Parliament and Parliamentary sovereignty

Question 1

What does the Parliament consist of?

Answer 1

Parliament consists of three central elements: The House of Commons, The House of Lords and the Monarch. Of the three elements House of Commons is the most important.

Question 2

The Composition of Parliament: House of Commons

Answer 2

The House of Commons is a representative body, the membership of which is elected.

There are currently 650 members of Parliament.

Members of Parliament are elected by attaining the most votes at a general election in their respective constituencies.

By convention, the Prime Minister is a member of the House of Commons, as are most other Cabinet Ministers.

Question 3

The Composition of Parliament: The House of Lords

Answer 3

The House of Lords is not elected and is not a representative body.

Most members of the House of Lords are life peers appointed under the Life Peerages Act 1958. Such peers are appointed by the Monarch on the advice of the Prime Minister (although the Prime Minister will in turn have received suggestions as to whom to appoint from a non- political Appointments Commission, which puts forward prospective peers from a range of different professions, interests and political affiliations).
The current membership of the House of Lords is as follows:
* The Lords Temporal – life peers (currently about 700) created under the Life Peerages Act 1958 and up to 92 hereditary peers.
* The Lords Spiritual (26 senior clergy of the Church of England).

Question 4

The meeting and duration of the Parliament

Answer 4

Meeting: Parliament must be summoned every three years. By convention, Parliament meets throughout the year, since taxes require annual renewal and political reality, coupled with the volume of work, means that it is in almost permanent operation

Duration: Parliament’s life is limited to five years. However, the Parliament can be dissolved which is a royal prerogative power (The Dissolution and Calling of Parliament Act 2022).

Sessions: Each Parliament is divided into ‘sessions’.Parliamentary sessions now usually start in the spring of one year and end in the spring of the next. A session ends when Parliament is ‘prorogued’ by Royal Decree. Prorogation terminates all business pending at the end of
a session. Any public bills that have not passed into law will normally lapse, although it is possible to carry over public bills from one session to the next, subject to agreement.

Question 5

The legislative process

Answer 5

First reading: The title of the bill is read out and then it is printed and published.

Second reading: At this stage the main debate takes place in the House of Commons on the general principles of the bill.

Committee stage: This bill is usually referred to a general committee, consisting of 16-50 members appointed by the Committee of Selection. There is proportional representation of parties on general committees.

Third reading: This stage involves the consideration of the bill as amended - normally the debate is brief and only verbal amendments may be made. This is the final opportunity to vote on the bill; often MPs do not.

Proceedings in the House of Lords: When the bill has received its third reading in the Lords, it must be sent back to the Commons if the Lords have made any amendments. Theoretically, the bill can go backwards and forwards an indefinite number of times until the proceedings on it are terminated by prorogation. In practice, however, if the Commons disagrees with Lords’ amendments and restores the original wording, the Lords will usually accept it.

Royal Assent: Once Royal Assent is received, a bill becomes law and is referred to as an ‘Act of Parliament’. The Act may suspend its ‘commencement’ until some future date, which may be determined by delegated legislation made under the Act

Question 6

Public Bills

Answer 6

Public bills alter the general law. There are two forms of public bill:
i) Government bills: These bills are bills submitted to Parliament as part of the Government’s legislative programme. They are usually listed in the King’s Speech at the start of a parliamentary session and are usually public bills. The relevant government department decides on the detailed contents.
ii) Private member’s bills: These are bills introduced by MPs or Lords who are not government ministers. Although a very small minority of these ever become law due to lack of parliamentary time, they sometimes create significant publicity regarding an issue so may indirectly influence the Government’s legislative proposals

Question 7

Private Bills

Answer 7

Private bills relate to matters of individual, corporate or local interest, and affect particular persons and/or a particular locality (eg a bill authorising the building of a new railway line or tunnel).

Question 8

Delegated legislation

Answer 8

The provisions of an Act of Parliament often confer upon ministers a power to make delegated or subordinate legislation.

The ‘parent’ or ‘enabling’ Act will stipulate the parliamentary procedure to be followed, but the following are the most commonly used procedures:
* Affirmative resolution procedure: The instrument either cannot come into effect, or ceases to have effect, unless one or both Houses passes a resolution approving the instrument.
* Negative resolution procedure: The Government is required to ‘annul’ the instrument if either House passes a resolution rejecting the instrument within a specified period (usually 40 days) after it is ‘laid before Parliament’.

Question 9

The sovereignty of Parliament

Answer 9

Dicey’s description of parliamentary sovereignty may be broken down into three parts:
i) Parliament is the supreme law making body and may enact or repeal laws on any subject
ii) No Parliament may be bound by a predecessor or bind a successor – a particular Act of Parliament cannot be entrenched, or be given a ‘higher’ status than any other Act.
iii) No other person or body (but particularly a court of law) may question the validity of an Act of Parliament or declare that Act to be unlawful

Question 10

The ‘Enrolled Act’ rule

Answer 10

Although article 9 of the Bill of Rights guaranteed free speech in Parliament, the doctrine of parliamentary sovereignty as defined by Dicey has been developed by the judges through the common law.

Question 11

The unlimited legislative competence of parliament

Answer 11

Parliamentary sovereignty asserts itself through Acts of Parliament (ie statutes), rather than through mere parliamentary resolutions.

a)Statute may override international law:
b) Statute may override constitutional conventions
c) Statute may alter the constitution
d) Statute may operate retrospectively
e) Statute may abolish or curtail aspects of the royal prerogative.

Question 12

Express and implied repeal of statute

Answer 12

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

A later Act of Parliament will impliedly repeal the provisions of an earlier Act to the extent of any inconsistency between the two Acts.

