The Factortame Litigation: death of UK Sovereignty
Jurisdiction Unresolved Executive Summary As economic crisis plagues the world today, matters of jurisdiction is on the rise. In this global economy of commerce the forum chosen or designated for the hearing of a matter can significantly change the outcome especially with regards to the available remedies. Of course, there are many practical difficulties encountered depending on the forum used. These include, location of parties; witnesses and the use of foreign languages. Consequently, parties increasingly lock horns over which court should hear their dispute. In England, there are two multifarious jurisdictional regimes, namely, the common law and European Union Law. These two regimes are like 'oil and water'. Their laws lack the thread of unity. For example, whether English courts will hear a dispute is discretionary and depends largely upon whether they, or the courts of another country, are the most appropriate forum (or "forum conveniens"). In order to make that decision, they will consider and balance the relevant factors. The European regime however is synonymous with a formula of sorts. Whereby the factors are applied in a hierarchy which ties the dispute to a particular member state. According to Article 22(1) of Regulation (EC) No 44/2001 and Article 16(1) of the Lugano Convention a dispute concerning the validity of a company which had its seat in a European
This paper will deal with the common law legal system as a legal transplant, focusing on the reception of the common law in South East Asian jurisdictions, before comparing it with that of East Asian India to analyse how the common law functions and evolv
Introduction This paper will deal with the common law legal system as a legal transplant, focusing on the reception of the common law in South East Asian jurisdictions, before comparing it with that of East Asian India to analyse how the common law functions and evolves as a legal transplant. We will start with an analysis of the historical, socio-cultural and political contexts of the respective countries, from which we can assess the extent of reception in each of these and the resultant issues that arise. Finally we will attempt to arrive at an understanding of the common law as a legal transplant, how it is beneficial and why it evolves differently in the respective countries. Legal Systems as Legal Transplants The term "legal transplants" was coined by Alan Watson to refer to "the moving of a rule... from one country to another, or from one people to another". This involves the spread of cultural items between individuals in the "continual mass borrowing... of rules" which Watson asserts is "the most fertile source of legal development". Watson's theory of legal transplants has been met with great criticism, from being "flawed" with "unconvincing" empirical evidence to "not [being] a theory at all"1. Some insist that legal transplants are impossible, as proponents of legal transplants must accept that law is simply a body of rules, and these rules are bare
Division of Powers
Westminster International University in Tashkent BA Commercial Law 2010 - 2011 To be completed by the student Student's ID number 00001271 Module name Public Law Module code UZB402 Tutor Carlos Martinez Individual assignment ( Group assignment ( Submission deadline 22.12.2010 I certify that all material in this coursework which is not my own work has been acknowledged and I am fully aware of the consequences of plagiarism. Signed For Academic Registrar use only Division of Powers Contents: Introduction: Short description of the essay. History: Short description of the origination of the doctrine. Separation of Powers in UK: Main description of the three powers and brief description of the British system. Separation of Powers in Uzbekistan: Main description of the three powers and brief description of the Uzbek system. Conclusion: Outline of the essay and short comparison of UK and Uzbekistan. Division of Powers Quote: When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. - Montesquieu Introduction: The doctrine of separation of powers is one of the most important concepts in the modern democratic government. This doctrine
Consider the view that the royal prerogative is insufficiently controlled by either Parliament or the judiciary.
In historical times the royal prerogative was regarded as the sum total of the rights ascribed to the Monarch as feudal lord paramount over the entire realm. Dicey1defines prerogative in a more contemporary sense as the "discretionary authority of the Executive", explaining that this means everything which the Monarch or her servants can do without the authority of an Act of Parliament. Few prerogatives are exercised directly by the Monarch today. While some governmental powers are conferred or defined by statute the prerogative powers of the Executive exist in virtue of customary common law. Dicey's definition of Rule of Law states, in part, that there should be no arbitrary government power. Parliamentary procedure and judicial review are forms of control which when imposed, by the Legislature and the Courts respectively, upon the Executive enable compliance with this understanding of the Rule of Law. Government is dependent upon the support of Parliament for its existence. Ministers of the Executive must account to Parliament and be responsible for their exercise of the royal prerogative. These obligations of accountability and responsibility are owed both to the Legislature and to the various parliamentary select committees. The Separation of Powers doctrine requires the Legislature to assume the responsibility to influence, constrain, and demand justification for the
How is Britain's constitution changing in the 21st century?
How is Britain's constitution changing in the 21st century? The return of Blair's Labour government in May 2001 has assured the executive that their programme of constitutional reform will persist. The late 20th century in Blair's first term as Prime Minister heralded a revolution on the constitution, which had been planned and proposed by other political parties and interest groups since the 1920s. The initial permutations on the constitution have however not been fulfilled, which I believe will being about a second wave of changes to the constitution. The nature of the British constitution is unique among those of all others in Western democracies. Its composure is unitary, flexible, unwritten and codified. How will the developments of Blair's initial legislation change the constitution, and in what kind of arenas? The umbrella of European legislation is having more of an effect on Britain, and as our ties may increasingly in the future be more united as the question of Europe's authority and subsequently a European constitution. The ECHR has also brought into question the role of the judiciary in Britain and its relationship to the legislative and executive branches of government. Unitary Britain is visibly part of an ever integrating Europe, yet is also devolving powers across the national borders to the Scottish parliament, the Welsh assembly and the northern Ireland
A federal system would be much better for the United Kingdom. Review arguments for and against this proposition.
