Настя 7.Why did Lord Reid declare Blackstone’s theory unrealistic? What criteria for judges in deciding disputes did Lord Reid single out in his theory?

If the operation of precedent is the precise science Blackstone suggests, a large majority of cases in the higher courts would never come to court at all. The lawyers concerned could simply look up the relevant case law and predict what the decision would be. In practice, then, judges’ decisions may not be as neutral as Blackstone’s declaratory theory suggests.

He argued that “everyone agrees that impartiality is the first essential in any judge. That means that he must not appear to favor either party and at the same time he must not take sides on political issues. When public opinion is sharply divided on any question no judge ought to lean to one side or the other if that can possibly be avoided. But sometimes we get a case where that is very difficult to avoid. Then Lord Reid thinks we must play safe. We must decide the case on the preponderance of existing authority”

If there was 'some freedom to go in one or other direction' there should be followed 3 main criteria: common sense, legal principle and public policy in that order.

Common sense is by no means a fixed quality – it may be common sense to an employer, for example, that pickets should not be allowed to disturb those employees who want to work, and equally common sense to those pickets that they should be able to protect their jobs in any peaceful way possible. Common sense may be as much a value judgment as public interest.

Настя 8. How was the uk constitution seen by Wolfe-Phillips and Elliot?

Wolf-Phillips - British political scientist, educator

Eliot - a poet, essayist, publisher, playwright, literary critic and editor

Wolfe-Phillips provides a convenient idealized description of the structure of the United Kingdom Constitution. It comprises:

• a revered head of state insulated from politics

• a government led by a prime minister with a parliamentary majority produced in a free and fair election by a mature electorate.

• Parliament “debates the great issues of the day, controls national expenditure and taxation”, criticizes the government, controls the executive and redresses grievances.

• The government is bound to carry out policy approved by the Cabinet and if it loses the support of Parliament it must resign.

• Each minister can be called to account for the working of his department by Parliament. If incompetence or maladministration is proved the minister must resign.

The “unwritten constitution” has the “virtue of flexibility”. The House of Lords is “removed from party politics” and can provide a “measure of restraint on the popularly elected transient majority in the Commons”. Courts could be regarded as another source of stability added to the monarch and the House of Lords, providing an independent forum for ensuring that government keeps within the law and tempering governmental decisions by applying widely accepted ideas of fairness and justice.

Wolfe-Phillips himself seems doubtful whether this ideal represents reality. He seems to regard electors as the dupes of party political propaganda, and elections as providing only a limited choice between party machines. He appears to regard members of Parliament as corruptly subservient to the prime minister and party discipline. The courts could also be regarded as of limited importance. Only the very poor (legally aided) or the relatively wealthy have access to the courts, and Parliament can readily undo the consequences of a judgment by passing a new law.

Elliot describe the cabinet as a group of politicians who sink or swim together, their parliamentary supporters as pledged to support them on pain of losing the chance of preferment, and the opposition as, by definition, an ineffective minority. Parliament, except in very rare circumstances, provides at best lobby fodder for the government.

(Parliamentary supremacy is, like Bentham's famous comment about “rights”, “nonsense on stilts”. “Into this increasingly rotten basket Britain has lobbed all its constitutional eggs” subject to a small number of marginal reforms - the ombudsman and select committees who can report to Parliament about allegations of governmental wrongdoing.)