1. The Rule of Law principle means that citizens, the government and Istitutions are subject to the law, and the law should be applied equally’ Based on the statement above, discuss the functioning process of the rule of law principle among the three arms of government.
2. The rule of law principle remains a tool used by the courts to protect fundamental freedoms and civil liberties in the UK’. Using relevant examples, discuss the extent to which you agree with this statement.
3. Parliamentary sovereignty has been challenged by other arms of government, thereby raising questions about the sanctity of this principle. Using relevant examples, discuss the extend to which you agree with this statement.
4. Analyse the case of Costa v Enel 1964 ecr 585, and discuss its impacts on parliamentary sovereignty and supremacy of Eu Law.
The maximul word count for all answers is 3000 words. You have the discretion to divide the maximum word count amoung your four questions. Your critical analysis must be evidence based and supported with the law and other relevant supporting authorities. You have to include references at the final: bibliography, case laws et
ANSWER
1. The Functioning Process of the Rule of Law Principle Among the Three Arms of Government
The Rule of Law is a foundational principle in democratic societies, ensuring that all entities, including citizens, the government, and institutions, are subject to the law. This principle operates through the interplay of the three arms of government: the legislature, the executive, and the judiciary.
Legislature
The legislature enacts laws that reflect societal values and ensure justice, equality, and accountability. The Rule of Law requires that these laws be clear, accessible, and applied uniformly. For example, the UK Parliament passes legislation that must comply with constitutional principles, such as the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into domestic law. This ensures that laws respect fundamental rights and freedoms.
Executive
The executive implements and enforces laws. The Rule of Law demands that the executive act within its legal authority and not arbitrarily. For instance, in Entick v Carrington (1765) 19 St Tr 1029, the court held that the executive could not infringe on individual rights without legal authority. This case underscores the principle that even the government is bound by the law.
Judiciary
The judiciary interprets and applies the law, ensuring that both the legislature and executive adhere to the Rule of Law. Judicial independence is crucial here. In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the UK Supreme Court ruled that the government could not trigger Article 50 without parliamentary approval, reinforcing the principle that the executive is subject to legal constraints.
Interplay Among the Three Arms
The separation of powers ensures that no single arm of government becomes too powerful. For example, the judiciary can review executive actions (judicial review) and interpret legislation to ensure compliance with the Rule of Law. Similarly, the legislature can hold the executive accountable through mechanisms like parliamentary questions and select committees.
In conclusion, the Rule of Law functions through a system of checks and balances among the three arms of government, ensuring that power is exercised lawfully and accountably.
2. The Rule of Law as a Tool to Protect Fundamental Freedoms and Civil Liberties in the UK
The Rule of Law is indeed a critical tool used by courts in the UK to safeguard fundamental freedoms and civil liberties. This is evident in several landmark cases and legal principles.
Judicial Protection of Rights
The courts have consistently used the Rule of Law to protect individual rights. For example, in R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court held that employment tribunal fees were unlawful because they impeded access to justice, a core component of the Rule of Law. This case demonstrates how the judiciary upholds the Rule of Law to ensure fairness and equality.
Human Rights Act 1998
The Human Rights Act 1998 has been instrumental in protecting civil liberties. Section 3 requires courts to interpret legislation compatibly with ECHR rights, while Section 4 allows courts to issue declarations of incompatibility. In A v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords held that indefinite detention of foreign nationals without trial was incompatible with the right to liberty under Article 5 ECHR. This case highlights the judiciary’s role in enforcing the Rule of Law to protect fundamental freedoms.
Limitations
However, the Rule of Law is not absolute. In R (Jackson) v Attorney General [2005] UKHL 56, the House of Lords acknowledged that parliamentary sovereignty could limit judicial intervention. Additionally, political pressures and resource constraints can sometimes hinder the effective enforcement of the Rule of Law.
Conclusion
While the Rule of Law is a powerful tool for protecting rights, its effectiveness depends on the judiciary’s independence and the willingness of other arms of government to respect its principles. Overall, the UK courts have played a significant role in upholding civil liberties through the Rule of Law.
3. Challenges to Parliamentary Sovereignty by Other Arms of Government
Parliamentary sovereignty, a cornerstone of the UK constitution, has faced significant challenges from the judiciary and the executive, raising questions about its sanctity.
