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Extra resources for Constitutional LawCard 4ED (Lawcards)
The borderline between interpretation and judicial legislating is not always clear, particularly with activist judges such as Lord Denning, who frequently pursued his interpretative role in a highly creative manner. There are added complexities when one considers the interpretative provisions under the European Communities Act 1972 and the Human Rights Act 1998, which provide powerful authority for the courts to interpret legislation to fit with EU law or the European Convention on Human Rights (ECHR).
For example, does the Scotland Act 1998, which devolved substantial legislative powers, divest Westminster of its competence to legislate in those areas? The answer to this in the legal sense is clearly ‘No’. In fact, the Act expressly provides that it ‘does not affect the power of the Parliament of the UK to make laws for Scotland’ (s 28(7)). Whatever the political inhibitions, there is nothing in the act of devolution that invalidates the UK Parliament’s right to legislate on any matter. In British Coal Corporation v The King (1935), the Privy Council considered the position where independence was granted to a dominion, here Canada, under the Statute of Westminster 1931.
The power of the King to dispense justice and determine cases without judges was rejected in Prohibitions Del Roy (Case of Prohibitions) (1607). Similarly, in the Case of Proclamations (1611), the court held that the King had no power to proclaim or change the law. The power of the King to raise money for the navy in times of emergency, by indirect taxes and without Parliament’s approval, was also denied by the Ship Money Act of 1640, reversing an initial decision of the courts (Case of Ship Money (R v Hampden) (1637)).
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