Constitutional and Administrative Law - Essay Example

CONSTITUTIONAL AND ADMINISTRATIVE by Constitution and administrative law The principle of parliamentary sovereignty means that parliament has the right and the power to make or unmake laws. Further, no person or body has the right to override or set aside a legislation made by parliament. Therefore, each parliament is sovereign in its own time and may enact legislations as it wishes on any topic or issue that they feel needs to be regulated at any time or place. Parliamentary supremacy has taken the model that was created by Dicey, where he states that parliament has the right to make their own decisions without being questioned, except in cases where they have overstepped their authority. Therefore, according to Dicey, every parliament is sovereign and any law that has been enacted by it has supreme force. For that reason, any other external or domestic authority cannot invalidate it. However, in the case of R (Jackson) V Attorney General1 the sovereignty of parliament was challenged by the enactment of the Hunting Act 2004. The Jackson case was a significant case as it contained obiter comments that were made by judges while acting in their executive capacity. The judges noted that there were many limits of parliamentary sovereignty. They further held that the standard position was indefinite in the United Kingdom2. The case was brought to the courts by Jackson and other members of a country club opposing the Parliament Acts that enabled them to ratify the Hunting Act of 2004. The claimants stated that the way parliament used their powers to pass or enact laws was not appropriate, even though they had parliamentary sovereignty. The Parliament amended the 1911 Act with the Parliament Act 1949, which the claimants stated was not appropriate. The hunting Act, on the other hand, was conceded in agreement with the modified acts as divergent to the original Parliament Acts, making it invalid3. The claim was rejected by the court of Appeal and the lower courts; however, the Court of Appeal believed that the Parliament Acts process could not be used to make any substantial changes in the constitution. The case was further appealed by the House of Lords where it was determined by nine judges, as opposed to five who heard cases on the bench. This was because the case raised constitutional issues. The 9-judge bench held that they had the jurisdiction to hear and determine the case in relation to the preliminary issues4. The issues were in relation to the Hunting Acts, which raised a statutory question as to whether the 1911 Act could be used to ratify the 1949 Act. The house of lords held that, on the substantive issue, there were no restrictions to what legislation could be used to ratify the Parliament Acts. However, there was an expression that stated that in case of an express limitation that was present in the legislation, then it could not be used. For that reason, the House of Lords established that the Parliament Act of 1949 was valid. Subsequently the Hunting Act was alleged to be an act of Parliament5. Although the case was decided in favor of parliament, it raised issues on the sovereignty of Parliament, where Lord Steyn, Baroness Hale and Lord Hope stated that there were restrictions to parliament sovereignty. In their reasoning, they stated that the parliament’s sovereignty was given by the judiciary. However, their thinking was not accepted by Richard Ekins, who stated that the reasoning was jurisprudently absurd and historically false. This was because, according to the United Kingdom constitution, the doctrine could be accepted by the three branches of government. Additionally, judges had accepted this rule, they did not create it, and for that, they did not have the right to change it lawfully. According to Stuart Lakin, parliamentary sovereignty depended on its recognition by the courts in custom and theory. The issue of standing was not contested in that the case was brought in a personal level, because the appellants were affiliates of the Countryside Alliance; however, they did not bring the case as a club but as individuals. None of the members had been prosecuted or threatened with a lawsuit; therefore, it was held that there was no need to object or challenge their standing. However, the government saw it fit to continue with the case without contesting the standing of the individuals, as they thought that Hunting Act was bound to be contested before it came into force. This is because there had been social implications experienced throughout the United kingdom. Therefore, as a pre-emptive measure, the state decided to deal with the issues that were challenged by the act to ensure that the decision made could satisfy the citizens of the United Kingdom, and ensure that the doubts they had were settled by the court6. In addition, in case there was a standing in the case, the matter would have extended further to become more complicated; making the validity of the Act of Parliament more difficult. Another issue that was not contested by the Attorney General in the Jackson case was jurisdiction as to whether the House of Lords had the authority to challenge the legality of any Act of Parliament. This was an extraordinary concession because, in the case of Pickin V British Railways Board, it was established that courts could not scrutinize the process in which legislation was passed. Lord Reid held that the idea of the court being entitled to reject a provision in the Act of Parliament on several grounds might seem absurd, startling and strange to any person who did not have knowledge of the law of the constitution, as well as, its history7. Additionally, the Bill of Rights 1969 outlawed review of parliamentary proceedings where, Sec 3 of the Parliament