They are then implemented by the executive and enforced by the courts. Statute Law is the most important source of the principles and rules making up the British constitution because parliament is the sovereign body. An example of Statute law include: The Parliament Act (1911), which established the House of Commons as the dominant chamber of parliament. More recent example is The Human Rights Act (1998), which enshrined key rights in UK law. Secondly there is Common Law, Common law includes legal principles that have been developed and applied by UK courts.
Sample multiple-choice questions for the English Legal System module for LLB open learning 1. Which of the statements below most accurately reflects the constitutional position between the legislature and the judiciary: a) Parliament encourages the judiciary to make law through the process of statutory interpretation because it does not have enough parliamentary time to enact laws itself. b) Parliament is the supreme lawmaking body and the role of the judiciary is to interpret and apply law made by Parliament. c) The judiciary considers itself a primary lawmaking body equal to Parliament. d) It is the role of the judiciary, when interpreting statutes, to fill in the gaps in the statutes.
Judicial Creativity Under the theory of separation of power, Parliament makes UK law while the role of judges is to apply the law to the cases. However, in reality, do judges make/develop the law? Like Lord Radcliffe said in 1968 “there was never a more sterile controversy than upon the question whether a judge makes law. Of course, he does. How can he help it?” Judges in the UK do develop the law through both the operation of the doctrine of judicial precedent and statutory interpretation.
A core principle of the United Kingdom’s (UK) unwritten constitution is the doctrine of parliamentary sovereignty - described by British constitutional scholar Albert Venn Dicey as the ‘keystone of the law of the constitution’ . Dicey defines parliamentary sovereignty as follows: ‘The principle of Parliamentary Sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’. Dicey’s account of parliamentary sovereignty consists of a positive and a negative limb. The positive aspect is that Parliament, as the supreme law-making body of the UK, has the ability to legislate on anything it wants. The negative aspect is that once an Act of Parliament has received Royal Assent, no person or body can question its validity, not even the courts.
They and only they created law, in a pure absolutist state. The monarch would control the armies, regulate religious order, and bargain with nobility. Constitutionalism was based on agreed law through the parliament, balanced between government power and rights of the people. The parliament, consisting of the sovereign, is where the power resides in a constitutional state. The majority of power stands in the electorate and its representatives.
Common law, which has developed over many years becoming accepted due to court judgements. The laws and customs of Parliament re also a source of the constitution. Works of authority are also referred to as authoritative sources such as books by Dicey or Bagehot. Finally, European Union Law also impacts the UK constitution as the judgements of the European court of Justice, in general EU law has precedence over that passed by Parliament. A codified constitution is too inflexible and cannot adapt to the changing political circumstance, such as society changing.
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.
The role of the executive ‘..includes initiating and implementing legislation, maintaining order and security, promoting social and economic welfare, administering public services and conducting the external relations of the state. The judiciary is made up mainly of professional judges, and their main function is ‘to determine disputed questions of fact and law in accordance with the law laid down by Parliament and expounded by the courts and ..is exercised mainly in the civil and criminal courts.' The question which now arises is whether or not there should be a strict separation of each of the above functions. Locke stated: ..it may be too great a temptation to human frailty..for the same persons who have the power of making laws, to have also their hands the power to execute them, whereby
“In the UK constitution, how important is a separation of powers to the rule of law ?” The rule of law plays a fundamental role in the separation of the judiciary from the executive within the separation of powers doctrine. Dicey being the authority for the rule of law states that “not only that with us no man is above the law, but that here every man whatever he his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary man”, this quote confirms the separation of powers doctrine and the fact that no one is above the law or ever shall be above the law. Dicey also stated that, “ no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law ……..In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.” The rule of law has played a persuasive role in constitutional thinking by restating that no man is above the law or shall ever be above the law. This conception attempts to ensure that law is not secret arbitrary or retrospective, thereby limiting the discretionary power of the government. As judicial review is progressively being used more, the rule of law has played an even larger role.
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.