Do we agree with Lord Diplock's view that the British Constitution is firmly based on the separation of powers?

"It cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers" Duport Steels v Sirs [1980] 1 WLR 142, per Lord Diplock The question here is, do we agree with Lord Diplock's view that the British Constitution is firmly based on the separation of powers? In addressing Lord Diplock's view, the first point to consider is the meaning of the doctrine, 'the separation of powers' and its origin then consider whether or not there's a separation of powers in the British constitution in which the overlaps between the legislative, executive and judiciary arms of the British constitution will be examined. The doctrine of separation of powers has emerged in several forms at different periods and in different contexts and is traceable back to Aristotle; it was developed by Locke; its best known formulation, by the French political philosopher Montesquieu, was based on an analysis of the English constitution of the early eighteenth century. The doctrine, formulated by Montesquieu in L'Espirit des Lois briefly stated the following. * There are three main classes of governmental functions: the legislative, the executive and the judicial. * There are (or should be) three main organs of government in a State: the Legislature the Executive and the Judiciary. * To concentrate more than on class of function in any

  • Word count: 2892
  • Level: University Degree
  • Subject: Law
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Consent in the law.

CONSENT In A-G's Reference (No 6 of 1980) [1981], the Court of Appeal held that, subject to exceptions mentioned below, a person's consent is irrelevant and cannot prevent criminal liability for an offence if actual bodily harm was intended and/or caused. This strict rule was based on the view that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. In some cases there may be a good reason, and the Court of Appeal was at pains to emphasise that the above rule did not affect the accepted legality of certain situations, referred to below, in which the consent of the victim is legally relevant and renders the conduct in question lawful. One cannot consent to the intentional causing of actual bodily harm, except in certain recognised cases. R v Brown and Others [1993] & R v Wilson [1996]. As a general rule where persons quarrel and agree to settle their differences with a fight, the injuries can amount to an assault and the unlawfulness cannot be denied by pleading that the other consented to the fight. A-G's Reference (No 6 of 1980) [1981]. As the House of Lords recognised in Brown there may be 'good reason' for the intended infliction of actual bodily harm, in which case a valid consent to it may be given. The exceptional cases where a person may validly consent to intentional actual bodily harm

  • Word count: 2559
  • Level: University Degree
  • Subject: Law
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'A written constitution is a mixed blessing'. Is this the lesson to be learned by would be reformers of the British constitution from studying the workings of the US constitution?

'A written constitution is a mixed blessing'. Is this the lesson to be learned by would be reformers of the British constitution from studying the workings of the US constitution? Gursharonjit Kaur Sond A constitution is a system of laws and customs established by the sovereign power of a state for its own guidance, to form an established form of government. The majority of liberal democracies have a constitution, including the UK, USA and France, but with each being unique and specifically designed to meet each countries need. For instance, 'the US constitution is written within a single document, at a particular date in time as a product of revolution'. (pg 109, McKay, 2001) The UK constitution on the other hand is instead derived from a number of sources, including Statute law, Common law and conventions rather than being written down in a single document. Due to this it is embedded with customs and tradition. One thing that constitutions do have in common though is that they intend to serve the same purpose, with the aim being to serve its citizens and to define the role and power of and between governmental institutions. A written constitution is often regarded as being a 'mixed blessing,' warning would be reformers of the British constitution that along with its advantages there are also disadvantages to having a written constitution. Codified constitutions have a

  • Word count: 1785
  • Level: University Degree
  • Subject: Law
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The offer and acceptance rule in contractual formations.

