Parliament and Parliamentary Sovreignty

What are the three elements Parliament consists of?

·       There are two houses: the House of Commons and the House of Lords

·       The Monarch is a part of the Parliament.

·       So the three parts are: House of Commons, Lords and Monarch.

What are Parliament’s main functions?

·       To scrutinise the government’s work

·       To pass legislation (make new laws)

·       To debate key issues of the day

·       To approve necessary funding for government to carry out its statutory duties

·       To provide personnel for the government

Describe the composition of the House of Commons. How are members elected, how many members are there?

·       Bills are normally approved by both Houses (*normally*)

·       650 MPs

·       MPs are elected through votes from their constituencies (first past the post system)

·       Number of holders of ministerial office is capped at 95 (s 2 of House of Commons Disqualification Act)

 

Describe the composition of the House of Lords.

·       House of Lords is not elected.

·       Up to 92 hereditary peers are left.

·       Most peers are appointed by Monarch (on advice of PM)

·       Lords Temporal (about 700) life peers created under Life Peerages Act, up to 92 hereditary peers.

·       Lords Spiritual (26 senior clergy of Church of England)

How often does Parliament meet?

·       Parliament must be summoned every 3 years

·       By convention, Parliament meets throughout the year (for annual renewal of tax, political reality etc)

How long does a Parliament last?

·       Maximum life of a Parliament is 5 years (PA 2011 limited it to this number).

·       It used to be that a Parliament normally did not last the full 5 year term, and the Monarch could dissolve Parliament at the request of the PM.

·       Fixed-Term Parliaments Act 2011 changed this – implemented fixed days for polls and for election to be held 7 May 2015 etc., so early parliamentary elections could take place if there was a vote of no confidence…

o   Further legislation was created to avoid having to wait for a general election (as they did not have 2/3rds of MPs to agree), only needed a simple majority.

o   2020 – Gov repeals FTPA and revives prerogative power to dissolve Parliament.

What is a parliamentary ‘session’, when do they end?

·       Each parliament is divided into sessions which usually last from one spring to the next

·       A session ends when prorogued by Royal Decree.

What happens to public bills when a session is ended?

·       Prorogation terminates all business pending at the end of the session

·       Any public bills that have not passed into law normally lapse, but it is possible to carry over public bills from one session to the next.

What is a public bill?

·       A public bill is one that changes the general law (applies to public as a whole), there are two types of public bill:

o   1. Government bills: bills submitted to Parliament as part of the government’s legislative programme, relevant department decides on detailed contents.

o   2. Private members’ bills: bills introduced by MPs or Lords.

What is a private bill? A private bill relates to matters affecting individual, corporate or local interest (eg building a new railway tunnel).

Describe the relationship between the House of Lords and the House of Commons.

·       House of Commons is the most important of the two Houses (democratic legitimacy).

·       House of Lords is a ‘revising chamber’, the Salisbury Convention means that House of Lords will not reject a bill giving effect to a major part of a democratically elected Government manifesto.

o   If HoL rejects a bill passed in HoC, bill may still become law (due to PAs 1911 and 1949).

What is the effect of Parliament Acts 1911 and 1949?

·       Means will of Commons prevails.

·       Both acts allows the Monarch to give royal assent to a bill which hasn’t received the consent of the House of Lords. But the speaker must ensure certain provisions are complied with:

o   ‘money bills’: these are bills dealing only with national taxation/supply, can be assented ONE MONTH AFTER being sent to the Lords, doesn’t need Lords’ consent after that time.

o   other public bills:  if passed by Commons but rejected by Lords in each of 2 successive sessions, bill can be sent to Monarch for their assent. 1 year must elapse between 2nd reading in Commons in 1st session and 3rd reading in 2nd session

§  *bills seeking to extend maximum duration of Parliament are excluded.

·       **so any bill provided conditions met, specific conditions for money bill and for other public bills.

What is delegated legislation?

·       Acts of Parliament give power to ministers to make delegated legislation e.g. in form of rules/regulations

·       Parliament cannot amend delegated legislation they can only scrutinise it

What are the two parliamentary procedures followed for delegated legislation?

1.      Affirmative resolution procedure

a.      One or both houses passes a resolution approving the instrument

2.      Negative resolution procedure

a.      Government is required to annul the instrument if either House passes a resolution rejecting the instrument within a specified period (normally 40 days after it is laid before Parliament)

Define parliamentary sovereignty. There are 3 parts to parliamentary sovereignty:

1.      Parliament is the supreme law-making body, may enact or repeal laws on any subject

2.      No Parliament may be bound by a predecessor or a successor – particular act of parliament cannot be entrenched or given higher status

3.      No other person/body may question the validity of an Act of Parliament

How did parliamentary sovereignty develop? A Convention Parliament was set up by William of Orange, they passed the Bill of Rights – removed powers of Monarch to suspend Acts of Parliament and impose taxation w/o Parliament’s consent.

