The Courts, Devolution, and Constitutional Review
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Cambridge Journal of International and Comparative Law Publication Copyright and open-access policy The Cambridge Journal of International The CJICL is an open-access publication gov- and Comparative Law is an open-access erned by our publishing and licensing agree- publication that is available online at ment. Any commercial use and any form of <http://www.cjicl.org.uk>. Hardcopies can republication of material in the Journal is sub- be ordered on request. Each volume consists of two or more main issues and a special is- ject to the express permission of the Editors sue examining the jurisprudence of the UK in Chief. Supreme Court. Contact information Editorial Policy Cambridge Journal of International and Com- All submissions are subject to a double-blind parative Law peer-review editorial process by our Aca- Faculty of Law, 10 West Road demic Review Board and/or our Editorial Team. CB3 9DZ, Cambridge United Kingdom Submissions The journal accepts the following types of E-mail: [email protected] manuscript: Web: http://www.cjicl.org.uk (i) Long Articles between 6,000 and 10,000 words but not exceeding 10,000 words in- Typeset in Crimson and Gentium Book Basic, cluding footnotes; distributed under the terms of the SIL Open Font (ii) Short Articles not exceeding 5,000 words including footnotes; license, available at <http://scripts.sil.org/OFL>. (iii) Case Notes not exceeding 3000 words in- cluding footnotes; and (iv) Book Reviews not exceeding 2500 words including footnotes. Please visit our website for submission dead- lines. ISSN 2050-1706 (Print) ISSN 2050-1714 (Online) © 2012 Cambridge Journal of International and Comparative Law and Contributors This volume should be cited as (2012) 1(2) C.J.I.C.L. -
Petition and Summons Procedure
Annex A The New Civil Procedure Rules – First Report Petition and Summons Procedure Discussion paper for the Rules Rewrite Committee of the Scottish Civil Justice Council Dr. Stephen Thomson 14th December 2016 1 Annex A The New Civil Procedure Rules – First Report Discussion Paper on Petition and Summons Procedure Structure of Paper 1. Research specification 3 2. Historical, legal and principled basis for the distinction 4 2.1 Overview 4 2.2 Determination of whether to commence process by petition or summons 10 2.3 Testing the distinction between the petition and summons 14 a. Petition is usually an ex parte form of originating non-contentious or non-adversarial process 15 b. Petition involves the discretionary exercise of statutory or common law powers as distinct from the application of rules of law 18 3. Difficulties caused by the distinction in present practice 28 4. Difficulties likely to be presented by the removal of the distinction 32 4.1 Risk of replacing one two-tier process with another 32 4.2 Ensuring the continued possibility of ex parte applications 36 4.3 Retaining flexibility/brevity in appropriate cases 36 4.4 Retaining the relative speed and cheapness of abbreviated/expedited process 38 5. Other jurisdictions 39 5.1 England and Wales 39 5.2 Australia 41 a. New South Wales 41 b. Victoria 43 5.3 New Zealand 44 5.4 Canada 47 a. Ontario 47 b. British Columbia 49 c. Alberta 50 6. Conclusion 51 2 Annex A The New Civil Procedure Rules – First Report 1. Research Specification I have been asked by the Rules Rewrite Committee (the “Committee”) of the Scottish Civil Justice Council (the “SCJC”), to provide historical and principled academic analysis in relation to questions arising from the proposal to merge petition and summons procedure. -
The New Civil Procedure Rules First Report
The New Civil Procedure Rules First Report May 2017 Contents Foreword ........................................................................................................................... 1 Chapter 1. Introduction .................................................................................................... 3 Background to the rules rewrite project.............................................................................. 3 The Acts ........................................................................................................................ 3 The Rules Rewrite Working Group ................................................................................. 4 The Rules Rewrite Drafting Team and implementation of the 2014 Act .......................... 5 The Rules Rewrite Project ................................................................................................. 6 The scope of the project ................................................................................................. 6 Matters out with the scope of the project ........................................................................ 8 Purpose of this report ........................................................................................................ 9 Discussion papers .......................................................................................................... 9 Engagement with the public and the professions ......................................................... 10 Chapter 2. A statement of principle ............................................................................. -
