Administrative and Constitutional Law - Essay Example

Constitutionality of Acts of Parliament Legal sovereignty rests with the UK Parliament, although there may be political restraints in existence which may inhibit the exercise of those powers.1 Application of the principle of Parliamentary Sovereignty means that Parliament is the supreme law making authority; therefore it can make a new law, repeal or amend an existing law through its Acts and no one, not even a Court of law, can question the validity of those Acts of Parliament by which new laws are formed or amended. Parliament is comprised of two Houses – the House of Commons and the House of Lords. In this case, most of the members of the House of Commons belong to Gavin Black’s Democratic Social Party. They have made new laws in regard to secession of Scotland and Ireland from the There are no limits that exist in so far as subject matter is concerned, on which Parliament may legislate and Barnett has outlined several different areas where Parliament has successfully legislated to alter its term of office and the scope of its authority2. Therefore, the passage of the Constitutional Act of 2007 by the Gavin Black Government does not appear to be an invalid act. For example, when Parliament passed the Septennial Act, extending its life to seven years, the effect of the Act was to confer on the House of Commons the power to legislate without the consent of the electorate, as a result of which the power of the people in a democratic Government purportedly for, by and of the people was usurped. However, as argued by Dicey; “Parliament made a legal, though unprecedented use of its powers.”3 This is significant, especially in the context of the recent Human Rights Act of 1998, which has been incorporated into UK law since the United Kingdom has become a member of the European Union, such that European Community law now has precedence over national laws. Nevertheless, such an exercise of parliamentary authority as mentioned above where the power of the people was circumvented, was still legal in accordance with Parliamentary procedure and the principle of Parliamentary Sovereignty. Applying this in the case of the Acts of secession that have been passed by Black’s Government, i.e, the Scotland Act of 2007 and the Ireland Act of 2007, it would initially appear that these Acts are valid and would enjoy the force of the law. Precedent can also be established through existing Convention in this case, since Parliament has also granted independence to dependent states in earlier instances, such as through the Nigeria Independence Act of 1960 and the Zimbabwe Independence Act of 1979.4 While granting independence to territories, parliament may also legislate to limit its own powers where dependent territories are concerned, as demonstrated through the Colonial Laws Validity Act of 1865 and the Statute of Westminster 1931. However, the application of the Statute of Westminster in this case presents some problems to the validity of the Scotland and Ireland Acts of 2007. This statute was specifically executed in order to provide force to the existing Convention that the United Kingdom Parliament would not legislate on behalf of dominions under their control, without the express consent of those territories.5 As set out in Section 4 of the Westminster Act: “No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a dominion as part of the law of that dominion unless it is expressly declared in that Act that that dominion has requested, and consented to, the enactment thereof.” The Statute of Westminster is still very much in force because it has not been repealed subsequently by any Act of Parliament, hence its provisions still operate. The validity of the statute was questioned in the case of British Coal Corporation v The King.6 The Judicial Committee of the Privy Council in this case accepted that while in theory, according to parliamentary Sovereignty, the power of Parliament was sovereign, and that section 4 of the Westminster Statute could be repealed, in actual theory it could not be, simply because legal theory has to move in step with the practical reality. Hence, the Statute remains in force. The question of removal of restrictions to Parliamentary Sovereignty rose again in the case of Ndlwana v Hofmeyer7where such fetters were held to constitute restrictions on Parliamentary power, yet it was also noted that such restrictions arise from political constraints rather than legal ones. Hence, the political aspect must be taken into consideration in questioning the validity of the Scotland and Ireland Acts of 2007. It may be noted from Section 4 of the Westminster Statute that an Act of Parliament in regard to a particular dominion will not become part of the law of that dominion unless the consent of the dominion is also acquired. Therefore, while nationalists from both these countries are undoubtedly causing problems for the United Kingdom, this is not necessarily an indication that the entire dominion supports the move towards secession. In the event that Scotland and Ireland are to actually secede from the UK and be constituted as separate States, their political consent would also be required before such Acts can legally be passed. While theoretically Parliament may have the undisputed power to pass such Acts, there will be restrictions in the political sense which must be adhered to. The Acts will not be truly valid unless the dominions in question, i.e, Scotland and Ireland have also provided their consent. There is no indication that Black’s majority has acquired such consent from the two dominion states; rather the Acts have been passed merely on the basis of the nationalist movements, which could constitute only a limited section of the Scottish and Irish public and may not represent the true will of its people. Another important aspect that must be considered in this context is the existing Acts of Union with Scotland 1706/1707 and Ireland 1800.8 As pointed out by Mitchell,9 these Acts of the Union impact upon Parliament’s power in the sense that by