Constitutional Law - Parliamentary Sovereignty 2

Question 1

What are the 5 things that Parliament does?

Parliament is the House of Commons, Lords and Monarch

Answer 1

1) Scrutinising the work of the Government
2) Passing legislation
3) Debating the key issues of the day
4) Approving funding necessary for the Govt to carry out its statutory duties and legislative proposals
5) Providing the personnel for Govt (since all govt ministers are drawn from either the House of Commons or the House of Lords)

• It is the Government that is responsible for drafting most legislation that is placed before Parliament, and so when it passes legislation.
  -Parliament’s role is that of formal enactment of legislation rather than making the law on its own initiative

Question 2

What is the House of Commons?

Answer 2

• Representative body, the membership of which is elected.
• Speaker (by convention) is the chair of the House of Commons and carry out their duties impartially - e.g. ruling on procedural points and controlling debate
• Statute limits has a number of holders on ministerial office in the Commons to 95
• Prime Minister (by convention) is a member of the house of commons as are most of the other cabinet ministers

Question 3

What is a recall petition?

Answer 3

An MP can be removed from their seat and for a by-election to follow. This happens when the following conditions is met

**1) MP is convicted of an offence **and receives a custodial sentence
2) Following a report from the Committee or Standards, the MP is suspended from the Commons for at least 10 sitting days
3) The MP is convicted of providing false or misleading information for allownace claims.

MP will be removed from their seat and a by-election is called if
* At least 10% of registered voters in their constituency sign the petition within 6 weeks.

NOTE. The recalled MP can stand as a candidate at the by-election.

Question 4

What are the House of Lords?

Answer 4

• Unelected
• Unrepresentative body
• Largely made up of Hereditary peers (in the past)
• Currently made up of Life Peers (appointed by the Monarch on advice of the Prime Minister)

The Lords Temporal and Lords Spiritual (current membership)

Currently around 700 life peers. If you want to be a lord you are elected now you can’t just be a hereditary peer and inherit the position from your late father lets say.

Question 5

What is the significance of the Parliament Act 1911 and 1949?

Parliamentary Act Procedure

Answer 5

• House of Commons is democratically elected and this was put into an Act - The Parliament Act.
• The House of Lords cannot reject a parliamentary bill passed by the House of Commons but can only DELAY it for ONE YEAR between the second reading in the first session and the third reading in the second session
• House of Commons must pass the bill twice and gives them time to reflect upon public opinion and whether the bill is necessary.
• Parliamentary act procedure is rarely used, because the two houses usually agree a compromise.

An act of Parliament is normally passed by both the House of Lords and then receives the royal assent

Question 6

When can the parlaimentary act procedure not be used?

I.e. when House of Lords can veto legislation for up to 1 year.

Answer 6

1. To extend the life of Paraliment - which is fixed at 5 years
2. House of Lords has to accept ‘money billsi.e. bills certified by the Speaker as dealing only with national tax - this has to be accepted within **one month

Question 7

If an Act was created by the use of the Parliamentary Act procedure, will it still be valid?

Answer 7

Yes.

An act passed under the Parliament Act, without agreement of the House of Lords is JUST AS VALID as any other Act of Parliament and cannot be challenged in the courts.

Question 8

What is a session in Parliament?

Answer 8

Each Parliament is divided into ‘sessions’.

• Usually start in the spring of one year and end in the spring of the next.
• A session ends when Parliament is ‘prorogued’ (suspended) by Royal Decree. Prorogation terminates all business pending at the end of the session.
• Any public bills that have not been passed into law, will normally lapse, although it is possible to carry over public bills from one session to the next, subject to the agreement.

Question 9

What is the Salisbury convention?

Answer 9

• House of Lords will not reject a bill giving effect to a major part of the democratically elected Government manifesto.
• House of Lords will instead use expertise to make small changes to legislation to which it disagrees.

Question 10

What is delegated legislation?

Think the supplementary legislation (statutory instrument)

Answer 10

Delegated legislation is when ministers are given a power to make delegated or subordinate legislation.

• They are ‘statutory instruments’ which accompany an Act of Parlaiment
• Neither HoL or HoC can amend delegated legislation and often it can come into effect without either house voting on it at all
• The ‘parent’ or ‘enabling’ Act will stipulate the parliamentary procedure to be followed

Question 11

What are the two procedures used regarding passing delegated legislation?

