This bulletin for the All-Party Parliamentary Group on the Rule of Law has three sections: Rule of Law News and Events, APPG Meetings, and Current Awareness, which provides some background reading on topics that raise rule of law issues.

Rule of Law News and Events

Lord Hodge, ‘Upholding the Rule of Law: How We Preserve Judicial Independence in the United Kingdom’
Lincoln’s Inn Denning Society (7 November 2016)
Lord Hodge gave a
speech in which he emphasised that all three branches of government and the public at large have a vital interest in the rule of law. He concluded that ‘judges, lawyers and all who care about the rule of law will have to work to support the tenth pillar, to maintain political and public understanding of and support for the rule of law and the independence of the judiciary which is its necessary component.’

Publication: Emerging Findings from the Lammy Review
Review of Racial Bias and BAME representation in the Criminal Justice System (16 November 2016)
David Lammy MP has published the emerging findings of his independent review into race and the criminal justice system. The review commissioned an
analysis paper looking at disproportionality in the criminal justice system. One finding was that for every 100 white women handed custodial sentences at Crown Courts for drug offences, 227 black women were sentenced to custody. For black men, this figure is 141 for every 100 white men.

Event: Access to Nationality: Statelessness, Identity Documents, Technology and the Law
A4ID Rule of Law Knowledge Group
The Panel will consider questions such as ‘How can the concept a “legal identity for all” both include and exclude?’ Chair: Claire Fourel, Associate Partner and International Pro Bono Manager, Ashurst LLP. Speakers: Dr Bronwen Manby, Senior Visiting Fellow at the London School of Economics and Political Science; Carl Soderbergh, Director of Policy and Communications for Minority Rights Group; and Simon Cox, Legal Officer for the Open Society Foundations’ Justice Initiative.
Tuesday, 6 December 2016 18.00 - 20.00
Ashurst, 5 Appold Street, London EC2A 2HA

More information

Event: Rule of Law Talk I: Lord Judge, a Judge’s Perspective on the Rule of Law
University of Greenwich
Igor Judge was appointed to the High Court Bench, and the Court of Appeal and then served as the Lord Chief Justice of England and Wales, the head of the judiciary, from 2008 to 2013. He has co-author with Anthony Arlidge on a book about the Magna Carta.
Wednesday, 7 December 2016 18.00 - 19.30
Lecture Theatre QA080, University of Greenwich, Park Row, London SE10 9LS
More information
Event: Human Rights after Brexit: Still on Fantasy Island?
The panel will consider the place of human rights in the context of Brexit Britain. Conor Gearty will launch his new book On Fantasy Island: Britain, Europe and Human Rights. Chair: Sir Stephen Sedley, former Court of Appeal Judge and visiting Professor at Oxford University. Speakers: Conor Gearty, Professor of Human Rights Law at LSE. Respondents: Sionaidh Douglas-Scott, Professor of European and Human Rights Law at the University of Oxford; and Steve Peers, Professor of EU Law & Human Rights Law at the University of Essex.
Thursday 8 December 2016 18.30 – 20.00
Sheikh Zayed Theatre, New Academic Building, LSE

More information

APPG Meetings

Next Meeting
There will be an APPG on the Rule of Law meeting at 10.30-11.30 on Wednesday 30 November on the topic ‘Reasoned Discussion of the High Court’s Decision in Miller and What Might Happen Next’. The meeting will be convened in conjunction with the UK Constitutional Law Association.
The expert speakers will be:
  • Professor Jeff King, Professor of Law at the Faculty of Laws, University College London
  • Sir Stephen Laws KCB QC, First Parliamentary Counsel 2006-2012, Honorary Senior Research Associate, University College London, and Senior Associate Research Fellow, Institute of Advanced Legal Studies
  • Professor Aileen McHarg, Professor of Public Law at the School of Law, University of Strathclyde
Last Meeting
The report from the last APPG meeting on ‘How Can Brexit Be Done under the Rule of Law?’ is available online.

