Parliamentary sovereignty - Consolidation MCQs Flashcards
In order to prepare for future national health emergencies, the Secretary of State for Health and Social Care (SoS) has sponsored (fictitious) legislation through Parliament. Section 17 of this Act allows the SoS and civil servants in his department unimpeded and immediate access to every citizen’s NHS records. (For your information: this legislation is incompatible with Article 8 of the European Convention on Human Rights.)
Your client does not want the SoS to have unimpeded access to her health records, and she instructs you to challenge the exercise by the SoS of his powers under s.17.
Which one of the following statements best describes the likely approach the court will take using its powers under the Human Rights Act (‘HRA’)?
If s.17 is found to be incompatible with Article 8, a declaration to that effect will be made by the court. This would compel the SoS to change the law to remove the incompatibility with Article 8.
As s.7 is incompatible with Article 8, a declaration to that effect will immediately be made by the court. This would need to be responded to by the SoS, but it would not compel the government to seek a change in the law.
Under s.3 of the HRA the court must read in the words it considers necessary to make s.17 compatible with Article 8.
Under s.3 of the HRA the court will first consider if it can interpret s.17 in a way that makes it compatible with Article 8. If the court does not consider it is possible to do so, it may make a declaration of incompatibility in relation to s.17. This would need to be responded to by the SoS, but it would not compel the government to seek a change in the law.
Under s.3 of the HRA, the court will first consider if it can interpret s.17 in a way that makes it compatible with Article 8. If the court does not consider this is possible, it may make a declaration of incompatibility in relation to s.17. This would compel the SoS to change the law in order to remove the incompatibility with Article 8.
Under s.3 of the HRA the court will first consider if it can interpret s.17 in a way that makes it compatible with Article 8. If the court does not consider it is possible to do so, it may make a declaration of incompatibility in relation to s.17. This would need to be responded to by the SoS, but it would not compel the government to seek a change in the law.
Correct. If a statutory provision is incompatible with a right in the ECHR, the courts have two alternative routes they can take, as outlined in this answer. Note too the effect of a DOI.
A (fictitious) Prime Minister (“PM”), who has just entered office, wishes to sponsor legislation to prohibit a future Parliament from bringing back the death penalty for crimes of murder. She will call the legislation the ‘Prevention of Capital Punishment Act’ (the “PCPA”.)
Which one of the following statements represents the best advice that could be given to the PM by her legal advisors?
The doctrine of parliamentary sovereignty means that it is certainly possible for the PM to sponsor the proposed PCPA. The PM should also be reassured that, if a future government wished to reverse the policy, it would find it impossible to do so, because repealing the PCPA would be deemed incompatible with the European Convention on Human Rights.
It is certainly possible for Parliament to pass legislation to this effect and the PCPA would remain in operation until such time as a future Parliament wished to reverse the policy. In order to do so, that future Parliament would have to pass new legislation expressly re-introducing the death penalty.
The doctrine of parliamentary sovereignty means that it is certainly possible for the PM to sponsor the proposed PCPA and, if this legislation contains terms written clearly and precisely enough, its provisions will endure because it represents an unambiguous expression of parliamentary will.
It is not possible for Parliament to pass legislation to this effect because it is directly infringing Dicey’s theory on sovereignty, which says that it is impossible for one Parliament to restrict the future freedom of a successor Parliament.
The doctrine of parliamentary sovereignty means that it is certainly possible for the PM to sponsor the proposed PCPA. The PM should also be reassured that, if a future government wished to reverse the policy, it would find it highly difficult to do so, because the PCPA would be seen as a “constitutional statute”. Therefore, in accordance with the rule in the Thoburn case, a future court would not accept that it could be repealed. Re-visit your materials on parliamentary sovereignty.
It is certainly possible for Parliament to pass legislation to this effect and the PCPA would remain in operation until such time as a future Parliament wished to reverse the policy. In order to do so, that future Parliament would have to pass new legislation expressly re-introducing the death penalty.
Correct. The PM will be able to get the Act passed, assuming there is a majority for her to do so. However, the doctrine of parliamentary sovereignty means that today’s Parliament cannot bind a future Parliament, so the PCPA and its ban on bringing back capital punishment cannot be permanently entrenched.
The (fictitious) Flood Defences Act 1978 stated that, in the event of serious flooding in any local government area, the local authority could claim a relief grant of £1000 per hectare (subject to annual inflationary uplifts), “such sum to be fixed as a minimum and not to be reduced in future”.
In 2019 Parliament passed the (fictitious) Local Emergency Relief Act, which has no mention at all in it of the 1978 Act. It imposed a relief grant lower than that in the 1978 Act.
Which one of the following statements best describes the likely outcome if a local authority challenges the amount of relief grant it receives under the terms of the 2019 Act in future, and the rationale behind it?
The local authority would be successful in challenging the amount as the court would interpret the words in the 1978 Act literally and therefore not permit the rate of relief grant to be reduced.
The local authority would be unsuccessful in challenging the amount and would be obliged to accept the figure in the 2019 Act, as this Act represents the most recent expression of Parliament’s sovereign will.
The local authority would have reasonable chances of success in challenging the 2019 grant level, as the 1978 Act would be seen as a constitutional statute, as flooding is such a serious national issue, and so would not be subject to implied repeal.
The local authority would be unsuccessful as the court is likely to find that the 1978 Act had been expressly repealed by the 2019 Parliament, and so the terms in the earlier Act have been amended.
The court is likely to send the matter to an alternative form of arbitration, as it will not be possible for it to determine whether the 1978 or the 2019 Act should prevail, as both statutes represent legitimate expressions of parliamentary will.
