Tag: Precedent
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David Feldman: Departing from Retained EU Case law
The Issue Following the end of the UK’s transition period for withdrawing from the EU, the status of earlier case law on retained EU law is somewhat complicated. Section 6(3) and (4)(a) and (b) of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020, provides that the Supreme…
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Kate Ollerenshaw: Retained EU Case Law: A Fourth Option
The Ministry of Justice issued a consultation paper on Retained EU Case Law on 2 July 2020, seeking views on the exercise of the powers contained within Section 6(5A) of the European Union (Withdrawal) Act 2018 (“the 2018 Act”) that were inserted by Section 26(1) of the European Union (Withdrawal Agreement) Act 2020 (“the 2020…
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Robert Craig: The Fall-out from Evans: Positioning Roszkowski and Privacy International in a Post-Evans Constitutional Landscape (Part 1)
Two recent Court of Appeal decisions raise some interesting constitutional questions about the status of Tribunals in the UK legal system. This post (in two parts) seeks to explore some of the implications and suggests that a key constitutional principle, the separation of powers, has once again been neglected. The two cases are Roszkowski v…
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Ruiyi Li: Case-law adopted by China?
On the 26th of November 2011, the Supreme People’s Court of China (SPCC) announced the first set of ‘guiding cases’: two civil law cases and two criminal cases. This marks the establishment of the guiding cases system in China. What is a guiding case? A guiding case is a judgement selected by the SPCC from judgments…
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Christopher McCrudden: Slavery and the constitutional role of judges
How far should judges “update” our legal concepts, or should they root their interpretation in the historical understanding of the concept, leaving updating to the legislature? In the United States, disputes between “strict constructionists” who seek to base the meaning of the Constitution on a literal meaning of the text infused with an understanding of…
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Bradley W. Miller: Assisted Suicide and Judicial Review
What considerations can justify a court overturning a recent constitutional precedent? This constitutional perennial is once again in the foreground as a Canadian court is asked to revisit a 1993 judgment (R. v. Rodriguez, [1993] 3 SCR 519)) upholding the constitutionality of the criminal prohibition of assisted suicide. The sole justice from that panel remaining…