The European Communities Act 1972 - Article Example

Jackson Constitutional Law With reference to case-law, outline what you understand the traditional (or orthodox or continuing) view of parliamentary sovereignty to be. How, if at all, does the European Communities Act 1972 represent a challenge to the traditional view of sovereignty' The United Kingdom has no written constitution not like other states or countries, it has always been the Parliament that has been regarded as the supreme authority with regard to statutes and laws are concerned. The exercise of the Parliament to draft its laws is the only way subsequent statutes can be in conformed to considering that there is no written constitution. Parliamentary sovereignty has three elements: (1) Parliament can make any law whatsoever and no body or any court can question any Act of Parliament; (2) no Parliament can bind either itself or any of its successors; and (3) no limit can be placed on the territorial extent on any of the Acts of Parliament. The first of the elements is known as the Enrolled Bill doctrine. It states that the duty of the judiciary with regard to the statutes of Parliament is to analyze through the Parliamentary Roll and nothing more in addition to it and that the judiciary must give fundamental respect and conclusiveness over whatever acts of Parliament, especially if it is with regard to the statutes passed therein. The second main element is known as the implied repeal rule which states that subsequent Parliaments can expressly or impliedly repeal any previous passed statutes made by the present and past Parliaments for the reason that subsequent parliaments Jackson 2 possess the same powers and authority to all prior parliaments that ever existed. Further stating that the implied repeal rule also shows that the past Parliaments cannot hinder future parliaments from exercising their legislative authority. The last main element is known as the territorial extent doctrine which emphasizes that parliament can enact statutes that are outside its territorial jurisdiction of the United Kingdom, such as the High-jacking Act of 1982, it states that high-jacking is punishable even if the crime is committed outside the territorial jurisdiction and sovereignty of the United Kingdom. Some limitations to this provision exists, such as that when the law requires that a certain procedure must be done in order that previously enacted statutes may be amended. An example is the requirement of a referendum among the people of Northern Ireland with regard to the concern of some of its territories. In the Manner and Form thesis it clearly defines the limits where the courts may intervene and even to point of invalidating an act of legislature such as with regard to those procedures and compositions but not on the area of its exercise of power. Therefore implying that it's power to change the law includes the power to subsequently change the law which will affect itself because the legal sovereign may impose on itself some legal restriction upon its acts. This is a contentious issues as long as the enrolled doctrine bill is in effect and recognizing both Parliament and the courts of law. Another big challenge to the Supremacy of the Parliament are the legal effects of the European Community which is incorporated in the UK legal system through the European Communities Act of 1972 and was asserted in the case law Mccarthys v Smith Jackson 3 (1979) 3 All ER 325 which states that specific Treaty as not only in aid of legislation and legal implementation but as having the force and effect of law which must be given priority over and above other national laws. Taking into consideration the Factortame cases which give the distinction as what kinds of repeals parliament can make with regard to treaties are concerned. This is shown in pertinent cases that parliament just cannot just impliedly repeal acts which have conflicts with the international treaties signed by the UK but may do so if there is an express repeal. As evidenced by a statute that was actually invalidated for its failure to conform to the international treaty. In view of all these, there is definitely a confusion as to which approach is to be used in relation to parliamentary sovereignty. The most coherent and realistic in application as stated in the Factortame cases is that it clearly categorizes the kinds of statutes which may only be amended expressly or impliedly, not unlike in the traditional view wherein all statutes may be repealed even without any qualifications. This particular distinction of great importance because this recognizes the hierarchy of law that presently exists in the UK legal system. 