Devolution and Parliamentary Privilege

Question 1

Is the following statement TRUE or FALSE?

The United Kingdom is a federal state

True

False

Answer 1

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The correct answer was “false” - the UK is a unitary state, albeit with some powers devolved to Scotland, Wales and Northern Ireland.

Question 2

In which year were the Acts of Parliament granting Scotland and Wales devolution passed?

1992

1997

1998

2001

Answer 2

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The correct answer is C, 1998

Question 3

The Supreme Court decides disputes about whether legislation passed by a devolved legislature is outside that devolved legislature’s competence. Which two of the following options are legitimate ways of referring such a dispute to the Supreme Court?

Direct application by a citizen of the devolved state in question.

Referral by a devolved or UK law officer, such as the Attorney General for England & Wales.

Referral by HM the Queen.

Appeal from certain higher courts in England & Wales, Scotland and Northern Ireland.

Answer 3

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The correct answers were B and D. Neither an individual citizen, nor indeed the Queen, can refer disputes about legislative competence to the Supreme Court. The law officers of the home nations can refer disputes on legislative competence to the Supreme Court, and appeals can be made from certain courts up to the Supreme Court on this issue.

Question 4

How many members of the Northern Ireland Assembly are there?

650

100

92

90

Answer 4

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Well done, the correct answer is d), 90

Question 5

s the following statement TRUE or FALSE?

“Parliamentary privilege” means that parliament can prevent a criminal investigation into an MP or Lord if it chooses to do so.

True

False

Answer 5

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The correct answer is False. The principle of exclusive cognisance, part of Parliamentary privilege, grants parliament extensive powers to govern its own affairs. It is ultimately for the courts, however, to decide the extent of parliamentary privilege, in the absence of an Act of Parliament codifying Parliamentary privilege.

Question 6

Which of the following are areas outside the legislative competence of the Scottish Parliament? Please select all correct answers from the list below.

Education in Scotland

Legislating for a territory other than Scotland

Modification of certain provisions of the Acts of Union

A Royal Air Force base in Scotland

Answer 6

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The correct answers were B, C and D. The Scotland Act 1998 provides that the Scottish Parliament cannot legislate for a territory other than Scotland (answer B), it cannot change certain provisions of the Acts of Union (answer C), and it cannot legislate in respect of “reserved matters”, ie matters reserved to Westminster (which include defence of the realm, answer D). Education within Scotland is within the legislative competence of the Scottish Parliament.

Question 7

Which combination of the following represent aspects of Parliamentary privilege?

i) Freedom of speech
ii) Freedom of religion
iii) Freedom from arrest for criminal offences
iv) Freedom to regulate its own proceedings

i), ii), iii) and iv)

i), iii) and iv)

i) and iv)

i) and iii)

Answer 7

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Well done, C is the correct answer.

The two main aspects of Parliamentary privilege are freedom of speech and exclusive cognisance (freedom to regulate its own proceedings). Parliamentary privilege also covers freedom from arrest for civil offences but not for criminal offences.

Question 8

Robert has been elected as an MP. MP’s are required to take an oath of allegiance before they can take their seat. Robert has refused to do so. The House of Commons resolved that he should be excluded. Robert applies to the court for an injunction to prevent the House from excluding him.

Which ONE of the following is correct?

The court will likely grant the injunction due to their powers of judicial review.

The court will dismiss the application for an injunction on the basis that it has no power to interfere with the internal proceedings of Parliament.

The court will grant the application for an injunction on the basis of parliamentary sovereignty.

The court will grant the application for an injunction based on human rights grounds.

Answer 8

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The correct answer is B. The court has no power/jurisdiction to interfere with the internal proceedings of Parliament as per the case of Bradlaugh v Gossett (1884).

Question 9

Which ONE of the following scenarios is the most likely to not be covered by Parliamentary privilege?

An MP breaching a court injunction which forbids details of a court case being made public.

An MP makes a defamatory statement during a debate.

An MP posts a defamatory tweet while sitting in a debate which has nothing to do with the matter under debate.

An MP makes a defamatory statement in a meeting of a committee appointed by Parliament.

Answer 9

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The correct answer is C.

If the MP tweets about a topic which is unrelated to the subject matter being debated, then it is highly unlikely that the post will be protected by Parliamentary privilege.

There have been several recent cases where MPs have named individuals in Parliament where there has been a court injunction in place forbidding details of the case from being made public, such as in 2018 when Lord Hain named Sir Phillip Green in the House of Lords as the business leader caught up in allegations of bullying and sexual harassment. No action was taken against Lord Hain as he was covered by Parliamentary privilege. Answer A is therefore incorrect.

