Constitutional Law

COVID-19 and its Impact on the Constitutional Relationship Between Government and Parliament

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Photo by Heidi Fin

Theodore Konstadinides, Professor of Law, University of Essex and Lee Marsons, Graduate Teaching Assistant in Public Law and a PhD candidate, University of Essex

The Coronavirus Act 2020, the UK’s most substantial legislative response to the Covid-19 pandemic, received Royal Assent yesterday after a fast-tracked procedure through both Houses. Indisputably, the pandemic falls within the range of situations under which it is constitutionally acceptable for Bills to be fast-tracked. While there is no corollary between an expedited piece of legislation and a bad piece of legislation, fast-tracking the Coronavirus Bill carries important implications for the constitutional relationship between Government and Parliament. Not least, parliamentarians had limited time to scrutinise legislation containing measures that have been described by the Bingham Centre for the Rule of Law as ‘the most sweeping powers ever taken by the UK Government outside of wartime’. But, in this context, the implications for the balance between Government and Parliament extend beyond the immediate passage of the Act. Therefore, while Tierney and King stressed the dilemma between safeguarding public health and the protection of individual liberties vis-a-vis fast-tracked legislation, the purpose of this post is to outline a number of concerns provoked by this pandemic on the Government-Parliament relationship more broadly, while also making some comments on the Act itself.

Since the increased power of the executive in relation to Parliament is an inevitable feature of fast-track legislation, the rule of law mandates effective parliamentary scrutiny in respect of both the way the Government will implement the new powers created under the Coronavirus Act as well as the detail in which Parliament will be updated about the reach of these powers across the UK. Two proposed amendments to the Bill tabled by David Anderson and Sarah Ludford in the House of Lords: one on the provision of meaningful information to Parliament would have gone beyond what is now Section 97 of the Act; and a second requiring that powers were exercised in accordance with the Human Rights Act 1998 and the Equality Act 2020, were both endorsed by positive ministerial statements (though not directly or publicly by a Cabinet Minister). With reference to meaningful information, the Minister, Lord Newby, committed the Government to providing an explanation in two-monthly reports laid before Parliament of the Secretary of State’s reasons for continuing to make use (or otherwise) of the provisions in Part 1 of the Act (as opposed to a mere report in accordance with Section 97 about whether the provision is in force and whether any power under subsection 3(b) has been exercised – the ‘switch on – switch off’ analogy made by David Anderson). With regard to compliance with the Human Rights Act 1998, the House of Lords’ proposed amendment included a new clause to be inserted in the Act entitled ‘Powers within the Act: necessity and proportionality’ While such a clause was not inserted in the final Coronavirus Act 2020, the Minister confirmed that the powers created will be exercised in accordance with the principles of necessity, proportionality and non-discrimination and in full compliance with human rights law. These statements provide some assurance as to the right balance being struck between the powers conferred on the Government and Ministers’ accountability to Parliament which are crucial in attaining the objective of constitutional propriety and legality despite the current emergency.

Despite ministerial promises that nothing in the Act contradicts constitutional principles, outside of the Act all the relevant coronavirus delegated legislation that we are aware of has been passed without recourse to Parliament, whether by using the positive or negative resolution procedure. This includes significant measures such as the Health Protection (Coronavirus) Regulations 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No 2) Regulations 2020, and the Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020. In each case, the Minister stated that for reasons of urgency it was not possible to lay the Regulations before Parliament prior to signature. This is despite the fact that some of this delegated legislation – such as s.3 of the Health Protection (Coronavirus) Regulations 2020 – create summary offences and require whole swathes of otherwise lawful economic activity to cease.

In addition, the current situation is unique in that the practical reality of social distancing and self-isolation measures mean that many MPs and peers cannot attend Parliament to scrutinise government in either chamber. Already on 19 March, the Lord Speaker’s statement on the UK Parliament’s response to the spread of COVID-19 was unequivocal:

[…] no-one should consider it is their duty to be here in present circumstances. As Parliamentarians we have a duty to show leadership and heed the clear advice of the public health experts. I would ask that everyone continues to reflect on their own situation in the light of that advice, for their own good and for the broader public interest.

