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ELS AND CONSTITUTIONAL LAW > PARLIAMENTARY SUPREMACY > Flashcards

PARLIAMENTARY SUPREMACY Flashcards

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1
Q

What are parliaments main functions?

A
  • scrutinising the work of the Government
  • passing legislation, ie making new laws • debating the key issues of the day
  • approving the funding necessary for the Government to carry out its statutory duties and legislative proposals
  • providing the personnel for Government (since all government ministers are drawn from either the House of Commons or the House of Lords)
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2
Q

Who is the Speaker in the HOC?

A
  • the chair of HOC
  • they perform duties impartially, ruling on procedural points and controlling debate
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3
Q

What did the the White Paper published in May 2011 by the government say? What criticisms did this invite?

A
  • HOL be reduced in size
  • 80% elected
  • 20% appointed
  • concerned that a mostly elected House of Lords would challenge the primacy of the Commons, and some of whom felt that reform was not a
    priority at a time of economic difficulty. Critics in other parties and in the House of Lords also opposed the Bill. As a consequence, the House of Lords Reform Bill was withdrawn by the Government, after receiving its second reading in July 2012.
    Although there is a widespread view that the unelected House of Lords in its current form is unsuited to a modern constitutional democracy, there are at the moment no credible proposals for its reform and so little is likely to change in the near future, except possibly the removal of the remaining hereditary peers.
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4
Q

What does the Meeting of Parliament Act 1694 say?

A
  • Parliament must be summoned every three years
  • by convention though they meet throughout year since taxes require annual renewal
  • almost permanent operation
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5
Q

What does the Parliament Act 1911 say about the duration of Parliament?

A
  • limits maximum life of a Parliament to 5 years
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6
Q

What is each Parliament divided into?

A
  • sessions
  • start in spring of one year and end in spring in next
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7
Q

What do public bills do? What are the two types of public bills?

A
  • they alter the general law

1) government bills
- these are bills sent to Parliament as part of Government’s legislative process
2) private members’ bills
- these are bills introduced by MP’s or Lords who are not government ministers (limited of these becomes Acts)

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8
Q

Outline the legislative process.

A

1) First reading
- purely formal
- title of bill read out and then printed and published
2) Second reading
- main debate takes place in HOC on general principles
3) Committee stage
- bill sent to a general committee reflecting division of parties
- here they examine the bill in detail
- amendments may be made
4) Third reading
- consideration of the bill after amendments
- brief debate
- final chance to debate on bill
5) proceedings in the HOL
- dont begin until after third reading in HOC
- same process as above
- must be sent back to Commons if any amendments made
- if Commons disagrees with Lords they may go back to original wording and Lords will accept
6) Royal Assent
- after this a bill becomes law

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9
Q

What do private bills relate to?

A
  • individual, corporate or local interest
  • eg a bill authorising the building of a railway line or tunnel
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10
Q

What is the HOL usually described as? Why?

A
  • a revising chamber
  • because the HOC is democratically elected at the general election they have more democratic legitimacy than HOL
  • therefore they are usually just read and make minor amendments to bills
  • Salisbury Convention where HOL wont reject a bill giving major effect to a manifesto of HOC
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11
Q

What do the Parliament Acts 1911 and 1949 say?

A
  • these acts ensure that ultimately the will of the Commons may prevail

1911:

  • the Act abolished the Lords’ right to reject money bills (national taxation) which has been passed by the Commons
  • removed the HOL the power to veto (stop) a non-money Bill
  • instead they can delay a Bill up to 2 years
  • reduced max lifespan of a Parliament from 7 to 5 yrs

1949:

  • this reduced the Lords’ delaying power to 1 yr

The combined effect of these two Acts is that they permit the Monarch to give Royal Assent to a bill that lacks consent of the Lords

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12
Q

Why is there academic debate around the 1949 Act?

A
  • about the validity of the Act and Acts passed under its authority
  • R (Jackson) v Attorney General 2005
  • it was argued that 1949 Act was not a valid act on the grounds that the procedure set out in 1911 should not have been used to enact it
  • argument was rejected and it is now said that it is properly enacted
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13
Q

When are the four times the Parliament Acts have been used?

