EU law as an agent of national constitutional change: Miller v Secretary of State for Exiting the European Union

This article analyses the recent decision of the UK Supreme Court determining the UK’s ‘constitutional requirements’ for triggering Article 50 TEU. It demonstrates that the underlying disagreement in the case concerned the proper conceptualisation of EU law as it operates in the UK legal order. The Government and its academic supporters denied that EU law rights could be equated to domestic law rights; this allowed them to argue that their loss through withdrawal from the EU would not breach the long-standing prohibition on Executive prerogative action removing domestic law rights or altering domestic law. The article argues that the Supreme Court was right to reject this argument. In doing so, the Court emphasised that EU law had not only deeply infused the domestic legal order but had significantly changed it. Hence use of Executive powers to withdraw from the EU would amount to the Executive changing the constitution. The article considers how this ‘constitutional change’ argument – already strongly criticised – should be understood, and seeks to shed light on it via the notion that constitutional amendment is usually recognised as an exercise of especial normative significance. While acknowledging that the UK’s constitution lacks the formal process for such change required by other European states, it argues that the invocation of this principle in Miller may be related to recent developments in constitutional doctrine recognising the special status of fundamental constitutional rights and principles. In doing so, it argues for a significant change to our understanding of ‘constitutional statutes’

Would use of the prerogative to denounce the ECHR "frustrate" the Human Rights Act? Lessons from Miller

Considers, in light of the ruling in R. (on the application of Miller) v Secretary of State for Exiting the European Union (SC), whether the royal prerogative could be invoked to withdraw the UK from the ECHR while the Human Rights Act 1998 remained in force. Reviews the facts of Miller, and evaluates the conflicting dependence and bifurcation arguments on whether the provisions of the 1998 Act could operate as free-standing measures

Policing, Profiling and Discrimination Law: US and European Approaches Compared

Counter-terrorism officials in the USA and the UK responded to the events of 11 September 2001 and 7 July 2005 with an increasing resort to the use of ‘intelligence-led policing’ methods such as racial and religious profiling. Reliance on intelligence, to the effect that most people who commit a certain crime have a certain ethnicity, can lead to less favourable treatment of an individual with that ethnicity because of his membership in that group, not because of any act he is suspected or known to have committed. This paper explains the context in which intelligence-led policing flourishes, and how this discussion contributes to the profiling debate in both the USA and the UK, and then sets out two key contentions. First, we argue that Article 14 ECHR as applied under the UK Human Rights Act has a more protective, and less ‘prosecutorial’, conception of discrimination than has the US Equal Protection Clause, meaning that judges need not find a discriminatory motive to find that discrimination has occurred. Second, we contend that Article 14 provides the judiciary with the key tool of proportionality, which, when properly applied, makes it harder for discrimination to stand up to scrutiny

“An opportunist piece of electioneering”: experts criticise the Conservatives’ Human Rights Act repeal pledge

David Cameron recently announced his intention to repeal the Human Rights Act were his Conservative Party to be returned to Government following the General Election scheduled for May 2015. Democratic Audit asked human rights experts to contribute their assesment of the idea, particularly in light of further details of the proposal outlined by the Justice Secretary Chris Grayling. Part one can be found here

Earliest evidence for the ivory trade in southern Africa : isotopic and ZooMS analysis of seventh-tenth century AD ivory from KwaZulu-Natal

KwaGandaganda, Ndondondwane and Wosi were major Early Farming Community settlements in what is today the KwaZulu-Natal province of South Africa. These sites have yielded, among other remains, abundant evidence of ivory and ivory working dating to the seventh–tenth centuries ad, pre-dating by approximately 200 years the better-known ivory artefacts from sites in the Limpopo River Valley and surrounding regions. We report the results of carbon, nitrogen and strontium isotope analysis to explore the origins and procurement of this ivory, in combination with Zooarchaeology by Mass Spectrometry (ZooMS) to identify the species of animals from which it was derived. All of the ivory studied using ZooMS was elephant, despite the presence of hippopotamus remains on all three sites. Some ivory was probably obtained from elephant herds that lived close to the sites, in the densely wooded river valleys favoured by both elephants and early farmers. Other material came from savannah environments further afield. Ivory found at these three sites was drawn from different catchments, implying a degree of landscape/resource partitioning even at this early stage. These communities clearly invested substantial effort in obtaining ivory from across the region, which speaks to the importance of this commodity in the economy of the time. We suggest that some ivory items were for local use, but that some may have been intended for more distant markets via Indian Ocean trade