Article 9 established freedom of speech and debates/proceedings of Parliament should not be impeached or questioned in court or any place out of Parliament.

What is the ‘Enrolled Act’ rule?

·       Once an Act of Parliament has been entered onto the Parliamentary roll, courts will not question the validity of the Act or hold it invalid

·       Courts have no power to disregard an Act of Parliament or investigate its proceedings that had taken place in Parliament to determine any irregularity of procedure/fraud.

·       No conflict with the rule where statutory interpretation of an Act’s validity is challenged (e.g. Hunting Act)

List examples/instances where Parliament has unlimited legislative competence.

·       There are no limits to Parliament’s legislative competence.

1.      Statute may override international law

2.      Statute may override constitutional conventions

3.      Statute may alter the constitution e.g. Acts of Union, Parliament Acts, HRA

4.      Statute may operate retrospectively e.g. an Act can operate retrospectively such as War Damage Act.

5.      Statute may abolish/curtail aspects of the royal prerogative, examples:

a.      (i) abolishing immunity of the Crown for tort/contract claims

b.      (ii) FTPA 2011 which removed power of Monarch to dissolve parliament (repealed)

c.      (iii) Miller where government argued it would trigger article 50 using its powers to make/unmake treaties, needed consent of Parliament as caused fundamental change to constitution

What does it mean when Parliament expressly repeals legislation?

·       If a later Parliament expressly repeals an act made by an earlier Parliament – it will be invalid.

What does it mean when Parliament impliedly repeals legislation?

·       Implied repeal occurs where a later act contradicts the contents of an earlier one

·       Problem is which act do we use?

·       It would depend on the consistency of the legislation…

List the domestic limitations on Parliament’s sovereignty.

1.      Acts of Union

a.      Acts of Union said to be a partial constitution as binds Westminister, Scotland has its own legal system/church preserved

2.      Devolution

a.      Devolved power to Scotland, Wales and Northern Ireland

                                                              i.      SCOTLAND Scotland Act: establishes Scottish Parliament and Executive

                                                            ii.      Health, education, legal affairs are devolved to Parliament (excluding foreign affairs and defence)

1.      Includes taxation, Scottish Gov + Parliament cannot be abolished unless voted for in a referendum

2.      UK gov won’t normally legislate regarding devolved matters w/o Scottish Parliament’s consent (Sewel)

                                                          iii.      WALES

1.      Welsh Assembly, devolved power to Welsh Parliament, mirrors Scotland (Sewel Convention) etc

                                                           iv.      NORTHERN IRELAND

1.      Devolved powers to NI assembly, ‘power-sharing executive’, won’t cease to be part of UK unless voted for in referendum

3.      Acts of Independence

a.      Parliament could reverse independence given to ex-colonies thru legislation but this is unlikely and unenforceable in practice

4.      Limits on Doctrine of Repeal

a.      Constitutional statutes require explicit intention to be repealed.

b.      Test for constitutional statute:

                                                              i.      (a) statute must condition legal relationship between citizen and state in some general, overarching manner, or

                                                            ii.      (b) statute must change scope of fundamental constitutional rights

1.      Must be express words or ‘words so specific that inference of an actual determination to effect is irresitible’

5.      Manner and Form Debate

a.      Manner and form issue is: can a Parliament bind its successors as to the procedure to be adopted when repealing legislation enacted by that earlier Parliament?

                                                              i.      In favour of manner and form

1.      If Parliament can make it easier to legislate (Parliament Acts), no reason for Parliament to make it harder

2.      Rules for identifying an Act of Parliament can override common law, suggested that Parliament can alter legal rules on which validity of Act rests

3.      Trethowan case (Australia)

                                                            ii.      Against manner and form

1.      Trethowan is persuasive only not binding on domestic courts – parliament of New South Wales is subordinate not truly ‘supreme’, created through an Act.

2.      Meaning of Parliament cannot be altered by an Act

6.      Henry VIII powers

a.      Legislation passed by government contain ‘Henry VIII powers’, which allow government ministers to amend/repeal statutes by delegated legislation (making changes to Acts through delegation)

7.      Rule of law

a.      Rule of law may trump parliamentary sovereignty in some cases, e.g. if decided to abolish courts

List the European limitations on Parliament’s sovereignty.

1.      Doctrine of supremacy of European Union law

a.      European Union (Withdrawal Agreement) gives supremacy to Withdrawal Agreement but recognises that Parliament is sovereign (s 38) and that sovereignty persists (s 38(2)).