A
  • War crimes Act 1991
  • European Parliamentary Elections Act 1999
  • the Sexual Offences (Amendment) Act 2000
  • the Hunting Act 2004
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14
Q

Define delegated legislation

A
  • secondary legislation
  • not legislation passed by Act of Parliament itself
  • every exercise of power to legislate that is conferred by or under an Act of Parliament
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15
Q

How is delegated legislation made?

A
  • by ministers in the form of rules or regulations which supplement the provisions of Acts
  • often statutory instruments
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16
Q

What procedures are used by Parliament to monitor delegated legislation created by ministers?

A
  • because neither House of Parliament can actually amend delegated legislation and it can come into effect without either House voting on it at all they have

1) Affirmative resolution procedure:
-instrument cannot come into effect or ceases to have effect unless one or both houses passes a resolution approving it

2) Negative resolution procedure:
- Government is required to ‘annul’ the instrument if either House passes a resolution rejecting instrument within a specified period after it is laid before parl

17
Q

Define parliamentary sovereignty

A

A) Parliament is the supreme law making body and may enact and repeal laws on any subject
B) No Parliament may be bound by a predecessor or bind a successor - a particular Act may not be entrenched or be given a higher status than any other Act
C) No other person or body may question the validity of an Act of Parliament or declare that law to be unlawful (courts)

18
Q

What does the Bill of Rights Article 9 say?

A

freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament

19
Q

What is the Enrolled Act rule?

A
  • despite article 9 of the bill of rights, the courts still have interfered with parliamentary matters though the common law
  • therefore they introduced the ‘Enrolled Act’ rule
  • once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void
  • the courts cannot investigate proceedings in parliament to determining whether there was irregularity or fraud
20
Q

Was there any conflict with the investigations into the Hunting Act 2004 in R (Jackson) v Attorney General and the Enrolled Act rule?

A
  • no the courts said that this wasn’t an investigation into the proceedings in Parliament but more a consideration of statutory interpretation of whether the 1911 Act could be used to enact the 1949 act
21
Q

How does statute override international law.

A
  • statute will override any international treaty to which the UK is party to
  • even if legislation were to breach international law they could still pass it
22
Q

How does statute override constitutional conventions?

A
  • R(Miller) v Secretary state of exiting the EU
  • Sewel convention provides that Parliament will not normally legislate for Scotland without their consent
  • Supreme Court held it wasn’t legally binding even if it has been written into law
23
Q

How does statute alter the constitution?

A
  • e.g Act of Union is a large part of the constitution and united England and Parliament under one single Parliament
  • HRA 1998
  • the Parliament Acts
  • EUWA which paved way for UK’s exit
24
Q

How may statute operate with consideration of past events?

A
  • meaning it can change previous laws
  • Terrorist offenders Act 2020 which increased the time offenders have been convicted of terrorist offences must serve in jail before being eligible for parole
25
Q

How does statute abolish or curtail aspect of the Royal Prerogative?

A

1) the Crown Proceedings Act 1947
- abolished the immunity of the Crown in respect of claims made against it in either tort or contract
2) the FTPA 2011
- removed the power of the Monarch to dissolve Parliament
3) Attorney General v De Keyser’s Royal Hotel

26
Q

How is no Parliament bound by a predecessor or bind a successor? What doctrines allow this to be the case?

A
  • the doctrine of express or implied repeal
  • if a later Parliament expressly repeals the contents of an Act made by an earlier Parliament, that earlier Act will not be valid
  • what happens if there is no express words repealing earlier act? Then which one is followed?
  • this is implied repeal
  • the earlier Act will cease to be followed if there is inconsistency between the two acts
27
Q

How do the Acts of union limit parliamentary supremacy?

A
  • some commentators have argued that Parliament was born unfree due to the constrictions set to in these acts and cannot legislate to override their provisions
  • Westminster Parliament is bound by terms of Act of Union
28
Q

How does devolution limit parliamentary supremacy?

A
  • consider the sewel convention
  • under statute Scotland will need to give Westminster consent for them to pass legislations on devolved matters such as education, transport and health
  • however, Westminster still have ability to abolish devolved governments and legislation should it choose to do so
  • this would however lead to political instability and they are unlikely to do so
  • so does Parliament really have this power in reality?
  • devolved institutions are a pretty permanent aspect of the constitution
  • however, laws have been passed which go against sewel convention
29
Q

Can parliament reverse the Acts of Independence?

