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Finance (No 2) Bill - creates constitutional conflict

One of the problems with the British Constitutional system is that we don't have a clear constitutional system.

Although a written constitution would help, I do not think it is necessary to go that far. It would, however, help to have some clear understanding as to what are and what are not constitutional pieces of legislation.

The Magna Carta started the ball rolling in 1215.

Another early clear one of these is Revocatio Novarum Ordinationum which in 1322 made it clear that for statutes to have force they needed to go through both houses of parliament and be signed off by the monarch.

The Parliament Acts of 1911 and 1949 obviously changed that.

The Act of Union, Scotland Act 1998 and Government of Wales Act are also material. The Reform Acts are also constitutional.

The Bill of Rights (1688/1689) established a number of important principles although more minor legislation such as the Parliamentary Papers Act 1840 and Parliamentary Privilege Act 1770 modified that.

The 1972 European Communities Act and the 1998 Human Rights Act are also constututional. What this means is that they cannot be repealed implicitly, but need to be repealed explicitly.

The Finance (No 2) Bill in essence (in clause 174) repeals all of them explicitly when it comes to statutory instruments that deal with international tax collection.

What the UK does need to do is to establish a political consensus as to what are constitutional statutes and the process whereby they might be changed. I don't think there is an intention to repeal them by mistake. However, the legislation looked at in committee today clearly creates the possibility that statutory instruments can repeal them where there is a conflict of laws.

Pepper v Hart will not protect people from that as the Paymaster General did not handle this issue properly and the face of the bill is quite clear and unambiguous.

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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KING’S BENCH DIVISION

R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

November 9 1923

Editor’s comments in bold.

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