The of the Law of the Constitution - Case Study Example

Introduction The United Kingdom’s consitution has always been built around a concept of parliamentary sovereignty. Encapsulated in this ideal is the theory that Parliament represents the supreme law of the UK. This concept stands in juxtaposition with an equally stagnant theory of Community supremacy within the context of the European Union. As a result, the UK’s constitution is idiosyncratic in the wider European context. The discussion that follows examines these two vastly similar concepts of supremacy and demonstrates how it is idiosyncratic with respect to the UK’s constitution. The UK Constitution As A.V. Dicey explains “Parliament has total power. It is sovereign.”1 According to Dicey the rule of law comprising the constitution is founded on three principles. Firstly, the rule of law requires that government is accountable, secondly, ordinary citizens are likewise accountable and thirdly constitutional laws represent the consequences of the administering of the law via the judiciary.2 Expounding upon these theories of the UK constitution, Sir William Wade that: “…there is one and only one, limit to Parliament’s legal power: it cannot detract from its own continuing sovereignty.’3 With this concept of Parliamentary supremacy Dicey identifies what he refers to the twin pillars of the UK Constitution. Dicey states that Parliament: “…has under the British Constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”4 The courts of the United Kingdom have steadfastly adhered to this constitutional rule of law. In Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 Lord Campbell indorsed this notion by explaining that once the court is satisfied that a statute was properly passed by Parliament, the court’s duty was to give it its proper interpretation and effect.5 Likewise in Pickin v British Railways Board [1974] AC 763 Lord Morris said that once a statute has passed through Parliament it is not up to the courts to question it. It is good law unless and until parliament itself legislates against it.6 The UK Constitution arises by way of both common law and statutory provision with the result that there is no uniform Constitutional code. Parliament is therefore at liberty to conduct constitutional reform by introducing Acts of Parliament and can in effect, alter or repeal both statutory and common law.7 The UK Constitution is unquestionably structured around the concept that all sovereignty belongs to Parliament and cannot be entrenched.8 In the absence of uniform codification, the UK Constitution is found in various statutory forms including the Parliament Acts 1911 and 1949, the Representation of the People Act 1969 or the Scotland Act, 1998.9 UK Constitutional Law is also found in common law which is essentially the result of judicial interpretation and application of Parliamentary instrument.10 Statutes and judicial predents are only part of the UK Constitution as historical documents also shape and mold UK Constitutional law. Among the list of historical documents shaping the UK Constitution are the Magna Carta of 1215, the Petition of Rights 1628 or the Bill of Rights 1689. All of these historical documents are constitutional in nature.11 Conventions also form part of the UK Constitution and are found in matters pertaining to royal prerogative, collective ministerial responsibility or the resignation of the Government by virtue of a vote of no confidence.12 Other forms of Constitutional law can be found in International Treaties such as the Treaty of Rome, the UN and/or Nato.13 Be that as it may, the courts maintain the position that in the context of the UK’s constitution, Parliament’s statutes are superior in respect of the UK’s constitution. Lord Diplock points out in Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128 that: “...in constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation...”14 These concepts of Parliamentary supremacy appear to be compromised and forgotten with the UK’s subscription to the European Union. By joining the European Union and subscribing to its suspremacy UK parlimentary sovereignty appears to be nothing more than a misnomer. This is so particularly in light of a similar position taken by the European Union in relation to Member States. Community Supremacy in the Context of the UK’s Constitution The doctrine of Community Supremacy was only established in the1964 case Costa v ENEL. In Costa the European Court held that by subscribing to the European, Member States have: “…limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves. …The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights.”15 By becoming a Member State, The United Kingdom, is bound by all current and futureTreaties and as a result cedes its own constitutional supremacy in favor of Community supremacy. This position was fortified by an Act of Parliamentsection 2 of the European Communities Act 1972.16 By virtue of Section 2 of the 1972 Act, all Community treaties are automatically capable of application and enforcement in the UK. The Human Rights Act 1998 takes Community Supremacy a step further and by virtue of Section 3(1) surrenders Parliamentary sovereignty. Section 3(1) of the Human Rights Act 1998 provides that all applicable laws are to be interpreted in such a way as to be “compatable with Convention rights.”17 Section 4 of the Human Rights Act 1998 requires that in the event there is conflict arising out of the interpretation of domestic statutes and the interpretation of Community Law, the courts are required to make a declartion reflecting that the conflict exist.18 Holding onto some element of its own supremacy Section 4(6) provides that the “a declaration of incompatibility” will not make the domestic law invalid and will not bind “the parties to the proceedings in which” the decaration “is made.”19 As Turpin explains, Section 4(6) gives the court the authority to continue to apply the law subject to a declaration of incompatibility and at the same time denies a party any remedy inrespect of contravened Convention rights.20 By virtue of Section 4(6) it is possible to argue that the UK’s constitution remains largely unfettered by Community Supremacy with respect to Parliament’s inherent right to introduce statutory provisions altering its constitution. Lord Hoffman made this observation in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 131 by noting that: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.” 