The offer and acceptance rule in contractual formations is where there is a clear and 'unequivocal offer' that is matched by a clear and 'unequivocal acceptance'. Courts and legal advisors use this general rule as it provides some degree of certainty. The rules of offer and acceptance that govern the formation of contracts are correspondence, nexus and communication. All three rules can be applied to new forms of communication as they are much quicker and easier to correspond with than post. However, even though the rules can be applied to quicker forms of communication, problems and confusions inevitably arise depending on the nature of the contract. Therefore in some cases, the rules of offer and acceptance may not be as clear and straightforward as it may first appear to be. One rule of offer and acceptance that determines when a contract is formed is that the offeror has to correspond to the offeree. According to Hugh Collins in his book Law of Contract, an 'acceptance must correspond exactly to the terms of the offer' and if the acceptance contains terms that are different to from the original offer then it 'fails to create contractual responsibility'1. This can be seen in the case of Gibson v. Manchester City Council [1978]2, where the City Council wrote to the tenant that they 'may' be prepared to sell the house at £2,180. However, the claimant wrote back asking for

  • Word count: 1570
  • Level: University Degree
  • Subject: Law
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Built Environment Law

Built Environment Law BN1104 December 2002 Assessment Tutor Julie Cross Written by Paul Angus Replying to a newspaper advertisement to order specific goods by post can be compared with stepping into the unknown. Not only is the customer required to pay for the goods advertised up front, but also an element of good faith is required in order to receive the correct goods ordered. Compared to anyone entering a shop who has the opportunity to inspect & review the goods on show before happily handing over the money to purchase them. This essay will concentrate on a particular purchase of goods between Lisa and M.J. Electrical. Having advertised a top of the range video recorder in a newspaper, Lisa took up the offer and duly sent a cheque for the money stated in exchange for the video advertised. However, instead of receiving the model advertised, she actually received a model that was not up to the same specification. To advise Lisa as to the best course of action to take it is necessary to examine the Law of Contract. This essay will attempt to examine the various options available, although in doing so the legal implications over the dispute between Lisa and M.J. Electrical require the relevant rules on formation of contract to be explained to fully assess the situation. Also relevant information on past law cases will be quoted if seen to be relevant to give examples

  • Word count: 2692
  • Level: University Degree
  • Subject: Law
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Certainty of Objects and Beneficiary Principle.

Certainty of Objects and Beneficiary Principle. The point with the Certainty of Objects is that a trust is only made legal and enforceable if the beneficiaries are clear and obvious. Beneficiaries are recognised as the equitable owners of a trust property, this is since about 1805, prior to this trust property belonged to the trust and the beneficiary was not recognised as the owner. The case of Morice v Bishop of Durham is central to the development of trust law, it hinged on the fact that the beneficiaries of the trust could not be ascertained, the trust was to be a charitable one and the beneficiaries were to be 'charitable or benevolent'. This was held to be too vague and on appeal in 1805 it was decided that not every benevolent purpose could be considered a charity and therefore there was no ascertainable beneficiary. Following this decision limits were put on what could be done with a trust, and the identification of all beneficiaries became crucial to the enforcement of the trust. The courts were quite restrained in their ability to administer a trust, if they did act then their decisions had to be justiciable. However for this to happen it was necessary for the Settlor to be very clear on what criteria should be used if it became necessary for the court to execute the trust. Therefore from this rationale it is clear that a court cannot be expected to act where a

  • Word count: 1142
  • Level: University Degree
  • Subject: Law
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EQUITY AND TRUST

Re: Madge Moneybags OPINION I am asked to advise Madge's executors as to the validity of the dispositions and bequests made by Madge. My instructing solicitor, Ms R Smith, has set out the facts sufficiently and I shall refer to these instructions whenever necessary in my opinion. (1) The Validity of Trust of the Madge Mansions in favour of Gwynneth A valid express trust is one which is intentionally created by a settlor when he effectively declares a trust. It seems that Madge intended to create a trust by transferring Madge Mansions to Brad. Therefore, a trust will arise only if a valid declaration of a trust is made and there was an effective transfer of the property to Brad (see, Milroy v Lord (1862) 4 De GF & J 264). For an effective transfer of land or the interest in land, a deed is required by s.52 of the Law of Property Act 925 as otherwise it will be void and my instructing solicitor has transferred the legal title of the property to Brad to this effect. As far as the declaration is concerned, s.53(1)(b) of the Law of Property Act 1925 provides that a declaration of trust in relation any land must be manifested and proved by some writing signed by some person who is able to declare such trust. The writing is only required as evidence of the declaration (see, Foster v Hale (1798) 3 Ves 696). Thus, the writing of the actual declaration is not necessary as long as

