Constitution and Administrative Law - Coursework Example

Constitution and administrative law Introduction Lord Denning in Macarthys Ltd V. Smith (1979) 3 All ER 325 at 329 (CA) was of the view that ‘if the time should come when parliament deliberately passes an Act with the intention of repudiating the treaty or any provision of it…..and says so in express terms then I should have thought it would be the duty of our Courts to follow the statute of our parliament”1. By joining the EU, the UK automatically committed to follow the EU laws and judgments. This implies that EU law is supreme that laws of the national member states with exception of several instances where the national law may succeed. In this instances, the UK law will prevail if when expressed passed through an Act of Parliament, through implied repeal or exiting of the EU. On the other hand, parliamentary sovereignty is of the view that member states can challenge the EU law when it conflicts with the national laws. Lord Denning articulated that national courts should give effect to EU and should be enforced in domestic courts if it gives rise to individual rights and obligations. Lord Denning was of the idea that Community law forms part of UK law and Community law should prevail whenever there is inconsistency with the national law. By signing the European Communities Act 1972 (ECA), the UK committed to EU law since Section 2 (1) incorporates all EU laws in to UK law. The UK courts must apply and effect EU law and apply the doctrine of direct effect to all EU directives. Accordingly, Section 2 (2) of the ECA entitled the parliament to make delegated legislation that aim at implementation of the EU law while Section 2 (4) is clear that any enactment passed or that will be passed should be construed and have effect subject to the section. Parliamentary sovereignty led to ratification of the ECA thus making the EU’s supremacy contingent upon parliamentary sovereignty. The UK operates a dual system in order to respect both EU law and UK national laws. Analysis Dicey is of the idea that parliamentary sovereignty means neither more nor less that parliament under the UK constitution has the right to make or unmake any law and further than no body is recognized by the law of England has having the right to set aside any legislation in the UK. The parliament sovereignty was also tested in the case of R v. Secretary of State for Transport, ex parte Factortame (1990) 2 AC 85, the case involved a UK registered company that was controlled by Spanish nationals. The main intention of establishing the business was to bypass the fishing quotas exemption for the UK nationals. The merchant shipping Act 1984 only permitted British nationals to register a vessels, but there was not restriction of UK companies registering a vessel. However, Merchant Shipping Act and regulations 11 prevented the foreigners from using the grey areas to register vessels in the UK. The shipping company argued that such refusal to register the vessels was a violation of Article 7 of the Treaty that had ended discrimination between individuals of member states on the basis of nationality and was also a violation of Article 43-48 of the Treaty that granted the citizens of the member states to establish businesses in any of the member states. The company also argued that Article 294 provided individual rights to participate in capital of companies across the member states. In R v. Secretary of State for Transport, ex parte Factortame (No. 2) (1991) 1 All ER 70, the case confirmed the supremacy of EU law over the UK law in areas where the EU law was competent. The high court in 1989 allowed an injunction against the enforcement of 1988 Act pending a ruling by ECJ2. Lord Justice Neill stated that EU law is part of UK law and national courts can take a decision that preserves status quo whenever there is a conflict3. However, the final decision was that the Merchant Shipping Act 1988 did not conflict with EC law and courst were just interpreting the domestic law in a manner that is compatible with the treaty since fishing quotas were guaranteed by the treaty4. In the Factortame case, the House of Lords held that Divisional court has no legal powers to make interim orders and went further to look whether such interim orders were available as a matter of European Law. The ECJ was of the opinion that national court should set aside the provision of national law that prevents the rights in EU having full effect. The House of Lords then granted the injunction and ordered for the suspension of the British domicile and residence requirement in the Merchant Shipping Act. Lord Bridge in Factortame (No 2) asserted that United Kingdom voluntarily accepted the limitation of its sovereignty when she signed the European Communities Act 19725. In addition, Sir John Laws (a Lord Justice of Appeal) argued that Section 2 (4) of the European Communities Act established the rule for construction of later statutes and the European Law made that such construction implanted by Section 2 (4) of the Act cannot be eroded or abrogated by implied appeal since express words to such abrogation would be required. In this analysis, Sir John Laws concluded that Factortame demonstrates devolution of the legislative powers to the EU, but not devolution of the UK sovereignty. On the other hand, Professor Allan was of a different view that sovereignty changes and House of Lords just determined the existing constitutional order in novel circumstances. In this case, Professor Allan outlined that it is possible for the UK courts to recognise the limits of parliament to enact laws that conflict with the EU law even if when requiring express wording. However, some scholars assert that the decision was not revolutionary as Section 3 (1) of the ECA grants UK courts the powers to determine issues arising out of Community law and that court was only enforcing the will of parliament as outlined in Community law. Wade asserts that any judicial refusal to follow the legal validity of any Act of parliament amounts to constitutional revolution. This signifies that such act constitutes discontinuance of parliamentary sovereignty and that the political reality of the constitution would be ignored. However, Professor Goldsworthy counters this argument by asserting that discontinuance of parliament sovereignty depends on the willingness to accept it and that it is not created by courts alone. Sir Ivor Jennings was of the opinion that legal sovereignty may impose limitations on itself since powers to change the law include also power to change the laws that affects itself6. In the interpretations, if a conflict between the Community Law and the UK statute passed before the European Communities Act occurred, the UK statute is simply repealed to the extend that it conflicts with the Communities Law7. A second cause of conflict is whereby the conflict between UK statute that is passed after the European Communities Act and a Community provision that was in existence before the UK statute. In this case, the UK