Parliamentary Sovereignty

Parliamentary Sovereignty

• Parliamentary Sovereignty is the right of parliament to make and unmake any law
• No person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament
• Parliament can legislate on any subject-matter
• No parliament can be bound by any previous parliament, nor can a parliament pass any Act that will bind a later parliament
• No other body has the right to overrule or set aside an Act of parliament
• Parliamentary sovereignty is not subordinate to common law principles like rule of law
• Parliamentary sovereignty is not a creation of judicial interpretation, rather than inherent legal authority
• Parliament possesses unlimited power and contends that Parliament cannot legally limit its own powers through self-imposed constraints
• European law and judicial review may influence the practical exercise of sovereignty of parliament, but they do not fundamentally alter its existence
• Enacting laws that undermine the rule of law may lead to a constitutional crisis
• The role of the judiciary is underestimated where judicial review has challenged legislative acts deemed unconstitutional
• Parliament’s authority can be exercised within a framework that respects both legislative intent and procedural integrity

Shifting Power

• The House of Lords complements and mirrors the work of the Commons, but its powers have been weakening since at least the 17th century
• 1215: Magna Carta established written legal boundaries on what a monarch could or could not do
• 1265: The House of Commons began to emerge as a separate entity in the parliament convened by Simon de Montfort
• 1642-1649: The English Civil Wars transformed the balance of power from the king to the Parliament
• Bill of Rights 1689: Parliament became de-facto sovereign of the State
• The election of members of parliament ought to be free
• The power of the King of suspending or dispensing with laws without the assent of parliament is illegal
• The Act of Settlement 1701: The king occupies a throne not because he was a member of the royal family, but under parliamentary title
• The Parliament Act of 1911 curtailed the powers of the House of Lords
• All legislative power relating to money bills was taken away from the House of Lords
• By the end of the 18th century, the supremacy of the Commons had been fairly clearly established
• The history of the development of the British Constitution could be characterised as a slow but steady handing over of the prerogative and unaccountable powers of a single sovereign to the control of an accountable Parliament
• Parliamentary democracy exists alongside a constitutional monarchy

British Parliament

• Consists of the House of Commons (elected chambers), House of Lords (appointed second chamber) and The Crown Institution (King/Queen)
• The House of Commons is the Lower Chamber with 650 elected members of parliament
• The Speaker and 3 deputies are elected by the MPs and preside over the house
• The PM has to select a government from the MPs elected from the House of Commons and peers who are members of the House of Lords
• The House of Commons has predominance over the House of Lords
• The House of Lords originally had hereditary membership until 1999, when only 92 peers could inherit their position
• Now the majority of members are selected by the PM based on expertise
• The Crown-in-Parliament once exercised supreme rule over all executive, legislative and judicial matters until the 13th Century
• Today, the Monarch has a symbolic function as Head of the State, through conventions on an apolitical basis

Main Powers and Roles

• The UK parliament has the power to assent to or deny bills
• Parliament is sovereign and implements public policy programmes
• No other institution can produce legislation that overrides parliament
• MPs represent their constituencies and participate in debates
• MPs vote on legislation and serve on parliamentary committees
• Parliamentary committees scrutinise government actions and help ensure accountability, transparency and effective governance
• The Speaker presides over debates and determines the order in which members speak
• The Speaker performs a quasi-judicial function when dealing with internal disciplinary issues concerning the conduct of the MPs
• Parliament determines whether a bill is a money bill

Opposition and Shadow Cabinet

• The opposition raises reasoned objections to legislative proposals and criticises government performance
• The opposition presents itself as a 'govt in waiting'
• The opposition has alternate policies, an alternate leader, and a government team (Shadow Cabinet)
• The Shadow Cabinet scrutinises the government through Shadow Cabinet Members, known as Shadow Members
• Shadow members monitor and critique the work of their corresponding Government Ministers
• The Shadow Cabinet develops alternative policies which are formulated and presented to the public and debated in Parliament

Functions of Parliament

• Representation: Representing the views and interests of the electorate
• Deliberation: Debating and discussing issues of public importance
• Legislation: Making and amending laws
• Authorizing expenditure: Approving government spending
• Making governments: Forming and supporting the government
• Scrutiny: Holding the government to account
• Both the Commons and the Lords perform three main functions: passing legislation, scrutiny of the executive, and providing ministers
• The House of Commons has exclusive power to give consent to taxation
• The House of Lords cannot interfere in the passage of money bills, but can amend non-financial legislation
• Scrutiny of the executive is done by the opposition in parliament, done various ways- Questions to ministers, select committees, debates

Privileges of UK Parliament

• The grant of Parliamentary privileges to the MPs can be traced to the struggle between the King and the Parliament through the English Civil War of 1642-49 and the Glorious Revolution of 1688
• In the absence of a codified constitution, these privileges have been demanded from the monarch by the Speaker of the House of Commons as a symbolic gesture at each parliamentary session
• Two main components: freedom of speech and exercise by Parliament of control over its own affairs (exclusive cognisance)
• English Bill of Rights 1689, Art.9 provides freedom of speech and debates or proceedings in Parliament
• Parliamentary actions should not be impeached or questioned in any court or place outside Parliament
• The freedom of speech and debate for MPs of each House is a cornerstone of Parliamentary democracy
• A v The United Kingdom (2003) 36 ECHR 51: A case was filed in the ECHR for defamation against an MP after he accused another of criminal activities
• The Court found that the inability of a member of the public to sue a Member for defamatory words spoken in Parliament was justified to protect free debate in Parliament in the public interest

Qualified Privileges

• Qualified privileges are mainly for members and staffs of parliament and other legislative and official bodies
• Stockdale v Hansard (1839) 9 Ad & El 1: A report published as indecent and obscene by the official printer for the House of Commons was sued for libel
• It was determined that The House of Commons does not possess an absolute privilege to publish defamatory statements
• Although the Parliament has certain privileges, it could not infringe on individual rights outside parliamentary proceedings
• The Parliamentary Papers Act 1840 protects Parliamentary publications with parliamentary privilege, if the Speaker duly issued a certificate
• The Defamation Act 1996 provides that publication of any report be privileged unless malice is shown
• The Parliamentary Privilege Act 1770 aims to clarify and limit the scope of Parliamentary privileges
• Re Parliamentary Privileges Act 1770 (1958) AC 331/ Strauss Case: MP Strauss wrote a letter to another MP making allegation against London Electricity Board and was sued for defamation
• The act allows for legal actions against MPs, but it does not extend to actions based on speeches or proceedings made within the Parliament
• There are no absolute Parliamentary Privileges outside formal parliament proceedings
• The communication between MPs does not fall within the ‘proceeding of parliament’ and Strauss can be held liable for libel