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Last Saturday, the boxing world was left stunned by Josh Taylor’s split-decision victory over Jack Catterall. Many of the world’s top fighters and pundits condemned the judges’ decision, described by Catterall’s coach as “disgusting”.

It appeared to all watching that the unified light welter-weight champion Taylor had met his match, getting outboxed by Catterall who scored the contest’s only knockdown in the eighth round. But the three judges saw it differently and they are the only spectators that matter. Two judges awarded Taylor (aka the Tartan Tornado) the win by 113-112 and, most surprisingly from the former professional boxer and seasoned judge Ian John-Lewis, 114-111.

As the dust settles from the fight, the British Boxing Board of Control (BBBC) have announced that they are investigating the scoring. Regardless of its outcome, Catterall will almost certainly remain, in his words, an “uncrowned King”. He will be left without even a right to know the reasons why the judges scored the fight in Taylor’s favour and, notably, without legal recourse against the BBBC, the independent organisation which regulates professional boxing in the UK.

This is because the law currently does not allow judicial review claims to be brought against sports governing bodies such as the BBBC. Established in the 1993 case R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan, English public law is global outlier in this regard, with New Zealand, France, Spain, Canada, South Africa, and even Ireland and Scotland, which share to a larger extent in England and Wales’s cultural perspective on sports governing bodies, all recognising a right to review sports bodies.

The reason for this is to do with the doctrine of amenability. In other words, some organisations are amenable to judicial review, whilst others are not. English law currently only allows bodies that perform public law functions to be subject to judicial review. The problem, then, is differentiating between institutions that have public law functions and those that do not.

This used to be resolved by limiting amenability to bodies whose power derived from statute (or in rarer cases the exercise of the Royal Prerogative). But the scope of amenability was expanded in R v Panel on Takeovers and Mergers, ex parte Datafin, where it was held that judicial review could be brought if “the body in question is exercising public law functions, or if the exercise of its functions have public law consequences”.

This functionalist approach saw not only the Panel on Takeovers and Mergers (then a self-regulatory body that did not derive its powers from statute), but also the Advertising Standards Authority and the Bar Council be found amenable to judicial review. So bodies governing City deals, advertising standards and lawyers were now considered to be performing a public law function. Even private companies, such as Hampshire Farmers Markets Ltd, have been found in certain circumstances to satisfy amenability. But not sports governing bodies.

Instead, in Aga Khan, the Court of Appeal appeared to return to an essentialist approach, stating that “the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body”. It held that “while the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental”. This somewhat artificial repositioning of the goal posts from ‘public’ to ‘governmental’ reflects the perception and position of sports governing bodies in society at the time. Implicitly, sports was not on the same level of public interest as business deals, advertising regulation and legal services.

The judges described how the Jockey Club functioned like a contract between the body and its members. Accordingly, the relationship was limited to the confines of contract law with members only able to bring claims when an express or implied term of that contract had been broken, without the broader rights of judicial review that demand good administration (such as procedural fairness and legitimate expectation) and can be brought by any sufficiently interested party (in the case of sports, this might include passionate fans).

To my mind, this essentialist approach misses the functional reality of these bodies. This was a concern first raised by Lord Denning in his dissenting judgment in Russell v Duke of Norfolk back in 1949. He recognised the Jockey Club’s functional reality was that it had monopoly control over the sport and therefore had the power to destroy an individual’s livelihood by taking actions such as imposing bans. Such monopolies make it impossible to freely agree to a sports governing body’s rules, as one does in a contract. These rules are imposed like a “legislative code” as Denning later put it in Enderby Town FC v Football Association Ltd.

If the functional reality of sports governing bodies was not convincing enough in 1949, the expansion of government sports policy provides convincing evidence of the public and governmental nature of sports bodies today. Over the past couple of decades, these bodies have collaborated with government to implement policies on doping, corruption and gambling. The courts have also acted in a deferential way to bodies governing contact sports, granting them the responsibility for regulating what might otherwise fall under criminal jurisdiction.

Furthermore, as governments aim to tackle public health issues such as obesity and seek to enable national teams to perform well at large sports events such as the World Cup or the Olympics, sport has come to be viewed as socially beneficial and important to government objectives. Indeed, we have already seen this involvement of politics in sport in Catterall’s situation, with the Speaker of the House of Commons Lindsay Hoyle swapping castigating MPs for rebuking boxing judges, when he indicated that he would raise the conclusion of Saturday’s world title bout with the Minister for Sport.

If it were held that BBBC were amenable to judicial review, Catterall’s misfortune would likely remain unchanged beyond perhaps earning the right to receive reasons. However, the BBBC would be subjected to higher standards that aim at promoting transparency, accountability and good administration. This would go some way to appeasing the many longstanding critics’ complaints following several eyebrow-raising decisions overseen by the professional boxing regulator. Catterall’s fight may be over, but sports governing bodies should be wary of public law’s rumble in the jungle.

Will Holmes is a future trainee solicitor at a magic circle law firm.

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A legal challenge claiming the Conservatives’ deal with the Democratic Unionist Party (DUP) breaches the Good Friday Agreement (GFA) and the Bribery Act 2010 has not made it past its first hearing. It seems the courts were unwilling to get involved with what was, let’s face it, a case of inherently political subject matter.

The case, spearheaded by Green Party politician Ciaran McClean, sought to challenge what the claimant called the “votes for money” Tory/DUP agreement in the Divisional Court.

Readers will recall in the weeks following the 8 June snap election result, the DUP signed a deal to form a majority government with the Conservatives. As part of that deal, the DUP gained £1 billion in funding — £33 per taxpayer — for hospitals, roads and schools in Northern Ireland in return for DUP support in key parliamentary votes. Today’s claim was issued on 10 July, just two weeks after the deal with struck.

The basis of the claim was that any agreement between May and the DUP was unlawful because it’s a violation of the rigorous impartiality demanded by the GFA and undermines British independence.

Here is a Synopsis of Tory/DUP challenge
It's crowd fundedhttps://t.co/aCre76PJxE pic.twitter.com/LbAJANGbq6

— David Greene (@LitLawyer) October 23, 2017

It’s difficult to deny GFA’s status as a crucial political building block of peace in Northern Ireland, but today Lord Justice Sales and Mr Justice Lewis simply were not convinced by McClean’s legal arguments.

Sitting in courtroom 1 of the Royal Courts of Justice, the application for permission to apply for judicial review was today refused. Sales said neither ground relied upon by McClean was “properly arguable in a court of law”.

