Defamation of ‘government’: taking lessons from America?

Legal Studies ◽  
1994 ◽  
Vol 14 (2) ◽  
pp. 206-225 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Free Speech ◽  
County Council ◽  
Building Society ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Common ◽  
Inland Revenue ◽  
Constitutional Right ◽  
Silent Revolution ◽  
Judicial Recognition

The House of Lords’ decision in Derbyshire County Council v Times Newspapers Ltd has been widely welcomed as a long overdue development in the common law’s treatment of free speech issues. Eric Barendt interprets the judgment as a judicial recognition of free speech as a ‘quasi-constitutional’ right. In a more exoteric vein, a major article in the Observer bracketed the case with Factortame, Pepper v Hart, and Woolwich Building Society v Inland Revenue in suggesting that an increasingly liberal-minded judiciary was fashioning a ‘silent revolution’ against orthodox principles of Parliamentary Sovereignty.

HUMAN RIGHTS AND TAXPAYERS

1998 ◽  
Vol 57 (2) ◽  
pp. 235-273 ◽  
Author(s):  
JOHN TILEY
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Building Society ◽  
Parliamentary Sovereignty ◽  
National Body ◽  
European Court ◽  
Personal Level ◽  
Inland Revenue ◽  
Treaty Of Amsterdam ◽  
Domestic Law

Is it really worth having all this fuss and bother about the Human Rights Bill? Over the years the Convention has been interpreted to require United Kingdom courts to change their practices in various ways at the personal level, but what about protecting a person from an unjustified demand for tax? Suppose that the Inland Revenue demands tax from you which the courts later determine to be unlawful because the regulation under which the demand was made was not valid. You were not a party to that litigation but you are clearly within the ambit of the decision supplied by the courts. The Inland Revenue then persuades Parliament to deprive you of the benefit of the decision by retroactive legislation, although leaving the actual party to the litigation with the fruits of that enterprise. Is this the stuff on which the judges at Strasbourg will rush to protect the taxpayer from the State? The answer sadly is no — these judges are not going to risk embarrassing the contracting States by making rights bite where that would be expensive: National Provincial Building Society and others v. United Kingdom [1997] S.T.C. 1466. Of course these judges may fear that contracting States would reduce the powers of the court were they do so such a thing; such a fear would not be irrational since the German and UK Governments proposed that direct tax matters should be removed from the European Court of Justice in the sessions leading to the Treaty of Amsterdam. Perhaps a supra-national body is right to be cautious, but what should our own courts do? Once the Convention is incorporated into our domestic law, will our own judges feel a little more strongly about the matter and perhaps grant a declaration that the legislation is incompatible with the Convention? If they have a right to be incensed about the way in which Parliament protects the Revenue at the expense (literally) of the taxpayer, will they do something or will they just couch like lions under the throne of Parliamentary Sovereignty?

Income Tax and the Basis of Assessment of Insurance Offices.

1923 ◽  
Vol 2 (02) ◽  
pp. 93-106
Author(s):  
G. H. Recknell
Keyword(s):  
Income Tax ◽  
Financial System ◽  
House Of Lords ◽  
Inland Revenue ◽  
Constitutional Right ◽  
One Act

The first Income Tax proper was the Income Tax Act of 1799 imposed by Pitt as a more or less temporary measure intended to finance the war with France.Subsequent amending Acts were passed in 1803, 1805 and 1806. In 1816—just after Waterloo—the Tax was abolished and remained in oblivion for 26 years. In 1842 it was resuscitated by Sir Robert Peel, who was responsible for the Income Tax Act of 1842, and the Tax has remained in force ever since as a permanent and increasingly important part of our financial system. Of the Acts subsequent to 1842 the most important is the Act of 1853 when Gladstone left his mark on the Tax in several important particulars.Up till 1860 the annual Act by which the Tax is imposed was known as the Income Tax Act. From that time onwards—in order to make it more difficult for the House of Lords to exercise their constitutional right to reject money bills—the Tax, along with several others, was incorporated into one Act called the Customs and Inland Revenue Act. In 1894 the title was changed to the Finance Act, by which name it has been known ever since.

scholarly journals Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

2021 ◽  
Author(s):  
◽  
Bernadette Sangmeister
Keyword(s):  
Judicial Review ◽  
Public Reason ◽  
Common Law ◽  
Theoretical Models ◽  
Point Of View ◽  
Moral Ideal ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Common ◽  
The Uk

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

scholarly journals Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

2021 ◽  
Author(s):  
◽  
Bernadette Sangmeister
Keyword(s):  
Judicial Review ◽  
Public Reason ◽  
Common Law ◽  
Theoretical Models ◽  
Point Of View ◽  
Moral Ideal ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Common ◽  
The Uk

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

The Dynamic Free Speech Clause

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Constitutional Rights ◽  
Relational Dynamics ◽  
Free Exercise ◽  
Second Amendment ◽  
The Press ◽  
The Common ◽  
Rights Discourse ◽  
The Right ◽  
Speech Clause

