Administrative and Constitutional Law - Essay Example

? Administrative and Constitutional Law Explain the idea and function of parliamentary sovereignty in the UK constitution. Parliamentary sovereignty is a principle used by the UK constitution and makes the parliament a top legal authority1. Parliamentary sovereignty, as a principle in the UK constitution, that is capable of making and ending any law. It is one of the most important components of the UK constitution. Generally, UK is known to have unwritten constitution like in USA and Germany. However, much of the law passed in parliament are always in writing. This type of law is known as statue law. The principle or policy of UK’s parliamentary sovereignty is frequently presented to be a unique legal arrangement with no parallels in the comparative constitutional law. 2Parliamentary sovereignty gives unconditional authority to the Westminster parliament. Thus, it seems to rule out the comparison between the US Congress or the German Bundestag, whose authorities are limited by their constitutions and the Westminster parliament. Therefore, it is seen as unique and a product of the unwritten constitution. Constitutions are very important in countries organisation and development. They organise, regulate and distribute the state power. Constitutions set out most of the state institutions, the state’s structure and the principles that govern their relations with the citizens and the other states. In Britain, the constitution differs with other countries3. For instance, most countries have well written constitutions while Britain has accumulation of conventions, treaties, statues and judicial decisions, which collectively makes the British Constitutions. Therefore, the constitution is more of “uncodified” than “unwritten.” Parliamentary sovereignty is mostly considered as a defining principle of British constitution4. It is the final principle that makes and can abolish any law. Other major principles in the British constitution include legislative and judicial branches, rule of law, and separation of government into executive and the presence of a unitary state. Some of the principles are mythical or in doubt. The uncodified British constitution therefore has two main problems. For instance, it makes it hard to know the state of the constitution. Secondly, it is makes it simpler to make changes in the UK’s Constitution than in other countries. 5The flexibility of the constitution resulted into a number of reforms since 1997. The reforms include devolution to Wales, North Ireland and Scotland, elimination of most of the heritable peers in the House of Lords, and the introduction of individuals’ codified rights in 1998 Human Rights Act. The doctrine of parliamentary sovereignty was demonstrated in the case Jackson and others (appellants) v. Her Majesty's Attorney General where the plaintiffs challenged the validity of the Hunting Act 2004, which criminalised hunting of wild animals with dogs6. This Act was enacted pursuant to section 2 of the parliament Act 1911. Both the Divisional Court and the Court of Appeal dismissed the issue regarding the validity of Hunting Act 2004 because it was not an Act of the parliament. Various developments affect parliamentary sovereignty. Parliament has been passing laws that limit parliamentary sovereignty application7. The laws mainly reflect the political growth in and outside UK. The laws include The Human Rights Act 1998, the entry of UK to the European Union in 1972. The developments however, do not undermine parliamentary sovereignty because the parliament could abolish each law implementing the changes8. 2. The limits that the Human Rights Act place on the public bodies and Parliament? Human Rights Act 1998 is also referred to as the Act of the HRA. It came into existence in the United Kingdom in 2000. It mainly consists of a channel of parts that consists of effects that codify safety in the European Convention on Human Rights in the law of UK. The public bodies such as the police, hospitals, publicly funded schools, courts, local government among others and other bodies that practice public roles should or must comply with the conventional rights. This illustrates that individuals are able to refer their human rights cases to domestic courts. Therefore, they do not need to go to Strasbourg in order to discuss their cases in European Courts of Human Rights. The Act offers a set of freedoms and rights for individuals in the United Kingdom9. They include, right to fair trial, right to life, right to liberty and security, freedom from inhuman and torture, right to education freedom of expression and many others. The limits placed on the public bodies by the HRA are evident in the fact that the Act requires all public authorities to take into consideration fundamental human rights and freedoms when executing their duties and decisions. In other words, the courts have the powers to reverse the decisions and activities of public authorities that are tantamount to breach on the provisions of HRA. The courts are at liberty to carry out the following remedies in case a public authority breaches the Act10. The first remedy involves granting traditional “judicial review” relief as in the