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Legislation and statutory interpretation.

Module D: Tests for quality of legislation.

Chapter 3: Constitutional and human rights restrictions on legislation.

Constitutional restrictions on legislation
In a jurisdiction with a codified constitution, institutions of the state (including the executive and the legislature) cannot exceed the powers granted to it by the constitution. The constitution can contain express restrictions for legislation, including entrenching procedure for its own amendment (e.g. requiring a supermajority). Jurisdictions with uncodified constitutions (e.g. the United Kingdom) may still have similar constitutional restrictions, though implied.

Constitutionality in Finland
“The Constitutional Law Committee shall issue statements on the constitutionality of legislative proposals and other matters brought for its consideration, as well as on their relation to international human rights treaties”: s 74 (Supervision of constitutionality), Constitution of Finland.

“If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution”: s 106 (Primacy of the Constitution), Constitution of Finland.

Limited grant of legislative powers
Even for a ‘sovereign’ parliament, it is increasing untenable to insist that it is free to legislate in any way that it chooses; its legislative powers may approach that from a limited ‘grant’. Dicey admitted that a law requiring ‘that all blue-eyed babies were to be strangled’ would not be recognized or enforced; also legislation cannot overcome laws of mathematics and physics.

The grant of power to legislate ‘for peace, order/welfare and good governance’ was a plenary power to legislate within/for the territory: Union Steamship v King [1988 HCA 55] pace Killey (1989). This was confirmed to the extent that even legislation removing all inhabitants from a territory is valid: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008 UKHL 61)], again confirmed in R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016 UKSC 35].

Allocation of legislative competence between legislatures
If there is more than one legislature in a jurisdiction, there is usually some allocation of legislative powers between them, based either on territory or function.

Devolution
For devolved legislatures in the UK, a provision is outside its legislative competence if
 * it would have extraterritorial effect
 * it relates to matters which have not been transferred to that legislature
 * it would breach the law of the European Union or the European Convention on Human Rights, or
 * it breaches the rule of law (AXA General Insurance v Lord Advocate [2011 UKSC 46]).

In Scotland and Northern Ireland, everything is a transferred matter unless it is specifically listed as not being transferred (‘reserved matters model’). In Wales, a matter was only transferred if it was specifically listed as being transferred; this moved to the reserved matters model when the relevant provisions in Wales Act 2017 took effect.

‘[It] is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’: s 2 (The Sewel convention), Scotland Act 2016. But this does not require the UK Parliament to seek consent (e.g. by legislative consent motion) from the Scottish Parliament before invoking Article 50 of the Treaty on European Union: R (Miller) v Secretary of State for Exiting the European Union [2017 UKSC 5].

Federal structures
Article VI(2) of the US Constitution provides that, in the case of a conflict, federal laws take priority over state constitutions and state laws. Even so, the US Congress (unlike state legislatures) only has power to legislate in relation to matters set out in the Constitution.

“The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearms have any concrete tie to interstate commerce”: US v Lopez 514 US 549 (1995) per Rehnquist J at 567.

European Union
The competences of the European Union, exclusive or shared with its Member States, are provided in Article 2 to Article 6 of the Treaty on the Functioning of the European Union. “In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States”: Article 4(1) TFEU; repeated in Article 5(2). “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality”: Article 5(1) TFEU.

EU law within its competence takes primacy over national law: Case 6/64 Costa v ENEL.

Legislative restrictions imposed by international law
Weak presumption in interpretation: domestic legislation is presumed to be in accordance with a state’s international obligations unless the contravention is explicit.

Strong restriction: a treaty is incorporated or enacted into domestic law, either by transposition (converted into a domestic law) or by being given effect without modification.

Restrictions imposed by the European Union on the legislation of member states
EU law would prevail over national law, even if that national law was passed after the EU law. EU law was supreme, and national and international courts must ignore any provision of national law that was incompatible with EU law: C-106/77 Simmenthal (No. 2).

