Significance and Controversy
Controversially, Sir Robert Megarry VC implemented that the Police possessed prerogative powers under the Post Office Act 1969 , although the defendant has not itself claimed to have prerogative powers. It raised the assumptions that an Act of Parliament replaced most of the prerogative powers, as they are more clear and up to date. However, prerogative powers still exist, albeit there are no new prerogative powers. This case does not only accentuate on the existence of the prerogative powers but also approves Parliament's sovereignty. Alhtough Sir Robert Megarry has found that the interception is accordance to the law, the judge has urged Parliament to legislate the matter and has been aware of his limited power. He solely could not make a new law because Parliamentary sovereignty limits the courts to have such a discretion. Nevertheless, it was evident in the case that the court did not want to make a declaration on the thesis that the executive has acted unlawfully, as the prerogative powers were non – justiciable at that timeframe. However in Council of Civil …show more content…
As Dicey stated, the rule of law ''excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the government'' . In the Malone case however, it was held that the Police was immune and ignored therefore the rule of law, as there was no law covering the telephone tapping. Sir Robert Megarry VC stated that the action pursued by the Police was lawful by interpreting the constitutional principle, ''England is not a country where everything is forbidden except what is expressly permitted'' . The court in Somerset County Council, ex p Fewings (1995) disagreed with his interpretation. It was held that the rule of law states that executive actions must not breach positive law, which excludes the wide discretion of executive powers
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1. The court stated that they did have power to hear this case: "Since the court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers."
When the law enforcement searched Wurie’s phone, they did not have a warrant to have the illegal evidence from his cell phone, moreover, it required the court to reconsider Wurie’s sentence. Furthermore, the case of the United States v. Olmstead, Olmstead was suspected as a bootlegger, therefore, got the federal agents to install wiretaps in the basement of his building, convicting him of being a bootlegger with the illegal evidence that got from the wiretaps. Most people argued that the federal agents violated Olmstead’s Fourth and Fifth Amendment, but the court agreed that it did not violate those amendments and that the Fourth Amendment did not require a warrant for wiretapping, if listening devices were outside of the home. Also, in the case of Mapp v. Ohio, law officials convicted Mapp of possessing obscene materials after an illegal police search of her home for a fugitive. However, during they're illegal search they didn’t find evidence of being a suspect to a crime, they still arrested for obscene materials they found during the search. Since the law officials search was illegal, the Supreme Court agreed that the evidence of the obscene materials be concealed in court by providing a limited
... a very strong separation between Executive and Legislature, and the Judiciary – Members of Parliament and Government ministers cannot sit in the Judiciary and interpret the law. There is not, however, such a strict separation between the Executive and the Legislature, as the Executive sits in Parliament as well.
Separation of powers between executive and legislative bodies also helps to prevent the abuse of power, but only with appropriate checks and balances. Checks and balances work by creating a conflict of interests between the executive and the legislature, yet requiring both bod... ... middle of paper ... ... Howard) decision to impose a 15 year tariff on the two boys who killed two year old James Bulger – Jack Straws intervention was heavily criticised by the Lord Chief Justice Woolf. The Lord Chancellor indicated that the Government might occasionally refuse to follow judges’ rules on cases under the Act – a statement used as evidence that Mr. Straw might refuse to give us his sentencing power in cases such as that of Myra Hindley (Straw stated that life should mean life for Hindley whereas the Lord Chief Justice said that her case had not been dealt with correctly).
The ability of police to exercise discretion was originally designed to allow officers to maintain the peace by allowing certain types of crime to remain unpunished in certain circumstances. This essay will aim to explore the issue of police discretion that suggests that the application of discretion works against the interests of Aboriginal and Torres Strait Islander peoples. In drawing this conclusion, this essay will examine the relationship between policing ideals and the use of discretionary powers and the relationship between policing attitudes and the use of discretionary powers. A discussion regarding the use of police discretion towards Aboriginal and Torres Strait Islander peoples can scarcely be mentioned without making reference to arguably the greatest failing by a police officer since indigenous Australians were formally recognised as citizens. Further to this, the case of Mulrunji Doomadgee (Cameron) will be examined from the point of view of officer discretionary powers. The penultimate point to be made will involve the Anglo Australian response to this case as well as the ongoing relationship between indigenous Australians and the institutions that govern them. As mentioned, the first point will involve policing ideals and their relationship to discretionary powers.
Hird and Blair, ‘Minding your own business – Williams v Roffey revisited: Consideration reconsidered’  JBL 254
However, she can enforce some powers directly. There are also some situations in which the Crown may need to have some direct influence. On the whole, however, the executive enforces prerogative powers. Outdated powers that can be put fourth by the Government without recourse to Parliament is one of the core concerns regarding the Royal Prerogative, and remain uncertain due to the fact that they are not entrenched in statue. Government ministers, in the past, have declined to react to cross-examining on them and held that they are not accountable to Parliament for providing consultation or information touching on prerogative powers.
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. The English legal system is ostensibly embedded on the foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions. 1.
What does power have to do with fairness and justice? Within society, power enforces the people within that particular country. Power is achieved by being liked and highly favored by a community of people. The higher an individual is in economic status the easier it becomes to be treated fairly with proper justice. Whoever holds the most power decides what is just and fair however, it might not be so fair to the other individuals who do not hold the ability to have power.
Historically the prerogative was exercised by the monarchy, the majority of powers are now used by ministers, and very few remained the personal preserve of the sovereign. The extent to which the judiciary and the legislature are able to regulate the exercise of prerogative powers by the executive has increased. However, there are still some who are concerned by the lack of control that can be exerted by the other constitutional bodies.
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.
This type of rule of law is upheld through administrative law and by the practice of judicial review. This states out the fact that ‘no one is above the law’ , although there are some aspects that can undermine this factor. Take for instance the powers of the prime minister who’s powers are based solely on the Royal prerogative which is not subject to judicial
The rule of law, simply put, is a principle that no one is above the law. This means that there should be no leniency for a person because of peerage, sex, religion or financial standing. England and Wales do not have a written constitution therefore the Rule of Law, which along with the parliamentary Sovereignty was regarded by legal analyst A.C Dicey, as the pillars of the UK Constitution. The Rule of Law was said to be adopted as the “unwritten constitution of Great Britain”.