We’re delighted to invite you to the last CLDG seminar of the year:
The Republican Core of the Case for Judicial Review
Dr Tom Hickey, Dublin City University
Tuesday 7th May, 3pm in Teaching Room 03, Old College
Dr Hickey’s article makes the case for judicial review based on the idea of freedom as non-domination. It is a democratic case for the institution, rooted in Philip Pettit’s republican account of democracy as “equally shared popular control.” It is also a legitimacy-based and non-epistemic case – it does not rely on Rawlsian/Dworkinian ideas around the special wisdom or the special virtue of judges. The article thus accounts for the main concerns of political constitutionalists. In fact, building as it does on Richard Bellamy’s insights in particular, it is itself a political constitutionalist case for judicial review. It diverges from Bellamy, however, in its conclusions about judicial power. This divergence emerges from a particular understanding of how common goods might emerge over time in a democratic society. Following Pettit, the article emphasizes a long-term perspective on that question, and suggests fluid, iterative processes towards that end; processes which account for and embrace disagreement among citizens. The article holds that non-electoral contestatory institutions play a necessary role in such processes. And it holds that there are good reasons why judicial review – and, in principle, judicial supremacy – might be understood as one such institution. These reasons are good in part because they are non-epistemic: they do not conflict with the fact of reasonable disagreement on rights questions.
We are delighted to confirm the following events at the Constitutional Law Discussion Group in March:
Constitutionalism in the Context of the International Climate Change RegimeDagmar Medeiros (PhD Candidate, University of Edinburgh)
Tuesday 12th March at 3pm, location Moot Court Room, Old College
This paper explores the topic of constitutionalism beyond the state with a focus on the presence of constitutional features in the UNFCCC. In order to do this, the paper sets out a framework of constitutional features against which the UNFCCC can be measured. This framework draws on the literature of constitutional law and constitutionalism beyond the state. In addition, the framework highlights the importance of constitutional legitimation in the context of law beyond the state. The original aspect of this paper is to relate these two bodies of literature to the UNFCCC and explore the impact of reading this treaty through a constitutional lens. The main question in this paper is: How and to what extent can the UNFCCC be read in terms of constitutionalism? What conclusions can be drawn from the answer to this question in relation to other international legal regimes?
Religious Accommodation on Both Sides of the Pond: Different Paths to a Common Norm?
Professor James Oleske, Lewis and Clark Law School
Tuesday 19th March at 3pm, location Moot Court Room, Old College
In recent years, courts in both the United Kingdom and the United States have confronted high-profile controversies pitting religious freedom claims against equality laws. These cases have highlighted some of the common challenges facing lawmakers and courts in recognizing and limiting conscience rights. Yet many of these challenges long predate the current controversies, and the two jurisdictions have travelled different constitutional, statutory, and doctrinal paths to this point. This project aims to provide a comprehensive comparison of how the law of religious accommodations and exemptions has developed in each country and it revisits a question about religious liberty that St John Robilliard posed 35 years ago: Whether “what the American constitution provides as a matter of law is found in Britain as a matter of convention.”
The Constitutional Law Discussion Group is delighted to announce the next event on Thursday 28th February, at 5.30pm in Lecture Theatre 1.264, Old College
Scotland and Brexit after the Wightman Case
Speaking on the subject will be Alyn Smith MEP, one of the litigants in Wightman and Kenneth Campbell QC, one of our research colleagues and an experienced practitioner in public law.
The event will consider the constitutional and public law impact of Wightman along with the political consequences for Scotland as we head towards the 29th March deadline.
The event will include a lively discussion – all are welcome!
The next meeting of the Constitutional Law Discussion Group will be at 15.00 on Tuesday 4th December in Room G3, 30 Buccleuch Place. Professor Graeme Orr from the University of Queensland will present on:
Horizontal Censorship: Liberties of Speech and Private Power
Liberties of socio-political expression rub up against the power of employers, advertisers, property holders and, of course, social media providers. Compared to ‘vertical censorship’, which considers how government or direct law restricts speech, horizontal censorship is an under-researched area of rapidly emerging practical significance. In it, traditional nostrums like the freedom of association – of an organisation wishing to avoid associating its ‘brand’ with speech it objects to – and freedom of speech interact in unpredictable ways with questions of power and technology. I seek to explore how such power flows from private law (contract and property particularly) and how, if at all, it is limited (eg through anti-discrimination and unfair dismissal law).
