Public Law I – Sources of Power (PDF)

PUBLIC LAW I – SOURCES OF POWER The role of the Judiciary Dr Tarik Olcay University of Dundee Week 8  LEARNING OBJECTIVES Explain the roles of the judiciary Evaluate the judicial law-making power vis-à-vis the separation of powers doctrine ...

PUBLIC LAW I – SOURCES OF POWER The role of the Judiciary Dr Tarik Olcay University of Dundee Week 8  LEARNING OBJECTIVES Explain the roles of the judiciary Evaluate the judicial law-making power vis-à-vis the separation of powers doctrine  JUDICIARY One of the three branches of the state Legislature Executive Judiciary Courts, judges Resolves legal disputes – applies the law to disputes Complicated structure, due to the three different legal systems in the UK (England and Wales, Scotland, Northern Ireland) – three judicial systems the different types of courts within the three legal jurisdictions: criminal, civil, administrative Hierarchical structure  THE UK SUPREME COURT The constitutional meeting point of the three separate legal jurisdictions Serves as final court of appeal from most courts Exception: the High Court of Justiciary in Scotland – final court of appeal for Scottish criminal law cases Serves also as the final arbiter of disputes over devolution arrangements  THE ROLE(S) OF THE JUDICIARY Adjudication of disputes between two parties (litigants) Civil, criminal, administrative (judicial review) Act as a legal guarantee – if all else fails to exercise a legal right, a party can go to court Exercise the coercive powers of the state If a court has jurisdiction over a legal matter brought before it, the other party cannot avoid the proceedings Courts have coercive powers to ensure their judgments are complied with If a party refuses to comply with a judgment, they can be imprisoned for contempt of court Provides important checks and balances mechanism as part of the separation of powers doctrine  THE ROLE(S) OF THE JUDICIARY The doctrine of precedent Decisions of higher courts bind lower courts in future cases  guides the future conduct of people Through judicial interpretation, the practical meaning of legislation may change and people will change their form of conduct accordingly Judicial law-making Interpretation of legislation – meaning of legislation not always clear HLA Hart: core cases vs. penumbra cases: “no vehicles may be taken into park” core: cars; penumbra: bicycles, wheelchairs etc. The judge will have to choose between competing interpretations – and this will specify/refine the meaning of legislation Courts try, whenever possible, to give legislation a meaning that is compatible with the rule of law (from Week 3) Interpretation of legislation in a way compatible with Convention rights (Human Rights Act 1998, s. 3) Development of the common law – certain areas of law largely regulated by common law  JUDICIAL LAW-MAKING AND THE SEPARATION OF POWERS Judicial law-making not compatible with a pure version of the separation of powers Important that judicial law-making powers are limited Statutory interpretation – courts are limited by the text of legislation Common law – can be overridden by statute – parliamentary sovereignty