United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [AS PASSED]
United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [AS PASSED] CONTENTS Section PART 1 THE UNCRC REQUIREMENTS Meaning of “the UNCRC requirements” and related expressions 1 Meaning of “the UNCRC requirements” and related expressions 2 Meaning of references to States Parties and related expressions in the UNCRC requirements 3 Power to modify the schedule Interpretation of the UNCRC requirements 4 Interpretation of the UNCRC requirements 5 Duty to modify section 4 on ratification of the third optional protocol to the Convention PART 2 DUTIES ON PUBLIC AUTHORITIES Acts of public authorities to be compatible with the UNCRC requirements 6 Acts of public authorities to be compatible with the UNCRC requirements Remedies for unlawful acts 7 Proceedings for unlawful acts 8 Judicial remedies 8A Child’s view on effectiveness of reliefs etc. 9 Restriction on proceedings in respect of judicial acts Power for Commissioner to bring or intervene in proceedings 10 Power for Commissioner to bring or intervene in proceedings Power for Scottish Commission for Human Rights to bring or intervene in proceedings 10A Power for Scottish Commission for Human Rights to bring or intervene in proceedings Guidance on this Part 10B Guidance on this Part SP Bill 80B Session 5 (2021) ii United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill PART 3 CHILDREN’S RIGHTS SCHEME, CHILD RIGHTS AND WELLBEING IMPACT ASSESSMENTS AND REPORTING DUTIES Children’s Rights Scheme 11 Children’s Rights Scheme 12 Procedure for -
Supremacy of the Canadian Charter of Rights and Freedoms
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 1983 Supremacy of the Canadian Charter of Rights and Freedoms Peter W. Hogg Osgoode Hall Law School of York University Source Publication: Canadian Bar Review. Volume 61, Number 1 (1983), p. 69-80. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation Hogg, Peter W. "Supremacy of the Canadian Charter of Rights and Freedoms." Canadian Bar Review 61.1 (1983): 69-80. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. SUPREMACY ®F THE CANADIAN CHARTER ®F RIGHTS AND FREEDOMS PETER W. HOGG* Toronto The Canadian Charter ofRights and Freedoms is Part 1 of the Constitution Act, 1982, which is part ofthe "Constitution ofCanada" . By virtue ofsection 52(1) of the Constitution Act, 1982, the Constitution of Canada is "the supreme law of Canada", and inconsistent laws enacted by the Parliament or a Legislature are of noforce or effect. In this article the writer concludes that the Constitution Act, 1982, includingPartI (the Charter) andsection52(1) (the supremacy clause), has been validly enacted by the UnitedKingdom Parliament, and has been effectively entrenched so that its provisions can only .be amended by the new amending procedures laid down by Part V of the Constitution Act, 1982 . La Charte canadienne des droits et libertés constitue la Partie I de la Loi constitutionnelle de 1982, elle-même incorporée à la "Constitution du Canada" . -
PDF the Whole Part
Changes to legislation: There are currently no known outstanding effects for the Court of Session Act 1988, Part I. (See end of Document for details) Court of Session Act 1988 1988 CHAPTER 36 PART I CONSTITUTION AND ADMINISTRATION OF THE COURT 1 Number of judges of Court. (1) Subject to subsections (2), (3) [F1, (3A)] and (4) below, the maximum number of judges of the Court of Session (hereinafter in this Act referred to as “the Court”) shall be [F235] (2) Her Majesty may by Order in Council from time to time amend subsection (1) above so as to increase or further increase the maximum number of persons who may be appointed as judges of the Court. (3) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless a draft of the Order has been laid before [F3and approved by resolution of the Scottish Parliament.] [F4(3A) The Lord President must be consulted before any draft of an Order under this section is laid before the Parliament.] (4) No vacancy arising among the judges of the Court shall be filled unless the Secretary of State F5. .is satisfied that the state of business in the Court requires that the vacancy should be filled. (5) There shall be paid out of the Consolidated Fund any increase attributable to the provisions of this section in the sums which, under any other enactment, are payable out of that Fund. Subordinate Legislation Made P1 S. 1(2): power exercised (19.12.1991) by S.I. 1991/2884 2 Court of Session Act 1988 (c. -