Title: 'A federal system would be much better for the United Kingdom'. Review arguments for and against this proposition. Federalism is not a brand new idea to the United Kingdom, but the inaptitude of devolution seems to be an essential prerequisite to the adoption of a federal system by the UK. As a solution to possibly a few different 'questions' that are being encountered by the UK, the idea of a federal system sounds even more appealing. The proposal of a federal UK reflects at least two states of current affairs: the dissatisfactions with devolution in the UK and a possible response to 'questions' such as the independence of Scotland and the English (West Lothian) question. There has been much debate on whether a federal system is a better option for the UK and this paper will seek to evaluate those arguments, leading to a conclusion that the proponents of a federal UK have a stronger case. A new impetus to the idea of UK adopting federalism emerges in recent years when the increasing demand for devolution which leads to the subsequent call for independence of the constituent nations signals the prospect of a disintegration of the UK. Thus, one of the main arguments in favour of a federal UK presents federalism as an alternative to the disintegration of the UK. Federalisation of the UK would be a response to demands for independence of constituent nations, especially
Law of the British Constitution
Constitutional And Administrative Law Law of the British Constitution Michaelmas Term 2003/4 Is it the case that the current checks and balances relating to Ministers executive powers are adequate in a modern parliamentary democracy? A paper recently published by the House of Commons Public Administration Select Committee (PASC) has suggested that Royal Prerogative powers are anachronistic and that ministers acting under said powers are doing so with too few checks and balances imposed upon them. The Royal Prerogative is, in broad terms, the powers that the Monarch is able to exercise. In reality, many of these powers are exercised by Government and ministers in the name of the Crown, and have been for several hundred years. Dicey describes the Royal Prerogative as "The remaining portion of the Crown's original power"1. It is the powers that are delegated to ministers that are under the most scrutiny at present. One such power, the ability to deploy troops, and declare war, has been pertinent recently, due to the bombing of Iraq without the prior consent of Parliament, indeed. In the case of CND v Prime Minister [2003] ACD36, a case arising from this war, the Royal Prerogative was discussed insofar as whether or not UN resolution 1441 prevented the bombing of Iraq. In this case, it was decided that as the resolution was not ratified by English law, it was not
Explain the idea and function of Parliamentary Sovereignty in the UK Constitution
Public Law 1 – LW588 – Leon Taylor Explain the idea and function of Parliamentary Sovereignty in the UK Constitution The sovereignty of Parliament is the dominant characteristic of our political institutions which consists of the King, House of Lords and House of Commons acting together.[1] (This was said a long time ago, so, if adjusted today, the word King would be replaced with Queen and the meaning would still apply). By acting together, I mean, acts have to pass with consent from the Commons, Lords and the Queen. Parliament has the right to make or on unmake any law; it is the most important part of the UK constitution. Also, no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament[2]. It can be said then, that the sovereignty of Parliament is the fundamental doctrine of English constitutionalists[3] From its positive side, the principal of Parliamentary Sovereignty may be described as, “Any act of Parliament, or any part of an act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts”. Looked at from its negative side, “There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an act of Parliament, or which will be enforced by the courts in convention of an act of
The rule of law is seen as being one of the most fundamental doctrines or principles of the UK constitution.
The rule of law is seen as being one of the most fundamental doctrines or principles of the UK constitution. Indeed, Professor Jowell has described it as ‘a resilient and effective force’ behind the evolution of the United Kingdom’s constitution’.[1] Basically the rule of law can be interpreted either as philosophical or political theory. In political society, there are arguments against to the core meaning of the concept. From the above view of the rule of law by Lord Bingham, stated that the rule of law protects the individual rights against the state and to ensure the limited government power in accordance with law. This statement has obviously emphasized the liberal aspiration and individual freedoms in the concept of rule of law. However, in the UK society, there is strong disagreement as to the concept by considering Dicey’s three postulates of the rule of law. According to Lord Bingham, the above view which was stated in 2009 meant pretty much what Dicey had said in 1885. In recent years, Lord Bingham has contended that the principle of law can be broken down into eight sub-rules. In summary of his speech[2], it is ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect generally in the future and publicly administered in the courts.’[3] Lord
Both houses of Parliament suffer from serious democratic deficiencies which require urgent attention and resolution. Discuss the problems you think are being referred to in this statement. To what extent do you agree with the statement?
‘Both houses of Parliament suffer from serious democratic deficiencies which require urgent attention and resolution.’ Discuss the problems you think are being referred to in this statement. To what extent do you agree with the statement? Democracy is commonly defined by Merriam-Webster as the rule of the majority.[1] Historically, Parliament was split into two parts with the House of Lords representing the aristocracy and the House of Commons representing the working classes and everybody else with the Lords being the upper house and the Commons the more powerful lower house, yet for many years now it cannot be said that either of the houses of Parliament truly represent the rule of majority. Firstly, one of the main democratic deficiencies in Parliament is that the House of Lords is composed of 578 life peers, 91 hereditary peers and 26 senior bishops none of whom are elected and many who are only there because of having inherited seats. They are also mostly older, upper class, white males; this isn’t a true proportional representation of the British public and so it is highly undemocratic that they have the power to initiate and scrutinise Bills. For a long time there have been proposed reforms for the House of Lords and one of those has been to have an all-elected chamber[2]. The Deputy Prime Minister Nick Clegg supports this view and said: “There are a
![Prerogative powers are very important source of UK Constitution dealing with issues such as foreign affairs. There are not written down, and can only be followed in common law. All major prerogative is now regulated by conventions.[1] Despite being the Mo](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/888953/listing/888953_1.jpg)