  • Word count: 1984
  • Level: University Degree
  • Subject: Law
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The reality of the Community's constitution lies not in the words of the Treaty, but in its creation

The reality of the Community's constitution lies not in the words of the Treaty, but in its creation Introduction. It is clear that both the Commission and the European Court of Justice have important roles to play, as supranational institutions, in the integration of Europe. Both have shown themselves to be powerful and influential. I shall now endeavour to analyse the exact importance of the roles they play within the European Community (hereafter refered to as 'the EC') before concluding which, in my view, is the more dominant. With regards to the Commission I intend to show the vital role it has to play in the creation of legislation, be it primary or secondary, and in the protection of the Community's goals and objectives. This is done both by means of regulations and directives and by ensuring such regulations and directives are implemented by Member States. Finally I shall briefly mention the Commission's role as the international representative of the Community. Moving on to the European Court of Justice I will demonstrate the key part it also has played in the promotion of a united Europe. This has been done through the creation of doctrines such as direct and indirect effect, mutual recognition and state liability, as well as that of EC supremacy. Having closely looked at these two institutions I shall lastly look at their dependance on each other before

  • Word count: 5114
  • Level: University Degree
  • Subject: Law
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To what extent has the 1986 and the 2000 legislation succeeded in meeting this objective?

AC339 Business Restructuring " Our aim is to restore respect for the law of insolvency and to ensure that the solutions which it is called to provide are as fair and equitable as can reasonably be achieved in the interests of justice": Para 1982 Report of the Review Committee: Insolvency Law and Practice. Cmnd 8558 To what extent has the 1986 and the 2000 legislation succeeded in meeting this objective? Word count: 1562 Muminur Rahman BA Accounting and Management [email protected] Introduction This study begins by discussing some historical developments of insolvency law before the Insolvency Act of 1986, I will be dwelling on a number of discussion specifically upon the influence of the report by the Review Committee on Insolvency Law and Practice (Cork Committee) to the 1986 legislation, secondly focusing on the Insolvency Act of 2000 and then briefly discussing the Enterprise Act of 2002, furthermore this study would discuss the benefits Insolvency law to stakeholders of company and society at large, arguably recent studies have augmented the less honourable mechanisms that are available for insolvency practitioners resulting in conflict of interest, practitioner further escape scrutiny because of the veil promoted by statutory legislation, this we will also discuss later as well as some proposals for future changes. This study begins by looking at the

  • Word count: 1744
  • Level: University Degree
  • Subject: Law
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To what extent do principle and policy affect law?

"Duty is the primary control device which allows the courts to keep liability for negligence within what they regard as acceptable limits and the controversies which have centred around the criteria for the existence of a duty reflect differences of opinion as to the proper ambit of liability for negligence". [Winfield & Jolowicz, Tort, 17th edn, 134] Discuss, with reference to 3 cases which you have studied. The first element of negligence under Tort Law is the existence of a legal duty of care. This is, essentially, the relationship between the defendant and the claimant by which there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant. The leading case in this area of law is undoubtedly Donoghue v Stevenson1[1]. In this situation there was no binding contract between the two parties, however liability was found due the fact that product sold caused material physical damage to the claimant due to the negligence of the defendant. Here, the already established manufacturer, consumer relationship applies. Though, Lord Aitkin then formulated the "neighbour principle" to limit the scope of future claims on the grounds of what the courts regard as acceptable. Only when this principle could be applied, could there be a duty of care. However, various legal journals suggest that Donoghue v Stevenson was fabricated slightly by the

  • Word count: 878
  • Level: University Degree
  • Subject: Law
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