Parliament and parliamentary sovereignty Flashcards
What is the separation of powers?
Legislature
- Enacts new law – king in parliament – so parliament
Executive – formulates and implement policy – prime minister and cabinet
- The monarch
The prime minister and cabinets
Government departments
- Cabinet office – responsible for national emergencies and constitutional reform
- Foreign office
- Home office – security and policing
- Ministry of justice – courts
- Treasurer – economic policy
Judiciary – judges of all levels
Lord chancellor
- Responsible for administration of court system and post of sec of state for justice.
To ensure that the rule of law is follows. Important that courts scrutinise the actions of the executive ti ensure that it is acting in accordance with the law. Where the government is given discretion to act the court will defer ti the expertise of the executive. Court cannot override the home offices decision but it can find it in contempt of court.
Lord chief justice
- Head of judiciary in England and Wales
Constitutional principles
- Allegiance to sovereign
- Judicial oath
- Judgement according to applicable law which is independent and impartial.
3 sources of constitutional rules?
Legislation
- Acts of parliament – one that conditions the legal relationship between state and citizen in some regard. Like magna carat or Human rights.
Case law
- Entick v Carrington – state cannot exercise power unless expressly authorised by law.
Constitutional conventions
- Fall short of being enforceable laws.
- Informal rules.
- Flexible way of filling gaps.
- Underpin operation of cabinet system – defining what ministers are responsible for. Regulate relations between house of lords and common.
Conventions relating to legislature?
- HL defers to house of commons
- HL not reject at second reading that carries out a manifesto commitment. (Salisbury - Addison convention)
- Financial bills – only introduced by cabinet minister
- Westminster will not legislate on devolved matters
Convention to executive?
- Monarch acts in advice by ministers
- Will not exercise his legal right to refuse royal assent, to bills passed through parliament.
- Appoint a prime minister
- Prime minister chooses cabinet minister
Conventions to judiciary
- Judges should not be politically active
- Parliament must not criticise
How are devolved matters dealt with?
In Scotland
- General rule – everything is devolved, acts of UK parliament only if there on reserved matters.
- Sewel convention – UK parliament will not legislate on devolved matters but this can be OVERRIDDEN. It’s NOT Enforceable. WESTMINSTER can legislate even without the political approval of the Scottish parliament.
Initially should ask devolved nations parliament to pass a legislative consent option. But CAN BE IVERIDDEN.
In Wales
- Not a sperate legal jurisdiction from England
- Same as Scotland.
Northen Ireland
- Northen Ireland assembly is the devolved legislature
UK supreme court – final court of appeal to hear on whether its devolved or reserved matters.
Collective ministerial responsibility?
- All ministers are bound by collective decisions of cabinet.
- Confidentiality – duty to not breach confidence
- Unanimity – all ministers should publicly agree with government policy, if not able to then they should resign.
Individual ministerial responsibility?
The classic doctrine of individual ministerial responsibility required ministers to accept
responsibility and, if necessary, resign for any errors and failures of their departments.
Can argue strongly as you wish against or for something as long as later do not disclose arguments in cabinet externally. If lose the debate he is obliged either to accept the result and support as a member of government or resign.
Maxwell Fyfe - a and b should reisgn
(a)Where there is an explicit order made by a minister, in which case the minister must protect
the civil servant who has carried out his order.
(b) When the civil servant acts properly in accordance with policy laid down by the minister, in
which case the minister must protect the civil servant.
(c) Where an official makes a mistake or causes some delay, but not on an important issue of
policy.
(d) Where a civil servant has taken the action, of which the minister disapproved and has no
prior knowledge, and the conduct of the official is reprehensible.
Ministerial code?
Selflessness
* Integrity
* Objectivity
* Accountability
* Openness
* Honesty
* Leadership
MUST INFORM PARLIAMENT
An unenforceable set of rules. At most it
can be described as a form of ‘soft law’
What is parliamentary legitimacy and privilege?
Parliament has democratic mandate, and therefore accountable to the people.
Disciplining MPs – conduct outside chamber also have an impact.
If MP is sentences to over a year in prison they are disqualified.
House of commons code of conduct
- Purpose of it to ensure public confidence.
- Applies in all aspects of their public life.
Parliamentary privilege - - Range of freedoms and protections needed to keep houses functioning effectively
- Right of each house to control its own proceedings
- Freedom of speech
- Proceedings in parliament – no challenge to what is said and done in parliament
What is the royal prerogative?
Every act which the executive government can lawfully do without the authority of an Act of Parliament
What are the monarchs prerogatives?
The appointment and removal of ministers
* The appointment of the Prime Minister
* The right to assent to legislation
* The creation of peers and the granting of other honours
* right to dissolve and prorogue parliament
How can prerogative power be controlled?
) By the application of public law (the judicial review jurisdiction of the courts)
(b) By the over-riding effect of statute (legislation ‘trumps’ the prerogative)
(c) Informally, by political pressure in government and public life (eg the media)
(d) Informally, by changes to convention over time
Control of prerogative?
primarily through the courts that the use of prerogative
powers has been controlled.
There is primacy of statutory law.
What is parliamentary sovreingty?
Principle of parliamentary sovereignty means – the right to make or unmake any law, and nobody or person has a right to override or set aside the legislation of parliament.
- No legal limits, conceded that there were political ones.
- Can legislate contrary to international law.
- Can pass retrospective law
- Express repeal – intention that an earlier act should be replaced
- Implied repeal – if a new act is partially or wholly inconsistent with a previous act – the previous act is repealed to the extent of the inconsistency. Courts will only draw implication that parliament intended to reap an earlier statute where they’re irreconcilable
Limits on parliamentary sovereignty?
Procedural limitations
- Possibility of entrenchment by manner and form – but seems to only apply to subordinate legislatures (devolved assemblies)
Legislative independence
- Dominions – dominion status given to recognise a number of semi-independent states – so no new act would be passed for that dominion without their consent – s4 Westminster act
- Impact on Westminster sovereignty – freedom once given cannot be taken away
