06 April 2019
Unconstitutional Prorogation
On 1 April, the British Parliament again failed to agree on a plan for withdrawal from the European Union. It has now been suggested that the government should prorogue Parliament until after 12 April in order to terminate the current parliamentary debate. This would effectively silence Parliament to achieve its preferred version of Brexit without regard to principles of democracy and representative and responsible government. Continue reading >>
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10 January 2019
Brexit and the Speaker of the House of the Commons: Do the Ends Justify the Means?
Yesterday, the Speaker of the UK House of Commons decided to allow an amendment to the Brexit timetable to be selected and voted upon by the Commons, in flat contradiction of the Commons’ rules and against the advice of his senior clerks. In this post, I outline the constitutional context which helps to explain why the Speaker took his decision, even if it does not justify the way in which the decision was taken. Continue reading >>02 February 2018
With a little help from Henry VIII
There are few legislative assemblies in Europe which can call themselves with proud sovereign. The Principle of Parliamentary Sovereignty is the most important part of UK constitutional law. It implies that all legislation derives from the superior legal authority of Parliament and hence it is the job of the Members of Parliament to create, abolish and change the law. Well, since Henry VIII this principle is no longer entirely true, and it is currently challenged again by the future “Great Repeal Bill”. Continue reading >>24 March 2017
After Article 50 and Before Withdrawal: Does Constitutional Theory Require a General Election in the United Kingdom Before Brexit?
On March 29th, Theresa May will notify the EU Council of the withdrawal of the United Kingdom from the EU. This is the result of the Brexit referendum which, for the first time in the United Kingdom’s constitutional history, has opened up a powerful new source of popular sovereignty as a social fact. It is necessary for the constitutional integrity of the United Kingdom that this new stream of popular social legitimacy is realigned with the existing stream of Parliamentary Sovereignty. The most effective and desirable way in which to achieve this would be for a General Election to take place. Continue reading >>24 January 2017
Brexit in the Supreme Court: An Opportunity Missed?
For all that this case has been written-up in the media as a ‘defeat’ for the government, this was a case in which the Supreme Court passed up a significant opportunity to compensate for the UK’s newly imbalanced constitutional framework. Continue reading >>24 January 2017
The Supreme Court in Miller – some early comments
The UK Supreme Court’s decision in the Miller appeal was probably greeted with a sigh of relief in 10 Downing Street. Sure, the Government will now need to seek parliamentary approval for triggering Article 50 TEU and starting the formal process of withdrawing from the EU, but the much greater political danger of having to also seek the consent of the devolved parliaments of Scotland, Northern Ireland, and Wales, has not materialised. What follows are a few brief comments on the Supreme Court’s reasoning and an assessment of its implications for the future. Continue reading >>
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10 November 2016
The Big Picture
In Europe, UK, and USA constitutional structures are proving unfit to respond to the challenges of the XXI century. Now is the time to ride on the constitutional moment for the all three of them. Continue reading >>06 November 2016
Brexit, Democracy and the Rule of Law
The decision of the High Court in London this week was a ruling not on whether Brexit should happen, but on how it can happen lawfully. There is nothing at all in the court’s judgment to block the will of the people, to reverse the result of the referendum, or to get in the way of Brexit. Nor is there anything inappropriate in turning to the courts to determine how Brexit can proceed in accordance with the rule of law. That said, as a lawyer I think the court’s ruling is wrong. Continue reading >>03 November 2016
The High Court’s Brexit Decision: A Lesson in Constitutional Law for the UK Government
In today's Brexit decision, the High Court has delivered a tutorial on the UK constitution, exemplary in its clarity and reasoning. Its key finding: the government cannot take away rights that citizens enjoy in the EU and would be lost on withdrawal without involving Parliament. In failing to understand the constitution of its own country, the government was taught an embarrassing lesson today. Continue reading >>22 October 2016