The Law and the Principle of Implied Repeal - Essay Example

The Law and the Principle of Implied Repeal The political and government structure of the United Kingdom There is necessity in first discussing the politics of the United Kingdom and its government before going into (a) the evaluation of the roles of the nation's legislature and judicial arm, and (b) the relevance of the so-called implied repeal. The structure of the United Kingdom is very unique in that it is a monarchy founded on constitutional frameworks. The current Queen, the head monarch, is on top of the government while the state is officially under the Prime Minister who is the senior minister in the administrative organization tasked to formulate the policies of government. The judicial and legislative functions appeared to be entangled with one another before because the parliament is composed of the House of Commons and the House of Lords but the latter acted as justices at the same time. This drawback was recently remedied substantially, albeit not completely, by the Constitutional Reform Act 2005.1 For instance, there is now a Supreme Court under Part 3 of the law which has taken over the judicial powers of the House of Lords which used to have appellate jurisdiction. Being then all under the Queen, the rule of law was said to be hinged on her sovereignty in the parliament which makes laws and on her sovereignty in the courts which interpret and apply the law. From within this ambit was derived the structure of the so-called twin foundations. While it is true that the duties and functions of the Queen are more ceremonial, there are still aspects over which she wields power which she may exercise at will. Important examples are her needed assent for the final enactment of a bill into law and her influence over the appointment of the Prime Minister and the other members of the cabinet because of the need for the Queen's formal consent. Although reduced in the course of history, the supremacy of the monarchy can still be felt. As a matter of fact, there were, and still there are, moves to abolish it on the strong suggestions that it is inutile and hugely expensive.2 Some claim that a democratic standard republic will be a better and effective form.3 Another aspect in the United Kingdom government worth pondering is that it does not have a complete written set of codified laws and that includes its own constitution. Case laws which are actually compilations of decided or accepted jurisprudence have a lot to do in the law-making processes which are, ironically, borne out of judicial pronouncements. This means that what the courts resolved would become laws. Stated straightforwardly, therefore, the makers of the law interpret the law in the event of a controversy or in incidents where there are doubts in construing that particular law. Incidentally, with the new Constitutional Reform Act 2005, the new Supreme Court may be able to thresh out all the possible hitches. Since the high court started working only on October 1, 2009, a lot of patience is needed until the intended reforms are made effective slowly and gradually in the mainstream of justice administration. Along this line, it can be hoped in large part that the new law for constitutional reform will bring about positive changes.4 The twin foundations of the Queen's sovereignty During one of the deliberations of the constitutional reform bill, the Law Lords had the occasion to mention the ruling in X v Morgan Gramplan (Publishers) Ltd. which enunciated the principle that the rule of law in the United Kingdom is founded on both the Queen's sovereignty in the parliament which is charged with the enactment of laws and the Queen's sovereignty over judicial proceedings particularly those administered by the House of Lords in its duties anent appellate jurisdiction.5 It has always been debated if the somewhat irregular or abnormal circumstance contradicts the precepts on separation of powers. It is like taking exceptions on one person being the prosecutor, the judge and the executioner. The notion has a direct correlation with the principle of implied appeal. As a matter of fact, both are in parallel in that the former is appurtenant to the situation when the justices interpret the law they made while the latter refers to instances when the justices, sitting as a court of course, reverse or modify their own previous rulings. Again, it has to be reiterated here that the newly created Supreme Court will have great bearings on the seeming anomaly regarding the individual powers of each branch of government. In comparison with the federal government system in the United States of America, the latter has the executive power vested in the President and his cabinet and other agencies and instrumentalities in the bureaucracy, the law-making body is entrusted in a Congress composed of the United States Senate and the United States House of Representatives while the powers on final judicial determinations are reposed in the United States Supreme Court. There is therefore a truly distinct segregation and clearly defined demarcations among the three key branches of government. Very pertinent to the comparative analysis and assessment is the fact that the United States Supreme Court does not have law-making powers in the true sense. In the same vein, the United States Congress is not in the business of interpreting laws which have been passed under its own charge or supervision. In the United Kingdom set-up, especially before the passage of the law on constitutional reform, the House of Lords is part of the parliament which makes the laws. At the same time, the said House of Lords had the power to entertain appeals from inferior courts. It may be likened to a student taking an examination and being allowed to correct his own test paper. Although the Supreme Court under the new framework is yet an innovation and is still to prove how effective its role and functions will be, the division between the lawmakers and the law interpreters is now finely delineated and distinguished. Implied