What Is a Public Law - Essay Example

Topic: LW1005 Public Law Language Style: English UK Grade: 2 Pages: 6 Answer: To understand and assess the question, it is necessary to look back to 1945 and a Europe that had been devastated by war: politically, economically, and socially. In the desire to attain some form of harmony in order to guarantee peace and to rebuild Europe. The Treaty on European Union (Maastricht) 1992 involved the creation of the European Union. UK incorporated of the EC law into domestic law by European Communities Act 1972. By virtue of ss .2 (1), 2(2), and 2(4) EC law was directly incorporated.1 Art. 221 provide that the Court of Justice will consist of fifteen judges. They are appointed is for six term of office of six years through the term is renewable. The power of the ECJ defined in Article 243. The Member States mainly, but not exclusively, in exercising its jurisdiction under Articles 173, 177 and 228(6).2 The sovereignty of Parliament is the dominant characteristic of our political institutions. Sir. A. V. Dicey expressed it as cornerstone of the constitution and he has introduced of this doctrine of PS. These are: 1. Parliament is the supreme law making body and may enact law on any subject matter: This rule means that the Parliament can make or unmake any law. Parliament may grant independence to dependent states whether dominions or colonies. For example: The Nigeria Independence Act 1960 and The Zimbabwe Independence Act 1979. 2. No Parliament may be bound by its predecessor or bind by its successor: The doctrine of repeal is the idea that supports this theory. Now any Act of Parliament can expressly or impliedly repeal any law. So, this power of Parliament support Dicey's this theory as Parliament is not being bound any Parliament before it. However, by Acts of Union, the law making power of UK and Scotland was merged that was maintained for more than 300 years. Acts of Union and the Grand of independence oppose this theory. 3. No one even the court of the law can question about the validity of an act of Parliament. This doctrine states that an Act will be accepted by Courts provided it was made by proper procedure. So, no one can question about its validity. But it is seen that citizens' i.e. electorates and neighbouring countries can question it. Before 1688 settlement judges proclaim an Act invalid because of its conflicts with a law of higher statues. In Pickin v British Railway Board, Lord Read said that although, previous laws contrary to the law of God or the nature or natural justice can be said to be invalid, The comments of Lord Denning in McCarthy's v Smith, and Lord Diplock in Garland v British Rail Engineering Ltd provides an analogy for arguing that the HRA could be repealed if Parliament wished. It cannot be an entrenched bill of Rights, but where a Sex Discrimination Act 1975 appeared inconsistent with Article 141(then Article119) EC (equal pay). However, HL was able to construe the provision in a manner consistent with Article.3 The influence between of the European court in the development of Community law, and the influence of domestic courts in the development of English law, on the other hand. Lord Diplock's dictum in the GCHQ is testament to the influence of the courts in the development of administrative law. His Lordship stated "English law relating to judicial control of administrative action has been developed upon a case-to-case basis which has virtually transformed it over the last three decades." In Les Verts the Court referred to the Treaty as the ""basic constitutional charter" of the Community and came to the conclusion that, although the Parliament was not mentioned as a possible defendant in Article 173, binding measures adopted by it were subject to judicial review. The Court stated that by Articles 173, 184 and 177 the Treaty intended to establish a complete system of legal remedies. Les Verts is a prime example of dynamic interpretation, an approach typical of the interpretation. The current British position is found in the ruling of the HL in R v Secretary of State for Transport Ex parte Factortame Ltd. Lord Bridge suggested that if it were found that the British Act was in breach of the claimants directly effective Community right, latter rights would prevail over the contrary provisions of the domestic Act. Subsequently, after the ruling of ECJ, the HL unanimously granted interim remedy, which was not at the time available under national law for ensuring effective protection for individuals' Community rights. In Marleasing SA, the ECJ held that, the court and other MS under a duty to fulfil the obligation of EC law according to Article 10. In Francovich & Bonifaci v Italy [19914] it was considered that if an individual sustain damages of State Liability, MS take