courts will be entitled to assume that the UK parliament had not known of the existence of the community provisions since if they had known it they would simply not have passed the statute. In their ruling, the courts will exercise the mandate of parliament if they made the Community provision to prevail over the UK statute8. The third scenario is whereby an Act of parliament is passed after the European Communities Act and a community provision comes in to existence after the UK Act of parliament. In this case, the UK parliament would have known the community provision would one day come in to existence and courts would be justified in the assumption that if the parliament would not have passed such Act is it had the knowledge of the possible future conflict. In this case, the courts will be carrying out the will of parliament by issuing a judgment that makes the Community provision prevail over the Act of parliament. In the case of Van Gend en Loos v. Nederlandse Administratie der Belastingen (case 26/62) (1963) ECR 1, the case established a dual vigilance system that enforces EU directives within each member states by holding that Community established a new legal order for the benefit of states that have limited their sovereign rights, albeit within limited fields, and subjects that also involve the nationals of member states9. In a landmark case of Flamino Costa v. ENEL (case 6/64) (1964) ECR 585: (1964), the court held that the transfer from the domestic legal systems by the states to the Community legal system would lead to a permanent limitation of their rights and obligations that have been transferred under the treaty against which an Act incompatible with the Community would not prevail10. The same decision was affirmed in the Costa v. ENEL (judgment) C-6/64 (1964) CMLR 425; (1964) ECR 585. In the case of Blackburn v. Attorney-General (1971) 2 All ER 1380, the complainant argued that the membership of UK in Europe would be illegal since it would diminish the sovereignty of Queen in Parliament11. The Attorney-General accepted that the Bill would involve surrender of some powers, but it was legal act. However, the power to ratify treaties was of the Crown acting in advice of her ministers, and this opened the battle of whether parliament would bind its successors12. The court held that it has the powers to decide whether such prerogative powers existed, but it could not review the exercise of such powers by the Crown. In this case, the power of entering in to treaties was a Royal prerogative that was immune from judicial review13. The unanswered question was whether the treaty was irrevocable or whether it could be reversed later by parliament. Section 2(4) of the European Communities Act 1972 provides that UK Acts of Parliament will states that any laws passed or to be passed will have deemed to have effect subject to the provisions of the section including Section 2 (1)14. In this case, Section 2 (4) has not deprived the UK parliament the powers to legislate over EU law and it is regarded as a cardinal rule of interpretation unless contrary intentions are stated15. The courts will assume that the Acts of parliament are intended to be subjected to EU law, unless contrary intentions are stated whereby the Acts of parliament will prevail over the EU law. The Act of parliament can always repeal the European Communities Act thus making the EU law to have no direct effect in the UK legal system16. In the case of Thoburn v. Sunderland City Council (2002) 3 WLR 247, Lord Justice Laws asserted that European Communities Act has not any provision that would qualify UK Parliament’s legislative supremacy and that UK could not abandon it sovereignty. Mr Thoburn sold goods in pounds instead of kilograms contrary to the UK legislation and was convicted by the Sunderland city Council. Although the UK had passed legislation to effect the Community directive, interesting issues that come out include whether the Community law was Supreme in the UK. Lord Justice Law’s judgment clarified that the relationship between the EU and UK depended on the UK law and not the EU law. The decision led to two forms of Acts of parliament, the ordinarily Acts that are impliedly repealed and constitutional Acts that can only be expressly repealed17. Conclusion In conclusion, unless parliament has expressed a contrary intention, the EU law will prevail over the United Kingdom law. However, if the Act of parliament has expressed a contrary intention clearly other than that of the EU, the Act of parliament will prevail. The UK parliament can always repeal the European Communities Act thus making the EU law ineffective in the UK. On the basis of the analysis and recent court judgments, the constitutional rights that protected by the EU law should be entrenched in to UK law through an Act of parliament since the European Communities Act is insufficient to incorporate measures that conflict with UK law in the national law. Accordingly, European Communities Act is a constitutional statute that cannot be merely implied repealed. The doctrine of parliament sovereignty still remains that parliament can still make any law and no parliament can bind the future parliament since any law can be changed in the future. The UK courts cannot question the validity of Acts of parliament Bibliography: Allan, T.R.S. The sovereignty of law: freedom, constitution, and the common law. Oxford: Oxford University Press. 2013. Clements, Richard and Kay, Jane. Public law. Oxford: oxford University Press. 2007. Hartley, Trevor. European Union law in a global context: text, cases and materials. Cambridge: Cambridge University Press. 2004. Hawke, Neil. Introduction to Administrative law. New York: Routledge. 2013. Herling, David. Briefcase on constitutional & Administration law. New York: Routledge. 2004. Ingman, Terence. The English legal process. Oxford: Oxford University Press. 2011. Leyland, Peter and Anthony, Gordon. Textbook on Administrative law. Oxford: Oxford University Press. 2013. Parpworth, Neil. Constitutional and administrative law. Oxford: Oxford University Press. 2012. Rawlings, Richard. Sovereignty and the law: domestic, European and International perspectives. Oxford: Oxford University Press. 2013. Weatherill, Stephen. Cases and materials on EU law. Oxford: Oxford University Press. 2007. Young, Alison. Parliamentary sovereignty and the human rights Act. London: Hart Publishing. 2009. Cases Van Gend en Loos v Nederlandse Administratie der Belastingen (case 26/62) [1963] ECR 1. Flaminio Costa v ENEL (case 6/64) [1964] ECR 585; [1964] CMLR 425 – ECJ and Italian Constitutional Court. Blackburn v Attorney-General [1971] 2 All ER 1380. European Communities Act 1972 ss. 1-3 McCarthys v Smith [1979] 3 All ER 325. Garland v British Rail [1982] 2 All ER 402. R v Secretary of State for Transport, ex parte Factortame [1990] 2 AC 85. R v Secretary of State for Transport, ex parte Factortame (C-213/89) [1990] ECR I 2433; [1990] 3 WLR 852. R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 All ER 70; [1991] AC 656. Read More