Constitutional & Administrative Law - Coursework Example

Contents Contents CONSTITUTIONAL AND ADMINISTRATIVE LAW (i) The issue in respect of this question is on Parliament sovereignty and in particular whether a Parliament can be bound by its predecessor or not. The principle of parliamentary sovereignty was resolve by the Bill of Rights 1689 whereby the conflict between Crown and Parliament was resolved and supremacy of Parliament ensured. The concept of parliamentary sovereignty is a rule of common law which has been upheld by the judges in their decisions and such has been done so by what is known as the concept of implied repeal. This can be seen from the case of Vauxhall Estates Ltd. v. Liverpool Corporation1 whereby there was a conflict between two Acts which had been passed in different period of time and the courts found that Act which came into force later on applied, thereby using the implied repeal. A.V.Dicey stated that parliamentary sovereignty revolves around three aspects, the first being that the parliament may legislate upon any subject-matter; secondly that Parliament could not be restricted by a predecessor not restrict the powers of a future Parliament; and finally the validity of Acts of Parliament cannot be challenged. In respect of the facts at hand only the first two would be discussed. Under the legal theory Parliament is entitled to pass law on anything once it has been passed by the House of Commons, House of Lords and receives Royal Assent and such would be held to be legally valid. The limits that have been listed down are those that have been laid down by the democratic process. Thus theoretically the powers of the parliament are absolute and so an Act can extend beyond the territory of the United Kingdom. Furthermore, Parliament can legislate with the Act having retrospective effect. As far as international law is concerned it cannot have effect unless implemented by the Parliament by introduction of an Act. As far as Parliament being bound or being able to bind its successor is concerned importance has been placed on the Act of Union with Scotland 1707, whereby it was suggested that intention of the Act was that it cannot be repealed; however, it is important to mention that there have been amendments that have been made. In Attorney General for New South Wales v. Trethowan2 the Privy Council found the Parliament to be bound by a previous Act while citing the reason that the earlier Act had to be repealed first and so if it was not repealed then the Parliament was bound by it. As far as the new view of sovereignty is concerned Sir Ivor Jennings and Professors Heuston, Marshall, Mitchell and de Smith have stated that Parliament can bind its successor, by redefining itself or by setting out ‘ manner and form’ provisions which need to be followed. A recent example in respect of the procedural requirements is that of Northern Ireland Act 1998 whereby it stated that the Northern Ireland would remain a part of United Kingdom unless done to the contrary by means of a referendum by the people. However, this does not limit Parliament’s power to legislate in respect of this or any other matter without there being a referendum, but it can be said to be a political suicide and so it can be said to be a political constraint. Thus in respect of the current situation it can be said that the Parliament can depart from the agreement and DPA 2004, furthermore it is not bound by the Act and can repeal the Act by defence Non Purchasing (US) Bill 2010 as it is not bound by the predecessor, thus this ground would not be a valid reason. ( ii ) The issue in respect of the current question requires an analysis of the fact that the House of Lords was by passed by the House of Commons and Royal Assent obtained. The validity of such an action will now be looked into. It is important to mention that Parliament Acts had been made so as to allow the Parliament to pass a Bill without getting the approval of the House of Lords. This was made during the time when it was thought that the House of Lords would create a hurdle and thereby the Bills would be blocked. The first Act was that of Parliament Act 1911 whereby the House of Lords were prevented from vetoing any public legislation which had been approved by the House of Commons and for all bills other than money bills the maximum time for legislative delay was set to two years. Thus for other public bills provided that a rejected bill would be law without the consent of the Lords’ if such was passed by Commons in three successive session, subject to the fact that two year between Second Reading of the bill and its final passing in the Commons had passed. The position of Parliament Act 1911 was amended by the Parliament Act 1949 and the time period was reduced so as to get the approval or by pass the House of Lords and get speedy approvals.Under Parliament Act 1949 the time was for delaying bills was reduced from three sessions over a period of two years to two sessions over one year. It needs to be mentioned that the Parliament Act 1949 was passed by using the bypass procedure and was examined by the Judicial Committee of the House of Lords in Jackson v. Attorney General3 and it was stated that the Act had been validly passed. Thus the validity of the act has been affirmed and so the procedure of bypass wherever used can be said to be without any hurdle. Thus in respect of the current situation it can be said that the period of two sessions over one year has not been followed and so DPA 2004 being repealed has not been done in accordance with Parliament Act 1949, thus it has not been validly passed. It is important to mention that facts have not made it evident as to whether the requirement of two sessions over one year was not followed and so if such has been done then the repealing Act would be valid otherwise such an Act would clearly cannot receive Royal Assent and so this Act’s validity can be challenged. (iii) The issue in respect of this question is of sovereignty of Parliament and whether the courts can declare an Act of the Parliament to be invalid. A.V.Dicey’s approach states that the sovereignty of Parliament revolves around three fundamental concepts and for this question what is important is that the validity of an act of Parliament cannot be challenged. It has been said that nobody which includes but is not limited to a court of law can challenge the validity or legality or validity of an Act of Parliament and this is what is known as ‘enrolled bill’ rule. It has been an understood phenomena that sovereignty is upheld by judicial decisions. The two rules in respect of domestic legislation that are dominant are the enrolled bill rule, which states that once a Bill has gone through the requisite parliamentary stages and thereafter been given Royal Assent, there would be no enquiry into manner of it being passes, even on allegations that it was improperly passed; and the second rule is that of implied repeal which states that the later Act would prevail. The attitude of the judges is more than pertinent in the decision of Pickin v. British Railways Board4. Even though Lord Denning in the Court of Appeal stated that the courts’ function was to look into the procedural aspects of Parliament and that undue advantage is not taken. However Lord Reid in the House of lords rejected the view and stated that the courts were not concerned how the functions of Parliament were performed. However, the decision of Pickin left open the discussion as to what would happen if the proper approval of the House of Lords was not obtained. This is what has happened in respect of the current situation. The Supreme Court can scrutinize this, but is important to mention that the courts are reluctant and the separation of powers concept is kept preserved to a very great extent. Thus an option is available as on the facts the procedure has not been followed and so the Supreme Court might look into the procedures not being followed, however, the ratio of Pickin does go against this argument and if the decision is followed it is likely that the Supreme Court would not interfere with the repeal Act that is Non Purchasing (US) Bill 2010. However, the Supreme Court by the 1966 Practice Statement can choose not to follow the decision of Pickin. Thus the Act might be reviewed by the Supreme Court and there would be a possibility of the Act being held not to have been properly passed, however, after a certain period the Act can be passed by using Parliament Act 1949. Bibliography Barnett, Hilaire A. Constitutional and Administrative Law. London: Routledge-Cavendish, 2008. Print. Bradley, A W, K D. Ewing, and A W. Bradley. Constitutional and Administrative Law: Updating Supplement. Harlow: Pearson/Longman, 2008. Print. Read More