StudentShare
Contact Us
Sign In / Sign Up for FREE
Search
Go to advanced search...
Free

Administrative and Constitutional Law - Essay Example

Cite this document
Summary
This work called "Administrative and Constitutional Law" describes the idea and function of parliamentary sovereignty in the UK constitution. From this work, it is clear about the limits that the Human Rights Act place on the public bodies and Parliament. The author outlines the principle of parliamentary supremacy and the rule of law. …
Download full paper File format: .doc, available for editing
GRAB THE BEST PAPER95.6% of users find it useful
Administrative and Constitutional Law
Read Text Preview

Extract of sample "Administrative and Constitutional Law"

Administrative and Constitutional Law Explain the idea and function of parliamentary sovereignty in the UK constitution. Parliamentary sovereignty is a principle used by the UK constitution and makes the parliament a top legal authority1. Parliamentary sovereignty, as a principle in the UK constitution, that is capable of making and ending any law. It is one of the most important components of the UK constitution. Generally, UK is known to have unwritten constitution like in USA and Germany. However, much of the law passed in parliament are always in writing. This type of law is known as statue law. The principle or policy of UK’s parliamentary sovereignty is frequently presented to be a unique legal arrangement with no parallels in the comparative constitutional law. 2Parliamentary sovereignty gives unconditional authority to the Westminster parliament. Thus, it seems to rule out the comparison between the US Congress or the German Bundestag, whose authorities are limited by their constitutions and the Westminster parliament. Therefore, it is seen as unique and a product of the unwritten constitution. Constitutions are very important in countries organisation and development. They organise, regulate and distribute the state power. Constitutions set out most of the state institutions, the state’s structure and the principles that govern their relations with the citizens and the other states. In Britain, the constitution differs with other countries3. For instance, most countries have well written constitutions while Britain has accumulation of conventions, treaties, statues and judicial decisions, which collectively makes the British Constitutions. Therefore, the constitution is more of “uncodified” than “unwritten.” Parliamentary sovereignty is mostly considered as a defining principle of British constitution4. It is the final principle that makes and can abolish any law. Other major principles in the British constitution include legislative and judicial branches, rule of law, and separation of government into executive and the presence of a unitary state. Some of the principles are mythical or in doubt. The uncodified British constitution therefore has two main problems. For instance, it makes it hard to know the state of the constitution. Secondly, it is makes it simpler to make changes in the UK’s Constitution than in other countries. 5The flexibility of the constitution resulted into a number of reforms since 1997. The reforms include devolution to Wales, North Ireland and Scotland, elimination of most of the heritable peers in the House of Lords, and the introduction of individuals’ codified rights in 1998 Human Rights Act. The doctrine of parliamentary sovereignty was demonstrated in the case Jackson and others (appellants) v. Her Majestys Attorney General where the plaintiffs challenged the validity of the Hunting Act 2004, which criminalised hunting of wild animals with dogs. This Act was enacted pursuant to section 2 of the parliament Act 1911. Both the Divisional Court and the Court of Appeal dismissed the issue regarding the validity of Hunting Act 2004 because it was not an Act of the parliament. Various developments affect parliamentary sovereignty. Parliament has been passing laws that limit parliamentary sovereignty application6. The laws mainly reflect the political growth in and outside UK. The laws include The Human Rights Act 1998, the entry of UK to the European Union in 1972. The developments however, do not undermine parliamentary sovereignty because the parliament could abolish each law implementing the changes7. 1. The limits that the Human Rights Act place on the public bodies and Parliament? Human Rights Act 1998 is also referred to as the Act of the HRA. It came into existence in the United Kingdom in 2000. It mainly consists of a channel of parts that consists of effects that codify safety in the European Convention on Human Rights in the law of UK. The public bodies such as the police, hospitals, publicly funded schools, courts, local government among others and other bodies that practice public roles should or must comply with the conventional rights. This illustrates that individuals are able to refer their human rights cases to domestic courts. Therefore, they do not need to go to Strasbourg in order to discuss their cases in European Courts of Human Rights. The Act offers a set of freedoms and rights for individuals in the United Kingdom. They include, right to fair trial, right to life, right to liberty and security, freedom from inhuman and torture, right to education freedom of expression and many others. The limits placed on the public bodies by the HRA are evident in the fact that the Act requires all public