I.e. statutory instrument

Answer 11

1) Affrimative resolution procedure - The instrument either cannot come into effect, or ceased to have effect unless one or both houses passes a resolution approving the instrument
2) Negative resolution procedure: The government is required to ‘annul’ the instrument if either House passes a resolution rejecting the instrument within a specified period (40 days) after it is laid before Parliament

The House is assisted in scrutiny of delegated legislation by the joint select committee on statutory instruments (representing both Lords and Commons)
Joint Select committy- job to draw the attention to Parliament to instruments that for various reasons might need to be debated

Question 12

What is the definition of Parliamentary Sovreignty?

AV Dicey

Answer 12

1) Parliament has the right to make or unmake any law
2) No Parliament can bind a future Parliament
3) No other person or body (a court of law) may question the validity of an Act of Parliament or declare that Act to be unlawful
4) No act or body can override or set aside laws made by Parliament
5) Parliament does not share the right to make law with any other person or body

PARLIAMENT IS SUPREME LEGAL AUTHORITY

Claimed this supremacy since the Glorious Revolution of 1688 when the King was ovethrown and replaced by a member of Parliament.
The Bill of Rights has proclaimed Parliament’s supremacy and it has been accepted ever since - will only change if there was a revolution and a new way of legislating was generally accepted

Question 13

Can the court’s overrule an Act made by Parliament ‘Enrolled Act Rule’?

Answer 13

No.
1. Court cannot overrule any act made by Parliament.
2. Once an Act of Parliament has been entered into the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void.
3. Court has no power to investigate proceedings that had taken place in Parliament to determine whether there had been any irregularity of procedure or fraud

All the court justice can do is look to the Parliamentary Roll: if from that it should appear that a bill has passed both Houses and Received royal assent - no court of justice can enquire the mode to which it was introduced in to Parliament, what was done previously to it being introduced, or what passed during its progress.

Note. Parliament cannot pass laws that future parliaments cannot change either.

Question 14

Can the court question the validity of an Act of Parliament?

Answer 14

The Judiciary has accepted the supremacy of Parliament and so attempts of challenging the validity of Acts of Parliament in court have failed.

Mortensen v Peters - It was alleged that an Act of Parliament was contrary to international law, but the court dismissed these claims as irrelevant
Cheney v Conn - It was alleged that an Act of Parliament was contrary to international law, but the judge explained ‘what the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law and the highest form of law that is known to the country
British Coal Corporation v The King- An act of Parliament had been granted the British colony Canada, independence but Parlaiment could still legislate for Canada if it wished the British courts would uphold this as the law
Picking v British Rail - Pickin alleged that Parliament had not followed its own procedures, failing to notify him that the bill affected him. The court refused to investigate the claim. Parlaiment decided its own procedures.

Question 15

What are the examples of unlimited legislative competence of Parliament?

Answer 15

1) Statute may override international law
2) Statute may override constitutonal conventions
3) Statute may alter the constitution
4) Statute may operate retrospectively
5) Statute may abolish or curtail aspects of the royal prerogative - e.g. Crown Proceedings Act 1947 - removed immunity of the crown in respect of claims made against it in either tort or contract, fixed term parliament act - removed power of monarch to dissolve parliament

It is QUITE HARD to CHALLENGE THE VALIDITY OF PARLIAMENTARY SOVREIGNTY

Question 16

What is express repeal of statute?

Remember: No paliament may be bound by a predecessor or bind a successor. This is given effect through the doctrines of express and implied repeal

Answer 16

If a later Parliament expressly repeals the contents of an Act made by an earlier Parliament, that earlier Act will no longer be valid.

LATER ACT IS THE LAW.

Question 17

What is implied repeal?

Remember: No paliament may be bound by a predecessor or bind a successor. This is given effect through the doctrines of express and implied repeal

Answer 17

• If two acts of Parliament contradict eachother (previous parliament and current parliament) the LATER act is the LAW

Ellen Street Estates v Minister of Health
- Any Act of Parliament that states ‘so far as inconsistent with this Act’ those provisions shall cease to have or shall not have effect.
- These words can repeal earlier Acts but not LATER acts, remember later act is the law.
- The later act will impliedly repeal the provisions of an earlier Act

LATER ACT IS THE LAW

Question 18

What are the limitations to parliamentary sovreignty?

Answer 18

1) Domestic limitations
2) Devolution
3) Acts of Independence
4) Limits on the doctrine of implied repeal may not apply to constitutional statute
5) Henry VIII powers
6) Rule of Law
7) EU

Domestic - Acts of Union 1706 - gave a Treaty of Union by which the English and Scottish Parliaments agreed to vest their authority in a new Parliament of Great Britain. The Acts made explicit provision for the preservation of the separate scottish legal system and the Church of Scotland - some have argued that the acts of union are a partial written constitution of the UK which subsequent Parliaments are bound.