While McClean has fallen at the first hurdle, it’s not for lack of a good lawyer. McClean instructed David Greene, senior partner at Edwin Coe LLP, to help him fight the case. As for his advocates, McClean was represented in court by Dominic Chambers QC (Maitland Chambers), John Cooper QC (25 Bedford Row) and Edward Granger (Maitland Chambers). He also managed to crowdfund more than £90,000 to take the case to court.

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The Sun has made a number of allegations against the Labour party about candidates using religion to pressure people to vote in the Stoke by-election. Thirty-one Conservative MPs, larger than the government’s majority, are being investigated for electoral fraud. The Liberal Democrats have been fined £20,000 for breaching expenses law.

With all this going on, it’s worth asking ‘what does election law say’? For those of us that don’t have around £900 for a copy Schofield’s Election Law (3rd revised edition), it can be difficult to access anything that provides even a basic overview.

Among lawyers and law students alike, election law is a confusing, and often unknown, topic. This is despite it being an essential part of our democratic society. It ensures that you can’t buy elections, bribe voters, anonymously campaign and disparage your opponent or even tamper with the ballot box.

Without it we’d still have “Rotten Boroughs” with small electorates that could be bribed or coerced into voting for whoever the landowner wished them too. This could have a significant effect on the country’s politics. In the 1831 general election, 88 of the 406 elected members of the House of Commons, or a little over 21%, were elected by constituencies with less than 50 voters. While constituencies were forced to represent a reasonable segment of the voting population by the Reform Act of 1832, there was still a complete lack of law regulating other practices, such as spending, advertising and bribery.

What we would now consider election law arrived relatively late in the United Kingdom, with the first piece of modern legislation being the Ballot Act 1872, which introduced the secret ballot and criminalised election tampering. S3 of the act criminalised the fraudulent production, supply and use of ballots papers, as well as their destruction or tampering.

The intended reduction of corruption did happen, but it was still common enough to justify the Corrupt and Illegal Practices Prevention Act 1883. This act strengthened penalties for intimidation and prevented bribery by forcing campaign spending limits and record-keeping for the first time.

This simple idea is an essential development in the UK’s democracy as it prevents people from buying elections. This might sound like an overstatement, but the United States shows that freedom to spend as you wish combined with other lax election laws can be a detriment to democracy. In 82% of Senate and 94% of House races, the candidate that spent the most money won. You can, almost literally, buy a vote in the legislator.

That is why election finance law is so important, and why we should be so worried that MPs may have filed false expenses returns.

In 1883, the act allowed for £710, around £80,000 into today’s money, to be spent for the first 2,000 voters in an election campaign. A further £40, around £4,500 in today’s money, could be spent for every 1,000 voters after that.

We’ve moved on slightly from these humble sums.

 Today the calculations are slightly more complicated. With national television adverts, the internet and radio, national limits are imposed, as well as constituency limits. This equals £30,000 multiplied by the number of constituencies the party contests in that area or £810,000 in England, £120,000 in Scotland, and £60,000 in Wales — whichever is greater. This law is contained in s79 and schedule 9 of the Political Parties, Elections and Referendums Act 2000. However, limits on individual candidates still remain in s76 of the Representation of the People Act 1983. It stands at £7,150 plus 7p for every constituent that the would-be MP is trying to represent. In by-elections this is set at a flat rate of £100,000.

This is the basis of the claim against the Conservative candidates: that they filed false claim returns to the electoral commission, having either not declared expenses or falsely declared them as part of national spending, rather than spending in individual constituencies. If this is true, it represents a deliberate and calculated attempt to buy an election, evade the law and deprive the British public of the knowledge it’s entitled to. More than this, if it is allowed to continue unchallenged it would allow us to slip into a USA style slogging match, based more on the spending than ideas or even eloquence.

There are allegations against the Labour party of an even more serious nature. The allegations centre on a text message sent to Muslim constituents that said it was their religious duty to vote Labour. The message said “Will you be able to answer for this in the Grave and on the Final Day???”. It has been attributed to Navid Hussain, a Labour activist. This violates s115(2)(a) of the Representation of the People Act 1983 as it threatens spiritual injury.

This law replaced s2 of the Corrupt and Illegal Practices Prevention Act 1883, which had almost identical wording. The protection is part of the old reforms of the late nineteenth century, and protects against this sort of disgusting and manipulative behaviour.

While the text message is abhorrent, the implication that the Labour party as an entity is responsible is simply not true. The individual may be held responsible under the act, but there is no part of the provision that automatically holds the party liable for its members’ acts. As there is no implication of conspiracy, or that Mr Hussain was acting as the candidate’s agent, the only indication of guilt is a picture of Mr Hussain standing next to Mr Corbyn. Given the thousands of photos taken with Mr Corbyn it’s hardly fair to hold him or the Labour party responsible for the action of one crass activist. This is particularly true as the election may be voided under s159 of the 1983 act, and prevents the candidate from contesting the resulting by-election.

It’s a serious act for a court to bar people from holding positions in the legislator. This happened recently in 2010, when a Labour MP made various claims about his Liberal Democrat opponent, which were proved to be false and personal attacks. This included a leaflet with a photoshopped picture of his Liberal Democrat opponent with armed police, implying heavily he was arrested. The Liberal Democrat brought a petition under s120 of the 1983 act, and had the election voided. The majority of 103, down from 3,590 previously, increased to 3,558 when a new candidate was selected by the Labour Party.

This is not the only restriction on leaflets, as well as posters. These would generally be counted as election material, which includes anything that improves the standing or electoral chances of a party or individual candidate under s85(2) of the Political Parties, Elections and Referendums Act 2000. Under s143(2) of the same act, all this material must include the name and address of the printer of the document , its promoter and any person that the material is being published on behalf of and who is not the promoter. This is a comparably recent statute, so there is little case law related to it. This means it can be difficult to interpret exactly what this means or how it will be enforced.

While election law is complicated, in some cases archaic, it is important and generally neglected. It is a vital part of the checks and balances of British democracy, which can result in people being barred from standing for elections. Any law that allows a judge to prevent someone voting in parliament should be considered academically interesting to most public lawyers, and not ignored or forgotten as it is now.

Peter Baker is graduate from Aberystwyth University. He completed the GDL at BPP University last year and is now studying the LPC.

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Due process is a legal term that is often thrown around in American television and media, but few know that it is a right originating in English law that we can still rely upon today.