case of other civil cases as the court seeks to establish the lawfulness in the conduct and or decision of the public authority. Awarding compensation is another important remedy offered by the courts in case of breach of the human right and freedom by the public authority. The elements of the public bodies were highlighted in the case of YL v Birmingham City Council [2007] 3 W.L.K 112. the plaintiff wanted to stop a private home care where she was placed by the defendant pursuant to the section 21 of the National Assistance Act 1948 as the private home was exercising its public obligations within section 6(3)(b) of the Human Rights Act 199811. According to Alison concerning the repercussions of HRA for the parliamentary sovereignty, HRA grew out of need to offer huge protection to human rights without establishing them in a manner, which they would limit the parliament. 12The HRA wants the courts to read and provide effect to statue in order to make well suited with the rights in the European Convention on human rights. In case, it is impossible to get a convention that is compatible with the interpretation of the statue, then specific courts are authorized to offer non-binding Declarations of Incompatibility. Consequently, the parliament would decide whether to amend the incompatible legislation. The HRA appears to allow protection of human rights and freedom as well as protecting the parliamentary sovereignty13. This ensures balance between the democracy principles that are represented by the parliamentary sovereignty and human rights. In other words the limit placed on the parliament is evident on the fact that the parliament cannot make amendments or pass bills that interferes with the fundamental rights and freedoms of the public. HRA requires that all bills brought into both houses have to be scrutinised for its compatibility with the HRA an aspect that is not synonymous with other legislations. 14The courts are also expected by the Act to interpret all Acts of Parliament in way that they meet the HRA in order to declare whether they are compatible with HRA or not. This requirement is not applicable in other legislations thus creating a limit to the doctrine parliamentary supremacy. In UK, there has been little public education concerning the freedoms and rights as contained in the Human Rights Act. Therefore, many misunderstandings and myths have been formed about the HRA, including the values it contains and the people or organizations it protects. For instance, it is claimed that HRA duels much on right than responsibilities. Human rights and responsibilities are somehow bound together. HRA states that no right can be interpreted since everyone has the right to limit other people’s rights more than allowed under HRA. Rights are viewed as universal and alienable in nature as most of them appear with responsibilities. 3. Human Rights Act (HRA) limit on parliamentary sovereignty It is noteworthy that the Human Rights Act (HRA) has not gone too far in limiting the parliament sovereignty in the country. It is the responsibility of every country to protect inherent rights and freedoms of its citizens. 15The United Kingdom has had a long and superior history in perpetrating the recognition and recognition of fundamental human rights and freedom. For a fact, the UK has been important player in the Council of Europe, which was the genesis of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Human Rights Act (HRA) unlike majority of other laws covers the most important interest of the entire public taking into consideration that it seeks to protect the fundamental rights and freedom of everyone in the society irrespective of their social status, religion, age, and or gender16. For this reason the Human Rights Act since it was independently adopted in 1998 by the UK parliament it has remained one of the most important legislation in the country for the last three decades. Everyone understands that parliamentary sovereignty is one of the most important elements of the UK constitution. 17This is because the constitution extends to the parliament through the principle of sovereignty to be the supreme legal authority in the UK. However, over a number of years the UK parliament has been forced to come up laws that limit their sovereignty. The Human Rights Act of 1998 is one of such legislations that limit the principle of parliamentary sovereignty. 18This means that the parliament despite being the supreme legal authority in the land it cannot amend the provisions of the Human Rights Act 1998 to suit a particular situation or as per their wish. The Human Rights Act (HRA) influences the UK laws in three significant ways that contests parliament supremacy. First, the HRA requires that all UK laws be interpreted in a way that is compatible with the fundamental rights and freedoms of the citizens. The courts can declare Acts of Parliament found to breach HRA be incompatible and finally public authority is not expected to carry out acts that are incompatible with the HRA. 19The fact that HRA gives the courts the powers to issue non-binding Declarations of Incompatibility on Acts of parliament that they find incompatible does not in any way go too far in limiting the parliamentary