This book examines the relational dynamics between the U.S. Constitution’s Free Speech Clause and other constitutional rights. The free speech guarantee has intersected with a variety of other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. Free speech principles and doctrines have facilitated the recognition and effective exercise of constitutional rights, including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has dominated rights discourse and subordinated or supplanted free press, assembly, petition, and free exercise rights. Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. The book examines the common and distinctive dynamics that have brought free speech and other constitutional rights together. It assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also to tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

The Psychoanalytic Tradition in American Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Free Speech ◽  
Criminal Responsibility ◽  
The United States ◽  
The Unconscious ◽  
Judicial Decision Making ◽  
Oliver Wendell Holmes ◽  
American Law ◽  
Early Childhood Experience ◽  
The Common ◽  
Unconscious Guilt

This chapter surveys the long and important tradition of law and psychoanalysis in the United States beginning with the work of Oliver Wendell Holmes, Jr., up to the mid-twentieth century. While “tradition” may seem too strong a term for the diverse collection of psychoanalytic writings carried out by legal thinkers over the course of more than a half-century, what ties this work together is a shared recognition of the unconscious depths of the human psyche and the common questions that a psychoanalytic perspective on human behavior raises for law. As this chapter details, many early- to midcentury legal thinkers and judges turned to psychoanalytic ideas for help in addressing a broad set of concerns, including the value of free speech in a democracy, the processes of judicial decision-making, degrees of criminal responsibility, and child custody. The chapter focuses on those legal thinkers in this period whose attention was captured by the unconventional, sometimes even shocking, psychoanalytic ideas about the unconscious, guilt, free will, conflict, instinctual drives, sexuality, and early childhood experience. A study of the psychoanalytic tradition in American law is essential for understanding the vital contribution that contemporary psychoanalysis can make to law today.

scholarly journals Financial Twilight Re-Appraisal: Ending the Judicially Created Quagmire of Fiduciary Duties to Creditors

2017 ◽  
Vol 78 (2) ◽  
Author(s):  
Anil Hargovan ◽  
Timothy M. Todd
Keyword(s):  
Risk Taking ◽  
Financial Distress ◽  
The United States ◽  
Corporate Law ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Financial Interests ◽  
The Common ◽  
Corporate Rescue ◽  
Judicial Recognition

Directors owe fiduciary duties of care and loyalty to their corporations, and by extension to their shareholders. When a corporation approaches or enters insolvency, however, courts have recently found that the fiduciary duty calculus may change. Recognizing that creditors have financial interests similar to those of shareholders at or near insolvency, courts in several countries have extended fiduciary duty protection to creditors on equitable grounds. This trend has led to a state of flux and uncertainty in corporate law. Consequently, courts and commentators are battling to fully comprehend the controversial subject of director fiduciary duties to creditors in various jurisdictions. Due to this jurisprudential flux, unresolved issues include, for example, the core notion that the duty arises when the company enters into an “ill-defined sphere” known as the “zone” or “vicinity” of insolvency. The law is remarkably short of specific judicial guidance as to how directors who engage in commercial risk-taking with a view to corporate rescue should discharge their duties without harming the interests of creditors. Indeed, the debate continues even on the critical doctrinal question of whether such a duty is even needed.This Article uses corporate law in both the United States and Australia as emblematic of the real practical concerns inherent in the expansion of fiduciary duties. Consequently, the Article argues that the judicial recognition of directors’ fiduciary duties to creditors when at or near insolvency is objectionable, both from a policy and a doctrinal standpoint, and that any further attempt to develop the common law in this regard should be jettisoned in favor of reliance upon the existing, or modified, statutory regime aimed at creditor protection during times of financial distress. 

R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, in the House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Public Law ◽  
European Convention ◽  
Secretary Of State ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Home Department ◽  
The Relationship

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, House of Lords. The case considered whether the Secretary of State, and prison governors, could restrict prisoners’ access to journalists investigating alleged miscarriages of justice. In addition to the European Convention on Human Rights (ECHR) Article 10 issues this raises, Lord Hoffmann also in obiter dicta discussed the relationship between the Human Rights Act 1998, parliamentary sovereignty, and the concept of legality. The document also includes supporting commentary from author Thomas Webb.

Jackson v HM Attorney General [2005] UKHL 56, House of Lords

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Attorney General ◽  
Public Law ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Relationship

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Jackson v HM Attorney General [2005] UKHL 56, House of Lords. This case concerned the interpretation of the Parliament Acts 1911 and 1949 and the implications of this interpretation for the relationship between the Houses of Parliament. The case also contained important obiter from the House of Lords on the nature of parliamentary sovereignty. The document also includes supporting commentary from author Thomas Webb.

Sign in / Sign up

Export Citation Format

Share Document