Tuesday, October 30th at 3pm in Room 3.01, 21 Buccleuch Place
The Constitutional Law Discussion Group and Edinburgh Centre for Constitutional Law are thrilled to welcome Nicholas Barber for a seminar on his recent work The Principles of Constitutionalism. The seminar will include responses from Professors Stephen Tierney, Christine Bell and Neil Walker.
In his book, N. W. Barber explores how the principles of constitutionalism structure and influence successful states.
Constitutionalism is not exclusively a mechanism to limit state powers. An attractive and satisfying account of constitutionalism, and, by derivation, of the state, can only be reached if the principles of constitutionalism are seen as interlocking parts of a broader doctrine. This holistic study of the relationship between the constitutional state and its central principles – sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society – casts light on long-standing debates over the meaning and implications of constitutionalism.
The book provides a concise introduction to constitutionalism and a detailed account of the nature and implications of each of the principles in question. It concludes with an examination of the importance of constitutional principles to the work of judges, legislators, and others involved in the operation and creation of the constitution.
Nicholas Barber’s full academic profile can be found at: https://www.law.ox.ac.uk/people/nicholas-barber
On Tuesday 10 April, 3pm, at Neil MacCormick Room, David Hume Tower, professor Michael Gordon (University of Liverpool)
will be speaking at the CLDG. The title of his presentation and abstract is as follows:
Constitution-Making in UK Courts – Constructing a ‘Shadow Constitution’?
The paper takes the case of Miller  UKSC 5 as a starting point to consider potential changes in the way the UK courts are now using constitutional ideas. First, it will explore the nature of the changing use of ‘the constitutional’ in the UK courts, by reference to the range and the effects of modern judicial engagement with ideas of constitutional statutes, constitutional values and constitutional principles. Second, the paper will explore the implications of this ‘constitutionalisation’ of the UK constitution, and the potential problems of authenticity, legitimacy, and openness which it generates. Third, and in light of the problems identified, the paper will attempt to outline a framework for understanding and evaluating the changing use of judicial constitutional rhetoric. This framework is found in the idea of a ‘shadow constitution’, which stands not as an alternative to any ‘real’ constitution, but provides an analytical concept which better exposes the deficiencies of the contemporary constitution-making endeavours of the UK courts. The idea of a ‘shadow constitution’ also creates space to understand both the appeal and the limitations of a constitutional model which, ultimately, it must be up to citizens to embrace or reject.
On Tuesday 27 March, at 3pm, Neil MacCormick Room, David Hume Tower, Dr Erika Arban (Melbourne University) will give a seminar entitled “Theorizing socio-economic asymmetries in Federal Systems”.
Professor Iain Cameron (Uppsala University), will speak on “Oversight of signals intelligence agencies: human rights and other problems”
Date: Thursday 1 March, 1.15pm
Venue: Lecture Theatre 2, 7 Bristo Square
Chris Jones (University of Edinburgh), co-convenor of the Constitutional Law Discussion Group, will be presenting his work in progress The Legal Personality of Political Parties.
Date: Tuesday 30 January, 3pm
Venue: Neil MacCormick Room, David Hume Tower
This paper forms part of a PhD research project that is examining the constitutional role of political parties by focussing on the evolving legal relationships between political parties and individuals.
Political parties are an intrinsic part of British democracy, yet operate in the shadows of the constitution, only recently acquiring constitutional and legal recognition. Without a legal personality and with no consistent statutory definition, their de jure existence does not match their de facto constitutional role, which is still developing. This surprising notion runs counter to popular understanding, and indeed public experience, of political parties’ contribution to the democratic process.
In this paper I examine the development of political parties within the United Kingdom and the devolved Scottish Parliament. I further examine their legal personality, what constitutionally distinguishes them from other political actors (both institutional and individual) and the constitutional dependence on the functions of political parties. I therefore consider individual rights with respect to political parties, which leads to examining the publicness of parties as institutions and whether a solely private law based understanding remains adequate.