Constitutional Fundamentals & Parliamentary Sovereignty

Question 1

What are some of the sources of the UK constitution?

Answer 1

Legal sources
- Statute
- Case law (common law, JR, statutory interpretation)
- Royal prerogative
- Other (eg. law & custom of Parliament)

Non-legal sources
- Constitutional conventions
- Authoritative works (eg. Dicey)

Question 2

What are the three core principles on which the UK constitution is based?

Answer 2

The rule of law

The separation of powers

The sovereignty of Parliament

Question 3

What is the royal prerogative?

Answer 3

Essentially what’s left of the absolute powers that at one time were exercised by the Monarch

eg. Declarations of war, making treaties, summoning of Parliament, appointment & dismissal of PM, granting public honours, defence of the realm

By convention, most of the powers of royal prerogative are exercised by the PM & other government ministers on the Monarch’s behalf

Question 4

What is the De Keyser principle?

Answer 4

Where a statute operates on the same ground as prerogative power, statute should prevail

ie. Government can’t choose between prerogative & statutory powers

Nb. May still be situations where statute that deals with the same matter as prerogative power is deemed not to be intended to override it

Question 5

What are constitutional conventions?

Answer 5

Non-legal source of the constitution - rules of constitutional behaviour considered to be binding but which are not enforced by the courts

Examples include:
- Monarch will not refuse Royal Assent to a bill passed by Parliament
- Individual ministerial responsibility
- Collective ministerial responsibility
- Sewel Convention (Westminster will not legislate for Scottish matters which Scottish Parliament has delegated power over without their express approval)

Question 6

Are constitutional conventions enforceable by the courts?

Answer 6

No (non-legal source of constitution - where conflict between convention & law, courts must enforce law)

Courts will acknowledge the existence of conventions, but if Parliament passes an Act that breaches a convention, the courts will not refuse to apply it for that reason

Question 7

What is the Sewel Convention?

Answer 7

Westminster should not legislate for Scottish matters which the Scottish Parliament has delegated power over without their express approval

Question 8

What is the convention of Individual Ministerial Responsibility?

Answer 8

Ministers are responsible for their departments - if necessary, should resign for any errors & failures in their departments (as well as when at individual fault)

Nb. Somewhat weakened in recent years - eg. with departmental fault, distinction between policy & operational (ie. will not resign for operational faults of deparment)

Question 9

What is the convention of Collective Ministerial Responsibility?

Answer 9

The cabinet is collectively responsible to Parliament for the actions of the Government as a whole

+

Cabinet must be united in public in support of government policy (ie. minister must resign if wish to speak out against)

+

Cabinet discussions must be confidential

Question 10

What are some of the ways that government is held accountable?

Answer 10

Parliamentary questions

Parliamentary debates
(questionable re extent - only primary legislation actively scrutinised)

Select committees (most effective)

Question 11

What are the three elements of Parliament?

Answer 11

House of Commons
House of Lords
Monarch

Question 12

What are some of the main functions of Parliament?

Answer 12

Scrutinize the work of the government

Pass legislation

Debate key issues

Approve government funding

Provide personnel for government

Question 13

What is the legislative process in Parliament?

Answer 13

First Reading (purely formal)

Second Reading (debate in Commons)

Committee Stage (examine bill in detail, amendments can be made)

Third Reading (consideration of amended bill by MPs, final opportunity to vote on the bill)

Proceedings in the House of Lords (first + second + committee + third)
Nb. Will be sent back to the Commons if Lords have made any amendments

Royal Assent (only becomes law at this stage)

Question 14

What is the doctrine of parliamentary sovereignty?

Answer 14

Parliament is the supreme law-making body

No parliament can be bound by a predecessor or bind a successor

No other person or body may question the validity of an Act of Parliament or declare it to be invalid

Question 15

What is the ‘enrolled act rule’?

Answer 15

Once an Act of Parliament has been entered onto the parliamentary roll, the courts won’t question that act or declare it to be void

Question 16

What is the unlimited legislative competence of Parliament?

Answer 16

There are no limits on Parliament’s legislative powers

ie. Statute can
- Override constitutional law
- Override constitutional conventions
- Alter the constitution
- Operate retrospectively
- Abolish or curtail aspects of the royal prerogative

Question 17

What are the doctrines of express & implied repeal?

Answer 17

Gives effect to maxim that no parliament may be bound by a predecessor or bind a successor

Express repeal: a statue expressly states that it is repealing (ie. replacing) an earlier Act of Parliament

Implied repeal: Where there is an inconsistency between two Acts of Parliament, the LATER Act will repeal the provisions of an earlier Act

Question 18

What are some of the domestic limitations on Parliamentary Sovereignty?

