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