Furthermore, on the 23 March 20220 the Speaker’s Statement on attendance and distancing accepted that while video conferencing could mitigate any inconvenience posed by social distancing and self-isolation measures, the work of Committees will be affected by a combination of the limited facilities available and staff absences:

We recognise the need to improve our video conferencing facilities to enable those working remotely to engage in Committee proceedings. Regarding evidence sessions, these facilities are currently limited, not least because the management of these sessions requires expert operators to produce audio-visual output of a suitable quality for broadcast use and Hansard transcription purposes. The teams who make such arrangements work are currently under—I do stress—significant strain because of staff absences. Further work in this area will be taken forward as a matter of priority over the Easter recess. Once the current situation has settled, I will commission a review to ensure we can develop systems to ensure we are ready and able to be more agile in the future.

The above social distancing and self-isolation measures and the lack of Parliament’s ability to replace in-person interactions with a virtual environment of online proceedings will no doubt have an important effect on the capacity of Parliament to scrutinise major developments, seek expert advice and hold the Government into account in the coming weeks and months.

Admittedly, some welcome developments have occurred. On 25 March 2020, for instance, the Speaker of the Commons provided a statement explaining that he was to permit Prime Minister’s Questions to run for one hour instead of the ordinary half an hour. This was to:

[…] serve as an effective replacement for separate statements on the situation of coronavirus. I will allow the Leader of the Opposition two sets of questions—he will have a total of 12, which I expect to be taken in two sets of six. Similarly, I will allow the leader of the second largest party four questions, in two sets of two. I will also, exceptionally, call a further question from an Opposition Front-Bench spokesperson.

Similarly, a number of parliamentary committees have initiated inquiries into the Government’s response to Covid-19. The Education Committee launched an inquiry on 26 March into the implications of coronavirus policy on education and children’s services, for instance, and the Joint Committee on Human Rights launched an inquiry previously into the human rights implications of the then Coronavirus Bill.

Nevertheless, these successes are made bittersweet now that Parliament has risen for an early Easter recess until 21 April 2020. While parliamentarians can submit written parliamentary questions during a recess (p. 11) and committee inquiries can continue (or, at least, in the limited way that they can be continued), optimal scrutiny of Government is less likely to be achieved if parliamentarians cannot utilise all of the parliamentary tools at their disposal. Parliamentarians can no longer ask oral ministerial questions during a recess, for instance. This will carry significant implications for parliamentary scrutiny of executive action with regard to the ability to question Ministers about decision-making and policy development, which is naturally changing daily – perhaps more frequently. To provide an important topical example of this, on 25 March 2020, Jesse Norman MP, the Financial Secretary to the Treasury, was asked by Lloyd Russell-Moyle, Labour MP for Brighton Kemptown, how the Government would be scrutinised by Parliament as to its financial support for the self-employed, to be announced after the recess started. The Minister’s response was:

When such a package is brought forward, there will be ample opportunity to debate and discuss it in the House when it returns. Before that, the Government will be held to account in the public square in the usual way, and Ministers are available for direct interrogation by any Member of Parliament who wishes to contact them.

Nevertheless, Russell-Moyle was not satisfied with this response:

It is a shame that the parliamentary authorities have not managed to get their act together to organise an electronic, online continuation of proceedings. During a recess in normal times, in a crisis, we would be recalled, and this is a crisis, so we should be able to continue our work. For Ministers to ask for our work to continue through correspondence is not satisfactory.

Russell-Moyle was perhaps correct in his pessimistic assessment. On one day – 24 March 2020 – there were 181 references to ‘coronavirus’ in written parliamentary questions asked by MPs to Ministers. Given the limited time and resources available to Ministers and their officials, it does not seem likely that written questions will provide a panacea to other lost parliamentary opportunities – whether committees which cannot continue as usual or oral questions which cannot proceed at all.

As regards the duration of the Act’s provisions, Section 88 of the Coronavirus Act 2020 allows a Minister to suspend (repeal) or revive (save to provisions set out in subsection 6), more than once, any provision of the legislation by passing a Regulation. This appears to be a wide power encroaching upon Parliament’s legislative authority and sovereignty and it is further amplified by subsection (5) which provides that the Minister can pass Regulations for different purposes, on different days in different areas; and can make technical transitional, transitory and savings provisions. Last but not least, despite the two-year sunset clause in Section 89 of the Act, Section 90(2) provides that a Minister can extend (for up to six months at a time) or terminate any of the respective Regulations beyond two-years. This seems to be necessary in the face of the pandemic but since emergency powers are meant to give the Government a temporary boost, there is no valid reason why Parliament cannot get back in the game and manage the effects of the Covid-19 pandemic when authorities start easing the current lockdown.