21 Section 2(4) of the European Communities Act 1972 is more problematic for the UK’s Constitution since it does makes provision for the suspension of the doctrine of implied repeal. As noted previously section 2 (4) is coached in terms that oblige the British courts to interpret not only past and existing but also future laws in such a way so as to make them consistent with the Community.22 This provision contradicts the UK’s Court of Appeal’s ruling in Ellen Street Estates Ltd. v Minister of Health [1934]. In this case Lord Maugham LJ held that; “...the Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal.”23 In any event the implications for the UK’s constitution in respect of Section 3(4) of the 1972 Act gave way to Lord Diplock’s “rule of construction” in Garland v British Rail Engineering.24 Lord Diplock said that in the event of a conflict between EU law and UK law the UK law must be intepreted in such a way as to acknowledge and apply the Community law.25 Similarly in Pickstone v Freemans the House of Lords ruled that the Equal Pay (Amendment) Regulations 1993, which had been previously found by the Court of Appeal to contradict Ariticle 141(ex 119) of the EC Treaty, should be construed so as to conform to the provisions in the Treaty.26 Directives and Regulations issued by the European Union are also binding on the UK and compromise the concept of Parliamentary sovereignty which is the bedrock of the UK’s constitution. Article 249 of the Treaty of Rome 1957 provides that directives will bind “each state to which it is addressed.”27 Member States may determins how they wish to implement the directive but are ultimately required to implement the directive.28 Directives are “directly applicable.”29 While directives are not enforceable against individuals if they are not implemented by the law of the applicable State they are actionable against Member States by virtue of the doctrine of ‘direct effect’. The ‘direct effect’ doctrine was explained by James Marson as having both vertical and horizontal effects. Direct Effect of Directives: ‘are only possible (explicitly, in the vertical direction (against the Member State or its emanations).’30 The Vertical Direct Effect applies when a Directive is ‘unimplemented or incorrectly transposed’.31 Perhaps mindful of the need to leave Member Sates with a small measure of sovereignty European Community law does not permit individuals to pursue one another (Horizontal Direct Effect) when a Directive has not been properly implemented by the relevant Member State. 32 However, in the case of an unimplemented directive the individual may pursue the Member State in respect of a contravened right under the directive. The rationale is that while individuals are not expected to know the law, governments are.33 The UK is a unitary state in which its ultimate power of sovereignty resides at the centre although it can be delegated to other regions within the jurisdiction of the UK. This is so in respect of the UK’s joining the European Union. The right to delegate its power runs parallel to Parliamentary power to revoke and retain that power at anytime. Turpin explains that by delegating its power elsewhere “…we may say that sovereignty has been lent rather than given away.”34 Within the framework of the UK’s constitution, the concept of parliamentary soverignty has not been compromised. According to Dicey, “Parliament has the right to make or unmake any law whatever.”35 The irony is that Parliamentary soveriegnty made it possible for Parliament to cede its sovereignty and it is the same power that permits Parliament to “unmake” the relinguishment of its parliamentar sovereignty. Conclusion In light of the foregoing discussion it is fair to submit that the UK’s constitution remains unscathed by the UK’s admission into the European Union. It is the constitutional framework of the UK which is founded on principles of Parliamentary sovereignty that permitted the UK to surrender some of its sovereignty. Since it is at liberty to withdraw that surrender by an act of Parliament, the UK’s constitution is not idiosyncratic in the European context. Lord Diplock put the UK’s enduring constitution in its proper perspective in Duport Steel v Sirs [1980] 1 ALL ER 529 by saying that: “…it cannot be too strongly emphasised that the British constitution though argely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them.”36 In other words, nothing has changed. The UK’s constitution has not been altered, by adhering to the rule of law of the EU, the UK is merely subscribing to its age old constitution. Works Cited Barendt, Eric.(1997) “Is There a United Kingdom Constitution?” Oxford Journal of Legal Studies. Vol. 17 pp 137-146 Costa v ENEL [1964] ECR 585 Craig, Paul. (2001) The Executive and Public Law: Power and Accountability in Comparative Perspective. Oxford University Press Craig, Paul and De Burca, Graine.(2003) EU law : text, cases, and materials. Oxford University Press. Dicey, A.V.(1982) Introduction to the Study of the Law of the Constitution. London: MacMillan. Duport Steel v Sirs [1980] 1 ALL ER 529 Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 590 European Communities Act 1972 Garland v British Rail Engineering [1983] 2 AC 751 Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128 Human Rights Act 1998 Jowell, J and Oliver, D (eds), (2000) The Changing Constitution. Oxford: Oxford University Press Lenz, M., Sif Tynes, D., and Young, L. (2000) ‘Horizontal What? Back to Basics’ European Law Review, Vol. 25, pp. 509-522 Marson, James. Access to justice: a deconstructionist approach to horizontal direct effect. [2004] 4 Web JCLI http://webjcli.ncl.ac.uk/2004/issue4/marson4.html Viewed November 15, 2007 Pickin v British Railways Board [1974] AC 763 Pickstone v Freemans [1988] 3 WLR 265 R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 131 Treaty of Rome 1957 Turpin, C, (2002) British Government and the Constitution: Text, Cases & Materials, Butterworths Wade HWR, “The Basis of Legal Sovereignty”, (1955) cited in Jowell, J and Oliver, D (eds), (2000) The Changing Constitution. Oxford: Oxford University Press Read More