Devolution - Scottish Parliament is separate now, Welsh Assembly

Acts of Indepdence - Granting former colonies of the British Empires independence - Parliament could reverse such legislation, but for political reasons it is unlikely that they would do that. If they did repeal the Acts and resume legislating for former colonies - legislation would be unenforceable

Question 19

What is the test for a constituional statute and why the doctrine of implied appleal doesn’t apply here?

Constitutional statute - e.g. Bill of Rights, Acts of Union,Scotland Act

Answer 19

Statutes that are constitutional are of such significance that the courts would require actual intention from Parliament to change them, not an implied intention.

Test for constitutional statute is:
a) general statute must condition the legal relationship between the state in some genera overarching manner
b) the statute must change the scope of the fundamental constitutional rights

‘Ordinary’ statutes vs. ‘Constitutional statute’.

For constitutional statute to be repealed
- Has to be express words
- Words so specific that the inference of an actual determination to effect
- Clear, unambigious express words
- Needs to be express enactment

Supreme court accepted that the Bill of Rights could not be impliedly repealed

Examples of constitutional statutes are Magna Carta, Bill of Rights, Act of Union, the Form Act, Scotland Act, Government of Wales Act.

Question 20

Can a Parliament bind its succesors as to the procedure to be adopted when repealing legislation enacted by that earlier parliament?

The Manner and form debate / entrenchment theory?

E.g. including a 2/3 majority in a referendum is required to repeal or change an Act of Parliament- can this be changed? Can they change the ‘manner and form’ of the legislation enacted by earlier parliament.

Answer 20

Yes, it does bind successors
New South Wales v Threthowan case
- The legislature of New South Wales passed an Act holding that their upper house and that it could not be abolished without the approval of a referendum.
- A UK Act of Parliament gave full powers to the legislature to make laws if they had been passed in the ‘manner and form’ laid down by the law in force in that country. On that basis, the Privy Council decided that the legislature of NSW must respect the procedure laid down in its own earlier legislation and, as they had not held the referendum, the new law was invalid

No, it doesn’t bind successors
* It is unlikely that the above ruling would apply to the UK as the legislature of the New South Wales is not a sovreign body - it was given it’s powers by a UK Act of Parliament
* The UK Parliament is ‘truly supreme’ and therefore that would not be binding on the UK court
* Fundamental principle - no Parliament can bind its successors

Some Academics think that Parliament was fixed following constiutional restructuring following the Glorious Revolution in 1688 and the enactment of the Bill of Rights.
They argue that the meaning of Parliament cannot be altered by an ordinary act of parliament and that no parliament has the power to redefine this meaning or place limitations on the way in which a future Parliament may act.

Question 21

What are Henry VIII powers?

How can this undermine parliamentary sov?

Answer 21

Legislation that has been introduced by Govt will often contain Henry VIII powers.
- Power’s allow the relevant government ministesr to amend or repeal the relevant statute and make changes to the Act of Parliament by delegated legislation.

Can undermine parliamentary sovreignty of Parliament as it enables ministers, rather than Parliament to make change to the law

Question 22

How can Rule of Law undermine parliamentary sov?

Answer 22

• Not absolute and could be limited by courts in extreme circumstances
• Judges could therefore qualify the principle in exceptional circumstances to prevent Parliament from legislating in a manner that was contrary to the rule of law
• E.g. if Parlaiment enacted legislation to abolish judicial review of executive action, or if it abolished the role of the courts - courts might strike down the legislation

It is an academic debate, some say Parliament can do whatever it wants, make or unmake any law it wants (which is true). But there might be a very very exceptional circumstances where the judges might intervene as the rule of law is important

Question 23

How does the EU undermine Parliamentary Sovreignty?

Answer 23

• When the UK joined the European Communities in 1973, the European Communities Act 1972 stated that EU law become part of the law of the UK that should be enforced in the UK Courts
• Section 2(4) required that the UK Acts of Parliament should be interpreted in accordance with EU law

However, The European Union Withdrawal Act 2018, expressly repealed the ECA 1972. The EU can no longer legislate for the UK confirming that Parliament is sovreign

R v Secretary of State for Transport ex parte
- House of Lords decided that sovreignty had been loaned to the EU. While the 1972 Act was in force, UK Acts should be interpreted so as not to conflict with EU law
- If that could not be done, EU law would override the UK Act

Thobrun v Sunderland City Council
- The European Communities Act 1972 could only be expressly repealed

Question 24

What is the impact of the Human Rights Act 1998 on parliamentary sovreignty?

Answer 24

• Rights protected by the European Convention on Human Rights could be enforced in UK courts
• Nothig to protect this Act from being repealed or amended - but s.3 requires that Acts of Parliament must be ‘read and given effect’ in a way that is compatiable with the Convention rights.

