LAW

LAW

LAW

'Central to the rule of law in a modern democratic society is the principle that the judiciary must be, and must be seen to be, independent of the executive.'

The courts are sometimes referred to as “lions under the throne” of the British Constitution. This expresses how eager the judiciary is to claw at government if they hinder individuals' rights and liberties. The judiciary takes an oath to dispense justice “according to the laws and usage of this realm, without fear or favor, affection or ill-will”. (Sweet 32-12)Whether it dispenses justice on an individual or on the government the judiciary should not fear scrutiny of any action it takes. The Act of Settlement 1700 offers independence and security to High Court judges (and above) who cannot be dismissed by the executive, only by Her Majesty on an address by both Houses of Parliament on circumstances of serious misbehavior may a judge be removed. Judicial security was later reinforced with the Supreme Court Act 1981 to ensure the judiciary's independence.

The judiciary must be independent of the executive to perform their functions properly. The judiciary must be seen to be independent and to garner public confidence for judges must be, and appear to be impartial at all times (public confidence deteriorated and the impartiality of judges was questioned in the Pinochet Cases which forced the presiding judges to balance political ethical and moral issues) .

The rule of Law

“The keystone of the rule of law in England is the independence of judges.” The rule of law is essential to ensure that the judiciary is independent so that they are able to perform their functions and secure a democratic society. Albert Venn Dicey has expressed this view in three key components which make up his concept of the rule of law. Dicey's principles have influenced the UK democracy even in modern times even though widely criticized by many.

The first principle is “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law is contrast with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint;” Dicey believed that individuals should not be subject to wide discretionary powers because wherever there is discretion, there is room for arbitrariness.

Ministers and other executive bodies are often given broad discretionary powers to use as they see fit. But the government of the day should also respect the law. This is illustrated in the case Entick v Carrington [1765] where the defendant had broken into the plaintiff's premises and seized some papers. The plaintiff brought an action for trespass, but the defendant argued tat he had a warrant issued by the government authorizing the trespass and seizure of the papers. (Maravall 43) The court refused to accept this and decided that as the government lacked any authority to issues ...