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When it comes to getting through your law exams and finding your dream job can feel like the biggest challenge there is. We totally get it. So many questions. So many decisions. It’s overwhelming.
And if there is one thing law students don’t have… is a lot of spare time to be figuring this all out yourself.
That’s why we’ve created the Answered Squad. Want to find out more?
All of us could be forgiven for being confused about how Brexit has affected human rights protection in the UK. Only last month one prominent Brexiter was criticising the EU Human Rights Act. Hold on… that’s not sounding right is it? If legislation is called an Act it has been passed by the UK government. Why would the UK government preface the name of the Act with EU? The proper name of the Act enshrining human rights protection is, of course, the Human Rights Act 1998 (“HRA”).
Well no. It doesn’t! This might come as quite a surprise to some. Since the UK had been a member of the EU for nearly 50 years our laws were comprehensively entwined with EU laws and in order to prevent a serious lacuna in the legal system the government enacted the European Union (Withdrawal) Act 2018 (“EU(W)A”). The EU(W)A created the concept of retained law effectively writing EU law wholesale into UK law.
If you’re in the process of studying EU, Public or Constitutional law now, then you need to read this post! It’s very likely that you’ll need to understand and refer to the concept in your exams, and to have a grasp what is now happening with Brexit. (If you have bought the relevant individual subject LLB guides, or the GDL guide, do read this as an update on your Brexit chapters).
Lots of people have been talking about the case R (on the application of Miller) v The Prime Minister but do you know what it was about? It’s a huge constitutional law case so it would be good for all aspiring lawyers to have an idea what it’s about.
It’s a common adage that constitutional law is meant to be dull and boring – you might or might not agree but it’s hard to argue that recent developments have not shaken up the image.
If you’ve bought our LLB guides on Public or EU law or our GDL guide you’ll have seen our Brexit chapters where we’ve worked through and explained the constitutional law challenges of Brexit. Brexit has provided a number of examples of the working of Separation of Powers. The executive (or government) has taken actions and then found itself challenged by Parliament and the courts. Brexit divides public opinion in every way. On the one hand it’s arguable that the shenanigans have demonstrated that the checks and balances in our constitution work, on the other hand, some argue that we must now proceed towards a written constitution. Maybe spend a bit of time thinking about where you are on this part of the debate?
But what was Miller 2 about? It isn’t in our guides as the circumstances that gave rise to it and the judgment occurred after we went to print. When Boris Johnson was elected Prime Minister by the membership of the Tory party he committed to leaving the EU on 31st October “Do or die”, with or without a deal. He promised to die in a ditch rather than ask the EU for a further extension to our membership period. He made these commitments knowing that he faced a Parliamentary majority on one aspect of Brexit – that was that the UK should not leave the EU without a deal. Mr Johnson knew that Parliament might try to thwart his plans. He decided to ask the Queen to prorogue Parliament (bring proceedings in both houses to an end) for a protracted period covering the party conferences (when business is usually suspended) allegedly to allow him to prepare for a Queen’s speech.
Many cried foul, arguing that the purpose of the prorogation was to prevent Parliament from taking action to avoid the possibility of a no-deal Brexit. At very high speed Parliament managed to pass an Act (the Benn Act) to achieve precisely that end. The legislation required Mr Johnson to write to the EU to request an extension if Parliament had not ratified a withdrawal agreement by 19th October.
Meanwhile Gina Miller, Joanna Cherry and others went off to court to get a declaration that the prorogation was illegal, and that’s exactly the decision that was made by the High Court. The advice given to the Queen to prorogue Parliament was unlawful and therefore the prorogation was “unlawful, null and of no effect.” Pretty seismic stuff in constitutional law terms. Lady Hale backed the judgment up with a powerful bit of imagery. Prorogation happens when commissioner go to Parliament with the appropriate papers, the judgment proclaimed that “it was as if the Commissioners had walked into Parliament with a blank piece of paper.”
If you want to read more about Brexit and the law or have an idea for an article yourself, check out our friends at The Student Lawyer, the number one source of free news and information created by law students for law students.
