1609088 LX1032 Public Law Coursework 1 PDF

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1609088

COLLEGE OF BUSINESS, ARTS AND SOCIAL SCIENCES COURSEWORK SUBMISSION COVERSHEET Coursework MUST be submitted online via Blackboard Learn under the relevant modular/study block/assessment block course page.

Student Number:

1609088

Module Code:

LX1032

Module Title:

Public Law

Module Tutor:

Gerard Conway

Assessment Number/Name: e.g. Coursework 1, Coursework 2, Presentation, Final Assessment

Coursework 1

I confirm that I understand a complete submission of coursework is by one electronic copy of my assignment via Blackboard Learn. I understand that assignments must be submitted by the deadline in order to achieve an uncapped grade. Separate guidelines apply to reassessed work. Please see the Coursework Submission Policy for details. Any coursework or examined submission for assessment where plagiarism, collusion or any form of cheating is suspected will be dealt with according to the University processes which are detailed in Senate Regulation 6. You can access information about plagiarism here. The University regulations on plagiarism apply to published as well as unpublished work, collusion and the plagiarism of the work of other students. Please ensure that you fully understand what constitutes plagiarism before you submit your work. I confirm that I have read and understood the guidance on plagiarism. I also confirm that I have neither plagiarised in this coursework, nor allowed my own work to be plagiarised. The submission of this coversheet is confirmation that you have read and understood the above statements.

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1609088 PLEASE START YOUR ASSIGNMENT HERE Title: ‘While the legislative role of Parliament as reflected in the principle of parliamentary sovereignty is central to the UK Constitution, the way in which Parliament can scrutinise government and hold it to account is also of fundamental importance.’

This essay will critically examine whether the legislative role of Parliament has any importance and the ways and effectiveness in which Parliament can scrutinise government. Parliamentary Sovereignty (PS) is a principle which gives Parliament the highest authority to create or end any law.1 The UK constitution is an uncodified and is defined as ‘the set of laws, rules and practises that create the basic institutions of the state [...] and stipulate the powers of those institutions.’

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Within the UK Parliament, there are three branches in

which Parliament operates, legasliative, judiciary and executive; each having different roles and ways in which they separate powers, and allow scrutiny of the government, while upholding PS. Ultimately, PS is central to UK constitution as it (Parliament) is the highest and most powerful source of authority in the UK and there is no power, apart from the Queen, which can question its validity and role. 3 The Local Government Act 2000, section 21, gave scrutiny abilities to Parliament and through this also came separation of powers as different bodies can scrutinise different governemental departments and organisations.4

The notion of separation of powers stems from Baron Montesquieu in the Spirit of Laws 1784 and the UK has then taken inspiration from Montesquieu’s idea and the separation of

1 Parliament UK, https://www.parliament.uk/about/how/role/sovereignty/ - 2018 2 HL Committee on the Constitution (HL Paper 11, 2001-02), ch 2 3 Parliament UK, https://www.parliament.uk/about/how/role/relations-with-otherinstitutions/parliament-crown/ - 2018

4 Local Government Act 2000, Section 21 2

1609088 powers, alongside different branches Parliament, runs parallel to his idea. 5 The Legislative branch of Parliament is the core law-making, altering and repealing function within Parliament and is mainly dealt with within Parliament. The Executive branch is described as ‘the day-to-day control of the state […] running the country’ and is executed by Departments of the State, the Cabinets and the Prime Minister. 6 The Judiciary resolve disputes and hearing issues with societal issues; they are mainly interpreted by Courts and Tribunals.7 Therefore, it is clear that UK Parliament has a set separation of powers which allows Parliament to have control entirely over how the country and law is run and regulated. With seperations of power comes the ability to scrutinise government and there are particular comittees to deal with issues which arise. However, all are overruled by Parliament. PS is the highest authority in the UK constitution and is central in in English Common Law in its entirety. PS has been traditionally considered and deemed as the ‘central principle of British Constitutionalism’ and is therefore the pinacle of true democracy and is Central to the UK Constitution.8 As suggested by Dicey there are three rules within PS; Parliament being able to make, remove or revise any law, Parliament cannot bind its successors, meaning any successive Parliaments can change previous acts passed and the fina rule is no individual can challenge Parliament’s laws.9 Such rules place Parliament at a supreme position and therefore makes it central to the constitution as without PS there would be no Supreme Court, or power of similar level, in which regulations and laws can be altered or ruled with complete authority. Having an unquestionable position strengthen the UK constitution, which is uncodified, helps new acts be moderated and can be a resort to if, for