The Petition in the Court of Session in Early Modern Scotland John Finlay
1 The petition in the Court of Session in early modern Scotland John Finlay School of Law, University of Glasgow, Scotland SUMMARY Petitions to Scotland’s central civil court, the Court of Session, contained common features of style despite being presented for a wide range of purposes. As well as being employed in the course of procedure in a number of litigated cases, the petition was used to obtain entry to an office, or in seeking an equitable remedy which might relieve imminent suffering. In many cases they offer detailed narratives about everyday life, commerce, politics and religion which preserve a great deal that may be of value to the legal and social historian. Some petitioners, such as the poor and vulnerable, enjoyed a privileged status entitling them to have their claims heard summarily. A number of petitions, written by lawyers in order to persuade, contain ideas about liberty, justice and reason reflecting the fact that they were addressed to a court of both law and equity. This contribution identifies the features of such petitions, attempts to classify them, and considers their wider historical significance. This article discusses eighteenth-century petitions in the Court of Session, Scotland’s central civil court. The court comprised 15 judges: 14 lords 2 ordinary and a lord president. While individual lords ordinary heard cases at first instance in the Outer House, and dealt with summary bills and evidential matters, the ‘hail [whole] fifteen’ sat collectively in the Inner House of the court to determine points reported to them for decision. They enjoyed an extensive jurisdiction as a court of first instance, and also in review of judgments made in local courts or interlocutors [decrees] made by their own lords ordinary. -
LG Seminar – Human Rights and the Supreme Court
ILG Seminar – Human Rights and the Supreme Court John Scott will cover the Supreme Court and the human rights protections of the Scotland Act, including discussion of the recent controversy involving the First Minister. This seminar will benefit anyone with an interest in human rights, constitutional matters and criminal law. HUMAN RIGHTS IN SCOTLAND PRE-SCOTLAND ACT The good start for ECHR, which I will describe soon, was made much easier because of the extremely unreceptive attitude towards ECHR pre-Scotland Act. I am thinking, in particular, of what Lord Ross said in Kaur v Lord Advocate (1981 SLT 322)- that the Convention was irrelevant in legal proceedings unless and until its provisions had been incorporated or given effect to in legislation and therefore the court was not entitled to have regard to it either as an aid to construction or otherwise. It might be thought that there was more to the Scottish approach than just barely concealed hostility. I think it is possible over the passing years to detect an underlying superiority complex. As ever, it probably didn’t help that the Convention was explicitly a European treaty. The extreme view expressed in Kaur softened over time and, even before the Scotland Act, by 1999 the Convention was being expressly considered. On the civil side in 1996 we had T Petitioner 1997 SLT 724 (re gay adoption) and on the criminal we had McLeod Petitioner 1998 SCCR 77(a decision from late 1997 which is still the leading Scottish authority concerning disclosure). L J-G - In seeking to formulate the approach of our law we may, however, look at the decisions of the Strasbourg court just as we look at the decisions of any other court of authority to see what persuasive effect they may have. -
PARLIAMENTARY COUNSEL OFFICE Contents
SHAPING THE LAW OF SCOTLAND DRAFTING MATTERS! PARLIAMENTARY COUNSEL OFFICE Contents Contents Introductory matters Foreword by the Lord Advocate, James Wolffe QC iv Why drafting matters by Andy Beattie, Chief Parliamentary Counsel vi Background viii Part 1: Drafting technique Language Plain language 2 Grammar and usage 2 Punctuation 3 Gender neutrality 3 Foreign words and Latin 3 Particular words and expressions 5 Style Conjunctions 8 Paragraphing 9 Periods of time 10 Dates 11 Numbers and symbols 11 Letter labels 13 Form and key components of Bills Form and content of Scottish Parliament Bills 14 Order of final provisions 16 Long title 17 Short title 18 Commencement provisions 19 Powers to make subordinate legislation 20 Form of subordinate legislation 23 Ancillary provision 24 Technicalities Citation of enactments 26 Cross-references 27 Definitions 28 Numbering 32 Schedules 34 i PARLIAMENTARY COUNSEL OFFICE Contents Amendments and repeals Textual amendments 36 Non-textual amendments 39 Formal headings and framework 40 Repeals 41 Specific legal expressions and terms Referring to a Bill in another Bill 43 Referring to bodies corporate 43 Referring to the Scottish Ministers (individually and collectively) 44 Mode of trial 46 Referring to ‘charges’ and ‘proceedings’ 46 Types of court 47 Part 2: Guidance on specific topics I. Arbitration Arbitration 52 II. Criminal law, justice and procedure Creating offences and penalties Structure of offence and penalty provisions 54 Formulations for creating offences 55 Giving offences names 57 Drafting -
