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UK Supreme Court

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mike
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UK Supreme Court

#251648

Postby mike » September 13th, 2019, 3:05 pm

Hope this is OK here, as it is not a practical legal matter for the legal board.

And please, no Brexit arguing (!) - this is specifically about the Supreme Court.


As you will be aware, there are appeals to the UK Supreme Court regarding judgements made under English & Welsh law, Scottish law, and Northern Irish law, all being heard together next week.

As the law under these different legal juristictions is different, how does the court take the different laws into account if some are in conflict to give an overall UK verdict ?

Or will it give a verdict for each juristiction separately ?


I can't quite get my head round this one !

didds
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Re: UK Supreme Court

#251718

Postby didds » September 13th, 2019, 9:52 pm

I have come to the conclusion that they make it up as they go along.

I appreciate that is no help whatsoever and other's MMV.

didds

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Re: UK Supreme Court

#251722

Postby Lootman » September 13th, 2019, 10:01 pm

The way it works in the US is that SCOTUS operates at a higher level than both the individual states, and the executive and legislative branches of the federal government. So if a State passes a law that SCOTUS deems to be unconstitutional then that state law is rendered moot. SCOTUS can also bounce congressional laws and presidential orders.

As an example Texas still has sodomy laws on its statutes but it cannot enforce them because SCOTUS ruled against it. Many state constitutions ban same sex marriage but that is not enforceable either.

Likewise if Scotland passed a law or delivers a judgement that the UK supreme court rules to be unconstitutional then that law would not stand. Which no doubt the Scots would be upset about but then that is the price of being in a federation or union. And of course ultimately EU law can trump UK law although I am not going there :D

If you are going to call a court "supreme" then it has to trump all lower courts and jurisdictions.

AsleepInYorkshire
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Re: UK Supreme Court

#251742

Postby AsleepInYorkshire » September 14th, 2019, 12:03 am

mike wrote:Hope this is OK here, as it is not a practical legal matter for the legal board.

And please, no Brexit arguing (!) - this is specifically about the Supreme Court.


As you will be aware, there are appeals to the UK Supreme Court regarding judgements made under English & Welsh law, Scottish law, and Northern Irish law, all being heard together next week.

As the law under these different legal juristictions is different, how does the court take the different laws into account if some are in conflict to give an overall UK verdict ?

Or will it give a verdict for each juristiction separately ?


I can't quite get my head round this one !

https://en.wikipedia.org/wiki/Supreme_C ... ed_Kingdom
The United Kingdom has a doctrine of parliamentary sovereignty, so the Supreme Court is much more limited in its powers of judicial review than the constitutional or supreme courts of some other countries. It cannot overturn any primary legislation made by Parliament.

AiY

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Re: UK Supreme Court

#251744

Postby Lootman » September 14th, 2019, 12:15 am

AsleepInYorkshire wrote:The United Kingdom has a doctrine of parliamentary sovereignty, so the Supreme Court is much more limited in its powers of judicial review than the constitutional or supreme courts of some other countries. It cannot overturn any primary legislation made by Parliament

Then it is useless. When civil rights were passed in the US in the 1960's, 75% of voters opposed that. At least half the point of a high court is to protect minorities against the tyranny of the majority.

Kantwebefriends
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Re: UK Supreme Court

#252749

Postby Kantwebefriends » September 19th, 2019, 7:19 pm

Since the Supreme Court is a Blair innovation it has not, of course, been thought through. One of the newspapers told me that the Court of Session in Edinburgh referred to the Claim of Right in its decision. That is an act of the old pre-1707 Scots Parliament that doesn't apply to E & W nor Northern Ireland but presumably they held that it still applies to Scotland. Similarly there must be pre-1707 law from the English Parliament that doesn't apply to Scotland (nor indeed N.I.).

So, as was observed above, they'll just decide on whim and then justify it with windy persiflage. (Which is what the US Supreme Court does from time to time too.) In the words of your father when you'd made him a little testy, "because I say so".

I shall lay a bet, if my wife will take it, that their decision will not be justified by reference to Law but to that malleable object Principle. And who can doubt that the Principle of a committee of lawyers would be a very fine principle indeed? That's why people refer to lawyers as shysters.

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Re: UK Supreme Court

#252752

Postby johnhemming » September 19th, 2019, 7:32 pm

I have not compared the Claim of Right in any detail to the Bill of Rights 1688 (which I know reasonably well), but it is quite similar.

It is article 13 of the Bill of Rights (which exists in the Claim of Right) that makes Johnson's acts particularly unlawful.

I have not seen it mentioned in the media reports, but having suggested it to one of the parties I was told that it has been referred to.

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Re: UK Supreme Court

#252779

Postby dionaeamuscipula » September 19th, 2019, 11:02 pm

Kantwebefriends wrote:Since the Supreme Court is a Blair innovation it has not, of course, been thought through. One of the newspapers told me that the Court of Session in Edinburgh referred to the Claim of Right in its decision. That is an act of the old pre-1707 Scots Parliament that doesn't apply to E & W nor Northern Ireland but presumably they held that it still applies to Scotland. Similarly there must be pre-1707 law from the English Parliament that doesn't apply to Scotland (nor indeed N.I.).

So, as was observed above, they'll just decide on whim and then justify it with windy persiflage. (Which is what the US Supreme Court does from time to time too.) In the words of your father when you'd made him a little testy, "because I say so".

I shall lay a bet, if my wife will take it, that their decision will not be justified by reference to Law but to that malleable object Principle. And who can doubt that the Principle of a committee of lawyers would be a very fine principle indeed? That's why people refer to lawyers as shysters.


You will lose your bet. Read any judgement from any senior judge. They are things of beauty. As someone who does some technical writing as a job, I would be delighted to have the skill to write so clearly and cogently. These are very expert people, at the very top of a profession which is full of learned, knowledgeable and clever people (IANAL)*.

Scotland has a separate system of law to that of England and Wales and always has had. You don't have to go back to 1707 to find law from E & W which doesn't apply, which is one of the reasons why a court in Scotland and a court in England could come to different conclusions on the same matter based on the same facts.

DM

*of course different judges can draw different conclusions from the same facts, and based on the same law. This is partly a function of complexity and partly of human nature.

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Re: UK Supreme Court

#252862

Postby Steveam » September 20th, 2019, 10:59 am

And here is a delightfully written judgement:

https://www.supremecourt.uk/cases/docs/ ... dgment.pdf

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Re: UK Supreme Court

#253131

Postby bruncher » September 22nd, 2019, 3:09 pm

Lootman wrote:If you are going to call a court "supreme" then it has to trump all lower courts and jurisdictions.


If the Government loses, will there be an appeal to a European Court?

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Re: UK Supreme Court

#253133

Postby johnhemming » September 22nd, 2019, 5:24 pm

The ecj can only deal with UK law, an "appeal" to ecthr is possible, but it is not really an appeal in the same sense and article 39 proceedings would both be unlikely and unlikely to have any force.


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