Pham V Secretary Of State For The Home Department

Judge Tracey also quoted Wu Yu Fang & 117 Ors v The Minister for Immigration and Ethnic Affairs & Anor and Onea,

Manifesto sees the decision of the supreme court as “clear abuse of judicial power” (1).

Congress did not delegate authority to create new or hybrid categories. The district court does just that and has acted in excess if statutory authority. Courts are not empowered to create new law at a parties request; this is the role of Congress. Such rules are adopted pursuant to expressed authorization by Congress and they alone “create new law, rights, or duties, in what amounts to a legislative act.” White v. Shalala, 7 F.3d 296, 303 (2nd Cir. 1993); Sweet v. Sheahan, 235 F.3d 80, 91 (2d Cir. 2000). The district courts duty is solely interpretive and do not serve to create new law, rights, or duties. “[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins.

“This case presents a constitutional question never addressed by this Court: whether a statutory scheme

Here, McHugh J suggests the basis of constitutional interpretation lies within the “natural meaning of its text, read in the light of its history.” This particular assertion also finds further support in Victoria v Commonwealth where the scope of “the external affairs power” was established via historical references regarding 19th century treaty execution in Australia. Taking such obiter’s into account, it appears the ‘Race Power’ encompasses a more beneficial role - yet, the literalist approach opposes such. Consisting of those who are hesitant to progress outside of the confines of the Constitution, as they believe it should be “interpreted…according to [the words] natural sense and in documentary context,” literalists struggle to comprehend the requirement of Historical reference in such vague sections like that of section 51 (xxvi). Here, the Engineers’ Case acts as further evidence of the High Court’s tendency to negate the use of theoretical analysis via the suggestion that

It will now be demonstrated how Immigration acts were before and how it has been developed to this current period. The British Nationality Act 1981 s.40 (3) states that the Secretary of State may deprive a person of citizenship status where either the individual has acquired it using fraud, false representation or concealment of material fact. In section 40(4) of the act the Secretary of State may not make an order that would make a person stateless. Furthermore the Nationality Immigration and Asylum Act 2002 amended s.40 of the British Nationality

This essay will explore the changes that Article 263 TFEU has had to the accessibility of judicial review before the CJEU as well as assessing whether the reforms introduced were sufficient enough in improving a private parties ability to bring government decisions under scrutiny. In addition, the judgments of the Court in Inuit and Microban will be considered. This essay will analyse present criticisms of the definition set out in the two cases and the overall effect of the new article.

The power to strike down Acts of Parliament is defined as the power to declare legislation invalid because it is unconstitutional. This paper will critically assess sections 3 and 4 of the HRA 1998 by defining them, reviewing case law surrounding their use, and by evaluating the powers that they give to the judiciary. By doing so, it will demonstrate that section 3 gives judges powers that are not significantly different from the power to strike down Acts of Parliament, whereas section 4 does not.

Under Art. 267, only ‘court or tribunal’ of a member state may initiate preliminary reference to the ECJ, however through succeeding case law this has been expanded by allowing entities whose members may not be judges, ‘provided that those entities have the power to adjudicate disputes’12. This concept of a court or tribunal has been interpreted widely as it is a matter of union law13. The Advocate-General in De Coster14 criticised the court’s approach and criteria to the interpretation as he deemed it confusing. The court in this instance accepted the reference, as ‘it was a permanent body established in law, that it gives legal rulings and that the jurisdiction is compulsory’15. The court in further cases has treated tribunals as not only tax appeal like in the case above but also; customs, social security and immigration.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

The CJEU case-law on horizontal direct effect of directives arguably lacks consistency in regards to the application of the general principle. The principle of direct effect was established in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Although there is no set definition of direct effect, a broader definition was provided in Van Gend en Loos that it “can be expressed as the capacity of a provision of EU law to be invoked before a national court.” However, Van Dyun v. Home Office established that directives are capable of direct effect. Furthermore, Marshall v. Southampton established that there could only be vertical direct effect of directives. This stringent principle has arguable ignited the highly contested debate of whether or not horizontal direct effect is applicable to directives or if directives could only have vertical direct effect. However, this essay shall explore the lack of consistency in case-law regarding horizontal direct effect of directives. Firstly, this paper will delve into the case-law of the topic of horizontal direct effect of directives in efforts to try to highlight its consistency in its approach. Secondly, the paper will use case law and the opinion of academics (enter the name of the academics later) to highlight its inconsistencies using the legal mechanisms that have been introduced by the Courts to try to compensate for the lack of horizontal direct effect of directives. Namely, indirect effect, incidental horizontal

Parliamentary Sovereignty is the concept that Parliament is the supreme legal authority in the United Kingdom. Kellerman, M. G. (2011) argues that since

In Li CJ’s judgment in A Solicitor v Law Society of Hong Kong [2008] 2 HKC 1, he commented in paragraph 9 that the “rigid and inflexible adherence by this Court to the previous precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.” In this essay, this statement would be discussed with reference to the role of the courts and their relationship to the legislature.

If the judiciary are intentionally straying into matters of governmental policy then they as unelected, impartial adjudicators should only do so when cases arise that call for such action, potentially when governmental action threatens the rule of law – a right afforded to them as a constitutional check on governmental power. While the judiciary can be viewed as in a constant skirmish with the Legislature and the Executive much of the judiciary’s power to interoperate statutes liberally comes from powers delegated to it by parliament .

The enactment of both interim and final Constitutions ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BCLR 969 ( C ) at 985 is TRUE.