Burns v Burns: The Villain of the Piece?

(2014) UK Supreme Court Review (Cambridge Journal of International and Comparative Law) 111., 2014

The Cambridge Law Journal, 2007

Federal Law Review

In its first 60 years the High Court showed a complete deference to English precedent, and did not of itself initiate changes to common law doctrines. The High Court took its first steps towards autonomy in common law matters only in the 1960s when it abandoned its policy of following decisions of the House of Lords, thereby ending the practice of automatically incorporating English common law developments into Australian law. It is shown that the Court acquired a willingness to overturn ‘recent’ common law rules (those of 20th century origin) after the abolition of appeals from the High Court to the Privy Council in the 1970s. The elimination of appeals from State Supreme Courts to the Privy Council in the 1980s led to a further broadening of the range of doctrines the Court was prepared to reconsider. Notably, since the 1990s, the Court has shown its willingness, in compelling circumstances, to overrule ancient common law doctrines acquired before Federation. This paper gives a de...

The Modern Law Review, 1989

The papers collected in the present volume arose from a 2009 seminar organized by the Society of Legal Scholars and the University of Birmingham, and convened at the Law Society’s Hall in Bristol, England. The seminar, “Judges and Jurists: Reflections on the House of Lords,” com- memorated the centenary of the Society; and it chiefly focused on the transition from the House of Lords, as the U.K.’s court of final appeals, to the prospects of the newly instituted United Kingdom Supreme Court. “The aim of the volume,” according to the book-jacket description, “is to reflect upon the jurisprudence of the House of Lords and to consider the prospects for judging in the new Supreme Court.” Given the aims of the Society of Legal Scholars, considerable focus is placed on the relationship between the work of judges and that of scholars of law and jurispru- dence. The book pervasively highlights the continuing voice of the scholars. Though their writings have no legal authority, the volume’s editor remarks in his Introduction that in 2009, “in six out of the seven final decisions of the House, reference was made to academic literature” (p. 2).

2018

2015

Relations between Judges and Parliament In the years following the passing of the Constitutional Reform Act 2005, the relationship between Parliament and the judiciary has undergone a structural change. The removal of the UK's highest court of appeal from the House of Lords formally separated the judges from the legislature and this has inevitably changed the institutional architecture within which judges and parliamentarians interact. But the provisions of the Act do not tell the whole story of those changes, which did not begin and end in 2005. The removal of the Law lords was a critical moment, but practices shaping relations between Parliament and judges were changing before then, and have evolved since. In this chapter, we explore how both sides understand this changing relationship. Our focus is on the ways that Parliament acts both as a guardian of judicial independence and also offers new and constructive avenues of judicial accountability. The findings set out in this chapter counterbalance the tendency of lawyers and judges to focus on the high-profile but relatively rare occasions when politicians fail to respect judges and their decisions. There will always be tensions between Parliament and the courts. Recent years have provided a number of high-profile examples: sustained wrangling over the proper scope of judicial review in human rights and national security cases, the role of the European Court of Human Rights, and the boundaries of parliamentary privilege. Decisions by courts in relation to human rights and judicial review are often points of friction between judges and politicians, but this is not our focus here. We are interested

The Modern Law Review, 2012

This note considers the Supreme Court decisions in Manchester CC v Pinnock and Hounslow LBC v Powell. It is argued that there are a number of remaining outstanding questions around proportionality, including: deference; section 89, Housing Act 1980; procedural issues;'publicness'; and the future landscape.

The European Convention on Human Rights Act 2003 can be understood as an attempt to achieve the protection of rights in this way. An obligation is imposed on public authorities to carry out their functions in accordance with Ireland’s obligations under the Convention. A procedure is provided for establishing inconsistency between legislation and the Convention. An obligation is imposed on the courts to interpret legislation in accordance with the provisions of the Constitution. However, certain gaps arise in this scheme of protection: some of these gaps arise from constitutional necessity or legislative choice; others arise from contestable judicial interpretations of the 2003 Act. Under section 5 of the 2003 Act, legislation can be declared incompatible with the Convention but, for constitutional reasons, this does not affect the continued operation of the legislation. A legislative choice has been taken to qualify the interpretative obligation in section 2 by reference to existing canons of constructions. Each of these positions limits the force of human rights protection. However, two further limitations have arisen by way of judicial interpretation. The Supreme Court has adopted a narrow view of what rules of law can be the subject of the interpretative obligation. The High Court has taken a narrow view of the remedies that can be granted for a breach of Convention rights on the part of a public authority. This Article seeks to explore the limitations on human rights protection effected by the 2003 Act. It takes issue with a number of the more restrictive approaches adopted by the courts. Ultimately, the current situation may be thought to bear out the prediction of Keane CJ, writing extra-judicially, that the substantive rights issues presented for the judiciary by the 2003 Act might be less daunting than a casual acquaintance with the legislation would suggest. That this situation has been realised partly through contestable judicial interpretations is a matter of some regret.