However they do have the ability to make suggestions to possibly amend the law through highlighting flaws. The judiciary cannot make judgments past the jurisdiction of the law even in interests of natural justice. A strong example of this was the Belmarsh Case, where judges believed the system of holding foreigners against the will under the anti-terrorism act contradicted with human rights. This law was subsequently changed. This could pose some doubt as to the judges power, as although they can not officially change laws, they clearly have the power to suggest changes with ease, and some could argue that despite Lord Neuberger’s claims, they do indeed undermine parliamentary sovereignty through their suggestion of changes.
This clearly shows an effective protection of liberty by judges. Furthermore, a vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over lawfulness of a case. It is not focused on the rights and wrongs of a case, this would be a case for appeal courts following the above methods, judicial review is simply an examination of the lawfulness of a case. For example, in the case of Home Secretary v. AP 2010 an appeal allowing the government to detain AP on a control order
Two types of Stare Decisis have been identified: horizontal stare decisis and vertical Stare Decisis. Horizontal Stare Decisis binds the issuing court to its own prior decisions. Vertical Stare Decisis requires that courts of lower rank follow decisions of higher courts. Vertical Stare Decisis has a stronger effect, in that lower courts generally cannot overrule decisions of higher courts, whereas a court may, given adequate reasons to do so, overrule itself. DICUSSION When a
d) It is the role of the judiciary, when interpreting statutes, to fill in the gaps in the statutes. 2. Consider the following statements and decide which statement or combination of statements is correct: i) The judiciary creates law as it thinks is appropriate. ii) The judiciary can create law through statutory interpretation. iii) The judiciary creates law as frequently as Parliament.
Primary legislations or those made my higher courts can only be change and made compatible with the ECHR with a declaration of incompatibility by the House of Lords, Judicial committee of the Privy Council, Court of Appeal and the High Court. Section 4 of the Human Rights 1998 Act “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2)If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” All authorities including courts and tribunals must act in a way that is in compatible with the ECHR. If an individual believes their rights have been infringe by a court or tribunal, they can bring a matter against the public authority or rely on their convention right from proceedings brought by others. If the UK laws are contrary to the ECHR, then the UK law must be voided.
So how can judge create law through the doctrine of precedent? The basic doctrine means every court in the UK is bound to follow any decision made by a superior court and in general, appellate courts are bound by their own decisions. Although this appears that the courts are not allowed to develop law, there are ways in which the judicial precedent can be avoided, in turn, allowing
Therefore some cases, often those of importance but little media interest, can go unreported. In deciding whether they have to follow a previous decision, the judges must first decide whether the material facts of the cases are sufficiently similar. If the facts are materially different, the court may distinguish the case from the earlier case and so apply a different rule. To decide what the material facts are, the court must look for the general principle which the earlier judges used. This combination of the rule of law and the material facts is known as the ratio decidendi.
Primarily, the court systems of the two countries are grouped into several different levels of adjudication from the central to local levels. Secondary, both court system has two levels of adjudication is the first instance and appellate cases are divided into criminal and civil cases. Furthermore, both of the court system applies the appointment to judges. However, the populations of the systems differ greatly in the independence and operating principles of the courts and there is an important difference in their composition. Firstly, in the United Kingdom, parliament is the legislative body is also the highest authority in the court system of the United Kingdom, senate performing the trial through the appellate committee of the senate, parliament became the final level trial for all criminal and civil in the UK whereas in Vietnam, state power is unified, with the assignment and coordination among state agencies in the implementation of legislative, executive and judiciary.
Essay tittle:’Although the Human Right Acts 1998 has impacted on the Judicial understanding of precedent,the underlying features Of the doctrine remain unchanged.’ The doctrine of judicial precedent is based on one the concept that like cases must be treated alike.The doctrine is based on the notion of stare decisis et non quieta movere,meaning to stand by decisions and not disturb that which is settled.In a common law system a huge part of the laws are made up of decided cases ie judge made law or case law.These decisions by the judges carries a great weight therefore necessarily be binding on later judges to ensure certainty and fairness within the system.The precedent of stare decisis safeguards the notion that judges make arbitrary decision.In a common law system precedents is the very essence of what moulds the system and gives it unique character. The Human Rights Act 1998 was intended to protect human rights and civil liberties in domestic law. However, it should not be forgotten that the Act has also affected the general legal system.Perhaps most significantly, the Act creates new rules on the following of precedent, as s.2 of the Act states that the domestic courts must take into account the decisions of the European Court of Human Rights when determining any question involving any Convention right.The inclusion of s.2 in the Act thus begs the question whether the traditional principles of judicial precedent are now abandoned in place of a rule which compels the domestic courts to follow the decisions of the European Court of Human Rights.However, as Convention law was never intended to be supreme over member states' domestic law,and the European Court of Human Rights has always offered member
Question 2 Although the doctrine of precedent allows some flexibility, it fundamentally requires judges to respect the hierarchy of the courts . Discuss The doctrine of binding precedent or stare decisis, lies at the heart of the English legal system. In essence the doctrine refers to facts that within the hierarchical structure of the English Court, a decision of the highest court will be binding on a court lower. When a court makes a decision in a case, any court which is of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. Moreover, the doctrine requires that like cases should be treated alike in the interests of consistency and certainty of the law as well as a fairly rigid hierarchy of courts.