Judiciary Branch of Government

Judiciary Branch of Government in the United Kingdom

The Judiciary Branch of Government

Structure of the U.S. And UK Judiciary Branch

A Comparative Case Study

The structure of the judiciary branch of the government in the United States and the United Kingdom are quite different and the student which studies judiciary structure will readily agree with the statement of fact that textbooks in relation to the American government and politics pay substantial attention to the role of the judiciary; many textbooks on the government and politics of the United Kingdom have -- at least until recently -- virtually ignored the role of judges in the UK which leaves one asking exactly why that this is the case. . The purpose of this work is to research and examine the lack of information and attention to the role and function of the judicial branch of the UK government and to compare and contrast the judicial branches of the U.S. And the U.K.

Introduction:

It is common knowledge that the Constitution of the United States is preserved very studiously in a vault that is lowered into an airtight and secure chamber each evening. The United States Constitution in its written form is a treasured patriotic document symbolically as well as in substance as it states the premises on which America was declared to be independent and free of the sovereignty of the Crown as well as stating other inalienable rights that are held to be sacred by Americans who are patriotic and love the United States. There is a pronounced difference in the form of the U.S. And British Constitution in that the British constitution is not preserved in written form as is the constitution of the United States. Instead it is formed by statute in part, by law in part, by convention in part, and can be altered by general agreement for the creation, variation or abolishing of a convention and finally may be changed. Finally the constitution may go through changes or alterations due to an Act of Parliament. Although the sections of the government in the United Kingdom can often be observed overlapping one another each part of the government has a specific role to fulfill.

The United States of America is a democratic government and is characterized by the fact that most judges in U.S. Courts are "elected officials" who have taken the office based upon popular democratic vote. However, the British government is a Monarchy with the Queen being not only the head of State but also the symbol of the unity in Britain. The British royal title is: "Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith." Great Britain is the seat of the Monarchy. The Queen is the head of the judiciary, executive integral part of legislature, commander-in-chief of all the armies and the Church of England "supreme governor." Over the passage of time the royal role has been reduced to one that heeds advice of her ministers while Britain is officially governed in the name of the Queen by Her Majesty's Government.

I. The Legislative and Judicial Branch in the U.S. versus the U.K.

A. The United States:

The dual system in the United States is inclusive of both a federal government system as well as the 50-state system. The following chart shows the diarchal structure of the judiciary of the U.S.:

Supreme Court:

United States Courts of Appeals

United States Circuit Courts

Federal District Courts

All Federal Court Judges hold their judicial seat by appointment of the U.S. President which is subject to the approval of the Senate. Traditionally the state senators will nominate individuals for appointments to judiciary positions in the government. However, state and local judges are elected officials by having received a majority of the electoral vote.

Laws in the United States are for a large part based on "common law" specifically, "English" common law. Judges in England during the 12th century began their dispensation of law and cumulatively making decisions based on custom as well as precedent or previously adjudicated decisions. Precedent in law is often referred to by judges in the U.S. As stare decisis which is a Latin phrase which means to "stand by past decisions of law." Wise & Cummings (1981)

The U.S. Court system is defined or characterized in both the federal and state judicial structure by either being "civil" law or "criminal"

law. These types of cases are heard by judges on the bench, or the judiciary of the courts. However, in British government the parliament powerfully is able to legislate for the entire country of Britain. The judges in the U.S., elected officials, have guidelines that are generally set by prior rulings or "precedents in law," or that which has been decided in other cases and holds to be "true" within the scope of the mores of the society.

The United States Supreme court makes policy as well as law and is "insulated by tradition and judicial tenure from the turmoil in the American political system" but nevertheless the Supreme Court, "lies at the heart of the ongoing struggle in the American political system" (Wise & Cummings, 1981)

Under the terms of the Constitution the Supreme Court is granted the authority to hear "all cases arising under the Constitution." (Edward Mead Earle, ed. "The Federalist, No. 78 (New York: The Modern Library) p. 506 as cited by Wise & Cummings (1981) Although judicial review is considered to be valid in the structure of the judiciary in the U.S. The written concept did not occur until 1803. In the case Marburg v. Madison, 1803 which culminated when a debate took place between Hamilton and Madison during the same congress which debated the "Bill of Rights" with a decisive 'majority' of the delegates said to have been in favor of the principles of judicial review. The State Courts in the United States are composed of the following:

Court of appeals is a court that is often considered as being the "state supreme court" Wise & Cummings (1981) these court are the "financial judicial tribunals in the states." Wise & Cummings (1981)

Special jurisdiction courts are county level courts for handling of domestic relations, juveniles, probate of wills and estates, and special tasks in administration of law.

County Courts or sometimes called superior courts are the jurisdiction in which serious offense of a felonious or criminal nature is being tried as well as major civil cases of law with jury trials in many instances.

Municipal Courts which are also called city courts, police courts, traffic and even night courts are one step up on a general basis from the court of the magistrate and hears cases involving amounts between $500 and $1,000 as well as offense of a lesser nature.