2.'The Court's analysis in Jackson means that it is open to the House of Commons to enact further amendments to the Parliament Acts regime under the Parliament Act 1911, just as it did in 1949, thereby unilaterally augmenting its ability to legislate without the support of the Lords' (Elliot 'Bicameralism, sovereignty, and Jackson 4 the unwritten constitution [2007] 5 International Journal of Constitutional Law 370, 375). I agree with Elliot's analysis that the courts have the power to amend Parliamentary Acts unilaterally, thereby augmenting its ability to legislate even without the support of the Lord's1 , though this statement may have some implications that must be looked into. Let us now analyze the dicta on sovereignty in relation Jackson and examine them in the view of the debates that have been done. A judge who wishes to see the replacement of the Diceyan interpretation of sovereignty is constrained by law, not withstanding, that the courts have the power to strike down any incompatible legislation. It may adopt any one of three controversial strategies if an occasion arose to rule on the matter. Firstly, a suggestion might be to say that the previous understanding of the traditional Diceyan was just a misinterpretation of constitutional tradition: further that Parliament was never sovereign in that sense. On the other hand, it may be suggested that the doctrine of sovereignty's content have considerably changed since Dicey wrote it, however, the traditionalists have failed to realize the extent and change that has already occurred, i.e. Parliament is not sovereign anymore. Lastly, it may also be suggested that, though there have been substantial changes have already occurred appurtenant thereto, it is more appropriate to take further steps and to declare a new concept of sovereignty ____________________________ 1 Elliott' s (Bicameralism, Sovereignty and the Unwritten Constitution (2007) 5 International Journal of Constitutional Law 370, 375. Jackson 5 which is more suited to the contemporary understanding of the more appropriate constitutional structures. For both the first and second approaches it could be supported by the Dworkinian methodology which gave credence to the arguments on arriving at the principle of the preferred interpretation of sovereignty. The third approach would be incompatible to the Dworkinian methodology if it is represented by less than the imposition of the moral and political preferences of the judge. Thus, to be credible as an interpretation of the constitution, it should pass the said requirements to fit and give justification thereupon. If the judges interpretation of the constitution passed these tests, then in actuality it would be very difficult to establish the difference between the third approach and the others. These three approaches stated above would also be compatible in principle with the positivist analysis though in actual practice it is difficult to give arguments for holding that the courts already have the said power to review in view of the materials that have been presented. On another point of view, what if in some future case where a panel of judges would be more in adherence to the views of Lord Hope and Steyn and Hope that leaned more on the second approach thus declaring that they were not in any way obliged to give effect to statutes that were presumably incompatible with the rule of law' According to Goldsworthy's argument that it will not be sufficient for a mere majority of judges in the Jackson 6 House of Lords2 to be convinced just to accept that they have the power of judicial review. As for the other institutions of government (and most probably the people) would gave to be convinced to accept this allegation of judicial power. If they will not be able to do so, then the court's ruling would be practically ineffective. As to the suggestion of Goldsworthy he stated that a 'unilateral rejection of the British courts of the doctrine of parliamentary sovereignty is not likely to be meekly accepted by the other branches of government.3 3.In 2008, the Government pursued its policy of promoting the forced sale of second homes by announcing its intention to give councils powers to acquire second homes compulsorily. The (imaginary) Second Homes (Compulsory Purchase) Act 2008 is passed with the result that councils may acquire second homes upon payment of a specified level of compensation to the home owners. Section 1 of the 2008 Act states; 'The provisions of this Act shall be unalterable save with the consent of three-quarters of both Houses of Parliament and the majority of those voting in a referendum.' In 2009, the Government is defeated at a General Election. The incoming administration keeps to its manifesto pledge to repeal the 2008 Act. Despite an ____________________________ 2 In future the Supreme Court. 