Blog

La 5G nous rappelle l’importance de la vie privée des consommateurs
With Bill Wirtz Previously published by La Tribune (15 April 2019) and World Economic Forum (16 April 2019). Renforcer la responsabilité des opérateurs de réseaux pour les vulnérabilités technologiques et créer un cadre de certification souple permettront de garantir à la fois le choix du consommateur et le respect de sa vie privée.
What can data science teach us about litigation before the Supreme Court?
Originally published by in the Solicitors Journal (March 2020). Despite the woefully inadequate state of open access to case law data in the UK, I decided to use some of what’s available (texts of House of Lords and Supreme Court judgments) to show what opportunities open when we’re able to use modern data science techniques on case law.
Learn in code
Originally published by in the Solicitors Journal (February 2020). Technology will play an even greater role in the future of legal practice than it does today. Perhaps the changes are not going to be as radical in the short term as some like to claim (artificial intelligence (AI) will not be replacing lawyers anytime soon).
Oxford Poland constitutional crisis symposium, 9 May 2017

Pomysł konferencji zatytułowanej The Polish constitutional crisis and institutional self-defence (kryzys konstytucyjny w Polsce i samoobrona dla instytucji) był, by zebrać w Oksfordzie czołowych polskich teoretyków prawa zaangażowanych w debatę publiczną na temat obecnych wydarzeń konstytucyjnych w Polsce i pozwolić im na przedstawienie tej debaty angielskim teoretykom prawa.

Uses and Misuses of the Rule of Recognition in Miller
Originally published on the UK Constitutional Law Blog (12 January 2017). The jurisprudential concept of the rule of recognition featured several times during the Miller hearings at the Supreme Court. In this short note, I discuss three uses of the concept of the rule of recognition during the Miller hearings and propose one other way in which the concept is relevant to Miller, that was not expressly mentioned in the case.
Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful

Originally published on the U.K. Const. L. Blog, 18 November 2016

Introduction

In its judgment in Miller (the Article 50 litigation), the High Court had no doubts that it was defending constitutional orthodoxy. The issue at stake was that of the limits of executive action in the international sphere when this has consequences in UK law. The Court relied on the principle that the crown cannot change law without statutory authority. John Finnis, David Feldman, as well as Mark Elliott and Hayley Hooper argued that the Court erred by an over-broad reading of the principle and in its application. Finnis framed his argument using an analogy between withdrawing from a double-taxation treaty and withdrawing from the EU Treaties. However, some may have a worry that the analogy fails because EU law has a sufficiently special status in UK law or for some more technical reason.

I show here that even if that is the case, there is another class of executive actions rendered unlawful if one accepts the High Court’s reasoning in Miller. I am referring to voting by UK ministers in the EU Council in favour of EU secondary legislation that diminishes any individual rights derived from UK or EU law. It is difficult to assess exactly how many times, on this argument, UK ministers broke UK constitutional law since the UK joined the European Economic Community (EEC) in 1973. What is not difficult to see is how staggeringly surprising is the conclusion that such law-breaking has been taking place. I neither criticise nor defend this conclusion here. My ambition is merely to develop the argument for it, applying faithfully the logic adopted by the High Court.

The Supreme Court Should Not Refer to the EU Court of Justice on Article 50

Originally published on the U.K. Const. L. Blog, November 11, 2016

One of the most discussed aspects of the forthcoming appeal in the Article 50 litigation is the issue whether the Supreme Court should make a reference to the Court of Justice of the European Union. George Peretz QC and professor Mike Wienbracke argued that it should not (or at least will not), whereas Richard Lang and professor Daniel Sarmiento argued that it should. There are, however, two arguments for why the Supreme Court should not make the reference that have not yet received adequate attention. First, establishing whether an Article 50 notification is revocable is not necessary for the Supreme Court to decide the case because the claimants ought to lose even if it is irrevocable (and not merely because both parties stipulated irrevocability). Second, even if the first argument is wrong and the case does turn on revocability, it is still the case that no UK court has a legal power to make a reference to the EU Court, because the European Communities Act 1972 does not incorporate EU law that purports to regulate withdrawal from the EU.

Na czym opiera się rządowy argument w sprawie Trybunału?

Od prawie roku zadaję sobie pytanie: na czym opiera się rządowy (i prezydencki) argument w sprawie Trybunału Konstytucyjnego? Innymi słowy: jaki jest ‘rdzeń’ (prawny, nie polityczny) sporu, który toczy się od ostatnich wyborów? Zadaje to pytanie publicznie w nadziei, że być może ktoś będzie w stanie mi pomóc i to wyjaśnić. Niestety nie czyni tego najnowszy dokument ‘w sprawie’, czyli Stanowisko Polski w sprawie zaleceń Komisji Europejskiej.

What is the Government really arguing in the Article 50 litigation? A response to Mark Elliott

Originally published by the Judicial Power Project, October 5, 2016

The litigation on the lawfulness of any Government notification of a decision to leave the European Union without specific prior authorisation in an Act of Parliament is of high legal and political significance. It is therefore right that the submissions of the parties to that litigation are being publicly discussed, with the Government’s skeleton argument receiving most attention so far. Mark Elliott published an insightful and, to a large extent, critical comment. I believe that Elliott’s critique of the Government’s chief argument partially relies on an uncharitable interpretation of the skeleton argument and that in fact the Government’s submission is stronger than Elliott suggests. However, the Government can be criticised for not elucidating their points much more clearly.

Does EU Law Bind Parliament as to Withdrawal from the EU? British Expats and Their Right to Vote (Shindler)
Originally published on the UK Constitutional Law Blog (16 June 2016). With the Brexit referendum quickly approaching, the courts were confronted with an EU law challenge against a provision of the European Union Referendum Act 2015 (‘the 2015 Act’) that, by incorporating the scope of the franchise for a general election, excluded from the franchise those British citizens who are resident abroad and were not registered to vote in the past 15 years.