Finland
In Finland, Laki Suomen liittymisestä Euroopan unioniin tehdyn sopimuksen eräiden määräysten hyväksymisestä 1540/1994 adopts EU law as part of national law. See also Chapter 8 of the Constitution of Finland. Controversy on the primacy of EU law is mostly avoided here: see Juha Lavapuro, Tuomas Ojanen, Martin Scheinin; Rights-based constitutionalism in Finland and the development of pluralist constitutional review, International Journal of Constitutional Law, Volume 9, Issue 2, 1 April 2011, Pages 505–531, https://doi.org/10.1093/icon/mor035

“International agreements have the same hierarchical ranking as the instrument used to implement them in Finland. Thus, if an international agreement is implemented by an Act, the provisions of that agreement have the hierarchical ranking of the provisions of the Act. If, however, an international obligation is implemented pursuant to a decree, its provisions have the hierarchical rank of the provisions of the decree. Implementing provisions are therefore analogous to national provisions of the same hierarchical rank.”

Ireland
“[...] No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities, or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State”: Article 29 of the Constitution of Ireland.

United Kingdom
The similar effect in the UK – an Act of Parliament would be invalid if it contravened EU law – was established in R v Secretary of State for Transport ex parte Factortame Ltd (No. 2) [1991 1 AC 603]. This was confirmed in Thoburn v Sunderland City Council [2002 EWHC 195 (Admin)]; constitutional statutes such as the European Communities Act 1972 is immune to implicit repeal: obiter Laws LJ. So the sovereignty of Parliament is tempered by voluntarily sharing it with the EU (see Dicey’s admission above), and can be asserted by withdrawal therefrom (Brexit).

Human rights restrictions

 * 1) Morally and politically, legislators will generally find it difficult to enact legislation that breaches human rights because human rights are generally regarded as a good thing and human rights violations as a bad thing.
 * 2) There is the likelihood that the judiciary will interpret legislation in a way that conforms with human rights law.
 * 3) There may be a constitutional mechanism whereby the constitutional and human rights validity of a statute can be challenged.
 * 4) There may be some express constitutional prohibition on legislation being passed that breaches human rights.
 * 5) The courts may have the authority to declare non-compliant legislation void.

Jurisprudence developed under the European Convention on Human Rights provides examples of human rights restrictions on legislation.

Canadian Charter of Rights and Freedoms
This is contained in Part 1 of the Constitution Act 1982. Legislation is unconstitutional if it does not comply, but ‘Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter’: s 33(1), the “notwithstanding clause”. The law can then be effective for a renewable period of up to five years.

The Human Rights Act 1998 (UK)
The courts can strike down subordinate legislation that contravenes human rights. However, the courts cannot strike down primary legislation breaching these rights; they can merely make a declaration of incompatibility about that primary legislation and send that declaration back to Parliament: s 4. In the 20 years since, there have been about two dozen declarations of incompatibility. (Section 10 allows the government to amend legislation without full legislative approval.)

Constitutional and human rights in Finland
The Constitution regulates the duty of public authorities to guarantee the observance of constitutional and human rights (Section 22), the limitations on derogations in times of public emergencies (Section 23), and the duties of the Constitutional Law Committee of Parliament, Chancellor of Justice, and the Parliamentary Ombudsman. International human rights instruments such as the European Convention on Human Rights are adopted directly into Finnish domestic law with the reservations and declarations noted.

Procedures to be followed in enacting legislation
Usually the courts do not investigate whether the legislative procedure in was correct once the legislature has made an Act. But in the UK, the House of Lords has had to examine the use of the Parliament Acts to legislate, though it came short of striking down the law and the point was obiter: R (Jackson) v Attorney General [2005] UKHL 56.

Similarly in the EU, the Council has been taken to Court on the question of the choice of legal basis, competence, and the corresponding legislative procedure for some laws; the Court has been willing to entertain these issues: e.g. Case C‑355/10 Parliament v Council (Schengen sea borders), Joined Cases C‑124/13 and C‑125/13 Parliament and Commission v Council (cod stocks plan).