What powers should the Judiciary have? - Conor Gearty's challenge

Separation of powers is a fundamental principle of our democracy. Power is divided between the legislature (parliament), the executive (government) and the judiciary. What power should judges have vis-a-vis the executive and the legislature? 

 

  • Should the courts be able to strike down legislation that is incompatible with the constitution? (Judicial Veto)
  • Should the courts, issue a declaration of incompatibility where they believe legislation to be incompatible with the constitution?
  • Should judges be able to scrutinise and challenge the way in which a decision has been made by a public body/local authority/regulatory body.  (Judicial review) 

 

 

 

 

edited on Mar 16, 2015 by Daniel Regan

ConstitutionUK Apr 10, 2015

Please vote on one of the comments below to help us refine this article. There is also a similar idea posted here: https://constitutionuk.com/post/80417 . Please check it out and let us know which idea you prefer by voting up or down accordingly. 

The ConstitutionUK Team

Malcolm Ramsay Apr 10, 2015

My post, 'Requirement for coherent law' – https://constitutionuk.com/post/84153 – also covers similar territory and considers what should happen if Parliament denies or ignores a Declaration of Incompatibility.

 

ConstitutionUK Apr 10, 2015

The courts shall have the power to strike down legislation that is incompatible with the constitution. 

John Z Apr 10, 2015

Yes, they would rule that it is "unconstitutional".

ConstitutionUK Apr 10, 2015

The courts shall have the power to issue a declaration of incompatibility where they believe legislation to be incompatible with the constitution.

John Z Apr 10, 2015

No, they would rule that it is "unconstitutional", as opposed to "incompatible".

ConstitutionUK Apr 10, 2015

The courts shall have the power to exercise judicial review. (The power to scrutinise and challenge the way in which a decision has been made by a public body/local authority/regulatory body.)

John Z Apr 10, 2015

Only if they have statutory authority to do so.  An aggrieved party with "legal standing" would have to sue that a public body violated a statute, then it would be up to the Court to rule on the merits of the allegation.  The Court shall not make unsolicited (or solicited) advisory opinions.

Ian Smith Apr 11, 2015

Dear All

All of this is covered by other ideas which were posted long before this and by a good deal of discussion and a large number of votes under those ideas.

The other ideas - which have now been further refined - are:

"The relationship between the constitution and ordinary statutes" (in constitution amendment topic); and

"Judicial Review" (in judiciary topic).

kind regards,

ian

Share