Unit 5: Parliamentary Supremacy Flashcards
Which ONE of the following statements is WRONG?
A) It is not completely certain as to whether an earlier Parliament can bind a later Parliament as to the manner and form by which a particular legislative provision is repealed.
B) It is clear from case law that statutes of constitutional importance may be impliedly repealed.
C) An earlier Parliament cannot bind a later Parliament as to the content of future legislation.
D) The doctrine of implied repeal provides that a later Act of Parliament will impliedly repeal the contents of an earlier Act of Parliament to the extent of any inconsistency between the two Acts.
CORRECT ANSWER B
in Thoburn v Sunderland City Council [2002] 4 All ER 156, Laws LJ stated (albeit obiter) that statutes of constitutional importance could not be impliedly repealed. In his opinion, such statutes had to be expressly repealed by Parliament. Laws LJ’s views have subsequently been endorsed by the Supreme Court (obiter) in H v Lord Advocate [2012] UKSC 24 and in R (HS2 Action Alliance Ltd) v Secretary of State for Transport[2014] UKSC 3. In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court referred to the ‘informative discussion by Laws LJ in Thoburn and concluded ‘The 1972 Act accordingly has a constitutional character, as discussed by Laws LJ in Thoburn’
Which ONE of the following statements is CORRECT?
A) Parliament cannot expressly repeal the Human Rights Act 1998.
B) Parliament is unable to repeal the Acts devolving political power to Scotland and Wales.
C) Domestic courts are bound by decisions of the European Court of Human Rights.
D) A Minister who introduces a Government bill into Parliament must, before the second reading of the bill, either make a statement that the provisions in the bill are compatible with Convention rights, or alternatively make a statement that, although he is unable to make a statement of compatibility, the Government nevertheless wishes to proceed with the bill.
CORRECT ANSWER D
Although a bill does not need to be compatible with Convention rights in order to proceed, s 19 of the Human Rights Act 1998 requires any Minister introducing a bill into Parliament to make a statement as to compatibility.
Option A is false - Parliament may expressly repeal any earlier piece of legislation.
Option B is false for the same reason as A.
Option C is false - such decisions are persuasive, not binding.
TRUE OR FALSE:
A Government bill must have four readings in both the House of Commons and the House of Lords before it presented to the monarch for Royal Assent.
FALSE - a bill must be read three times in each house before it is presented for Royal Assent.
TRUE OR FALSE:
The provisions of the Parliament Acts of 1911 and 1949 are relied upon by those who support the view that an earlier Parliament may restrict a later Parliament as to the manner and form by which legislation is enacted - their argument is that Parliament chose to make it easier to pass legislation, so could also choose to make it harder to pass legislation should it choose to do so.
TRUE : the provisions of the Parliament Acts of 1911 and 1949 are relied upon because these Acts ‘streamlined’ the legislative process by making it possible for legislation to be enacted without the approval of the House of Lords. Supporters of ‘manner and form’ argue that, if the legislative process can be made easier, there is no reason why it could not be made harder by an earlier Parliament specifying the manner and form in which an Act must be repealed by a later Parliament.
TRUE OR FALSE:
The ‘Enrolled Act’ rule provides that the courts do not have the power to question the validity of an Act of Parliament or to hold such an Act to be void.
TRUE:
see Edinburgh & Dalkeith Railway Co v Wauchope (1842) 8 C1& F 710 and Pickin v British Railways Board [1974] AC 765.
Which ONE of the following statements is CORRECT?
A) UK legislation enacted after 31 December 2020 will prevail over retained EU law.
B) The doctrine of the supremacy of EU law has no application in the UK after the end of the transition period.
C) EU law ceased to apply in the UK after the end of the transition period.
D) The Withdrawal Agreement between the EU and the UK setting out terms for the UK’s exit from the EU does not have supremacy over UK law.
CORRECT ANSWER A - The principle of supremacy of EU law does not apply to UK laws made on or after the end of the transition period - 31 December 2020 (s5(1) European Union (Withdrawal) Act 2018). However, the doctrine of supremacy continues to apply to legislation passed before the end of the transition period, so option B is wrong. Retained EU law continues to have effect in the UK until repealed, so option C is wrong. The Withdrawal Agreement has supremacy over UK law under s7A European Union (Withdrawal) Act, so option D is wrong.
