parliamentary supremacy

Question 1

what are Parliaments main functions

Answer 1

scrutinising work of gov, passing legislation, debating key issues of the day, approving necessary funding for the gov to carry out its statutory duties and legislative proposals, providing personnel for government

Question 2

explain the HoC

Answer 2

members elected by attaining the mos votes at a general election in their respected constiuencies, chair is called teh Speaker who performs their duties impartially by controlling debate etc, statute limits number of holders of ministerial office, PM must be a member

Question 3

explain the hoL

Answer 3

not elected, mostly life peers appointed under Life Peerages Act, members are either the Lords Temporal (life peers) and the Lords Spiritual (clergy of the CofE)

Question 4

how often is Parliament summoned?

Answer 4

every 3 years but usually meets throughout the year since taxes need annual renewal and political reality so is a permanent operation

Question 5

what is the maximum life of a Parliament?

Answer 5

5 years

Question 6

what are the divisions of each parliament called?

Answer 6

sessions- usually start in spring of one year until spring in the next- usually a year but can be longer

Question 7

what are the two forms of public bill

Answer 7

government bills- part of govs legislative programme, private members’ bills- introduced by MPs or Lords who aren’t gov ministers

Question 8

what are the stages of the legislative process

Answer 8

first reading, second reading, committee stage, third reading, proceedings in the HoL, Royal Assent

Question 9

what is the relationship between HoC and HoL

Answer 9

HoC more important as they are elected so has more democratic legitimacy - Salisbury convention that HoL not allowed to refuse a bill giving effect to a major part of the democratically elected govs manifesto

Question 10

what did the Parliament Act 1911 do?

Answer 10

abolished the lords’ rights to reject money bills which had been passed by the commons and curtailed the power if the lords to reject non-money bills- these could only be delayed by the Lords for a 2 year period

Question 11

what is the combined effect of the Parliament Act 1911 and 1949?

Answer 11

they permit the monarch to give Royal Assent to a bill that lacks the consent of the HoL provided hat the Speaker has certified that the provisions of the Acts have been complied with- money bills, other public bills

Question 12

delegated legislation: what is affirmative resolution procedure?

Answer 12

instrument either cannot come into effect or ceases to have effect, unless one or both Houses passes a resolution approving the instrument

Question 13

delegated legislation: what is negative resolution procedure?

Answer 13

gov is required to annul the instrument if either House passes a resolution rejecting the instrument within a specified period after it is laid before parliament

Question 14

what are the 3 parts to A V Dicey’s Parliamentary soveriegnty definition?

Answer 14

P is the supreme law-making body and may enact or repeal laws on any subject, no P may be bound by a predecessor or bind a successor, no other person or body may question the validity of an AoP or declare an Act to be unlawful

Question 15

what is the enrolled act rule?

Answer 15

once an Act of P has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void

Question 16

give examples of unlimited legislative competence of parliament

Answer 16

statute can override international law, override constitutional conventions, alter the constitution, operate retrospectively, abolish/curtail aspects of teh royal prerogative

Question 17

what are the limitations on the supremacy of Parliament?

Answer 17

domestic limitations- Acts of union, devolution, independence, doctrine of implied repeal, manner and form debate

Question 18

domestic limitations- acts of union?

Answer 18

UK formed following Acts of Union with Scotland and Ireland- some say that this is limiting on Parliaments as they are bound by these acts

Question 19

domestic limitations- acts of devolution?

Answer 19

Labour Gov devolved power to Scot, Wales, NI

Question 20

domestic limitations- acts of independence?

Answer 20

P enacted Acts granting independence to former colonies of British Empire- is it possible for P to reverse such legislation and resume legislating for former colonies?

Question 21

domestic limitations- limits of the doctrine of implied repeal?

Answer 21

AoP will will implied repeal the contents of an Act of an earlier P to the extent of an inconsistency between the two Acts

Question 22

what is the test for a conditional statute?

Answer 22

statute must condition the legal relationship between citizen and state in some general, overarching manner, the statute must change the scope of fundamental constitutional rights

Question 23

can a constitutional statute be impliedly repealed?

Answer 23

only expressly repealed but there has to be ‘express words’ or ‘words so specific that the inference of an actual determination to effect…was irresistible’

Question 24

what is the manner and form debate?

Answer 24

doctrines of express or implied repeal prevent an earlier P from binding a future P for the content they may legislate, but a P may be able yo bind it successors as to the procedure when repealing legislation enacted by an earlier P

Question 25

what do supporters of the manner and form debate argue?

Answer 25

if P could make it easier to legislate by enacting the Parliament Acts there is no reason why P could not make it harder for a future P to legislate e.g. must follow rules of having majority etc, rules of identifying Acts of P derive from common law but since it can override the common law, P can alter the legal rules on which the validity of an Act of P rests

Question 26

what are arguments against manner and form debate?

Answer 26

Trethowan case- a privy council case is only persuasive and not binding on domestic courts/ position of the legislature of New South Wales cannot be seen as analogous to that of the UK p because UK P is supreme whereas P of NSW is subordinate as was created by Act of UK P

Question 27

what are the 4 types of secondary EU legislation?

Answer 27

regulations (automatically binding in all MS), directives (objectives to be achieved and oblige MS to pass domestic legislation themselves to implement those objectives) decisions (directly binding same way as regulations but only to whom they are addressed), recommendations/opinions (not binding)

Question 28

what is the direct effect principle?