Act 1911 provided that any certificate provided by the speaker of the House of Commons stating the eligibility of using the Parliament Acts or procedure, could not be inquired into any law in court. In the Jackson case, Lord Bingham indicated that he felt strange discussing the issue outside parliament because the courts were invited to undertake discussions on the proceedings that dealt with Acts of parliament as a supreme law, that was soon going to become law. The judges explained that the court had authority to hear and determine the case because it was brought up as a legal issue or that of statutory interpretation rather than in the form of examining parliament proceedings. Additionally, it was noted that the Act was not made by both Houses as was the case in the case of Pickin. The court further held that the matter was raised as a question of law and it was not possible for the matter to be reviewed by parliament, therefore, making it necessary for the courts to resolve the issue and ensure that they did not breach any constitutional propriety. Lord Hope and Nichollis distinguished the Pickin Case from the Jackson because the Jackson case examined the precise interpretation of the 1911 Act, which was an elevation for the law lords rather than parliament. Lord Carswell also agreed that the court had control to determine the case because it fell on the subject of law, which was the scope of the courts and not parliament. However, the way the attorney general failed to question the status or justiciability in the case created much of loopholes in the law because it meant that people acting in their individual capacity could challenge the validity of legislation. The malfunction of the attorney general to act made the barriers of litigation inferior. This is because the Jackson case created a precedent that could be used as reference to other cases that had the same preliminary issue and it could not be questioned as the standing, and justiciability were not questioned in the Jackson case. Parliamentary supremacy was considered in a long way in the case of Jackson in that each judge had an opinion on the case. For example, Lord Bingham acknowledged that there were many limitations that were imposed on the act, however, he was impartial on the issue of parliamentary supremacy stating that the courts were meant to remove the ambiguity that was created by the 1911 Act which was necessary. In the case of Peper V Hart8 the purpose of the court is to interpret the acts of parliament into the meaning that it is intended to mean by parliament; hence, removing obscurity or ambiguity. In another case of Pickstone V. Freemans PLC (1988), it was held that parliamentary debates could be used in court to interpret a delegated legislation. This is because the UK legislation should be interpreted in accordance with the European Commission law because there is a presumption, that parliament could not pass legislation that was in conflict with the United Kingdom international obligation. Lord Steyn, on the other hand, stated that Dicey’s definition of parliamentary supremacy was outdated in the modern United Kingdom. However, he agreed that parliamentary supremacy was part of the constitution. He further stated that if that were not the case the British constitution would have been thrown into disrepute. Lord Hope, on the other hand, agreed with Lord Steyn stating that the parliament sovereignty was no longer in existence considering the limitation placed on the legislation, making the statement made by Lord Hope is correct. The European Communities Act 1972, section 2 (1) and 2 (4) forced parliament to ensure that all the laws enacted coincided with the said sections. Therefore, according to the European Communities Act the parliamentary supremacy was long gone and far from what Dicey thought while he thought about the parliamentary supremacy model. Lord Hope identified another limitation that was placed in parliament, which was based on the Judicial review. In that the lordships had agreed to hear and determine the Jackson case meaning that they reviewed the Parliament acts that had been created by parliament on Hunting. This meant that they were limited in their actions because, in the instance, the Hunting Act was found not to be constitutional then it could have been done away with or the parliament asked to amend on sections that infringed the rights of people. Judicial review was meant to establish that the parliament’s true intentions are known9. Therefore, subjecting the legislation to review. According to Lord Hope, by allowing the courts to review the parliamentary enactments they were limiting their sovereignty. Baroness Hale shared the same opinion as Lord Steyn and Hope in the sense that the court is held as the mediator between the people and the parliament. The reason is because the courts have been obligated by the constitution to ensure that the rights of people are safeguarded under the constitution. Therefore, no person or body had authority to infringe on the constitutional rights of citizens. This provision did not exempt the parliament as they are the lawmakers and they ought to understand that the courts had undertaken the role of being mediators10. Therefore, the courts would not hold that parliament had interfered with the fundamental rights of individuals unless they have made it clear that they intended to infringe on fundamental rights. Hale’s did not agree with the limitations imposed by the European Communities Act stating that they were self inflicted and were political and diplomatically unconstitutional. For that reason, parliament had limited their own sovereignty for their own interest and not that of the public. According to Christopher Forsyth, parliamentary supremacy was a concept that was