Home Random Page


CATEGORIES:

BiologyChemistryConstructionCultureEcologyEconomyElectronicsFinanceGeographyHistoryInformaticsLawMathematicsMechanicsMedicineOtherPedagogyPhilosophyPhysicsPolicyPsychologySociologySportTourism






THE JUDICIARY

The Judiciary (judges) has two vital roles in our constitution. First, where there is any dispute about constitutional law, the judges must decide what the law is. Their most important role, however, is to act as an independent check

 

40 • THE INVISIBLE PALACE —PART 2 THE CONSTITUTION

 

on the powers of the executive. Only the courts have the authority to stop any individual or body of persons from exceeding their powers, or making improper use of their powers. This is known as preventing an abuse of power.

There is no doubt that the Prime Minister and his Ministers, who are part of the executive, do have enormous power, and that power is all the greater when the Government has a large majority in the House of Commons. What happens, then, if it is believed that any member of the executive is about to abuse his powers and act unlawfully, or that he has already done so? Here again is a simple example:

 

• The Home Secretary has executive powers, exercised by his civil servants, to detain any person who enters the country as an illegal immigrant, and deport him back to his own country. What if an immigrant has been detained and is about to be deported, but he claims to be lawfully entitled to remain in the UK? How can he ensure that the Home Office deals with his case properly?

The answer is that the Home Secretary is responsible for the actions of all the civil servants employed by the Home Office; and however powerful he may be, if it is thought that he or anyone in his department has acted unlawfully—in excess (abuse) of his power or without reason—the Home Secretary himself may be taken to court.

The court will then have to decide if he has acted lawfully or not. If the court decides against the Home Secretary, it will make a court order—an instruction to him not to do anything unlawful, or to put right any unlaw­ful thing that he has done. In this case, if the court decides in favour of the Home Office, the immigrant will be deported. If it decides in favour of the immigrant, he will be released from detention, and allowed to remain in the UK.

 

Few people are aware of this aspect of the courts' work. It may not be well known; but it is of great importance. It concerns deciding disputes between citizens and the State, and these cases are heard in London in a special part of the Queen's Bench Division of the High Court, called the Administrative Court.

It is not unusual for Ministers to be taken to court; neither is it unheard of for Ministers to lose. For instance, from time to time the courts do indeed decide that the Home Secretary has exceeded his powers; and so even the Minister in charge of 'Law and order' is not above the law.

Judges have not always acted boldly to control the executive, but in a famous judgment in 1942, Lord Atkin expressed the need to do so:


THE INVISIBLE PALACE —PART 2 THE CONSTITUTION • 41


Date: 2015-01-12; view: 1058


<== previous page | next page ==>
NATIONAL GOVERNMENT | Liversidge v Anderson
doclecture.net - lectures - 2014-2024 year. Copyright infringement or personal data (0.005 sec.)