Question 13

Limitations on the supremacy of Parliament: Domestic Limitations (Part 1)

Answer 13

The Acts of Union:

Devolution: On coming to power in 1997, the Labour Government devolved power to Scotland, Wales and Northern Ireland.
The Scotland Act 2016 amends the Scotland Act 1998 and includes provisions stating that:
(a) the Scottish Parliament and Scottish Government are a permanent part of the constitutional arrangements of the UK;
(b) neither the Scottish Parliament nor Scottish Government may be abolished unless the people of Scotland vote for this in a referendum; and
(c) the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament (the Sewel Convention).

However, aspects of the European Union (Withdrawal Act) 2018 and the European Union (Withdrawal Agreement) Act 2020 related to devolved matters, even though international relations are reserved to the UK Parliament. Scotland and Northern Ireland refused to give their consent to the bill, but the UK still enacted them.

Acts of Independence: During the 20th century, Parliament enacted various Acts granting independence to former colonies of the British Empire. In strict legal terms, Parliament could reverse such legislation. But, as with Scottish devolution, both for political and practical reasons it is most unlikely that Parliament would ever consider repealing such legislation. Furthermore, even if Parliament did repeal the Acts of independence and resume legislating for the former colonies, such legislation would be unenforceable

Question 14

Limitations on the supremacy of the Parliament: Domestic limitations (Part 2)

Answer 14

Limits on the doctrine of implied repeal:

This holds that an Act of Parliament will impliedly repeal the contents of an Act of an earlier Parliament to the extent of any inconsistency between the two Acts.

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), Laws LJ suggested that there are two types of statute, ‘ordinary’ and ‘constitutional’.

The test for a ‘constitutional statute’:
(a) the statute must condition the legal relationship between citizen and state in some general, overarching manner; or
(b) the statute must change the scope of fundamental constitutional rights.

For a constitutional statute to be repealed, there had to be ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’.

The manner and form debate: The doctrines of express and implied repeal prevent an earlier Parliament from binding a future Parliament as to the content of legislation which that future Parliament might enact. But is it possible for an earlier Parliament to bind a future Parliament as to the procedure which that future Parliament must follow to enact legislation?

The law on this is unclear and there are various arguments in favour and against

Henry VIII powers - Legislation introduced by the government generally have Henry VIII powers. These powers allow for the relevant statute to be amended or repealed by delegated legislation. And sometimes to other statutes as well.

The rule of law: The 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

Question 15

Membership of the European Union

Answer 15

The doctrine of supremacy of EU law

Question 16

Types of EU legislation

Answer 16

Four types of EU secondary legislation:

• Regulations: Regulations issued by the EU are directly applicable and automatically binding in all Member States without the need for any further legislation in the Member States.
• Directives: Directives set out objectives to be achieved and oblige Member States to pass domestic legislation themselves to implement those objectives. Directives set a date by which Member States must implement them.
• Decisions: Decisions are 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.
• Recommendations and opinions: Recommendations and opinions are not binding.

Question 17

Membership of the EU: UK’s approach. What happened when UK joined the EU?

Answer 17

The UK Government signed what is now the TFEU on 22 January 1972, but the Treaty was not incorporated into domestic law until later that year when Parliament enacted the ECA 1972 which came into force on the UK’s accession on 1 January 1973.
The principal provisions of the ECA 1972 were as follows:
* Section 2(1): This provided that directly effective rights and obligations arising under EU law should be enforceable in the UK courts.
* Section 2(2): This enabled the UK Government to make delegated legislation to implement EU law (eg 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 principles laid down by the Court of Justice of the European Union (CJEU) (ie decisions of the CJEU were in effect binding)

Question 18

Effect of ECA 1972

Answer 18

UK had to read legislation in a way that it was compatible to EU law. This is known as the doctrine of indirect effect. If, however, it was not possible for the courts 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.

if an individual suffered loss because the UK failed to implement a directive, they would have had a right
of action under Francovich even where they would have been unable to use the directive itself.

Question 19

Impact of the Human Rights Act on parliamentary sovereignty

Answer 19

s.3 of the Human Rights Act 1998: principle of construction

Two House of Lords’ cases show that the courts have been willing to use s 3 of the HRA 1998 to stretch the meaning of legislation to make such legislation compatible with Convention rights

Both cases show that the courts have perhaps gone further than Parliament intended when exercising their powers of interpretation under s 3. The only occasions on which the courts will be unable to use their interpretative powers under s 3 to ensure that a statute is compatible with Convention rights is when to do so would be expressly contrary to the wording of the statute

s.4 of the Human Rights Act 1998: declaration of incompatibility

Where the courts are unable to interpret domestic legislation in such a way as to make it compatible with Convention rights, a declaration of incompatibility may be made under s 4 of the HRA 1998. The declaration does not invalidate the legislation, and neither the Government nor Parliament is under any legal obligation to amend it.

Question 20

Parliamentary privilege

Answer 20

The main privilege of the House of Commons are:

Freedom of speech: Freedom of speech is based on article 9 of the Bill of Rights 1689, which provides that freedom of speech and debates or proceedings in Parliament ‘ought not to be impeached or questioned in any court or place out of Parliament.

A consequence of this privilege is that MPs and Lords have immunity from legal proceedings, leading to concerns that MPs or Lords may abuse this privilege, for example by libelling individuals with impunity.

The right to control its own composition and procedures – ‘exclusive cognisance’: Parliament has sole control over all aspects of its own affairs: to decide for itself what procedures it should adopt, whether any of its procedures have been breached and, if so, what the consequences will be. This has been largely accepted by the courts who will not question the validity of an Act on the basis that correct procedures were not followed (Pickin v British Railways Board [1974] AC 765).