Privilege covers ‘proceedings in Parliament’, therefore statements made during a debate or in a committee meeting are likely to be covered by Parliamentary privilege. Answers B and D are therefore incorrect.

Question 10

Is the following statement TRUE or FALSE?

Due to the doctrine of Parliamentary Supremacy, Westminster can legislate over any of the devolved areas, and in respect of any matter it pleases.

True

False

Answer 10

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Well done - you remembered your work from Unit 5, the correct answer is True. Parliament in Westminster is supreme, so can in principle pass an Act of Parliament over any of the devolved areas. It is unlikely, however, that Westminster would do so, at least not without first seeking the consent of the devolved legislature it is seeking to overrule, following the Sewel Convention.

Question 11

Within the unwritten constitution of the UK, constitutional conventions are used to regulate the behaviour of those who hold power. In the Parliamentary process, there is a constitutional convention called the Sewel Convention.

Which of the following statements offers the best description of the Sewel Convention?

The Sewel Convention requires the House of Commons to pass legislation which is part of the manifesto of the largest political party in the Commons.

The Sewel Convention requires the House of Lords to pass all financial bills emanating from the House of Commons.

The Sewel Convention requires the leader of the largest party in the House of Commons to become Prime Minister.

The Sewel Convention requires Parliament to obtain the consent of the devolved countries where legislation impacts on devolved legislation.

The Sewel Convention requires the House of Lords should pass a bill which gives effect to a major part of the government’s manifesto.

Answer 11

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Option D is correct. The Sewel Convention indicates that Parliament should not usually pass legislation relating to devolved matters without the consent of the devolved legislatures.

Option A is wrong because the government does not need to use a convention such as this in the House of Commons because it should have the majority it needs to pass the legislation it wishes to pass.

Option B is wrong because the Sewel Convention only refers to matters which impact on the devolved powers of devolved legislatures and does not only relate to financial bills.

Option C is wrong because although there is a convention that says that the leader of the largest party in the House of Commons becomes Prime Minister, it is not called the Sewel Convention.

Option E is wrong because, although there is a convention which requires the House of Lords to allow the government to pass legislation which is based on promises made to the electorate in an election, it is called the Salisbury Convention.

Question 12

UK Parliament has passed legislation extending to Scotland, which does not pertain to a reserved matter. The Scottish Parliament has not given its consent.

Which of the following describes whether the Act is enforceable in Scotland?

Not enforceable, because under the Sewel Convention, Westminster must not legislate on devolved matters.

Not enforceable, because Westminster cannot legislate on matters that have not been reserved to the UK Parliament.

Not enforceable, because the Scottish Parliament has not given its consent through Legislative Consent Motions (LCMs)

Enforceable, because the Scottish Parliament has not formally vetoed the legislation.

Enforceable, because the UK Parliament has power to pass Acts covering the whole of the UK.

Answer 12

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E is the correct answer. The UK Parliament remains sovereign and it can pass Acts for the whole of the UK even if it does not receive consent from the devolved legislature.

A and B are wrong as (see above) the UK Parliament is able to legislate on any matter.

C is wrong as although the Sewel Convention provides that the UK Parliament will not normally legislate on a devolved matter without the devolved legislature’s consent, it has the competence to do as the Sewel Convention is not legally enforceable.

D is incorrect as the Scottish Parliament has no power to veto Acts of the UK parliament.

Question 13

The minister in charge of a bill being presented to the Scottish Parliament has asked for advice whether they can make a statement that the bill is within the Parliament’s legislative competence. The minister’s main concern is that the bill amends an Act of the UK Parliament.

Can the minister make a statement that the bill is within the Parliament’s legislative competence?

No, because the bill amends an Act of the UK Parliament which is a reserved matter.

No, because amending Acts of the UK Parliament is explicitly excluded from the Scottish Parliament’s legislative competence.

No, because secondary legislation cannot be used to amend primary legislation.

Yes, because the Scottish Parliament has full power to amend Acts of the UK Parliament as Acts of the Scottish Parliament are primary legislation.

Yes, because the Scottish Parliament has power to amend Acts of the UK Parliament unless the subject-matter of the bill is outside its legislative competence.

Answer 13

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Option E is correct. The Scottish Parliament has power to amend Acts of the UK Parliament unless the subject-matter of the bill is outside the legislative competence of the Scottish Parliament.

Option A is wrong as Acts of the UK Parliament are not in themselves reserved matters. The subject-matter of some Acts are reserved matters, but the Acts concerned must be specifically listed in the devolution legislation. Option B is wrong. Although there are some protected statutes such as the Human Rights Act 1998 which the Scottish Parliament cannot amend, Acts of the UK Parliament are not in general protected.

