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?

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? In this essay I will be examining how far the Royal Prerogative is controlled by the courts after it has been exercised by the executive. I will then discuss whether the prerogative should be controlled by the courts or parliament, and how strict this should be. The royal prerogatives are powers and privileges recognized in common law as belonging to the Crown sometimes referred to as residuary discretionary powers. However, most prerogative acts are performed by the government of the day in the name of the crown. As by prerogative the Crown is immune from prosecution Certain prerogatives are only performed by the crown on the prime minister's advice, such as the dissolution of parliament. Some prerogatives such as powers to appoint and award honours are performed by the Crown, who will also conduct the relevant ceremonies, but decisions as to who will be honoured are made on the advice given by the government. 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

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Consider the Arguments For and Against Having a Written Constitution.

Jade Fallen Consider the Arguments For and Against Having a Written Constitution A constitution is a set of rules and principles which determines the relationship between those who govern and those who are governed. It dictates who is in authority and governs the relationships between those who are in authority. It determines the ways that these people exercise their powers and instructs how they must operate. As a source of principles and values in each individual society it maintains how free and open the society is. In the United Kingdom the constitution aims to perpetuate a representative democratic society, yet the sources and evidence for this can not be found in one, singular written document entitled "The Constitution". Instead it can be found in many sources and documents such as the Human Rights Act 1998 and the Bill of Rights, designed to protect citizens from an abuse of power, by those in authority. A written constitution would serve invaluable as a clear index for courts to ascertain where a constitutional breach has occurred. In the United States of America a case Marbury v. Madison [1858] highlighted a situation where the government at the time passed a legislation which was contrary to the constitution. In this case the legislation was over-ruled by the courts as this was a right addressed to them by the legislation. This case highlights a fundamental

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Discuss the relevance of the concept of the rule of law to current constitutional arrangements in the UK

"In the mouth of British Constitutional Lawyer, the term "rule of law" seems to mean primary a corpus of basic principles and values, which together lend some stability and coherence to the legal order". (TRS Allan). In the light of the quote above, I am going to discuss the relevance of the concept of the rule of law to current constitutional arrangements in the UK. I will be looking at the current constitution in the UK, the doctrine of the rule of law and the relevance of the doctrine in the operation of state power. The UK is said to have an "unwritten constitution", because it has no single codified documentary constitution. However most of the constitution does exist in the written form of treaties, statutes and court judgements. Due to the absence of a formal written constitution in the UK, there is no positive statement of the basic principles governing state actions and no guidelines that could be used to assess the legitimacy of government action. Lawyers and politicians have used the concept of the rule of law in order to provide such a measure.1 The rule of law is capable of being interpreted differently by different people. It is a recognised principle of the English constitution, which is frequently used to signify a notion of "law and order". At it's broadest it is a framework that constrains arbitrary use of power. The concept of the rule of law dates

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Essay on the function of Judicial Review

PUBLIC LAW ASSIGNMENT 2 MICHAEL ROBERTS TUTOR GROUP L ANNELIESE BLACKWOOD 'The primary purpose of judicial review ... is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.' Discuss with reference to the common law grounds of review. Judicial review is a process which is widely recognised to incorporate three functions or purposes. Firstly there is the function whereby citizens of the state who have been wronged and caused grievance by a public authority may be redressed. Secondly there is the 'normative and expository' role which encourages good governance through the promotion of fundamental principles. Finally, as the title statement propounds, there is the control of government element which helps to ensure that the power exerted by parliament and public authorities does not go unchecked, although judicial review is only concerned with the procedural correctness and legitimacy of such power and usually administrative or political checks are present to assess the merits of decisions made1. The most effective way to explore these purposes would be to go through the three common law grounds of judicial review as set out by Diplock LJ in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (illegality, irrationality and procedural impropriety) plus the effects of the Human Rights Act

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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 evolv

Introduction 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 evolves as a legal transplant. We will start with an analysis of the historical, socio-cultural and political contexts of the respective countries, from which we can assess the extent of reception in each of these and the resultant issues that arise. Finally we will attempt to arrive at an understanding of the common law as a legal transplant, how it is beneficial and why it evolves differently in the respective countries. Legal Systems as Legal Transplants The term "legal transplants" was coined by Alan Watson to refer to "the moving of a rule... from one country to another, or from one people to another". This involves the spread of cultural items between individuals in the "continual mass borrowing... of rules" which Watson asserts is "the most fertile source of legal development". Watson's theory of legal transplants has been met with great criticism, from being "flawed" with "unconvincing" empirical evidence to "not [being] a theory at all"1. Some insist that legal transplants are impossible, as proponents of legal transplants must accept that law is simply a body of rules, and these rules are bare

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Consider the view that the royal prerogative is insufficiently controlled by either Parliament or the judiciary.

