Category: law-making
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Ronan Cormacain: What’s wrong with the Safety of Rwanda Bill?
The Safety of Rwanda (Asylum and Immigration) Bill was introduced into Parliament on 7 December 2023. According to its long title, its purpose is to facilitate “the removal of certain migrants” to Rwanda. Without even looking at the international law dimensions, the Bill contains constitutionally troubling provisions. Firstly, it purports to legislatively state “facts”. Secondly, it usurps the judicial function by purporting…
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Anurag Deb: Constitutional Amendment by Interpretive Sidewind? Minister for Infrastructure v Safe Electricity A&T
There was a time, long before Brexit-related constitutional whiplash, when matters of the constitution sometimes involved the quieter, everyday affairs of the border counties on the island of Ireland. A 1937 case involving milk produced on a Donegal farm and sent to be sold in Derry became the template for testing whether Acts of the Scottish Parliament…
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Tim Sayer: The Passive Virtues and the Abuse of Delegated Legislation: Courts, the Political Constitution and the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023
In 1961 Alexander Bickel argued that the US Supreme Court should adopt what he called the ‘passive virtues’ – minimising engagement with hard constitutional questions so as to keep its powder dry for the most essential issues. One such question that appears headed for the UK courts is the Home Secretary’s decision to use delegated powers in…
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Aileen Kavanagh: Is the Illegal Migration Act itself illegal? The Meaning and Methods of Section 19 HRA
The Illegal Migration Bill published on 7th March 2023 is one of the very few Bills in over 20 years to be laid before Parliament without a positive Statement of Compatibility under section 19(1)(a) of the Human Rights Act 1998. Instead of affirming that the Bill complies with rights, the Home Secretary, Suella Braverman, availed of the power…
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Edmund Robinson: Re Allister and the entrenchment ‘road not taken’: A rejoinder to Kacper Majewski
Kacper Majewski has written an excellent, thought-provoking, piece on the subject of constitutional statutes, in light of the Re Allister UK Supreme Court ruling. The UKSC may, he argues, have effectively rendered the ‘constitutional statute’ concept ‘legally redundant’. This may be correct, and there is certainly support for that position within the decision, but it is important to complete the…
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Kacper Majewski: Re Allister: The End of ‘Constitutional Statutes’?
On 8 February, the Supreme Court handed down its unanimous judgment in Re Allister [2023] UKSC 5. What follows is an attempt to clarify the judgment’s significance for the doctrine of constitutional statutes, as first canvassed by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin). I think that the Court’s remarks in Re Allister can be read…
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Vicky Kapogianni: Clause 45 of the Nationality and Borders Bill: A Quasi-Open Window of Access to Justice
Access to justice is a fundamental right in the common law and an essential part of the rule of law. In R v Lord Chancellor Ex Parte Witham, Laws J stated that the common law affords special weight to the right of access to the courts as a constitutional right. Such a constitutional right derives chiefly from…
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Ronan Cormacain and Oliver Garner: Schrödinger’s Trafficking Directive and the Nationalities and Borders Bill: Simultaneously law and not law 
Clause 67 of the Nationalities and Borders Bill provides that any legal effects derived from the retained EU Trafficking Directive which are incompatible with any provision in the Bill cease to be law. The major problem is that the clause doesn’t specify which provisions cease to be law. Unlike all other legislation, the Bill is silent on this crucial point. Therefore, no-one knows what…