Judicial Challenges
The judiciary has increasingly asserted its role in interpreting and limiting parliamentary authority. In R (Miller) v Prime Minister [2019] UKSC 41, the Supreme Court ruled that the prorogation of Parliament was unlawful because it undermined parliamentary accountability. This case illustrates how the judiciary can curtail executive actions that threaten parliamentary sovereignty.
European Union Law
The supremacy of EU law, as established in Costa v ENEL (1964) ECR 585, posed a significant challenge to parliamentary sovereignty. EU law took precedence over domestic legislation, limiting Parliament’s ability to enact conflicting laws. However, the UK’s withdrawal from the EU has restored some degree of parliamentary sovereignty.
Devolution
Devolution has also challenged parliamentary sovereignty. The Scottish Parliament and Welsh Senedd have legislative powers that, while delegated, have created a quasi-federal structure. For example, the UK Supreme Court’s ruling in UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill [2018] UKSC 64 highlighted tensions between devolved and central authority.
Conclusion
While parliamentary sovereignty remains a fundamental principle, it is no longer absolute. The judiciary, EU law, and devolution have all posed challenges, reflecting the evolving nature of the UK constitution.
4. Analysis of Costa v ENEL (1964) and Its Impact on Parliamentary Sovereignty and EU Law Supremacy
The case of Costa v ENEL (1964) ECR 585 is a landmark decision that established the supremacy of EU law over national laws, significantly impacting parliamentary sovereignty.
Facts of the Case
Mr. Costa, an Italian citizen, refused to pay an electricity bill, arguing that the nationalization of the electricity industry violated EU competition rules. The Italian government contended that its national law took precedence over EU law.
Judgment
The European Court of Justice (ECJ) ruled that EU law is supreme and must take precedence over conflicting national laws. The ECJ emphasized that EU member states had voluntarily limited their sovereign rights by joining the EU, creating a new legal order.
Impact on Parliamentary Sovereignty
- Limitation of Sovereignty: The case established that EU law prevails over domestic legislation, including acts of Parliament. This directly challenged the traditional notion of parliamentary sovereignty in the UK.
- Doctrine of Direct Effect: The case reinforced the principle that EU law creates rights and obligations for individuals that national courts must enforce, further limiting parliamentary authority.
UK Context
In the UK, the European Communities Act 1972 incorporated EU law into domestic law, giving it precedence. However, this created tension with the principle of parliamentary sovereignty. The Factortame litigation (R v Secretary of State for Transport, ex parte Factortame [1990] 2 AC 85) exemplified this conflict, where the House of Lords suspended an Act of Parliament to give effect to EU law.
Post-Brexit Implications
The UK’s withdrawal from the EU has restored parliamentary sovereignty to some extent. The European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972, ending the supremacy of EU law in the UK. However, the legacy of Costa v ENEL remains significant in understanding the relationship between national and supranational legal systems.
Conclusion
Costa v ENEL fundamentally altered the concept of parliamentary sovereignty by establishing the supremacy of EU law. While Brexit has reversed this in the UK, the case remains a cornerstone of EU legal doctrine.
References
Case Law
- Entick v Carrington (1765) 19 St Tr 1029.
- R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
- R (UNISON) v Lord Chancellor [2017] UKSC 51.
- A v Secretary of State for the Home Department [2004] UKHL 56.
- R (Jackson) v Attorney General [2005] UKHL 56.
- R (Miller) v Prime Minister [2019] UKSC 41.
- UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill [2018] UKSC 64.
- Costa v ENEL (1964) ECR 585.
- R v Secretary of State for Transport, ex parte Factortame [1990] 2 AC 85.
Legislation
- Human Rights Act 1998.
- European Communities Act 1972.
- European Union (Withdrawal) Act 2018.
Secondary Sources
- Dicey, A.V., Introduction to the Study of the Law of the Constitution (1885).
- Craig, P., The Rule of Law and the UK’s Changing Constitution (2011).
- Barnett, H., Constitutional and Administrative Law (2021).
This response provides a comprehensive analysis of the questions, supported by legal authorities and critical reasoning. Let me know if you need further clarification or additional details!
