![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.[1] Despite being the Mo](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/888953/listing/888953_1.jpg)
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.[1] Despite being the Mo
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.1 Despite being the Monarch's powers, they are being exercised by the Government. With no direct control, they are constantly being abused being seen as an indefinable constitutional power appearing in any form and under any circumstances. Prerogative remains a extensive mixture of rights, powers, duties and immunities operating in all the spheres of government.2 The most classic definition is by A. V Dicey ' the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.'3 Exercise of royal prerogative is expressed by formal documents, by orders in Council or by instructions from Ministers acting on the Monarch behalf. Some of them belong to the Monarch (like appointing Ministers, power to dissolve parliament, assent to legislation, granting honours), but most is exercised by the Government on the Monarch behalf. In case of domestic affairs it is: appointment and regulation of civil service (GSHQ case4), directing the deposition of the armed forces and commissioning its officers (Chandler v Director of Public Prosecutions [1964] AC 763), the prerogative of mercy (R v Foster [1985] QB
To what extent (if at all) is it true to say that the United Kingdom constitution is based on a separation of powers?
Constitutional and Administrative Law Coursework Assignment To what extent (if at all) is it true to say that the United Kingdom constitution is based on a separation of powers? In addressing this question, it would be useful to explain just what the doctrine of the separation of powers consists of. The concept of the separation of powers goes back to the time of ancient Greece however it only came to be considered as a real 'grand constitutional principle' when the French theorist Montesquieu wrote 'L'Esprit des Lois' (The Spirit of the Laws). In this work, there was an argument for a strict separation of powers, that is the legislature, the executive and the judiciary. So in other words, the power to make the law, the power to govern the state and the power to apply and interpret the law should be separate for the protection of the liberties and freedoms of the individual. Montesquieu justifies his view and this is effectively shown by several passages of his work. 'When legislative power is united with executive power in a single person or in a single body of magistracy, there is no liberty'. The reasons given by Montesquieu for this was that the holder of that power, whether it is an individual or a group can create tyrannical laws and then exercise them in a tyrannical manner. He also said, 'Nor is there liberty if the power of judging is not separate from legislative
Law of Tort Assignment.
Law of Tort Assignment (i) Since the enactment of the Human Rights Act 1998, it seems that some areas of tort law have been affected by the Act to a great extent. One specific element of tort law that has been affected is 'duty of care in negligence.' The tort of negligence may signify 'whereby persons who by carelessness have caused damage to others and may be held liable to pay compensation.' 1 However, it is not always the case when 'careless conduct which causes damage will give rise to an action.' 2 As this essay will focus on the impact of the Human Rights Act on duty of care in negligence, it is necessary to determine 'whether the type of loss suffered by the claimant in the particular way in which it occurred can ever be actionable,' 3 as this may play a great role in the development of the tort of negligence. Before a duty of care is held to exist, the requirement established in Caparo Industries Plc v Dickman [1990] 1 All ER 568 must be satisfied: (a) 'Foreseeability of the damage; (b) A sufficiently 'proximate' relationship between the parties; and (c) Even where (a) and (b) are satisfied it must be 'just and reasonable' to impose such a duty.' 4 The Human Rights Act 1998 gives 'further effect to rights and freedoms guaranteed under the European Convention on Human Rights.' 5 The aim of the Human Rights Act is as stated in section 6 (1), 'courts should
IMPOSING LIABILITY ON OMISSIONS
Foundations of Criminal Law Level 2 LLB LAW Student ID: 33165044 Year: 2006/07 Word count: 1486 I certify that this is my own work. The work has not in whole or in part, been presented elsewhere for assessment. Where material has been used from other sources it has been properly acknowledgement. If this statement is untrue I acknowledged that I will have committed an assessment offence. I also certify that I have taken a copy of this assignment, which I will retain until after the Board of Examiners has published results and which I will make available on request. In recent times the criminal law has been concerned with imposing liability for omissions. However, this was not the case in the past as the law was more concerned with the prohibition and punishment of positive acts (Card, 2004). 'An act is the most common basis of the actus reus' (ibid, p57). The actus reus of an offence is its conduct element. It 'describes what the defendant must be proved to have done (or sometimes failed to do), in what circumstances, and with what consequences' (Herring, 2006, p85). Before proceeding further it is necessary to clarify what is meant by an omission. An omission is the failure to act which can sometimes give rise to criminal liability and this failure to act can constitute the actus reus of an offence (Herring, 2006). According to Herring (2006, p88), the criminal law on
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
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
The concept of retribution implies.