authorities to take into consideration fundamental human rights and freedoms when executing their duties and decisions. In other words, the courts have the powers to reverse the decisions and activities of public authorities that are tantamount to breach on the provisions of HRA. The courts are at liberty to carry out the following remedies in case a public authority breaches the Act. The first remedy involves granting traditional “judicial review” relief as in the case of other civil cases as the court seeks to establish the lawfulness in the conduct and or decision of the public authority. Awarding compensation is another important remedy offered by the courts in case of breach of the human right and freedom by the public authority. The elements of the public bodies were highlighted in the case of YL v Birmingham City Council [2007] 3 W.L.K 112. the plaintiff wanted to stop a private home care where she was placed by the defendant pursuant to the section 21 of the National Assistance Act 1948 as the private home was exercising its public obligations within section 6(3)(b) of the Human Rights Act 1998. According to Alison concerning the repercussions of HRA for the parliamentary sovereignty, HRA grew out of need to offer huge protection to human rights without establishing them in a manner, which they would limit the parliament. The HRA wants the courts to read and provide effect to statue in order to make well suited with the rights in the European Convention on human rights. In case, it is impossible to get a convention that is compatible with the interpretation of the statue, then specific courts are authorized to offer non-binding Declarations of Incompatibility. Consequently, the parliament would decide whether to amend the incompatible legislation. The HRA appears to allow protection of human rights and freedom as well as protecting the parliamentary sovereignty. This ensures balance between the democracy principles that are represented by the parliamentary sovereignty and human rights. In other words the limit placed on the parliament is evident on the fact that the parliament cannot make amendments or pass bills that interferes with the fundamental rights and freedoms of the public. HRA requires that all bills brought into both houses have to be scrutinised for its compatibility with the HRA an aspect that is not synonymous with other legislations. The courts are also expected by the Act to interpret all Acts of Parliament in way that they meet the HRA in order to declare whether they are compatible with HRA or not. This requirement is not applicable in other legislations thus creating a limit to the doctrine parliamentary supremacy. In UK, there has been little public education concerning the freedoms and rights as contained in the Human Rights Act. Therefore, many misunderstandings and myths have been formed about the HRA, including the values it contains and the people or organizations it protects. For instance, it is claimed that HRA duels much on right than responsibilities. Human rights and responsibilities are somehow bound together. HRA states that no right can be interpreted since everyone has the right to limit other people’s rights more than allowed under HRA. Rights are viewed as universal and alienable in nature as most of them appear with responsibilities. 3. Human Rights Act (HRA) limit on parliamentary sovereignty It is noteworthy that the Human Rights Act (HRA) has not gone too far in limiting the parliament sovereignty in the country. It is the responsibility of every country to protect inherent rights and freedoms of its citizens. 8The United Kingdom has had a long and superior history in perpetrating the recognition and recognition of fundamental human rights and freedom. For a fact, the UK has been important player in the Council of Europe, which was the genesis of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Human Rights Act (HRA) unlike majority of other laws covers the most important interest of the entire public taking into consideration that it seeks to protect the fundamental rights and freedom of everyone in the society irrespective of their social status, religion, age, and or gender9. For this reason the Human Rights Act since it was independently adopted in 1998 by the UK parliament it has remained one of the most important legislation in the country for the last three decades. Everyone understands that parliamentary sovereignty is one of the most important elements of the UK constitution. 10This is because the constitution extends to the parliament through the principle of sovereignty to be the supreme legal authority in the UK. However, over a number of years the UK parliament has been forced to come up laws that limit their sovereignty. The Human Rights Act of 1998 is one of such legislations that limit the principle of parliamentary sovereignty. 