The new coronavirus regulations for England were published a few minutes before they entered into force and without any parliamentary scrutiny. @MattHancock said they were ‘super-simple’. They’re not — and they raise significant constitutional issues. /1
First, publishing complex new regulations literally minutes before they become law compromises the rule of law: frequent/sudden changes diminish legal certainty, making it hard for law-abiding individuals and businesses to plan accordingly. /2
Second, the Government continues to rely on the Public Health Act 1984 to make these regulations. As @TomRHickman has argued, a clearer statutory basis for significant restrictions on liberty would, at the very least, be constitutionally desirable. /3 ukconstitutionallaw.org/2020/04/16/tom…
Third, not only are the new regulations highly technical: they also involve substantive policy choices that have significant implications for individuals. This casts doubt on the appropriateness of using the ‘made affirmative’ procedure. /4 statutoryinstruments.parliament.uk/procedure/iWug…
The approach in this area is part of a broader constitutional malaise, whereby Parliament is bypassed and judicial oversight resisted by an Executive that increasingly appears to regard constitutional checks and balances as an unwelcome irritant. /6 publiclawforeveryone.com/2020/09/13/the…
Finally, for those grappling with the new regulations, here is an excellent thread by @AdamWagner1 taking a first look at them. /ends
2. Academics (including, it seems, @AdamJTucker and me) are implicitly accused of being 'wildly irresponsible' by 'invit[ing] the Supreme Court to overthrow' parliamentary sovereignty:
1. The UK Parliament's Joint Committee on Human Rights (@HumanRightsCtte) has published a preliminary analysis of the Rwanda Bill. Here's a short thread with some key excerpts. committees.parliament.uk/publications/4…
2. The Committee notes that if Rwanda remains unsafe, the effect of the Bill would be to permit removals nevertheless and to prevent courts from stopping them, thus breaching Articles 3 and 13 ECHR.
3. The JCHR observes, as others have also pointed out, that if the Government was confident that the UK-Rwanda Treaty satisfactorily addressed the Supreme Court's concerns, the Bill would be unnecessary unless the aim was simply to speed up the operationalisation of the policy.
2. Key concern relates to clause 4, which permits challenges on individual grounds (as opposed to on the general ground that Rwanda is an unsafe country).
3. Also concerned that clause 5 (Ministers can ignore ECtHR interim measures) may make matters worse (from perspective of those who want maximally restrictive regime).
Constitutional lawyers may find suggestions that parliamentary sovereignty is an 'assumption' less surprising, since the suggestion emanates not from four KCs who have just written to a newspaper but from judges themselves. (1)
Indeed, one of the leading theoretical accounts of parliamentary sovereignty, published by Sir William Wade in the Cambridge Law Journal in 1955, insists that the sovereignty of Parliament lies 'in the keeping of the courts'. (2) cambridge.org/core/journals/…
More recently, some senior judges have argued that parliamentary sovereignty is not 'absolute'. See, eg, Lord Steyn in Jackson v Attorney General [2005] UKHL 56, [102]: (3) bailii.org/uk/cases/UKHL/…
The Government's ECHR Memo on the Rwanda Bill makes interesting reading. The absence of a s 19 statement of compatibility notwithstanding, the Bill is said to be capable of application compatibly with the ECHR. (1) publications.parliament.uk/pa/bills/cbill…
The Government's position, as set out in its ECHR Memo, on clauses 4 and 5 of the Rwanda Bill (dealing with individual circumstances and ECtHR interim measures respectively) seem to me to be particularly strained and/or telling. (2)
It's said that clause 4 is compatible with the ECHR, including the Article 13 right to an effective remedy, because it will be possible for domestic courts to issue suspensive remedies: (3)
A very helpful thread on the Government's statement concerning the Retained EU Law (Revocation and Reform) Bill. I would just add one additional point... /1
The Business Secretary says in his statement that: 'There will no longer be a place for EU law concepts in our statute book.' /2
But that is surely incorrect. As far as I understand it, the Bill addresses only matters concerning 'retained EU Law' within the meaning of the EU (Withdrawal) Act 2018. The Withdrawal Agreement, and its domestic legal effects, are a separate matter. /3