4 (a) What is Parliament?Erskine May: ‘Parliament is composed of the Sovereign, the House of Lords and the House of Commons. These several powers collectively form the legislature; and as distinct members of the constitution they exercise and enjoy privileges peculiar to each.’What is Parliament? Discussion of Parliament can be confusing because people use the term in different ways. Sometimes they are referring to The House of Commons, or the House of Commons and the House of Lords, or (not usually) to the definition of Er skine May (see above).The visible manifestation of May’s definition is the State Opening of Parliament, when the Monarch delivers a ‘Gracious Speech from the Throne’ in the House of Lords, to which the Commons are summoned by Black Rod, and have to stand in the Corner (at the Bar- essentially denied entry to the Chamber).It is, of course, pure theatre, and utterly misleading- the speech having been written by the Prime Minister etc.On the other hand, the definition, incorporating the Executive, is reflective of the executive’s presence in the legislature; so that the distinction between executive and legislative so evident when there is a separation of powers is not the case in the United Kingdom.It follows that discussion on the Reform of Parliament is about changing power relationships within Parliament rather than on the constitutional relationship between different institutions as, say, between the US President and Congress.
5 (b) Where does/should power lie in parliament? Transition from the dominance of the Crown in the Middle Ages to the dominance of the Ministers of the Crown in the 20th centuryLacking a formal constitution, the relationship between the various elements have changed dramatically in the course of history.In the early phase the monarch was the most important, and parliaments met infrequently- usually when the monarch needed money in addition to the revenues of customary taxation. Monarchs tended to issue edicts and proclamations (creating new laws) , and setting aside those they no longer required.Following the reformation, sanction by parliament, the later Tudor and especially the Stuart Monarchs found themselves increasingly and reluctantly forced to call Parliaments. Consequently, the power of the commons and lords increased.The glorious revolution produced a ‘balanced constitution’ in which the monarch was the executive but had to get parliamentary sanction for laws and taxation.In many respects the constitution of the USA is closer to Brtain’s 18th Century constitution than ours is now.Gradually, power shifted away from the monarch to the Prime Minister (after the middle 18th century)// This transferred the executive function to Parliament//
6 The Parliament Act, 1911Money Bill to become law within a month of passing through the CommonsLords could only delay other bills for two parliamentary sessionsAmended by Parliament Act, 1949, reducing the delay to one sessionBy the end of the 19th century , the rise of political parties and the process of democratisation enabled the House of Commons to exert dominance over the House of Lords. (See Parliament Acts, Above). Control by Commons over finance, lords have limited delaying powers.Thus, we seem to have come full circle, with Executive dominance based on partisan majorities in the House of Commons.These changes have produced competing notions of executive accountability. The reality of accountability is that executives are responsible to democratic electorates, but Liberal critics believe that accountability should be of the executive to members of parliament. (These problems will be expanded in the next leacture).
7 2. The Extent of Parliamentary Power. Determined by the Bill of Rights 1689 that ONLY Parliament had the right to change the lawUnderpinned by the Act of Settlement, 1700, securing the independence of the JudiciaryDoctrine of Parliamentary SovereigntyThe present extent of Parliamentary Power dates from the foundations laid by the Bill of Rights, 1688, and confirmed by the Act of Settlement, 1700, which confirmed the independence of the judiciary. (Scotland de facto became committed to these decisions by the Treaty of Union, but some would dispute this. A major issue was to be the jurisdiction of the General Assembly of the Church of Scotland, because the Presbyterians questioned the right of Parliament to interfer. Disruption of 1843).1. Answered two basic questions. Did Parliament have the right to change the law? And did only Parliament have the right to change the law? Answered in the affirmative- important re taxation, dispensing and suspending powers, and ordinances and proclamations (Monarch could only admonish his subjects to obey existing laws).2. Judges were appointed on good behaviour and their salaries permanently established.These developments have served to establish the Doctrine of Parliamentary Sovereignty. There is no activity over which Parliament may not legislate if it so wishes. (No concept of inalienable rights, nor subjection to a U.S.-stye Bill of Rights).Compliance with the European Convention on Human Rights only applicable so long as Parliament choses. (But is this becoming no more than a legal fiction?)
8 3. Implications of Parliamentary Sovereignty Courts can only interpret Act of ParliamentParliament cannot bind its successorParliament can pass retrospective legislationNo territorial limits to Acts of ParliamentParliament not limited by rules of International LawParliament has no rival authorityCourts can only interpret Acts of Parliament. (Hence Lord Hailsham’s presentation of Britain as an elective dictatorship and a need for a Bill of Rights a la USA. That would raise the problem of Judge-made law.Parliament cannot bind its successor. (For example, over the length of parliaments. What implications does this have for membership of the European Union? Note also the way the Treaty of Union has been changed).Parliament can pass retrospective legislation. It can legalise past illegalities. (Examples are the Indemnity Act, 1920 and War Charges Validity Act, 1925). This is very rarely used, for good reason.There is no territorial limit to its enactments. (Technically could pass laws relating to lands outside British jurisdiction). It does, however, mean it could over-rule acts of the Scottish Parliament. (Devolution not Federalism).Parliament is not bound by the rules of international law.Parliament has no rival authority. (Again, Devolution not Federalism. It does, however, not prevent parliament creating a federal Britain, thereby curtailing its sovereignty ).
