Constitutional Rights of The UK - Research Paper Example

Introduction In order to discuss whether the UK government has lost its power to the European Union and other organisations and institutions it is necessary to examine the powers that the government has supposedly lost. To do this it will be necessary to examine the impact of EU legislation and other pressures that have been asserted on the UK government. This can be achieved through analyzing case law in recent cases and comparing this with previous decisions given before the power was conceded to these other agencies. From this it should be possible to discuss whether this loss of power has an impact on constitutional accountability and the extent of the impact. The UK constitution Although the UK has no written constitution it has long been accepted within British Constitutional law that parliament has sovereignty or supremacy over legislation. It was the intention that this supremacy would entitle parliament to be able to change or repeal any legislation that has been passed by a previous parliament, so long as parliament could achieve a majority agreement that the particular piece of legislation should be changed or repealed. Under this notion, parliament ought to essentially have supremacy over all the government institutions as well as over the courts and the crown. Parliamentary supremacy was established during the 17th and 18th century during which time parliaments acquired the power to name and depose any monarch. Within the UK constitution parliament has the power to make laws in any area, although they cannot bind successive parliaments. As mentioned above, parliaments can repeal or change previously passed legislation. Supremacy dictates that only parliament has the power to change or repeal laws, however, in recent years, parliament seems to have lost some of its power, and influence from the EU and other international organisations as well as localised institutions seem to have been able to exert pressure on the UK government to change legislation. Devolution of power From 1997 onwards there has been a move towards the devolution of powers within the UK. This devolution was promised in manifesto pledges made by the Labour government in the hope of securing victory at the next election. The main impetus behind devolution was to remove central power from parliament and spread this power regionally. Although devolution has occurred within the UK since 1997 the doctrine of parliamentary sovereignty could theoretically result in a successive parliament reversing the devolution process and the transferring of power back to a centralised government. Devolution was first introduced in Scotland, Wales and Northern Ireland in 1998 with the introduction of the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 setting out the legislative framework of devolution. A Memorandum of Understanding was also issued between the government and the devolved institutions. Devolution has not occurred in a uniform manner, with Scotland, Wales and Northern Ireland each having different levels of devolved responsibilities. Notable differences can be seen in the way in which Scotland has a parliament and an executive similar to the Westminster model. This parliament has the power to pass Acts, whilst the Scottish Executive is able to make secondary legislation in certain areas. By contrast, in Wales, devolved powers have been delegated to the National Assembly for Wales. Primary legislation is still governed by the UK parliament in Wales, however, the Assembly has the power to make secondary or delegated legislation within its own area. Devolution in Northern Ireland tends to centre on the peace making process. Although devolution is aimed at the transferring of power to regional assemblies, the powers given to these assemblies has been defined by parliament. Parliament has limited the powers of the assemblies so that assemblies cannot raise taxes, control the armed forces or be allowed to have an input into foreign policy decisions. It has been argued that the retention of the control over the finances of the UK makes a mockery of the principles of devolution, since financial control gives parliament a larger amount of power over the regional assemblies. The problems created by devolution can be highlighted by the cases of HM Advocate and another v R [2002] and Attorney General’s Reference (No2 of 2001) [2003]. In the first of these cases the Scottish court held that an undue delay in bringing a prosecution should act as an absolute bar to prosecution under their interpretation of Art 6 ECHR. In reaching their decision they were of the opinion that such a delay would impact on the right of the defendant to a fair trial. By contrast in the second case the English court held that unless it could be proven that the right to a fair trial would be affected by such a delay, then there was no reason for a prosecution to be barred. In the summing up in the latter case, the judges acknowledged that there decision was incompatible with the earlier Scottish decision, insisting that the earlier decision had been wrongly decided. This demonstrates how, despite devolution, the English courts have attempted to retain supremacy. Referendums The increased usage of referendums has also weakened the power of Parliament to a minor degree. This is mainly because the purpose of the referendum is to allow the electorate to determine whether a particular law should be passed. However, although referendums are used in this manner, Parliament still retains the power to reverse decisions that are made as a result of a referendum, although hey are unlikely to exercise this power. EU control Supremacy of parliament has been challenged