Question 25

What are the 4 types of EU legislation?

Answer 25

1) Regulations - issued by the EU are directly applicable and automatically binding in all member states without the ned for any further legislation in the member states
2) Directives - set our objectives to be achieved and oblige member states to pass domestic legislation themselves to implement those objectives. Directives set out a date by which member states must implement them
3) Decisions - directly binding in the same way as regulations, but only on those to whom they are addressed, which may be member states, companies or individuals
4) Recommendations and opinions - are not binding.

Question 26

What sources of EU law are binding?

In EU courts they do not have case law like we do in the UK but the judgements made in the European Court of Justice - EU’s highest court has become a significant source of EU law.

Answer 26

1) Judgements of the ECJ are binding on the national courts of member states, and so national courts have applied the ECJ’s case law when dealing with questions of EU law that have arisen in cases that they have been hearing. It is through ECJ’s case law that principles such as direct effect and state liability have been developed

2) General principles of EU law (which were created by the ECJ and are now found in the charter of fundamental rights)
- Proportionality - measures taken by union institutions and member states when implementing EU law should be appropriate and necessary for achieving a given aim, and should not go further than is necessary to achieve that aim
- Equality - when dealing with a person in similar situations, union instiutions and member states should not treat them differently, unless there is an objective justification for the difference in treatment
Fundamental rights - internally recognised human rights
Legitimate expectaion / legal certainty - in the absence of overriding concerns of public interest, persons are entitled to assume that EU law will not be suddenly changed to their disadvantage

Note. ECJ is not bound by its previous decisions, it adheres to the principle of legal certainty and will not lightly depart from previous decisions. Even in the absence of a formal system of precedent, the ECJ’s case law has become a prominent feature of EU law.

Question 27

What is the key principle that gave supremacy to EU law?

Think of my fav liverpool player and Belgian airline case

Answer 27

Vertical Direct Effect (Van Gend en Loos case)

• CJEU insists that EU law is observed and interpreted in the same way as every member state and created the principle of direct effect.
• Therefore claimants can enforce rights created by EU law in national courts directly
• Vertical direct effect - EU law being enforced against the state or state body (in this case Dutch courts)

Horizontal Direct Effect (Sabena Airlines case)
- EU law may also be enforced against private bodies and organisations.
- Case of Sabena - Belgian airline paid its female cabin crew less than its male cabin crew. Although this was permissible under Belgian law, this breached what is now Article 157 TFEU - provides that men and women should have equal pay for equal work or work of equal value.
- ECJ held that individuals could rely on the direct effect of Article 157 against private bodies, e.g. airlines before their national courts, and was able to claim equal pay.

• The EU created the European Court of Justice (ECJ) now known as the Court of Justice of the European Union CJEU. It created it to interpret EU law and enforce it throughout the EU.
• The European Commission can take a member state to the court and member states can take eachother to the court.
• Ordinary citizens cannot apply directly to the CJEU - they must start their case in the court of the member state and await referral to the CJEU
• CJEU insists that EU law is observed and interpreted in the same way as every member state and created the principle of direct effect

Question 28

What type of EU law is capable of vertical and horizontal direct effect?

Answer 28

• Regulations
• Decisions

Question 29

What type of EU law can only have vertical direct effect?

Remember Vertical - only enforce against the state or emanations of the state
Think of Van D(irectives) - Vertical - Holland (State) or emanations of state

Answer 29

Directives.

Further, CJEU has developed conditions for vertical direct effect conditions for a directive
1) Date for the implementation of the directive has passed
2) the terms of the directives are clear, precise and unconditional
3) The case is being brought the state, a public body (an emanation of state)

Directives cannot be enforced against non state, private defendant.

Remember these instruct member states to make legal changes by a specified date, but leave it up to the state on how best to do it within its own legal system. Some states fail to implement directives or do so incorrectly which is why they developed vertical direct effect to directly apply to the state once the above conditions haven’t been followed

Question 30

Did the UK sign up to the supremacy of EU law just by joining the EU?

Did it have an effect on Parliamentary Sov straight away?

Answer 30

No. Just because the UK Government accepts treaty obligations on behalf of the UK does not in itself have any effect on parliamentary sovereignty.
- Parliament has to include the Treaty in UK law and authorise such a change by legislation
- It is only when it is enacted into an Act of Parliament is it binding.
- Enacted the The ECA 1972

Principle Provisions of the ECA 1972:
Section 2(1)- Made existing EU law part of UK law and permitted the EU to legislate for the UK. There was no need for the UK to pass legislation to implement new EU laws
Section 2(2): This enabled the UK Government to make delegated legislation to implement EU law (e.g. directives) within the UK
Section 2(4): - This required all UK legislation whenever to be adopted (primary and secondary) to ‘be construed and have effect’ subject to provisions of EU law
Section 3(1)- This requires UK courts to apply EU law in accordance with the principles laid down by the Court of Justice of the European Union (CJEU) i.e. decisions of the CJEU were in effect binding.

