The End of Democracy and the Beginning of Juristocracy? Does the Supreme Court Pose an Additional Limitation to Parliamentary Sovereignty?

2015 ◽  
Author(s):  
George P. Kyprianides
Keyword(s):  
Supreme Court ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Additional Limitation

3 The Supreme Court and the Irish Free State

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Supreme Court ◽  
The State ◽  
Free State ◽  
Privy Council ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Irish Free State ◽  
The Right ◽  
The Way

This chapter considers the performance of the Irish Supreme Court during the life of the Irish Free State (1922–37). It charts the way in which the right to appeal from the Supreme Court to the Privy Council was abolished (comparing the position in other Dominions) and shows that, despite the rhetoric of Irish politicians at the time, the judges were keen to uphold the British approach to the doctrine of parliamentary sovereignty. The chapter then describes some of the emergency legislation enacted in the Free State to combat republican violence and examines how it was viewed by the Supreme Court, most notably in the very deferential (albeit split) decision in The State (Ryan) v Lennon. The chapter sums up the Court’s performance during the existence of the Irish Free State as disappointing and uninspiring.

scholarly journals Human Rights and Parliamentary Sovereignty in New Zealand

2004 ◽  
Vol 35 (2) ◽  
pp. 341 ◽  
Author(s):  
Petra Butler
Keyword(s):  
Human Rights ◽  
New Zealand ◽  
Supreme Court ◽  
Special Focus ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Court Of Appeal

The paper examines whether there was any basis for Parliament to enact section 3(2) of the Supreme Court Act 2003 in regard to human rights decisions of the Court of Appeal. The paper asks whether the Court of Appeal has indeed been "activist" in its human rights decisions. The discussion focuses on the areas where judicial activism might be suspected, firstly the filling of legislative gaps, and secondly statutory interpretation, with a special focus on implied repeal. Relevant decisions of the House of Lords under the Human Rights Act 1998 (UK) are used as a contrast to the decisions of the New Zealand Court of Appeal. The paper comes to the conclusion that the New Zealand Court of Appeal has not been activist in the area of human rights.

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

scholarly journals Tracking the Pendulum Swing on Legislative Entrenchment in New Zealand

2019 ◽  
Vol 41 (2) ◽  
pp. 207-225
Author(s):  
Timothy Shiels ◽  
Andrew Geddis
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Pendulum Swing ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Law ◽  
Near Term ◽  
Over Time ◽  
The Way

Abstract When New Zealand’s Parliament legislates to the effect that law on some particular matter may only be enacted using a mandated procedure, can the New Zealand judiciary enforce this provision against a future Parliament that fails to comply with it? Following the Supreme Court’s recent refusal to conclusively decide this question, we examine why it still remains controversial in New Zealand. We first set the issue in a wider constitutional framework, explaining how such judicial enforcement requires considering the nature of parliamentary sovereignty and the role of the courts in defining this. The way in which the matter has been addressed over time in New Zealand and elsewhere—the pendulum swing of constitutional understandings, to use the Supreme Court’s term—is then outlined. We draw on this analysis to examine why the Supreme Court felt unable to resolve the particular question of enforceability, while also raising an as-yet unexamined question as to how such enforcement implicates the statutorily guaranteed parliamentary privilege of non-interference in the internal affairs of the House. We conclude that because it is unlikely this issue will come before the courts again in the near term, continued uncertainty over the law in this area is set to continue.

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.

R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, Supreme Court

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Public Law ◽  
Government Accountability ◽  
The European Union ◽  
Advocate General ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Government ◽  
Uk Supreme Court

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, UK Supreme Court. This case concerned whether the government could advise the Queen to prorogue Parliament for a protracted period of time (c. five weeks), when significant constitutional changes were being debated (the United Kingdom's withdrawal from the European Union). The Supreme Court considered the legality of the prorogation on the basis of two constitutional principles—parliamentary sovereignty and government accountability to Parliament. The document also includes supporting commentary from author Thomas Webb.

THE RULE OF LAW, PARLIAMENTARY SOVEREIGNTY, AND A MINISTERIAL VETO OVER JUDICIAL DECISIONS

2015 ◽  
Vol 74 (3) ◽  
pp. 385-388
Author(s):  
T.R.S. Allan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Attorney General ◽  
Fundamental Principle ◽  
Basic Principles ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Straightforward Approach

R (Evans) v Attorney General [2015] UKSC 21; [2015] 2 W.L.R. 813 is a case of real constitutional interest and importance. The division of opinion within the Supreme Court reflects divergent conceptions of fundamental principle. While all the Justices affirmed the principles of parliamentary sovereignty and the rule of law, they understood them differently, resulting in disagreement about their correct reconciliation on the facts of the case. The majority of Justices achieved a real integration of these basic principles in a manner that the dissentients’ superficially more straightforward approach did not.

Malpractice & Negligence: Cal. Supreme Court Clarifies Negligence Provisions under State’s Elder Abuse Act

1999 ◽  
Vol 27 (2) ◽  
pp. 203-203
Author(s):  
Kendra Carlson
Keyword(s):  
Health Care ◽  
Supreme Court ◽  
Health Care Providers ◽  
Elder Abuse ◽  
Skilled Nursing Facility ◽  
Pressure Sores ◽  
Care Providers ◽  
Nursing Facility ◽  
Skilled Nursing ◽  
The Supreme Court

The Supreme Court of California held, in Delaney v. Baker, 82 Cal. Rptr. 2d 610 (1999), that the heightened remedies available under the Elder Abuse Act (Act), Cal. Welf. & Inst. Code, §§ 15657,15657.2 (West 1998), apply to health care providers who engage in reckless neglect of an elder adult. The court interpreted two sections of the Act: (1) section 15657, which provides for enhanced remedies for reckless neglect; and (2) section 15657.2, which limits recovery for actions based on “professional negligence.” The court held that reckless neglect is distinct from professional negligence and therefore the restrictions on remedies against health care providers for professional negligence are inapplicable.Kay Delaney sued Meadowood, a skilled nursing facility (SNF), after a resident, her mother, died. Evidence at trial indicated that Rose Wallien, the decedent, was left lying in her own urine and feces for extended periods of time and had stage I11 and IV pressure sores on her ankles, feet, and buttocks at the time of her death.

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