Essentially meaning that individuals have a right by law to be treated fairly by the state, due process can be traced in English law back to the Magna Carta. The concept was given further clarification by King Edward in a statute enacted in 1354, which stated that no man should be punished in the manners previously mentioned, unless this was determined “by due process of law”. The Bill of Rights 1615 developed due process further.

However, come 1791 the principle of due process in the United States clearly diverged from its roots in English law.

The Fifth Amendment to the Constitution of the United States is as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This incorporated the definition established in English law into the US Constitution and also expanded it. The definition of due process includes a separate procedure for those serving in the military, the prevention of “double jeopardy” meaning a person cannot be prosecuted twice for the same offence, and the right for an individual to refrain from incriminating himself was also introduced. The 14th Amendment also contains a due process clause, ensuring that all persons have the protection of the law no matter their race.

From this point in history onwards, there is a clear divide between the definition and application of due process in England and in the US.

The US Supreme Court has held that there are two categories of due process.

The first is procedural process. This ensures that individuals have their rights protected by a fair and impartial procedure. The second is substantive due process. This is the doctrine that gives the court the ability to strike down any legislation that is determined to be unconstitutional.

This is one of the fundamental differences in the organisation of the state of the US and the UK. The courts in the US are not restrained by legislation that does not comply with principles of the constitution, whereas in the UK the courts are bound to follow the statutes of parliament. If the UK courts set aside primary legislation, this would breach the fundamental constitutional principle of parliamentary sovereignty.

However, this does not mean UK individuals cannot challenge the state.

Procedural fairness is a right that has been established by the courts as being protected by the common law. To maintain procedural fairness, the judicial review procedure allows the courts to examine the decisions of public bodies and ensure that the correct procedure was followed in the decision-making process. This means that individuals can apply to the courts for a determination on whether a public body has acted lawfully, allowing individuals to challenge the decisions of public bodies. This was the procedure used by Gina Miller, who challenged the government’s assertion that Article 50 can be triggered by prerogative power.

There is also a right to a fair procedure given by the European Convention on Human Rights. Article 6(1) states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

However, it’s worth noting article 6(1) cannot be relied upon in areas of pure public law, only in situations where the decisions of public bodies interfere with the civil rights of an individual.

There are very few British people who know about these rights, their rights, in the way that Americans seem to. In fact, many of the population seem almost entirely unaware of their rights (which may explain some of the reaction to the recent Brexit Supreme Court judgment).

But even those who claim to know their rights likely could not specifically name them when asked, or would name rights accorded in the US that they have learned from the media. Perhaps this could partially be explained by the Americanisation of our culture.

One other explanation for this discrepancy is the differing levels of education on due process in the two countries. In the US, due process has become a constitutional right that citizens were informed about and could rely upon. The US constitution accords rights to its citizens very clearly. In many states, the constitution is taught in schools, so people are given a greater understanding of their rights at an early age.

Perhaps if constitutional principles were taught in British schools, Brits would have better general knowledge about the rights individuals could rely upon. However, this would be a difficult thing to achieve as the education system is overstretched, and our unwritten constitution is complex and would be more difficult to explain than the more explicit US constitution.

It could also be suggested that there is an underlying difference in social attitudes towards constitutional rights in the UK and across the pond. When I asked an American friend why everyone in the US seemed to know about their rights, she did not attribute it to education, but to the fact that historically those civil rights were fought for, as was their independence. She suggested that Americans know their rights because they are proud of them, and believe that they should be fought for and protected.

There does seem to be a rising attitude in the UK that we should be able to rely upon our rights more. However, until those who cry “I know my rights” fully understand which rights they can rely upon, they will not be able to exercise their rights effectively.

Isabella Evans is a final year law student at Edge Hill University.

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With Lord Chancellor Liz Truss occupied by a developing prison crisis, her predecessor, Michael Gove, has waded into the the row over the right of newspapers to label top judges ‘ENEMIES OF THE PEOPLE’ and other nasty things.

Fresh off a plane from the US, where he has been covering the US election for The Times, relative Twitter newbie Gove has had this to say on the matter this evening…

1/after a fascinating four days in US it's great to be back home – and have the chance to reflect on our constitutional debate

— Michael Gove (@michaelgove) November 7, 2016

2/ The first thing to note is that judicial independence is critical to the rule of law and any proper democracy

— Michael Gove (@michaelgove) November 7, 2016

3/the high court judges who've ruled on Article 50 are brilliant, thoughtful, wise and decent men – their judgment deserves respect

— Michael Gove (@michaelgove) November 7, 2016

4/ Good people can differ on their reasoning and conclusion – but I find much of it persuasive

— Michael Gove (@michaelgove) November 7, 2016

5/ however, even if I didn't agree with elements of their reasoning I'd personally treat the judgement of 3 brilliant men with respect

— Michael Gove (@michaelgove) November 7, 2016

6/BUT the freedom of the press is also important- some of us may object to judgements – others to headlines – but let's remember Voltaire

— Michael Gove (@michaelgove) November 7, 2016

7/a raucous, vigorous, press is just as much a guarantor of freedom as our independent judiciary – we are the land of Wilkes and Edward Coke

— Michael Gove (@michaelgove) November 7, 2016

8/I note that commentators I admire like @NickCohen4 are equating questioning of a specific High Court ruling with Nazism #GodwinsLaw

— Michael Gove (@michaelgove) November 7, 2016

9/ They exhibit the sins they attribute to others – intemperate criticism of both independent judiciary and free press is unwise

— Michael Gove (@michaelgove) November 7, 2016

10/ and many miss the real story – we have a independent judges – ECJ is political court – we in UK have free press – EU – not so much

— Michael Gove (@michaelgove) November 7, 2016

11/ people who object to what they damn as irrational tabloid media often deploy visceral and instinctive arguments themselves

— Michael Gove (@michaelgove) November 7, 2016

12/The future of our nation masters. I'm passionate about one destiny. But I care even more about respecting different views and values

— Michael Gove (@michaelgove) November 7, 2016

Well, it certainly beats Truss’s statement.

Statement from the Lord Chancellor Elizabeth Truss pic.twitter.com/zUpnoumFi2

— Ministry of Justice (@MoJGovUK) November 5, 2016

But in terms of substance, it doesn’t really go beyond what Theresa May said yesterday about “valuing both the independence of our judiciary [and] the freedom of our press”.

Missing your old job, are you Michael?

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An extraordinary weekend has seen the legal profession unite to force Lord Chancellor Liz Truss to back the Brexit judges — only for her limp statement to cause Prime Minister Theresa May to intervene

The saga began on Friday with various lawyers using Twitter to ask why Truss had failed to condemn that morning’s tabloid newspaper attacks on the three top judges who ruled against the government in Thursday’s Brexit legal challenge hearing.