11This means that the parliament despite being the supreme legal authority in the land it cannot amend the provisions of the Human Rights Act 1998 to suit a particular situation or as per their wish. The Human Rights Act (HRA) influences the UK laws in three significant ways that contests parliament supremacy. First, the HRA requires that all UK laws be interpreted in a way that is compatible with the fundamental rights and freedoms of the citizens. The courts can declare Acts of Parliament found to breach HRA be incompatible and finally public authority is not expected to carry out acts that are incompatible with the HRA. 12The fact that HRA gives the courts the powers to issue non-binding Declarations of Incompatibility on Acts of parliament that they find incompatible does not in any way go too far in limiting the parliamentary sovereignty. This is because Act only seeks to protect the fundamental human rights while at the same time preserving the parliamentary sovereignty. This means that the main object of this Act is to strike a balance between the human rights and the principles of democracy, which is presented by parliamentary sovereignty13. This claim can be justified by the fact that as much as courts can declare an Act of Parliament incompatible it cannot rule on the validity of the law. In other words, the court cannot overrule the decision of the parliament. The Human Rights Act preserves the Parliamentary sovereignty in the sense that recognizes the role of the parliament in making laws by allow the parliament to decide on whether to amend laws that are incompatible with the Act or not14. The fact that the parliament alone has the discretion of deciding whether to or not to amend or repeal legislations that are declared incompatible with HRA is a clear justification that the HRA does not exaggerate its limits on parliamentary sovereignty15. The “dialogue model” adopted by the HRA is another important claim that can be used to justify the fact that HRA limits on parliamentary sovereignty is not too much. The “dialogue Model” allows the parliament to invite the courts to highlight when legislation is incompatible with fundament rights and freedoms of the civilians in order to give the parliament ample time to decide what to do with the bill in question. 16It is noteworthy that Section 19 of the HRA calls for all Ministers in charge of Bill in both the Houses of parliament to issue a non-binding executive statement before the Second Reading of the Bill. This is means at ensuring that the Minister states his/her personal view on whether the bill is compatible with the HRA or not but the government however intends to push the bill ahead. The Joint Committee on Human Rights (JCHR) is another important tool used in harmonising the principle of parliamentary supremacy and rule of law as the committee is charged with the responsibility of scrutinizing draft legislations for its compatibility with the HRA. Bibliography G, Facenna, Introduction to the Human Rights Act: How it Works, (2003), Accessed < http://www.monckton.com/docs/library/Introduction%20to%20HR%20Act%20Feb%2003%20-%20GF.pdf> W, McKusick, A Dignified Void: The Decline of Parliamentary Sovereignty and the Rise of Conventional Judicial Review in the United Kingdom, (2012), Accessed < http://students.washington.edu/wulr/archive/Winter_2012/McKusick_Winter12.pdf> S, Chakrabarti, CommonSense: Reflection on the Human Rights Act, 2010, Accessed, http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/commonSense.pdf P, Butler, Human Rights And Parliamentary Sovereignty In New Zealand, 2004, Accessed < https://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/pdf/vol-35-2004/issue-2/butler.pdf> V, Bogdanor, Sovereignty of Parliament or the Rule of Law, (2006), Accessed, < http://www.runnymede.gov.uk/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/Magna%2520Carta/Lectures/Sovereignty_Parliament_or_the_Rule_Law> How the Human Rights Act Works, (2012), Accessed < http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/how-the-human-rights-act-works/index.php> M, Pinto-Duschinsky, Bringing Rights Back Home, (2011) Accessed, < http://www.policyexchange.org.uk/images/publications/bringing%20rights%20back%20home%20-%20feb%2011.pdf> A, Wegner, Does parliamentary sovereignty still reign supreme? (2011), Accessed < http://www.guardian.co.uk/law/2011/jan/27/supreme-court-parliamentary-sovereignty> The Legislative Supremacy Of Parliament, (2007), Accessed Parliamentary sovereignty in the UK constitution, (2012), Accessed < http://www.parliament.uk/about/how/sovereignty/> P, Eleftheriadis, Parliamentary Sovereignty and the Constitution, (2009), Accessed A, Young, Parliamentary Sovereignty And The Human Rights Act, Vol. 19 No. 9 (September, 2009) pp.700-704 The Human Rights Act, Equality and Human Rights Commission, Accessed < http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/> The supremacy of Parliament, Accessed, < http://www.historylearningsite.co.uk/supremacy_of_parliament.htm> P, Eleftheriadis, Parliamentary Sovereignty and the Constitution, (2009), Accessed, < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1486146> UK Constituional Law Group, (2012), Accessed, Read More
Cite this document
  • APA
  • MLA
  • CHICAGO
(Administrative and Constitutional Law Essay Example | Topics and Well Written Essays - 2000 words, n.d.)
Administrative and Constitutional Law Essay Example | Topics and Well Written Essays - 2000 words. https://studentshare.org/law/1790392-administrative-constitutional-law-public-law
(Administrative and Constitutional Law Essay Example | Topics and Well Written Essays - 2000 Words)
Administrative and Constitutional Law Essay Example | Topics and Well Written Essays - 2000 Words. https://studentshare.org/law/1790392-administrative-constitutional-law-public-law.
“Administrative and Constitutional Law Essay Example | Topics and Well Written Essays - 2000 Words”. https://studentshare.org/law/1790392-administrative-constitutional-law-public-law.
  • Cited: 0 times

