.

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Andrew Le Sueur: UKCLG (“G” for group) becomes UKCLA (“A” for association)

UKCLA logoPlease take out membership for 2014 (£15) to support our work: details here.

At the UK Constitutional Law Group AGM, held on 17 January 2014, members agreed to provide our activities with a more formal framework by adopting rules and becoming an association. The UKCLG is therefore now the UK Constitutional Law Association or UKCLA and, for the twitterati, our twitter account has become @UKCLA. No need for the 2,700-plus blog followers or 1,100-plus twitter followers to do anything: you’re still with us.

The Association’s executive committee, elected at the AGM, now includes: me (as president, continuing also in my role on the International Association for Constitutional Law executive committee); Nick Barber (vice-president and co-editor of the blog); Sebastian Payne (vice-president and events organiser); Jeff King (treasurer and co-editor of the blog); Javier Garcia Oliva (membership secretary); Merris Amos; Aileen McHarg; and Richard Ekins; with Robert Hazell and Peter Leyland co-opted for 2014.

The organisational changes are part of a general revitalising of our activities, something that all organisations should do from time to time. In the 10 years from its launch as a small network of scholars by Anthony Bradley, Stephen Sedley and Mads Andenas in 2003, followed by leadership from Dawn Oliver, we have grown into a larger membership organisation with supporters throughout the UK and beyond.

The initial focus of the group was relatively small events usually held in London, supplemented by occasional larger conferences. The UKCLA continues to organise and sponsor events (there are three in January). Sebastian Payne is always happy to have suggestions for events, all the more so if a venue can also be provided. We are especially keen to help members with events outside London. Some events are UKCLA “own productions”; others are organised by members and their institutions with the UKCLA providing varying packages of support (including, for example, pre-event publicity through our web and blog and a post-event report on the blog).

The blog now allows us – though a panel of over 60 contributors – to provide scholarly commentary on constitutional law issues to readers around the world: in 2012, we had more than 400,000 ‘hits’ on the blog. Nick Barber and Jeff King are keen to hear from academics who would like to contribute to the blog. Authoritative posts of around 800-1,000 words, written by scholars, will remain the blog’s distinctive style. The UKCLA remains affiliated to the International Association of Constitutional Law, which holds the IXth Congress in Oslo from 16-20 June 2014.

Andrew Le Sueur is president of the UKCLA and Professor of Constitutional Justice in the School of Law and Human Rights Centre, University of Essex, UK.  

Suggested citation:  A. Le Sueur, ‘UKCLG (“G” for group) becomes UKCLA (“A” for association)’ U.K. Const. L. Blog (23 January 2014) (available at http://ukconstitutionallaw.org)

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UKCLA event: Margit Cohn on non-statutory powers, 30 January 2014

Margit Cohn (Hebrew University of Jerusalem)

‘Non-Statutory Executive Powers in Five Regimes: Assessing Global Constitutionalism in Structural-Institutional Contexts’ 

Thursday 30 January 2014,  6.00-7.30 pm

Venue: Room 1.2, School of Law, Queen Mary, University of London (Lincoln’s Inn Fields Campus), 67-69 Lincoln’s Inn Fields London WC2A 3JB

 

Members of the UK Constitutional Law Association and readers of the blog are all welcome to attend. No need to book.

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Event: AGM and current issues roundtable Friday 17 January

As previously announced, on Friday 17 January  2014 the UK CLG will hold an Annual General Meeting at which proposals for developing the Group will be discussed.  The agenda and papers were circulated by email on Friday 10 January to everybody who has paid the 2013 subscription.

The AGM will be followed by a roundtable on current issues, consisting of two sessions. All members who have paid subscriptions for 2013 are encouraged to attend the AGM; the short conference is open to all. There is no need to RSVP.

Venue: Keeton Room, UCL, Bentham House, Endsleigh Gardens, London WC1H 0EG.

12.30: Light refreshments will be served.

1.00-2.00 pm:  the AGM

Session 1: 2.00pm – 3.00pm Key Constitutional Themes of 2013 

Speakers:  Nick Barber; Professor Robert Hazell and Professor Aileen McHarg

Session 2:  3.03-4.05 pm

Dr Merris Amos: ‘Dialogue between the UK courts and the European Court of Human Rights’

Professor Roger Masterman: ‘Competing Supremacies’

4.10p.m. -5pm Drinks

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