Therefore, ECA 1972 required UK courts to apply EU law in the cases they were hearing. To ensure that the courts of the member states interpreted EU law correctly. Article 267 TFEU also enables and sometimes requires national courts to refer questions of interpretation of EU law to the Court of Justice (highest of the two courts).
During the UK’s membership of the UK and the transition period, UK courts often referred questions of EU law to the Court of Justice and then applied the EU’s interpretation to the facts of the case they were hearing.

The court of Justice developed many key principles of EU law such as durect effect through Article 267 references from national courts.

Question 31

How did the judges interpret UK law following EJA 1972?

Answer 31

‘Any enactment passed or to be passed, shall be construed and have effect subject to foregoing provisions of this section’

Judges
* interpret UK Acts of Parliament so that they did not conflict with EU law
* Courts accepted the direct effect of regulations, articles, and directives and learnt to interpret UK legislation so that it confromed to EU law

Question 32

What effect did s2(4) have on parliamentary sovreignty?

S2(4) This required all UK legislation whenever to be adopted (primary and
secondary) to ‘be construed and have effect’ subject to provisions of EU law

Answer 32

• Rule of construction - providing that the courts had to read UK legislation in such a way as to make it compliant with EU law
• If it is not possible for the court to read UK legislation in such a way, the courts had to give precedence to directly effective EU law and set aside inconsistent national legislation
• Made it clear that EU law had sovreignty over UK Acts of Parliament
• UK court must ‘override any rule of law found to be in conflict with any directly enforceable rule of community law’

In EU Law this is known as the ‘doctirne of indirect effect’

Question 33

Give an example of when the UK courts departed from UK legislation and accepted EU law?

Answer 33

Pickstone v Freemans case
Facts: Female employees worked as ‘warehouse operatives’ but were paid less than their male colleagues who were described as ‘warehouse checker operative’. However, their work was of equal value to Freemans as their male colleague’s work.
Therefore, they argued, the true reason for the difference in pay was discrimination which breached Directive 75/117 - Equal Pay Directive. - The UK Regulations (supposdely implemented this directive) only provided for equal pay for the same work done by men and women, not for work of equal value.

HELD
- House of Lords held that for the purpose of the UK regulations had been to give effect to EU law

A strict reading of them failed to achieve this and so the House of Lords adopted a ‘purposive’ interpretation in which it departed from this strict literal interpertation of the UK regulations and implied words into the regulations in order to comply with EU law

Essentially, UK courts interpreted UK law to conform to EU law and used a purposive approach rather than strict literal interpertation. If this was not possible UK courts allowed EU law to override UK Law.

This has since changed though as the ECA 1972 has been repealed.

Question 34

Can implied repeal prevent directly effective EU law prevailing over Acts of Parlaiment?

Answer 34

No. The doctrine of implied repeal did not prevent directlye effective EU law prevailing over Acts of Parliament
- Where a conflict existed, the provisions of effective EU law took precedence by virtue of s(4) which had been acknowledged to be a constitutional statute that could not be subject to implied repeal.

Section 18 of the European Union Act 2011 confirmed this approach by clarifying that any ‘limits’ on sovereignty were imposed only at Parliament’s own behest.

Question 35

What is the Francovich principle?

What effect did it have against parliamentary sovreignty?

Answer 35

• CJEU ordered a state to pay damages to the individuals that had injured by its failure to implement a directive.
• This was extended to serious breached of other types of EU law, such as regulations and articles, that injure individuals.
• If a state commits a serious breach of EU law that causes damage to an individual, the state must compensate that individual

Effect on Parliamentary Sovreignty
- UK Government might have been liable to pay damages arising from Parliament’s failure to pass legislation giving effect to EU law, or the defective implementation of EU law in an Act of Parliament.

This no longer applies after implementation day - 31 December 2020.

Question 36

How did Parliament get rid of ECA 1972?

Remember Parliament could not impliedly repeal EU law, legally there was nothing to prevent Parliament passing an Act which expressly repealed the ECA 1972 or any provision of EU law

Answer 36

Following 2016 Referendum when the UK electorate voted to leave the EU, Parliament enacted the EUWA 2018 which repealed the ECA 1972.