During the course of the afternoon Guardian columnist Polly Toynee asked “Where’s Liz Truss?” and reminded her followers that the Justice Secretary’s constitutional role “requires her to uphold rule of law and defend judiciary”. A hashtag soon formed.

#WhereIsLizTruss? https://t.co/mkHV4JflkL

— J. W. Dent (@dentjw) November 4, 2016

By Saturday morning the #WhereisLizTruss had been wholeheartedly seized upon by the legal Twitterati.

Surely it shouldn't be necessary for the Lord Chancellor to have to be shamed into defending judicial independence? #wheresliztruss

— Sean Jones (@seanjonesqc) November 5, 2016

And by lunchtime it was viral as celebs got involved.

#whereisLizTruss? Her failure to defend the judiciary shames her office.

— Rory Bremner (@rorybremner) November 5, 2016

Scenting blood, the Bar Council — whose members were by coincidence convened in a meeting on Saturday — scrambled together to pass a quick resolution “calling on the Lord Chancellor to condemn the recent attacks on the judiciary as a matter of urgency” as it expressed “regret” at “the lack of public statement”.

At 1:30pm the press release appeared as the lead story on the BBC News website.

Bar Council urges Liz Truss to condemn attacks on judges – https://t.co/PCaaEQkTfo pic.twitter.com/VCEkvr0sic

— The Bar Council (@thebarcouncil) November 5, 2016

And, hey presto, just before quarter past two the Ministry of Justice tweeted this statement from Truss.

Statement from the Lord Chancellor Elizabeth Truss pic.twitter.com/zUpnoumFi2

— Ministry of Justice (@MoJGovUK) November 5, 2016

Then things got really interesting…

Rather than accept Truss’s words, Bar Council chair Chantal-Aimee Doerries QC told the BBC she would have expected the Lord Chancellor to make a clearer statement on the “unprecedented” attack which “undermines the rule of law in this country”.

Other lawyers went further, albeit under the cloak of pseudonyms…

Weaker than a gnat's piss, from @trussliz https://t.co/hTiQuzL2U5

— DefenceGirl (@DefenceGirl) November 5, 2016

Cowardly, mealy-mouthed, vapid non-comment by a paperweight politician wildly out of her depth. Liz Truss might as well have stayed silent. pic.twitter.com/C4iaoRvSXW

— The Secret Barrister (@BarristerSecret) November 5, 2016

The day ended, slightly surreally, with the crime writer son of the late top judge and constitutional law guru Lord Bingham revealing on his blog that his dad would have “used the word ‘fuck’ quite a lot more” in relation to Truss’s handling of the situation.

Things settled down on Sunday as the potential seriousness of the rift between the judiciary and the government perhaps gave lawyers cause to reflect.

One of the calmer heads throughout the weekend has been legal commentator and honorary QC Joshua Rozenberg, who noted on Facebook that while he believed the Brexit judges had reached the right decision, he had previously “thought the claimants might not win because the judges might be wary of attracting opprobrium, fearing the damage it would cause to public confidence in the judiciary”.

Rozenberg added:

I also think it’s tremendously important for the judges to maintain public confidence. If that goes we’re all lost.

Doubtless aware of this danger, Theresa May entered the debate on Sunday evening to back the judiciary (and the tabloids), commenting in a statement:

I believe in and value the independence of our judiciary. I also value the freedom of our press. I think these both underpin our democracy and they are important. Of course the judges will look at the legal arguments. We think we have strong legal arguments and we will be taking those arguments to the Supreme Court.

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The new Lord Chancellor will press ahead with plans to ditch the Human Rights Act (HRA), dashing hopes that the controversial piece of legislation could win a last gasp reprieve.

In the wake of the nation’s vote in June to leave the European Union, there had been speculation that the Tory manifesto pledge to replace the HRA with a UK Bill of Rights could end up falling by the wayside.

But responding to a question about the pledge this morning on Radio 4’s Today Programme, Liz Truss said:

We are committed to that. It is a manifesto pledge. We are looking very closely at the details but we have a manifesto pledge to deliver that.

Truss’ comments are significant in that they scotch a rumour reported by The Times earlier this month that new Prime Minster Theresa May told Truss to re-look at plans by her predecessor, Michael Gove, for a Bill or Rights.

The gist of the gossip seemed that be that amid all the other important legal things that would need doing more urgently to exit Britain from the EU, the HRA would have to wait. However, others have since suggested that May felt that Gove’s plan didn’t go far enough, with a concession that Britain would remain signed up to the European Court of Human Rights apparently particularly bugging her.

Truss, who is an accountant rather than a lawyer, became Lord Chancellor last month. Constitutional law obsessives can listen to her precise words regarding the HRA here (from 2:18).

The post We’re still scrapping the Human Rights Act, says Liz Truss appeared first on Legal Cheek.

Some of London’s leading public and EU law specialists are launching a last gasp legal bid to preserve Britain’s European Union membership following the vote to leave in last month’s referendum.

Hotshot solicitors and barristers from Mishcon de Reya, Blackstone, Matrix and Monckton Chambers have formed a dream team to argue that the decision to trigger Article 50 of the Treaty of European Union — the legal process for withdrawal from the EU — rests with parliament under the UK’s unwritten constitution.

The group — which is made up of Mishcon partner Kasra Nouroozi, Blackstone’s David Pannick QC and Tom Hickman, Matrix’s Rhodri Thompson QC and Monckton’s Anneli Howard — is being instructed by several unnamed businesses. It will go head to head with the government, which argues that it has authority to push the Article 50 button in the wake of the referendum result.

In a statement issued on Sunday evening, Nouroozi explained:

We must ensure that the Government follows the correct process to have legal certainty and protect the UK Constitution and the sovereignty of Parliament in these unprecedented circumstances. The result of the Referendum is not in doubt, but we need a process that follows UK law to enact it. The outcome of the Referendum itself is not legally binding and for the current or future Prime Minister to invoke Article 50 without the approval of Parliament is unlawful.

He continued:

We must make sure this is done properly for the benefit of all UK citizens. Article 50 simply cannot be invoked without a full debate and vote in Parliament. Everyone in Britain needs the Government to apply the correct constitutional process and allow Parliament to fulfil its democratic duty which is to take into account the results of the Referendum along with other factors and make the ultimate decision.

