Past Paper Questions
Parliamentary sovereignty
Executive versus parliament
Influence of SC
Relationship with EU
Evaluate how far Parliament retains sole sovereignty within the UK political system.
Evaluate the extent to which Parliament remains sovereign.
Evaluate the extent to which the UK government’s control over Parliament has reduced in recent years.
Evaluate the view that although the House of Lords has less power than the House of Commons, in practice it exerts more influence on government decisions.
Evaluate the view that judges should not exercise control over the power of government
Evaluate the extent to which the balance of power has shifted from the executive to parliament in recent years.
Evaluate the extent to which the executive has become less powerful in relation to Parliament.
Evaluate the view that the European Court of Human Rights undermines democracy in the UK.
Evaluate how far the judiciary is the right body to protect civil liberties.
Evaluate the extent to which the EU has impacted UK institutions.
Evaluate the view that membership of the EU undermined parliamentary sovereignty.
Evaluate the view that the Supreme Court has too much influence over the executive.
The UK has always had a unique relationship to the EU: Britain opted out of the Schengan area, opted out of the Eurozone (preparations for joining the Eurozone hit the UK hard - Black Wednesday in 1992). We also had a partial opt out on the charter of fundamental rights of the EU - European Courts could not overturn UK laws on these issues — did the UK ever really lose sovereignty?
The Brexit Referendum: in response to growing UKIP support, the Conservatives promise a referendum on the EU in their manifesto, Leave wins 52-48 with a 72% turnout. After the Miller I case, Parliament vote to trigger Article 50, May calls an election to strengthen her majority. This fails and the Tories have to enter an agreement with the DUP, May fails to get a majority to pass her withdrawal plans and they are rejected 3 times. After crushing loss in the European Parliament elections, May resigns, Johnson takes over and pushes a much harsher Brexit (opposed by ON conservatives). Johnson wins the 2019 election with an 80 seat majority, passing a hard withdrawal agreement, with Britain leaving on the 31st January 2020.
Striking Down Laws:
there is no longer a court that can strike down UK laws (like the European Court of Justice), making the SC the highest court in the land (which cannot strike down UK law). Prior to our exit, the UK had accepted the supremacy of EU law (Factortame case 1990). Leaving the ECJ means Parliament has full control of
The European Convention on Human Rights is NOT EU law, but you can say thst the EU is in the process of itself becoming a signatory to the ECHR. All the members have signed up to the ECHR, but the EU itself is not yet a signatory, so if the UK were still in the EU, it would definitively stopped the UK from leaving the ECHR
But
Northern Ireland counters this → under the Windsor Framework, NI continues to follow EU rules on goods entering the single market. This means that any disputes on compliance remain a matter for the ECJ, which would rule on whether the UK has met its obligations (things moving between N Ireland and Ireland have to meet EU regulations, the ECJ is the arbiter of this). Stormont Brake - allows MLAs to raise concerns about changes to EU laws.
Making Laws:
Parliament can now legislate on areas where it couldn’t before e.g. trade and immigration.
Trade — new trade deals have been established since scratch e.g. Australia in 2021, NZ in 2022 and the proposed CP TransPacific Partnership in 2024)
Immigration — we can now establish our own criteria for removal of immigration (Illegal Immigration Act passed in 2023), affording parliament the freedom to set criteria for removal and border control
The Retained EU Law Act (REUL) 2023 — grants parliament the ability to amend, repeal or uphold previously retained EU law; means they can jettison laws they no longer want to uphold. 600 laws have been amended by Parliament.
But
Over 300 EU laws still have to be observed in Northern Ireland in order to uphold the relationship with the Republic of Ireland.
The failure of REUL — most laws such as trade deals are still retained/’rollover’ deals from previous EU arrangements. The tories promised to repeal 4000 laws, but have only changed 600.
Giving power to the executive NOT parliament: the incorporation of EU law into UK law has mainly been delivered by secondary legislation meaning ministers have the power to determine whether they should maintained or repealed (the case for around 2,500 pieces of EU law). EU law is being reshaped by the government, not parliament.
The Brexit Process:
The method of leaving the EU has reinforced parliamntary sovereignty
Miller I case: reinforced that parliament makes the decision to leave, not the governemnt. Also reinforced sovereignty over devolved governments (they couldn’t veto article 50). Power was reserved to Westminster alone, and a majority vote was needed to trigger article 50.
SC ruling on 2018 Legal Continuity Bill decided that EU legislation concerning devolved matters would not immediately go to devolved governments, but to Westminster instead, and would be considered by parliament (by extension, the UK government). The devolved regions who wanted to assume power were unable to do so.
But
the method of leaving the EU has undermined relationships between devolved nations, possibly leading to a future undermining of devolved sovereignty and parliaments.
In Scotland and N Ireland, the majority of support was remain, reinforcing the idea that there is a fundamental ideological difference between regions in the UK. As a result, there have been actions impacting the security of sovereignty (e.g. second Independence Referendum - struck down by SC). In Northern Ireland, there is a republican first minister for the first time in history — perhaps an environment for greater decision and dispute in the future.
