University Degree: Public Law
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- Marked by Teachers essays 19
Illustrating your answer with case law, assess the extent to which the exercise of the Royal Prerogative is controlled by the courts. Should the exercise of the royal prerogative be subject to more stringent control by parliament or the courts?5 star(s)
Both Dicey and Blackstone tried to give their interpretation of a prerogative. Dicey argued that, 'an act that can be performed lawfully without an Act of Parliament, is done in virtue of this prerogative'. Blackstone's interpretation was that a prerogative was 'a special pre-eminence that the king hath over and above all other persons'. Dicey was able to put his interpretation into practice, as most prerogatives are now exercised by the government. Having established some of the different interpretations that exist, it is clear that these powers are indeed 'special', but that does not mean to say that they may override any conflicting interests.
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Parliamentary Supremacy - the question of whether membership of the EU has diminished the doctrine of Parliamentary supremacy, will be explored, with reference to legal authorities and academic opinion.4 star(s)
was enacted in a force of Parliament, it would be held legally valid-however in reality, it would be ineffective and would be unenforceable[MD2]. Another key concept of parliamentary supremacy includes the idea that no Act of Parliament can be challenged by anyone other than Parliament. This was identified in cases such as R v Jordan, Pickin v British Railways Board and Jackson v AG which all held that no 'body' including the courts had the power to question the validity of any Act of Parliament.
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Parliamentary sovereignty. " Step, by step, gradually but surely, the English principle of the absolute sovereignty of Parliament which Dicey derived from Coke and Blackstone is being Qualified. (R(Jackson and others) v Attorney General . Discuss4 star(s)
the UK Parliament to do certain things meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things: But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid4". However the orthodox doctrine of 'absolute' parliamentary sovereignty is now claimed to be a phenomena of the past and incompatible with the new, modernised, British constitution.
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Law judgments create similar problems due to their thorough and consequently lengthy nature. However, the superiority of common law judgments over single Privy Council judgments holds true, as a single judgment supported by very concise concurrences can cause continuing problems of interpretation. Lord Bingham's second sub-rule affirms that legal issues should be resolved by application of the law and not the exercise of discretion. Despite Dicey's hostility to the exercise of discretions, this sub-rule is not strictly followed. For instance, it has been a practice in the immigration field to invite the Secretary of State to exercise his discretion to
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This paper will deal with the common law legal system as a legal transplant, focusing on the reception of the common law in South East Asian jurisdictions, before comparing it with that of East Asian India to analyse how the common law functions and evolv4 star(s)
Legal systems, as approaches rather than rules, can accommodate the local contexts of where they are being transplanted to, but to different extents depending on the legal system. For example, the common law's emphasis on facts and practicality will likely better facilitate adaptation to the local context, but to import civil law, one must attempt the enormous undertaking of adapting Civil Codes to accommodate local issues. Characteristics of the Common Law System Three aspects of the Common Law legal system will be used for the purpose of comparison: the presence of judicial precedence (and the doctrine of stare decisis5), the existence of the rule of law and an adversarial fact finding process during trial.
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Rather it was created to complement it.6 The Ombudsman system was later extended to the Health Service7 and to Local Government and is now known as the Parliamentary and Health Service Ombudsman.8 Later amendments to the Act Amendments to the Act extended its services from central government to include other non departmental public bodies.9 Since then the ombudsman system has established itself as a significant system of administrative justice in the public sector. Following its success in the public sector, the ombudsman concept has quickly spread into other sectors.
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This analysis should provide some good indications as to what the primary purpose of judicial review is. The first ground set out in the CCSU case is illegality. This occurs when a power is exercised which is not granted by the law regulating that power. In Allingham v The Minister of Agriculture and Fisheries (1948) the Minister had a power to delegate the provisions of the authority to a committee. This committee then attempted to sub-delegate, but when the sub-delegated officer attempted to enforce his decision it was quashed on judicial review for being illegal.
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Discuss the relevance of the concept of the rule of law to current constitutional arrangements in the UK4 star(s)
At it's broadest it is a framework that constrains arbitrary use of power. The concept of the rule of law dates back to many centuries the Greek philosophers recognised the need for a principle or "rule of law" to control the powers of the government. In the study of constitution it is still seen to have relevance in helping to interpret the relationship between the individual and the state. The principle is not enforceable by the courts directly and there is no legal justice for behaviour that contravenes it.
