Role of Judiciary and Parliament in the English Legal System
“The Judiciary has a greater influence on the English Legal System than Parliament”
Critically discuss this statement, and particularly focus on the role of the judiciary and of parliament and the level of their influence. Come to an evidenced conclusion on whether you agree with this statement or not. Use legislation and case law within your answer.
The judiciary has been provided by the parliament to make legal decision based in their discretion in specific circumstances. This specific ability of the judges in relation to decision making is an aspect of judicial independence under the doctrine of separation of power. The judges are allowed to make a decision in relation to a legal matter amidst a variety of possible decisions where appropriate under the concept of judicial decision. However there are certain instances which have been seen in the history of English legal system where the judges have exercised the discretion beyond the restrictions set out by binding precedents and case laws along with the constitution[1]. This is identified as the abuse of the discretion provided to the courts as well as the undermining of the rule of law. In these situations the decision of the judges are as categorized as an act of judicial management. It may be therefore said that the judges in the English legal system have greater influence than the parliament.
The purpose of the paper is critically analyzes the statement in the light of role of judiciary and the parliament along with their influence on the legal system. The analysis is done in the light of case laws and legislation along with the available literature on the issue.
According to the principles of the doctrine of “separation of power”, the power of each wing of the government is different and kept independent from each other. In relation to the doctrine it is the role of the parliament or the legislature to enact laws keeping in mind the rights and limitations provided through the constitution[2]. On the other hand the judiciary has been provided with the power to implement the legislations which have been enacted by the parliament on practical situations[3]. They have the obligation to not go beyond what has been stated by the legislation while applying it to a factual scenario. The Judiciary only has the duty to give meaning to legislations which have been enacted by the parliament. In the same way where a legislation has been enacted by the parliament in relation to compliance of the constitution the parliament has no further role to interfere in relation to its implementation. The courts do not have the power to analyze whether a law passed by the parliament in compliance with the legislation is correct or not. However whenever the parliament has passed a law the court has the right to challenge its validity if such law is not within the powers provided by the constitution[4].
According to the doctrine of Parliamentary sovereignty the court is not allowed to conduct the judicial review of primary legalization which is acts of the parliament. The concept of judicial review is dominated by the doctrine of Ultra vires. As per the doctrine an act cannot be beyond the powers which have been provided by authority. However the doctrine of Parliamentary sovereignty has been said to contain wide error of law as stated in the case of Anisminic v Foreign Compensation Commission[5]. In addition in the case of Council of Civil Service Unions v Minister for the Civil Service[6] the court declared a decision made under the royal prerogative as amendable to judicial review. Thus it can be stated that judicial review has been initiated to prevent the abuse of power and protection to individual rights.
Doctrine of Separation of Power
There are situations where there may not be applicable law enacted by the parliament. The facts of the case may be such that if the existing law is applied to the situation than it may result in circumstances which are legally unjustified. In such situation the courts have been provided with the doctrine of equitable remedy[7]. As per the principles of the doctrine in such situation the courts have the discretion to make a decision which may not be in compliance with the will of the parliament. One of such situation had been seen in the case of Pennington v Waine[8]. In this case the precedent law was that a transferor has to do all steps necessary in relation to giving effect to a gift. However in the given case the transferor did not company with the provisions of section 183 (4) of Companies Act 1985 and it was stated by the court that the gift was complete as there would be always something which a person could have done more.
The principle of statutory interpretation also provides the courts to give a particular meaning to parliamentary provisions where the meaning of such provision is not clear or ambiguous. Although the courts have to interpret legislation in relation to certain rules such as the golden rule, the literal rule or the mischief rule, the courts may utilize the principles of statutory interpretation to indulge in judicial activism. It has been argued by Coutinho et al. (2105) that the principles of statutory interpretation provides the judges with the power give their own meaning to the provision and this has been done by the judges even where the meaning of the provision was clear[9]. As provided in the case of Abley v Dale (1851) Jervis CJ. In addition as pointed out by Barnett (2017) where too much of discretion is provided it is leads to unequal implementation of law and an undermining of the rule of law[10].
There has been a considerable debate in relation to punishing sentences provided by the judges which are not in compliance with existing legislations. The parliament has enacted the Coroners and Justice Act 2009 according to which the judges have to strictly follow guidelines in relation to sentencing other than merely having regard to them.
It has been agued by Huxley-Binns (2017) that where governments are subjected to changes and in the light of corruption they make seek to enact laws which are against the public interest in order to trigger personal interest the courts have to use their discretion so that the constitution can be protected[11]. From the above discussion it is also clear that although the courts have indulge in acts which are not within the powers provided to them, such acts have been rare and very less frequent. In order to establish that the courts have a greater influence in the English Legal System it has to be provided that the courts indulge in a behavior which is not within their role in a very frequent manner.
The influence of the parliament is evidently more in any legal system and the English legal system is no different. The parliament have the ultimate law making power which the court have to abide by in most of the situation and they only deviate from such compliance when they do not have any other option. In addition the powers to deviate from such compliance have been provided to them by the parliament itself such as the principles of statutory interpretation and judicial review.
In the given situation it can be stated that the court actually go beyond their role in relation to implementing the wish of the parliament. However these powers have been provided to the courts by the parliament themselves. Although there are a few instances where the courts have deviated from the provisions enacted by the parliament, the influence of parliament in the English legal system is still significantly more than the courts. This is because the parliament have the power to enact any law which they want under the doctrine of parliamentary sovereignty and the courts have no right to challenge its validity for instance the Coroners and Justice Act 2009. Thus the judges in the English legal system do not have a greater influence than the parliament.
References
PrimaryCases
Pennington v Waine [2002] EWCA Civ 227
Anisminic v Foreign Compensation Commission [1969] 2 AC 14
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
SecondaryJournal Articles
Barnett C, Luís. P., Torre M. L., and Steven D., eds. ‘Judicial activism: an interdisciplinary approach to the American and European experiences’. (Vol. 44. Springer, 2015.)
Malleson, Kate. ‘The new judiciary: The effects of expansion and activism’. (Routledge, 2016).
Coutinho, L. P., Massimo L. T., and Steven D. S, eds. ‘Judicial activism: an interdisciplinary approach to the American and European experiences’. (Vol. 44. Springer, 2015)
Books
Jackson, R. M. The machinery of justice in England. (Cambridge University Press, 2015).
Partington, M. Introduction to the English legal system 2016-2017. (Oxford University Press, 2016).
Martin, J., The English Legal System, (eBook ePub. Hachette UK, 2013).
Gillespie, A., The English legal system. (Oxford University Press, 2013).
Jackson, R. M. The machinery of justice in England. (Cambridge University Press, 2015).
Malleson, Kate. ‘The new judiciary: The effects of expansion and activism’. (Routledge, 2016).
Partington, M. Introduction to the English legal system 2016-2017. (Oxford University Press, 2016).
Martin, J., The English Legal System, (eBook ePub. Hachette UK, 2013).
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Anisminic v Foreign Compensation Commission [1969] 2 AC 14
Gillespie, A., The English legal system. (Oxford University Press, 2013).
Pennington v Waine [2002] EWCA Civ 227
Coutinho, L. P., Massimo L. T., and Steven D. S, eds. ‘Judicial activism: an interdisciplinary approach to the American and European experiences’. (Vol. 44. Springer, 2015)
Barnett
Huxley-Binns, R., Martin. J., and Frost. T., Unlocking the English legal system. (Tayloar & Francis, 2017.)
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