3 J Goldsworthy The Sovereignty of Parliament: History and Philisophy (Oxford: Clarendon Press, 1999) Jackson 7 eloquent speech by Dave, the New Prime Minister, the repealing measure can only secure a bare majority in the Commons and is rejected in the House of Lords, Dave does not plan to hold a referendum and seeks your advise on the constitutional propriety of the course of action his government is embarked upon. Prime Minister Dave must be advised that when Parliaments do repeal legislation they must generally make their intentions both express and clear.4 Implied repeal is second main element in Parliamentary sovereignty which states that subsequent Parliaments can expressly or impliedly repeal any previous passed statutes made by the present and past Parliaments for the reason that subsequent parliaments possess the same powers and authority to all prior parliaments that ever existed. Further stating that the implied repeal rule also shows that the past Parliaments cannot hinder future parliaments from exercising their legislative authority. When Parliament repeals a law, they must generally make their intentions clear and express.1 Parliaments may also be able to enact laws that are not consistent to existing laws.as A. L. Smith J stated in his decision in Kutner v Phillips5 wherein he said that in the event that the provisions of a latest enactment is does not conform to the ___________________________ 4Corrections Act 2004, s. 208(1) 5 Kutner v. Phillips p1891] 2 QB 267 (QB) Jackson 8 provisions of an earlier one or two laws appurtenant thereto if they stand together, the earlier is amended by the latter.6 This therefore means that the latter law impliedly repeals the preceding law on the grounds of inconsistency. The Constitutional doctrine of Parliamentary sovereignty in action is clearly seen in its power of implied repeal.7 In so doing, if the Parliament has this full power to make a law, therefore that said power cannot be affected by any prior Act which was passed by a previous Parliament. Thereby to hold a provision of an Act to be ineffective because it conflicts with an earlier Act which in effect would hold the Parliament's law-making power which will be diminished by the said legislative actions of an earlier Parliament. There have been many debates with regard to the fundamental nature of Parliamentary Sovereignty which have been purposely concerned with legislative-judicial tension.8 These debates are primarily concerned with executive dominance has been the forum for many academic arguments purportedly made for the concern on the matter with regard to the existing justification for the expansion of judicial activism rather a separate challenge for Parliamentary Sovereignty itself.9 Executive sovereignty occurs if the Government has supreme power, meaning __________________________________ 6 Kutner v. Phillips, above n 2, 272 A L Smith J 7 Phillip Joseph, Constitutional and Administrative Law in New Zealand (2ed., Brookers, Wellington, 2001) 482 ["Constitutional and Administrative Law in New Zealand"] 8 R(Jackson & others) v Attorney Jackson [2005] UKHL 56 9Allan "Law" Liberty and Justice" Clarendon Press Oxford, 1992, p. 264. Jackson 9 there is no challenge to the decisions it makes.10 This makes the Government unaccountable for its actions by upsetting the checks and balances within the separation of powers. The executive makes a very dangerous sovereign power because of its factional nature which ultimately threatens the defense of the civil liberties therein. 11 This is the very reason why most democratic states either invest sovereign powers in the legislature or can be judiciary bound by a constitutional document. This is the reason why legislature is representative of society as a whole wherein the judiciary is independent thereof. These specific branches of government can place the executive under tight scrutiny and avoid the imposition of its views contrary to the rest of society. In this constitution the executive has thereby become more powerful than any at the expense of Parliament. Normally, sovereign powers are vested in Parliament which is in fact theoretically the meaning of Parliamentary Sovereignty which is absolute but in reality there are many challenges thereto. 12 These challenges are however marginalized by the said doctrine of repeal meaning that its limits can easily be reversed.13 The challenge of executive dominance has been an established constitutional problem. As Lord Hailsham has popularized the term of "Elective Dictatorship"14 in 1976, he criticized the _____________________ 10 Dicey's Principles of Parliamentary Sovereignty in "An Introduction to the study of the Law of the Constitution" 19th Ed, 1959: Macmillan p. 39. 11 Madison, "Federalist Paper no. 10" 1787. 12 Barnett, "Constitutional Administrative Law", Routledge Cavendish, 1006, Chapter 5. 13 Thoburn v Sunderland City Council [2003] QB 1 14 Richard Dimbley, Lecture 1976, Lord Hailsham, "The Elective Dictatorship" 1976. Jackson 10 Government's radical program of legislation where it only enjoyed a small minority, and still it was almost unchallenged by the said Parliament. In Tomkins' statement, he identified this executive dominance as the result of the rise in mass political parties. 