Option C is wrong as Acts of the Scottish Parliament are primary legislation. Although the Scottish Parliament is not sovereign in the way that the UK Parliament is, its Acts are still primary legislation. In any event, it is possible for secondary legislation to amend primary legislation. See for example Henry VIII powers.

Option D is wrong as, unlike the UK Parliament, there are limits on the Scottish Parliament’s legislative competence.

Question 14

The UK Parliament has passed an Act (fictitious) creating a new criminal offence in England and Wales. The criminal offence relates to a matter that has not been reserved to the UK Parliament. The Senedd Cymru has not passed a legislative consent motion in relation to the Act as it opposed the legislation. A man has been prosecuted for committing the new criminal offence in Wales. The man claims that he has not committed a criminal offence as the Act creating it is unenforceable in Wales.

Will the courts uphold the man’s claim?

Yes, because the UK Parliament does not have the competence to legislate on devolved matters.

Yes, because the Senedd Cymru has not passed a legislative consent motion.

No, because the UK Parliament has power to pass Acts covering the whole of the UK even if the devolved legislature opposes the legislation.

No, because the Senedd Cymru lacks competence regarding criminal offences even in relation to devolved matters.

No, because the Senedd Cymru has not formally vetoed the application of the Act in Wales.

Answer 14

Feedback
Option C is correct. The Westminster Parliament remains sovereign notwithstanding devolution. It can therefore can pass Acts for the whole of the UK pertaining to devolved matters even in the face of opposition from the devolved legislatures. Although the Sewel Convention provides that the UK Parliament will not normally legislate on a devolved matter without the devolved legislature’s consent, it has the competence to do as the Sewel Convention is not legally enforceable. Accordingly, options A and B are both wrong.

Options D and E are wrong as they give incorrect reasons for why the courts will reject the man’s claim. Contrary to what option D states, the Senedd Cymru does have the power to create new offences relating to devolved matters. Option E incorrectly suggests that the Senedd Cymru has a veto over Acts of the UK parliament; as explained above, the UK parliament is sovereign.

Question 15

The Scottish Parliament has passed an Act of the Scottish Parliament affecting university education. The Scotland Act 1998 (as amended) does not list education as a devolved matter. A university affected by the Act has challenged it by way of judicial review on the grounds that it is outside the Scottish Parliament’s legislative competence and irrational.

Which of the following best describes the approach the courts are likely to take to the challenge?

The courts will reject the challenge unless education is listed in the 1998 Act as a reserved matter.

The courts will reject the challenge unless education is listed in the 1998 Act as a reserved matter.

The courts will reject the challenge as only the law officers of the UK government or devolved governments have the standing to challenge Acts of the devolved legislatures.

The courts will uphold the challenge if they consider that the Act of the Scottish Parliament is irrational.

The courts will uphold the challenge as the 1998 Act has not expressly devolved education to the Scottish Parliament.

Answer 15

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Option A is correct. The reserved powers model applies to the Scottish Parliament. This means that the Scottish Parliament has the power to pass legislation on all matters which are not explicitly reserved to the Westminster Parliament. (In fact, education is not a reserved matter so the Act will be within the Scottish Parliament’s legislative competence.) Option B is wrong because the Enrolled Act Rule only applies to Acts of the UK Parliament which is a sovereign legislature.

Option C is wrong as individuals (including universities) do have the standing to challenge Acts of the devolved legislatures.

Option D is wrong as the Supreme Court has stated that Acts of the devolved legislatures cannot be challenged on common law grounds such as irrationality.

Option E is wrong, because under the reserved powers model devolved matters are all those matters except for those that are reserved.

Question 16

An MP makes a speech in a parliamentary debate in which she defames a well-known celebrity. The statement is clearly untrue.

Which of the following best describes the whether the celebrity can sue the MP?

The celebrity cannot unless the Speaker of the House of Commons certifies that he may proceed.

The celebrity cannot as statements in parliamentary proceedings are absolutely privileged.

The celebrity can because parliamentary privilege does not protect statements that are clearly untrue.

The celebrity can because the MP has abused parliamentary privilege by making an untrue statement.

The celebrity can because the courts have decided that defamation proceedings do not interfere with Parliament’s core business.

Answer 16

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Option B is correct. MPs are immune from civil and criminal proceedings regarding anything they say in parliamentary proceedings. This is based on article 9 of the Bill of Rights– freedom of speech.

Option A is wrong because the privilege is absolute and the Speaker cannot waive it. While there are concerns that MPs may abuse parliamentary privilege by making defamatory statements, the courts have no jurisdiction even if they do. Options C and D are therefore wrong.

Option E is wrong, as the reasoning in it relates to the criminal prosecution of MPs for false accounting in relation to expenses claims.