Nouroozi’s words echo the position outlined by Blackstone’s Pannick in a recent article for The Times (£) newspaper. Hickman has also written about the constitutional issues surrounding Brexit in a widely read blog post.

With the Tory leadership candidates split on when to activate Article 50 — Theresa May and Michael Gove want to hold off until next year, but Andrea Leadsom and Liam Fox are keen to start formal exit negotiations in autumn — the legal challenge might have a major role to play in the Brexit saga.

Could the lawyers save the day?

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Much like the decision in R (Fox) v Secretary of State for Education, this article was a long time coming.

I had originally planned to write a piece on Mr Justice Warby’s decision on the government’s new religious studies lessons content just a month after the judgment was handed down on the 25 November 2015. Likewise, claimant Kate Bielby noted after the decision that:

It is long past time that the beliefs of the non-religious were treated on an equal footing with religions in the school curriculum.

The facts

Brenda Hale, who Legal Cheek has fondly styled the Beyoncé of the legal world, once wrote that, in considering claims for judicial review, it is critical to distinguish between “busybodies and champions” — in other words between those who are filibustering and delaying perfectly lawful action and those who have a legitimate grievance. To this end, potential claimants must jump through a number of legal hoops before they can raise a claim.

The British Humanist Foundation (BHA) stumbled at the first. The foundation was found to lack standing, meaning that it did not have a ‘sufficient interest’ in the matter at hand. Granted standing were three parents and their children, all of whom claimed that their upcoming GCSEs would be affected by new subject content distributed by the Education Secretary, Nicky Morgan, on 12 February 2015. She coupled it with the following assertion which, they argued, was wrong in law:

By setting out the range of subject content and areas of study for GCSE specifications in religious studies, the subject content is consistent with the requirements for the statutory provision of religious education in current legislation as it applies to different types of school (emphasis in the judgment)

The parents’ principal complaint rested with the claim that the subject content for religious studies (RS) was compliant with statute law. They cited the Human Rights Act 1998 (HRA), which obliges public bodies in the UK to take into account the European Convention on Human Rights when making decisions. Article 9 of the convention provides that everyone is entitled to hold and manifest their own religious beliefs, while article 2 of the first protocol enshrines the right to education.

In disputing the human rights compliance of the subject content, the authors of the claim explained that it is broken into two parts: the first mandates that schools use at least 50% of their RS teaching time — with an option to increase this to 75% — to teach children about two religions. For the remaining 25-50%, teachers would have a variety of options which Warby found were heavily weighted in favour of religious studies, largely excluding non-religious worldviews such as humanism.

The decision

Mr Justice Warby dismissed the respondent’s submission that much of the control over the eventual syllabus was devolved to local authorities and the schools themselves, citing two decisions of the European Court of Human Rights. Both, (here and here) stressed that:

[While] abuses can occur as to the manner in which the provisions are applied by a given school or teacher… the competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgement or misplaced proselytism.

As an aside, Paul Greatorex of 11KBW noted that there was no assessment of s2 of the HRA and to what extent Strasbourg’s judgments should be followed — an issue recently discussed at length by the Supreme Court.

In any event, the above passage is so steeped in common sense as to be irresistible. Clearly the words of the education minister will be influential and subject content distributed across the country even more so. As such, the minister has a duty to ensure that her words comply with the UK’s legal obligation to ensure plurality in religious education.

Given that the subject content could be used to create a syllabus entirely around religion, Warby J came to the conclusion that the Education Secretary’s bold assertion of legislative compliance was materially misleading and “encourage[d] others to act unlawfully”. The appeal was allowed.

Some comment

Busybodies or champions?

In my view, these claimants were certainly the latter. This case stands as a victory for plurality in the education system. It has placed the onus on the government to take affirmative action to protect the rights of the non-religious and it feeds into a broader narrative concerning the rights of those holding non-religious worldviews living in an ostensibly religious nation. In the same connection, Lady Justice Butler-Sloss recently chaired the Commission on Religion and Belief in British Public Life. Their final report, released last year, states the need to teach children about non-religious world-views and “the realities of present [day] society”. This fits with the recent British Election Study, which showed that 44.7% of us are now non-religious.

Unfortunately, in spite of the foregoing, the Department for Education’s response to both the report and Warby J’s decision has been underwhelming.

An article in The Express quoted a source close to the Education Secretary as saying that:

Anyone who thinks [Nicky Morgan] is going to pay any attention to [the report] is sorely misguided.

Perhaps indicative of the truth of this anonymous source, the department opined in the wake of the Fox decision that they “consider… the judgment to have no impact on any aspect of its policy in relation to the [religious studies] curriculum”, a statement described by the chief executive of the BHA as “not only obtuse” but liable to lead “teachers into breaches of the law”.

Education is critical and ignorance of the views of others is a bud which should be nipped as soon as possible. It is therefore right that children learn about views other than their own at a young age. Given the sheer number of people in Britain who now say they lack religious conviction — and in light of the UK’s international obligations — should ‘the views of others’ not be inclusive of non-religious worldviews too?

In my opinion, echoing the sentiments of Kate Bielby and the commission’s final report, it is high time that the school syllabus reflected the reality of present day society.

Ryan Dowding is studying for his masters in International Human Rights Law at the University of Sussex, having graduated with an LLB from the same university.

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Common law and civil law are the two main legal systems operating across the globe.

These systems are inherently separate and distinct. Classically, case law is the principle source of law in the common law system, and statutory law the one of the civil law system. Most people think judicial activism is an attribute of the common law, while civil law judges are more passive.

But the dividing line is not so clear anymore — many factors have participated in reducing these differences, leading to their convergence.

Characteristics of the two systems

The majority of English-speaking countries practise common law, such as England, the United States and Hong Kong. Civil law is practised by the majority of European countries and South American countries as well as by China.

Civil law’s most prevalent feature is its rule-based nature: that the law’s core principles are codified. However, civil law countries are now adopting more of a case law-heavy approach. For example, all French codes contain multiple case law references under each statute to explain the meaning of its wording. French jurist Portalis famously said in a preliminary speech made during the presentation of the Civil Code Project in 1827:

The function of the law is to fix, in broad outline, the general maxims of justice, to establish principles rich in suggestiveness, and not to descend into details.

Some terms employed in the French Civil Code are out-dated (it was first published in 1804 after all), and are too short to be used properly. For instance, theft is described by Article 311-1 of the French Criminal Code as “fraudulently taking something from someone”. Such formulation doesn’t specify whether the offence covers theft of material goods only or also that of immaterial ones. Recently, the Court of Cassation (France’s highest court) ruled that an employee who stole information from his employer’s computer committed a theft. This decision was published and thus proclaimed as a principle. Consequently, case law helps to fill the gaps left by broad statutes.

