Opinion on Judicial and Parliament Activity
Date of submission:
Opinion on Judicial and Parliament Activity
In order to have a free and a well mannered society, it is necessary to have laws that bind people. Without laws, the state has no chance to survive with the constant chaos and conflicts erupting from either side of the country. This is the main reason why authorities and lawmakers promulgate laws in order to govern the conduct of the people within its territory. When you take a closer look to the statement here, there are two sides that are brought forth by this argument.
There are different processes involved in order to make and change laws in England which shall be our main focus. The law is a necessity in each country therefore, the process of making laws requires major attention. Different states are governed with different rules and processes on how to make laws. However, law-making is set aside to the legislative department of the government. The legislature is responsible for the making and the amendment of laws. Moreover, countries also differ in the processes to be followed in law-making and their consequent amendments. The main aim of making laws in each state is to ensure peace in the country and maintain equality for all the citizens. However, there are other aims of law including conflict resolution and justice. However, some of these objectives are not achieved.
Parliament is the greatest organ that is greatly involved in the formation of laws. However, to some extent the judiciary is made a part of the formation committee. Parliament is the organ of the government that is entrusted with making new laws and amending the existing one. The representatives in the house represent the wishes of their people. Decisions are made based on a simple majority. However, before legislators pass a reform, they consult the judiciary, which in the organ to oversee implementation and respect of reforms.
As stressed above, the focus of this paper is to explore the law-making process and the sources of law in England.
As stated above, the paper takes a look at the exploration the processes involved in making laws in England. The areas in which the laws of the land will be sourced from is also acritical area of study in this paper. In this regard, the government plays a critical role in their law-making process. According to the Lord Norton of Louth (2004) the laws that are made are formulated into a coherent form of which is done by the executive. Initially this would involve the royal family however, currently it is done by parliament which is part of the government (p. 5). It can be gleaned from this statement that law-making in England usually and practically originates from the executive department of the government, wherein bills are drafted after discussions and consultative meetings with the people’s representatives. It is only after the executive has made a draft of the bill that it is presented to the Parliament for the required approval.
The Role of Parliament
Parliament is the legislative arm of the government and plays a major part in law reforms. The laws made in parliament are made through the following three stages: pre-legislative scrutiny, legislative scrutiny and post-legislative scrutiny. These stages can be broken down into the following processes initiation, preparation, drafting, scrutiny and passage of Bills by the Houses of Parliament, Publication of Acts and Legislative review. A bill does not come from the parliament rather it is the executive that develops and formulates it.
Before a bill is drafted the government usually conducts consultations first. Here the public’s participation is invited and all stakeholders that will be affected by the bill for instance civil servants. This stage is very crucial as it is in this stage that forms and shapes ideas into the proposed legislation. The stakeholder’s suggestions and recommendations are considered are considered when preparing the bill. The bill is then put into writing to inform parliament on its content. After the pre-legislative preparations the next stage is the legislative scrutiny. The end product of the pre-legislative preparations is the draft bill which is tabled before parliament for their approval into law. This stage involves discussions about the content of the draft bill by both the House of Lords and House of Commons. Changes and amendments are made to the draft bill at this stage. The final stage is the post-legislative scrutiny where the reconciled draft bill is presented for royal ascent into law. After royal ascent the bill becomes law.
Parliament consists of two houses the House of Commons and the House of Lords. These two houses consist of representatives of the people and their main function is overseeing legislation of laws that are in the interest of the public. The bill undergoes First, second and third reading at the House of Commons. The first reading is meant to inform the members of the bill so as make them be aware that deliberations and discussions about the bills contents will start. At this stage the members may support the bill. The second reading involves the minister explaining the nature and purpose of the bill. At this stage important issues about the bill are raised.
The Role of the Judiciary
This paper emphasizes that Common law is an attribute of the English law system. Common laws are the unwritten legal set of guidelines which are subject to interpretation by the judiciary or the courts. An important aspect of the common law is the role of the judiciary or the courts. By interpreting the common law, the courts will make necessary judicial legislation. Judicial legislations connect the courts in all levels, including the lower courts. Accordingly, ''one of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that takes pleasure in the practice of prejudice or favour or even illogical whim. Therefore the main role of the judiciary is to adhere to the set guidelines of conduct and proper management of the law (Cardozo 1920 at p. 113).
This is the reason why judicial rulings should be standard and must be used as a legal principle regardless of the time that has elapsed. Legislation, in the form of judicial decisions must be based on the same norm and tradition known and practiced in the past. This kind of uniform adherence to judicial decision necessarily promotes convenience (Goodhart, 1934). Additionally, “having once decided a certain issue of law one way, it is only proper that the same conclusion is reached when a similar and indistinguishable issue arises….Moreover, the decision of the highest court sets a precedent that must be followed by the lower courts, and must be considered as a binding ruling, even if the lower court thinks otherwise (Cross, 1977). The common law makes use of the system of precedent. Precedent can restrict the flexibility to change when needed. Judges have developed means of avoiding precedent, such as overruling and distinguishing.
“Judges, as has been noted previously, in delivering judgements in cases do not separate and highlight the ratio decidendi from the rest of their judgement, which can lead to a lack of certainty in determining the ratio decidendi” (´The English Legal System, Garry Slapper, David Kelly´). Judicial action: The action of the judiciary is mainly to provide justice for the citizens. However, this is not achieved in many cases as was intended during the making of the judiciary. Judges can reform the law through the medium of interpreting Acts of Parliament and reinterpreting the common law. The House of Lords stressed that the common law must evolve in light of changing social, economic, moral and cultural developments.
Justice can be a difficult concept to define. At its most basic level justice may be said to refer to a situation where there is fairness in dealing with individuals or an event. Justice is often seen as being a balance between rights and obligations. There are many different forms of justice and many theories as to how justice should be exercised in a society. The forms and concepts of justice can be quite complex and comprise a course in their own right. The English legal system has developed rules of practice to guide a judge. The procedure in court is designed to reflect principles of justice. There are different forms of justice which include economic justice, social justice, distributive justice, corrective justice and retributive justice.
If a person takes to the courts to protest against certain laws, he or she can get judicial reprieve (Noah, p 50). This in some cases can be an example of changing a law by judicial process. However, this rarely happens. In fact, this is a poor way of trying to effect legal change. According to the set-up of the governance structure of the United Kingdom, courts are mainly supposed to interpret and enforce laws, not change or make them. The argument against this type of action has yielded the term ‘judicial activism’ (Noah, p 81).
Trying to change the law through judicial action could pose a threat to democracy in the country. This action can be termed as a myopic attempt to take over power. When a law is assumed to have been disregarded by the law courts, the parliament can take action and return the law back into use. The judiciary has no power over the parliament over this issue. Some would argue that the judiciary should get more power in a bid to make and amending of the laws. This has been experienced in the United Kingdom mainly and arguments are based on their legal prowess. The argument goes further to state that the judiciary will act only in accordance to the best of the laws of the land and not as a means of manipulation of political influence. The members of parliament usually pass a bill into law with the influence of politics. This makes some laws somewhat in favor of the members of parliament favor themselves (Noah, p 105).
The reality then is that there can be no real change of the law by the courts. Any changes that they purport to make cannot stand the test of viability under the current constitutional dispensation.
Law reforms are dealt with at the judicial level by giving suggestions in order to enhance justice and increase efficiency. Existing laws are evaluated by reform bodies through extensive research. The findings of the studies then propose recommendation that simplify and modernize the law. These bodies are set by the government and are independent to control and provide intellectual report on legal issues.