Chapter 6 End-of-chapter questions

Match each of the following legal propositions to the case that is authority for it.

The judiciary may have recourse to proceedings in Parliament under certain circumstances without breaching the notion of Parliamentary privilege.

Parliament retains 'exclusive cognisance' - that is, it can set its own rules for qualification without judicial interference. Refusing to comply with these rules can mean exclusion from Parliament.

The court is the ultimate authority for the scope of Parliamentary privilege. The courts are not precluded from examining Ministers' expenses.

The court is not prohibited from examining the legality of a decision to prorogue Parliament - it is not prevented from doing so by Parliamentary privilege.

It will be presumed that Parliament intends to comply with fundamental values and principles such as access to justice. When delegated legislation conflicts with such principles, absent some specific legislative provision, they will be invalid.

The notion of Parliamentary privilege is not itself incompatible with the European Convention on Human Rights.

The Parliament Acts do not create secondary, delegated legislation, but an alternative route for the passage of primary legislation. Legislation passed under those Acts is valid.

Sometimes, it has been questioned whether the UK system operates as an 'oligarchy'. What are some arguments for this proposition? Select all that apply.

Corporate and financial interests often disproportionately influence government.

Some members of the House of Commons and many members of the House of Lords hail from exclusive, upper-class backgrounds, and often had prior careers in industries such as finance.

Parliament is prohibited, by convention, from legislating in ways which would negatively affect big business.

There is a convention that the House of Lords does not normally interfere with legislation which enacts a party's manifesto promises.

Laws prohibit political advertising on television, either from parties or from think tanks and other influential bodies, during election periods (with some limited exceptions).

Parties require positive media coverage in order to get elected; therefore, certain media 'moguls', including those who own media and newspaper companies, exert disproportionate influence on the government.

Parliament is often said to be absolute. However, there have been a number of challenges to this notion. Below are some potential limitations. Match each with its principal proponent.

Parliament cannot enact laws which violate the basic precept of democracy.

Parliament cannot pass that which violates the rule of law, such as abolishing judicial review.

Parliament can set conditions upon how its successors pass legislation by 'redefining itself downwards'.

Parliament cannot go against the 'higher-order law' found in the constitution, and cannot totally abrogate principles such as freedom of expression.

Parliament cannot pass laws which would violate basic common law rights without doing so expressly.

As has been noted, there have been some suggestions that the courts might at one point declare even primary legislation invalid if, for example, it enacted something so extreme like abolishing judicial review altogether. So far, however, the courts have not done this. Apart from the suggestion that Parliamentary sovereignty straightforwardly forbids it, why might this be the case? Select all that apply.

There would be significant political backlash to such a move. Effective governance requires a harmonious and balanced relationship between all three branches of government, and the antagonism such a move would generate would be difficult to justify in all but the most extreme circumstances.

The threat of the courts doing so is enough, under normal circumstances, to encourage Parliament to act responsibly; it takes significant political capital to disagree with the courts, which would normally be expendable.

The courts already have powers to effectively curtail the most excessive legislation. In the case of Evans, for example, a statutory power to overturn a decision of a tribunal was read very narrowly and made subject to significant qualification. This was an exercise in statutory interpretation, but it was enough for some, such as dissenting judges Lords Wilson and Hughes, to accuse the court of effectively usurping Parliament and re-writing legislation to make it more tolerable.

The courts are able to use the provisions of the Human Rights Act to strike down any legislation which breaches human rights, meaning that a similar power is already available to them under statute. There is no need to declare anything incompatible under the rule of law or similar.

Consider the following scenario:
The government is worried about the promotion of terrorism-related materials, and is the target of a tabloid campaign for being 'soft on terrorism'. It introduces a law to Parliament which, ultimately, gives a government body the power to ban the publication of print media where it is thought that the publisher is seeking to promote dangerous activities relating to terrorism. Because of the perceived urgency of the situation, the law is pushed through a 'fast-track' procedure, and it passes quickly. Once the law is in force, the government body seeks to use its power under that Act to ban a newsletter by a protest group which is unrelated to terrorism in any way, but its outputs heavily criticise the government. Based on the case law, which of the following legal arguments might be successful in challenging that ban? Select all that apply.

Parliament passed the Act as a result of media pressure and due to fears of being embarrassed by the tabloid press. Parliament therefore acted for an improper purpose, facilitating the wishes of powerful media moguls rather than the wishes of the people. It should therefore be invalidated by the court.

Parliament passed the parent Act with the intention of limiting media which is dangerous or promotes terrorism. As in the case of Ahmed, by using the power to ban political opponents, the government is acting outside of the remit of its power, and is going against Parliament's intention. It should be declared invalid.

The Act was passed through a 'fast-track' procedure which cannot be used to pass primary legislation, such as the parent Act applying in this case. In addition, legislation passed via 'fast-track' procedure becomes invalid after a certain period of time via 'sunset clause', so this would invalidate the parent act in any case.
Correct.

It should be presumed that, when passing the parent Act, Parliament intended to comply with the fundamental common law right of freedom of expression. Therefore, it should be presumed that any use of power taken under that Act which goes against this right should be declared invalid.

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