Leaving the EU has undermined sovereignty in general - when the UK were in the EU they had pooled sovereignty and had greater sovereignty and influence on the global stage, which has now been lost. Unique relationship with the EU, which has now been lost. Sovereignty in the EU was arguably respected and augmented, and we have now lost this kind of sovereignty.
Withdrawal from the EU:
withdrawal from the EU, especially the withdrawal process, has restored or reinforced parliamentary sovereignty
Miller I case 2017, established that it was the right of Parliament not the government to trigger article 50
2018 legal continuity bill, put laws into Westminster’s hands not governments
BUT
in practice, this has actually put more power into the hands of the government
retained EU law act — most loegislative change has come from government not parliament e.g. 600 laws changed via parliament, 2,500 amended as secondary legislation
reinforces the power of the government within parliament
Supreme Court:
rather than challenging it, the supreme court has arguable actually reinforced sovereignty
Gina Miller case, Johnson after proroguing parliament,
increased independence has limited it from government influence, defended parliamentary sovereignty
R vs attorney general 2015 — the bedrock of constitutionality was described as being parliamentary sovereignty (“the crown of parliament”)
BUT
as an advisory body, the SC has little power to reinforce this dynamic of parliamentary sovereignty if it challenges government’s power
Rwanda bill struck down as unlwaful by all SC justices, passed regardless (passed without any other party support)
also failed to enforce decisions about prisoner voting (Hirst vs UK 2005), Ahmed vs Treasury
legislative powers of the government mean they retain full sovereignty
House of Lords:
can challenge and amend government legislation, act as an effective scrutiny body
amend government legislation on sunday trading, evel, free school meals
has greater and more legitimate processes of scrutiny (32 vs 96 hours on 2020 argicultural bill)
also importantly not dominated by a government majority, 180 crossbenchers, means the government cannot directly control them
BUT
increasing limitations to the lords has actually increased government power
due to their lack of democratic legitimacy, lords have limited power e.g. house of lords act 1911 and 1949
decisions cannot be forced e.g. 3 Brexit deal defeats but legislation went through regardless
democratically limited but thus increases governments power
Backbenchers:
backbenchers can be an important limitation on parliaments power
backbench rebellions can force governments to back down e.g. 2012 — 91 conservative MPs rebelled over Lords reform, 40 rebelled over 2024 Criminal justice bill, which would have made homelessness a crime
can ultimately challenge the government
also vote of no confidence, most significant way to entirely undermine a government
BUT
ultimately dependent on size of their majority
Blair suffered a rebellion by 139 MPs over Iraq, but passed his policies regardless
PMs with weak majorities suffer e.g. May’s minority government faced 33 defeats, but PMs with large majorities don’t e.g. Blair, 4 defeats in 10 years
because of FPTP, winner’s bonus
Devolved bodies:
have arguably moved power away from government and to devolved areas
its unelected and unrepresentative so lacks democratic legitimacy BUT is protected from political influence/independence maintained, only rules on legal or constitutional cases
strike down law as incompatible BUT just advisory
has become increasingly involved in the executive, especially ultra vires action BUT its only an appellate court, applications for judicial review fell by 44% between 2015 and 2019
Could be a 30 marker evaluating the impact leaving the EU has had on parliamentary sovereignty
The European Union Overview:
The EU is a political and economic union, made up of 27 member states
Key developments:
1957 - Treaty of Rome forms the EEC, followed by Common Agricultural policy and customs union afterwards
1973 - the UK joins the EEC (parliamentary decision, before a referendum) and a referendum is then held in 1975 about remaining (67% vote Remain)
1999 - Euro is established, adopted by vast majority of member states (the UK choose not to join)
2003 - Treaty of Nice is signed, committing to enlarging the EU with countries such as Bulgaria and Romania (some resistance in the UK)
2016 - the UK opts to leave the EU
Aims of the EU:
Achieving peace and stability: fundamental aim of the organisation (as the European Steel and Coal Commission), the EU promotes peace in a fractious Europe. In 2024, the EU approved £50bn aid to Ukraine, persuading Hungarian PM to drop the veto against this (passed despite contentions) BUT the EU has recently been a contributing factor to antagonisms in Europe (Eurozone crisis leading to demonstrations in Greece in 2011) and attempts to to incorporate Ukraine with the 2013 Association Agreement may have impacted Russia’s response
The Single Market: trying to achieve economic integration, connected to the four freedoms of goods, capital, services and people. Schengen area allows for frictionless movement between 23 countries. Includes the custom union - member states agreeing to the same tariffs BUT countries do temporarily control borders due to security or migration concerns e.g. such as Austria in 2024 or the migrant crisis in 2015 (these temporary border controls are usually not very temporary as well). Also many capital elements are still nationally managed (e.g. pension regulations)
Economic and Monetary Union: led to the creation of a European Central Bank and a single currency. 20 out of 27 countries have joined the Eurozone, with aligned regulatory conditions required, such as limited government debt (60% of GDP). BUT the Eurozone crisis (2008-2012); several European countries (PIIGS) were unable to repay their government debt. Countries like Greece and Portugal were unable to repay debt, requiring bail outs from the ECB and IMF.
