Parliamentary Sovereignty Flashcards
Does Parliamentary privilege include “exclusive cognisance”?
Yes, this is the power for Parliament to make its own rules.
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.
Quick Q:
Parliament approved a new British Bill of Rights (fictitious), designed to bring in a new framework for human rights in the UK. There was, however, no express repeal of the Human Rights Act 1998 within the British Bill of Rights.
Which statement below best describes the position on repeal of the Human Rights Act 1998 in this scenario?
The British Bill of Rights will only repeal the Human Rights Act 1998 if there are express words within the British Bill of Rights which make it clear Parliament intended the British Bill of Rights to replace the Human Rights Act 1998.
Option A is correct. The Human Rights Act 1998 is a constitutional statute, so can only be repealed expressly, or where there is express wording that makes clear Parliament intended to repeal the statute (Thoburn, H v Lord Advocate and HS2 cases), so options B and D are wrong.
Option C is wrong because Parliamentary Supremacy means Parliament can override international law.
Option E is wrong because the HRA 98 is not retained EU law.
Is the UK Parliament subject to external regulation?
The UK Parliament is not subject to external regulation because Parliament is supreme, so no external body should regulate it.
The Westminster Parliament is supreme, so no other body can regulate it, until such time as the UK adopts a written constitution or Parliament agrees to be bound by external oversight.
Does parliamentary privilege prevent civil and criminal arrest?
No.
An MP can be arrested for punching the speaker as parliamentary privilege will only prevent civil arrest while Parliament is in session, not criminal arrest.
Can an Act passed by parliament, even with the use of the Parliament Acts 1911 and 1949 procedures, be challenged?
No, because the Act was passed by Parliament, and Parliament is supreme.
Simply put Parliament can pass any legislation it wishes. There is, of course, a debate about whether entrenchment would bind future Parliaments, but that is irrelevant to the question.
Whilst the 1911 and 1949 process has been challenged, (in cases such as R v Jackson), however the challenges were unsuccessful.
Enrolled Act rule
The “Enrolled Act” rule means that once an Act of Parliament has been entered on to the Parliamentary Roll, the courts will not usually question the validity of the Act.
Aka: Under the ‘Enrolled Act’ rule, once a bill has passed both Houses of Parliament and received Royal Assent no court can question the validity of the Act or hold that Act to be void.
Money bill
How long will long will the House of Commons have to wait before presenting the bill to the monarch for Royal Assent? (as the house of lords have not consented to it)
One month, because the monarch can assent to a money bill within one month of the House of Lords reading a bill, even if they do not consent to it.
This is a money bill as it relates to nation-wide taxation. The House of Lords have the least ability to block such a bill from becoming a statute.
IF IT WASN’T A MONEY BILL:
The one year delay period is correct for ordinary public bills not consented to by the House of Lords, which are then re-read in the House of Commons. However, this is a money bill and so has a special exception of only one month of delay and no need for a re-reading in the House of Commons.
Prime Minister’s Questions (‘PMQs’) - can ministers be found in contempt of court?
No, because the MP’s statement will be a proceeding in Parliament and so will be covered by absolute privilege.
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.
Salisbury Convention
The Salisbury Convention requires the House of Lords to allow the government to pass legislation which is based on promises made to the electorate in an election.
Sewel Convention
The Sewel Convention indicates that Parliament should not usually pass legislation relating to devolved matters without the consent of the devolved legislatures.
Is this convention legally enforceable?
No
The Sewel Convention remains legally unenforceable even though it has been codified in statute (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).
Are there legal limitations to what parliament can enact?
There are no legal limitations as to what acts parliament can pass in regard to the subject matter; however there are practical ones.
Quick Q:
Assume that Parliament passed an Act (fictitious) in 2021 giving voting rights to 16- and 17-year olds in mayoral elections in England. Following a change of government, Parliament passed another Act in 2025 removing the voting rights of 16- and 17-year olds. The Act of 2025, however, makes no reference to the Act of 2021. A 17-year old who has been barred from voting in a local government election wants to challenge in court the loss of her voting rights.