Theories to be discussed:- * Retribution * Rehabilitation * Incapacitation * Deterrence The concept of retribution implies: A criminal deserves to be punished because he has done something socially or morally evil... * Is eye for an eye punishment In 1993 Michael Howard, the then Home secretary made a statement saying: "Let's make one thing absolutely clear; Prison works, it ensures we are protected from murderers, muggers and rapists; and it makes many who are tempted to commit crime think twice. This may mean that more people will go to prison. I do not flinch from that, we shall no longer judge the success of our system of justice by a fail in our prison population" (Ashton J, Wilson D: 16: 1998) * conviction for rape can carry a life sentence Look at R v Billam (1986), which sets out sentence tariffs for rape. This case set out guidelines for imprisonment of rapists, Billam suggests that rape carries an automatic custodial sentence, 'other than in wholly exceptional circumstances', the maximum sentence for rape is life, although, In terms of mitigation, if a plea of guilty is entered, effectively relieving the victim of the ordeal of having to appear in court, the guidelines state that this 'should normally result in some reduction from what would otherwise be the appropriate sentence'. Rehabilitation: Emphasis on the individual can be seen no more clearly
Criminal Justice System of Great Britain
The Role of the Trial The role of the judicial system is to protect the innocent, to pass judgement and to serve an appropriate form of punishment on convicted felons. This may include receiving a custodial sentence, serving a specified amount of community service or incurring a disqualification or penalty fine. All criminal cases in the UK initially commence in the same system. However the severity and details of the offence will affect the following: which court the accused may be trialled and sentenced in, the criminal proceedings and the level of punishment received. This essay will examine the differing categories of offence and describe the role of the trial to provide a basic overview of the Crown and Magistrates court systems of Great Britain. The criminal court system has two rankings. The lower is the Magistrates' Court and the higher ranking is the Crown Court. The Youth Court established in 1992 is a separate less formal division of the Magistrates' Court. It was set up for the trial and punishment of minors aged between ten and seventeen years old. Young offenders too young to be trialled as adults (unless they are being tried alongside an adult) and old enough to know right from wrong are forced to face the consequences of their actions. The youth justice system can impose sentences up to 24 months detention in a young offenders unit or a fixed amount of
What is the meaning of the term 'measure equivalent to a quantitative restriction' for the purposes of Article 28 EC?
Samantha Nicholson Seminar Leader - Harm Schepel European Law - LW511 What is the meaning of the term 'measure equivalent to a quantitative restriction' for the purposes of Article 28 EC? Article 28, whilst appearing relatively clear on first reading, has proved problematic and therefore produced a string of case law and discussion, which continues on today. The Article states "Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.".1 This initially seems very clear in its implication. No Member State can restrict the quantity of imports from other member states. It is in the second part, the measures having equivalent effect (MEQR's) that the problems arise. In order to define the term 'measure equivalent to a quantitative restriction' one needs to trace the problems and decisions arising from this issue. This can be discussed in three different sections. Firstly, the definition of an MEQR as it stood in the cases prior to Keck2, and Directive 70/50. Secondly the changes created by the decision in Keck and other cases which followed this judgement. Finally, there are the decisions post Keck, and the fact that they have largely regressed to the decisions taken before this case. MEQR's can essentially be split into two categories; those that directly or indirectly discriminate against imported goods, and
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
