Unelected does not Equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary

2008 ◽  
Vol 13 (2) ◽  
pp. 1
Author(s):  
Marilyn Warren
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Judicial Power ◽  
Executive Power ◽  
Judicial Activism ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
The Common

<p>One feature of judicial life that strikes most appointees to judicial office early on is the silence of the Judiciary outside our judgments and statements in court. We are also struck, when we deliver our first judgment that raises controversy or higher public interest, by the vulnerability of the Judiciary to<br />criticism, sometimes vehement and trenchant. Judges do not answer back. With the exception of Chief Justices, judges are generally only heard in court, unless the speaking occasion involves an extra-curial or academic discussion on the law or judicial life. This is properly so. Yet, when the criticism comes, it is troubling. Judges understand the constitutional and<br />governmental conventions that operate and within which they work. The conventions are not complicated, in fact quite simple. The only regret is that they are forgotten or overlooked when the criticism is made. For this<br />evening’s purpose I would wish to reflect on the conventions that judges work within. I will set out the traditional and modern views on parliamentary sovereignty. I will address the doctrine of separation of powers and the role of judicial power. I will postulate that, in modern government, it is the rule of law that is sovereign. I will consider the judicial role and the development of the common law. I will address the topics of<br />judicial activism, the election of judges and judicial accountability. I will conclude with the view that the complaint of judicial activism is misplaced and involves a misapprehension of the judicial function. For some, the high<br />water mark of judicial activism was Mabo.1 For some, the nadir of judicial ‘inactivism’ was Al Kateb.2 These swings of the pendulum in the discussion of judges’ work are not new. In 1956, Boilermakers’3 was an unsatisfactory outcome for some. Similarly, in 1948, the Bank Nationalisation4 decision provoked criticism. When Chief Justice Dixon restrained the Victorian Government from carrying out the execution in Tait,5 criticism ensued. However, each time judicial power prevailed over parliamentary and executive power. Was that undemocratic? My discussion does not say anything new. It has been said before. But, it needs to be said again. I turn then to the topic for consideration.</p>

3. The features and sources of the UK constitution

2021 ◽  
pp. 43-70
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
International Treaties ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
Constitutional Conventions ◽  
The Common ◽  
The Uk

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

Appraisal and Review

2020 ◽  
pp. 255-276
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Executive Power ◽  
Late Nineteenth Century ◽  
Home Office ◽  
Final Destination ◽  
The Common ◽  
Future Direction

The concluding Chapter scrutinises the validity and relevance of the book’s hitherto unseen archival files, from which its account stems. In pulling together its main themes concerning the role of civil servants, the Executive and the Judiciary in administering criminal justice, it retraces the trajectory of suspects’ rights in the late nineteenth century, from their seemingly ‘bedrock’ foundation within the common law to their rough distillation (at home and abroad) through various iterations of Judges’ ‘Rules’, themselves of dubious pedigree. In documenting this journey, this Chapter underscores how Senior Judges, confronted by Executive power impinging upon the future direction of system protections, enfeebled themselves, allowing ‘police interests’ to prevail. With Parliament kept in the dark as to the ongoing subterfuge; and the integrity of the Home Office, as an institution, long dissolved, ‘Executive interests’ took the reins of a system within which much mileage for ‘culture change’ lay ahead. This Chapter helps chart their final destination; ultimately, one where new Rules (the CrimPR) replace those exposed as failures, leading to governmental success of a distinct kind: traditional understandings of ‘rights’ belonging to suspects and defendants subverted into ‘obligations’ owing to the Court and an adversarial process underpinning determinations of guilt long-disbanded in the quest for so-called ‘efficiency’. In explaining the implications of the events discussed in this book for the issue of ‘Judicial Independence’ and the ‘Separation of Powers’, this Chapter offers a theoretical framework that illuminates the role and practices of the Senior Judiciary in criminal justice policy today.

13. The judiciary

2021 ◽  
pp. 303-326
Author(s):  
Anne Dennett
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Judicial Power ◽  
Executive Power ◽  
The Rule Of Law ◽  
External Influences ◽  
Political Interference ◽  
The Uk

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

13. The judiciary

2019 ◽  
pp. 288-310
Author(s):  
Anne Dennett
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Judicial Power ◽  
Executive Power ◽  
The Rule Of Law ◽  
External Influences ◽  
Political Interference ◽  
The Uk

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

Rule of Law and Common Law

2020 ◽  
pp. 166-188
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Policy Making ◽  
Common Law ◽  
The Rule Of Law ◽  
History Of ◽  
The Common ◽  
Locus Classicus ◽  
Law Making