5 M Doherty, Public Law, 2016 Page 254 6 L Webley and H Samuels, Complete Public Law (OUP, 2009) 118. 7 Ibid 3, 255 8 J Goldsworthy, The Sovereignty of Parliament, (Clarendon Press 1999) 9 C Taylor, Constitutinal and Adminstrative Law, Edition 5, 2017 3

1609088 example, times are evolving and laws need to be revised. Having PS allows the general public, and organistations, to rely on Parliament to take their views in an unbiased manner and apply potential changes. An example of such ability to change laws for the better is evident in the Union with Ireland Act 1800. 10 This act bought Ireland under UK sovereignty which provided security for Ireland as prior to this they did not have a high level of court (Supreme court equivalent) to resort to. This ultimately, and in the modern day, has benefitted both parties and built a strong tie. Another example of an Act reformed for benefit for society is in 2006 when the Fraud Act was merged with Criminal Law; creating a much simpler structure, without PS changing such Act would take a long time and will need multiple verefications before happening therefore placing PS central to UK constitution due to Parliament being the only central body that is able to legally create or modify laws. Progressively, Parliament is central to UK constitution as it is the only body which its’ actions are unquestionable, unmaluable, and overriding with an unlimited legislative power. In the case between British Railways Board v Pickin [1974] AC 765 (HL) the legal authority and ability of Parliament’s law making was questioned by P (Pickin).11 Pickin challenged the British Railways Act 1968 arguing the statute was invalid due to ireegularities found in the passing prodecure of the act. Parliament had held the case as the court had no legislative or judicial powers to examine an act of Parliament nor question its validity. This is due to Court only being able to ‘construte and apply the enactments of Parliament [and] court has no concern with the manner in which Parliament or its officers […] perform these actions.

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The overriding authority of Parliament,

alongside its legislative capabilities in UK constitution, is unquestionable which shows it is Central and there is no other body with similar authority with the same task and

10 Acts of Union, 1800, Ireland, Great Britain 11 British Railways Board v Pickin [1974] AC 765 (HL) 12 Lord Reid, Ibid 8 4

1609088 authority it carries. Without PS many people in power, in the chambers of Parliament, would be able to manipulate and create laws for self benefit. In contrast, PS can be seen to slowly deteriorate in its authority and being the Supreme level of power in the UK constitution due to the increasing power of the European Court of Appeal, Human Rights and Justice thus reducing its validity as being central.

On the otherhand, PS can be deemed as not entirely important and central to the UK constitution due to the rising power and status of the European Parliamentary Community as a whole; including the European Courts. All of such Courts’ pose a threat to UK PS thus proving it is not central to UK constitution and carries no importance. The UK law was embedded into the EU law under the European Communities Act 1972 which affects most areas of UK domestic law such as commercial, agricultural, employment, environmental and social welfare cases/issues.13 It is clear that EU law has a highly influencial role within general and more advanced UK matters which is causing a rising decline in UK PS and its influence within the country it orginated in; depicting not only a lack of importance but status in UK constitution ultimately proving it is not central nor needed. Such involvement of the EU in the UK was described as an ‘incoming tide’ by Lord Denning in the case of Bulmer Ltd v Bollinger SA [1974].14 The ‘tide’ connotes the overriding, inevitable and unstoppable influence within the UK and the growing uncertainty Government is having in PS withholding its unquestionable dominance in UK matters. Another way PS is losing its authority and is becoming less and less central to UK constitution is the ‘Surinder Singh Judgement’ (SSJ) which is seen as an attempt to get ‘around immigration rules’ by C. Banard; EU Law at Cambridge University. 15 The SSJ allows a UK national to live and

13 John Alder, Constitutional and Administrative Law, Eighth Edition, 2011 14 Bulmer Ltd v Bollinger SA [1974] 15 Catherine Banard, European Law; Cambridge University. 5

