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Different contexts of the act
The aim of the report is to address different contexts of the Act, using traditional doctrines and illustration.
The first of the doctrines is the doctrine of “the legislative supremacy of Parliament “, it means that under constitutional arrangements Parliament is legislatively supreme.
The great example of the doctrine used by courts is the judgment in the case of Cheney v Conn, where a taxpayer challenged an assessment of income tax made under the Finance Act 1964 on the ground that part of the money raised would be used for the manufacture of nuclear weapons contrary to a treaty, the Geneva Convention, to which the United Kingdom was party. Ungoed-Thomas J stated:
‘When the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal.'
However, since the United Kingdom is a part of the European Union, section 19 of the Human Rights Act 1998 provides that the Minister in charge of each new Bill in either House of Parliament must, before the second Reading of the Bill, either:
Make a statement of compatibility-that is, state that the provisions of the Bill are compatible with the European Convention of Human Rights; or
Make a statement acknowledging that it is not possible to make a statement of compatibility, but, despite this, the Government still wishes the House to proceed with the Bill.
The doctrine of the Parliamentary sovereignty was discussed recently by the C.J.S. Knight in his journal article, this short abstract from it greatly explain the main issues whether the doctrine is still relevant:
‘Whether or not the courts are, in reality, moving towards recognizing their power is open to greater doubt. It might be accurate to adopt the statement of Laws L.J. in International Transport Roth that “the British system may be said to stand at an intermediate stage between parliamentary supremacy and constitutional supremacy”. It is certainly true that, as Mark Elliott has noted, that “the doctrine of parliamentary sovereignty, in its traditional form, is increasingly under pressure”. Europe, devolution, the Human Rights Act 1998 and the judiciary have all played their part in applying the squeeze. The gradual gathering of constitutional pressure is part of the pragmatism of the English constitution. All of the areas which challenge the classic understanding of Parliamentary sovereignty are problems which stem from the rigidity of Parliamentary sovereignty.'
How To Interpret The Acts Of Parliament?
When it comes to the interpretation of the Act a different approaches might be used:
There are two aids to interpretation:
An intrinsic aids to interpretation - are found within the statute itself.
The areas of the statute which could be potentially used as an intrinsic aid are:
Short title, long title, preamble, marginal notes, punctuation, schedules.
An extrinsic aids to interpretation - are found outside the statute
They can be used where the legislation is ambiguous, or its literal meaning leads to absurdity.
There are also three rules which are often used by the courts:
Mischief rule - involves an examination of the former law in an attempt to deduce Parliament's intention ;
Golden rule - words must be given their plain, ordinary and literal meaning as far as possible but only to the extent that they do not produce absurdity ;
Literal rule - words must be given their plain, ordinary, and literal meaning ;
Going back to the Northern Ireland Act as an example it is very important to know the anatomy of the Act, without it, it is impossible to understand the Act and interpret it.
Anatomy Of The Northern Ireland Act 2009
The title of the Act is The Northern Ireland Act 2009.
The Act was third statue passed in 2009.
The purpose of the Act is to make provision in relation to policing and justice
in Northern Ireland, make Judicial appointments and removals for sections 12 and
12B of the Judicature (Northern Ireland) Act 1978 (c.23) substitute the sections 12
To 12C and to amend section 86 of the Northern Ireland Act 1998.
The Act received Royal Assent on 12th march 2009.
Different Contexts Of The Act
Political And Social Context
Although the Union of the England and Ireland which was signed in 1800 was a theoretical basis of equal independence, the relationship between the citizens was never as good as the” intentions” of the Governments.
The social context of the Act is that the Northern Ireland was striving for independence for a long time. Now when the Devolution of Power is completed it has a big impact on the administrative law, policing and justice functions like judicial appointments and removals.
Political context it is a history of the Northern Ireland itself as well as the complete the Devolution of Powers to the Northern Ireland.
The legal context may appear if the Court will use the Doctrine of Judicial Precedent, or in other words ‘Stare decisis‘- a Latin phrase which means ‘let the decision stand'.
The essence of this doctrine is basically that once the decision has been made in a case, it stands as a good law and should be relied upon in other cases. Important thing is to establish the hierarchy of the courts. The Supreme Court is the highest court in the English Legal System its decisions bind all the courts below it that are:
The Court of Appeal ( Civil Division and Criminal Division)
The High Court ( Family Division, Queen's Bench Division, Administrative Court, Chancery Division, Divisional Court)
Crown Court and then Magistrate's Court in criminal cases
County Court in a civil cases
Until 1966 The House of Lords (now the Supreme Court) was bound by its own previous decisions however a practice statement stated that HofL no longer had to follow its own previous decisions. Before judgments were given in the House of Lords Lord Gardiner L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:
‘LORD GARDINER L.C.: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House.'
There are three presumptions as the doctrine of precedent is concerned with the way that decisions in earlier cases are applied. Those presumptions are:
Cases with the same or similar material facts which are legally relevant should be decided in the same way
Decisions made in the higher level courts are more important that hose in lower, thus the court is bound by courts which are higher or equal to them
Judgments often contain a legal discussion that is not directly relevant to facts of the case so a distinction should be made between the importance of the reasons for the decision known as ‘ratio decidendi ' and those outside to the outcome of the case known as ‘obiter dicta'
The obiter dicta if often use by the Judges who are refer to the case of Donoghue v Stevenson, in which Lord Atkin developed the law of negligence by stated the ‘Neighbour test'.
The Northern Ireland Act was no more than an example to highlight and illustrate the doctrines and rules which were and still are used in the English Legal system and to support my theory that together with times changing, the law must change as well. The contexts of the Northern Ireland Act 2009 confirms my theory.
Hilaire Barnett Constitutional & Administrative Law (6th edition 2006)
Michael Allen & Brian Thompson Cases & Materials on Constitutional and Administrative Law (9th edition 2008) 41 - 57
The Northern Ireland Act 1978
The Northern Ireland Act 2009
Practice Statement  1 WLR 1234
Donoghue v Stevenson  AC 562
Cheney v Conn  1 AII ER 779
C.J.S. Knight, ‘Bi-Polar sovereignty restates' 2009 Cambridge Law Journal 68(2), 361-387
<http://www.nio.gov.uk/devolving_policing_and_justice_in_northern_ireland__illustrative_draft_legislation> accessed 15 November 2009
http://www.epolitix.com/legislation/legislation-details/newsarticle/northern-ireland-act/accessed 15 November 2009
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