Parliamentary Sovereignty & core institutions of the state & prerogative power

Question 1

what is the idea of parl sov and who does it come from

Answer 1

from Dicey =
1. That parliament is the supreme law making body
2. parliament cannot bind itself
3. inability of any other person/body to question an act of parliament

Question 2

what are some of the limits of parl sov in real life

Answer 2

1. manner and form entrenchement
2. parl can enact laws which undermine fundamental rights BUT courts will apply presumption that they did not intend it (although ouster clauses)

Question 3

what was the impact of the UKs membership in the EU on parl sov

Answer 3

Via the ECA 1972, European Union law was effectively incorporated into domestic law, and was given supremacy.
* The key case of Factortame made it clear that EU law could override or ‘disapply’ conflicting UK statutes enacted after 1972.
* Subsequent cases went further by disapplying provisions within statutes that clearly conflicted with EU law, even without a reference to the ECJ.

Question 4

what does a ‘dualist constitution’ mean

Answer 4

international agreements have to be enacted in domestic legislation before they can take effect in domestic law

Question 5

what did the UK’s departure from the UK show in relation to parl sov

Answer 5

The UK’s departure from the EU and the repeal of the ECA 1972 show that, even though UK Parliaments after 1972 were ‘bound’ by their predecessor, ultimately it was still possible for Parliament (as a continuing institution) to remove the limitations that had been applied.

Question 6

what are reserved matters

devolution

Answer 6

decisions which are still taken by westminster

Question 7

what is the current idea for westminster legislating on devolved matters

Answer 7

they can still do it but they should obtain approval first

Question 8

what is the HRA’s status and this impact on parl sov

Answer 8

it has a higher status than ‘ordinary statute’

Question 9

what does the HRA mean for ECHR legislation

Answer 9

it means that domestic legislation must be interpreted (if possible) in a way which gives effect to ECHR

Question 10

what happens if domestic legislation cannot be interpreted in line with HRA

Answer 10

then a declaration of incompatitbility may be made (s4)

Effect = political rather than legal (not the same as an invalidation of an AoP) = doesn’t undermine Parliamentary sovereignty

Question 11

what are the main reserved matters in westminster

Answer 11

1. registration and funding of political parties.
2. The making of peace or war.
3. nternational relations and treaties.
   etc

Question 12

what is the impact of devolution arrangements

Answer 12

While the devolution arrangements don’t undermine the ultimate legal sovereignty of the UK Parliament [can remove], there’s arguable a practical, political limitation on Westminster Parliament’s authority in this context

Question 13

what are the main roles of the monarch

Answer 13

largely symbolic role now (e.g. appoint PM; dissolve parliament; give royal assent to bills)

Question 14

who exercises the monarchs prerogative powers?

Answer 14

largely prime minister

Question 15

who makes up the executive

Answer 15

Departments run by the Secretaries of State, which create & implement government policy – head of government (PM)

Question 16

where does the executive get its powers from

Answer 16

statute, common law and royal prerogative

Question 17

what is the role of the HOL on governmnet power

Answer 17

they hold them accountable (importance check on power)

Question 18

what is the convention of individual ministerial responsibility

Answer 18

Ministers ought to resign if their posts are failing but if failing is operational or policy is relevant

Question 19

what is the role of constitutional conventions

Answer 19

To establish constitutional principles which may not be written down/codified [fill the gaps]

Question 20

what are conventions relating to the legislature (examples)

Answer 20

1. The HoL must defer to the HoC
2. HOL shouldn’t reject at 2nd reading any manifesto
3. Financial bills only intro by cabinet min in HOC
4. Westminster will not legislate to devolved powers (Sewel)
5. HOC should be consulted before armed forces deployed

Question 21

what are conventions relating to the executive

Answer 21

1. The Monarch follows the advice of her Minister
2. PM chooses Cabinet Ministers
3. Monarch will not refuse royal assent
4. Monarch appoints PM
5. PM and Chancellor are MPs,
6. ‘vote of no confidence’ = resignation
7. Monarch consent needed to legislate that affects monarch

Question 22

what are conventions relating to the judiciary?

Answer 22

1. Parliament cannot criticise judges
2. Judges must not be politically active

Question 23

what is the enrolled act rule?

Answer 23

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

Question 24

what is the convention of collective minsiterial responsibility

Answer 24

Discussions remain confidential, a policy line between ministers must remain united

Question 25

what is royal prerogative

Answer 25

CL powers the government can exercise without the authority of Parliament (historically exercised by the Monarch)

Question 26

what are prerogative powers

Answer 26

powers exercised by the government (PM) and ceremonially the monarch

Question 27

what are executive PP

Answer 27

foreign affairs; armed forces/emergencies; judicial “mercy”/pardons [AM/H/MA = not appropriate for JR]

Question 28

what are monarchical PP

Answer 28

appointing PM; assent for legislation; ending parliament

Question 29

what is the PP as relates to the crown and legislation

Answer 29

legislation doesn’t bind the crown unless stated/clearly implied & the crown is immune from some legal action (e.g. contempt and sueing)

Question 30

what are the four main controls of preprogative power

Answer 30

1. overriding effect of statute
2. court’s judicial review jurisdiction
3. political pressure & changes to conventions
4. Statutory duties on government which can’t be bypassed through PP

Question 31

what has changed with PP post-GCHQ

Answer 31

Further expansion of JR into PP BUT courts cautious to review areas of high policy where Gov has greater competence – review with less “intensity” in such cases

The higher the level of policy = the lower intensity of review
If more administrative power = courts more interventionist [passports]

Question 32

what is parliamentary privilege

Answer 32

range of freedoms and protections both houses require in order to function effectively

Question 33

what are the main examples of parliamentary privilege

Answer 33

1. Exclusive cognisance = Right to control own proceedings
2. Protects the rights of members to speak freely (in the walls of Parliament) without fear of legal liability
3. Freedom from arrest [unless criminal/CoC] = can’t be summoned

Question 34

what is parliamentary legitimacy

Answer 34

the UK parliament is accountable to the UK people

Question 35

What are examples of how discipline & conduct in the HoC & HoL is governed by standards committees/Codes of Conduct

Answer 35

• Possible sanctions = suspension from the house
• Independent Parliamentary Standards Authority overseas MPs expenses
• Parliamentary Commissioner for Standards investigates conduct allegations against MPs