Brexit provided more grist for the public law mill this morning with the UK Supreme Court’s unanimous decision in R (Miller) v Prime Minister [2019] UKSC 41. In a judgment written by Lady Hale and Lord Reed, the Court held, first, that Prime Minister Johnson’s advice to prorogue Parliament was unlawful and, second, that the […] Read more

When I lectured administrative law at the University of Cambridge, I received one question from the floor in three years. (Students have fortnightly small-group supervisions, so tend to save their inquiries for their supervisors.) I regularly asked the students if they had any questions and sometimes jokingly complained that they were too shy. This machismo […] Read more

One of the issues which recurred in the UK Supreme Court’s hearing of the prorogation litigation this week (see my posts here, here and here) was whether the grounds of review applied to exercises of statutory powers are equally applicable to prerogative powers. The Court’s previous decision in R (Sandiford) v Foreign and Commonwealth Secretary […] Read more

In a bombshell judgment last week, the Inner House of the Court of Session unanimously held in Cherry v Advocate General [2019] CSIH 49 that Prime Minister Johnson’s advice to prorogue Parliament was unlawful. Eleven judges of the UK Supreme Court will begin hearing the prorogation litigation tomorrow, with submissions to be spread over three […] Read more

In 2010, I wrote an article in Public Law which is newly relevant because of court challenges to Boris Johnson’s advice to the Queen to prorogue Parliament. I’ve uploaded the paper to SSRN. Here is the abstract: In this paper, published in 2010 but relevant again as the UK courts consider the lawfulness of Boris […] Read more

I found the decision of the Court of Appeal of England and Wales in Ofsted v Secretary of State for Education [2018] EWCA Civ 2813 to be a nice illustration of two important phenomena: first, the extent to which administrators internalize the norms generated by judicial development of the principles of judicial review of administrative […] Read more

The term “quasi-constitutional” is sometimes attached to statutes said or held to have special status relative to other statutes. Typically, the “quasi-constitutional” statute is one which protects or seeks to entrench important individual rights. But there is no reason that only statutes concerned with rights should be eligible for the “quasi-constitutional” label (see Vanessa MacDonnell). […] Read more

On the advice of Britain’s new Prime Minister, Boris Johnson, the Queen signed an Order in Council last week proroguing Parliament from a point between September 9 and September 12 until October 14. A political storm has erupted in the United Kingdom and three court challenges have been launched or accelerated in response. Attention is […] Read more

Anti-administrativists have not had a good couple of weeks. For the past few years, the administrative state in the United States has been under sustained attack, traduced as illegitimate and a betrayal of the commitments of the Founding Fathers. Too often, however, the arguments of the anti-administrativists portray a cartoonish version of modern public administration, […] Read more

My worst nightmare (which, admittedly, is a little bit different from the nocturnal terrors feared by most people) has just come to pass. Yesterday Professor Larry Solum extracted on his Legal Theory blog a piece from a recent article of mine and labelled it “puzzling”. Here is the offending passage (from this article): What Chevron […] Read more