16 17 Therefore it is easy to link this rise of mass political partied against increased executive power which makes the problem deeper.18 There is an imbalance which resulted from the democratization which has manipulated the doctrine of Parliamentary Sovereignty, whereby shifting the supremacy to the House of Commons. This turn of events has occurred as a consequence of the universal suffrage which clearly ponders on the belief that the Commons gave it the mandate on the House of Lords. The Parliament Act 19 gave the Commons the legal right to pass legislation without the Lords consent. From within, the Parliament has been crippled by the failure of the executive to modernize and has resulted in a political system that is run almost unquestionably by an elected Government. The Power Inquiry has made moves to settle the said dispute between the executive and the legislature in the United Kingdom and to try to settle and rebalance the power of the state.20 This raises a strong argument but the Parliament is not completely defeated. ______________________ 16Tomkins, Our Republican Constitution, OUP, 2005 17 Turpin and Romkins, British Government and the Constitution,(6th Ed) 18 Report: The Labour party currently has a majority of 66. This is the result of the party general election. 19 The Parliament Act 1949 as amended by the Parliament Act 1911. 20 The Power Commission, "Power to the People", TPC, Feb. 2006, Chapter 5, p. 13. Jackson 11 The new Prime Minister therefore has to look at these issues at hand for the fact that there is evidently a need for the other branches of government to have a constitutional position of Parliament in relation to the executive functions such as the repeal of a statute. It is imperative upon him to make the amendments to the Act with express and clear manner and that which is enough to convince the Commons that this new legislation is for the good of the whole nation at large. 4. Is the Human Rights Act 1998 an 'ordinary' Act of Parliament' What features of the Act might be said to argue for 'constitutional act' status' What consequences, if any, flow from such status' The Human Rights Act of 1998 which came in full force in the United Kingdom in October 2, 2000, is not an 'ordinary' Act of Parliament because it has been recognized by the courts that it is no ordinary law. This negates the notion of the traditional English constitutional theory that the Human Rights Act is merely an ordinary statute which is subordinate to the absolute parliamentary supremacy doctrine.21 Dicey's persistent statements that there is equal value for every Act of Parliament in the eyes of __________________________ 21 Lord Steyn in Reg v. DPP ex parte Kebilene [2000] 2 AC 226 (HL) Jackson 12 the law, and no law can eradicate a later statute, no longer holds true. 22 The provisions on the protection of human rights is its fundamental constitutional measure which has far greater significance that any other measure to that effect.23 The courts give it priority over any previous legislation not unless there is a limit to the protection of the Convention rights it embodies or any amendment to the Human Rights Act that is to be clearly done and manifested by Parliament.24 According to Thoburn, the only circumstances than an entire Act may be designated as constitutional is when there is a logical extension of a decision wherein individual provisions may be protected from implies repeal whether or not these are contained in a constitutional statute. Laws LJ meant in his decision that special respect must be accorded to fundamental rights25 and his revision of the traditional doctrine of implied repeal must then extend to individual provisions with respect to fundamental rights. __________________________ 22 Alfred Venn Dicey, Introduction to the Study of the Constitution (10 ed, Macmillan, London, 1959); Alfred Venn Dicey, A fool's Paradise: Being a Constitutionalist's Criticism on the Home Rule Bill of 1912 (1913), at xxix, 121, and 127 23 Sex Discrimination Act 1975 and the Race Relations Act 1976 24Thoburn & Ors v. Sunderland City Council & Ors [2002] EWHC 195; [2002] 3 WLR 247 (EWCA) paras 63-64 per Laws LJ 25 Thoburn v. Sunderland City Council, above n 4, para 62 Laws LJ Jackson 13 In view of the above, therefore the meaning of logical extension as what Thoburn really proposes is that there are two ways wherein a provision may be insulated from implied repeal. The first is that by the said Act merely being contained in a constitutional statute and has subsequently passed the Laws LJ's constitutional status test thereby making all the provisions of the said Act protected from implied repeal. Secondly, an Act may be protected against implied appeal when this embodies a fundamental right because as Laws LJ holds that the constitutional Act's existence follows the constitutional rights' special status, following this contention therefore, we can say that an Act can be considered constitutional if this provision is guaranteed by a constitutional right for the purposes of implied repeal. In securing the compatibility between any future Convention rights and legislation this approach would have prejudiced the effectiveness of the said Act.26 The jurisprudence of New Zealand's Court of Appeals is continuously being haunted by the ghost of the Human Rights Act through the preservation of section 4 of the Bill of Rights Act.27 It is important to note that the new constitutional system's pivotal point is Section 3 of the Human Rights Act.28 To avoid incompatibility between Convention and domestic legislation