parliament Flashcards
russel on bicameralism?
- Arend Lijphart bases bicameral strength on two dimensions: ‘symmetry’ of the two chambers’ formal powers and ‘incongruence’ of their composition
- Varying strengths of second chambers – some have veto power, others just to delay
- Strong formal powers (symmetrical element) not always necessary where incongruence and legitimacy come in
- Second chambers which mirror political makeup of bodies they seek to influence (executive and first chamber) are effectively ‘absorbed’, that is, they cease to make impact
- Partisan incongruence that matters most in congruence element of bicameralism
- Lack of legitimacy may render a second chamber unable in practice to make full use of its powers
- Second chamber role as non-majoritarian or anti-majoritarian
1) Input/source legitimacy – composition, unelected chambers must derive legitimacy from other factors
2) Procedural legitimacy – applied to courts, can gain popular favour by being perceived as fair and less political
3) Output/substantive legitimacy – policy decisions
*From the fourteenth century, English bicameralism principally reflected class interests, with the second chamber representing the nobility and the church
- Interaction between two Houses: HoL more proportional whereas HoC is FPTP therefore has mandate but not representative
- Democratic ‘input’ legitimacy may thus not be either necessary or sufficient for such chambers to be respected and influential
- In essence a properly functioning bicameral system requires the second chamber to have some kind of competing input legitimacy to the first: which may be achieved through different voting systems or other distinct means of composition
- Government politicians may put considerable effort into trying todamage the perceived legitimacy of an assertive second chamber
institutional legitimacy? institutional strength?
1) Input/source legitimacy – composition, unelected chambers must derive legitimacy from other factors
2) Procedural legitimacy – applied to courts, can gain popular favour by being perceived as fair and less political
3) Output/substantive legitimacy – policy decisions
Arend Lijphart bases bicameral strength on two dimensions: ‘symmetry’ of the two chambers’ formal powers and ‘incongruence’ of their composition
Absorption
R (Public Law Project) v Lord Chancellor [2016] UKSC 39
Facts: In September 2013 the Lord Chancellor decided to introduce a ‘residence test’ for legal aid. The residence test would have meant that, subject to some exceptions, only people who were lawfully resident in the UK could get legal aid.
The PLP appealed to the UKSC that the draft order excluding non-UK residents was unlawful on two grounds:
1) it was ultra vires the LASPO
2) it was unjustifiably discriminatory
The LASPO was a Henry VIII clause, allowing a member of the executive, the LC, to cover more substantive issues in secondary legislation by authority of the statute, including amending primary legislation.
Due to Psov, such amendments must be exceptional and if in doubt, the purported power to make them must be interpreted restrictively by courts.
Paradoxical: the more general the skeleton legislation, the more likely the powers exercised under a literal meaning of the words will nonetheless be outside of the statute’s contemplation; and this was so in this case
Judgment: The Bill was intended to make provision for altering legal aid - ‘vary and omit services’. Without strong indication to the contrary, this did not mean limiting access to a specific group
Draft order was therefore ultra vires
Following this determination, the court rejected to discuss the discrimination ground.
Comments
Lord Chancellor acting contrary to Parliamentary intention -
AXA General Insurance v Lord Advocate
Key point
Acts of the Scottish Parliament, and by extension the primary legislation of the other two devolved legislatures, are not subject to the ordinary principles of judicial review such as irrationality (ratio) but can be subject to judicial review for being contrary to the rule of law (obiter)
When reviewing the compatibility of legislation and executive actions that deal with social, economic and political issues with Convention rights, courts will grant the government and legislature a discretionary area of judgment in which less exacting proportionality test will be applied
Facts
The Scottish case Rothwell had held that asymptomatic pleural plaques did not constitute an injury capable of giving rise to a damages claim
In response, the Scottish Parliament passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which gave individuals a right to a cause of action in damages if they had suffered asbestos-related conditions as a result of exposure to asbestos due to a negligent employer
It was evident that insurers would bear the burden of the cost of damages, which is why they wanted to invalidate the Act
Under section 29(2) Scotland Act 1998, an Act of the Scottish Parliament is outside of its legislative competence if it is incompatible with any Convention rights
AXA and several other insurance companies challenged the validity of the Act on two grounds:
it was outside the legislative competence of the Scottish Parliament because it was contrary to their (the insurers’) right to property (the insurance companies’ right to profits/revenue) under Article 1 of Protocol 1 of the European Convention on Human Rights (A1P1, ECHR), and
it was an irrational exercise of legislative authority which could be subject to judicial review at common law
Held (Supreme Court)
The insurance companies’ appeal was dismissed – the Act was valid. Both arguments failed.
