Has sovereignty moved between different branches of government?
The following factors can be considered when thinking about whether sovereignty has moved in the UK:
- Due to the dominance of the executive over Parliament, the executive maybe where real sovereignty lies. Although, the executive governs because it has the confidence of Parliament. Recent general election results have seen small (or no) majorities, which potentially makes Parliament more able to challenge the government
- The Supreme Court can challenge parliamentary legislation, and it replaced the Law Lords as the UK’s final court of appeal. Although, the court was established by an Act of Parliament, so could be abolished (or have its powers reduced) by Parliament. Also, the court cannot strike down laws- it is up to Parliament to do this
- Devolution has transferred power away from Parliament, and devolved institutions are not going to have their powers taken away due to the public backlash that this would cause. More powers have been given away in recent years. However, these powers are granted to devolved bodies by Parliament, which retains overall sovereignty
- Referendums have been used more in recent years, which transfers sovereignty to the people, away from Parliament. Although they are advisory rather than binding, Parliament is, in reality, compelled to respect and enact the result. In theory, Parliament does retain sovereignty in deciding whether to respect the outcome of an advisory referendum
- The Human Rights Act has given more power to judges to check the actions of Parliament, as they can issue declarations of incompatibility, meaning Parliament should amend laws. Although, the Human Rights Act is not fully entrenched, therefore Parliament could replace it with something else or set aside its provisions (as some Conservatives wished to do by creating a new ‘British Bill of Rights’)
- EU membership has impacted on parliamentary sovereignty, as EU laws can impact on UK laws. The Factortame case in __1991 __established the primacy of EU law over UK statute law. Cases such as these are cited by those who claim that sovereignty has been lost, and that the only way to reclaim it is to leave the EU. Although, EU supporters suggest that sovereignty has been ‘pooled’, and that all EU member states agree to share aspects of sovereignty in exchange for the benefits that being in the EU brings. In addition, the UK is a member of the EU because Parliament allows it to be, so in this sense Parliament retains sovereignty
Where does sovereignty lie in the UK?
The following arguments can be used to suggest the Parliament is still sovereign:
- Parliament retains legal sovereignty in the UK- statute law outranks all other UK laws, and decisions by other institutions
- Parliament allows for the creation of devolved bodies, and grants them powers, but retains control over them (it could take powers back if it wished)
- Judges can recommend changes to laws using judicial review and other means, but this can be ignored by Parliament (for example, the European Court of Human Rights ruled that banning prisoners from voting was against their human rights, however nothing has been done to change this)
- The Human Rights Act can be used by judges to challenge Parliament, but this can be amended by Parliament if it wishes
- Referendums tend to be advisory rather than binding, so Parliament is not compelled to respect the result
- Parliament makes the decision to be part of the EU, and be subject to EU laws, and can decide to leave the EU. The importance of Parliament in this process was highlighted by the Supreme Court decision that Parliament must be consulted before the triggering of Article 50
The following arguments can be used to suggest that Parliament is no longer sovereign:
- Parliament’s legal sovereignty rests on the political sovereignty of the electorate- ultimately, power lies with the people
- The executive has grown in power and influence to such an extent that it can dominate Parliament, so real power lies with the executive
- Judges have successfully challenged legislation using judicial review and the Human Rights Act
- Parliament has given away powers to devolved bodies, and, despite the fact that legally speaking Parliament could reverse this process, in reality these powers are not going to be taken back (due to the consequences that would follow)
- Although referendums are advisory, in reality Parliament cannot ignore the result (for example, many MPs who did not want Britain to leave the EU voted to trigger Article 50, respecting the wishes of their constituents)
- It could be argued that a nation having complete sovereignty over its affairs is unrealistic in a modern, globalised society, so ‘pooling’ sovereignty is one of the natural consequences of this
- In the UK, who (or what) has political sovereignty?
- In the UK who (or what) has legal sovereignty?
- What process does the Supreme Court use to challenge executive actions?
- Judicial Review
- Most referendums in the UK do not need to be respected/acted on by Parliament - what is the term for this?
- Which 1991 case established the primacy of EU law over UK law?
- The Supreme Court decided in 2017 that who/what needed to be consulted before the triggering of Article 50?
- What created the European Union in 1991?
- Maastricht Treaty
- Which law created the Supreme Court?
- Constitutional Reform Act
- Ministers, junior ministers and parliamentary private secretaries make up this, which the government can count on to support its legislation.
- Payroll Vote
- Is environmental policy the preserve of the UK Parliament or the EU?