Another example is Article L711-3 of the French Intellectual Property Code, which asserts that trademarks should not be contrary to morality. As morality evolves with time, judges have to interpret and develop the scope of morality.

And many common law countries are now codifying their law. For example, Hong Kong adopted the Supply of Services Ordinance stating that if parties to an agreement were silent about the price then the buyer must pay a reasonable price. French law also stands for this principle concerning the supply of services.

Hong Kong has also adopted the Misrepresentation Ordinance under which the representator is liable for a negligent misrepresentation. Even though some case law already covered the liability of the representator before the enactment of this ordinance, lawyers will most likely base their arguments on the newer Ordinance because the earlier cases covered only fraudulent misrepresentation or negligent misrepresentation, while the Ordinance covers negligent misrepresentation as if it was fraudulent misrepresentation, allowing for a recovery of all the losses.

Institutions

Stare decisis is the principle according to which lower courts are bound by higher courts’ decisions. This is supposed to be strictly followed by common law judges. However, they apply it with flexibility, because — as Zweigert and Kotz explain — they won’t follow a decision that seems unsatisfactory because the ratio decidendi doesn’t cover the instant dispute.

A judge will also be likely to overrule an earlier precedent to meet “the needs and interest of the times”. Take the MacPherson case where English judges overturned the doctrine holding a manufacturer “liable to persons other than his immediate buyer for injuries caused as the foreseeable result of his negligence” only if the goods were inherently dangerous. This overruling was justified once again by social propositions.

So it seems the differences between the two systems are more about the form than the substance — at least when compared to other legal systems such as Islamic law that relies on the law of God — as civil law and common law have similar purposes. This convergence serves a more harmonised international integration and provides for successful treaties between countries of different legal systems, such as the European Convention on Human Rights.

Katia Beider is a law student at the Chinese University of Hong Kong.

Sources

Melvin, E, The nature of the Common Law, (Harvard, 1991)

Merryman, J, “On the convergence and divergence of the Civil Law and Common Law”, Stanford Journal of International Law, 1981

Zweigert and Kotz, An introduction to Comparative Law, 3d edition, 1998

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The separation of powers is no doubt a vital component of public law theory, but there’s ever increasing debate about how important it actually is in practice.

There are commentators out there that assert — with little controversy — that the rule of law is an absolutely necessary characteristic of democracy. In turn, they argue that for the rule of law to be effective, there must be a threefold division of power between a legislator, an executive, and an independent judiciary — what is commonly termed ‘the separation of powers’.

It’s a foolproof idea, but one that is becoming increasingly contained to abstract theories about the rule of law and its inner workings.

Throughout history, there have been various attempts to define what we mean by the rule of law. One of the first printed appearances of the term comes from Rutherford in 1644 in his argument against the divine right of kings, but credit for the term’s popularisation is generally attributed to Dicey.

Dicey gave three meanings to the rule of law. The first, he said, was that “no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land”. The second was that “no man is above the law”, and that every man be subject “to the jurisdiction of the ordinary tribunals”. On this point, Lord Bingham has given this example:

If you maltreat a penguin in London Zoo, you do not escape prosecution because you are the Archbishop of Canterbury… There is no special law or court which deals with archbishops… the same law, administered in the same courts, applies to them as to everyone else.

Dicey’s third meaning was one he described as a “special attribute of English institutions”, and arises out of “judicial decisions determining the rights of private persons in particular cases brought before the courts”.

It is this third meaning that has attracted the most criticism, the first two being relatively easy to accept as an adequate exposition of the rule of law. This criticism arises out of the fact it is no longer as true as it perhaps was in Dicey’s time; both the incorporation of the European Convention on Human Rights into English law and the increased use of statute to define the relationship between citizen and state in the UK have resulted in the diminishment of the judiciary’s ability to define the rights of individuals.

While Dicey’s exposition is uncontroversial, the manner in which the term is used today manifests a vagueness ripe for greater debate, so much so that it is generally now only used to describe the positive aspects of any political system, with Finnis describing it as “the name commonly given to the state of affairs in which a legal system is legally in good shape”. Lord Steyn, agreeing, has argued that the rule of law “enforces minimum standards of fairness, both substantive and procedural”, but we’re not all too sure what these minimum standards are.

It is the lack of an authoritative definition that makes it increasingly easy to dismiss the rule of law as meaningless verbiage. Nevertheless, given the extent to which this concept proves exceedingly elusive, and in order not to compound the vagueness further, let’s proceed assuming that the rule of law embodies the meanings Dicey attributes to it.

The separation of powers is also a vague doctrine, and one that has attracted — in the words of Allison — unparalleled “damning and repeated criticism”.

The principle was first introduced by the French constitutional theorist Montesquieu in 1748. According to him, an ideal state should be divided into three distinct parts: the legislature, the executive, and the judiciary, each of them serving a separate function and not impinging upon that of another. He argued this would allow power to be balanced and enable each part to exercise oversight over the others in order that no part overreaches the limits of its intended power.

The institutions of the UK do not strictly embody Montesquieu’s principle. It is difficult to see how the powers of government in the UK can be truly separated in a system under which ultimate legal authority is said to be placed in one institution: parliament (in contrast with the constitutional approach of most other nations).

It is often argued that the principle of the separation of powers is of no relevance at all in the UK. The country’s constitutional rules have developed organically, and now legislature and executive membership overlap almost entirely. In 1995, Barendt went as far as to argue that the development of party discipline within the House of Commons since Dicey’s era has led to a reduction in the exercise of checks on an increasingly powerful government’s authority, that has become unconstrained by the observance of fundamental rights.

Barendt’s view is an extreme one, but it must nevertheless be said — as Masterman does — that the principle of the separation of powers within the UK “lies in a broader reading of the concept, as a dynamic and fluid explanation of how the judiciary interact with the executive and legislative branches.”

If one were to look beyond the rigidity of a strict application of the notion of separation, it would soon become clear that there does exist within the UK a division of power between three distinct institutions, and that each of the institutions retains an ability to exercise a degree of coercive power over the others. But — as Barendt has rightly argued — a lack of precision in the allocation of functions to the three institutions does not condemn the separation of powers to constitutional irrelevance within the UK. The overlap has not resulted in an inability of any one institution to exercise oversight over another. An example of this is the Legislative and Regulatory Reform Act 2006, the deliberations for which took place within a separation of powers framework under which it was argued to be the responsibility of parliament — and not of the executive acting alone — to engineer and implement wide-ranging legislative developments.

