Applying the Act of Parliament
It could be argued that the broad perception of the general public is
that once a case is brought to a court, all that is required of the
judge is to look up the relevant statute and rule accordingly. In this
essay I intend to dispel this myth, and suggest that the reality is
not so simple. I propose to look at the reasons why interpreting
statutes is not as simple as one may anticipate, and explain the way
the courts have gotten around this fact, whilst considering the aids
that courts use when doing so. As Britain is now a member of the
European Community, I will also highlight some of the changes that
have been necessary when it comes to interpreting our statutes, and
finally consider some possible reforms to combat the problems, which I
will now go on to identify.
Despite the fact that expert draftsmen carefully draw up Acts of
Parliament, there are many occasions in which the courts find that the
implications of a statute for the case before them are not at all
clear.
F.A.R. Bennion (Statute Law, 1990) has identified a number of factors,
which may cause this uncertainty:
1. The draftsman may refrain from using certain words that he or she
regards as necessarily implied. The problem here is that the users may
not realise that this is the case.
2. A broad term was used, leaving it to the user to decide what it
includes.
3. An ambiguous word or phrase was used on purpose, perhaps because
the provision is politically contentious.
4. The events of the case before the court were not foreseen when the
legislation was produced.
5. The wording is inadequate because of a printing...
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..., our membership to the EC has somewhat compromised this
principle.
Having considered ways in which judges apply these statutes, it would
be fair to say that 'all a court of law can do with an Act of
Parliament is apply it' but we have identified many difficulties faced
in doing so.
During his judicial career, Lord Denning was in the forefront of moves
to establish a more purposive approach, aiming to produce decisions
that put into practice the spirit of the law, even if that meant
paying less than usual regard to the letter of the law. Whilst some
may see this as undermining the sovereignty of Parliament, it arguably
could lead to fewer absurd decisions, such as occurred in London and
North Eastern Railway Co v Berriman and would also bring the UK more
into line with the thinking of our European counterparts.
then prepares its reports. If a change to the law is decided on then a
first look at the validity of the court and of the entity of authority itself.
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
The American Court System is an important part of American history and one of the many assets that makes America stand out from other countries. It thrives for justice through its structured and organized court systems. The structures and organizations are widely influenced by both the State and U.S Constitution. The courts have important characters that used their knowledge and roles to aim for equality and justice. These court systems have been influenced since the beginning of the United State of America. Today, these systems and law continue to change and adapt in order to keep and protect the peoples’ rights.
law is adequate” ( 41). If the government seems to think the laws are adequate on a
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
‘The Parliamentary legislative process fails to achieve its primary purpose: it fails to ensure effective legislative scrutiny of Parliamentary Bills.’ Discuss.
Lord Hope notably proposed that ‘the rule of law enforced by the courts is the ultimately controlling factor on which our constitution is based’ . This was concurred by Lady Baroness Hale who stated that ‘the courts will treat with particular suspicion any attempt to subvert the rule of law’ although she acknowledged, ‘the constraints upon what Parliament can do are political and diplomatic rather than constitution.’
One of the most influential and celebrated scholars of British consistutional law , Professor A.V Dicey, once declared parliamentary soverignity as “the dominant feature of our political insitutions” . This inital account of parliamentray soverginity involved two fundamental components, fistly :that the Queen-in-Parliament the “right to make or unmake any law whatever” and that secondly “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” . However this Diceyian notion though an established principle of our constitution now lies uneasy amongst a myriad of contemporary challenges such as our membership of the European Union, the Human Rights Act and a spread of law making authority known as ‘Devolution’. In this essay I shall set out to assess the impact of each of these challenges upon the immutability of the traditional concept of parliamentary sovereignty in the British constitution.
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
in criminal law and Beckett Ltd v. Lyons [1967] 1 All ER 833 the law
‘Law as integrity’ embraces a vision for judges which states that as far as possible judges should identify legal rights and duties assuming that they are created by the public as an entity, and that they express the public’s perception of justice and fairness. This requires Dworkin’s ideal of Hercules, a judge of ‘superhuman skill, learning, patience and acumen’, to ask whether his interpretation of law could form a part of a coherent theory justifying the whole legal system. Law as integrity stipulates that the law must express one voice. Judges must accept that the law is based around coherent principles about justice, fairness and procedural due process, in all new cases which comes before them in order to treat everybody equally.
and the second is a free vote, this is when MPs are allowed to make up
In the mouth of a British constitutional lawyer, the term the rule of law seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...