2. Parliamentary Sovereignty Flashcards
Describe the principle of Parliamentary Supremacy
Parliament can make or unmake any law whatsoever; and, further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.
An MP from the governing party of the UK has assaulted another MP in the House of Commons chamber.
Can the MP be prosecuted in a criminal court for this offence?
Yes, because although parliamentary privilege includes “exclusive cognisance” which is the power for Parliament to make its own rules, the assault by the MP is a criminal offence, so would be outside the exclusive cognisance of Parliament.
Henry VIII powers 2
Henry VIII powers enable the substance of large Bills to be processed by Parliament while leaving the details to the executive.
If it occurred too frequently there would be a risk of damaging the sovereignty of Parliament.
The Sewel Convention 2
The Sewel Convention requires Parliament to obtain the consent of the devolved countries where legislation impacts on devolved legislation.
It remains legally unenforceable even though it has been codified in statute
The Salisbury Convention
The Salisbury Convention requires the House of Lords to pass a bill which gives effect to a major part of the government’s manifesto.
Explain exclusive cognisance
Parliamentary privilege includes the principle of ‘exclusive cognisance’ which is the power for Parliament to make its own rules and control its own processes and procedures.
Breach of the Salisbury convention
If the House of Lords rejected legislation which had been promised in an elected government’s manifesto, but conventions do not have the force of law, so it would not be unlawful.
The Human Rights Act 1998 relationship with parliamentary sovereignty
Preserves parliamentary sovereignty as it permits the government to proceed with a bill that violates Convention rights, subject to the minister responsible for the bill making a statement on the proposed legislation’s compatibility with Convention rights.
Parliament Acts 1911 and 1949
Enable the House of Commons to override the House of Lords when enacting legislation.
Can the HRA 1998 be impliedly repealed?
No, it has been recognized by the courts as a constitutional statute and so cannot be impliedly repealed.
How does the HRA 1998 preserve parliamentary sovereignty?
It permits the government to proceed with a bill that breaches Convention rights, subject to the minister responsible for the bill making a statement on the proposed legislation’s compatibility with Convention rights
Repealing a constitutional act
Cannot be impliedly repealed but may be expressly repealed.
‘Enrolled Act’ rule
Once a bill has passed both Houses of Parliament and received Royal Assent no court can question the validity of the Act or hold that Act to be void.
Judgements of the ECtHR
S 2 HRA requires UK courts ‘to take into account’ judgements of the ECtHR but they are not binding.
Legislation’s interpretation in accordance with Convention rights
S 3 HRA states that legislation must be interpreted in accordance with Convention rights ‘so far as it is possible to do so’, and where the courts are unable to do so will then make a declaration of incompatibility under S 4.