This chapter argues that the conflict earlier described between the executive and the judiciary should reset the debate about the meaning of the ‘rule of law’. To this end, it explores the implications that the history of the Judges’ Rules has for both the ‘Rule of Law’ and the role of judges in relation to the common law. By shedding light on the ambiguous nature of the Rules, it first questions whether they were ‘law’, and if so, whether judges could be said to legitimate authors of them—itself a controversial and heavily contested notion. In this regard, it examines the principal justifications for judicial law-making, and questions how these might relate to other major judicially created or endorsed features of the modern criminal justice landscape, namely, state-induced guilty pleas and the Criminal Procedure Rules (CrimPR). Additionally, it challenges the locus classicus of Tom Bingham as to the meaning of the ‘Rule of Law’. By focusing on the ignored value of adversarial proceedings, it demonstrates how Bingham’s celebrated analysis of the Rule of Law is flawed and its list of ‘ingredients’ left wanting. In consequence, it argues that those transformative initiatives conceived outside formal adversary structures (including the Judges’ Rules, state-induced guilty pleas, and the CrimPR) cannot meet the tests of legitimate policy-making or the rule of law. The chapter ends by looking beyond the debate on judicial law-making in order to address a related deep-seated problem that arises from judges’ involvement in setting criminal justice policy: their entrenched homogeneity.

THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW: CONCEPTUAL CONUNDRUM OR INTERPRETATIVE INQUIRY?

2002 ◽  
Vol 61 (1) ◽  
pp. 87-125 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Common Law ◽  
The Other ◽  
Current Debate ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
True Meaning ◽  
The Common ◽  
The One

THE essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada

2017 ◽  
Author(s):  
Newman Warren J
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Constitutional Theory ◽  
First Principle ◽  
The Rule Of Law ◽  
Administrative Action ◽  
Parliamentary Sovereignty

This chapter considers the meaning, scope, and application of three constitutional principles of surpassing importance in Canada. The rule of law is foundational to Canada’s constitutional framework and may properly be characterized as the first principle of Canadian constitutional law. It is linked to, and in some respects, forms the underpinning for other fundamental principles, including constitutionalism, federalism, democracy, and parliamentary sovereignty. As the latter principles are the focus of chapters by other commentators in this Handbook, this chapter will examine the rule of law primarily in relation to the separation of powers and judicial independence. The principle of judicial independence is also essential to the functioning and structure of the Constitution, given the role the courts are called upon to play in policing the constitutional limits of legislative power and administrative action. The separation of powers is still an emerging principle in Canada, but also increasingly viewed as fundamental.

scholarly journals In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law

2009 ◽  
Vol 22 (1) ◽  
pp. 187-203 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Public Reason ◽  
Separation Of Powers ◽  
Political Judgment ◽  
The Rule Of Law ◽  
The Public ◽  
The Common ◽  
Fundamental Law

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

Part II Institutions and Constitutional Change, C The Courts, Ch.11 Courts, Administrative Agencies, and the Constitution

2017 ◽  
Author(s):  
Sossin Lorne
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Judicial Independence ◽  
Access To Justice ◽  
Constitutional Change ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Administrative Agencies ◽  
The Common

This chapter sets out the constitutional foundation for courts and administrative agencies in Canada. It examines the constitutional foundations for Canadian courts, including Canada’s constitutional texts; unwritten constitutional principles such as judicial independence, access to justice, and the rule of law; quasi-constitutional statutes such as the Supreme Court Act; and the common law Constitution. The chapter next considers the constitutional foundations for administrative agencies, particularly around the extent to which agencies can implement and are subject to the Constitution. Finally, the chapter situates the discussion of administrative agencies against the backdrop of Canada’s separation of powers, including emerging dynamics flowing from Indigenous self-government.

scholarly journals Conceptualising A Role for The Common Law in Environmental Protection in Singapore

2021 ◽  
pp. 1-20
Author(s):  
Kenny Chng
Keyword(s):  
Comparative Analysis ◽  
Environmental Protection ◽  
Rule Of Law ◽  
Environmental Governance ◽  
Environmental Law ◽  
Common Law ◽  
The Rule Of Law ◽  
The Common

Abstract In Singapore, the key institutions driving environmental protection are the legislature and the executive. The judiciary's role in environmental protection has thus far been relatively minor. By drawing upon environmental law theory and comparative analysis of other common law jurisdictions, this article explores avenues through which the common law can be engaged more meaningfully to further environmental protection in Singapore. A conceptualisation of environmental law as directed at furthering the rule of law by promoting carefully-considered and participatory environmental governance will be suggested as a fruitful way forward for thinking about the role of the common law in environmental protection. Drawing upon this theory, as well as the experience of other common law jurisdictions, the article proposes a set of concrete steps by which greater common law engagement with environmental protection in Singapore can be achieved.

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