All in all, the nature and scale of the Coronavirus Act 2020 is extraordinary. While the current measures may have some effect in enabling the Government to respond to a public health emergency and manage the effects of the pandemic, they are encroaching upon Parliament’s territory and endanger the principle of the separation of powers. While the delegated powers in the Act are broad and the extent and effectiveness of the new powers under the Coronavirus Act 2020 is unclear, the Government is under a duty to provide clarity about their use across the UK as well as the necessity of the relevant compliance measures that it will adopt in the near future.

This post was originally published on the UKCLA Blog and is reproduced here with permission and thanks.

Haim Abraham’s paper on Parenting, Surrogacy and the State cited by the Supreme Court of Israel

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The Israel Supreme Court recently cited a paper written by Haim Abraham, Lecturer in Law at the University of Essex.

The paper titled ‘Parenting, Surrogacy, and the State’ demonstrates that Israel’s legislation, and regulation of assisted reproduction treatments, systematically discriminates individuals and same-sex couples based on sexual orientation, family status, or gender.

By surveying the legislative and social developments in Israel in relation to surrogacy and the conceptualisation of the family unit, Haim shows that the right to parenthood is a fundamental negative constitutional right which extends to the use of surrogacy treatments. Furthermore, Haim establishes that the prohibition on same-sex couples and single individuals to engage in surrogacy arrangements fails to adhere to the principle of proportionality, as other less discriminatory practices are available and the harm to same-sex couples and single individuals in the current legislation outweighs its benefits.

On 27 February 2020, the Supreme Court reached the same conclusion. It held that the current Surrogacy Act of 1996 discriminates against same-sex couples and single men, and that the infringement on the rights to equality and parenthood is disproportionate.

Haim Abraham’s full paper in Hebrew is available here.

Clause 26 of the European Union (Withdrawal Agreement) Bill 2019-20: An Exercise of Constitutional Impropriety?

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Prof Theodore Konstadinides (School of Law, University of Essex) and Riccardo Sallustio (Solicitor, Grimaldi SL LLP)

The European Union (Withdrawal Agreement) Bill 2019-20 will pave the way for the UK to ratify the UK-EU Withdrawal Agreement and thus depart from the European Union (EU) soon thereafter, having received its third reading in the House of Commons just last week. This contribution examines certain major consequences deriving from the Bill becoming law and, in particular, the controversial, but little discussed Clause 26 which (as Lord Pannick remarked in a recent article in the Times) requires particularly careful scrutiny.

Clause 26 introduces in Section 6 of the EU (Withdrawal) Act 2018 new subsections (5A) through (5D) that allow Ministers of the Crown to issue regulations to any “relevant court or tribunal” on how to interpret and even to disapply EU retained case law as well as domestic case law which relates to EU retained case law. The word ‘relevant’ seems to refer only to those courts that were meant to be bound by decisions of the CJEU on interpretations of retained EU law prior to exit day / implementation date. Although the scope of the respective regulations is not defined in the Bill, when added on to the existing Section 6 of the EU (Withdrawal) Act 2018, it can be argued that they shall not apply to the Supreme Court, or the specific circumstances when the High Court is not effectively the highest legal court. As these courts are not bound to interpret retained EU law in line with Court of Justice of the EU (CJEU) decisions, they can surely decide not to follow them on the same basis as they decide not to adhere to one of their own precedents. The phrase “relevant court” in Clause 26 thus suggests that these regulations probably cannot apply to the Supreme Court, although this is not clarified in the wording of the Bill and can be the subject of speculation.

Beyond prescribing the extent to which a court may not be bound by retained CJEU case law, a Minister of the Crown may further specify the test that judges must apply in deciding whether or not to depart from CJEU case law or relevant considerations in applying the respective test. It would not, therefore, be an exaggeration to say that the power conferred upon the executive under Clause 26 of the EU (Withdrawal Agreement) Bill to interpret the case law of the CJEU and related domestic case law is rather unprecedented. This was also pointed out by Ruth Cadbury MP and Joanna Cherry QC MP during debate on the Bill in the House of Commons. What is more, Lord Pannick, Baroness Taylor of Bolton, Lord Beith and Lord Anderson of Ipswich have moved an amendment of Clause 26 which proposes to remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the CJEU and by reference to what test.  