full responsibilities of damage. Here ECJ had contended technological approach with denial of Horizontal Direct Effect of Directives (HDE). The right to damages is dependent upon three conditions: (a) The rule of law, which was infringed, must have intended to confer rights on individuals; (b) The breach of this rule of law must have been sufficiently serious: (c) There must have been a direct causal link between the breach of the obligation imposed on the state and the damage, which was sustained by the injured parties. Sources: To assess the extent to which fundamental rights are effectively protected in the EU legal order, with particular reference to the case law of the Court of Justice, it is necessary to know about sources. There are two main sources for formulating the objectives of EC law. This are- a) Primary sources: treaties are the main sources of community law. In these aspects where the treaties are silent, secondary sources are used. Article 249 of the EC Treaty defines the different types of legislation. The role of the ECJ for in the most general term by Article 220 of the EC Treaty and the Court of Justice shall ensure that in the interpretation and application of the Treaty, the law is observed.5 b) Secondary sources: Secondary sources are Regulations, Directives, Decision, Recommendation, and opinion. Implication of community law: UK parliament is the supreme law making authority. Now ECJ challenge the primary legislation if it is incompatible with community law. Firstly, if EC confers any rights on individuals then any national law must give effect to the EC law and domestic law cannot prevail over EC law. Secondly, the effectiveness of community law should be equal in all Member States and the national courts must follow jurisprudence of ECJ. Thirdly, Courts of MS must follow the interpretation of laws given by the ECJ or, where there is no authority, and under the certain condition, must refer the matter to the ECJ under Art 234 of the treaty. Art. 227. A Member State, which considers that another Member State has failed to fulfil an obligation under this Treaty, may bring the matter before the Court of Justice. 6 Finally, if ECJ gives a ruling Member States are under an obligation to amend their national laws so as to conform to community law. The Human Rights Act 1998 is rightly considered to be one of the most significant constitutional developments of past three hundred and fifty years. The clue of status of the Human Rights Act lies in the manner in which the European convention of human rights was incorporated into domestic law. In Internationale Handelsgesellschaft MBH v EVST 7 for the protection of civil rights and liberties, which are inspired by the traditional constitution of Member State, must be construed with the framework to fulfil the obligation of the community.8 Section 3 of the Human Rights Act 1998 provides that domestic law will be interpreted in a way, that it becomes compatible with the ECHR. But if interpretation in that way is impossible then judges gives a declaration of incompatibility. This declaration oppose to Dicey's theory because here the judiciary is questioning an act of parliament if it breaches human rights. Section 19 of the Human Rights Act 1998 requires a Minister to make a declaration of compatibility or otherwise with the ECHR of any proposed primary legislation before second reading of the Bill, while s.4 provides for a Court to make a declaration of incompatibility of any existing provision of primary legislation. Finally s.6 requires public authorities to Act in a way that is not incompatible with Convention Rights. Section 19 of the HRA 1998 states that the Courts must take in to account any judgement or decision of the ECtHR. In the case of Re Medicaments (NO-2) Director General of Fair trading v Property Association of GB9 the CA refused to follow the decision of the HL in R v Gough 10 because it was slightly different decision of the ECtHR. The important argument here come that HRA 1998; an Act of Parliament having no special statues can be replaced any time Parliament wishes. It is the Parliament, which is supreme. So, theoretically the doctrine of sovereignty is preserved but practically this arise some question whether it really possible or not. Reference: 1. Wincott D. (1999) "The Court of Justice and the Legal System" in Cram L et al (eds), Developments in the European Union (Basingstoke: Macmillan) 2. Hilaire B. (2005) "Constitutional and Administrative Law" (Cavindish Publishing Limited) 3. Michael T M. (2004) "Administrative Law" (Old Bailey Press) 4. Lee, I.B, In Search of a Theory of State Liability in the European Union, Harvard Law School, ISSN 1087 221. 5. Craig, P. (2007), EU Law: Text, Cases and Materials, QC and Grainne de Burca Read More

 

Read More