Lord Hope
Compatibility with the ECHR
Citing his speech in Kebeline, in issues that involve questions of social or economic policy, there is an area of discretionary judgment in which an elected body can determine whether it is pursuing a legitimate aim: [32]
The judgment of the Scottish Parliament that it should legislate to remove what it regarded as social injustice was not “without reasonable foundation or manifestly unreasonable: [32]
The measures of the Act were proportionate in accomplishing a legitimate aim, and therefore the Act was within the competence of the Scottish Parliament because it did not violate A1P1 of the ECHR: [41]
Judicial review under common law
Citing his own speech in Jackson, he considered that the principle of rule of law to be the ground for review for Acts of the Scottish Parliament (ASPs): “the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based”: [51]
In the hypothetical situation where the Scottish Parliament decides to abolish judicial review, “[t]he rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”: [51]
ASPs “are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness”, that is not needed as the validity of ASPs is subject to compatibility with the Convention rights under section 29(2)(d) of the Scotland Act 1998 and judges should not substitute their views for the considered judgment of a democratically elected legislature unless authorised by the UK Parliament: [52]
Lord Hodge
Compatibility with the ECHR
Given the wide margin of appreciation properly accorded to a democratically elected body determining the public interest by reference, as here, to political, economic and social considerations, the Act is to be regarded as legitimate and proportionate and so immune from challenge under A1P1: [83]
The relevant question was whether the legislation was “manifestly without reasonable justification” rather than whether it was justified on “compelling grounds of public interest”: [83]
Lord Reed
Compatibility with the ECHR
He agrees with the rest of the judges that the current case lies in the field of social and economic policy for which domestic courts will accord a discretionary area of judgment to the legislature and government, in parallel to how the ECtHR accords a margin of appreciation to national legislatures and government: [131]
Judicial review under common law
Given that the powers of the Scottish Parliament is limited as the UK Parliament can modify ASPs, it is also subject to the jurisdiction of the courts: [146]
However, since the Scottish Parliament has plenary powers unlike administrative bodies which have limited powers granted for specific purposes, it is thus not subject to grounds of review designed to prevent administrative bodies from exceeding their powers or using them for an improper purpose or being influenced by irrelevant considerations: [146]
“As a general rule, and subject to the qualification which I shall mention shortly, its decisions as to how to exercise its law-making powers require no justification in law other than the will of the Parliament”: [146]
However, the Scottish Parliament is subject to rule of law review since “Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law”: [153]
Commentary
Lord Hope’s analysis that courts ought to retain the option of reviewing ASPs if they come into conflict with the rule of law ([52]) can equally be extended to Acts of the Westminster Parliament. In such a light, this case appears to be an extension of the parliamentary sovereignty vs. rule of law debate: Elliot, ‘Holyrood, Westminster and judicial review of legislation’ (2012) 71(1) CLJ 9, 11
DPRRC view on executive power?
- Even when provisions are made for delegated legislation to have limited powers, the majority government can render this protection ineffectual
- Scrutiny provisions – largely ineffectual to actually amend or annul legislation – ‘all or nothing’
- Bill of Rights, Donoughmore Committee 1930s, Select Committee – delegated scrutiny committee 1990s
- Strathclyde review – no involvement, no veto, ‘think again’
- Issues: Henry VIII, skeleton legislation, disguised legislation and tertiary legislation
- Skeleton legislation – should only leave detail to delegated powers and enacted for a good reason, not
- valuing political expediency over principle
- Guidance must be clearly explained and effective legislative guidance must be set before Parliament
- Possibility of made affirmative procedure for delegated legislation
Is the UK Parliament primarily a legislature or a scrutineer?
Adam Tomkins: scrutineer, the legislative function is an aspect of its scrutiny function
It is rather an instrument through which legislation passes rather than a proactive legislature
Representative role – electorate trusts Parliament to defend their interests and this means scrutinising legislation put forward by executive
* Parliament should be viewed more as a scrutineer than a legislator
* Legislative vs scrutiny function not a dichotomy, former is aspect of the latter
* Instrumental rather than sovereign
* HoL abolished, HoC would take its role more seriously without a fallback option?
