scholarly journals 12. The Relationship between Parliament, the Executive and the Judiciary

2019 ◽  
pp. 325-357
Author(s):  
Alison L. Young
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
Checks And Balances ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Uk ◽  
The Relationship ◽  
Traditional Understanding

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

scholarly journals Crown and Foreign acts of State Before British Courts

2019 ◽  
pp. 714-732
Author(s):  
Eirik Bjorge ◽  
Cameron Miles
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Full Picture ◽  
The Relationship ◽  
Made In

The Supreme Court of the United Kingdom undertook in Rahmatullah v. Ministry of Defence and Belhaj v. Straw to demarcate the relationship between the judiciary and the executive with respect to Crown and foreign act of state. This chapter aims to unpack Rahmatullah and Belhaj for the reader and further to use these decisions to enquire into the constitutional underpinnings of the British act of state doctrines—particularly as they pertain to the separation of powers. The chapter concludes that there exists a general uncertainty regarding the scope of the doctrines, and a lack of jurisprudential development with respect to their constitutional underpinnings. But it is undeniable that progress, however minor, has been made in these decisions. The scene has been set in Rahmatullah and Belhaj for further developments—even if litigants will still need to refer to the earlier case law in order to get the full picture.

scholarly journals The Role of the Supreme Court in a Democracy

1999 ◽  
Vol 33 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Checks And Balances ◽  
Equal Status ◽  
The Third ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Law ◽  
The Relationship

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.

Separation of Powers

2018 ◽  
pp. 77-81
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Burden Of Proof ◽  
Checks And Balances ◽  
The United Kingdom ◽  
Government Power ◽  
The Supreme Court ◽  
American Law ◽  
Role Allocation

“Separation of powers” means: - “allocation of roles,” assigning government power to appropriate officials and - “checks and balances,” creating mutually-restraining branches. As the Supreme Court of the United Kingdom recognized in 2017 in the context of Brexit, British judges from the sixteenth century onwards enforced the concept of role allocation in many legal situations, including ones invalidating royal actions. The idea passed smoothly, almost silently, into American law. Specifically, the role of the Crown was such that, as a consequence of the legal principal “the King can do no wrong,” the sovereign could not cause a person to suffer a legal hardship unless it was one affirmatively permitted by law. This meant that in habeas cases, the burden of proof was on the jailer to demonstrate a right to detain the prisoner, not on the latter to demonstrate a right to freedom. Post-Independence courts acted accordingly.

The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?

2020 ◽  
Vol 71 (2) ◽  
pp. 285-302
Author(s):  
Roger Masterman
Keyword(s):  
Supreme Court ◽  
Ad Hoc ◽  
Court Decisions ◽  
Privy Council ◽  
House Of Lords ◽  
Uk Supreme Court ◽  
Proportionality Test ◽  
The Uk ◽  
The Relationship

It is often claimed that the constitutional role of the UK’s apex court is enriched as a result of the experiences of the Judicial Committee of the Privy Council as interpreter of constitutions within its overseas jurisdiction. This paper considers the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system(s), further seeking to assess how far the jurisprudence of the Judicial Committee has influenced constitutional decision-making in the UK apex court. While ad hoc citation of Privy Council authorities in House of Lords/Supreme Court decisions is relatively commonplace, a post-1998 enthusiasm for reliance on Judicial Committee authority – relating to (i) a ‘generous and purposive’ approach to constitutional interpretation and (ii) supporting the developing domestic test for proportionality – quickly faded. Both areas are illustrative of a diminishing reliance on Judicial Committee authority, but reveal divergent approaches to constitutional borrowing as the UK apex court has incrementally mapped the contours of an autochthonous constitutionalism while simultaneously recognising the trans-jurisdictional qualities of the proportionality test.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

scholarly journals Do juiz herói ao tribunal democrático

2019 ◽  
Vol 4 (1) ◽  
pp. 6-30
Author(s):  
Beatriz Nunes Diógenes ◽  
Diane Espíndola
Keyword(s):  
Public Reason ◽  
Separation Of Powers ◽  
Normative Theory ◽  
Checks And Balances ◽  
Political Issues ◽  
Institutional Dynamics ◽  
The Supreme Court ◽  
Political Model ◽  
Normative Standard