Broadly, the separation of powers is necessary for the rule of law, but not in a strict sense. It is sufficient for the principle to be embodied philosophically within the functions and institutions of the state. In the UK, there is a large degree of separation, but it is difficult to define and perpetually changing; does this deprive the UK of the rule of law?

It cannot reasonably be said that it does. Moreover, this philosophical entrenchment of the rule of law within the UK’s political landscape is embodied within the societal view of democracy, as captured well by the American judge, Justice Bradley, when he said:

England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of parliament and the people, to violate which in any material respect would produce a revolution in an hour.

This philosophical embodiment has been borne out in practice too, as while parliament may possess the power to enact outrageous or draconian legislation, if it were to do so, it — in the words of Lord Hoffman — “must squarely confront what it is doing and accept the political cost”.

Fundamentally, a normative application of the separation of powers cannot be said to be necessary for the rule of law or for democratic government. This absence of a normative approach does not result in a democratic deficit so severe that it deprives the UK of democratic government.

It might even be said that a normative application of the separation of powers would result in a greater democratic deficit. In looking to the USA, the ability of a difference in political power between the legislature and the executive regularly threatens to bring the legislative process to a standstill: an ineffective government cannot be said to be democratic. In the UK’s contemporary constitution, the separation of powers is a dynamic and multidimensional idea that is reflected in the status of, and the interactions between, the institutions of government and in the principles by which those relationships are managed.

Thus it is right to say that the separation of powers is a necessary condition for the rule of law and therefore for democratic government itself, but it is sufficient for this to exist as a philosophical ideal.

Matt Collins is University of York graduate and a City Law School GDL student.

Sources

Allison, J. The English Historical Constitution: Continuity, Change and European Effects. Cambridge: Cambridge University Press, 2007.

Barendt, E. Separation of powers and constitutional government [1995] PL 599

Bingham, T. The Rule of Law. London: Penguin Books, 2011.

Dicey, A. An introduction to the study of the law of the constitution, ninth edition. London: Macmillan, 1945 (first published 1885).

Finnis, J. Natural law and natural rights. Oxford: Oxford University Press, 1980.

Masterman, R. The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom. Cambridge: Cambridge University Press, 2010.

Montesquieu. Spirit of the Laws. France, 1748.

Rutherford, S. Lex, rex: the law and the prince, a dispute for the just prerogative of king and people, containing the reasons and causes of the defensive wars of the kingdom of Scotland, and of their expedition for the ayd and help of their brethren of England. 1644.

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A bunch of top constitutional experts have revealed that they are not convinced by the government’s planned human rights overhaul.

The House of Lords EU Justice Committee reckons that the government should think again about its plans to abolish the Human Rights Act — a piece of cornerstone legislation for law students — and replace it with the British Bill of Rights.

Though this was a headline Tory manifesto promise, the government has been slow to take action, and we’re still not really sure when the elusive British Bill of Rights will come to fruition, or if it will at all.

Next month will be the tenth anniversary of David Cameron's first call for Human Rights Act to be replaced by a "British Bill of Rights".

— David Allen Green (@DavidAllenGreen) May 8, 2016

The Committee has been hearing evidence on this issue for months from the likes of prominent EU law professor Michael Dougan and Justice Secretary Michael Gove.

Having reflected on this evidence, the Lords and Ladies have now suggested that the government’s plans aren’t very well thought out, and maybe shouldn’t go ahead after all.

This is because the Committee isn’t convinced that the British Bill of Rights will be that different from the existing Human Rights Act. Though we (still) have no draft of the proposed law, the rights are likely to be pretty similar to what we have already, so the necessity of legislative reform is unclear.

Lord Richards raised concerns about this very point in February during an evidence giving session. He reportedly said to a bumbling Gove:

I am a bit lost. You are saying yes, we agree with the convention. What on earth do you want to repeal the act for?

The Committee is also apprehensive that the reform, if it goes ahead, may damage the UK’s place in the international arena, and may lead to increased reliance on EU human rights legislation.

Furthermore, Baroness Kennedy of the Shaws, who chairs the Committee, pointed out that scrapping the Human Rights Act could unintentionally increase the UK’s European human rights law obligations, stating:

Many witnesses thought that restricting the scope of the Human Rights Act would lead to an increase in reliance on the EU Charter of Fundamental Rights in UK courts, which has stronger enforcement mechanisms. This seemed to be a perverse consequence of a Bill of Rights intended to give human rights greater UK identity.

She went on to raise concerns that Scotland and Wales’ devolved governments could block a Bill of Rights — meaning it would apply to England only, before concluding:

The more evidence we heard on this issue the more convinced we became that the government should think again about its proposals for a British Bill of Rights. The time is now right for it to do so.

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The role of religion in the law is a pretty touchy subject, and one that’s prompted polarising viewpoints and intense debate over the years.

Take Trevor Phillips, former Chair of the Equality and Human Rights Commission. In 2012, he said that people have to make a choice between religion and obeying the law. He argued that religious rules should end “at the door of the temple”, to give way to public law.

Now seems like the ideal time to bring up this topic, a topic of such taboo status. The University of Warwick’s Christian Union has recently hosted a week of events, so this seemed to me like a perfect opportunity to interrogate someone who knows what they’re talking about when it comes to religion, to see if the views expressed by Phillips carry any weight. As an atheist myself, I am perhaps not best placed to provide a religious angle, and my views could be seen to vary too much on the matter.

So I spoke to Tim Williams — who is currently on an associate scheme at an Anglican church in London — about his interpretation of Christian views in the law.

I wanted to find out about the concept of the secularisation of state. The system currently operating in France — ‘laïcité’ — differs greatly from what we see here, particularly the British response to discrimination. In Britain, prohibiting people from wearing religious signs is seen as discrimination, however in France, banning people from wearing religious signs is seen as necessary to avoid discrimination.

This is often seen by many as ‘political correctness gone overboard’ and, even as an atheist myself, I take issue with the consequences of Britain becoming an entirely secular society.

Williams’ take on the matter is this. He argued that the church’s role should not be to fight against suppression by the state. Instead, he said that in Christian narrative every person has already rebelled against God and Christians want people to realise this, but it should be the individual’s choice whether to live under God’s authority or not. He said that the church has no right to dictate the state, however problems do arise when the state takes freedom away from the church.

