Importance of Constitutional Law

TASK 1

Evaluating the extent to which the UK judiciary has showed its willingness to uphold the rule of law in against to the executive and legislature

Constitutional Reform ACT 2005.

Constitution law clearly states the relationship between the judiciary, executive and the legislature. The constitutional reform act 2005 was introduced by UK government on 3 April 2006 after getting royal assent on 24 March 2005. The role of Lord Chancellor has highly affected as such reform came into force. This reform has also strengthened the independent aspect of judiciary. Constitutional reform act 2005 is separated into 7 parts which include 149 sections and 178 schedules. This act contains the provision in relation to the appointment of judge.

Before the new constitutional reform act 2005, the role of the Lord Chancellor is seem like controversial. His roles and responsibilities were in conflicting in relation to the doctrine of separation of powers before the reformation of the act. Such doctrine consists of that the power of the state needs to be bifurcate in the three bodies named as judiciary, legislature and executive. Division of the power states that all the bodies have the power to perform their roles and responsibilities in an effective manner. Nevertheless, the Lord Chancellor is the member of cabinet and head of the judiciary. Thus, he was entitled to hear the case which is appeared in courts. This conflicting condition sheds light on the incompatibility of the constitutional act that Lord Chancellor would be partial in against to the government when they act as a judge in the court.

Thus, in order to reduce the conflicting situation, constitution reform act 2005 came into the force. This act contains that Lord Chancellor has the responsibility to ensure that the system of justice or court performs their functions in an efficient manner.

Constitutional reform act 2005 states the rule of law which represents that law is equal to the every person whether they are legal authorities or individuals. The rule of law is doctrine represents that each and every person must obey the rules which are developed by UK government. No mercy is considered by judiciary when the people do any wrongful action. The rule of law is formed by taking into consideration all the essential elements which are enumerated below:

Legal certainty

Rule of law places more emphasis upon the legal certainty which states that laws which are passed in UK need to applied in an appropriate manner. Once legislation is passed by the government then judiciary needs to apply while they give judgment about the case. Judiciary needs to impose fine upon the person or sent him to jail if a person is found with the offense. In addition to this, if person including both government and public breaches the law then judiciary has right to give suitable punishment to them without any biasness.

Equality

It is another important element or aspect of the rule of law. On the basis of this element, each and every case should be treated on the equal basis. It represents that each citizen has right to protect himself or herself from the discrimination which takes place within the state (Hazell, 2015). No one can say that the rule of law is different from person to person. For instance: Judiciary has responsibility to treat all the persons on the equal basis. The definition of crime, offense or breach is similar to everyone. If political authority do any wrongful act then judiciary has responsibility to give fair judgment on that.

They must treat the political or government authority as same as they treat the general public. In addition to this, rule of law also states that individual cannot be treated unfairly on the basis of their ethnic and religious views.

Fairness

The rule of law also places more emphasis upon the fairness which states that law which is passed by the UK government needs to be published in an effective manner. Through this, citizens of the state are able to see and access to the act. Besides this, it also states that main features of law must in the written format which prevents unfair discrimination. In addition to this, terminology of the law or legislation must in the form that individual can easily understand it.

Retrospective

The rule of law also emphasizes that the law cannot go backward. On the basis of the retrospective aspect, judicial authority cannot punished the person if the present law never assume that act as a crime.

Due process

This element of the rule of law clearly states that judicial authority can punish the person only on the basis of evidence. Without any evidence, judiciary has no right or power to give punishment to the person in relation to the fine or imprisonment. Along with this, it also emphasizes that judiciary needs to give chance to each person to present their aspects which prove that they were not committed the mistake or crime (Bishop, 2014). If court does not give any chance to the person or the lawyer of the prosecution then court is entitled to compensate that person for the damages due to the loss of their personal liberty.

The rule of law can be seen in the case of Entick v. Carrington (1765) 19 St TR 1030. On the basis of the court's judgment, police officer must show the warrant before entering or ceasing in the private property of the person. In this case, police officer went to the Entick's property and there by ceased their personal papers. Thus, in this court is entitled to compensate the Entick because they had ceased the paper and arrested him without having any warrant. In this condition, Entick losses his personal liberty on the basis of rule of law.

Along with it, the person cannot lose their personal liberty until and unless the action of the person is proved as a crime. A person has right to make use of their personal liberty unless it is not proved that they broke the legal rules and legislation (Gardbaum, 2014). It is one of the main principles of the rule of law which also protects individual against which the case is filed.

In order to assess the extent to which judiciary can uphold the rule in against to the executive and legislature, one needs to develop understanding about the following aspects:

Independence of the judiciary

Constitutional reform act 2005 places more emphasis upon the independent aspects of the judiciary. Nevertheless, it does not mean that judicial authority is separated from the other organs of the law named as executives and legislature. The constitutional reform act states that Lord Chancellor does not make interference in the decision making of judiciary (Spinelli and Goldblatt, 2014). In addition to this, Lord Chancellor needs to perform other statutory duties which are prescribed by this act in relation to the independence of judiciary.

Executive and judiciary

Relationship which exists between the executives and judiciary is substantially changed with the passing of Constitutional Reform Act and Human Rights Act. The constitutional Reform Act 2005 clearly states the separations of powers which took place in the legislation system of UK. Such act has created the distinct identity of the judiciary from the executives. In accordance with the constitutional reform act, judicial committee is recognized or considered as an independent court (Stathis, 2014). The Lord Chancellor is only the member of the cabinet as per the amendment which has taken place in the law. In according to this amendment, Lord Chancellor has no power to make intervention in the decision making of judicial authority. On the basis of this, aspect independency of the judicial authority is ensured through statue and constitutional convention.

As per the Constitutional Reform Act 2005, executives have no power or right to dismiss the judge of the superior court without any valid reason for the same. If judges give fair decision in relation to cases which are presented in the court then executives are not able to dismiss the judge from their position as well as functioning (Pritchett, 2014). Along with the superior courts, judges who function in the lower court are protected from the invalid dismissal as per the Constitutional Reform Act 2005.

In addition to this, persons who are the members of government department have no right to dismiss the member of the tribunals. This aspect provides relief to the judicial authority from the abuse of power by the government authority. Executives are not in the position to dismiss the judicial authority from their functioning (Delaney, 2014). Thus, it can be stated that executives and judicial authority have different functions, powers, duties and responsibilities. Constitutional relationship places more emphasis upon the aspect that courts need to respect all the act or functions of the executives within their lawful province. On the other hand, executives also have the responsibility to respect all the decisions which are taken by the judicial authority.

Thus, with the separation of powers, executives and judiciary are able to perform their activities and functions without any compromise. For instance: If court undertakes the judicial review of the national policy case and take decision to publish such information to the general public at large as well as to the other countries (Bishop, 2014). Policy or result of review is disclosed to the other countries as well that might threaten the status and position of UK in the international market. In this situation, executive and legislature make efforts to dominate the judiciary and there by limit the power of the judiciary (Pritchett, 2014). In order to remove such kind of dominance, Constitutional Reform, Act 2005 is formed that protects the right of judiciary and there by abolished the intervention of the other legal authority named as executives and le

UPTO50%

Avail The Benefit Today!

To View this & another 50000+ Free Sample

Enter Email

Submit