TRUE OR FALSE:
The case of Madzimbmuto v Lardner-Burke [1969] 1 AC 645 is authority for the statement that an Act of Parliament may override a constitutional convention.
TRUE:
in this case the House of Lords held that the Southern Rhodesia Act 1965 overrode the constitutional convention that the UK Parliament would not legislate for Southern Rhodesia without the consent of the Rhodesian Government.
Which ONE of the following statements is WRONG?
A) An Act of Parliament may override international law.
B) An Act of Parliament may change the common law.
C) An Act of Parliament may override a constitutional convention.
D) An Act of Parliament must be compatible with the provisions of the European Convention on Human Rights.
CORRECT ANSWER D - there is nothing to prevent Parliament enacting legislation which is incompatible with the European Convention on Human Rights. If the courts make a declaration under s 4 of the Human Rights Act that the relevant legislation is incompatible, this does not invalidate the relevant legislation.
Which ONE of the following statements is CORRECT?
A) The doctrine of Parliamentary supremacy is a constitutional convention.
B) Dicey said that only the courts could overturn an Act of Parliament.
C) An Act of Parliament may operate with retrospective effect.
D) Acts of the UK Parliament and Scottish Parliament are of equal status on devolved matters.
CORRECT ANSWER C - an Act of Parliament may operate with retrospective effect. For example, in Burmah Oil Co. v Lord Advocate [1965] AC 75, the British Government had ordered the destruction of oil installations owned by Burmah Oil to prevent advancing Japanese forces obtaining control of them. The company sought compensation for this. The House of Lords found that the Crown was liable to pay compensation. Parliament then enacted the enacted War Damage Act 1965. This Act applied retrospectively and so removed the right to compensation.
Option A is false - Parliamentary supremacy is not a constitutional convention.
Option B is false - Parliament can overturn an earlier Act, not the courts.
Option D is false - the UK Parliament is sovereign so can pass Acts which override Acts of the Scottish Parliament, albeit this would result in a constitutional clash if the Scottish Parliament did not approve the Act. The Sewel Convention, although codified in a statute, is not legally enforceable (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).
TRUE OR FALSE:
A court which considers that a provision in an Act of Parliament is incompatible with a right contained in the European Convention on Human Rights will make a declaration to this effect pursuant to section 3 of the Human Rights Act 1998.
FALSE - Such a declaration is made under section 4 of the Human Rights Act. Section 3 provides that, so far as it is possible to do so, a court should read and give effect to legislation in a way which is compatible with Convention rights.
It has been said that it is within Parliament’s power to pass an act to ban smoking on the streets of Paris.
Which of the following best describes whether that statement is correct?
A) An Act passed by Parliament, no matter how absurd, would have to be enforced by the courts.
B) There are legal limitations as to the territory that can be covered by Acts of Parliament.
C) There are no legal limitations as to what acts Parliament can pass in regard to the subject matter; however there are practical ones
D) There are legal limitations placed on Parliament by the devolution Acts that preclude an Act of this nature.
E) The doctrine of implied repeal supports the notion that each successive parliament is supreme.
CORECT ANSWER C since it acknowledges whilst there are no legal limitations on such an Act, there are clearly practical ones. It is ludicrous to think that the French authorities would ever enforce an Act passed by the UK Parliament banning smoking in Paris.
Option A is not the best answer, as it fails to acknowledge the reality of the situation, namely at a practical level the Act is completely unenforceable.
Option B is wrong as there are no legal limitations on parliamentary supremacy regarding the territory that an Act may cover. Nevertheless, as stated above regarding option A, in reality the Act is unenforceable.
Option D is not the best answer, since devolution Acts would not be relevant to the issue at hand.
Option E is not the best answer as the question makes no reference to the doctrine of implied repeal.
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 which 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.
CORRECT ANSWER 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 recognized by the courts as a constitutional statute and so cannot be impliedly repealed.
The government proposes to codify all conventions and prerogatives by identifying their content and placing them in a bill to be put before Parliament. This reform was promised by the government in its manifesto during the election campaign which brought it to office.