However, the European Union (Withdrawal Agreement) Act 2020 did keep in force the provisions set out in ss2 and 3 of the ECA providing supremacy of EU law until the end transition period.

This was so if there was a conflict between pre-brexit domestic law and pre-brexit directly effective EU law, then the EU law took priority.

Question 37

When was the exit day of Brexit?

Answer 37

31 January 2020. The day when the UK ceased to be a member of the EU

Under S1 of the EU (Withdrawal) Act 2018 - the ECA was repealed on exit day, but continued to have effect until the implementation completion day. By repealing the ECA 1972, Parliament has withdrawn its permission for the EU to make laws for the UK. No new Laws from the EU will be accdepted

Question 38

When was the implentation period completion day?

Answer 38

31 December 2020, when EU law ceased to have effect in the UK.

Question 39

What EU still applies after exit day?

Answer 39

Principle of Supremacy of EU law does not apply to any enactment passed after exit day 31 January 2020.

However
- Existing EU law that is retained, the principle of supremacy can continue to apply where retained EU law is not compatible with domestic law made before exit day
- if retained EU law conflicts with UK law, made before exit day, retained EU law must be applied in preference to the UK law.

Question 40

What is the impact of REULA 2023?

Answer 40

REULA 2023 has abolished the categories of retained EU law under rights. For example, suppose an Act of Parliament passed in 2010 conflicted with an earlier piece of retained EU law such as an EU regulation adopted in 2005. Under the doctrine of implied repeal, the 2010 Act would have prevailed over the regulation, but as retained EU law the EU regulation prevailed over the 2010 Act.

However, REULA 2023 changed the status of retained EU law, and since 1 January 2024 the 2010 Act will prevail over all EU regulations whenever adopted. However, UK legislation enacted after the end of the transition period always prevailed over retained EU law.

Question 41

How was the ECHR incorporated into domestic law?

Human Rights Act 1998

Answer 41

ECHR was written in 1950.
- Protects rights such as right to life, right to not be tortured, right to a fair trial, right to a private and family right, freedom of religion, expression and association.

• It was only until the enactment of the Human Rights Act that individual citizens could bring a claim for breach of their rights under the ECHR before our domest courts.
• Prior to this, domestic courts would not consider a legal claim based on an alleged breach of an individual’s human rights. Individuals could only enforce their ECHR rights by taking their case to the ECtHR in Strasbourg after exhausting all domestic remedies.

Human Rights Act 1998
1) Lists articles of the Convention incorporated into UK law
2) Domestic courts must take into account judgements of the ECHR, they are not bound to follow such judgements (usually do follow them in practice)
3) Primary and Secondary legislation must be interpreted in accordance with convention rights ‘so far as it is possible to do so’ This applies to legislation passed both before and after the coming into force of the HRA 1998.
4) Where a court cannot interpret legislation in a manner that makes the legislation compliant with convention rights, the court may make a declaration of incompatibility**. Such a declaration does not invalidate or effect the operation of the offending act.
5) **Where a declaration of incompatbility is made **- ‘fast track pcoedure’ that the **Government may use to amend the relevant legislation. **If there are compelling reasons to do so, alternatively it can submit a bill to Parlaiment for this purpose. The government is not, however, obliged to amend the offending legislation and if it decides not to, an aggrieved litigant would have to take their case to the ECtHR to obtain redress.
6) A minister who introduces a government bill into Parliament, must before the second reading of the bill - either make a statement that the provisions in the bill are comptible with convetion rights or alternatively make a statement to the effect - although it is unable to make a statement of compatability/

Apparently, the drafting of the HRA 1998 is ‘weak’ and has been specifically designed to preseve the supremacy of Parliament.

Question 42

What is the impact of s.3 of the Human Rights Act on Parliamentary Sovreignty?

Think what the courts interpretation is of UK Law.

Section 3. Primary and secondary legislation must be interpreted in accordance with
Convention rights ‘so far as it is possible to do so’. This applies to legislation passed both before and after the coming into force of the HRA 1998.

Answer 42

1) Courts adopted an interpretation which may appear linguistically strained. S3 imposed a duty on courts to ‘strive to find a possible interpretation compatiable with convention rights’
2) Use purposive approach - e.g. same sex couples should be included in ‘surviving spouse’ under legislation

NOTE. The only occaison on which the courts will be unable to use their interpretative powers under s3 to ensure that a statute is compatible with convention rights is when to do so would be expressly contrary to wording of the statute.

Question 43

When has Parliament disapplied s3 of the Human Rights Act?

English Channel & New UK Asylum Process

Section 3. Primary and secondary legislation must be interpreted in accordance with
Convention rights ‘so far as it is possible to do so’. This applies to legislation passed both before and after the coming into force of the HRA 1998.