sovereignty. This is because Act only seeks to protect the fundamental human rights while at the same time preserving the parliamentary sovereignty. This means that the main object of this Act is to strike a balance between the human rights and the principles of democracy, which is presented by parliamentary sovereignty20. This claim can be justified by the fact that as much as courts can declare an Act of Parliament incompatible it cannot rule on the validity of the law. In other words, the court cannot overrule the decision of the parliament. The Human Rights Act preserves the Parliamentary sovereignty in the sense that recognizes the role of the parliament in making laws by allow the parliament to decide on whether to amend laws that are incompatible with the Act or not21. The fact that the parliament alone has the discretion of deciding whether to or not to amend or repeal legislations that are declared incompatible with HRA is a clear justification that the HRA does not exaggerate its limits on parliamentary sovereignty22. The “dialogue model” adopted by the HRA is another important claim that can be used to justify the fact that HRA limits on parliamentary sovereignty is not too much. The “dialogue Model” allows the parliament to invite the courts to highlight when legislation is incompatible with fundament rights and freedoms of the civilians in order to give the parliament ample time to decide what to do with the bill in question. 23It is noteworthy that Section 19 of the HRA calls for all Ministers in charge of Bill in both the Houses of parliament to issue a non-binding executive statement before the Second Reading of the Bill. This is means at ensuring that the Minister states his/her personal view on whether the bill is compatible with the HRA or not but the government however intends to push the bill ahead. The Joint Committee on Human Rights (JCHR) is another important tool used in harmonising the principle of parliamentary supremacy and rule of law as the committee is charged with the responsibility of scrutinizing draft legislations for its compatibility with the HRA24. Bibliography A, Wegner, Does parliamentary sovereignty still reign supreme? (2011), Accessed < http://www.guardian.co.uk/law/2011/jan/27/supreme-court-parliamentary-sovereignty> A, Young, Parliamentary Sovereignty And The Human Rights Act, Vol. 19 No. 9 (September, 2009) pp.700-704 D, Feldman, English Public Law, (Oxford: Oxford University Press, 2009). G, Facenna, Introduction to the Human Rights Act: How it Works, (2003), Accessed < http://www.monckton.com/docs/library/Introduction%20to%20HR%20Act%20Feb%2003%20-%20GF.pdf> House of Lords House of Commons Joint Committee on Human Rights, Seventh Report of Session 2003–04, (2004), Accessed < http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf> How the Human Rights Act Works, (2012), Accessed < http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/how-the-human-rights-act-works/index.php> Human Rights 2, Law Obsever, (2012), Accessed, Human Rights Act, (2011), Accessed, < http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/documents/digitalasset/dg_070456.pdf> Human Rights and Equality Law, 2010 Accessed, M, Pinto-Duschinsky, Bringing Rights Back Home, (2011) Accessed, < http://www.policyexchange.org.uk/images/publications/bringing%20rights%20back%20home%20-%20feb%2011.pdf> P Plowden, & K Kerrigan, Advocacy and Human Rights: Using the Convention in Courts and Tribunals, (London: Routledge, 2001) P, Butler, Human Rights And Parliamentary Sovereignty In New Zealand, 2004, Accessed < https://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/pdf/vol-35-2004/issue-2/butler.pdf> P, Eleftheriadis, Parliamentary Sovereignty and the Constitution, (2009), Accessed P, Eleftheriadis, Parliamentary Sovereignty and the Constitution, (2009), Accessed, < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1486146> Parliamentary sovereignty in the UK constitution, (2012), Accessed < http://www.parliament.uk/about/how/sovereignty/> Public authorities under the Human Rights Act 1998, Accessed < http://www.justice.org.uk/pages/public-authorities-under-the-human-rights-act-1998.html> R, Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom, (Cambridge, UK: Cambridge University Press, 2011). S, Chakrabarti, CommonSense: Reflection on the Human Rights Act, 2010, Accessed, http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/commonSense.pdf The Human Rights Act, Equality and Human Rights Commission, Accessed < http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/> The Legislative Supremacy Of Parliament, (2007), Accessed The supremacy of Parliament, Accessed, < http://www.historylearningsite.co.uk/supremacy_of_parliament.htm> UK Constituional Law Group, (2012), Accessed, V, Bogdanor, Sovereignty of Parliament or the Rule of Law, (2006), Accessed, < http://www.runnymede.gov.uk/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/Magna%2520Carta/Lectures/Sovereignty_Parliament_or_the_Rule_Law> W, McKusick, A Dignified Void: The Decline of Parliamentary Sovereignty and the Rise of Conventional Judicial Review in the United Kingdom, (2012), Accessed < http://students.washington.edu/wulr/archive/Winter_2012/McKusick_Winter12.pdf> Read More