Administrative Law: In January 1993 the UK Parliament passed

In January 1993 the U.K.

Parliament passed the (fictitious) Welsh Language Preservation Act 1993 after approval of its provisions by a two thirds majority of the electorate in Wales voting in a referendum. The Act includes the following provisions.(1) In all schools and other educational institutions in Wales all employees, regardless of their duties, shall hold a certificate of proficiency in the Welsh language.(2) In all other areas of employment, employers may give preference to holders of a certificate of proficiency in the Welsh language, notwithstanding any provision to the contrary in any other enactment.(3) No Bill may be presented to Parliament to repeal or amend any provision of this Act, including this section, without a two thirds majority of the electorate in Wales voting in a referendum and any enactment thereafter passed shall be deemed not to affect the validity or terms of this Act unless enacted in accordance with this section.

Discuss the legal implications of each of the following alternative situations;(a) In 1994 a Bill is passed through Parliament repealing this Act without a prior referendum;It is suggested that "Parliamentary supremacy was assured by the Glorious Revolution of 1688" (Turpin) and many legal commentators and case law would suggest this to be correct. Dicey said that Parliament has "...the right to make or unmake any law whatsoever..

." If this is correct then Parliament can, as Salmon L.J. stated "...

in the present state of law...enact, amend and repeal any legislation it pleases" (Blackburn-v-A.G.

). That Parliament has tried to entrench an Act does not, in the courts' eyes, usurp the sovereignty of the current Parliament. Herbert C.J. stated "If an Act of Parliament has a clause in it that should never be repealed, yet without question, the same power that made it, may repeal it" (Godden-v-Hales).The Irish Act of Union (1800) suggested a certain degree of entrenchment when it spoke of the union ".

..to be for ever..

." yet the Irish Free State Constitution Act (1922) severed links with the Irish and annulled the idea of a union. Parliament can pass Acts inconsistent with previous Acts as happened between 1910 and 1918 when Parliament extended its own lifetime five times. Parliament is not limited by territorial restrictions although the execution of jurisdiction may be somewhat difficult to achieve.

Nor is it restricted by international law (Mortensen-v-Peters) or by treaties (Cheney-v-Conn). Therefore if an Act can be neither entrenched nor restricted, any Act passed subsequent to any other Act must, by implication, be able to repeal or amend the earlier act. So the validity of the above Act, if it is an Act, should be assured. It is also important to note that a case must be brought before the courts if its validity is to be challenged as the courts have no power to instigate or determine validity themselves.Parliamentary sovereignty has however been conceded in some respects by Parliament when it enacted the European Communities Act (1972). The European Courts have long subscribed to the view in the Internationale Handelgesellschaft case that community law should prevail over member states municipal law.

This view was substantiated in R-v-Secretary of State for Transport ex parte Factortame Ltd (No. 2). where a statute was disregarded (The Crown Proceedings Act (1947) s21, which stopped injunctions against the Crown) and another suspended (The Merchant Shipping Act (1988)) because of inconsistencies with community law. If the above Act was to violate community law then redress may be available under community law. That said Parliament cannot bind its successors and could equally repeal the European Communities Act.There are however counter arguments to suggest that the courts, for it is they who must in this case enforce the law, may not hold it to be valid.

Coke C.J. in Dr. Bonham's Case suggests that "...

the common law will control Acts of Parliament...and sometimes adjudge them to be void...

[as against a statute]" although he was speaking in 1610 which somewhat negates its authority in law.More resent was Sir Robin Cooke speaking in a New Zealand case (Taylor-v-New Zealand Poultry Board) where he said that courts would "...uphold values in common law.

.." in respect of Parliament ever passing a law on, say, torture. Although this statement does not have much legal authority it must be recognised as a reality were Parliament to pass an Act so repugnant normal people would be compelled to disobey it, i.e.

shooting all judges. A.G. for New South Wales-v-Trethowan suggests that legislation incorrectly enacted could be void but this is thought to carry little judicial authority as it was a determination of a subordinate legislature.

In considering whether the new bill is valid and has legal force it is paramount that it has the identity of an Act of Parliament. Without this an act is little more than delegated legislation thus leaving it open to the rules of ultra vires. Although nowadays there is no roll of Acts, an Act must have been passed by both Houses of Parliament (except bills under the Parliament Act (1911) and (1949)) and have gained the Royal Accent and authority for this dates back to The Prince's Case (1606). They must also have been brought into force (some Acts are commensurate on the powers of an individual minister under power of delegated legislation).

The Public Records Office and the House of Lords each holds a copy of new Act that can be used by the courts to identify validity. Once validity of the existence of an Act is established, it can be interpreted by the courts. Lord Ried in Madzimbamuto-v-Lardner Burke said that interpretation of the Act does not hold it invalid, but this is not to say courts cannot construct an interpretation so as to render it ineffective. This was the case in Anisminic Ltd-v-Foreign Compensation Commission, a case of judicial review, where "...

determinations...shall not be called into question in any court of law..

." was construed to mean correct determinations.Even if an Act was "..

.obtained improperly...

" as in Lee-v-Bude and Torrington Railway Co. "...it is for the legislative to correct it" (see also the case of Pickin-v-British Railways Board, fraudulent representations to Parliament).