9 4. Functions of Parliament Provides personnel for the governmentRepresentationalLegislativeLegitimatingFinancialDebatingScrutinising of the executiveJudicialHere we are thinking essentially of the Commons and to some extent the Lords.Representational Function. Provides personnel for the government. (We shall discuss this in relation to the cabinet. Lords included).Representational Function. (MPS represent parties (local & national), constituents, the nation, special interests (local & national), and themselves. House of Lords, themselves.LegislativeFunction. Major legislation is introduced in the Commons, which has exclusive control over financial aspects// Bills initatved in the Lords are usually consolidating bills and judicial bills. (3 readings + Committee stage in each house, followed by Royal Assent).Legitimating Function. Most legislation comes from HMG, so MPs are not legislators in the full US-sense.// MPs, however, may defeat a bill or impose major amendments. (Included referendum provision on Scottish Devolution in the 1970s, which killed the process (40 per cent rule). Recently concessions on FoundationHospitals and probably on student tuition fees).Financial. Main duty is to raise supply for the executive// The friction between parliament and the executive (Monarch) and latterly the Lords over this matter has been the evolution of parliament itself. // There is a tradition of ‘No Supply Without redress of grievance// Opposition days were known as Supply Days (29).Debating Function. Enables the government and opposition to publicise their stands on a variety of public issues.Scrutinising Function. Scrutiny of the government will be dealt with in the next lecture.Judicial. This is essentially the task of the 12 Lords of Appeal in Ordinary. . (Cases go from them to the Court of Appeal. Appellate Committee of 5 on any one case) This arrangement may be replaced by a formal Supreme Court). .// Commons exercise judical control over their own affairs.
10 5. Privileges Freedom of Speech Speeches in Parliament are not actionableStrangers can be excludedControls its own proceedingsControls the publication of its proceedingsEach House has exclusive jurisdictionFreedom from arrest and molestationAccess to the sovereign through SpeakerPrivileges are designed to ensure the Commons and Lords can exercise their functions without feat of executive pressure// They include:-Freedom of Speech. ‘Freedom of speech and debates of proceedings in parliament, ought not to be impeached or questioned in any court or place outside parliament: Bill of Rights// 1947 Privileges Committee ruled that MPs ought not to enter any contractual arrangement with an outside body, which may hinder that right// (Aimed at TU links. Scargill threatened NUM members who did not toe his line with de-selection// Originally problem with monarch (Elizabeth’s marriage).Speeches in Parliament are not actionable// Protection from libel and slander: ‘Say that outside the House’// Committee of Privileges may rule on the matter. (Speaker may rule against unparliamentary language or expressions (Blackguard, blether, coward, lousy, dog, murderer, impertinent puppy, cheeky young puppy, stool pigeon, villains).Can exclude strangers.// Directed against the King’s Spies.Controls its own proceedings.Controls the publication of its proceedings. (Memebers can edit Hansard. Could cause problems for the press. Systematic reporting a 19 century development).Each House has rights of exclusive jurisdiction. (a) Each House can rule on the lawfulness of its own proceedings. (b) Implied right of punishment of members and (c) MPs have the right to be tried by Parliament.Freedom from Arrest and Moestation. // Not used significantly since imprisonment in civil actions was abolised (esp. debt)// Modern manifestation is the inadmissability of an MP as Bail, Freedom from Jury Service, and Freedom from Subpoenas- i.e. cannot be stopped.Freedom of access to the sovereign through the Speaker.
11 6 Conclusion Parliament is Sovereign (not the people) Powers have shifted to the Commons or rather its leaders in the cabinet.Privileges protect members from executive and judicial constraintsDe facto limitations on de jure power is extensiveIn the British Constitution Parliament in its fullest sense is sovereign (not the people)// The power within parliament have moved decisively to the Commons, particularly the Cabinet, which as the executive exercises the Royal Prerogatives//The undertake their tasks the Commons and Lords enjoy privileges to protects its members from both executive and judicial constraints//The power of parliament may be total in a de jure sense under the doctrine of Parliamentary Sovereignty, but de facto, while Parliament may have formal institutional power it is not the only influence on decision-making: We have to consider electoral pressures (democratic influence), the political parties, pressure groups, and the civil service- not to mention the constraints of international obligations and external realities//In terms of practical politics, therefore, it’s not easy to assess exactly how much power Parliament exercises.Does Parliament Matter?