Answer 28

gives supremacy to EU law- allowed MS to directly rely on TFEU so claimants can rely on it in MS’ domestic courts- has ‘vertical’ direct effect

Question 29

what is vertical/horizontal direct effect

Answer 29

vertical- you can use EU legislation against a member state

horizontal- you can use EU legislation against another individual

Question 30

what must be satisfied for EU legislation to have direct effect?

Answer 30

clear, precise and unconditional AND must not require additional measures (at EU level or national level) AND for directive to have direct effect, additional requirement that the time limit for implementation by member state has expired

Question 31

what statute relates to directly effective EU legislation?

Answer 31

European Communities Act 1972 (repealed)-make provision in connection with the enlargement of the European Communities to include the United Kingdom

Question 32

what is indirect effect?

Answer 32

a duty that national courts have, as part of the Member State responsible for fulfilment of EU obligations, to interpret national law in light of EU law, especially with Directives

Question 33

can the state be liable for not implementing a directive?

Answer 33

Francovich v Italian republic- yes even if they wouldn’t have been able to use the directive itself

Question 34

can EU law such as ECA be implied repealed?

Answer 34

NO- only expressly- Factortame BUT legally there isn’t anything to prevent P passing an Act which expressly repealed ECA or any EU law provision (EUWA)

Question 35

what takes precedent if there is conflict between pre-brexit domestic law and pre-brexit EU directly effective law?

Answer 35

EU law

Question 36

what is retained EU law split in to?

Answer 36

EU derived domestic legislation, direct eU legislation, Rights arising under s2 (1) of ECA

Question 37

what is the relevance of the incorporation of ECHR into domestic law?

Answer 37

in 1998 HRA incorporated ECHR into domestic law o that individual citizens would bring a claim for breach of ECHR rights before domestic courts (before they would have to go to EctHR in Strasbourg)

Question 38

what are the impacts of HRA on Parliamentary Soveriegnty?

Answer 38

s3- principle of construction- making the legislation compliant
s4- declarations of incompatibility
Express repeal of HRA 1998

Question 39

what is the Bill of Rights Bill?

Answer 39

to clarify and rebalance the relationship between courts in the UK, the ECtHR and P- basic premise is that the HRA will be repealed in its entirety but the gov intends to retain its membership of the ECHR so will continue to be bound to secure Convention rights in the UK

Question 40

what are the similarities between Bill of Rights and HRA?

Answer 40

BRB gives effect to same Convention rights. asHRA and additionally recognises that trial by jury is fundamental component of fair trials in the UK and provides that courts must give ‘great weight’ to the importance of freedom of speech though there are exceptions e.g. national security

public authorities still required to act compatibly with convention rights

higher courts will retain the power to issue declarations of incompatibility

Question 41

what are the differences between BRB and HRA?

Answer 41

permission stage- introduced by BRB requiring claimants to prove they have suffer significant disadvantage before they can take a claim to court

interpretation of Convention rights- BRB declares that SC is ultimate judicial authority on questions arising under domestic law in connection with convention rights and remove the obligation in s2 of HRA to take into account judgements of the ECtHR instead interpreting a Convention right

statements of compatibility- Bill doesn’t require a minister to make a statement on the compatibility of all gov Bills with Convention rights as currently in s19 of HRA

offenders- if convention rights of a prisoner have been breached the Bill requires courts to give greatest possible weight to importance of reducing risk to public from offenders

positive obligations- prohibits court from interpreting CR in ways that create positive obligations on public authorities (require them to take certain steps to actively protect, fulfil or facilitate a right)

proportionality- Bill restricts the role of the courts when assessing proportionality in relation to incompatibility questions- qs about whether a public authority is acting compatibly with CR or whether legislation is compatible with these rights

armed forces- bill prohibits bringing of domestic judicial proceedings for breach of a convention right regarding conduct of UK armed forces in overseas military operations which would prevent human rights claims by individuals who have suffered HR violations such as torture or killed by British military overseas

damages- courts must consider conduct of the C when considering making an award of damages for breach of convention right whether it is related to the claim or not

Question 42

what is the conclusion of the BRB and HRA?

Answer 42

gov should not progress the Bill in its current form through P, SCJ say HRA is sufficient

gov say implementing bill would have two effects:
judges likely to issue more declarations of incompatibility because they ill have little or no scope to interpret laws to avoid compatible interpretations

could result in claimants taking more cases to ECtHR

BUT gov does want to change the current system

Question 43

what is parliamentary privilege?

Answer 43

enable both houses to manage proceedings without outside interference

Question 44

what are the main privleges of HoC?

Answer 44

freedom of speech- based on article 9 of bill of rights, MPs and lords have immunity from legal proceedings but only proceedings in P- general rule= extends to matters outside core proceedings but only when they are necessarily connected to those proceedings

right to control its own composition and procedures- exclusive cognisance- control over what procedurs to adopt, they have been breached etc

Question 45

what are the recent debates about parliamentary privilege?

Answer 45

MPs expenses and allowances led to scandal- crim prosecutions against MPs for fraudulent expense claims, but courts had to consider if parl priv precluded their jurisdiction, but SC may interfere if affects the parl proceedings