Why Codify?

Britain is always tinkering with its constitution. Sometimes it talks about a more radical change: constitutional codification. Over the past few years, talk of constitutional codification has grown a little more serious. High-profile committees, centres, and scholars have spent a lot of time and energy discussing the issue. Sophisticated reports have been produced (see here and here). Articles have been written.

But I still wonder: what difference would codifying the constitution actually make?Read More

Mercy and Judicial Review in the Commonwealth

Judges in Commonwealth jurisdictions are increasingly willing to review the executive’s decisions to grant or refuse mercy (ie, decisions to grant or refuse a request for a pardon or remission of a sentence for a criminal offence). Here I want to sketch the developments and mention a few interesting differences and commonalities. I’ll focus on the Caribbean States and India, where most of the action has been.

Read More

Fetters on Prerogative Powers

Suppose you have a statutory power, which you decide to exercise in a certain way from now on, come what may. Maybe your decision takes the form of a policy. Maybe it takes the form of an agreement. Either way, a British or Canadian court would look at your decision very carefully. ‘Fetters’ on statutory powers – ie, commitments as to whether and how to use statutory powers – are lawful only under stringent conditions. Now substitute ‘the Crown’ for ‘you’ and ‘prerogative power’ for ‘statutory power’. Does anything change? Read More

The Source of the Crown’s General Administrative Powers

The Crown has statutory and prerogative powers, and many people have said it has other powers as well. The Supreme Court clearly agreed for the first time in 2013. In R (New London College) v Secretary of State for the Home Department, Lord Sumption said for the majority: ‘the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority’ (at [28]). This remark was obiter, but it is in keeping with the trend of authority over the past decade. Read More