Judicial independence

Courts are not pre-empted from choosing how to decide future cases involving, for instance, CJEU past precedent dealing with the scope of general principles of EU law. Nevertheless, we argue in this post that the enactment of Clause 26 would have negative implications both internally and externally. First, Clause 26 would raise, at the domestic level, constitutional concerns over the protection of the rule of law in the UK and its subcomponents including legal certainty, the separation of powers and judicial independence. More specifically, Clause 26 appears to go against the spirit of the statutory duty on government ministers in accordance with Section 3(5) of the Constitutional Reform Act (CRA) 2005 to uphold the independence of the judiciary, barring them from trying to influence judicial decisions. This is of course rather paradoxical considering that in 2017, Lady Hale mentioned that ‘in a recent survey of thousands of judges from 26 European countries, in six countries the judges’ perception of their own independence scored more than nine out of ten: the United Kingdom was one of those countries.’ At the same time, we need to acknowledge that the CRA wording is subject to interpretation since it neither provides a definition of judicial independence nor does it articulate the degree of independence possessed by a judge or what is perceived to be a threat to judicial independence.

The above sentiment aside, the compatibility of Clause 26 with Article 6 ECHR that requires that a court be independent is at best questionable. Clause 26 would appear to impair the very notion of a “tribunal” that should have the power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party as established in Van De Hurk v. The Netherlands. Hence it runs the risk of being found not in accordance with Article 6 of the ECHR if challenged. Notably, the Government’s memorandum on compatibility of the Bill with the ECHR does not address Clause 26. The executive’s position is that the Clause does not impinge on any ECHR right.

Duty to give reasons

As mentioned, under Clause 26, Ministers are bestowed with overly broad and subjective powers to determine the extent to which judges are to be bound by retained EU case law. It is worth highlighting that under Clause 26, Ministers do not need to lay a statement setting out the reasons for the respective regulations explaining why this would constitute a proper and fair course of action. This is somewhat in contrast with the public law proposition behind the duty to give reasons that decision-makers must act for proper purposes. Although there is no general duty to give reasons at common law, reasons will be required where they are necessary to allow the courts concerned to scrutinise the administrative decision effectively. While Ministers are required under Clause 26 to consult with the chair of the relevant court or tribunal prior to enacting the relevant regulation, primary legislation sets no limits on how they can exercise such powers or the extent to which they need to explain points of fundamental importance. We can, therefore, assume that a regulation can go well beyond a technical interpretation and determine a change that distorts the meaning of EU law.

But, beyond politicians interfering with the work of judges, why is distorting the meaning of EU law significant, especially since the UK is on its way out of the EU? One way of explaining the rationale behind Clause 26 is allowing the executive to decide that a particular interpretation of retained EU law should be changed. In that respect it constitutes a means of over-turning established interpretations of retained EU law rather than overturning retained EU law itself – perhaps to cover for when the relevant sunset clause runs out. For example, the notion of ‘worker’ is based on established CJEU case law which would be used by UK courts when interpreting retained EU law (Directive 2003/88/EC on the organisation of working time) to ascertain the status of a parcel courier as a worker. The Government, which may adopt a particular stance on protecting the rights of people working in the gig economy, may wish to change the CJEU’s interpretation given to the term ‘worker’ (to include or not a contractual right to use a substitute to perform all or part of their work), but without enacting legislation. Hence, Clause 26 would enable the Secretary of State for Employment to adopt delegated legislation to make provision for the courts to no longer follow the meaning of worker in CJEU case law and to give it a different meaning instead (i.e. that by sending a substitute they cannot be regarded as a worker in accordance with the Employment Rights Act 1996).

An orderly Brexit

It is well understood that the focus of the EU (Withdrawal) Act 2018 and of relevant provisions of the EU (Withdrawal Agreement) Bill 2019-20 is on the winding down of the application of EU law in the domestic order. This is different however from allowing the enucleation of EU retained case law or the evisceration of EU retained law from related domestic case law through ministerial acts. Although the UK will indeed be leaving the EU, the risk of distorting EU law upon the Bill becoming law is still significant because it frustrates the principal aim of the EU (Withdrawal) Act 2018, which is to allow for an orderly exit of the UK from the EU.

