Public Law Learning Portfolio - Assignment Example

Reflective assignment I developed a good understanding of constitutional law, including its application in the field of human rights, in the following ways: My understanding of the structural framework of Constitutional law began with the study of several good textbooks on the subject, including Hilaire Barnett’s “Constitutional and Administrative Law.” This provided me with an understanding of the function of a Constitution and the importance of Parliamentary Sovereignty in the United Kingdom in the absence of a written Constitution. According to Barnett, it is important to grasp that “in terms of classical, constitutional legal theory, the power of Parliament – in the absence of a written Constitution – is omnipotent or sovereign.” (Barnett, 2002:2). I found the case of Jackson1 very useful in understanding how Parliamentary Sovereignty does not necessarily make Parliament’s law making powers unlimited, because in this case, a challenge was posed to the supremacy of Parliament. The legislation involved in this case was the Hunting Act of 2004 and it invoked earlier Parliament acts that were passed in 1911 and 1949. The Act was intended to ban fox hunting in England and Wales, but the subject of controversy was whether the House of Commons could pass legislation in opposition to and over the objections of the House of Lords. Hence, the basic underlying issue that was raised through this case was whether Parliament was indeed sovereign, as originally proposed by Dicey. In the obiter judgment of this case when it went up to the House of Lords, several of the law Lords challenged this traditional Diceyan view of Parliamentary sovereignty. According to Baroness Hale, “Parliament has also, for the time being at least, limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1988.”2 This case is considered so important in Constitutional law, seeing that it addresses the question of Parliamentary Sovereignty which is an integral part of UK law, that a panel of nine judges heard the case rather than the usual five (Loveland, 2006:216). I found a discussion by Mullen (2007) to be especially relevant because it provided a clear analysis of the issues of standing and jurisdiction that were involved in the case of Jackson and concluded that this case had definitely posed a challenge to Parliamentary sovereignty and demonstrated that this is subject to legal constraints. My understanding of the principles of Constitutional law was also enhanced further through learning about the Constitutions of other countries such as the United States. Through the written laws spelt out under the Constitutions of other countries, the functions and responsibilities three branches of Government – the executive, legislature and judiciary – are clearly demarcated. Based upon this knowledge, I was able to understand how in the case of the UK, the system of checks and balances between the three branches of Government is less clear and this has raised the problems inherent with UK’s lack of a codified Constitution and the need for reform in this area. I found myself full of admiration and pride for the British Constitutional system which has survived and functioned quite competently for years and years despite the absence of a codified Constitution, purely on the basis of established precedents, case laws and common law principles. But at the same time, I was also able to discern that there may be several conflicts posed in terms of effective separation of the three branches of Government in the UK. For instance, members of the House of Lords who should theoretically be restricted in the legislature also serve as judges, thereby performing the functions of the judiciary as well. As a result, I had to conclude that in the UK, Montesquieu’s concept of separation of powers may not exist in as clear a form as in the United States and other countries; while it could be argued that the King and the Commons represent two separate branches of Government, i.e; ‘executive’ and ‘legislative’, England has never actually had the separation of powers (Russell, 1990). I found newspaper articles and coverage very useful in understanding recent significant Constitutional developments that have arisen after the UK became part of the European Union. Most notably, this is revealed through the passage of the Human Rights Act of 1998 in the UK that allows individuals to seek the enforcement of basic rights and freedoms for everyone in the European Union, which have been set out by the European Convention of Human Rights. I found that the question of human rights had arisen in many immigration cases in particular, where they had deeply impacted upon the outcomes in those cases, by according precedence to the preservation of individual human rights over and above the preservation of Parliamentary sovereignty. One example that I found especially relevant was the case of Regina v Secretary of State3. In this case, a Pakistani citizen entered the country illegally and claimed asylum. A week before his claim was refused and he was asked to leave, he married a British citizen of Pakistani origin. The importance of this case lies in the directions that have been set out, i.e., when human rights are involved, courts are required to demonstrate in their decisions, a non interference with an appellant’s human rights, unless substantial grounds exist to justify such an interference. The general trend in all recent cases appears to be the upholding of human rights as the single most important legal criterion, which is posing a strong challenge to Parliamentary sovereignty. I realized that the passage of the Human Rights Act has thus changed the constitutional structure and framework in the UK, and the existing Parliamentary Sovereignty. It has highlighted the need for Constitutional Reform, because it emphasizes individual rights. From a theoretical perspective, Parliamentary sovereignty should allow a Government with a majority in parliament to change or repeal the Human Rights Act, but in reality this may not be possible because the Human Rights Act has acquired the status of a fundamental act. (Curran, 2005). I feel that the passage of the Constitutional reform Act of 2005 acquires tremendous significance, because in effect it has set up a Supreme Court of the United Kingdom and abolished the appellate jurisdiction of the House of Lords.(www.opsi.gov.uk). This suggests to me that in the light of recent developments such as the European Communities Act of 1972 and the Human Rights Act of 1998, the constitutional structure of the UK has been moving closer to the codified constitutions of other countries that clearly establish the separation of the three branches of government, especially through the introduction of the Supreme Court. It appears likely that at some point in the future, the Supreme Court in the UK could function in the same capacity as its counterpart in the USA, so that decisions handed down by the Supreme Court could form the basis for the development of new laws to address problems raised through inadequate existing legislation. It also appears likely that the separation of the three branches of Government would be more clearly established in the future. The rights of individuals have now become the fulcrum upon which the law is to be adjudicated; hence this has also brought about significant changes in the constitutional framework of the nation. It is significant to note that the Jackson case mentioned above has been one of the first to successfully challenge Parliamentary sovereignty and the validity of Acts passed without the approval of both houses of Parliament. It has only served to emphasize the fact that in recent times, the constitutional framework of the UK which has existed since the time of Dicey has been called into question. Based upon recent case precedents, as well as the controversies that have been generated, the question of fundamental human rights, mandated by the European Convention of Human Rights and incorporated into UK law through the Human Rights Act of 1998, has assumed increasing importance. This has brought about the recognition of the need to amend the existing constitutional framework and the Constitutional reform Act of 2005 appears to be a response to this recognition. References: Barnett, Hilaire, 2002. “Constitutional and Administrative Law”, Routledge Curran, Sean, 2005. “Election issues: Constitutional reform”, BBC News, http://news.bbc.co.uk/1/low/uk_politics/vote_2005/issues/4372135.stm; Constitutional reform Act of 2005. http://www.opsi.gov.uk/acts/acts2005/en/ukpgaen_20050004_en_1.htm; Jackson v Attorney General (2005) UKHL 56 Loveland, 2006. “Constitutional Law, Administrative Law and Human Rights: A Critical Introduction”, (4th edn), Clarendon. Mullen, Tom, 2007. “Reflections on Jackson v Attorney General: questioning sovereignty”, legal Studies, 27(1): 1-25 Regina v Secretary of State For Home Department ex parte Ajmad Mahmood (2001) 1 WLR 840 Russell, Conrad, 1990. “Unrevolutionary England, 1603-1642”, Continuum International Publishing. Read More