Tag Archives: Lord Pannick

UK Parliament or Executive: which is top dog in Britain’s constitution?

The recent Brexit-related goings-on in the [2019] UK Parliament seem, in some minds at least, to have thrown up a crucial question: is Britain’s “sovereign” Parliament as important – or as sovereign – as we assume? There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’ prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive.  

The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before in a piece headlined: Parliament has no right to plot a Brexit coup.

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Lord Pannick opposes plan for Lord Chancellor to sit on judicial appointments panels

Lord Pannick has introduced an amendment to the Crime and Courts Bill that would remove a new requirement that the Lord Chancellor (Secretary of State for Justice, currently Kenneth Clarke) sit on the panel to appoint the President of the Supreme Court and Lord Chief Justice.

Lord Pannick told the House of Lords on 27 June: My Lords, in moving Amendment 117, I shall also speak to Amendments 118, 131 and 132, which address an issue of constitutional concern. The Bill would allow the Lord Chancellor to sit as a member of the appointments commission for the posts of Lord Chief Justice and president of the Supreme Court. The amendments would deny the Lord Chancellor such a role …

At present the Lord Chancellor can ask the appointments commission to think again about a proposed appointee, but the Lord Chancellor is not a member of the commission. The Constitutional Reform Act 2005 rightly recognised the need for a clearer separation of powers between the Executive and the judiciary. The change proposed by the Government would regrettably go back on that and it would have substantial disadvantages. First, it would increase the danger of political partiality in the appointment of a senior judge. I recognise, as I am sure will all noble Lords, that the present Lord Chancellor would not contemplate acting in such a manner, but even Mr Kenneth Clarke cannot continue in political life for ever. He is already above the retirement age for judges – a matter that we will be discussing later this afternoon. It would be highly undesirable to give a future Lord Chancellor the power so actively to influence the appointment of the senior judiciary.

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