the courts and tribunals are duty bound to strive to adhere to this. _______________________ 26 Ibid. 27 (18 Nov 1997) 583 HLD col 518-519; (18 November 1997) 583 HLD col 522, Parliamentary debates, Lord Simon of Glaisdale; Lord Chancellor. Jackson 14 The compatibility of the Convention Rights must be done by the reading and giving effect of the primary and subordinate legislation so much as possible that it can be done so. 29 It is noted that the key words to this statement are "must" and "possible". The White paper explains that: 30 The courts are enabled to take the Convention into account in resolving any ambiguity in a legislative provision which goes beyond the present rule. Unless the legislation itself is so clearly incompatible with the Convention that there is no possibility to do, the courts are required to interpret legislation in order to uphold the Convention rights.31 As a result thereof, the Courts are required to adopt new interpretative techniques and to be careful that they do not usurp the legislative powers of Parliament through the adoption of a construction that will not counter the Parliamentary intention by this enactment of the Human Rights Act furthermore by previously or subsequently impugning the enactment of its statutory provision.32 ______________________ 28 Andrew Butler, "Implied Repeal, Parliamentary Sovereignty and Human Rights In New Zealand" [2001] PL 586; New Zealand Court of Appeal R v. Poumakop [2000] 2 NZLR 695 (CA); and R v. Pora [2001] 2 NZLR 37 (CA). 29Compare with s 6 of the NZBORA. 30 "Convention Rights", 1(1) Human Rights Act, rights guaranteed Art 2-12, 14 of the Convention, Art 1-3 First Protocol to the Convention, Art 1 &2 6th Protocol to the Convention. Art 13. 31 White Paper: Rights Brought Home (1997) CM 3782, paragraph 2.7. 32 Compare w s 6 of the NZBORA; R v Phillips [1991] 3 NZLR 175, 177 (CA) Cooke P, and Ministry of Transport v Noort [1992] 3 NZLR 260, 272 (CA) Cooke P. References Allan "Law" Liberty and Justice" Clarendon Press Oxford, 1992, p. 264. 7 Dicey's Principles of Parliamentary Sovereignty in "An Introduction to the study of the Law of the Constitution" 19th Ed, 1959: Macmillan p. 39. Barnett, "Constitutional Administrative Law", Routledge Cavendish, 1006, Chapter 5. Bogdanor, Vernon, The sovereignty of Parliament or the Rule of Law. Magna Carta Lecture: 15 June 2006. Professor of Government, Oxford University. Bradley, A., Relations between Executive, Judiciary and Parliament: an evolving saga' Public law, www.westlaw.uk.co. Bradley, A. et al., Constitutional and Administrative Law (14th ed) Butler, A. "Implied Repeal, Parliamentary Sovereignty and Human Rights In New Zealand" [2001]. "Convention Rights", 1(1) Human Rights Act, rights guaranteed Art 2-12, 14 of the Convention, Art 1-3. Dicey, A. Introduction to the Study of the Constitution (10 ed, Macmillan, London, 1959). Dicey, A. A fool's Paradise: Being a Constitutionalist's Criticism on the Home Rule Bill of 1912 (1913), at xxix, 121, and 127. Elliot, M. Bicameralism, sovereignty, and the unwritten constitution., case comment, 2007, International Journal of Constitutional law, www.westlaw.uk.co. Ewing, K. et al., The Continuing Futility of the Human Rights Act [2008] Public Law, www.westlaw.uk.co. First Protocol to the Convention, Art 1 &2 6th Protocol to the Convention. Art 13. Jowell, J., Parliamentary sovereignty under the new constitutional hypothesis, 2006, Public Law, www. Westlaw.uk.co. Madison, "Federalist Paper no. 10" 1787. Mason, Justice K., Supreme Court, New South Wales, Legislators' Intent: How Judges discern it and what they do if they find it. IALS, 2 Nov 2006 Miller, B. et al., Features: UK Constitutional Reform, LLRX.com Published June 20, 2004 Module on Parliamentary Democracy, Unit I, Introduction: Principles of the Westminster Model of Parliamentary Democracy, Self Test, 18 Jan 2009 Mullen, T., Reflections on Jackson v Attorney General: questioning sovereignty, Professor of Law, University of Glascow, Legal Studies, The Journal of the Society of Legal Scholars, Vol 27, Issue 1, pp. 1-25, Published online: 24 Oct 2006 Munro, Studies in Constitutional Law, 2nd Ed, chapters 5,6, www.westlaw.uk.co. Note 2001, Lecture 7: I Formula four: law and Democracy, Human Rights Cases R v Lambert( The Times 5th Sept 2000) and R v Offen [2001] Crim L R 63 Phillip Joseph, Constitutional and Administrative Law in New Zealand (2ed., Brookers, Wellington, 2001) 482 ["Constitutional and Administrative Law in New Zealand"]. Report: The Labour party currently has a majority of 66. This is the result of the party general election. Sex Discrimination Act 1975 and the Race Relations Act 1976. Steyn, L., Democracy, the rule and the role of judges, 2006, European Human Rights Law Review, www.westlaw.uk.co. The Parliament Act 1949 as amended by the Parliament Act 1911. The Power Commission, "Power to the People", TPC, Feb. 2006, Chapter 5, p. 13. Tomkins, Our Republican Constitution, OUP, 2005. Turpin, et al., British Government and the Constitution, 6th ed. 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