Answer 18

The Acts of Union (Parliament can’t override these provisions)

Devolution (eg. Sewel convention)

Acts of Independence to former colonies (could Parliament really reverse these?)

Limits on the doctrine of implied repeal (may not apply to constitutional statutes)

Manner & form debate (debate as to whether an earlier parliament can bind a future parliament as to the procedure to enact legislation)

Question 19

What is the limit on the doctrine of implied repeal?

Answer 19

Has been suggested that implied repeal should not apply to constitutional statutes (Thoburn v Sunderland CC)

In Thoburn, suggested there are ‘ordinary’ statutes & ‘constitutional’ statutes - ‘constitutional’ statutes are of such significance that Parliament would have to ‘expressly’ repeal them

A constitutional statute is:
(a) One which conditions the legal relationship between citizen & state in some general, overarching manner;
or
(b) The statute must change the scope of fundamental constitutional rights

Question 20

What are the European limitations on parliamentary sovereignty?

Answer 20

Membership of the EU (where there was a conflict between UK & EU law, courts often willing to construe legislation in way that made it compliant with EU law - but in some cases impossible)

Retained EU law
ie. all EU law in force at the end of the transition period, which was converted into domestic law (Principal of supremacy of EU law will continue to apply to retained EU law - where conflict between pre-Brexit domestic law & pre-Brexit directly effective EU law, the EU law takes priority)

European Convention on Human Rights (incorporated into domestic law by the HRA 1998)
- Courts not bound by judgements but need to take it into account
- Legislation should be interpreted with convention rights so far as is possible to do so - where isn’t possible, declaration of incompatibility

Question 21

What is parliamentary privilege?

Answer 21

(a) Freedom of speech

(b) Exclusive cognisance (ie. Right to control its own composition & procedures)
- eg. Courts won’t question validity of an Act on the basis that correct procedures weren’t followed (Pickin)

Question 22

What types of prerogative power are there? (3)

Answer 22

Crown’s legal prerogatives
- Power of AG to discontinue criminal prosecutions
- Presumption that when statute being interpreted by courts, court won’t constrict Crown

Monarch’s personal prerogatives
- Appoint PM, assent bill etc.
- All heavily modified by conventions

Executive powers (essentially those royal prerogative powers exercised by the Executive)
- eg. Appoint of Ministers, honours, treaties, defence of the realm

Question 23

What is the relationship between statute & prerogative?

Answer 23

De Keyser principle: Where statute operates on the same ground as prerogative power, statute should prevail
- ie. government can’t choose between prerog & statutory powers
- Nb. limitation where statute may be deemed not to intend to override prerogative power

Question 24

Can the judiciary control prerogative powers?

Answer 24

Existence & scope of prerogative powers generally been subject to judicial review

Trend of greater willingness to review the exercise of prerogative
- GCHQ: royal prerogative is justiciable in principle –> eg. mercy, passports can be JR
- Sliding scale - low intensity of review for political decisions (eg. pure foreign policy, such as Maastricht Treaty) v. vigorous intensity for more legalistic decisions

Question 25

Can the government use prerogative powers to authorise expenditure?

Answer 25

No - must have authorisation of Parliament

Question 26

What is the Salisbury Convention?

Answer 26

The House of Lords will not reject legislation that gives effect to an important manifesto commitment of the democratically elected Government

Question 27

Can the House of Lords permanently block a money bill?

Answer 27

No

Monarch can assent to a money bill within one month of the House of Lords reading a bill, even if they do not consent to it

Question 28

If an MP commits a criminal offence in Parliament can they be prosecuted for it?

Answer 28

Yes - although Parliament has exclusive cognisance to determine its own rules and procedures, criminal offences are prosecuted in the usual way

Question 29

What are Henry VIII powers?

Answer 29

Powers included in legislation which permit the relevant government minister to amend or repeal the relevant statute by delegated legislation

(ie. permit ministers to make changes to Acts of Parliament by delegated legislation)

Use of such powers regularly risks damaging sovereignty of Parliament

Question 30

Can the government proceed with a bill which breaches European Convention of Human rights?

Answer 30

Yes - government can proceed with the bill, subject to the minister responsible for the bill making a statement that the proposed legislation is incompatible with Convention Rights

(shows how Human Rights Act 1998 preserved parliamentary sovereignty)