Convention, they appear to constitute a higher law status than that of parliamentary Sovereignty, as a result of which parliament cannot do as it pleases and its powers are restricted and limited in regard to Scotland and Ireland. In the case of Scotland for example, the Act of Union essentially dissolved both the Parliaments of England and Scotland and set up a fresh parliament which represented both Scotland and England, therefore the identity of the Parliament of Great Britain as the successor of the separate Parliaments of England and Scotland does not confer unlimited power on the UK Parliament to act only in the interests of England, to the exclusion of Scotland. This is precisely what could occur if such an act of secession is enforced without the consent of the Scottish side and purely to benefit British interests. On this basis also, the Scotland and Ireland Acts may not be constitutionally valid. On these grounds therefore, the objection of the Lord Chief Justice that the Acts are unconstitutional, appears to be valid. This objection is not made on a strictly legal basis, but on the basis of political convention as demonstrated above. Hence the validity of these Acts are questionable and steps must be taken to first elicit the consent of the dominions before any further action to provide these Acts the force of legal statute can be provided. In regard to the European Act of 2007 whereby all Acts of Parliament are to take precedence over European Community law, this position may be valid from the application of the principle of Parliamentary Sovereignty in theory, but in practice the outcome will be different. With UK becoming a part of the European Union after the European Communities Act of 9172 and evidenced through the Human Rights Act of 1998 in the UK, which accepts the superiority of European Community legislation over national laws, passing an act to declare the UK parliament supreme may rise in contravention to the goals of the EC Treaty. In the case of Foto Frost v Hauptzollamt Lubook10 the European Court of Justice held that in matters where there is a conflict between national law and Community law, it will be the Community law which is supreme. No national Court has the power to rule on the question of the validity of community law and the extent of their power is limited to upholding the validity of Community legislation. This undoubtedly establishes the superiority of Community law within the UK and therefore the national Courts in the UK cannot have the power to question the validity of EU legislation which aims to make the sales of blackberry jelly illegal. In view of the existing supremacy of Community law, national Courts can only question such legislation if Parliament has provided them the authority to do so, as is proposed through the European Act of 2007. However, passing such an Act would mean that the UK will be in contravention of its existing role as a signatory to the EC Treaty and the European Communities Act of 1972, wherein it has agreed to accept the superiority of European Community law in certain subjects in order to ensure that a uniform law is applied within all the member States of the European Community. For the UK to now attempt to defy this position would undermine the position of the EC itself and would therefore be untenable, because then other States can also similarly pass legislation usurping the power of the Community. Moreover, it must also be noted that Black’s Government is proposing such an Act on the basis of an issue like the sale of raspberry jelly, which certainly cannot be held to be a measure serious enough to deem such a measure. The law against sale of raspberry jelly does not in any way impinge upon the sovereignty of the UK, neither does it result in any serious human rights violations within the UK, therefore it appears unreasonable and untenable for Parliament to pass such an Act. Moreover, in Dr. Bonham’s case11 it was stated that where an Act of Parliament is found to be repugnant to common right or reason and therefore impossible to perform, then it will be common law rather than parliamentary sovereignty which will rule the issue and such Acts will be declared to be void. On this basis therefore, the European Act of 2007 may automatically be invalidated. However, the most important issue in this regard is that the European Act of 2007 interferes with the supremacy of EU legislation, the supremacy of which has been acknowledged through the passage of the Human Rights Act of 1998, incorporating the rights and freedoms embodied in the European Convention of Human Rights into the body of UK law. Moreover, this Act has been passed in such a manner that the supremacy of parliament is still retained, in that any specific piece of legislation that is not in accordance with Community law may be declared to be “incompatible”12 by UK judicial authorities. Therefore, this Act is constitutionally viable and sustainable, because it allows incorporation of principles of Community law without interfering with Parliamentary Sovereignty. But this is not the case with the European Act of 2007, which if passed will interfere with the validity of already existing laws, such as the Human Rights Act of 1998 and the European Communities Act of 1972. It will also pose a serious threat to continued membership of the UK within the European Union and deprive the nation of all the benefits to be derived thereto. Due to this conflict that will be created, and due to the repugnance of this Act to common reason, Chief Justice Lord Peters is correct in declaring the Act unconstitutional. Bibliography * Barnett, Hilaire, 2002. “Constitutional and Administrative Law” Cavendish Publishing * Dicey, A.V. 1959. “An introduction to the study of the Law of the Constitution” (10th edn) London: Macmillan * Mitchell, JDB, 1968. “Constitutional law” (2nd edn) Blackwell Publishing Cases cited: * British Coal Corporation v The king (1935) AC 500 * Dr. Bonham’s case (1610) 77 Eng. Rep. 638 * Foto Frost v Hauptzollamt Lubeck-Ost (1987), ECR 4199 * Ndlwana v Hofmeyer (1937) AD 229 Read More