(Tomkins 2003)
- What are the major Parliamentary mechanisms for holding the government to account? Are they adequate?
Ministers in Parliament engage in more of a perpetual election campaign rather than cooperative/collective approach to governance
Oral questions – PMQs, a partisan performance, Ministers appear once each over 5-week cycle to answer qus
Symbolic and public but little substance of scrutiny
Written qus – effective and transparent but expensive and time consuming
Debates – controlled by government, ritualistic and partisan rather than effective scrutiny
Select committees: most effective scrutiny but lack powers of an actual legislator eg propose alter or veto legislation
Pepper v Hart
Key point
The Hansard may be referred to, departing from previous authority, where legislation was ambiguous, obscure or led to absurdity and the statements relied upon were clear
Facts
Hart and others teachers at a private school were offered a “concessionary fee” scheme by the school for their children, which allowed them to be educated at a reduced rate at the school
The cost of the benefit was to be subject to income tax under S63 Finance Act 1976
Inland Revenue argued the “cost” of the benefit was the average cost of educating each child, which would come up to more than £1m, while the Hart and the others argued that the cost should be a marginal cost
Hart sought judicial review, seeking to rely on ministerial statements in Parliament when the Finance Act was being passed, which were recorded in Hansard
Courts could previously not rely on the use of Hansard in interpreting legislation due to Parliamentary Privilege
The High Court and Court of Appeal held that the cost was an average cost, and did not address the Hansard argument
Issue
Could the courts incorporate the use of Hansard into their interpretation of legislation?
Held (House of Lords)
Appeal allowed; the cost was a marginal cost
The majority held that the Hansard may be referred to, departing from previous authority, where legislation was ambiguous, obscure or led to absurdity and the statements relied upon were clear
Such reference to the Hansard did not impeach Parliamentary Privilege or contravene Article 9 Bill of Rights 1689
Lord Browne-Wilkinson (Majority Judgment)
‘-My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule [that Hansard may not be used] unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.’
‘In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there’: p. 638H
Lord Griffiths
‘The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.’
Lord Mackey (Dissenting)
He agreed with the House on the interpretation of the Finance Act but did so without the use of Hansard analysis, arguing it was not appropriate
His reasons for dissenting were based on practicality; additional civil litigation costs by having to research the parliamentary history of a statute
Barendt’s argument for separation of powers?
Barendt argues for courts to more actively scrutinize executive actions that lack clear legislative authority, especially when such actions affect individual rights - fundamental rules impacting civil liberties be established by Parliament rather than delegated to executive bodies.
Courts as guardians against the concentration of power
Barendt suggests that the separation of powers is not about rigidly dividing functions but about preventing the concentration of power. (partial separation). Many administrative bodies exercise mixed functions (e.g., rule-making and adjudication), which a “pure” model would find problematic.
In his view, practical overlaps between branches are inevitable - acceptable as long as checks and balances.
A partial model allows flexibility, focusing instead on preventing abuses of power and protecting liberties.
Vague—without clear principles, defining what constitutes an unacceptable concentration of power may become arbitrary esp due to common law nature of UK and lack of codified constitution
- Following Pepper v Hart, when can a court have regard to Parliamentary materials in construing legislation? Why is this approach thought by Kavanagh to undermine the separation of powers?
Mackey’s dissent: economically unwise especially for smaller litigants
Ministers do not reflect intentions of Parliament, requiring courts to go outside of their adjudicative role
Selective and inconsistent application
barber’s and ekins view on psov after factortame?
barber = death of psov
Barber argues that the position of EU law, as recognised in Factortame, spelled the death of parliamentary sovereignty, since every statute made before Factortame was born wholly effective, but some statutes made after Factortame were born with limited effect, with a portion of their provisions rendered ineffective because of their conflict with EU law.
As argued by Ekins, further, Parliament’s legislative freedom has never been curtailed by EU law since it has always been open to Parliaments to legislate inconsistently with EU law, or to repeal the ECA altogether, with or without leaving the EU. The fact that successive Parliaments have legislated in accordance with the ECA is an exercise of each sovereign Parliament’s legislative freedom, not a sign that their hands have been tied.