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EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER4 star(s)
(as cited in Carroll, 2002: 51). Since these conventions are not written down and are unenforceable through a court of law, the question of their effectiveness arises. The following discussion aims to consider how such a phenomenon has the ability to control discretion and monopolisation of power (or if indeed it does at all), and why apparently unenforceable rules are observed by those working within the constitution. Bradley and Wade (1990) point out that under every system of government, whether it has a written constitution or not, non legal rules will develop.
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Consider the view that the royal prerogative is insufficiently controlled by either Parliament or the judiciary.4 star(s)
The Legislature effects control upon Executive use of the prerogative both by the actions of members as individuals and by the actions of the Legislature as a body. Question time, early day motions, written answers to MP's questions and debate are all parliamentary procedures in which individual members of the Legislature act as "dispassionate arbiters of the national interest"3. Unfortunately, in addition to the somewhat poor level of resources provided to individual members, the capacity of a member to engage in non-partisan evaluation of the exercise of government powers can be hobbled by party politics.
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This case highlights a fundamental reason why a written constitution would be useful as it protects the civil and political rights of the state. It should be noted however that the United States of America's written documentation of "a declaration of the country's supreme laws"1, in the form of a written constitution does not deter a government from trying to pass legislation which is unconstitutional, as the case above shows. A documentation of such rules does exist in the United Kingdom, even though it is not written under one document; the impact of the rules is not dissimilar from above showing that breaches of the constitution can be highlighted through documentation such as the Human Rights Act 1998.
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allocation of subject matter jurisdiction and competence between the federal bodies of state power and bodies of state power of subunits of the Russian Federation 31 March 1992) . Nevertheless, under all constitutions, not all the rules will be written and collected within a single document. Basic Structure of the United Kingdom The UK is a unitary state and a constitutional monarchy. The monarch's role is basically ceremonial, with the queen or king taking decisions only on the advice of the Prime Minister. The latter is the most powerful figure in the executive, which is recruited from the legislature, Parliament.
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There is no absolute separation of powers in this country, in a variety of important ways ideas of the separation of powers have shaped constitutional arrangements and influenced our constitutional thinking, and continue to do so" Discuss.4 star(s)
The making of procedural rules governing judicial process is an example of law making by the judiciary rather than by the legislature and the fact that the courts obtain their power from the Crown shows that within the UK, there is a clear overlap of functions between the agencies, which should be strictly separated according to the notion of the separation of powers. The concept of the separation of powers assumes that not only the functions of the three branches of the State should be distinct from one another but the personnel of these agencies should also be different and yet in the UK, there is a clear fusion of personnel within the system of government.
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In what ways is the United States constitution a conservative document? What might have been the mot4 star(s)
With this in mind, the United States Constitution can be viewed in two ways. The document today looks very conservative and restrictive of change, but in 1789 it was very radical. "The Framers have undergone miraculous metamorphoses: at one time acclaimed as liberals and bold social engineers, today they appear in the guise of sound Bukean conservatives." To the Twentieth Century mind, concepts such as stability and order are conservative notions, to those in the Eighteenth Century, the United States idea of a codified Constitution with a different notion of sovereignty and the separation of powers are quite liberal.
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written constitution; as strictly speaking much of the constitution can be found in the written documents such as Acts of parliaments. Unlike Britain the USA's constitution is a "written constitution" with its major rules being codified and contained within seven articles with their subsequent amendments. This country has, In Its history, law and literature, done more than any other to advance the liberty of the citizen against the state. Why, then are we afraid of enshrining British freedoms in a written constitution?
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Prerogative powers are very important source of UK Constitution dealing with issues such as foreign affairs. There are not written down, and can only be followed in common law. All major prerogative is now regulated by conventions. Despite being the Mo3 star(s)
forces and commissioning its officers (Chandler v Director of Public Prosecutions  AC 763), the prerogative of mercy (R v Foster  QB 115), protecting the public interest (Gouriet v Union of Post Office Workers  AC 435), keeping the Queen's peace (R v Home Secretary, ex parte Northumbria Police Authority  1 QB 26) , defence of the realm and emergency powers (Burmah Oil v Lord Advocate  AC 75), the administration of justice (Prohibition del Roy  12 Co Rep 63).
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To what extent (if at all) is it true to say that the United Kingdom constitution is based on a separation of powers?3 star(s)
He also said, 'Nor is there liberty if the power of judging is not separate from legislative power and from executive power'. The reason for this is that the joined power, that is the legislature and the judiciary would be arbitrary over the life and liberty of its citizens, or in the case of executive and the judiciary, the judiciary would have the power and force of an oppressor. So with this information, is it possible for an answer to be found?