Answer 43

Illegal Migration Act 2023 - aims to deal with challenges facing the UK’s asylum process, in particular small boat crossings across the English Channel from France.

The Act provides that individuals who come to the UK illegally via a safe country will not be able to remain in the country
- They will be detained and then promptly removed either to their home country or a safe third country such as Rwanda
- They will not have any asylum or human rights claims considered here
- If it is not possible to return them to their home country, their claim will be considered by a safe third country, such as Rwanda
- Further, the Act imposes on the Home Secretary the duty to make arrangements for the removal of anyone who arrives in the UK illegally after passing through a safe country.

Act disapplies s3 of the Human Rights Act
- Courts and public authorities will not be required to interpret provisions of the Act itself, nor secondary legislation enacted pursuant to its provisions compatibly with conventino rights

Aim of disapplying s3 is to ensure that courts interpret and apply specific legislative provisions in the way that Parliament intends, rather than adopting a strained interprtation which departs from the parliamentary intention. In such cases higher courts will still have the power to issue declarations of incompatability under s4.

Question 45

What is the declaration of incompatability - S4 Human Rights Act 1998?

Answer 45

Where the courts are unable to interpret domestic legislation in such a way as to make it compatible with Convention rights - declaration of incompatability may be made.

Legal statement that
- in the opinion of the court, the relevant legislation contravenes the ECHR
- the declaration does not invalidate the legislation and neither the government nor parliament is under any legal obligation to amend it
- However, when the courts have made a declaration of incompatibility there will frequently be considerable political pressure on the Government to amend or repeal the relevant legislation.

Example case
SoS (2002) - This cas concerened how long adults convicted of murder should spend in prison for purposes of punishment. At the time of the case, the final decision on this was taken by the Home Secretary in accordance with s29 of the Crime (Sentences) Act 1997
- Was alleged that the s29 provision was inconsistent with Article 6 of the ECHR - imposition of a setence is part of the trial process and should be determined by an independent and impartial tribunal, as a member of the executive, the SoS was not an independent and impartial tribunal and was not possible to interpret s29 of the Crime Sentences Act in such a way as to make it compatible with the convention rights because such an interpretation would have been contrary to the wording of the section.
- HoL accordingly made a declaration of incompatability - government subsequently introduced legislation to abolish SoS powers to deter,ine the length of the sentence in such cases.

When has Parlaiment refused to amend incompatible legislation? Hirst v UK
- Blanket ban on prisoners exercising the right to vote was contrary to Article 3 of ECHR (right to free elections)
- Scottish Registration Appeal Court issued a declaration of incompatibility in relation to the ban, but the UK Government and Parliament remain strongly opposed to amending the incompatible UK legislation and any amendments to UK legislation seem highly unlikely.
- Instead compromise was reached, government allowing prisoners who are released on temporary licence or on home detention curfew to vote (did not require a change in legislation)

Question 46

Can Parliament repeal the HRA 1998?

Will they do this?

Answer 46

• 1. Legally, nothing to prevent Parliament amending or expressly repealing the HRA 1998
• Unlikely for political reasons
• In Dec 2020 there was an independent review to examine the HRA 1998 and whether any changes were required - only modest reccomendations for change were required.
• In the Queens Speech of May 2022 - proposals for a British Bill of RIghts to replace HRA 1998 - proposals went considerably beyond the indepdent review and according to government these were aimed to ‘restore the balance of power between the legislature and the courts and end abuse of the human rights framework to restore some common sense to the justice system’
• Subsequently - the Government submitted to Parliament Bill of RIghts Bill 2022 - which would have repealed and replaced HRA 1998:
  Which would have
  *incorporated the same Convention rights as the HRA 1998;
  *required public authorities to act compatibly with Convention rights;
  *given higher courts the power to issue declarations of incompatibility etc.

In June 2023 - Government announced that it was not proceeding with the bill.

Question 47

What is Parliamentary Privilege?

Part of the law and custom of parliament

Answer 47

Grants legal immunities to members of both Houses of Parliament so that they can perform their duties free forom outside interference.

House of Common privileges:
* Freedom of speech
* Right to control its own composition and procedures

The Committee of Privileges, a Commons select committee, is responsible for considering specific matters relating to privileges referred to it by the House.

Question 48

What is the freedom of speech parliamentary privilege?

Claimed in Article 9 of the Bill of RIghts

Answer 48

• Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside of Parliament
• Enable parliamentarians to carry out their functions without fear of civil proceedings or criminal prosecutions

Question 49

What is absolute privilege?