2.      Types of EU legislation

a.      Regulations à directly applicable and automatically binding in all Member States w/o need for any further legislation

b.      Directives à set out objectives to be achieved and oblige Member States to pass domestic legislation to implement them, sets a date when this should be achieved.

c.      Decisions à directly binding onto those they’re addressed to, could be Member States, companies or individuals

d.      Recommendations and opinions à not binding

3.      Direct effect

a.      ‘vertical’ direct effect: where EU law is being enforced against the state or a state body, e.g. claimants challenging a custom duty in Dutch court (van Gend en Loos)

b.      ‘horizontal’ direct effect: where treaty articles can be enforced against private bodies (e.g. individual against a private body, such as an airline) Dafrenne v SABENA

4.      Effect of ECA

a.      ECA 1972 was incorporated into the domestic law, with these provisions:

                                                              i.      2(1): directly effective rights and obligations arising under EU Law should be enforceable in UK courts

                                                            ii.      2(2): UK gov to make delegated legislation to implement directives into UK law

                                                          iii.      2(4): required all UK legislation [primary/secondary] to be construed and take effect

                                                           iv.      3(1): requires UK courts to apply EU law in accordance w/principles laid down by CJEU

5.      Indirect effect

a.      UK adopted a purposive approach for a EU directive allowing men and women to be paid equally [not following strict literal interpretation], implied words into regulations

6.      Conflict between UK and EU law

a.      Directly effective EU law took precedence over conflicting UK law, was permitted by Parliament (by incorporating ECA 1972).

7.      State liability for non-implementation of UK law

a.      Someone who has suffered resulting loss can obtain damages from the Crown, e.g. if indvl suffered loss because UK failed to implement a directive – would have the right of action under Francovich.

b.      Directives only have vertical effect, state bodies.

8.      Express repeal of ECA

a.      Reapealed the ECA 1972 through EU (Withdrawal Agreement) 2020 which still kept in force ss 2 + 3 of ECA – supremacy of EU law until end of transition period.

9.      Retained EU law

a.      EU-derived domestic legislation

                                                              i.      Secondary legislation adopted to implement EU obligations

b.      Direct EU legislation

                                                              i.      EU legislation that applies directly to the UK e.g. regulations, decisions.

c.      Rights etc arising under s 2(1) ECA

                                                              i.      Directly effective EU rights and obligations

                                                            ii.      UK legislation enacted after end of transition period will prevail over previous legislation

                                                          iii.      Retained EU law prevails

What are the different types of EU legislation? These would be directives, regulations, decisions and recommendations, but retained EU law complies some of this EU legislation…

EU-derived domestic legislation, Direct EU legislation, rights arising under s 2(1) ECA

What is Retained EU law? EU legislation that the UK has decided to keep until end of the transition period.

How is the HRA incorporated into UK law? Key provisions, ‘weakly’ incorporated:

(a)   s 1 (sch 1) à articles of convention incorporated into UK law

(b)   s 2 à not bound to follow ECtHR judgements but follow them

(c)   s 3 à primary and secondary legislation must be interpreted according to Convention rights ‘so far as it is possible to do so’, applies to both leg passed + after coming force of HRA 1998

(d)   s 4 à court can declare incompatibility if cannot interpret legislation in a way where it is compliant with Convention rights

(e)   s 10 à if there is declaration of incompatibility, there is a ‘fast track’ procedure that the gov may use to amend legislation but not obliged to do it

(f)     s 19 à minister introducing a gov bill into Parliament must (before 2nd reading) make a statement that provisions in bill are compatible with Convention rights or alternatively make a statement to the effect that although they can’t make a statement of incompatibility, gov wishes HoC to proceed w/bill.

How does the Human Rights Act 1998 affect parliamentary sovereignty?

1.      s 3

a.      courts have been willing to stretch meaning of legislation to make legislation compatible with Convention rights.

2.      s 4

a.      Where the courts are unable to interpret domestic legislation in such a way as to make it compatible with Convention rights, a declaration of incompatibility may be made under s 4 of the HRA 1998.

b.      Government are not required to do it but usually political pressure to comply.

Bill of Rights no longer going ahead (2023).

What is parliamentary privilege? Parliament has 2 main privileges:

(1)   Freedom of speech

(2)   Right to control its own composition and procedures (exclusive cognisance)

Outline the two main privileges that Parliament has.

·       Freedom of speech: there is freedom of speech during parliamentary debates/proceedings in Parliament, it means that:

o   MPs and Lords have immunity from legal proceedings

o   MPs and Lords have immunity from contempt of court

·       Includes words spoken or written that are connected to core proceedings themselves, extends to official reports and proceedings papers published by Parliament attract absolute privilege

·       Fair and accurate reports of parliamentary privilege have qualified privilege  (protected from defamation unless malice proved)

·       If Act obscure, can refer to parliamentary debate

 

·       Exclusive cognisance: Parliament has sole control over all aspects of its own affairs – to decide for itself  what procedures it should adopt, whether any procedures have been breached and what consequences will be.

 

·       Includes disciplinary powers over MPs (eg right to suspend them over misconduct)