MOD00010 Assignment Solutions on Constitutional and Administrative Law

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Task 1

The term ‘critical discussion’ is used in the field of law to refer to subjective writing in which the researcher writer has to evaluate a given situation, analyse it and then demonstrate what has been understood by way of a paragraph or write-up along with evidence and arguments, which is for or against the given assertion or statement. This task holds utmost importance in legal education as it tests the argument presentation skills and the research skills of a law student. The assertion given may or may not be believed by the student but they still have to present argument for or against the given statement along with evidence. This enhances the two aids of utmost importance in the profession.

UK is known to have an ‘unwritten’ Constitution. However, UK does have written laws which combine the provisions that should be included in a written constitution. The correct words that should be used are- ‘UK has an uncodified Constitution’. The basis on which the Constitution of UK stand is the Magna Carta that first was issued by King John of England in the 1215. The very basic principle embodied in the Magna Carta was that- all individuals will be subject to the law, including the king. This act was done to prevent and discourage oppressive acts by the king. UK follows the principle of Parliamentary Sovereignty, which makes the Parliament in UK the Supreme authority in legal matters in the country. Thus, on one hand the Parliament has supreme authority to make laws, but the principle of Manga Carta provides with the Rule of Law. There is a logger-head between the two and this issue is the topic of analysis.

The Parliament can create and nullify any law in place and the Courts have not been given the power to over-rule the parliamentary statutes or declare them void. The Parliament has been given Supreme legal authority in UK according to the provisions of the Constitution of UK, and was reiterated by the case of R (Jackson) v Attorney General.[1] But the contradiction appears as the rule of Magna Carta is still followed in the UK which provides for the application of Rule of Law. The basic issue that the question presents is that which power shall be deemed to be greater among the two?

Although the Parliamentary form of Government followed by UK grants legal superiority to the Parliament, the Rule of Law is a basic principle that is followed by all the countries over the world. This principle keeps the powers of the supreme authority in check by making all individuals equal in the eyes of the law and to prevent the supreme authority from exploiting any powers. The principle of Magna Carta is one of the written and codified parts of the UK constitution. The different definitions of Rule of Law shall be studied to reach a conclusion if the act of the Parliament would be valid or not. For example, according to the definition of rule of law given by Dicey, a conflict between the parliament sovereignty and the rule of law cannot exist.

Task 2

The definition provided by Dicey with regard to the concept of Parliamentary Sovereignty in his work titled ‘The Law of the Constitution’ in the year 1885, states that the Principle is recognised by the English and the UK constitution and holds that the Parliament has complete authority to make or remove any law applicable on the country and no other body of the Government has been bestowed with the power to change or question the acts of the Parliament with regard to the power in question.[2] The definition provided by Dicey gives an impression that the Doctrine of Parliamentary Sovereignty is the central pillar on which the all the other laws may depend.[3] In the same book, Dicey has provided us with the definition of ‘Rule of Law’ as well, which states that no individual can be punished or made to suffer if it is not provided by the law of the state.

Three major principles were put forward by Dicey as a part of the definition of Rule of Law:

Supremacy of Law: The Law is the supreme power and no person can be punished unless his acts are specified as a breach or violation by the law itself. This principle curbed the power of the ruling authority to be biased and arbitrary in nature while punishing the offenders.

Equality before the Law: The power of the law is supreme and no individual or government shall be considered to hold a position above the law. The law treats all individuals equally and shall be applied on everybody in the exact same manner.

Predominance of the legal spirit: This means that the Constitution is not the source of the rights of the citizens, but is just a codified form of the inherent rights of humans. The judicial decisions are the actual source of rights and duties of each individual.

According to the definitions provided by Dicey, if studied in detail, there is no contradiction between the two major principles as the Supremacy of Law is being maintained by both, considering that the laws made by the Parliament are supreme and cannot be challenged. Additional support is provided by the judiciary through its power of interpretation. While interpreting any law made by the Parliament, the judiciary presumes that the intention of the law is not to make any changes to the existing rights of individuals, as held in Potter vs Minhan[4]. Also, the statutes drafted by the Parliament do not use strict words and usually leave room for interpretation by the judiciary in such a way that the provisions of the legislation are interpreted well within the boundaries of Rule of Law, as held in Re Bolton; Ex parte Beane[5], where it was specifically stated that unless and until the Parliament makes the use of words which make its intention to remove a right or freedom clear, the courts shall always interpret laws in a manner otherwise. All these principles were reiterated in Coco vs The Queen[6].

These decisions and judgements gave rise to the principle of legality as discussed in the case of R vs Home Secretary; Ex parte Pierson[7] which states that unless specified, the judiciary shall presume that the Parliament did not intend to meddle with basic fundamental common-law and human rights that are enjoyed by its citizens.