1609088 work in the EU and be considered as a EU citizen after spending a given time in the EU. It is clear to see the lack of any PS both in UK constitution and in the European Community as the EU is able to strip any UK sovereignty to the extent the most British and patriotic identity can be overrode by EU citizenship; thus proving PS is not central to UK constitution rather it is EU sovereignty prevailing in dominance and power even in the UK and its citizens.16 Futhermore, it is clear to see such trend, of the UK losing PS in both domestic and overseas cases. This is evident in the case of R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603 HL.17 The supremacy of EU is wholly illustrated as the Spanish fisherman who sought to fish under part of the UK was backed entirely by EU law despite UK Parliament releasing legislation requiring fishermen to be British Citizens.18 The case was held and Lord Bridge declared that any UK Law is insignificant and EU law can ‘override any law’ that is found ‘in conflict with any directly enforceable rule of [EU] community Law’.

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Such declarement proves that UK PS is a

dying principle and carries no recognition both in the UK constitution and EU community thus proving PS is not central to the constitution and in fact EU law and EU conditions are more observed and exercised. Nonetheless, the UK, due to all facts stated above and the decline in PS overall, the UK citizens voted to leave the European Union in 2016 as a bid to reclaim sovereignty and regain the ‘country’ as a whole alongside the ability for “our parliament to make the laws and our acts of Parliament to eb interpreted by our courts not a foreign court” according to Conservative Brexiteer MP Peter Bone.20

Ways in which Parliament can scrutinise Government include methods such as Questions

16 Family Permit UK, https://www.gov.uk/family-permit/surinder-singh 17 Ibid 8 18 Ibid 8 19 Ibid 8 20 Brexit Article, www.politico.eu/article/brexit-ecj-european-court-of-justice 6

1609088 to Prime/Ministers, Debates and Select Committees which include Departmental Select Committees. Each method differs in uses and are applied to different parts of legislation which require scrutiny. Questions are asked weekly to the Prime Minister to obtain information and get an explantion for current issues, Debates within Parliament are to ventilate on going issues that require an immediate response and select committees are to look more into what specific departments are doing and if they are fully exercising their role to help society / follow the legislative rules. 21 Questions to ministers, according to Erskine May, ‘should relate to matters for which those Ministers are officially responsible’.22 Such statement is indicative that this method of scrutiny is effective and important as only relevant questions, which the Prime Minister (PM) can answer, are asked. This is effective as usually spokesmen for the PM have bias answers, whereas if the PM answers directly there is a likelihood that there will be a direct answer as the questions are picked at random, by the speaker, and answers will not be prewritten by the PM. On the otherhand, PMQ (Prime Ministers Questions) can be said to be an ineffective method of scrutiny as questions can be refused an answer if they relate to subjects in which the PM is not responsible for. Such matters which they may refuse to answer will be decisions made by local authorities, the BBC, courts and tribunals, universities and trade unions. 23 Furthermore, some questios may not be answered in its entirety if they are deemed to ‘lead to political embarassement’.24 An example of this in action is when Jeremy Corbyn had questioned Teresa May about the £3.3bn arms deals with Saudi Arabia.

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The PM avoided

answering questions Corbyn asked which in essence would have left the Government 21 A.W Bradley, K.D Ewing & C.J.S Knight, Constitutional & Administrative Law, 16th edition, 2015 22 Ibid 20 23 Ibid 20 24 Ibid 20 25 Merrick Rob, Teresa May calims selling arms to Saudi Arabia helps keep people on the streets of UK safe, 2016. http://www.independent.co.uk/news/uk/politics/arms-sales-saudi-arabia-theresamay-staunch-defence-keep-people-streets-britain-safe-a7230836.html

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1609088 looking bad as the arms deals were illegal. From such reality of PMQ’s it is clear that this method of scrutiny in fact is biased in the sense that no negative light can be shed onto the Government or PM.