In terms of legal complications and clashes with religion, we discussed Dietrich Bonhoeffer, a strong Lutheran who is a key example of religious resistance to a fascist government regime. The concept of the ‘lesser of two evils’ was contemplated here, especially when looking into jurisprudence and the idea of the ‘rule of law’ — a higher and more divine law than any government can comprehend.

Bonhoeffer was part of a plot to assassinate Hitler, an obvious crime of attempted murder. However one could argue his case on grounds of morality: although his actions were not legal, they can be seen as part of this higher morality and divine law.

Williams remarked:

For society to become better, it is always a good aspect to be morally upright. The Bible represents that the world is going against God, so it becomes difficult to separate this to make it better.

When thinking about these concepts and their application to recent case law, we looked at the highly controversial case of the conjoined twins in Re A, a case that raises endless debate on justice and morality, tying together the issues of law and religion.

Here, the judges were faced with an intensely difficult moral decision about the medical treatment of two conjoined twins, Mary and Jodie. Saving Mary by separating the twins would mean the death of Jodie, but if no life would be sacrificed then this would probably lead to the death of both twins. Regardless of the decision, death would occur. From a Christian point of view, this raises a specific topic: authority.

Romans 13:1 reads as follows:

Let every person be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God.

Christians are told to submit to authority — whether it be the sovereign or the Supreme Court — however good or bad it may be; if God has allowed this, one must obey. The passage continues:

[W]hoever resists authority resists what God has appointed.

From a business aspect, an employee is most likely to listen to the advice and instruction of his CEO rather than his immediate boss in the workplace. Despite this hierarchical system, Williams demonstrated that although we must obey our immediate authority (the government), God acts as the highest possible authority, like the CEO in this scenario. Despite this, in terms of Mary and Jodie, Williams told me that although the decision made may not be seen as morally correct by all, in this sense we must follow the law and the decision it makes. We may inwardly question this, but outwardly it is right for the legal system to make this type of decision.

Obviously Williams’ viewpoint does not represent all religious point of views. There is debate between religions and between people of the same religion over subject matter as complex and taboo as this. So it’s difficult to come to any solid conclusions about the role of religion in law, and whether Britain will end up following France’s lead in secularisation. It’s something that will have to be closely monitored in the coming years, but if Williams’ words provide any reassurance, there appears to be little in the form of animosity on the horizon.

Millie Pierce is a first year law student at the University of Warwick.

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We’re not living in the 14th century anymore: the time has come to get rid of bishops in the House of Lords.

There are currently 26 Anglican bishops sitting in the upper chamber. Called “Lords Spiritual”, these clergymen read prayers at the day’s beginning, debate on issues both important and trivial, and shuffle off into the voting lobbies with their colleagues. As the Church of England website proudly proclaims, they have done so since the turn of the 14th century.

Times change. We no longer live in the 14th century and we no longer need the Lords Spiritual. What we need instead is constitutional reform.

The vast majority of peers are appointed. The Lords Spiritual are not. Five positions are staffed by “the Great Sees” — the incumbent bishops of Canterbury, York, London, Durham and Winchester. The remaining 21 are automatically filled by the most senior bishops from other English dioceses.

Though harmless on its face, this offends basic notions of democracy. Simply put, no one should be able to vote on legislation unless they have been previously vetted in some way. We want a legislature that is subject to prior checks — a body of lords whose quality is assured by procedure. Political power must be earned.

More importantly though, the modern House of Lords is a body whose members are appointed for their expertise. Their lordships and ladyships bring their own individual experiences, hard-earned knowledge and, indeed, bias to bear on the legislation of the day. Their views are diverse and the clash of arguments is designed to produce an informed decision. This synthesis of ideas is vital to the legislative process.

The Lords Spiritual are about as diverse as The Daily Mail office party — but with even fewer women. The voting of the bishops is almost always unified, only rarely is it split between the two sides of the debate.

This is unsurprising. The bishops all have chosen to commit their lives and careers to faith — their status as bishops in essence recognises their adherence to the Christian creed. It is to be expected that their views are conservative and rarely venture outside orthodox values. Their individual biases are so similar that they amount to a single, collective narrowness.

Now the argument will surely be made that the Anglican Church is still relevant because it represents English citizens and provides a spiritual voice inside the House of Lords, thereby adding to the debate.

There are two problems with this.

First, public goodwill towards the Lords Spiritual has fast evaporated. In a 2010 ICM Poll, 74% of respondents thought it was wrong for unelected bishops to automatically sit in the House of Lords. Similarly, in a 2012 YouGov Survey 58% of people stated that bishops should not be able to sit and vote in the Lords, while 65% believed that the bishops were out of touch with public opinion. The Lords Spiritual can hardly claim to be representative if their representees disapprove of their presence.

Second, it is false reasoning to say that bishops are necessary for providing spiritual insight. Religion is said to be a pervasive moral code that underpins a faithful person’s lifestyle and behavior. Why then can laymen and laywomen not contribute the same understanding of spirituality to the debate? Would that not be more representative of religion’s place in modern Britain? To say that bishops have no place in the House of Lords is not to say the same of religion — religion has its place, but it should be of the kind that everyday British people subscribe to, not the narrow doctrine of the Anglican Church leaders.

If you are wondering just how narrow that doctrine is, earlier this year a parliamentary petition to remove the Lords Spiritual from the Upper House — sparked by the Anglican Church’s decision to impose sanctions on a liberal US Church for consecrating a gay priest — has garnered over 15,000 signatures.

The offending decision was made by a council of worldwide leaders of the Anglican Church, the unfortunately named “primates”. First among their number is the Archbishop of Canterbury, Justin Welby, the foremost spokesperson for Church of England values and, Lord (Most) Spiritual — much of the current controversy is attributable to him.

However, Welby is not alone. The Lords Spiritual from York, Winchester, Chester and Peterborough have all publicly voiced their outdated views on homosexual rights (though there is not so much about this on the Church of England website). Such intolerance should have no place in our legislative process.

So what is the solution?

In short: constitutional reform. Parliament must pass a law removing the Anglican bishops from the House of Lords. In 2016, there is no need for outdated, unelected individuals in our legislative process, individuals who fail to meet the moral standards of the very people they claim to represent. While making clear that religion, through laymen, contributes to the debate, we should recognise that we have outgrown the Lords Spiritual and dispense with them accordingly. Our constitution, our democratic process and ultimately our legislation would be much the healthier for it.

Ravi Jackson is a UCL graduate and is now studying the GDL at City Law School.

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