Public Law

Table of Contents Issue 4, 2023

Issue 4 September 2023

Table of Contents



        Government's Duty of Candour: On the Move? - E.A. O'Loughlin
        The duty of candour is triggered if a person seeks judicial review of an administrative action or decision. It requires that both parties provide a full and accurate explanation of all the facts relevant to the review before a court or tribunal. There is ambiguity, according to the Society of Labour Lawyers' submission to the Independent Review of Administrative Law, over when the duty kicks in, how far it extends, and what type of disclosure is required. This article interrogates that claim. It argues that, while there is inherent flexibility in the duty's application in different contexts, the law on the duty of candour is not necessarily unclear. Rather, its functioning is under strain from changing litigation patterns, and new technologies altering how government decisions are made and records are kept. This article maps what we know about how the duty of candour operates, before considering its application to these complex and evolving dynamics. The first part provides an overview of the development of the duty, and its present form. The second part maps out the law on the timing of the duty, its scope, and the extent to which the duty requires disclosure of documents. The third part considers recent court treatment of the duty in relation to the following pressure points: a) the rise in the role of technology in government decision-making; and b) the apparent rise in disclosure applications, and government resistance to such disclosure.

        Cracks in the Foundations?: Exploring the Tension Between Constitutional Tradition and Constitutional Culture in the UK on Referendums and Scottish Independence - Nicky Gillibrand, Somsubhra Banerjee and Eoin Carolan
        In its Reference ruling on the proposed Scottish independence referendum, the Supreme Court addressed the continued uncertainty over the status and significance of referendums within the United Kingdom's (UK's) constitutional structures. The Supreme Court, on this occasion, goes further than previous rulings like Miller I by directly considering the implications for that order of a referendum. Moreover, the court, in so doing, adopts an expressly practical approach that acknowledges the status and force of a referendum result within Britain's wider constitutional culture. The court's assessment on this point was that a referendum on Scottish independence would be regarded as a democratically authoritative statement of popular will with implications for the legitimacy (or otherwise) of the Union. This is, fundamentally, an empirical claim about contemporary culture in Scotland and in Britain. In this regard, the claim is wholly borne out by the results of the fieldwork we have conducted in locations across England and Scotland. The proposition that the Scottish people should be entitled to hold a binding referendum on independence attracted almost unanimous support from voters from across the geographic and political spectrum. However, the depth of support for this claim points to longer-term difficulties with the court's approach here. While the court showed itself to be willing to consider and form a view on the political effects of a referendum, it ultimately shied away from the constitutional implications of its conclusions by treating these issues as questions of statutory interpretation. It is questionable whether the application of a legal theory of Parliamentary sovereignty in the face of a constitutional culture that preferences popular sovereignty is a sustainable long-term position.

        The Shawcross Independent Review of Prevent: Another spin of the policy spiral - Joshua Skoczylis and Clive Walker
        The long-awaited Independent Review of Prevent by Sir William Shawcross might be welcomed for delineating a clear set of criticisms. These should generate some important improvements in the design and delivery of Prevent, which is one of the four elements in the United Kingdom (UK) Government's strategy to counter terrorism (CONTEST) and aims to stop people becoming or remaining terrorists or supporting violent extremism. The Shawcross Report endorses Prevent and goes on to deliver a set of simple (if not simplistic) set of findings and recommendations which can be acted upon by policymakers. That overall verdict is confirmed by the Home Office, which immediately approved all 34 recommendations and promised implementation. This outcome is impressive, given the bitter controversy often engendered by the policy of Prevent and the hostile and personalised approaches of some critics. However, on the negative side, the quality of the Shawcross Report embodies substantial faults, which might be said to be threefold: first, the poor quality of research and argumentation; secondly, the lack of consistency and profusion of contradictions; and thirdly, the lack of elaboration as to how detailed changes should be implemented. These faults occur recurrently throughout the Report. Consequently, the short-term certainty offered to policymakers comes at the cost of shallowness and therefore vulnerability to ongoing opposition and disenchantment in the longer term. Overall, the Shawcross Report does little to remedy the "policy spiral" which has long hobbled the working of Prevent and so perpetuates a policy which lacks clear purpose, direction, progression, control and reflection. These spiralling faults are given a further spin by the Shawcross Report and will be analysed under two headings: one relates to the process of the review, the other to the substance of its analysis with reference mainly to the objectives of Prevent.

        Strasbourg's Views on the Modern Mirror Principle: Shattering the Mirror? - Jeremy Letwin
        I argue that the main line of European Court of Human Rights (ECtHR) jurisprudence counter-intuitively favours less strict adherence by national courts to its own jurisprudence than is favoured by UK courts. I identify four key justifications from the UK case law that have been used to support the contention that domestic jurisprudence should generally "mirror" ECtHR jurisprudence. I argue that the ECtHR's conception of its own role, especially evident in its "procedural turn", is at odds with these four key justifications from the UK case law. I show how the ECtHR's use of principles such as subsidiarity, incrementalism, the margin of appreciation, European consensus, and judicial dialogue, militate against any strong "mirroring" between domestic courts and the ECtHR, and point in favour of a more flexible approach unhindered by many of the hard and fast rules which have been developed by the UK courts in this area.

        Strasbourg's Views on the Modern Mirror Principle: Shattering the Mirror? - Dimitrios Kivotidis
        Inspired by recent events, such as the resignation of the United Kingdom (UK) Prime Minister following a negative assessment of the autumn 2022 mini-budget, as well as legislative intervention in the wave of trade disputes with the Strikes (Minimum Service Levels) Act 2023, this paper investigates the analytical value of the notion of the economic constitution. This notion can be used to examine the relationship between economic management and democratic processes but has not been adequately elaborated upon in the UK context. Nevertheless, constitutional theorists have used it to examine the European Union (EU) constitutional structure, which has been assessed as an example of authoritarian economic constitutionalism. Through a comparative juxtaposition with EU economic constitution, this paper seeks to evaluate the authoritarian or otherwise characteristics of the UK economic constitution. It does so by focusing on two aspects of the UK economic constitution, namely fiscal monitoring and labour legislation. The paper concludes with a discussion of the potential for reforming the economic constitution in a more democratic direction in the post-Brexit UK.

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