on many occasions through membership of the EU. This is particularly evident from cases that have been referred to the European Court of Justice. Since joining the EU, supremacy of European Community law has become automatic under the European Communities Act. This essentially means that if the ECJ determines that UK law is inconsistent with the Treaties the UK law is automatically annulled and the decision of the ECJ becomes final. This was first demonstrated in the Factortame case, in which a Spanish fishing company was appealing against restrictions that had been imposed on them under the Merchant Shipping Act 1988. Under this Act foreign ships registered as British vessels were prevented from fishing in UK waters. The House of Lords argued that the constitution did not give the courts the right to suspend Acts of Parliament. When the case was heard in the ECJ the court there determined that national courts were entitled to strike down laws that contravened EU law. This lead to the House of Lords deciding in favour of Factortame, and in essence, striking down the Merchant Fishing Act 1988. Decisions such as the above seem to suggest that parliamentary sovereignty can be lost if any Act of Parliament contravenes EU law. The government argues that this is not the case, since they retain the power to repeal the European Communities Act which would, in essence, give power back to the UK. Given that successive governments have never taken any steps to repeal the ECA, it is unlikely that this would occur in the future, which therefore could be interpreted as a permanent loss of sovereignty within this area. Repealing the ECA would result in the UK withdrawing from EU membership, which would be intrinsically difficult as well as economically damaging to the UK. Lord Copper commented that ‘Parliamentary supremacy can seem rich meat when it comes to discussions of the proper powers of the European Union. There is an irony here, in these two things being bedfellows: on the one hand a political willingness to modify the power of Parliament for the sake of the European ideal, and on the other a stern defence of that same Parliamentary power against apparent incursions by our domestic law in the name of constitutional rights’. The impact of the European Convention on Human Rights The incorporation of the Human Rights Act 1988, as dictated by the ECHR, has led to many cases being brought before the European courts challenging decisions of the UK courts on the basis of the incompatibility of the decisions with the 1988 Act. Where such challenges are made, the UK government will be required to introduce a bill designed to implement the decision of the ECHR into UK law. Although decisions given by the ECHR do not have the same effect as decisions given by the ECJ, in that UK law cannot be automatically annulled by the ECHR, Acts can be declared incompatible under s4(4) of the HRA 1988. A Declaration of Incompatibility would not result in an annulment of the law; however, such a declaration enables the government to accelerate the procedure to enact a bill to repeal or amend the legislation under s10 HRA 1988. Lord Hoffman in R v Secretary of State for the Home Department Ex parte Simms [2000] made the observation 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. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.’ He went on to note that, although the courts have the power to rule against human rights, that in reality this was unlikely to happen, and that the court would afford the defendant the basic human rights established under the Act. Challenge to constitutional accountability The notion of constitutional democracy is that the government rules but that they are also representative of the voice of the people. For this reason, those elected to govern the country secure their role through the vote of the public. Constitutional accountability is achieved through ministerial responsibility, and has the effect of making ministers accountable to Parliament for their actions as well as for the actions of their departments. Dicey (1959) developed the doctrine of accountability within the British government, a view that was later expounded by Jennings (1966). According to Jennings, under this doctrine ministers cannot blame civil servants for things that go wrong, and have to take responsibility for the actions of those who work in their departments. John Major reinforced this notion in 1994 when he stated ‘it is ministers who are accountable to Parliament for all that their Departments do, including the work of their executive agencies’. The courts have also endorsed the notion of ministerial responsibility as was demonstrated in Carltona v Minister of Works [1943] where the court held that the minister was justified in delegating some of his powers to a civil servant working within his department. This was based on the fact that regardless of that delegation the minister himself would be directly accountable to Parliament for the actions of the civil servant. Jennings (1959) observed that ‘Parliament passes many law which the people do not want, but it never passes any laws which a substantial section of the population violently dislikes’. Jennings felt that Parliament were keen to observe this principle on the basis that they are accountable to the electorate for any changes made to legislation, and an unpopular enactment could lead to the party not being re-elected in subsequent elections. With the insurgence of input from the EU in particular, it may well be that in the future, Parliament will be forced to implement certain changes in the law that may well provoke the ‘violent dislike’ mentioned by Jennings. From the above it can be noted that the loss of