BBC News, 7 December 2016 (commenting live from the Supreme Court on the hearings in the Miller [Brexit / Article 50] case)
BBC News, 6 December 2016 (commenting live from the Supreme Court on the hearings in the Miller [Brexit / Article 50] case)
The Principle of Legality and the EU-withdrawal Statute
U.K. Const. L. Blog, February 21, 2017 [WWW]
On the Looming Split in the Polish Constitutional Order: Harris v Dönges in Central Europe?
Int’l J. Const. L. Blog, February 18, 2017 [WWW]
Uses and Misuses of the Rule of Recognition in Miller
U.K. Const. L. Blog, January 12, 2017 [WWW]
Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful
U.K. Const. L. Blog, November 18, 2016 [WWW]
The Supreme Court Should Not Refer to the EU Court of Justice on Article 50
U.K. Const. L. Blog, November 11, 2016 [WWW]
Cited in the House of Commons Library Briefing on Brexit: Article 50 TEU and the EU Court
Find me on campus Room: 16 AB 05
In several recent cases the Supreme Court has endorsed the idea that there are some general limits to incorporation of European Union law in the United Kingdom. The general limits stem from the Court’s interpretation of the European Communities Act 1972, the statute that grounds domestic effect of EU law, construed both in the light of ordinary canons of interpretation and in the light of fundamental principles. This raises the question what are the legal consequences when an EU measure violates one of those limits. In this paper, I propose an answer from the perspective of what a domestic court ought to do. My aim is to develop the legal position emerging from Assange, HS2, Pham, and Miller. I argue that sometimes UK courts are under a duty not to apply EU law. However, the circumstances where this is the case are even more limited than the focus on the general limits of incorporation of EU law may suggest. In particular, fundamental principles of UK law may work to expand the scope of domestic effect of EU law. I want to stress that neither the cited cases, nor the present paper, take a position of hostility towards EU law. The following discussion makes it clear that both EU law and UK law have many devices to avoid conflict and those devices need to be exhausted before a court concludes that it is under a duty not to apply EU law.
In “Enduring Originalism,” Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, “positive” (“original-law”) originalism of Stephen Sachs and William Baude. It is that aspect of the paper that I focus on in this short essay. Contrary to their strong claims in that direction, Professors Pojanowski and Walsh are far from establishing that positive originalism is deficient and that that their version of natural-law-based originalism offers a plausible alternative to positivist originalism. There is also a worry that, despite professing sympathy towards the “positive turn” in originalism, “Enduring Originalism” is at its core an account of what Professors Pojanowski and Walsh think the law should be, and not what the law is; precisely the kind of argument the positive turn militates against.
This article critically analyses the Supreme Court’s Miller judgment, taking it as an opportunity to reflect on the true place of EU law in UK law and on the right way to advance legal arguments on that point. It argues that the Miller majority did not provide an adequate answer to two strong arguments regarding interpretation of the European Communities Act 1972. Firstly, to the argument from the time-gap between enactment of the ECA and the moment Community law became directly effective in the UK. Secondly, to the argument from the purpose of s. 1(3) ECA, showing that the 1972 Act was enacted on the assumption of the orthodox dualist model.
In R. (Buckinghamshire CC) v Secretary of State for Transport  UKSC 3;  1 W.L.R. 324 (HS2) the Supreme Court has provided a good reason to think that the idea of a hierarchy of statutes within the legal system of the United Kingdom is still alive, despite the fact that some commentators have already heralded its early demise (see e.g. Nicholas Bamforth, “Same-sex partnerships: some comparative constitutional lessons” (2007) E.H.R.L.R. 47 at 48). After the famous passage in Thoburn v Sunderland City Council  EWHC 195;  1 Q.B. 151 where Laws L.J. introduced the distinction between “constitutional” and “ordinary” statutes (at ), there indeed seemed to be some reticence among their Lordships to make use of this distinction and clarify its practical import. Among others, Lord Bingham of Cornhill in Robinson v Secretary of State for Northern Ireland  UKHL 32;  N.I. 390 at  and Lord Hope in H. v Lord Advocate  UKSC 24;  1 A.C. 413 at  have suggested a special role for constitutional statutes (respectively, being subject to a special mode of interpretation and being immune from implied repeal), but voices like those still remain isolated. In HS2 Lord Neuberger and Lord Mance appear to have decided to contribute to changing that situation by not only endorsing Laws L.J.’s distinction between two types of statutes (HS2 at ), but also by hinting that constitutional statutes and principles may be in some way entrenched against change by later constitutional statutes (at ).
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Page Created: Wednesday 2 August 2017 15:19:55 by pj0010
Last Modified: Monday 16 October 2017 17:14:41 by pj0010
Expiry Date: Friday 2 November 2018 15:18:57
Assembly date: Tue Jan 16 00:59:44 GMT 2018
Content ID: 171180