LOCATION OF SOVEREIGNTY

Legal sovereignty

• refers to where the law says a ultimate political authority resides within a state

• In the UK, legal sovereignty resides in parliament

• Parliament can make/unmake law on any topic

• Cannot be overridden by any higher authority

Political sovereignty

• refers to where power lies in practice, beyond legal theories. Focuses on who can actively exercise political power

• In the UK, a range of institutions may claim political sovereignty, including: devolved assemblies, elected mayors, other political bodies

Debates over where political sovereignty lies

Parliamentary sovereignty is exercised by:

1. The executive

2. The courts

3. Devolved bodies

4. The people

Debate 1: parliamentary sovereignty is exercised by the executive FOR

• executive controls parliamentary timetable and legislative agenda

• Executive commands a majority in the House of Commons

• Majority can be enforced through whip system

• Executive can overcome challenges from the lords using the parliament acts 1911/49 and the Salisbury convention

Debate 1 AGAINST

• backbench power has increased since 2010

• Greater use of urgent questions

• Creation of the Backbench Business Committee

  • Cross-party committee of MPs that decides when time is oven in the commons for debates chosen by backbench MPs, rather than by the government

Debate 2: parliamentary sovereignty is now exercised by the courts FOR

• creation of the Supreme Court in the Constitutional Reform Act 2005 has led to;

  • Increased judicial review

  • More frequent challenges t government action

• Courts have become a more reliable check on government

Debate 2 AGAINST

• evidence of Supreme Court upholding the sovereignty of Parliament over the executive

  • Eg Miller v PM 2019 and Miller v Brexit Secretary 2017

• Need for Supreme Court intervention questions sovereignty of parliament

Debate 3: parliamentary sovereignty now exercised by devolved bodies FOR

• creation of Scottish/Welsh Parliaments

• Reopening of NI Assembly at Stormont

• Creation of elected mayors

• Increasing political power located outside Westminster

• These bodies can claim a democratic mandate as they are elected

Debate 3 AGAINST

• parliament retains supremacy as deminstrated by Westminster veto of the Scottish Gender Recognition Act

• Turnout often higher in parliamentary elections than devolved elections, lending parliament a stronger mandate

Debate 4: parliamentary sovereignty is now exercised by the people FOR

• increased use of referendums whcih have become a constitutionally expected convention for major constitutional reform

• This places policy-making decisions in the hands of the people

Debate 4 AGAINST

• referendums not legally binding

• Can only be called by parliament

• Underpins parliamentary sovereignty rather than undermining it

Sovereignty in the executive

• due to prerogative powers such as treaty making

• Allows the executive to act without parliamentary approval

• Bypasses legislative scrutiny

Sovereignty in the Supreme Court

• through intepretations of statutes and constraining executive action

• Effectively shapes public policy

  • However:

  • Judges are unelected

  • Relatively few checks on judicial power

Sovereignty in international treaties and agreements

• international treaties bind future UK governments

• UK policy-making must operate within these frameworks

• Exiting treaties is difficult and time consuming as demonstrated by Brexit

Sovereignty in devolved bodies

• devolved institutions have primary legislative power over large policy areas

• Policy differences now exist across the UK

• Creates challenges:

  • The West Lothian Question

  • Further tension over parliamentary sovereignty

Sovereignty in international organisations

• UK obligations to organisations such as NATO, the UN and the Council of Europe

• Membership places constraints on UK action particularly regarding human rights protection

Sovereignty in the people

• power exercised through;

  • Elections

  • Referendums

  • Recall elections

  • Petitions

  • Media pressure

Overall judgement on sovereignty in the UK

• sovereignty in the UK is flexible and shared

• Parliamentary sovereignty remains the core location of sovereignty

• Parliament remains the home of legal sovereignty

• Political sovereignty is more negotiated and dispersed