location of sovereignty understanding

Unit 2.4.4

Sovereignty refers to 'supreme authority' or 'ultimate legal power'. In Britain, the notion of parliamentary sovereignty - that sovereignty is held …

by the institution of Parliament - is one of the most important principles of the British constitution. Indeed, the constitutional scholar A.V Dicey called parliamentary sovereignty one of the 'twin pillars of the constitution', the other being the Rule of Law.

AV Dicey said there were three parts for doctrine of Parliamentary Sovereignty:

Parliament can make laws concerning any matter, No parliament can bind its successor and that a valid act of parliament cannot be overturned by any other body

" Behind the legal sovereign that the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow. This is the political sovereign. In democracies, the legal sovereign receives its authority from the electorate, whatever be the basis of the right of vote, and is …

answerable to it for the exercise of its powers " - An introduction to the Study of the Law of the Constitution 1885

In Britain, the concept of parliamentary sovereignty developed through time. Following the formation of the English Parliament under John I …

in 1215, the authority of Parliament increased over centuries as that of the Crown diminished. Where this balance of power lay was a foundation of the English Civil War (1642-1651).

In 1689, following the glorious revolution, the Bill of Rights codified more of the powers of Parliament into the constitution. Notably:

Statute Laws could not be overruled by the monarch, Only Parliament could levy taxes, Parliament would be elected by free elections and MPs and Lords were protected by parliamentary privilege.

Following the 1689 bill of rights, Parliament could be deemed sovereign in england. the acts of union 171 saw …

the Parliament of England (in Westminster) become the Parliament of the United Kingdom.

Legal sovereignty and political sovereignty are often also referred to as De Jure (by law) and De Facto (by fact) sovereignty. Legal sovereignty incontestably lies with ….

Parliament in the UK. It lies there because of all the factors that A.V Dicey had laid out. A.V Dicey himself recognised, however, that there was a difference between legal and political sovereignty.

Whilst power belongs to Parliament, it is clear that ultimately Parliament is beholden to the population (through what is known as popular sovereignty). If Parliament does not accede to the broader wishes of the electorate …

then it will be removed, either via a general election or, ultimately, if it is needed, via revolution. Therefore, the electorate is politically sovereign, and this impacts the way that Parliament operate.

There are numerous potential challenges to the concept that …

political sovereignty lies with Parliament and instead lies elsewhere. The alternatives include the executive, judiciary and devolved bodies

Whilst sovereignty lies in Parliament, in the UK political system Parliament is undoubtedly dominated by the Executive. This is what Lord Hailsham termed …

the elective dictatorship. Most governments under the UK system are able to dominate the parliamentary agenda. For example, Tony Blair and Margaret Thatcher lost only four votes in their 10 year and 11-year premierships respectively

Further to this, between 1945 and September 2019 there were 19,919 divisions in the House of Commons, of which …

99.2% were won by the government. This clearly indicates how strongly the government usually dominate Parliament.

under Standing Order 14 of the House of Commons the government is given priority over the parliamentary agenda. Very little time is given to …

backbench bills and these almost always need the support of the government to become law. Other parliamentary time is normally limited to 20 days for opposition business and 48 days (mostly on Fridays) for backbench business.

As the executive is so dominant over Parliament, it can be argued that …

really sovereignty lies with the executive, rather than Parliament as a whole.

Unlike in the US, the legislature cannot force Parliament or the Government to take any action it does not want to. A good example of this was ….

following the ECtHR decision in Hirst v United Kingdom (2005) that the UK was in breach of the ECHR by imposing a blanket ban on prisoners voting in the UK. Despite this direction, Parliament, led by the government, did not change the law in this instance

if a parliament or government is found to be undermining the rule of law, it comes under significant pressure following judicial rulings. This has been particularly the case since ….

the creation of the Supreme Court that has bought a greater separation of powers and, consequently, arguably greater legitimacy of the courts

In some prominent recent cases such as Miller vs Secretary of State for Exiting the European Union and Miller vs Prime Minister, the Supreme Court has found against the government on inherently political issues. In both cases, the government's policy has therefore had to …

be amended, showing that some political sovereignty may reside in the judiciary and that the trend might be that this is growing as courts seem more willing to tackle political issues (what is known as judicial activism).

Since 1998 power has been devolved to the nations of the UK and to the regions of the England. The process of devolution has granted devolved powers to the nations and regions of UK, whilst reserved powers (like Defence and Foreign Policy) are retained by Westminster

Since 1998, devolved powers to the nations of the have grown through new statute laws like the Scotland Act (2016) and Wales Act (2014). Scotland and Wales now have, for example, significant powers over varying taxation. It has therefore been argued that devolution has reduced parliamentary sovereignty

Although devolution could be legally reversed it is now a deeply ingrained part of the British political system. Technically and legally, the UK Parliament could …

pass legislation on 'devolved powers'. For example, the UK Parliament could pass a law that said that Scottish students should pay the same tuition fees as English students. However, in reality, they would never do this as it would create a constitutional crisis - clearly showing Parliament's political sovereignty has been reduced.

Britain was a member of the EU from the 1st of January 1973 until the 31st January 2020. Whilst a member of the EU there were significant implications on where sovereignty lied. In essence, whilst a member of the EU ….

Britain had pooled sovereignty with the other member states. In doing so, Britain had to accept the supremacy of EU Law over UK law. This meant that many EU directives and regulations had to be transferred into UK Law.

There are several examples of EU directives that by necessity became UK Law. these include …

The working time directive - This gives workers a minimum amount of holiday each year and limits the working week to 48 hours. The general data protection regulations - These regulations were turned into UK Law in the Data Protection Act (2018) and give greater ownership to citizens over their personal data

Between 1993 and 2014: 945 statute laws had been passed and 231 of these …

implemented EU obligations. 33,160 statutory instruments had been passed and 4283 of these implemented EU obligations.

In 1990 a significant court case before the Supreme Court confirmed the supremacy of EU Law. The case was bought by Spanish fisherman who claimed that by passing the Merchant Shipping Act (1988) the UK had breached EU law by …

by requiring ships registered in the UK to have a majority of British owners. At the end of length litigation, the case reaches the Appellate Committee of the House of Lords (than the UK's supreme court). The court ruled in favour of Factortame, indicating the supremacy of EU law.

The notion that sovereignty had been lost to the EEC was a key component of displeasure with the EU and was utilized by the leave campaign in …

the 2016 EU Referendum. Their famous slogan 'take back control' appealed to voters who felt that the British parliament no longer mattered.

The act of Brexit is, however, an exercise in the notion of parliamentary sovereignty. Whilst in the European Communities Act (1972) and subsequent statute laws ….

political sovereignty had been voluntarily pooled with the European Union, the act of Brexit had restored that sovereignty back to Parliament. For example, should Parliament want to it could now repeal the Human Rights Act (1998) and leave the ECHR. Whilst a member of the European Union it would not have been able to do this as signing up to the ECHR was a prerequisite of membership of the EU.

there is no doubt that Brexit has also caused tensions over the issue of sovereignty. This is most notably the case because …

Scotland voted by 62%-38% to remain in the EU. As such, they feel that they have been dragged out the EU against their will. Brexit has undoubtedly made a second Scottish Independence Referendum more likely.