The Relationship Between the Strasbourg Court and the National Courts — As Seen from the UK Supreme Court

2015 ◽  
Keyword(s):  
Supreme Court ◽  
National Courts ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Relationship

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.

REFLECTIVE LOSS IN THE UK SUPREME COURT

2020 ◽  
Vol 79 (3) ◽  
pp. 411-414
Author(s):  
Stephen Laing
Keyword(s):  
Supreme Court ◽  
Uk Supreme Court ◽  
The Uk

Micula v Romania between International Investment Law and European Law – The UK Supreme Court Judgement – the Final or the NEXT PIece of the Puzzle?

De Jure ◽  
2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Steliyana Zlateva ◽  
◽  
◽  
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
European Law ◽  
Eu Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Eu

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

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.

did not intend to legislate contrary to the ECHR. Therefore, if during the course of statutory interpretation there were two possible interpretations, one in conformity with the Convention and one not in conformity with the Convention, the interpretation in conformity with the Convention should be preferred. The House of Lords, however, was careful to stress that it should not be assumed that such an interpretation must be applied. Judicial discretion remained. 5.4.3.2 Human Rights Act 1998 The relationship between the UK and the ECHR was changed in 1998 with the incorporation of the majority of the rights in the ECHR into English law. The enforcement procedures and processes in the Convention were not incorporatedonly the majority of rights and this is potentially a problem. For example, Article 13 of the ECHR places a duty on every Member State to provide an effective remedy in national courts for infringement of the Convention. This has not been incorporated. The HRA 1998 was enacted with an ‘in force’ date for the majority of its sections of October 2000. UK citizens can now bring actions under the ECHR in English courts under domestic law. The Act sets out the Convention rights incorporated into the English legal system in Schedule 1. Consider the text of s 1, set out in Figure 5.8, below, and note the process used to lay out what is and what is not included in the Act. The long title of the Act gives an indication of the purpose of the Act. The two rights not referred to relate to Article 2: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law… and to Article 13 which requires every State to ensure that there are appropriate and effective remedies in the national courts. At the level of the ECtHR, the procedure for bringing an action is generally as follows.

2012 ◽  
pp. 137-137
Keyword(s):  
Judicial Discretion ◽  
Right To Life ◽  
National Courts ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Effective Remedy ◽  
The Uk ◽  
The Relationship ◽  
Domestic Law
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