Category: Judicial review
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Richard Clayton QC: The Brexit Case That Never Was
Since the European Union (Notification of Withdrawal) Bill was enacted so swiftly, the political implications of R(Miller) v Secretary of State for Exiting the European Union [2017] 2 WLR 58 appear less significant than some of its proponents originally believed. The majority judgment in Miller was firmly anchored in constitutional principle. But its political impact…
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Robert Thomas and Joe Tomlinson: A Design Problem for Judicial Review: What We Know and What We Need to Know about Immigration Judicial Reviews
Immigration and asylum claimants often use judicial review to challenge immigration refusal decisions made by the Home Office. Immigration-related cases have, for a long time now, presented serious difficulties to the efficient management of the judicial review system in the UK. The transfer of judicial reviews to the Upper Tribunal (Immigration and Asylum Chamber) may…
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Adrian Zuckerman: The Law’s Disgrace
In the article by Tom Hickman, “Public Law’s Disgrace”, Hickman laments the fact that the “vast majority of the population have no access to judicial review in any meaningful sense.” He goes on to say that this “is because of the rule, derived from private law, that if a claim is lost the claimant must…
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Mikolaj Barczentewicz: The Principle of Legality and the EU-withdrawal Statute
Legal criticism of the EU (Notification of Withdrawal) Bill is quickly amassing. Notably, Paul Daly suggested that general phrasing of an authorisation to notify the UK’s intention to withdraw from the EU by the executive, of the sort contained in the Bill, may not suffice to ground lawfulness of such notification (or of withdrawing from…
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Joe Tomlinson: Ouster Clauses Inside-out
Last week’s decision in R (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 (Admin) gained immediate attention among public lawyers (see Paul Daly’s blog article here and Mark Elliott’s blog article here). The case revolved around section 67(8) of the Regulation of Investigatory Powers Act 2000, which provided that: Except to such extent as the Secretary of State may…
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Narelle Bedford: Public Law, No Disgrace in Australia but Room for Improvements
Writing recently Tom Hickman raised the vital issue that fear of an adverse cost order can prevent potential applicants from seeking judicial review in UK courts with serious consequences for diminishing access to justice. He labelled it “public law’s disgrace” which it undoubtedly is. His calls for reform are necessary and should be supported by…
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Joe Atkinson: Parliamentary Intent and the Sewel Convention as a Legislatively Entrenched Political Convention
One interesting finding in Miller is that it appears to recognise the Sewel Convention as a new form of constitutional convention; one that is legislatively entrenched but remains a convention rather than becoming a legal rule. This aspect of the Court’s judgment raises more questions than it answers. It would have been helpful for them…
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Denis Edwards: Miller, Law and Revisionism
It is clear from the majority judgment in Miller, and also from several blog comments since, that the judgment’s linchpin is that the 1972 Act “provided that [EU] rights, duties and rules…apply in the UK as part of domestic law” ([62]). This, along with the EU institutions being the source of the ‘domestic law’ coming…
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Tom Hickman: Public Law’s Disgrace
What is the most important issue in public law? You might be forgiven for thinking it is the gradation of principles of substantive review, or the proper limits of judicial interventionism, or even the scope of residual prerogative powers. But you would be wrong. There is a much, much graver and more urgent issue in…
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David Scott: Miller, Sewel, and the Human Rights Act
Many celebrated Miller’s outcome, imposing a Parliamentary “brake” (however brief) on the triggering of Article 50. But the Supreme Court’s unanimous agreement on the devolution issues [129–151 for the majority; agreement in the dissents at 242, 243, and 282] may have weakened opposition to the Government’s “other” crusade—against the European Court of Human Rights. Devolution…