Which of the following statements would be the best advice to the minister in charge of this project?
A) IT will not be possible as part of this reform to abolish outdated prerogative powers – that is beyond the power of Parliament.
B) This reform cannot affect the attitude of the courts to conventions.
C) Because this was part of the government’s manifesto at the election the legislation will not require the royal assent.
D) Because of the Salisbury convention, it would be unlawful for the House of Lords to reject the legislation.
E) This reform will help to define the content of conventions with more certainty.
CORRECT ANSWER E
because codification will lend otherwise unwritten conventions more certainty.
Option A is wrong because Parliament can amend prerogatives by statute. The Fixed-Term Parliaments Act 2011 is an example of this.
Option B is wrong because the very purpose of statute is to change the law and courts will recognise this.
Option C is wrong - there is no such principle.
Option D is wrong. It would be a breach of the Salisbury convention for the House of Lords to reject legislation which had been promised in an elected government’s manifesto, but conventions do not have the force of law, so it would not be unlawful.
A newspaper editor has asked his staff to provide a glossary of terms used in the UK constitution, including the Salisbury Convention.
Which of the following statements offers the best description of the Salisbury Convention?
A) The Salisbury Convention requires the House of Commons to pass legislation which is part of the manifesto of the largest political party in the Commons.
B) The Salisbury Convention requires the House of Lords to pass all financial bills emanating from the House of Commons.
C) The Salisbury Convention requires Parliament normally to obtain the consent of the devolved countries where legislation impacts on devolved legislation.
D) The Salisbury Convention requires the leader of the largest party in the House of Commons to become Prime Minister.
E) The Salisbury Convention requires the House of Lords should pass a bill which gives effect to a major part of the government’s manifesto.
CORRECT ANSWER E
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.
Option A is wrong because the government does not need to use a convention such as this in the House of Commons because it should have the majority it needs to pass the legislation it wishes to pass.
Option B is wrong, because the Salisbury Convention refers to any government bill which is part of the manifesto and not just financial bills.
Option C is wrong because although a convention that Parliament should not pass legislation relating to devolved matters without the consent of the devolved legislatures does exist, it is called the Sewel Convention.
Option D is wrong because although there is a convention that says that the leader of the largest party in the House of Commons becomes Prime Minister, it is not called the Salisbury Convention.
The UK Parliament has passed an Act changing the Scottish education system without the consent of the Scottish Parliament. The Act was also opposed by a majority of MPs in the UK Parliament representing Scottish constituencies. The minister in charge of the Bill leading to the Act stated that, although he was unable to make a statement of compatibility, the UK Government nevertheless wished the House of Commons to proceed with the Bill. Education is not listed in the relevant devolution legislation as a reserved matter.
The Scottish Government would like to challenge the validity of the Act.
Can the Scottish Government successfully challenge the Act’s validity?
A) Yes, because the UK Parliament breached the Sewel Convention in passing the Act without the consent of the Scottish Parliament.
B) Yes, because the UK Parliament breached the Sewel Convention in passing the Act without the consent of a majority of MPs representing Scottish constituencies.
C) No, because the UK Parliament is supreme and the Sewel Convention is not legally enforceable.
D) Yes, because the minister in charge of the Bill was unable to make a statement that it was compatible with Convention rights.
E) No, because the only limitation in the devolution legislation on the UK Parliament’s power to legislate for Scotland relates to the Scottish legal system.
CORRECT ANSWER C as 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).
Option A is wrong as, although the UK Parliament most probably breached the Sewel Convention in passing the Act without the Scottish Parliament’s consent, the doctrine of parliamentary supremacy means that it can override constitutional conventions as they are legally unenforceable.
Option B is wrong as it sets out the Sewel Convention inaccurately, and in any event MPs representing Scottish constituencies do not have a veto over matters pertaining to Scotland.
Option D is wrong, as the doctrine of parliamentary supremacy means that UK Parliament can legislate contrary to Convention rights.
Option E is wrong as there is no such legal limitation on the UK Parliament’s powers in the devolution legislation. There is an argument that the Acts of Union have limited the UK Parliament’s supremacy in certain fields, including aspects of the Scottish legal system, but that is distinct from the devolution legislation.