parliamentary supremacy means that other institutions and organisations might be able to influence decisions previously reserved by parliament. As a result of this, it would be difficult to hold ministers accountable for changes in legislation, as they might be powerless to prevent such changes from occurring. The move towards the involvement of other agencies in the decision making process is likely to effect the ability of the electorate to hold Parliament accountable for some of the decisions they are forced to make. It could be argued that Parliament might be able to utilise their loss of supremacy to avoid accountability for unpopular legislation. This could particularly be achieved in situations were UK law contravenes EU law. As mentioned above the UK government can be forced to give supremacy to EC law under the European Communities Act. UK governments could make use of this by making laws that deliberately contravene EC law, knowing that challenges made in the ECJ will result in automatic annulment if the court finds that the legislation contravenes EC law. Blame can then be placed on the EU rather than the government itself. Conclusion It can be noted from the above that the supremacy of parliament has been eroded over the years. Devolution has also weakened the powers of Parliament by giving power to regional assemblies. In a policy Green paper published by the Conservative party, entitled Control Shift: Returning Power to Local Communities, David Cameron advocates the repeal of the devolution process. It is argued that regional assemblies are not representative of local needs and initiatives, and that the only way in which democracy can prevail is to give the power back to the local communities rather than handing control to a regional assembly. The paper argues that they way to restore trust in the political system of the UK is to make local government accountable. The paper also offers the opinion that making local government accountable will encourage more people to vote as they will feel that their voice is more likely to be heard. The paper also suggests that Labour has failed to live up to its 1997 manifesto in which they stated that ‘Local decision-making should be less constrained by central government, and also more accountable to local people.’ In support of their allegation they make reference to the Ministry of Justice Green paper, (2007), entitled ‘Governance of Britain’ in which the paper stated that ‘power remains too centralized and too concentrated in government hands’. The impact of the EU has had a profound effect on legislation in the UK. Many have expressed their concerns about this, especially since members involved in the legislation making process within the EU are unelected, and therefore unrepresentative of any form of democracy. Although, in essence, the UK could regain its supremacy, it is unlikely to happen, since this could only be achieved through the repeal of the European Communities Act and withdrawal from EU membership. The difficulties in achieving this are further compounded by the financial and political cost to the UK economy. Constitutional accountability is invariably likely to be affected by the loss of supremacy, since Parliament might be forced to legislate in a certain manner in order to comply with the requirements of EC law. Given that the regional assemblies have only been given minor powers in relation to devolved legislation, it is unlikely that this would impact on the accountability of Parliament, as the right to remove the powers to the assemblies has been retained by the government. Bibliography Barnett, H, Constitutional and Administrative Law, 6th Ed. Abingdon: Routledge‑Cavendish, 2006 Bogdanor, V. 1996. Politics and the constitution: essays on British government. Aldershot: Dartmouth Bradley, A & Ewing, KD, Constitutional and Administrative Law, 14th Ed, 2008, Pearson Education Limited. Carroll, A, Constitutional & administrative Law, Revised Ed,1998, Pitman Publishing Dicey, A. V. 1959. An introduction to the study of the law of the constitution. 10th Ed, (first publ. 1885). London: Macmillan Drewry, G. and D. Oliver 1996. ‘Next Steps with particular reference to ministerial and parliamentary accountability’, Second report of the Public Service Committee 1995–96: ministerial accountability and responsibility vol. II, memoranda of evidence. HC 313–II, 15–22. Feldman, D, None, One or Several? Perspectives on the UK’s Constitution(s), Cambridge Law Journal, 2005 Finer, S. E. 1956. ‘The individual responsibility of ministers’, Public Administration, 34, 377–96. House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report of Session 2003–04, HC 422, London, The Stationery Office Limited, 16 March 2004. House of Lords Select Committee on the Constitution, Waging War: Parliament’s role and responsibility, HL Paper 236, London, The Stationery Office Ltd, 27 July 2006. Jennings, I. 1966. The British constitution. 5th ed. Cambridge: Cambridge University Press. Jennings, I.(1959), The Law and the Constitution, University of London Press, London Jowell, J L & Oliver, D, The Changing Constitution, 6th Ed, 2007, Oxford University Press. Laws, J, Constitutional Guarantees, Statute Law Review, 2008 Ministry of Justice, The Governance of Britain, 2007 Prosser, T. 1996. ‘Understanding the British constitution’, Political Studies 44, 473–87. Slapper, G & Kelly, D The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd HM Advocate and another v R [2002] UKPC D3, [2004] 1 A.C. 462, PC. Attorney General’s Reference (No2 of 2001) [2003] UKHL 68, [2004] 2 A.C. R v Secretary of State for the Home Department Ex parte Simms [2000] 2 AC 115 Carltona v Commissioner of Works [1943] 2 All ER 560 Read More