Question 17

A woman claims that she has been sexually harassed by a rich and famous businessman. She reached a settlement with the businessman and signed a non-disclosure agreement. She now plans to speak out about the harassment. The businessman commences court proceedings, claiming that this would breach the non-disclosure agreement. At an interim hearing during the court case the court grants an injunction preventing the businessman from being named. An MP has a separate court case against the businessman in which the MP claims that the businessman owes him money. During Prime Minister’s Question Time the MP names the businessman as the person involved in the court case.

Will the MP be found in contempt of court?

Yes, because the MP is biased and parliamentary privilege only protects MPs where they are acting in good faith.

Yes, because the MP has committed a criminal offence and so will not be protected by parliamentary privilege.

Yes, because the court has held that Prime Minister’s Questions are not protected by parliamentary privilege.

No, because the MP’s statement will be a proceeding in Parliament and therefore covered by qualified privilege.

No, because the MP’s statement will be a proceeding in Parliament and so will be covered by absolute privilege.

Answer 17

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Option E is the correct option as Prime Minister’s Questions (‘PMQs’) are part of the core business of Parliament and would be covered by parliamentary privilege under Art 9 Bill of Rights 1689.

Option A is wrong as parliamentary privilege applies irrespective of whether an MP is acting in good faith.

Option B is wrong as the MP has not committed a criminal offence.

Option C is wrong as, although it is up to the courts to rule on the extent of parliamentary privilege, they have not ruled that PMQs are not proceedings in Parliament. They are part of the ‘core business of Parliament’.

Option D is wrong as a direct statement by an MP would be covered by absolute, rather than qualified, privilege.

Question 18

The Government is considering introducing a bill enabling it to take control of the parliamentary expenses procedure, including taking action against MPs or Lords who breach a proposed new code of conduct.

Which of the following best describes whether the Government can proceed with the bill?

The Government cannot proceed with the bill as Parliament has “exclusive cognisance”, meaning that it will always retain control over its own processes and procedures, including those relating to expenses.

The Government cannot proceed with the bill as creating a new code of conduct for expenses would violate the right of MPs and Lords to seek a fair trial Human Rights Act 1998.

The Government can proceed with the bill. However, the minister introducing the bill must state that the government wishes the House of Commons to proceed using the procedures set out in the Parliament Acts 1911 and 1949.

The Government can proceed with the bill. Parliament retains “exclusive cognisance” so if it agrees to the bill the legislation will be passed in the usual way.

The Government can proceed with the bill, but as Parliament retains “exclusive cognisance” a 75% majority would be required for the bill to be passed.

Answer 18

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Option D is correct. Parliamentary privilege includes the principle of ‘exclusive cognisance’ which means that Parliament controls its own processes and procedures. That does not mean, however, that Parliament would not vote on legislation relating to those processes and procedures – indeed the Parliamentary Standards Act 2009 contained provisions relating to expenses, and was approved by Parliament, albeit with some amendments, in the usual way. Option A is wrong, as Parliament can approve the delegation of some of its own powers as it did in 2009.

Option B is wrong, as there is no suggestion on the information given that the Government would be taking away the power of the Courts to deal with criminal or civil matters arising from the proposed bill.

Options C and E are wrong, as no special majority or Parliament Act 1911 or 1949 procedure is required to pass an Act of Parliament relating to exclusive cognisance – a bill would be debated, scrutinised and amended in the same way as any other legislation. It may become necessary to use the Parliament Act procedure, but there is no initial requirement to do so.

Question 19

Parliament has (fictionally) decided that all MPs must give an oath declaring they will never support the United Kingdom being broken up into the four separate home nations. An MP has been elected from a new (fictional) Welsh independence party, which seeks urgent independence for Wales. The MP refuses to give the oath.

Which of the following best describes whether the MP can take up their seat in Parliament?

The MP can take up their seat in Parliament, as they were duly elected by their constituents.

The MP can take up their seat in Parliament because it would be against the MP’s human rights to deny their freedom of expression.

The MP can take up their seat in Parliament because it would be against the MP’s human rights to deny their freedom of thought.

The MP cannot take up their seat in Parliament because they should have chosen to sit in the Welsh Senedd.

The MP cannot take up their seat in Parliament as Parliament has “exclusive cognisance” and therefore has the power to determine the rules relating to MPs entering Parliament.

Answer 19

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Option E is correct. Parliamentary privilege includes the principle of ‘exclusive cognisance’ which means that Parliament controls its own processes and procedures, including the requirements for MPs to enter Parliament. In this fictional example, the MP refuses to give the oath required by Parliament, and Parliament can therefore refuse to allow the MP to sit. Option A is therefore wrong.

Options B and C are wrong, as the European Court of Human Rights has upheld parliamentary privilege.

Option D is wrong, as there is no requirement to sit in a devolved legislature if you seek independence from the United Kingdom.