Current Awareness

The current awareness topics in this bulletin are:

Miller Decision of the High Court of England and Wales
John Finnis, ‘Terminating Treaty-based UK Rights’, UK Constitutional Law Association (cross-posted from the Judicial Power Project, which published a longer version) (26 October 2016)
Finnis argues that rights under the European Communities Act are treaty-based rights, and do not preclude the Government from sending notice under article 50.  ‘Treaty-based rights are statutory in that they depend for their effect in UK law on Parliamentary enactment; but they are not statutory inasmuch as they are not themselves enacted by Parliament and can be terminated (“destroyed”) by termination of treaties in the course of the Crown’s dealings with foreign entities or states.’ 
See also
John Finnis, ‘Terminating Treaty-based UK Right: A Supplementary Note’, UK Constitutional Law Association (cross-posted from the Judicial Power Project, which published a longer version) (2 November 2016) 

Mark Elliott and Hayley J Hooper, ‘Critical Reflections on the High Court’s Judgment in R (Miller) v Secretary of State for Exiting the European Union’, UK Constitutional Law Association (7 November 2016)
Elliott and Cooper argue that the Court was wrong to conclude that there is a category of domestic statutory rights flowing from EU membership which would be displaced by the operation of the prerogative in the Article 50 context, and that this would in turn be contrary to the operation of the constitutional principles governing the extent of the prerogative and its relationship with statute.

Jeff King, ‘What Next? Legislative Authority for Triggering Article 50’, UK Constitutional Law Association (8 November 2016)
The decision made it clear that an Act of Parliament is required for a notice under article 50(2) of the Treaty of the European Union. In King’s opinion, an appeal is unlikely to be successful, but on any view the UK must be prepared for the outcome of the case. The Government and Opposition should consider the form of such an Act without delay.

Alison Young, ‘R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin): Constitutional Adjudication – Reality over Legality?’, UK Constitutional Law Association (9 November 2016)
Young argues that the UK is about to make a momentous constitutional change, which should be made in a constitutionally correct and reflective manner with the consent of the people, obtained through the referendum, and a detailed deliberation in Parliament of what is best for all British people. By focusing on broad substantive principles, the High Court was not acting to gain powers for itself, but to preserve the sovereignty of Parliament and its delicate balance with the rule of law.

Speech: Lady Hale, ‘The Supreme Court: Guardian of the Constitution?’, Sultan Azlan Shah Lecture 2016, Kuala Lumpur (9 November 2016)
Lady Hale Lady Hale observed that the Miller case ‘raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State?’

Sionaidh Douglas-Scott, ‘Miller: Why the Government Should Still Lose in the Supreme Court (Even with New Arguments)’, UK Constitutional Law Association (15 November 2016)
Douglas-Scott highlights the central principle of Miller that the government should not be able to repeal legislation—especially not legislation that provides individuals with rights—by executive fiat. She sets out counter-arguments to those made by Finnis, Elliott and Cooper and others. Douglas-Scott’s points include that bilateral double taxation treaties are not comparable to EU treaties and do not give rise to rights that are comparable to those acquired through EU membership, and EU membership has a unique quality that gives individuals directly effective, enforceable rights as part of national law. Further, there is no basis for referendums to receive legal force and trump parliamentary sovereignty in UK constitutional law.

Further Responses to the Miller Decision

The Bar Council, ‘Bar Council Calls on Lord Chancellor to Condemn Attacks on Judiciary’ (5 November 2016)
The Bar Council of England and Wales condemns the serious and unjustified attacks on the judiciary arising out of the Article 50 litigation. It regrets the lack of public statement by the Lord Chancellor condemning these attacks and calls upon the Lord Chancellor to do so as a matter of urgency. A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law.

‘Brexit ruling: Lord Chancellor backs judiciary amid row’, BBC News (5 November 2016)
The Lord Chancellor stated that ‘The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality. In relation to the case heard in the High Court, the Government has made it clear it will appeal to the Supreme Court. Legal process must be followed.’

Alan Renwick and Meg Russell, ‘We Need to Talk about Our Democracy’, UCL Constitution Unit (6 November 2016)
Renwick and Russell observe that the Miller decision unleashed a wave of vitriol from parts of the press and some politicians, which is deeply worrying and potentially dangerous. The authors call on democrats to push back against the immediate challenges to the rule of law, the independence of the judiciary, and the legitimate role for parliament in scrutinising Brexit.

