In accordance with the Convention on Human Rights The European Court of Human Rights establishes a system of rules for the protection of human rights. The Convention impacts UK law in such a way that in order to give effect to a judgement of the European Court of Human Rights as required by Article 46 of the Convention, a state party may be obliged to make changes in its domestic law. A number of changes in the law of the United Kingdom have been made in consequence (or in anticipation) of findings that the United Kingdom was in breach of the Convention. For example, the judgement of the European Court of Human rights in the Thalidomide case resulted in a corrective provision in the Contempt of Court Act 1981. The UK wants to restrict Community legislation as it considers it as being interfering with national legislation.
The judges are given considerable guidance by the European Communities Act 1972 in their approach towards conflicts between European Community law and Parliamentary legislation. Section 2(4) of the Act indicates that any legislation ‘passed or to be passed … shall be construed and take effect subject to’ the preceding terms of the section, one of which provides for the enforcement in the United Kingdom of directly effective rules of Community law. This opaque provision suggests that the courts should give such rules priority over inconsistent United Kingdom legislation, even when it is enacted after the European Communities Act 1972. It is only necessary to refer to one leading decision of the House of Lords. The Factortame case raised the question whether the English courts should suspend the enforcement of the Merchant Shipping Act 1988 until it was conclusively determined whether it violated the Treaty of Rome. The European Court of Justice ruled that courts in Member States must set aside national legislation which inhibited, even temporarily, the rights conferred by Community law. It is clear, therefore, that in relation to directly effective Community law, Parliament no longer enjoys legislative supremacy. The courts have decided not to apply statutes which conflict with directly effective provisions of Community law. Lord Bridge emphasized in Factortame that Parliament had voluntarily accepted a limit on is legislative powers through a passage of the European Communities Act 1972. The European Communities Act 1972, like the Parliament Acts 1911-49, should be treated as amending the flexible constitution of the United Kingdom.
A state with a unitary constitution may decide for a number of reasons to devolve powers to regional assemblies. One common motive is the desire to decentralize political authority so that it is more responsive to the needs of local communities. Alternatively, devolution may primarily be a response to political pressure from nationalist groups and parties. There has been great pressure in the past on the central government for devolution and since 1997 the labour government has taken many steps towards devolution. A little insight should be put into the devolution process that each part of the country has gone through.
Scotland united with England voluntarily some 400 years ago under a single monarch, James the First. Whilst government was centralised in London, the Scottish judicial and educational systems remained distinct from those operated in the rest of the union. A substantial majority, in a referendum held in 1997, approved proposals for a Scottish parliament and government. Considerable powers had been devolved and the parliament can now legislate extensively. Powers reserved to the UK government include constitutional changes, foreign policy, defence and security, immigration and nationality, macro-economic policies and social security. Furthermore, Scotland's tax raising powers are limited to a small variation in the level of income tax.
Wales was conquered by the English and incorporated into the Union in the middle ages. They had no history as a separate integrated political unit and, therefore, demand for devolution has been much weaker than in Scotland. Indeed proposals for a Welsh assembly were defeated in a referendum in 1979 by a 4 to 1 majority The referendum held in 1997 approved the proposed devolution by the slimmest majority of 50.6% on a turnout of just over half of the electorate. The Government of Wales Act of 1998 created a national assembly with 40 constituency members elected by 'first past the post and 20 additional members by proportional representation. It has limited executive powers confined to secondary legislation, with powers to enact primary legislation remaining with the UK government and parliament.
The turbulent Irish history has had quite distinct motivations for the devolution of power in that part of the UK. The 19th century was dominated by parliamentary debates on devolution of power under a system of home rule for Ireland. The failure of the British to grant it led to a nationalist struggle for complete separation. Independence was finally granted in 1922 but this excluded six northern counties with protestant majorities who threatened civil war if they were separated from the UK. Thus Northern Ireland emerged with its own government and assembly in whom the protestants enjoyed permanent dominance over a catholic minority whose rights were unprotected and who were severely discriminated against and disadvantaged. Frequent violent conflicts exploded leading to suspensions of the devolved institutions and their powers. The last suspension occurred nearly 30 years ago. It ended with the power-sharing British-Irish "Good Friday" agreement in 1998.
The lack of uniformity in the reforms for devolution is due to historical differences. The system that is emerging is a quasi-federalist one, within which powers of the devolved levels of government are likely to increase over time. The newly empowered parts of the UK will surely call for greater autonomy and increased powers, once conflicts develop between central government and the devolved authorities. Demand for regional government in England is also likely to grow as their citizens look enviously at the growing autonomy and self-government in Scotland, Wales and London. The process of reform will, however, take many years, as it has in France and Spain, but its movement towards a more federal system of government is unlikely to be reversed. In light of these recent developments the UK can no longer be called a unitary state. UK’s membership in the EU has made it lose its traditional parliamentary supremacy in the face of European community law. Even though the parliament still performs many other functions that are exclusively its own, it must bow down to decisions made by European Court of Justice. The constitution of UK in its essence is still a unitary one, but it can be seen that steps have been taken in a direction that will only lead to a federal state. At the moment it will only be fair to call it a quasi-federal state.
Bibliography
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British Governments and the Constitution; Text, Cases and Materials, Colin Turpin (Butterworths, 5th edition)
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An Introduction to Constitutional Law, Eric Barendt (Oxford; 1998)
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Constitutional and Administrative Law, A.W.Bradley and K.D.Ewing (Longman, 11th edition)
- Online source: www.federalunion.org.uk
Ibaad Ahmed Shahid Hakim
Public Law Group 03
Costa v ente Nazionale Per L’Energia Elettrica (Enel)
Sunday Times v United Kingdom (1979) 2 EHRR 245