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“It cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers” - Consider the extent to which this view is accurate.3 star(s)
- The Executive - This is the Government. The function of the government is to run the country in the interest of the general public. The Prime Minister, the civil services, the police and other ministers make up the government of a country - The Judiciary - The final division of a states' activity is in the form of the courts. It is their job to apply the law, which the Legislature makes. By having different bodies performing different functions, it enables each to focus on their own job and so that 'power is not concentrated in one area' (AS Level Law, Andrew Mitchell and Minel Dadhania, 2003).
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The history of the royal prerogatives was created by James 1 between 1603-1625. James 1 was the king of England and Scotland, and when he became king, he appointed himself head of parliament, courts and statutes. Powers of the King were legally based on the royal prerogatives. Between 1625-1700 various events occurred which lead to the reduction of the king's powers under the royal prerogative and the emergence of parliamentary supremacy. Crown's powers were reduced due to political parties and the principle of ministerial responsibility to parliament. Royal prerogatives are discretionary powers, they are crown's powers.
- Length: 1616 words
A federal system would be much better for the United Kingdom. Review arguments for and against this proposition.
Federalisation of the UK would be a response to demands for independence of constituent nations, especially that of Scotland, by giving them 'virtually all the advantages of full independence with none of the disadvantages'.1 Considering this argument, it is easy to perceive the idea of a federal UK as a knee-jerk response to the Scottish independence referendum which is to be held between 2014 and 2015. However, even if a federal system is adopted, the 'knee-jerk' response would not be quick enough to serve its purpose due the fact that federalisation is a slow and lengthy process which may take years, if not decades, to complete.
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We are presented with a question finding its roots in the Judicial Review area of Administrative law. The essay will also investigate the changing role of the Wednesbury test in judicial review and its apparent superseding by the mo
Traditionally, due to the doctrine of Separation of Powers, the court lacks the power to review the decision "on its merits" and determine whether or not it was the decision the court would have made, it merely has the power to decide whether the body made the decision lawfully. There are only three grounds in English administrative law on which judicial review can be based (set out by Lord Diplock in Council Service Unions v Minister for the Civil Service), and these are 'illegality' (ultra vires), 'irrationality' (unreasonableness)
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The introduction of a 5 year fixed term Parliament has taken a huge step in reforming the UK constitution. These proposals were introduced by Nick Clegg; " First, traditional powers of no confidence will be put into law, and a vote of no confidence will still require only a simple majority. Secondly, if after a vote of no confidence a Government cannot be formed within 14 days, Parliament will be dissolved and a general election will be held. Thirdly, there will be an additional power for Parliament to vote for an early and immediate Dissolution"2. Evidently, this will give our constitution a stable platform, but how stable will that platform be exactly?
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Research Proposal - British Constitution - Whether it is possible to claim that UK has a written constitution? What is the nature of the British constitution?
The issue of Britain having a constitution has been under constant debate since the early 19th century. Even at this point many people doubt it; however technically there should be no doubt because a constitution is one of the most important elements of the legal system of a country. One without which the state would be unable to function. Therefore, it is inevitable for the UK to have a constitution. The main question here is what kind of constitution does the UK have?
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It is not only in the constitutional arrangements of the United Kingdom that conventions are important; K.C Whearne in 'Modern Constitution '5 states that 'in all countries usage and conventions are important and .....in many countries which have constitutions usage and convention play as important a part as they do in England'. FUNCTION:- Conventions also regulate the privileges of Parliament. Constitutional developments have moved power from the Sovereign to the Ministers, not as servants of the Crown, but at Parliaments representative of the people.
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Watkin observes how the Welsh have the ability to absorb the new, while retaining values from the past. Through examining the constitutional history of Wales, the national identity of the Welsh, the preservation of values such as the Welsh language, and t
The political history of the United Kingdom is central to understanding the current devolution settlement in Wales. The United Kingdom has 3 devolved nations; Wales, Scotland and Ireland; each of which have their own unique devolution settlement. In the present day, Scotland is superior to Wales in terms of constitutional powers. This difference stems from two historically distinctive dates; 1282 and 1340. 1282 marked the end of the Welsh War of Edward, where Wales lost the war for independence: "After Llewellyns death, Welsh resistance was effectively over. This time, Edward ended the independence of the Princes of Gwynedd, which became the core of the lands of the English Princes of Wales."4 Aside from the brief Welsh rebellion under Owain Glyndwr (1400-1415), Wales did not recover the independence it once had.
- Length: 6258 words