Keeping the given situation in mind, it is highly unusual that the Parliament would introduce a bill which contradicts the principle of Rule of Law, but if a majority of the House of Commons supports the law, the law may be passed after disabling the opposition made by the House of Lords using the provisions provided in the Parliament Acts 1911 and 1949. Subsequent to this, the law proceeds to be interpreted by the Courts and although the principle of Parliamentary Sovereignty means that the courts shall have to apply the laws made by the Parliament without questioning the provisions of the same, there are precedents which state that the power of the Parliament is not absolute and is subjected to a few restrictions. The decision of R (Jackson) vs Attorney General[8], holds that if the Parliament attempts to destroy basic principles and such an act is likely to trigger controversy, then the legislation passed by the Parliament shall be subjected to Judicial Review. The Parliament cannot propose to abolish Judicial Review to get rid of any hinderance.

In comparison to the US legal provisions, the judges possess the power to declare a law invalid in case of any contradiction with the basic principles. This power was not given to the judges by any legal statute or provision, they gave the power to themselves by way of a case- Marbury vs Madison[9]. If a decision similar to that of Marbury vs Madision[10] is given by the Supreme Court of UK, then that shall set the ground for future instances when the Parliament passes any law which is in contradiction to the basic principles followed by the Constitution. It has to be understood that if the Parliament and the government took it as a duty upon themselves, not to pass any law which may contradict he provisions of the basic principles, then the judiciary will not have to test the laws. There are precedents in which the power of the court was specifically barred by the Parliament and yet, the statutes were struck down by the Court citing the reason of unlawfulness of the provisions of the legislation. In the case of Anisminic Ltd vs Foreign Compensation Commission[11], a clause of statutory exclusion of the jurisdiction of the court did not stop the judiciary from reviewing the law and declaring it void. Thus, based on the cases cited above, it may be said that in the given situation, the law which is in contradiction with the basic principle of Rule of Law may be passed by the Parliament of UK as it hold the Supreme legal authority, but if needed, the Court shall review the law and declare it void citing its contradictions.

Task 3

UK was originally a part of EU, however after separation the EU-UK Withdrawal Agreement was entered into by both parties. The idea behind the agreement was to give breathing space to both the parties till future trade and security relations could be negotiated. During this transition period, both parties agreed to keep their borders open for free trade exchanges and UK continued to follow the Trade Rules of EU.[12] On the 9th of September, 2020 the UK Government came up with a Bill, called the UK Internal Market Bill. This Bill deals with a specific part of the EU and UK withdrawal agreement also known as the Brexit Deal. The proposed UK Internal Market Bill attempts to change the provisions incorporated in the Northern Ireland Protocol, which is one of the complex issues that was dealt with in the first round of negotiations while the Brexit Deal was being entered into. The Good Friday Agreement entered into in 1998 provided that the border of Northern Ireland- which is a part of UK and shares common border with Ireland- which is a part of EU should keep the borders open to enable free flow of goods irrespective of what happens with the trade with the relations between EU and UK.

Negotiations to reach a final agreement has been stalled by both the parties for a very long time and the initiative was taken by UK to propose a union unilateral change in the Protocol on Northern Island. The Brexit Treaty is an international deal and if the UK Government chooses to pass the UK Internal Market Bill, then it would violate the provisions of International Law and showcase that UK is not serious about international commitments. Soon after the proposal of the bill was made public, the Government of EU strongly reacted to it and said that the bill needed to be withdrawn as none of the parties could unilaterally make changes to the agreement. UK being a nation that follows parliamentary sovereignty can enact such a domestic law and pass the legislation which is in breach of UK international obligations without it being unlawful in the domestic arena.

In a statement made by the authorities of Germany, they stated that it was expected that UK would not breach international commitments and would back down and recall the passing of the UK Internal Markets Bill. Mapping the progress made by the UK Internal Market Bill, it has been passed in the House of Commons and is now being considered by the House of Lords. Thus, the law of UK Internal Markets Bill may be passed by the Parliament as it is in accordance with the Parliament Sovereignty followed by UK and even a test of Judicial Review would not nullify the law as it does not contradict any basic principles followed by UK. However, international obligations will be breached and UK may have to face consequences in the future if the bill is passed by the House of Lords and converted into a law.

Bibliography for Parliamentary Sovereignty

Articles

Greene A, ‘Parliamentary Sovereignty and The Locus of Constituent Power In The United Kingdom’ [2018] SSRN Electronic Journal

Elliott M, ‘United Kingdom: Parliamentary Sovereignty Under Pressure’ (2004) 2 International Journal of Constitutional Law

Hix S, ‘Brexit: Where Is The EU-UK Relationship Heading?’ (2018) 56 JCMS: Journal of Common Market Studies

Cases

R (Jackson) v Attorney General [2005] UKHL 56

Potter vs Minhan [1908] 7 CLR 277

Re Bolton; Ex parte Beane [1987] 162 CLR 514, 523

Coco vs The Queen [1994] 179 CLR 427

R v Home Secretary; Ex parte Pierson [1998] AC 539

R (Jackson) vs Attorney General [2006] 1 AC 262

Marbury vs Madison, 5 U.S. 1 Cranch 137, 1803.

Anisminic Ltd vs Foreign Compensation Commission [1969] 2 AC 147