Bingham Centre for the Rule of Law, ‘We Need to Talk about the Rule of Law’ (8 November 2016)
Judicial independence is one of the central pillars of the rule of law. The substance of the rule of law is too seldom articulated in public debate. The Bingham Centre has therefore invited the Lord Chancellor to deliver a public lecture, to be hosted by the Centre, under the following title: ‘What is the rule of law? What does it require?’

McCord Decision of the Belfast High Court 
‘Belfast High Court Rejects Brexit Challenges’, BBC News (28 October 2016)
The McCord case involved two separate proceedings challenging Brexit, one by a cross-party group of MLAs and another from victims’ campaigner Raymond McCord. The Belfast High Court ruled there was nothing in the 1998 Good Friday peace agreement to prevent the government triggering Article 50, the formal legal process for leaving the EU.

Aileen McHarg: Article 50, Parliamentary Authorisation and the Sewel Convention’, Scottish Constitutional Futures Forum (8 November 2016)
The McCord case, in contrast to the Miller case, concluded that prior parliamentary authorisation was not required to trigger Article 50. Even if it was, the court held that such legislation would not engage the Sewel Convention at least as it applies in Northern Ireland because it would relate to ‘excepted matters’ under the Northern Ireland Act 1998 (i.e., matters outside the scope of devolved competence). Nevertheless, there is an argument to be made that, if the Supreme Court upholds the Divisional Court’s reasoning in Miller, the Sewel Convention would be engaged, at least as far as Scotland is concerned.

Alan Erwin, ‘Northern Ireland Brexit challenge referred to supreme court’, The Irish Times (18 November 2016)
The Court of Appeal has decided that McCord’s appeal should be referred to the Supreme Court and be heard alongside the appeal in Miller and the case brought by MLAs. Earlier in the week, Northern Ireland’s Attorney General, John Larkin QC had referred the case being appealed by the MLAs to the Supreme Court.

Rule of Law in Poland and Hungary
Laurent Pech, ‘Systemic Threat to the Rule of Law in Poland: What Should the Commission Do Next?’, Verfassungsblog on Constitutional Matters (31 October 2016)
The Polish government has refused to implement the European Commission’s
recommendations to address systemic threats to the rule of law caused by changes to the Polish constitutional Court and state media. Pech explains his opinion that the Commission has no option but to trigger Article 7(1) of the Treaty on European Union to hold Poland accountable. While sanctions against Poland are unlikely to result, Pech emphasises the reputational costs if Article 7 was triggered and this could in turn result in financial costs.

Laurence Norman, ‘EU Faces Difficult Choice as Poland Fires Latest Salvo in Rule-of-Law Dispute’, The Wall Street Journal (28 October 2016)
After Poland’s refusal to implement the Commission’s recommendations to address the rule of law, the EU ‘faces a stark choice: threaten financial penalties and a suspension of some Polish voting rights within the EU, or back down, potentially crippling the EU’s future leverage with member states on rule of law threats’.

‘Hungary: New report denounces six years of attacks against the rule of law and calls for EU reaction’ (4 November 2016)
FIDH, an international human rights NGO federating 184 organisations, has released a report on human rights, democracy and the rule of law in Hungary. The report finds that ‘the new Constitution - the Fundamental Law - and over 600 laws and measures adopted since 2010 have had an adverse impact on human rights across sectors and negatively affected the separation of powers, an essential element of democracy and the rule of law. All counter-powers, from the judiciary and the legislative power to media and civil society have been systematically weakened or brought under control of the executive.’

Zoltan Simon, ‘EU Should Worry Over Rule of Law in Hungary, Germany’s Roth Says’, Bloomberg (8 November 2016)
German Deputy Foreign Minister Michael Roth has said that the EU should be concerned about the corrosion of the rule of law in Hungary, and strengthen its rule of law procedure.
About the APPG on the Rule of Law
The All-Party Parliamentary Group on the Rule of Law aims to promote parliamentary and public discussion on the rule of law as a practical concept. It is co-chaired by The Rt Hon Dominic Grieve QC MP and Lord Pannick QC. Secretariat support is provided by the Bingham Centre for the Rule of Law.
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For enquiries concerning the APPG on the Rule of Law, please contact Swee Leng Harris at the Bingham Centre:
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Swee Leng Harris
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Bingham Centre for the Rule of Law
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