Will the challenge by the 17-year old be successful?
No, because the Act of 2025 contained express words making clear the intention to repeal the voting rights of 16- and 17-year olds.
Option A is correct. The Act of 2021, dealing with the franchise for mayoral elections, is clearly a constitutional statute. In Thoburn Laws LJ stated that constitutional statutes cannot be impliedly repealed, so option B is wrong. However, constitutional statutes may be repealed by express words or words so specific that make Parliament’s intention to repeal very clear. The wording of the Act of 2025 removing the voting rights of 16- and 17-year olds seems very clear.
While option D is correct in stating that constitutional statutes cannot be impliedly repealed, in this instance the words of the Act of 2025 are sufficiently clear to repeal the Act of 2021. Options C and E are wrong due to the clarity of the wording of the Act of 2025.
Quick Q:
The government is considering introducing a bill to Parliament that it believes will breach Convention rights.
Which of the following best describes whether the government can proceed with the bill?
The government can proceed with the bill. However, the minister introducing the bill must state that, although they are unable to make a statement of compatibility, the government nevertheless wishes the House of Commons to proceed with the bill.
Option B is correct. The Human Rights Act 1998 preserved parliamentary sovereignty as it permits the government to proceed with a bill that breaches Convention rights, subject to the minister responsible for the bill making a statement on the proposed legislation’s compatibility with Convention rights. Accordingly option A is wrong as the 1998 Act does not preclude legislation that breaches Convention rights. Although the 1998 Act is a constitutional statute, option C is wrong as the doctrine of implied repeal does not prevent Parliament expressly passing legislation violating human rights.
Option D is wrong because the Human Rights Act 1998 has been recognized by the courts as a constitutional statute and so cannot be impliedly repealed.
Option E is wrong because the Parliament Acts 1911 and 1949 enable the House of Commons to override the House of Lords when enacting legislation. They have no direct connection with the 1998 Act.
Quick Q:
Parliament has passed the (fictitious) House of Lords Reform Act (‘the Reform Act’). The new legislation alters the Parliament Act 1949 which currently allows the House of Lords to delay a bill by one year. The Reform Act reduces the delay period from one year to six months. The Reform Act contains the following terms:
“the words ‘one year’ set out in section 1(b) of the Parliament Act 1949 shall be deleted and replaced with the words ‘six months’.”
Is the Reform Act valid?
Yes, because the Reform Act repeals the previous provision with words so specific that the effect of such words make it clear that the new legislation repeals the Parliament Act.
Option A is correct. The Parliament Act 1949 is a constitutional Act. Constitutional acts cannot be impliedly repealed. Such acts can, however, be expressly repealed. On our facts the Reform Act does not use express words to repeal part of the Parliament Act 1949, but it does use very specific words, namely deleting the words ‘one year’ and replacing it with ‘six months’. Therefore, the effect of such words is clearly irresistible, namely, to repeal the time frame set out in the Parliament Act 1949. (Thoburn v Sunderland City Council [2002] 4 All ER 156).
Option B is wrong as the Parliament Act 1949 is a constitutional statute.
Option C is wrong as the wording of the new legislation is clear enough to produce an irresistible effect, namely, to repeal the time frame set out in the Parliament Act 1949. (Thoburn v Sunderland City Council [2002] 4 All ER 156).
Option D is wrong, as ‘Manner and Form theory’ would not apply in this case.
Option E is wrong, as the wording to repeal a constitutional statute has to contain an express intention to repeal previous legislation.
European Court of Human Rights (ECtHR) has stated that the law is incompatible with Convention rights and the Court of Appeal has made a declaration of incompatibility under s4 of the Human Rights Act (HRA).
What impact does this have on the validity of the Act enacted by parliament?
None because a declaration of incompatibility does not affect the validity of the incompatible Act.
A declaration of incompatibility under s4 HRA does not affect the operation of the Act.