Reconciling Parliamentary Sovereignty and Judicial Review: on the Theoretical and Historical Origins of the Israeli Legislative Override Power Rivka Weill
Hastings Constitutional Law Quarterly Volume 39 Article 4 Number 2 Winter 2011 1-1-2011 Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power Rivka Weill Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Rivka Weill, Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power, 39 Hastings Const. L.Q. 457 (2011). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol39/iss2/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Reconciling Parliamentary Sovereignty and Judicial Review: On The Theoretical and Historical Origins of the Israeli Legislative Override Power by RIVKA WEILL* Introduction It is often asserted that a formal constitution does not demand judicial review over primary legislation.' Rather, a country may conceive other mechanisms to protect the constitution from intrusion by the regular political bodies.2 The question arises whether the * Assistant Professor, Radzyner School of Law, Interdisciplinary Center (IDC). I thank Bruce Ackerman, Aharon Barak, Avihay Dorfman, David Enoch, Alon Harel, Assaf Jacob, Arthur Jacobson, Roz Myers, Amnon Reichman, Mike Siedman, Yoram Shachar and Mark Tushnet for their helpful comments on an earlier draft of the article. This article is part of a larger project titled "Sui Generis? The Hybrid Israeli Constitutional Experience" available on the Social Science Research Network since May 2009. -
Final Appellate Jurisdiction in the Scottish Legal System
Edinburgh Research Explorer Final Appellate Jurisdiction in the Scottish Legal System Citation for published version: Walker, N 2010, Final Appellate Jurisdiction in the Scottish Legal System. Scottish Government. <http://scotland.gov.uk/Resource/Doc/299388/0093334.pdf> Link: Link to publication record in Edinburgh Research Explorer Document Version: Publisher's PDF, also known as Version of record Publisher Rights Statement: ©Walker, N. (2010). Final Appellate Jurisdiction in the Scottish Legal System. Scottish Government. General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 01. Oct. 2021 FINAL APPELLATE JURISDICTION IN THE SCOTTISH LEGAL SYSTEM Crown Copyright 2010 ISBN: 978-0-7559-8213-4 Further copies are available from Eli do Rego The Scottish Government Legal System Division 2nd Floor West St Andrew’s House Edinburgh EH1 3DG 0131 244 3839 [email protected] An electronic copy of the full report including -
755 the Unbroken Supremacy of the Canadian Constitution I. Introduction
THE UNBROKEN SUPREMACY OF THE CANADIAN CONSTITUTION 755 THE UNBROKEN SUPREMACY OF THE CANADIAN CONSTITUTION BRIAN BIRD* This article revives the awareness of the heritage and inheritance of section 52(1) of the Constitution Act, 1982. It exposes the pre-1982 legal basis for constitutional judicial review in Canada and the mechanics of the transition in 1982 to an express supremacy clause. This article also challenges two popular notions in Canadian constitutional law today. The first is that the addition of section 52(1) in 1982 transformed Canada from a state governed by parliamentary supremacy into a state governed by constitutional supremacy. The second is that the Canadian judiciary became the guardian of the Canadian Constitution in 1982. Contrary to conventional wisdom, 1982 was, with respect to the supremacy of the Canadian Constitution, a moment of continuity rather than a break with the past. TABLE OF CONTENTS I. INTRODUCTION ............................................. 755 II. CANADA AND THE COLONIAL LAWS VALIDITY ACT, 1865 .............. 757 III. CANADA AND THE STATUTE OF WESTMINSTER, 1931 ................. 761 IV. A LAPSE IN SUPREMACY?..................................... 763 V. CANADA AND THE 1982 MOMENT .............................. 768 VI. DEMYSTIFYING 1982 ........................................ 770 VII. CONCLUSION .............................................. 774 I. INTRODUCTION Since 1982, the Canadian Constitution has featured an express supremacy clause. Section 52(1) of the Constitution Act, 1982 declares that the Canadian Constitution is “the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”1 Canadian courts have invoked section 52(1) since 1982 as the legal basis for invalidating unconstitutional laws enacted by legislatures in Canada.