The courts seem unwilling to usurp the supremacy of Parliament but recent cases cast doubt on their adherence of Article 9 of the Bill of Rights. Pepper-v-Hart now allows courts to examine Hansard in their search for the meaning of an Act. The above Act however, because it has not defined the wording of the repeal, could arguably fall either side of the law with regard to its interpretation.In conclusion it seems that Parliament has every right to do as it wishes. The only constraint is that of political pressure, the House of Commons having to stand for re-election every five years. As long as Parliament have the loyalty of those who enforce the laws it passes then Parliamentary sovereignty will remain.

John Major showed recently the Governments adherence to previously entrenched legislation when he said Northern Ireland would not be releases from the union unless the people wanted to do so. This was upholding the Northern Ireland Constitution Act (1973) s1 on a referendum to decide the future of Northern Ireland. This was not so much a legal decision but a political stance. So the Act above would have legal authority, the only conceivable opposition to its enforcement would be if those who enforced it were to disobey or disregard it.(b) EC Member States were required to implement the (fictitious) EC Directive on the Abolition of Language Qualifications by July 31st 1993.

This directive prohibits the stipulation of language requirements for any employment unless the work involved will be conducted wholly or mainly in that language.(i) In September 1993 David, an Englishman, applied for a job as a gardener at a Welsh comprehensive school. He was refused the job because he did not hold a certificate of proficiency in the Welsh language.(ii) In September 1993, Ewan, a Welshman, applied for a job as a gardener at a private nursing home. He was refused the job because he does not hold a certificate of proficiency in the Welsh language.David's case raises some fundamental arguments on the application of directives but also evokes arguments on the role of the European Community.

If we take the last point first, it is possible for the U.K. government to oppose the directive and ask the European Courts to void it. Article 2 of the Treaty of Rome (1957) lays down in para.

(c) the objective of abolishing obstacles to the freedom of movement of persons, services and capital. In arguing against the directive, it is possible to suggest that the Commission has acted ultra virus in so much as the Commission has no power to make legislation in this area, especially as the U.K. contracted out of the Social Chapter. We are however mainly concerned with the implications with regard to David.

External bodies can institute proceedings against the Government, the first of which is a reference by the Commission to the European Courts on the default of the member state under Article 169. The Government can then be asked to amend their legislation as in Commission-v-U.K. on equal pay legislation. Another possibility is that of a reference by another member state as prescribed in Article 170 and case law supports this (France-v-U.

K. on fishing net sizes) but this is unlikely. If this fails to bring about the required result then Article 171 allows infringement proceedings to be brought against member states for non-implementation of a directive. However these are all remedies that if successful bring no relief to David.David has two main options open to him, enforcement of the directive or damages.

If he chooses to seek enforcement of the directive then it logically follows, as this is an employment matter, that David would bring an action to an Industrial Tribunal. Tribunals that have a legal jurisdiction can refer questions of community law to the European Courts and as community law has force (Bulmer Ltd-v-Bollinger S.A.) on national law, they must give effect to community law.

It is then for the tribunal to decide if the directive has direct effect in relation to the matter concerned. In looking at this directive it must decide if it creates an enforceable right that is clear and unconditional (Van Duyn-v-Home Office).The directive states that language requirements can only apply to work conducted wholly or mainly in that language. So it would be difficult to conclude that a gardener, whose job is not orally orientated, would be covered by this condition.

David also has to prove that the school is an "...organ of the state..

." as in Marshall-v-Southampton Area Health Authority where it was stated that directives have no horizontal effect (i.e. between individuals). It can seek guidance from the decision in Foster-v-British Gas as to what amounts to an organ of the state that, in summary is "..

.providing a public service under the control of the state...".As a comprehensive school is under the control of a local authority, which in turn is controlled by the state and a public service, it would seem this hurdle has been overcome.

If the directive has direct effect then the tribunal can then invoke the precedent in Factortame (No.2) and suspend the Act thus giving David a remedy in damages similar to that of the Equal Pay Act. Another possible course of action would be in the civil courts through the precedent laid down in Francovich-v-Italy that allows damages to be claimed from the state where the state has failed to implement a directive and there is horizontal effect (This will be discussed further with regard to Ewan).Ewan can, as did David, hope that either the Commission or another member state takes proceedings to enforce the directive. As with David, he can petition the Commission to refer the matter to the European Court.

This could be a valuable tactic because were the courts to ask for an amendment to U.K. law to fulfil the objects of the directive, if then the law was to be changed Ewan could have a course of action at an Industrial Tribunal. As it is Ewan does not fall into the direct effect doctrine because the nursing home was private and not an organ of the state as prescribed in Foster-v-British Gas like David.

His main chance therefore would be to seek damages from the state.The judgement in Francovich-v-Italy has bridged the gap between horizontal and vertical effect so that individuals can now claim damages from a member state who fails to implement a directive. It lays down three criteria that must be met namely; the result of the directive must confer rights for the benefit of the individual. Both Ewan and David would have stood a better chance of being employed if the directive were in force.

Secondly; the content of those right must be ascertainable. In a negative sense the right not to have a certificate to be employed may suffice as the directive is couched in negative language. Finally; there must be a casual link between the breach of the obligation by the state and any damage suffered. Thus if the directive was in force then both men would have a higher degree of employment prospects. It is then for the national courts to decide if damages are to be awarded.