While of course the scope of the powers conferred upon government ministers by Clause 26 is, obviously, less wide than the Henry VIII powers set in the EU (Withdrawal) Act 2018, there is no limitation on the nature of the case law that may be affected by a ministerial regulation. As such, a minister, for instance, would be able to disapply or grossly misinterpret EU retained case law and related domestic case law even if the subject-matter engages with the protection of fundamental rights (such as citizens’ rights). Such an alteration, of course, would need to be subject to compliance with common law rights, human rights scrutiny and the rule of law.

Legal certainty

The fact that ministerial powers under Clause 26 are subjective and can be exercised in the abstract and that no statement underlying the purpose of the regulation is required further imply that it would be very unlikely for the ministerial intervention to be tested against reasonableness under Wednesbury (or proportionality which although not a general standard of review could come into play through an application of the principle of legality or if Article 6 ECHR were engaged) in a judicial review challenge. In such circumstances, it may be difficult for the court to engage in questions of weight and balance, which would ordinarily need to be determined in the context of particular factual and legal circumstances.

From a practical standpoint, the enucleation/evisceration of EU retained case law from domestic case law may prove at times to be problematic and create incoherent outcomes. There are concerns over compliance with legal certainty requirement as the powers under Clause 26 can be interpreted broadly and inconsistently. For instance, a regulation can, in practice, also apply to a dispute involving a principle established by the CJEU in its case law that is already pending at the time of its enactment.

EU rule of law protection

While it would be logical to assume that Clause 26 would only come into effect after the end of the implementation period (i.e. when the supremacy of EU law under the Withdrawal Agreement is no longer in effect, except for some exceptions such as Clause 13(2) of the revised Protocol on Ireland/Northern Ireland), its enactment would be short-sighted from a UK negotiating position in the context of a future trade relationship with the European Union. Indeed, the EU has been increasingly seeking that free trade agreements include a full ‘human rights clause’ covering also the respect of the rule of law (see the Framework Agreement with the Republic of Korea, Article 1(1) and the Cotonou Agreement with ACP countries, Article 9(2)) in order to ensure that its external policies are not applied in violation of the rule of law. From a more general perspective, it would be naïve to believe that respect for the rule of law in the EU would be merely a prerequisite for the protection of the fundamental values listed in Article 2 Treaty on European Union (TEU) and for upholding all rights and obligations deriving from the Treaties and would not have any role in the EU’s external relations.

On a more general level, the proposal for Clause 26 ignores the recent focus of the EU institutions on the rule of law and will most likely not go unnoticed in Brussels. The new EU Commission is pursuing a rule of law strengthening project following the July 2019 Communication on “Strengthening the Rule of Law within the Union – A blueprint for action” which received in the last few months wide support from Member States introducing the concept of rule of law conditionality. The new European Parliament has also recently focused on separation of powers and independence of the judiciary in Poland in the context of the relevant Article 7(1) TEU procedure. In this prevailing mood, the UK’s respect for the rule of law would be high on the agenda when the UK-EU trade relationship is for approval by the Member States and the European Parliament during the course of 2020.

The fact that the UK government will soon ‘get Brexit done’ does not render it free from facing constitutional propriety, its duties under the Withdrawal Agreement and the European rule of law. 

The authors would like to thank Alison Young for her comments and suggestions. The post first appeared on the UK Constitutional Law Association Blog and can be accessed here.

UKAJI’s ‘Emotions in Administrative Justice’ Blog Series – Call for Contributions

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Lee Marsons, PhD Candidate, School of Law, University of Essex

In this post, the UK Administrative Justice Institute (UKAJI) invites contributions to a new series of blogs on the theme of ‘Emotions in Administrative Justice’. Designed to explore and extend the growing but nascent research in this area, the objective is for the series to be developed as a special issue of a journal at a later date. Among other things, contributions might explore the emotions and emotional concerns experienced by various actors and participants in the administrative justice system, what emotions and emotional processes are of particular relevance to administrative justice and why, and how public administration can be reformed to lessen negative, and enhance positive, emotional impacts.

Emotions in administrative justice

As Lisa Flower (2018) has eloquently put it: “The law is a peculiar paradox of unemotional emotionality. Whilst the involvement of emotions in law…is so obvious as to make its articulation seem almost banal…the centrality of emotions is often stifled, overlooked or rejected in order to lift the rationality of law (p. 16-17).”

