B.A. LL.B. (Five Years) Sem 3 Political Science (Major World Governments) 2016 Dec Question Paper with Solutions

Part A. The legal powers of Parliament

1. Sovereign law-making power. Parliament can make or repeal any law on any subject. Dicey called this the "right to make or unmake any law whatever". No court can declare an Act of Parliament invalid, as the Indian or American courts can. A later Parliament can also repeal any earlier Act, so no Parliament can bind its successors.

2. Power to change the constitution. There is no written constitution to amend by a special process. Parliament changes the constitution by an ordinary Act. It took the United Kingdom into the European Communities by the European Communities Act 1972. It then repealed that Act by the European Union (Withdrawal) Act 2018, with effect from exit day on 31 January 2020. It created devolved governments in 1998 and the Supreme Court in 2005.

3. Power over taxation and spending. The Bill of Rights 1689 declared illegal any levying of money for the Crown "by pretence of Prerogative without Grant of Parlyament". So every tax and every pound of public spending needs Parliament's authority. Within Parliament, the Commons controls money. Under the Parliament Act 1911, s.1, a money bill becomes law even if the Lords do not pass it within one month.

Three cases that show the powers at work

Jackson v. Attorney General. In Jackson v. Attorney General, [2005] UKHL 56, opponents of the Hunting Act 2004 challenged it in court. That Act was passed without the consent of the Lords, under the Parliament Act 1949. They argued that the 1949 Act was itself invalid, because it too was passed by the Commons alone under the 1911 procedure. All nine Law Lords rejected the challenge. Lord Bingham held that "The 1949 Act and the 2004 Act are Acts of Parliament of full legal effect". The case shows that the Commons and the King can make law without the Lords in the way Parliament itself has laid down.

R (Miller) v. Secretary of State for Exiting the European Union. In 2016 ministers planned to give notice of leaving the European Union under the prerogative, without an Act. In R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, the Supreme Court held by eight to three that this needed primary legislation. "Parliamentary sovereignty is a fundamental principle of the UK constitution" (para 43). Ministers could not use the prerogative to take away rights that an Act had created. Parliament then passed the European Union (Notification of Withdrawal) Act 2017.

2. The expressive function. It is the office of the Commons "to express the mind of the English people on all matters which come before it". MPs speak for their constituencies and for the views of the country. Since June 2010 the Backbench Business Committee has given backbench MPs their own time in the chamber. They use it for debates the Government might prefer to avoid.

3. The teaching function. Bagehot said that a great open council "ought to teach the nation what it does not know". Debates on war, the economy or the constitution explain the choices to the public. Reports and broadcast proceedings now carry this work far beyond the chamber.

4. The informing function. In the Middle Ages the Commons told the King what was wrong. Today it lays grievances "before the nation, which is the present sovereign". MPs raise constituents' complaints through questions, debates and petitions. Ministers must answer them in public.

7. The scrutiny function. On 25 June 1979 the Commons voted to create departmental select committees. Each one shadows a major government department, takes evidence from ministers and officials, and publishes reports. Since the reforms of 2010, which followed the Wright Committee, the whole House elects committee chairs by secret ballot. This has made the committees more independent of the whips. Questions to ministers, including Prime Minister's Questions, add day-to-day scrutiny.

8. Treaties and war. Treaties are made by the Crown. But under the Constitutional Reform and Governance Act 2010, s.20, a treaty must first be laid before Parliament. It may not be ratified until 21 sitting days have passed. By a modern convention, the Commons debates before troops are committed. On 29 August 2013 it rejected the Government's motion on Syria by 285 votes to 272, and no military action followed.

9. Judicial and disciplinary functions. Until 2009 the House of Lords was the highest court of appeal. The Constitutional Reform Act 2005 moved that work to the Supreme Court. Each House still disciplines its own members and protects its privileges.

How the powers are shared between the two Houses

1. Executive dominance. A Government with a large majority and loyal whips usually gets its bills through. In 1976 Lord Hailsham called this an "elective dictatorship".
2. Human rights. Under the Human Rights Act 1998, s.4, a higher court may declare an Act incompatible with Convention rights. The Act stays valid, but Parliament comes under pressure to change it.
3. Devolution. Section 28(8) of the Scotland Act 1998 records that Westminster "will not normally" legislate on devolved matters without consent. In Miller I the Supreme Court held this a political convention that the courts do not enforce (paras 148 and 151).
4. The people. Referendums, such as that of 23 June 2016, carry a political force that Parliament finds hard to ignore, though in law they bind no one.