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relationship between the judiciary and government...
To be able discuss the relationship between the government and the judiciary it is first crucial to outline the Doctrine of Separation of Powers. According to this doctrine in any state, three essential bodies must exist: the executive, the legislature and the judiciary. The executive and the legislature branches make up the government. The role of a legislative branch within a government is to make laws. On the other hand executive branch deals with initiating policies, and puts the laws that are passed by the legislature into practice through organs such as local authorities, police and armed forces. The third essential body within a state is the judiciary. The role of judiciary is to adjudicate disputes between parties in a legal setting by relaying on the laws that are passed by the legislative branch. The system is design in this way because it is explained in the theory of separation of powers that if one body or person exercises too much power they might abuse their powers and this will put the general public in a disadvantaged position. If one body or person exercises excessive power in a state, that will mean that state is not being ruled democratically therefore crucial rights of the citizens will be in danger. Consequently it can be said that the system is designed in this way so that these three branches can act as a scrutiny mechanism on each other to stop one another from exercising beyond the powers that is given to them.
As my case study I will be considering the case of Lee v Bude and Torrington Railway Company. In this case the plaintiff alleged that an Act of Parliament which was crucial to his case was passed by Parliament as a result of fraudulent recitals. Therefore the plaintiff wanted the court to not to consider that act when they are making their judgement. This claim was rejected by the judges. Their judgment was justified by Judge Willes who also sat in the panel of judges for this case. He stated that judges are not eligible to question any Act of Parliament that has been passed by the Parliament with the consent of the Queen, the House of Lords and the House of Commons. He carried on by stating that even if an act has been obtained improperly the judges cannot overrule that act, this is because only the legislature has the power to correct that act by repealing it. Judge Willes had concluded his statement by saying; as long as that act exists as law the courts are bound to obey it.
The case study that is outlined above demonstrates that judicial branch of England is bound to follow the doctrine of Parliamentary Sovereignty even if they know that act is distorted in some way and that it will cause injustice. Therefore the relationship between the state and the judiciary can be concluded as the legislative branch being the more influential and powerful branch out of all the three essential institutions.
The case of Lee v Bude Torrington Railway Company reveals that in the contemporary United Kingdom constitutional arrangements may cause biased judgments. This is because the judges do not have the power to strike down an Act of Parliament due to the doctrine of Parliamentary Sovereignty. This means that individuals such the victims will be less willing to seek legal consultation because they would believe that their case may not be heard fairly. If individuals are reluctant to claim their rights using the criminal justice system this will mean that they will find other means of resolving their disputes, which should actually be resolved under legal consultation. This may lead to use of violence between parties. For individuals to not to lose their confidence in the criminal justice system they should be shown in practice that the judges are independent and impartial in their decision making powers. However this is very hard to obtain, because most of the senior judges are appointed by the Queen on the advice of the Prime Minister. This means that sometimes the judges may be biased in the way they approach the legislation that is passed by the Prime Minister who had appointed him. This causes further doubts in the minds of citizens about how effective justice can be delivered within the criminal justice system.
The doctrine of Parliamentary Sovereignty had been established in 1885, so it has a long history. The British government has been functioning according to this doctrine for a very long period of time. Therefore I believe that relationship between the courts and the government will carry on according to the rules that are outlined in this doctrine in the future as well. However I think carrying on following this doctrine will affect the criminal justice system negatively. Under the current system which follows the doctrine of Parliamentary Sovereignty citizens will doubt the justice that the criminal justice system is set up to deliver. I think if officials want individuals to trust the criminal justice system they should set clear boundaries between the state and the courts. One way of doing this is through establishing a written constitution. This will mean that the doctrine of Parliamentary Sovereignty will be neglected and the supreme laws will be outlined in a written constitution under one piece of document. This system is being used in USA at the moment and that has been the way USA has been governed since the War of Independence. In this system a written constitution is seen as the key feature in governing a state. This system enables the judiciary to be more independent and impartial from the parliament (the legislature and the executive) as under this system the judges have the power to overrule the normal laws that are passed by the parliament. They can overrule Acts of Parliament by stating that particular act is unconstitutional. This will also prevent one branch of the government from exercising excessive power as the judicial branch can act as an effective branch in scrutinising Parliamentary action. This will also enable the judges to deliver justice effectively and also protect the citizens’ crucial rights successfully.
In conclusion it can be stated that introducing a concept of a written constitution in Britain will be a time consuming process. If the government individuals are willing to undertake such an approach they should also make sure that there are additional rules which will ensure judicial independence until a written constitution is prepared. Overall I do not think such approach will be accepted by the British government as written constitution brings many disadvantages to the Parliament. For example it is very hard to amend a written constitution, whereas the system that is in practice in Britain at the moment is more flexible.
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