Exec Constitutionalism as We Will Essay
- Length: 4 pages
- Sources: 10
- Subject: Government
- Type: Essay
- Paper: #86519422
Excerpt from Essay :
Views on devolution and who may decide the issue are changing. In the Constitutional Reform Act 2005, the idea was advanced that the independent supreme court and decide about devolution cases, constituting an internal limit (Bradley and Ewing 2007 pp.384-385) .
The concept of original principle is being increasingly affected by internal and external limits. The UK is very sensitive in particular upon external limits. Probably nowhere is this represented more than in issues that face the UK's burgeoning relations with the EU. Britain sees the courts upholding Parliamentary power and interpreting it only in the implementation and not with regard to whether or not power was wielded rightly or wrongly. This flies in the face of the European concept of the primacy of laws coming from Brussels (Allan 2011, p. 159). One very big issue currently is with regard to European business mergers. This has particularly been an issue with regard to Germany with regard to British jurisprudence on this subject Harker, Peyer and Wright 2011, p. 152)..
The above legal confusion for the integration of EU and British law is seen in differences on the implementation of such basic bodies of laws as the European Convention on Human Rights. Under the convention, any person who feels their rights have been violated under the Convention by a state can take the case to court. The judgments that find violations are binding on all the States concerned. Then they are obliged to execute them.(Walker 2009, p. 387).
A central question concerning almost all of the British public is who controls the interpretation of basic human rights (in the Human Rights Act of 1998), namely, whether these rights are based in British or EU law and whether they are decided in London or in Brussels. While the European convention of human rights is incorporated by Human Rights Act, there are some limits to this cooperation and the British Act is not in full conformity with the European Communities Act of 1972 because the Human Rights Act covers all public bodies in the U.K. except the Parliament ( 436).
As we noted, the present constitutional regime is much more complicated than it was before. The external limits that exist between the UK and the continent are many and consist of basic differences between London and Brussels. As a process of the integration of the two systems, the old system of checks and balances in the old British system are being changed by the continental system. The external limits also affect internal limits. As noted above, the British courts do not overturn laws of Parliament by their rulings. On the continent in EU law, courts can and do overturn state laws. Those rulings are binding upon all of the EU states. Even the Human Rights Act of 1998 which is supposed to uphold the European Convention on Human Rights does not challenge the power of Parliament. As we saw above, this is not just an issue in the arena of human rights, but also in matters as mundane as transactions in business. Herein lies a major element of contention and integration of the continental and UK legal systems and in no doubt will need major adjustment if this integration is to be successfully completed.
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