CHECK THESE SAMPLES OF Administrative and Constitutional Law

Iran-Contra and the Constitutional Paradigm

If he followed the orders of his superior, he would be breaking a congressional law; if he disobeyed his superiors, he would be guilty of refusing to follow orders.... This paper "Iran-Contra and the constitutional Paradigm" focuses on the fact that in considering the Iran-Contra affair, it is obvious that the actions that took place were in complete opposition to the ideas put forth in Paul E.... Roush's essay “constitutional Ethics.... Colonel Oliver North and compare them to the ideas put forth in the constitutional paradigm by Paul Roush....
7 Pages (1750 words) Essay

Presidency in the US - Presidents Clinton and Bush

They could be used for explaining, authorising, directing, informing an unconstitutional flaw, and also making a law administrative and legal.... The statement almost gives a negative feeling that he was displeased, and was unhappy to carry out the presidential requirement of the Constitution of making it a law, but was bound to do so. 145569 A signing ment is a written, personalised comment made by the sitting President of America while signing a bill.... The statement almost gives a negative feeling that he was displeased, and was unhappy to carry out the presidential requirement of the Constitution of making it a law, but was bound to do so....
2 Pages (500 words) Essay

Differences between US and Arabia Law

On the other hand, US law is derived from, statutory law, common law, court rules, administrative law, and constitutional law.... "Differences between US and Arabia law" paper analyzes the sources of law, identifies whether the Montana medical state is lawful, whether there is any duty to rescue someone in peril, and describes policies for treating someone in peril and reason for imposing a duty.... hellip; Saudi Arabia acknowledges Islamic law in its constitution by making Islam the authorized religion of the state....
7 Pages (1750 words) Coursework

Redress Mechanisms in the UK

The UK Administrative and Constitutional Law requires that the redress systems be of service to the citizens as opposed to adherences of the set regulations1.... For instance, in… However, it is important to note that, despite the fact that persons wish that these mechanisms be independent, not all redress mechanisms are Redress mechanisms in UK Redress mechanisms in UKThe UK Administrative and Constitutional Law requires that the redress systems be of service to the citizens as opposed to adherences of the set regulations1....
1 Pages (250 words) Essay

Business and the Constitution and Administrative Law

Business manager need to understand constitutional law because most constraints or challenges facing business are legal in nature.... Business manager need to understand constitutional law because most constraints or challenges facing business are legal in nature.... In addition, for any successful business manager, it is helpful to know and be familiar with tribulations addressed by constitutional laws, provisions of those policies, and the type of administrative and mechanism via which these laws are enforced....
1 Pages (250 words) Essay

3.2: Course Project Business and the Constitution and Administrative Law

Although there is no constitution law for individuals and businesses, the operations of the business is Business and the Constitution and Administrative law Why it is important for a business manager to understand the basics of constitutional lawThe constitution and the laws in the constitution affect not only affects ordinary/common citizens but also the business community and the corporate entities.... Although there is no constitution law for individuals and businesses, the operations of the business is influenced by the amazing document, the constitution....
2 Pages (500 words) Research Paper

New York v. Burger

The issue in this case is whether a search without warrant on an automobile junkyard, but conducted pursuant to the law authorizing it, is included in the exception to the requirement of a warrant to conduct an administrative inspection on a pervasively regulated business.... On the day the search was conducted police officers from the Auto Crimes division entered the respondents junk yard and conducted an inspection pursuant to Section 415-a5 of the New York vehicle and Traffic law....
4 Pages (1000 words) Research Paper

Constitutional and Administrative Law

This paper "Constitutional and Administrative law" discusses the use of precedent in English law that comes from the Latin maxim 'Stare Decisis et Non-Queita Movere', which literally translates as 'to stand by what has been decided, and not disturb what is still'.... inding precedents come from earlier case law and, as suggested in the wording, must be followed even if the judge in the present case does not agree with the legal reasoning of the judge in the earlier case....
8 Pages (2000 words) Assignment
sponsored ads
We use cookies to create the best experience for you. Keep on browsing if you are OK with that, or find out how to manage cookies.
Contact Us