questionable and not easily understandable. For that reason, the supremacy of parliament had been questioned because others had taken it to mean that parliament was supreme and had the final word in the event of legal crisis. Other scholars stated that parliament sovereignty was a discrete area of law making that had much power because parliament enjoyed sovereign authority in one area although they have been limited to others. Other underlying issues that were established in the Jackson case were that the Parliaments Acts had a huge effect on reducing the power that was given to the House of Lords. In that, the 1911 Act abolished the Lords right to reject money bills where it imposed a one month time limit11. During this period the Lords were allowed to discuss the Bills and come up with various amendments. This meant that if the Bill were not approved without any amendment, then it would proceed to being signed or to receive Royal Assent without the approval given by the Lords. Additionally, the rights that were given to the Lords to veto legislation were repealed and replaced by a power that would delay non-money Bills for a period of two years that would be spread over three parliamentary sessions. The Parliament Act of 1949 reduced the powers of the lords further from two years to one year over two parliamentary sessions. This change helped promote the Lord Hailshams idea of elective dictatorship since the House of Commons could override the House of Lords to ensure that the legislation they made passed. The two Acts established that parliament could use them to force a bill to go through even though the House of Lords was against the idea of the law coming into force. This is because the 1949 Act was used to force the Hunting Act into law. Therefore, looking at the instances and the arguments that were presented in the Jackson Case, it is true to say that there was effectiveness of checks and balances in the United Kingdom Constitution. Because the Judiciary ensured that the legislature did not act in a way that was not provided by the constitution. This is because checks and balances were meant to act as restraints to the government to ensure that there was no tyranny of the majority. According to Ronald Dworkins, the law comprised of principles that were required to rationalize and not solely duties and rights. Therefore, in society, there should be values of fairness and justice according to the theory of law12. On the other hand, HLA Hart argued on legal positivism where he argued that there should be legal positivism in that the law should inform people on what is valid. Therefore, parliament powers are derived from the rule that is there before the powers are imposed on them. Parliament acting as the government should act under the law and ensure that whatever it does is in the provisions of its powers and that of the rule of law. Therefore, the government and especially parliament should act in the scope that had been provided by the law and in accordance with the legal principle that have been outlined13. However, according to Dworkin’s theory, judicial statements of what the law should be is similar to the existing laws, as well as, history of the United Kingdom or any other community. For that reason, to justify that the courts have the right to review legislation under the rule of law was perverse because it was deemed as the interpretation of important legislative and political history. The idea was supported by Lord Bingham and Lord Carswell, who observed the doctrine of sovereignty in orthodox terms and according to their opinions it was clear that they viewed parliamentary sovereignty as having misgivings about the opposite of the orthodox position. Therefore, the impact that the Jackson case left in relation to the United Kingdom constitution was the extent the courts could go in terms of clarifying the Acts of Parliament and in this case the Parliament Acts14. The case further established that the courts have more jurisdiction than that established in the constitution because they were able to review the act of parliament. Therefore, there was an expansion of the court’s jurisdiction into a political arena that eventually confirmed the idea of a constitutional court. The case also established that the rule of law was a substantive constraint on parliamentary supremacy. The case further opposed the Dicey idea on parliament supremacy because as established there are limitations that have been imposed on the supremacy of the parliament where some were imposed on the parliament through acts they had enacted. Therefore, meaning that there was a limitation to the supremacy of parliament as disagreeing with what Dicey thought when he created the doctrine of parliamentary supremacy15. The Jackson case showed that there are limitations to the powers that are given to the courts in deciding on issues that deal with the supremacy of the constitution; auguring on proceeding of the court. Reference list 1. Top of Form (n.d.). Hcp 633-ii eu bill. [S.l.], Stationery Office Ltd. Amar, V., & Tushnet, M. V. (2009). Global perspectives on constitutional law. New York, Oxford University Press. Brandhof, H. V. D., Kortmann, C. A. J. M., & Prakke, L. (2004). Constitutional law of 15 EU member states. Deventer, Kluwer. Connors, R., & Law, J. M. (2005). Forging Albertas constitutional framework. Edmonton, Univ. of Alberta Press. Elliott, M. (2001). The constitutional foundations of judicial review. Oxford [u.a.], Hart. Foley, M. (1999). The politics of the British constitution. Manchester, Manchester University Press. Gillespie, A. (2013). The English legal system. Lautenbach, G. (2013). The concept of the rule of law and the European Court of Human Rights. LE Sueur, A. 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