In historical times the royal prerogative was regarded as the sum total of the rights ascribed to the Monarch as feudal lord paramount over the entire realm. Dicey1defines prerogative in a more contemporary sense as the "discretionary authority of the Executive", explaining that this means everything which the Monarch or her servants can do without the authority of an Act of Parliament. Few prerogatives are exercised directly by the Monarch today. While some governmental powers are conferred or defined by statute the prerogative powers of the Executive exist in virtue of customary common law. Dicey's definition of Rule of Law states, in part, that there should be no arbitrary government power. Parliamentary procedure and judicial review are forms of control which when imposed, by the Legislature and the Courts respectively, upon the Executive enable compliance with this understanding of the Rule of Law. Government is dependent upon the support of Parliament for its existence. Ministers of the Executive must account to Parliament and be responsible for their exercise of the royal prerogative. These obligations of accountability and responsibility are owed both to the Legislature and to the various parliamentary select committees. The Separation of Powers doctrine requires the Legislature to assume the responsibility to influence, constrain, and demand justification for the

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EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER

EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER Firstly, in order to provide an adequate evaluation, 'constitutional conventions' and the 'executive' must be defined. The 'executive' can de described as the section of the state that creates policy and is responsible for the operation of those policies (Barnett, 2002). Therefore in formal terms the sovereign is the head of the executive although in practice this position lies primarily with the Prime Minister, his cabinet, and other ministers, followed by those in the Police and the armed forces. Whilst most countries have a written constitution to define the rules, regulations and practices of an executive, Britain (along with Israel and New Zealand) has no such document. It thus follows that formal protections against the exercise of power which exist in those countries with a written constitution do not exist in Britain (Bradley and Ewing, 2003). Instead, the British constitution has three sources of rules: Acts of Parliament; judicial precedent; and non legal rules known as constitutional conventions, (Allen and Thompson, 2002). A.V. Dicey (1965) defines constitutional conventions as: "...understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the

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In what ways is the United States constitution a conservative document? What might have been the mot

In what ways is the United States constitution a conservative document? What might have been the mot The United States Constitution has been a cornerstone of the United States political system since its ratification in 1789. It has remained largely unaltered and continues to have a significant effect on political life. It is largely a conservative document in terms of its content. It can however be viewed as quite radical when it is noted that it was a pioneering document instilling a system of government with many new ideas. In this essay, I will firstly define what I mean by conservative; I will then explain some of the reasons why the document is conservative; I will go on to show how the document is in fact quite radical and it is only by our modern ideas about conservatism that it appears so; I will then examine the problems and influences which led the document to take the form that it did. The term 'conservative' can be taken in many ways. In this essay, it will essentially be taken to mean restrictive of any change or action which could be considered radical. Therefore, conservative ideas attempt to maintain the current political order and keep the system stable. 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

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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.

"While we must grant that 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, including consideration of relevant caselaw. The separation of powers is at the heart of a democratic constitution as it ensures that no one body accumulates too much power as to simply dictate to the people, as Lord Acton said 'Power tends to corrupt and absolute power corrupts absolutely' Although within the UK the separation of powers is not as clear as in other liberal democracies, it does still influence the everyday operations of the executive, legislature and judiciary1. As Barnett argued 'Separation of powers...runs like a thread throughout the constitution of the United Kingdom'2 The principle of the separation of powers assumes that certain functions should be carried out by different institutions and that no one institution should trespass into the territory of another. As Montesquieu argued 'All would be lost if the same man or the same ruling body...were to exercise these three powers'3 This interpretation of the separation of powers has been put into effect in the vast majority of liberal democracies around the world with the likes of the USA and Japan adhering to the orthodox understanding of the

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The Constitution of United Kingdom In Comparison with the Constitution of Russia

Constitutional Law The Constitution of United Kingdom In Comparison with the Constitution of Russia Introduction: Constitutional law is concerned with the role and powers of the institutions within the state and with the relationship between the citizen and the state . Thus, it tends to concentrate on the relation between the primary organs of sovereign power (for example, Parliament and the judiciary) and the fundamental principles of constitutionalism, such as the rule of law. All constitutional law presupposes the existence of a constitution, whether written or not. A constitution sets out the relationship between individuals and the Government. It is a document that sets out necessary rules for the framework and operation of state institutions, for example defining the powers of the state and its agencies . Who can do what and where the limits of power are. This can only be of value if people feel an ownership of their constitution and other institutions are open and fair. This essay will examine the constitutional law of the United Kingdom in comparison with the constitutional law of Russia. To do so a brief background and history will be discussed in order to explain how the current constitutional law of these two countries came about. An Introduction to the United Kingdom and Russia's Constitution Similarly, the study of constitution of the United Kingdom and

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