Magistrates Courts are courts such as the justice of the peace who hear minor offense such as jaywalking and the like.

B. Great Britain:

The British parliament's authority is supreme however; it generally follows the common law in acting in accordance with precedent, or prior rulings of law and in line with tradition in the country of Britain. The Parliament is also referred to as the legislature.

The executive branch of the UK government is composed of:

The Government-Cabinet inclusive of ministers who have the responsibility for initiation and direction of national policy.

Government Departments responsible for administration at the national level.

Local authorities whose responsibility is the administration and management of local services.

Public Corporation whose responsibility is operation of the nationalized industries such as social and cultural provisions of services which are under the control of the ministers in differing degrees.

The judiciary makes determination of the common law and interpretation of statutes and is an independent of the executive and legislative branches of the government in the United Kingdom.

Key functions in the Parliament are identified as those of: passing laws, providing the means of carrying out the government's work through taxation, scrutinizing policies and administration of government including the budget proposals, and finally to debate the political issues that are on the minds of the majority for the day. Each group of Parliament serves a maximum length of five (5) years but it is general knowledge that the dissolution of the Parliament occurs before the end of each term with another being elected through means of a general election. Each Parliament has a life of two sessions. On a general basis the sessions each last one year. The United States Supreme Court is the U.S. Court that holds the highest and most supreme authority in judicial matters in the country. The Supreme Court is only one component of what has been referred to as being a "fragmented ... decentralized system of justice." Cummings & Wise (1981)

The House of Commons: Election of members to the house of common is done by vote and is comprised of 650 Members of Parliament (MPs). Each country has a prescribed number of seats as follows: England fills 523 seats; Wales fills 38 seats, Scotland fills 72 seats and Northern Ireland fills 17 seats. Chief Officer of the House of Commons is the Speaker who is elected by the MPs. The "House of Lords" is comprised of the "Lords Spiritual" and the "Lords Temporal." The Lords Spirituals are comprised of the Archbishops which are from Canterbury and York; Bishops from London, Durham as well as Winchester; Twenty-one (21) diocesan bishops who are most senior of the Church of England. The Lords Temporal consist of those individuals which are either are all the hereditary peers and peeresses of England, Scotland, and Great Britain. They are the United Kingdoms hereditary peers and peeresses as well as life peers that are a creation for giving the House assistance in its duties and lastly of all other life peers.

Appeals from the Court of Appeals in England and Wales as well as Northern Ireland both civil and criminal plus from the Court of Session in Scotland on civil matters are all heard in the House of Lords. Appeals from a Divisional Court of the Queen's Bench Division of the High Courts in Both England and Wales as well as the High Court in Northern Ireland are heard here as well. Court Martial Appeals are also heard in the House of Lords. Statutory provisions govern the guidelines upon the right to appeal is based upon for this court with differing time limits as well as other factors. Presently there exist twelve Lords of Appeal in the Ordinary whoa re in the position by appointment from among the Lords Justices of Appeal and are generally inclusive of two judges from the Scottish bench. Former Lords of Appeal in the Ordinary and former Lord Chancellors as well as those holding or having held other judicial office of a high nature hold entitlement to sit as Law Lords under the Act however it is unusual if more than a few of them sit more frequently than upon occasion. Since 1876 the House of Lords in discharging judicial duties has been comprised of professional individuals. The Appeal Procedure in inclusive of three phases defined as: The "Preparatory Phase," "Hearing Phase, and the "Judgment Phase."

The Prime Minister has the power to confer by Sovereign advice hereditary as well as life peerages upon individuals and is generally done for giving recognition in politics or other services to the crown. The Lord Chancellor presides over the House of Lords. Permanent officers in the House of Commons are inclusive of the "Clerk of the Parliaments" whose responsibility is for records of House proceedings as well as the promulgation of Acts of Parliament. The Clerk acts as accounting officer and House staff administrator. The highest court in the United Kingdom is the House of the Lords, Supreme Court of Appeal. Decisions made in this court are binding on all lower courts on all points of all for the entire United Kingdom inclusive of civil cases in the countries. Decisions are also binding in relation to criminal cases for the countries of England, Wales, and Northern Ireland.

The United Kingdom Courts are the Queen's Courts and The Queen is responsible for all appointments to the judiciary and acts on the advice of ministers. Generally judges will be appointed from among practicing "barristers," also called advocates and solicitors in parts of Great Britain. Collectively barristers are referred to as the "Bar" or "Counsel" in when referred to as a group. The responsibility of the solicitor differs somewhat from the barristers and the advocate contains differences in functioning as well. Undertaking legal business for individual and corporations are the solicitors. Barristers give advice in relation to legal problems which has been previously submitting via Solicitors and are to be presented in the higher courts. Both Solicitors and Barristers present cases in the lower courts and people represent themselves as well. Barristers and advocates belong to the General Council of the Bar of England and Wales, the Faculty of advocates in Scotland and the General Council of the Bar of Northern Ireland and finally the Executive Council of the Inn of Court of Northern Ireland.