repeal Regarding the principle of implied repeal, the same is not an area of serious worry or concern as that in the questioned non-separation of government powers. Time changes. Norms evolve. Attitudes and behaviours become different. Things of the past cannot be exactly categorized along the same level with the things of the present. What was not considered cruel before might already be treated as harsh under current situations. For instance, there are deeds which were previously not deemed as constituting child abuse but which are now classified as such. This kind of happening is true with the courts which are actually composed of human beings. Rulings can be made different in order to suit the exigencies of the times. Court decisions must conform to what already is acceptable which was not probably so some long while before. Furthermore, the power and authority to rule and decide is inherent in the office of the then High Court which, incidentally, will be transmitted to the new Supreme Court. Within that doctrine, it is absolutely embraced inside the bounds of the command and influence of the highest tribunal to modify its previous resolutions or even to completely change and alter the old judgments with novel rulings but which are under new acceptations. For as long as there is no prejudicial encroachment on basic and fundamental freedoms and liberties, significantly to include human rights, there are no limitations in the power to pass upon judgment based on the prudent analytical thinking and acknowledged wisdom of the learned justices. Again, there is a need to look into factors similarly situated in the United States of America where the highest court of the land there also reverses or modifies itself where and when needed.6 It is true with the Supreme Courts of the individual states.7 Implied repeal The principle of implied repeal has become of utmost significance upon the advent of the European Union and the treaties which were covenanted to support the amalgamation of nations and states which are members of the alliance. One leading United Kingdom case on the issue was that of Thoburn v Sunderland City Council.8 In 1985, the Weights and Measures Act was passed Section 1 of which states that the pound and kilogram units of measurements will be both legally acceptable. In order to synchronize with the measurement units adopted by the European Community, an order was issued mandating that the pound would no longer be the key unit of measurement after January 1, 2000 making its use a criminal offence effective upon the given cut-off date. However, a 1994 regulation allowed the exhibition of the old measurements on the condition that the metric ones are also on display and with more prominent signs. The said 1994 regulation was in compliance with the European Communities Act 1972 which, among others, empowered the Ministers to legislate complementing statutes so that the United Kingdom would be compliant with its European Union obligations. Grocery merchant Steve Thoburn was handed down a conviction for using allegedly illegal weighing instruments. The other vendors similarly situated were Colin Hunt, Julian Harman, John Dove and Peter Collins although Collins was not convicted but who instead questioned the legality of the authority which made compulsory the mandated measurement unit whose position was however dismissed by the handling magistrates court. The five became to be thence known as the "metric martyrs". They appealed their case. Among others, it was advanced by the appellants that since the kilogram and the pound measurements were both classified as legal in accordance with the Weight and Measures Act of 1985, it followed that the European Communities Act 1972, an earlier enactment, was impliedly repealed. The final ruling was that it was true that the parliament could not bind its successors. Applying that reasoning, an earlier law can be abrogated by a later law as in the instant case. However, it was resolved that the European Communities Act 1972 is a constitutional statute in that it is one imbued with the whole corpus of substantive rights and obligations under the framework of the European Union. Being so, the said European Communities Act 1972 can only be repealed, amended or modified by an equal legislation expressly authorizing the repeal, amendment or modification. The House of Lords rejected the case when brought before it commenting that there was no reason to argue thereon. Thence, it was applied to the European Commission of Human Rights which dismissed the matter as being inadmissible. On the sad side of the story, the lead "metric martyr", Steve Thoburn, unfortunately died of cardiac arrest a few days after the application was rejected. References (All sources were from the Web / Internet) California Supreme Court reverses itself on strict liability decision for owners of rental property. ENCYCLOpedia.com. [internet] Accessed January 14, 2010. Available at: Constitutional Reform Act 2005. OPSI Office of Public Sector Information. [internet] Accessed January 14, 2010. Available at: Debate: Republic vs monarchy in the UK. Debatepedia. [internet]. Accessed January 14, 2010. Available at: < http://wiki.idebate.org/en/index.php/Debate:Republic_or_Monarchy> Parliamentary Business. March 8, 2004. www.parliament.uk. [internet] Accessed January 14, 2010. Available at: Robertson, March. Abolish the Monarchy. May 2005. [internet] Accessed January 14, 2010. Available at: Smith, M. J. Plots Thicken. June 30, 2007. Slate. [internet] Accessed January 14, 2010. Available at: http://www.slate.com/id/2169550/fr/rss/ The Question "Is The Separation Of Powers In The United Kingdom Constitution Myth Or reality" Can No Longer Be Posed Once The Constitutional Reform Act Has Received Royal Assent. Jan 17 2007. AcademicDB. [internet] Accessed January 14, 2010. Available at: http://www.academicdb.com/Law/Public_Law/The_Question__Is_The_Separation_Of_Power_L135576.html Thoburn v Sunderland City Council. tripatlas. [internet] Accessed January 14, 2010. Available at: Read More