In spite of the often claimed aspiration of administrative justice to ‘humanise the state bureaucracy’ and despite a comparatively healthy literature on emotion in alternative dispute resolution, as a whole administrative justice scholarship is little more nuanced, subtle, and sophisticated in its approach to emotions than legal scholarship generally. Indeed, with exceptions like Sharon Gilad’s research on ‘emotional labour’ in the Financial Ombudsman Service, emotions and administrative justice are not phrases commonly seen, understood, or analysed together.

That is a pity. It is not difficult to imagine the potentially salient and powerful connections between the two. As UKAJI has explained:

“Administrative justice concerns how we interact as individuals when the government, or those working on its behalf, act in ways that appear wrong, unfair or unjust. It encompasses matters of everyday importance to all of us, such as housing, education, health care, immigration, planning, social security and taxation.”

Thus, administrative justice can be the difference between whether someone is housed or not, receives social security payments or not, is forcibly expelled from the country or not, or gains justice after state maladministration in healthcare or not. For at least this reason, emotion lurks beneath the surface of administrative justice, and is perhaps at its core, whether or not it is at the forefront of professional analysis.

In initiating this blog series, the purpose is to link together administrative justice and the area of socio-legal scholarship known as ‘law and emotion’, which focuses on how law and its actors, procedures, and institutions are, could be, or should be related to human emotions. As a genre, this was originally devised by Susan Bandes in her edited volume, The Passions of Law.

To give a basic overview of what is meant by emotion, Lindquist et al (2013) suggest that:

“[E]motion refers to some change in subjective experience, autonomic responses (e.g., heart rate, respiration, electrodermal activity), physical action (or an increased likelihood to perform an action, such as facial muscle movements, skeletal muscle movements, etc.), as well as some perception, thought, or judgment of the surrounding world.”

It is this complex, multi-dimensional, multi-level process at the frontier of psychology and biology, that may produce commonly known ‘discrete emotions’, such as anger, anxiety, frustration, happiness, sadness, guilt, fear, and so on. Nevertheless, there are many theories and definitions of emotion, hailing from a variety of theoretical, philosophical, scientific, and methodological perspectives, and it would not be sensible to forestall debate on what emotion might mean in the administrative justice context at this stage. For now, the key question is: if emotion exists in administrative justice processes – like it exists in all other human processes – what, if anything, do we do about it?

Talking about emotions without talking about emotions

In their research on Swedish judges and defence lawyers, Bergman Blix and Wettergren (2018) argue that legal professionals develop means of ‘talking about emotions without talking about emotions’ (Stina Bergman Blix & Asa Wettergren, Professional Emotions in Court: A Sociological Perspective (1st edn, Routledge 2018 p. 7). That is, professionals are prepared to invoke suspiciously emotion-like, emotion-related, and quasi-emotional concepts (like intuition and empathy), but rarely, if ever, use the word emotion per se. There is a similar trend in administrative justice.

Even a modest attempt at research reveals that, irrespective of whether the exact word emotion is used, things sounding suspiciously like emotions have been attracting considerable attention in the world of public administration and administrative justice in recent years. This attention has operated at a range of levels. Some has focused on the macro-societal level of the country at large. Since 2015, for instance, the Office for National Statistics has produced data about nationwide personal well-being, which attempts quantitative measurement of experiences like happiness and anxiety in the general population. In addition, in a report for the Carnegie UK Trust, Julia Unwin explored the role that kindness might play in public administration, ranging from social security, to healthcare, to education, to housing.

Other attention, however, has focused on much smaller levels of analysis, down to the micro-level of individual administrative actors. The then Secretary of State for Communities and Local Government, for instance, declared in March 2018 that the Grenfell Tower Inquiry Chair, Sir Martin Moore-Bick, should manage the process with ‘empathy’ (House of Commons Hansard, 22 March 2018, Vol. 638 Col. 411).

Between the macro- and micro-levels, some scholars have focused on the meso-level of particular organisations or institutions of government. Nicola Glover-Thomas (2019), for instance, has investigated how the system of mental health tribunals could be made more therapeutic for mentally vulnerable persons, including through empathetic practice. And Kit Collingwood-Richardson, Deputy Director of Universal Credit at the Department for Work and Pensions, has argued that: “[W]e need to develop our empathy, both individually and at organisational levels. Higher-empathy policymaking practice leads to better policy, which leads to better services, which leads to efficiency and cost savings, as well as happier people out there in the real world.”

