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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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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 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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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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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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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.
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In this essay I will define the constitution, its main elements and its aim. Moreover I will explain the structure of the British constitution and its sources which are divided as legal rules and non legal rules. Then I will explain the constitutional con
establish and regulate or govern the government'.2 The main elements of the constitution are the establishment of the institutions of the state and the powers of those institutions, setting out the relationship between different institutions and between the institutions and individuals. The aim of a constitution is to ensure stability and order, the legitimacy of government institutions, to establish the break with the past, to limit the government's powers and to reach the principles and goal which underlie in it.
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Judicial review, as described by Lord Diplock, provides the means by which judicial control of administrative action is exercised. In order for the clients to apply for judicial review, the claimants must have either a direct or personal interest in the d
Firstly, Andy is faced with the issue of the failure to conduct a consultation properly. Secondly, the issue of the Secretary of State for Transport's failure to give each party an opportunity to be heard. Essentially, procedural unfairness occurs when the decision-maker fails to carry out: the relevant statutory procedures, e.g failure to consult, as well as abide by the principles of natural justice when they arriving to that decision, e.g failure to give each party an opportunity to be heard. Firstly, there are several cases in which Andy can rely his case on the Secretary of State's failure to conduct a proper consultation, such as R v Liverpool Corporation, ex parte Liverpool Taxi Operators Association1 as well as that in R v North and East Devon Health Authority, ex parte Coughlan2.
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Striking a balance - What GC & C v Commissioner of Police of the Metropolis tells us about the protection of human rights in the United Kingdom.
This particular case has relevant points of public interest which serve to enlighten us on the way the UK courts have interpreted the HRA, yet cannot give us a full indication of how and to what extent human rights have been protected in the UK. Thus, in this work, we will focus primarily on Article 8 of the ECHR and, using the above mentioned case as our basis, the doctrine of proportionality, which has become an essential component in the reasoning of the courts regarding human rights.
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It is correct to say that the United Kingdom does not have a constitution. Critically evaluate this statement.
1 From this definition I could acknowledge that a constitution is a structure planned for government which is codified as a written document; this document includes fundamental laws and principles. Furthermore it generally comprises basic political principles, and establishes the structure, actions, powers and duties of a government. These rules and regulations together amount to its individual distinct existence. When such values are written into a single or set of legal documents, those documents may be said to comprise a written constitution.
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This means that its interest will not be greater than the ordinary person and will not have standing in regards to challenging the decision of ASA to the AAT. TAS may seek rely on the broader terms of S(27)(2)4 to have standing in the AAT. The section specifies that an organisation shall be taken to have interests, if the decision relates to a matter included in the objects of the organization. The object of TAS is to merely promote air safety. By challenging the decision it is taking on a more prohibitive role that goes beyond the description of promoting.
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Similarly, a contractual exclusive jurisdiction clause in favour of one European State will "trump" other factors. The ruling of the European Court of Justice in Owusu v Jackson (t/a Villa Holidays Bal Inn Villas)1 "(ironically made in the interests of certainty) has served only to exacerbate the problems, leading to further litigation."2 Owusu v. Jackson Case C-281/02 Mr. Owusu was a British national domiciled in the UK and he brought a suit in the UK against Mr. Jackson and some other defendants for injuries he sustained while vacationing in Jamaica.
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This doctrine mainly divides the government into branches and distributes the power amongst these branches. In most of the governments these branches are: executive, judicial, and legislative. Almost every democratic government uses the separation of power to a certain degree. However, different countries use this doctrine to a different extent. In order to demonstrate this I will talk about two different jurisdictions, the Republic of Uzbekistan and the UK. History: Aristotle was the first person to identify the three elements of the constitution. According to him these elements were: * The deliberative: discusses everything of common importance.
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has retained its importance in the English Legal System. The doctrine of precedent is based on the principle of stare decisis, which means to stand by things decided. It might be true that the sovereignty of Parliament is more complete in England than anywhere else. However, does it really mean that the rigidity of doctrine of precedent in this country is of no particular importance? Moreover, can we actually say that the doctrine of precedent is rigid? The main aim of my work is to show the importance of the doctrine of precedent and to prove that it is not rigid.
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Those prerogative powers are not written down, due to the unwritten constitution of the country and are based in common law. The prerogative has always remained an important source of Governmental power. Principles are: the conduction of foreign affairs (making treaties), the patronage power, commandment of armed forces, summoning and dissolving of Parliament, giving Royal Assent to legislation and the prerogative of mercy. BBC v Johns 5and Dumbarton District Council v Lord Advocate6 have two contrasting views of prerogative. Due to lack of documentation in BBC v Johns, has leaded to being unable to find out to what extent the royal prerogative has been used "...
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None of the members of the House of Lords are elected by the electorate. When discussing the appointed nature of the House (albeit when discussing the possibility of a totally appointed chamber) Phillipson states that: 'an appointed House is derided as a giant quango, representing rule by an elite, lacking any democratic legitimacy and therefore ultimately ineffectual.'2The argument that the chamber is undemocratic is a valid one. Although the appointments are made largely by an elected Prime Minister, this is certainly a diluted and far more indirect sort of democracy. This method of appointment also leaves room for a certain amount of corruption, whereby peers are elected on financial basis rather than in the interests of the electorate.
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and of course an implied term stating that the goods supplied under the contract are of satisfactory quality (s.14(2)). There are many more implied conditions which are concerned with the quality, purpose and defects of the goods, which along with the sections mentioned above are for the protection of consumers rather than the intention of the parties. This growing concern for 'consumer protection' in relation to the consumer-welfarism theory, is further emphasised with the Unfair contract Terms Act 1977, which places strict limitations upon the ability of sellers to exclude the operation of these implied terms.
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This resulted in the government, deciding on a radical reform called the Constitutional Reform Act 2005 (CRA) without any consultation. They had the desire to increase separation of Powers between judges and government and to comply with article six of the European Court of Human Rights (ECHR) on judicial independence. The decision in the ECHR in McGonnel v United Kingdom2 distributed the Lord Chancellor's judicial role. This was because the court held that a breach in Article 6(1) of the ECHR (the right to a fair trial)
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If the local council is an authorised delegated power the three claimants when seeking judicial must fulfil essential criteria. Firstly, there needs to be an existence of a prima facie case to ensure that there appears to be a case to answer. Secondly, the claimants must have Locus Standi. This means that they must have the right to bring the case and have sufficient interest in the disputed matter. The court held in R v. Inland Revenue, ex parte National Federation of Self-Employment and Small Business2 that as taxation arrangements did not apply to the individual members of the Federation then they did not have the right to bring the case.
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How far is the survival of the royal prerogative a standing affront to the principles of democratic constitutionalism?
This view presents a serious conflict with the rule of law, as it suggests that the prerogative can be used to make moral and ethical decisions without the full consent of Parliament, the body which is meant to represent the electorate. Indeed, this is recognised in R v Somerset CC exp Fewings 4 where Laws LJ notes that "public bodies are subject to the rule of law" and the government cannot use prerogative powers "to an end for which they were never given" (although this underlying purpose is often unclear itself).
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When and to what extent should judges defer to Parliament or to the Executive in the protection of fundamental rights?
As Jowell notes, there "will be occasions where other bodies, whether Parliament, the executive or a non-departmental public body containing specialist expertise, will be better equipped to decide certain questions"2 than the courts. However, this decision should not be made on the basis that courts should not decide what is in the public interest and they should bow to Parliament or the Executive just because of their status. Rather, the decision maker's reasoning should be examined and used to inform the court's decision.
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