A
  • Parliament enacted various Acts granting independence to former colonies of British Empire
  • parliament could reverse it strictly speaking
  • however they are unlikely to due to political and practical reasons
  • if they did decide to start legislating for them then they would be unenforceable
30
Q

What are the limits on implied repeal?

A
  • may not apply to constitutional statutes
  • the repeal of such a constitutional statute by parliament had to be express
  • the test for a ‘constitutional’ statute as opposed to an ‘ordinary’ statutes is:

1) the statute must condition the legal relationship between citizen an state in some general overarching manner
2) the statute must change the scope of fundamental consititutional rights

31
Q

Explain what the manner and form/entrenchment theory debate is. Give arguments in favour and against it.

A
  • can a parliament bind its successors as to the procedure to be adopted when repealing legislation enacted by that earlier parliament? Eg can there be entrenchment of laws on how future parliaments pass laws?

F:
- the Parliament Acts 1911 and 1949 made it easier for legislation to be enacted by removing powers of the House of Lords to block legislation which was passed by Commons
- an act can also be entrenched which means special circumstances are required for a future parliament to be able to repeal it e.g needing a specified majority instead of a simple majority
- under the traditional view of PS there is no provision for entrenchment of any legisaltion
- therefore it wont have any binding effect

A:

32
Q

What are Henry VIII powers? How does it limit parliamentary supremacy?

A
  • gives ministers ability to amend or repeal the relevant statute by delegated legislation
  • fundamentally goes against PM as it enables ministers as opposed to Parliament to make or change the law
  • ministers were given huge amounts of powers in Coronavirus Act 2020 which has had a huge impact on society and hasn’t really had any parliamentary scrutiny
  • government is even thinking of giving ministers powers to amend or repeal retained EU law in ‘Brexit freedoms Bill’ which further drifts away from PM
33
Q

How does PM limit the rule of law?

A
  • R v Jackson
  • obiter that PM was not absolute and could be limited by the courts i extreme circumstances
  • Lord Steyn said that the doctrine of parliamentary sovereignty was a construct of the common law’ ie principal created by judges
  • he went further to say if Parliament abolished role of courts then he speculated the courts might be willing to strike down such legislation and deem it unlawful
34
Q

How does the EUWA 2020 override PS?

A
  • any provisions which meet criteria for direct effect will override conflicting national law
35
Q

What effect did ECA 1972 s2(4) have on PS?

A
  • this legislation states that all UK legislation whenever adopted (primary and secondary) is to be construed and have effect subject to provisions of EU law
  • created a rule of construction by providing that the courts had to read UK legislation in a way which makes it compliant with EU law
  • doctrine of indirect effect
  • directly effective EU law took precedence over conflicting uk law
36
Q

Could parliament impliedly repeal EU law pre Brexit?

A
  • no
  • however following 2016 referendum parliament enacted the EUWA 2018 which expressly repealed the ECA 1972
  • it did however keep in force supremacy of EU law until end f transition period
37
Q

In which ways does retained EU law have supremacy over parliament?

A
  • if there is a conflict between pre- Brexit domestic law and pre- Brexit directly effective EU law, then the EU law takes priority.
  • however, UK legislation enacted after the end of the transition period will prevail over retained EU law
38
Q

Explain the key provisions of the Human Rights Act 1998.

A

S2: they are not bound by the judgements of the ECHR but they must take them into account
- in practise it is usually followed

S3: primary and secondary legislation must be interpreted in accordance with Convention rights ‘so far as it is possible to do so’

S4: where court cannot interpret legislation in a manner which makes the legislation compliant with Convention rights then court must a,ke a declaration of incompatibility

S10: after the declaration of incompatibility made under s4, s10 acts as a ‘fast track’ procedure that the govt may use to amend relevant legislation
- govt not obliged to amend
- could pass on a bill to parliament
- or a lawyer will have to take to ECHR to fix

S19:

39
Q

Can parliament repeal the HRA 1998?

A
  • legally nothing to prevent Parliament from amending or expressly repealing the HRA
  • for political reasons, unlikely

ELS AND CONSTITUTIONAL LAW (10 decks)

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