RESUMO:O objetivo deste artigo foi refletir sobre o atual papel do Poder Judiciário como porta-voz do texto constitucional e ator político em constante relação conflituosa com o legislativo. Discutiu-se sobre o ativismo judicial e a atuação do Supremo Tribunal Federal como legislador moral (superego da sociedade), a ideia do juiz herói e seus desdobramentos democráticos, principalmente quanto ao sistema de freios e contrapesos. Observou-se a existência de um movimento de hiperjudicialização de questões éticas e políticas, que acarreta o desequilíbrio da dinâmica institucional do modelo democrático. Conclui-se que a atuação do Poder Judiciário não deve ser marcada pelo decisionismo disfarçado de ordem de valores, nem tampouco deve atuar como legislador moral e nem permitir a ausência de vinculação ao padrão normativo. Foi sugerido, para tanto, o aperfeiçoamento da dinâmica institucional brasileira através da interação permanente entre o judiciário e o legislativo, em busca da formação de uma teoria normativa da separação de poderes que promova um debate qualitativo consubstanciado na razão pública, que resguarde direitos e tonifique a dimensão deliberativa do modelo político em vigor. Utilizou-se, para tal reflexão, do método de pesquisa bibliográfico.ABSTRACT:The purpose of this article was to reflect on the current role of the judiciary as a spokesperson for the constitutional text and political actor in constant conflicting relationship with the legislative. It was discussed about judicial activism and the performance of the Supreme Court as moral legislator (society’s superego), the idea of the judge hero and its democratic repercussions, especially regarding the system of checks and balances. The existence of a movement of hyperjudicialization of ethical and political issues was observed, which causes the imbalance of the institutional dynamics of the democratic model. It is concluded that the performance of the judiciary should not be marked by decisionism disguised as an order of values, nor should it act as a moral legislator or allow the absence of binding to the normative standard. To this end, it was suggested that the Brazilian institutional dynamics be improved through the permanent interaction between the judiciary and the legislature, seeking the formation of a normative theory of the separation of powers that promotes a qualitative debate embodied in public reason that safeguards rights and tones the deliberative dimension of the current political model. For such reflection, the bibliographic research method was used 

O caso Enka Insaat v. Insurance Company Chubb e a questão relativa à lei aplicável à cláusula arbitral: entre a lex contractus e a Lei da Sede

2021 ◽  
Vol 3 (5) ◽  
pp. 159-194
Author(s):  
Nadia de Araujo ◽  
Caio Gomes de Freitas
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Insurance Company ◽  
Party Autonomy ◽  
The Supreme Court ◽  
The Law ◽  
The Uk ◽  
The Way

When negotiating a contract, parties usually establish that future and eventual disputes arising out and related to the performance of their obligations shall be resolved by arbitration. Such a choice, a clear expression of the principle of party autonomy, is embedded in a contractual clause, commonly referred to as arbitration agreement. The way by which the agreement is written and, to some extent, how it is construed can, and most commonly will, result in extensive and costly disputes. In the UK, the Supreme Court has recently decided a case related to the construction of an arbitration agreement, specifically to the law applicable to its validity, scope and effectiveness. According to the Court, in the absence of an express choice made by the parties, the system of law chosen to govern the substance of the contract will apply to the validity and scope of the agreement to arbitrate. Where no such choice is expressly or implied made by the parties, it will be the law of the seat of arbitration since it represents the system of law most closely connected to the agreement. This article reviews the case-law and provides some relevant excerpts of the case.

II Constitutional Jurisprudence, 5 Powers and Conflicts

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Separation Of Powers ◽  
Case Law ◽  
Constitutional Court ◽  
Reciprocal Relations ◽  
The Republic ◽  
Constitutional System ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
Principal Lines

By presenting the Court’s principal lines of case law regarding the allocation of powers in the Italian constitutional system, this chapter explores the constitutionally regulated relationships among the President, Executive, Parliament, and Judiciary. It reveals that rather than a “separation of powers” in the conventional sense of contemporary constitutional models, the Italian system is best described as instituting a set of reciprocal “relations of powers” with the Constitutional Court as the “judge of powers” that maintains and guarantees these interrelationships of constitutional actors. The chapter explores this role of the Constitutional Court in its relations with both Parliament and the President of the Republic, as well as the Court’s regulation of the relationship between the President and the Executive.

scholarly journals The ‘one man company’ after Patel v Mirza: attribution and illegality in Singularis Holdings v Daiwa Capital Markets

2020 ◽  
Vol 71 (3) ◽  
pp. OA35-OA48
Author(s):  
James C Fisher
Keyword(s):  
Supreme Court ◽  
Capital Markets ◽  
High Water ◽  
Legal Principles ◽  
Context Sensitive ◽  
House Of Lords ◽  
The Supreme Court ◽  
The One ◽  
The Uk ◽  
The Relationship

This note discusses the UK Supreme Court’s decision in Singularis Holdings v Daiwa Capital Markets in the context of other recent decisions on corporate attribution and the illegality principle in English law. It particularly considers Daiwa’s implications for the relationship between the illegality doctrine and other legal principles in the wake of Patel v Mirza. The court employed a context-sensitive, teleological approach to attribution, one consequence of which was the conclusive consignment of the House of Lords’ decision in Stone & Rolls Ltd v Moore Stephens to irrelevance. It nonetheless privileges orthodox, pre-Patelian authority in the disposal of the case. The court’s approach suggests that Patel is perceived as the high-water mark for expansive, policy-sensitive understanding of the illegality principle, and that its disruptive potential is likely to be carefully constrained in future decisions of the Supreme Court.

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