Another, method of scrutiny is Debates which are a daiy activity which takes place in Parliament. This method of scrutiny is effective due to the frequency of debates; which allows ministers to bring up both current or proposed issues.26 Debates allow more questions to be asked and discussed in comparison to PMQ which is biased and the matters are fine picked to avoid chances of Government looking negative. Additionally, if a debate needs to be held immediately, this can be executed under the Standing Order 24 Act .27 This order allows debates to happen for urgent consideration; also known as ‘emergency debates’.28 Debates also allow individual MP’s from their respective areas to present views of groups, industries, regions and other entities. This can increase public engagement in Parliament and build trust through scrutiny of the Government. The impact of debates can force ministers to clarify particular rationale behind new laws that may be passed or current national issues and prompt them to reflect on the reasonableness of such new laws and other rules being implemented or used within society.29 Nonetheless, Debates can be deemed to have no effectiveness under scrutiny. This is due to the nature of debating and confrontational behaviour surfacing whilst discussing controvertial topics. Such aggressive behaviour reduces the effectiveness of debates when coming down to an agreement and also allows MP’s to use debates for self gain by taking negative digs towards to the opposition.

26 Ibid 20 27 Standing Order Act 1946 28 Ibid 20 29 Dr H White, Parliamentary Scrutiny of Government Journal, 2009 8

1609088 Finally, the most effective form of scrutiny can be said to be select committees. This is entirely due to the fact they operate within communities and are the only bodies’ who take action on government/public feedback. Most decisions are made entirely by the different departments and they work closely within regions. Select committees have the ability to overview laws and other proposals before they are approved which reduces the chances of bad ideas and ill thought out laws being made legitimate which is an effective way to both scrutinise and amend/avoid bad laws. In contrast, Select Committees can be said to be an obselte method of scrutinising the government as MP’s can manipulate their positions for self gain in terms of their position. Additionally, Select Committees can be deemed to have a minimal impact on the Governenet due to how indedpendant they are incomparison to other methods which can be said to be directly in Parliament; i.e debates. Such independence can be used as a means for personal gain, in terms of position, rather than being an effective scrunity method. Finally, due to the size of departments within Government, Select Committees can be said to not effectively or entirely scrutinise. An example of where this can be applicable is the Ministry of Defence (MoD). The MoD has several sub departments which need scrutiny entirely and but most times only expenditure is scrutinised. The Marconi scandal proved of 1912 proved that MP’s used their ability of governmental knowledge to reap rewards rather than provide effective scrutiny of Cabinet ministers. 30

To conclude, PS is the most powerful principle and is certainly central to UK constitution due to being highest level in which Government resorts to for all issues. There is no principle that comes close to PS for an uncodified constitution like the UK. Therefore, having a governing body which is able to amend, create and apply legislation at any time is

30 F, Donaldson, The Marconi Scandal, 2013 9

1609088 crucial in both running the country and protecting the benefits of citizens; not just political officials. Scrutiny methods have both weaknesses and strengths, however, using all methods together ensures the regulations of Government is done effectively and prevents the likelihood of corruption. Brexit is a clear attempt at regaining the traditional parliamentary powers the UK had prioir to joining the EU and for this reason mainly the public voted to leave the EU; which will be in full affect in 2019. Nonetheless, some reform can be added to methods of scrutiny to increase their effectiveness as they all have underlying weakenesses that reduce their capabilities.

Word count: 2500 Bibliography Acts 

Acts of Union, 1800, Ireland, Great Britain

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European Communities Act 1972, section 2

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Local Government Act 2000, Section 21

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Parliament Act 1911

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Standing Order Act 24 1946

Cases 

British Railways Board v Pickin [1974] AC 765 (HL)

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Bulmer Ltd v Bollinger SA [1974]

Textbooks 

A.W Bradley, K.D Ewing & C.J.S Knight, Constitutional & Administrative Law, 16th edition, 2015, Page 375

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C Taylor, Constitutinal and Adminstrative Law, Edition 5, 2017, Page 316



Doherty, Michael. Public Law. Routledge, 2016. Page 245



F, Donaldson, The Marconi Scandal, 2013, Pages 180-230 10

1609088 

John Alder, Constitutional and Administrative Law, Eighth Edition, 2011, Page 45



L Webley and H Samuels, Complete Public Law (OUP, 2009) Page 118.



J Gold...