Answer 49

• MPs and Lords have immunity from legal proceedings (only covers proceedings in Parliament e.g. debates, questions in Parliament and committee proceedings)
• MP is protected from being sued for defamation, breach of the official secrets act and from contempt of court for disobeying a court order not to name a party in a case.
• Applies when there is a close connection between speech and parliamentary proceedings - e.g. PMQs
• E.g. Lord Triesman gave evidence to a commons select committe and accused FIFA of corruption. The committee asked him to repeat the allegations to FIFA, which he did. He was protected by absolute privilege, because of the very strong public interest in investigating the allegations

*
What is said or written is not liable in defamation, even if the statement is untrue or malicious*

Absolute Privilege DOES NOT APPLY
- If is is not a proceeding in Parlaiment.
- If an MP repeats the same allegations outside Parliament, they are not protected
- A member of the public posted a defamatory letter to the houses of Parliament
- An MP passed a letter from a constitutent to the relevant minister. The House of Commons rules that this was not a proceeding in Parliament.

Question 50

What is qualified privilege?

NOTE. absolute privilege and qualified privilege are not the same. You can have qualified privilege but not absolute privilege..

Answer 50

• If an MP is sued for defamation, they might be able to claim for qualified privilege that what they said was in the public interest - meaning that they are protected from liability, unless the claimant can prove that they were motivated by ‘malice’. ‘Malice requires the claimant to prove that the defendant did not believe what they said or wrote was true or were reckless as to whether or not it was

Examples of when it applied
- an MP passed on a letter to a constituent, complaining about a firm of solicitors to the Lord Chancellor
- A constituent wrote a letter to his MP complaining about a police officer and a magistrates

What is said or written is not liable in defamation, if there was a public interest in making the statement and the statement was not malicious.

Question 51

What is the importance of the Pepper v Hart case?

A further case from the principle of Hansard

Think of how the court may interpret an act of parlaiment that is ambigious or obsecure.

Answer 51

• Where an Act of Parliament is ambigious or obsecure, the courts may take into account statements made in Parliament by ministers or other promoters of a bill in construing that legislation
• Previously, using Hansard in this way would have been regarded as a breach of parliamentary privilege

Question 52

Explain the ‘publication of parliamentary proceedings’ and parliamentary privilege?

HANSARD

Answer 52

Absolute privilege
* Parliament publishes an official record of its proceedings, official paprts known as Hansard
* Courts did not consider that these publications had any legal protection from libel, so Parliament enacted the Parliamentary Papers Act 1840 awarding official publication absolute privilege

Qualified Privilege
* Newspapers and other media are protected by qualified privilege if they publish a fair and accurate report of the parliamentary proceedings
* Report does not have to be word for word, it can be a selective summary provided that it appears fair and accurate to the reasonable reading and avoids gratuitous and irrelevant comments

Question 53

What is meant by Parliament has the right to control its own composition and procedures ‘exclusive cognisance’?

Answer 53

• Parliament has sole control over all aspects of its own affairs
• Courts will not question the validity of an Act on the basis that the correct proceedures were not followed
• Courts are not allowed to investigate whether Parliament has properly considered an EU directive when passing an Act
• Courts can look at a public document such as the Register of Members Interests and will consult the record of a Parliamentary debate to help the court decide the meaning of a statute (Pepper v Hart)

Parliament has the right to regulate its own affairs, what procedures it should adopt etc.
- they can suspend MPs for misconduct
- right to punish anyone, inclduing non-members for contempt of Parliament - any conduct that might substantially prevent or hinder the work of either house (in theory can even imprison an individual for any contempt of parliament, but more usually offenders are given remands)

Question 54

What is retained EU law under the European Union (Withdrawal Agreement) Act 2018?

These still apply to the UK even after Brexit

Answer 54

1) EU-derived domestic legislation
- Under s2 of the EUWA, all Acts of Parliament remains (which were enacted to implement EU obligations).
- All secondary legislation made to implement EU law under s2(2) of ECA 1972.
- Any other UK legislation enacted to implement EU law

2) Direct EU legislation (Regulations and Decisions)
- Under s3 of EUWA, direct EU legislation, meaning EU regulations, decisions directed at the UK and EU tertiary legislation (explanations of EU legislation) which were in force immediately before exit day, become part of domestic law.

3) Rights etc. existing under s2(1) of the ECA 1972
s3 of EUWA, any rights, powers, liabilities, organisations, restrictions, remedies and procedures that were available in the UK under the ECA 1972, before exit day are also retained EU law. This covers articles, directives that have been held by the courts to be directly effective before exit day. However, it is made clear that the right to damages under Francovich principle ceased to apply on or after implementation completion day.

NOTE- Impact of REULA 2023.