Similarly, the Local Government and Social Care Ombudsman now expressly describes one of its values as being: ‘Listen carefully with respect and empathy.’ Anna Bradley, chair of Healthwatch England, has encouraged the use of compassion in LGSCO complaints-handling: ‘Compassion is key to good complaints handling, remembering that those affected are people not case files.’ One of the few commentators to – almost – use the word emotion without obfuscation include the current Parliamentary and Health Service Ombudsman, Rob Behrens, who told the PACAC in January 2019 that: ‘We have to be more emotionally intelligent to deal with…cases on a daily basis.’

It is this growth of ‘talking about emotion without talking about emotion’, combined with its potential salience to administrative justice as mentioned above, that prompts UKAJI to initiate this call for contributions in this under-developed, but potentially fertile, field.

Questions to consider and research outputs

Abrams & Keren (2010) suggest that law and emotion scholarship has three key potentials: “to illuminate the affective features of legal problems;…to investigate these features through interdisciplinary analysis; and…to integrate that understanding into practical, normative proposals.” (p. 2002).

With this in mind, UKAJI encourages contributors to illuminate, to investigate, and to integrate emotion in administrative justice. UKAJI’s primary focus has always been on developing and using research to understand how the systems of administrative justice operate and to put forward sensible and robust proposals for reform based on this understanding. In this vein, this series offers an opportunity to advance and improve our knowledge of the role of emotion in administrative justice, a field hitherto under-acknowledged, under-developed, and under-explored, but potentially critical. In addition, the series offers the chance to develop reform proposals, whether modest or radical, in light of this new knowledge. The medium-term end goal would be to develop the contributions as a special issue of a socio-legal journal.

Without being prescriptive or proscriptive, readers may wish to consider the Table below, which outlines potential analytical approaches to contributions in the series:

Possible analytical approaches to emotion and administrative justice. This has been adapted from Maroney’s (2006) taxonomy of law and emotion scholarship (p. 126).

Further information

Please find UKAJI’s format and style guidelines here. To express interest or for further information on the series, please contact Lee Marsons on lm17598@essex.ac.uk.

This post is originally appeared on the UKAJI’s blog and is reproduced here with permission and thanks.

To Prorogue or Not?

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Theodore Konstadinides, Professor of Law, University of Essex and Charilaos Nikolaidis, Lecturer in Law, University of Essex have published a new piece on the Blog of the International Journal of Constitutional Law.

The authors consider what the UK constitution permits in circumstances where Parliament is in effect prevented from carrying out its duties in holding the government into account prior to Brexit day. You can read their full post entitled ‘To Prorogue or Not: An Implied Constitutional Convention to End a “Constitutional Outrage”’ here.

Suggested citation: Theodore Konstadinides & Charilaos Nikolaidis, To Prorogue or Not: An Implied Constitutional Convention to End a ‘Constitutional Outrage’, Int’l J. Const. L. Blog, Sept. 1, 2019’.

Constitutional Pluralism in Ireland, the EU and the ECHR

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A newly published book, The Triangular Constitution: Constitutional Pluralism in Ireland, the EU and the ECHR, by Tom Flynn, lecturer in law at the University of Essex, offers a fresh account of modern European constitutionalism. It uses the Irish constitutional order to demonstrate that, right across the European Union, the national constitution can no longer be understood on its own, in isolation from the EU legal order or from the European Convention on Human Rights.

The constitution is instead triangular, with these three legal orders forming the points of a triangle, and the relationship and interactions between them forming the triangle’s sides. It takes as its starting point the theory of constitutional pluralism, which suggests that overlapping constitutional orders are not necessarily arranged ‘on top of’ each other, but that they may be arranged heterarchically or flatly, without a hierarchy of superior and subordinate constitutions.

However, it departs from conventional accounts of this theory by emphasising that we must still pay close attention to jurisdictional specificity in order to understand the norms that regulate pluralist constitutions. It shows, through application of the theory to case studies, that any attempt to extract universal principles from the jurisdictionally contingent interactions between specific legal orders is fraught with difficulty. The book is an important contribution to constitutional theory in general, and constitutional pluralism in particular, and will be of great interest to scholars in the field.