Residual freedoms are easy to remove and difficult to enforce in court. Even though the UK signed the ECHR it didn’t incorporate the Human Rights into the legal system. Incorporation means that the ECHR was not made part of our law. But as the ECHR was not law, parliament was not legally obliged to alter its approach. The right of individual petition allowed the UK citizens to go to Strasbourg and claim their human rights in the court of human rights.
It does away with the distinction between EU law and EC law and so brings to an end at least some of the previous difficulties which required a distinction between acts of the Union and acts of the EC. The Lisbon Treaty also declared that the Charter of Fundamental Rights has the same status as the founding treaties, thereby giving it the status of the EU’s bill of rights. The first change is to the structure of the EU Treaties: there is now a Treaty on European Union (TEU) and a Treaty on the Functioning of the EU (TFEU). The TEU is shorter and contains the most significant of the legal principles. The TFEU is basically an amended version of the former EC Treaty (the Treaty of Rome), and now provides the fundamental rules on the four freedoms and the rules on the operation of the EU institutions.
Both constructive and resulting trusts differentiate themselves from express trust which arises because a right-holder has manifested an intention that a trust come into existence. In the case of constructive and resulting trusts the intentions are not expressly stated. This statement in this question is derived from Lord Browne-Wilkinson's judgement in Westdeustsche Landesbank Girozentrale v Islington LBC (1996) where his view was that all resulting trusts arise because of a presumption that the transferor intended to create a trust for himself. This statement supports the argument that resulting trusts are the result of an intention not to create a trust. This thinking is also reflected in the Privy Council case of Air Jamaica v Charlton 1999, where Lord Millet said: “But [a resulting trust] arises whether or not the transferor intended to retain a beneficial interest - he almost always does not - since it responds to the absence of any intention on his part to pass a beneficial interest to the recipient.” This argument was put forward in the recent theses of Birks-Chambers that the the key to the resulting trust was not the intention to create a trust, but the intention of the donor not to benefit the recipient.
In order to assess how constitutional conventions are recognised and enforced within the UK system of government, firstly, will require a look at the different definitions of what amounts to a constitutional convention, and to discuss their function or purpose, within the U.K's constitution. Furthermore, it will be necessary to identify and consider the different examples of constitutional conventions and also examine their characteristics. As way of a starting point, conventions according to AV Dicey are defined as: "conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power…are not really laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the 'conventions of the constitution', or constitutional morality…" This definition concentrates on what conventions are supposed to achieve. However, this view is not entirely accurate and it is important that conventions are distinguished from habits and practices.
The initial case to examine is DPP v Smith, where the House of Lords held that an objective stance was applicable in establishing oblique intent if a person intended the natural and probable consequence of his actions. However, this legal position was overturned and reversed by the passing of the Criminal Justice Act 1967. Through statute, Parliament intended for s8 of the Criminal Justice Act 1967 to define the meaning of oblique intent, to include that a court or jury, when, ‘determining whether a person has committed an offence- (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions;’ but more essentially, ‘(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.’ The courts ruled that a subjective test be required when determining oblique intent, answering the first two questions given above, but giving rise to a series of consecutive issues regarding the penultimate question: how probable is it that the adverse effect will occur but more essentially, does it have to be virtually certain to occur or does it have to be mere
If not else, asylum seekers who actually can make journey as far from their country of origin as to the Member States in the other end of the EU territory, raise another fundamental consideration; can these people really be in need of asylum? Of course, it should not either be presumed that all in the need of asylum are impoverished, but it often is the case. There can also be asylum seekers who are not lacking sufficient money in their country of origin but are in some other way not able to live without fearing for their lives, such as could be in a case where their sexuality was being valued as “wrong” on the grounds of
The question put to the electorate was “do you think the U.K. should stay in the E.C. ?” The government argued that such an important decision, with such major constitutional repercussions, should on principle be put to the general populace for a decision. However, undermining this, the government had previously joined the European Community in 1973 without a referendum. This referendum is more generally seen therefore as a device to avoid a split in a labour government on the issue of the E.C. than as being motivated by principles of direct democracy.
The restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Which principle conception? Formal or substantive. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.
“Discuss the advantages and disadvantages of delegated legislation” This question is asking me to evaluate the advantages and disadvantages of delegated legislation. Firstly, delegated legislation is the power given to subordinate bodies to introduce rules within the scope of their authority. Delegated legislation allows the Government to make changes to a law without needing to push through a completely new Act of Parliament. The original Act would have provisions that allow for future delegated legislation to alter the law to different degrees. These changes range from the technical, such as altering the level of a fine, to fleshing out Acts with greater detail; often an Act contains only a broad framework of its purpose and more complex content is added through delegated legislation.
In the United Kingdom the Human Rights Act 1998 (HRA 1998) came into force in October 2000. The scope of the HRA in the UK was to give further legal effect to the fundamental rights and freedoms contained in the European Convention of Human Rights. These rights don’t have to do only with matters of life and death. We have the right to express our opinion, trust our beliefs, marry and start a family and other similar entitlements. Many of these rights are not absolute, however we don’t have only rights but also responsibilities like to respect the rights of other people and not exercise our rights with intention to prevent them from being able to exercise theirs.