The local authority would be unsuccessful in challenging the amount and would be obliged to accept the figure in the 2019 Act, as this Act represents the most recent expression of Parliament’s sovereign will.
Correct. This accurately reflects the operation of the principle of implied repeal.
Which one of the following statements best describes the relationship between the principle of parliamentary sovereignty and the UK’s current devolution arrangements?
In legal theory the devolution settlements in all of the devolved parts of the UK could be repealed tomorrow but this is prevented from happening in reality by the operation of the Sewel convention.
The devolution settlements in Wales and Northern Ireland could be repealed by the Westminster Parliament at any time but the same would not be possible for Scotland because of the higher degree of nationalist support in that part of the UK.
The various devolution statutes passed from the late nineties onwards have meant that the model of a federal UK has been firmly entrenched in the country’s constitution.
The core constitutional principle of parliamentary sovereignty means that there is and can be no legal or political limitations on the ability of the Westminster Parliament to legislate to reverse the devolution settlement in the UK.
The core constitutional principle of parliamentary sovereignty means that there is no legal limitation on the Westminster Parliament legislating to reverse the devolution settlement in the UK, in spite of the existence of the Sewel convention.
The core constitutional principle of parliamentary sovereignty means that there is no legal limitation on the Westminster Parliament legislating to reverse the devolution settlement in the UK, in spite of the existence of the Sewel convention.
Correct. This is an accurate summary of the position regarding the status of the devolution legislation. Note that this does not mean there are no political limitations.
Which one of the following statements most accurately reflects the position in relation to the traditional conception of parliamentary sovereignty?
Although in general, Parliament cannot bind its successors, it is possible in certain cases, where a statute is of a constitutional nature, for Parliament to be bound by legislation which has been passed by a predecessor Parliament.
If it wishes, Parliament may pass legislation that prohibits conduct in places outside the jurisdiction of the UK, even if the act in question would not be prohibited by the authorities in that territory.
Where the content of a particular provision within a piece of primary legislation is contrary to international law, it will be possible for a UK court to quash such a provision, provided that the quashing of the provision does not impact on the function of the statute as a whole.
The effect of the judgment in the case of Jackson is that it is now possible for a Parliament to ‘redefine itself upwards’ by requiring a particular parliamentary majority or a popular referendum for a particular type of measure.
In a situation where Parliament has passed a piece of legislation but where it is clear to the court that the Act was not passed according to the correct procedure, it is open to the court to quash the legislation because of the procedural irregularity
If it wishes, Parliament may pass legislation that prohibits conduct in places outside the jurisdiction of the UK, even if the act in question would not be prohibited by the authorities in that territory.
Correct. There are no geographical limitations upon the legislation that Parliament may pass. This would not be invalid legislation, (though its political purpose would be highly dubious!)
Question 1
Assume that Parliament passed an Act (fictitious) in 2021 giving voting rights to 16- and 17-year-olds in local government elections in England. Following a change of government, Parliament passed another Act in 2024 removing the voting rights of 16- and 17-year-olds. The Act of 2024, however, makes no reference to the Act of 2021. A 16-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 16-year-old be successful?
A No, because the Act of 2024 impliedly repealed the inconsistent provisions contained in the Act of 2021.
B No, because the Act of 2024 contained express words making clear the intention to repeal the voting rights of 16- and 17-year-olds.
C Yes, because the Act of 2021 is a constitutional statute and cannot be impliedly repealed.
D Yes, because the Act of 2024 did not expressly repeal the Act of 2021, a constitutional statute.
E Yes, because the Act of 2024 did not refer to the Act of 2021, a constitutional statute.
Answer
Option B is correct. The Act of 2021, dealing with the franchise for local elections, is clearly a constitutional statute. In Thoburn, Laws LJ stated that constitutional statutes cannot be impliedly repealed, so option A 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 2024 removing the voting rights of 16- and 17-year-olds seems very clear.
Whilst option C is correct in stating that constitutional statutes cannot be impliedly repealed, in this instance the words of the Act of 2024 are sufficiently clear to repeal the Act of 2021. Options D and E are wrong due to the clarity of the wording of the Act of 2024
Question 2
The Government is considering introducing a bill that it believes will violate Convention rights.
Which of the following best describes whether the Government can proceed with the bill?
A The Government cannot proceed with the bill as the Human Rights Act 1998 precludes the passage of legislation that violates Convention rights.
B The Government cannot proceed with the bill as the Human Rights Act 1998 is a constitutional statute, which cannot be impliedly repealed.
C 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.
D 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.
E The Government can proceed with the bill. Parliament is sovereign and can expressly or impliedly repeal the Human Rights Act 1998.
Answer
The correct answer is C. The Human Rights Act 1998 preserved parliamentary sovereignty as
it permits the Government to proceed with a bill that violates 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 violates Convention rights. Although the 1998 Act is a constitutional statute, option B is wrong as the doctrine of implied repeal does not prevent Parliament expressly passing legislation violating human rights.
Option D 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.
Option E is wrong because the Human Rights Act 1998 has been recognised by the courts as a constitutional statute and so cannot be impliedly repealed.
Question 3
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 whether the celebrity can sue the MP?
A The celebrity cannot sue unless the Speaker of the House of Commons certifies that he may proceed.
B The celebrity cannot sue as statements in parliamentary proceedings are absolutely privileged.
C The celebrity can sue because parliamentary privilege does not protect statements that are clearly untrue.
D The celebrity can sue because the MP has abused parliamentary privilege by making an untrue statement.
E The celebrity can sue because the courts have decided that defamation proceedings do not interfere with Parliament’s core business.
Answer
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. Whilst 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.