Political Union: seen in the establishment of European institutions such as the European commission (proposing and implementing laws), the European parliament, the European Court of Justice (not the ECHR). All of these groups are supranational (level above the nation states - their interest is the EU’s interest). There are also inter-governmental bodies, such as the European Council, collectively deciding the strategy of the European Union — this is where countries are representing their own countries in intergovernmental bodies, and this coupled with Euroscepticism has made a more politically divided EU.
Enlargement: with the Treaty of Nice, the EU expressed commitment to enlarging the EU e.g. Bulgaria and Romania’s inclusion. Strict conditions need to be met (Copenhagen eligibility criteria) reinforcing the EU as a democratic union (meaning areas like Turkey are prevented from joining).
The UK has always had a unique relationship to the EU: Britain opted out of the Schengan area, opted out of the Eurozone (preparations for joining the Eurozone hit the UK hard - Black Wednesday in 1992). We also had a partial opt out on the charter of fundamental rights of the EU - European Courts could not overturn UK laws on these issues — did the UK ever really lose sovereignty?
The Brexit Referendum: in response to growing UKIP support, the Conservatives promise a referendum on the EU in their manifesto, Leave wins 52-48 with a 72% turnout. After the Miller I case, Parliament vote to trigger Article 50, May calls an election to strengthen her majority. This fails and the Tories have to enter an agreement with the DUP, May fails to get a majority to pass her withdrawal plans and they are rejected 3 times. After crushing loss in the European Parliament elections, May resigns, Johnson takes over and pushes a much harsher Brexit (opposed by ON conservatives). Johnson wins the 2019 election with an 80 seat majority, passing a hard withdrawal agreement, with Britain leaving on the 31st January 2020.
Striking Down Laws:
there is no longer a court that can strike down UK laws (like the European Court of Justice), making the SC the highest court in the land (which cannot strike down UK law). Prior to our exit, the UK had accepted the supremacy of EU law (Factortame case 1990). Leaving the ECJ means Parliament has full control of
The European Convention on Human Rights is NOT EU law, but you can say thst the EU is in the process of itself becoming a signatory to the ECHR. All the members have signed up to the ECHR, but the EU itself is not yet a signatory, so if the UK were still in the EU, it would definitively stopped the UK from leaving the ECHR
But
Northern Ireland counters this → under the Windsor Framework, NI continues to follow EU rules on goods entering the single market. This means that any disputes on compliance remain a matter for the ECJ, which would rule on whether the UK has met its obligations (things moving between N Ireland and Ireland have to meet EU regulations, the ECJ is the arbiter of this). Stormont Brake - allows MLAs to raise concerns about changes to EU laws.
Making Laws:
Parliament can now legislate on areas where it couldn’t before e.g. trade and immigration.
Trade — new trade deals have been established since scratch e.g. Australia in 2021, NZ in 2022 and the proposed CP TransPacific Partnership in 2024)
Immigration — we can now establish our own criteria for removal of immigration (Illegal Immigration Act passed in 2023), affording parliament the freedom to set criteria for removal and border control
The Retained EU Law Act (REUL) 2023 — grants parliament the ability to amend, repeal or uphold previously retained EU law; means they can jettison laws they no longer want to uphold. 600 laws have been amended by Parliament.
But
Over 300 EU laws still have to be observed in Northern Ireland in order to uphold the relationship with the Republic of Ireland.
The failure of REUL — most laws such as trade deals are still retained/’rollover’ deals from previous EU arrangements. The tories promised to repeal 4000 laws, but have only changed 600.
Giving power to the executive NOT parliament: the incorporation of EU law into UK law has mainly been delivered by secondary legislation meaning ministers have the power to determine whether they should maintained or repealed (the case for around 2,500 pieces of EU law). EU law is being reshaped by the government, not parliament.
The Brexit Process:
The method of leaving the EU has reinforced parliamntary sovereignty
Miller I case: reinforced that parliament makes the decision to leave, not the governemnt. Also reinforced sovereignty over devolved governments (they couldn’t veto article 50). Power was reserved to Westminster alone, and a majority vote was needed to trigger article 50.
SC ruling on 2018 Legal Continuity Bill decided that EU legislation concerning devolved matters would not immediately go to devolved governments, but to Westminster instead, and would be considered by parliament (by extension, the UK government). The devolved regions who wanted to assume power were unable to do so.
But
the method of leaving the EU has undermined relationships between devolved nations, possibly leading to a future undermining of devolved sovereignty and parliaments.
In Scotland and N Ireland, the majority of support was remain, reinforcing the idea that there is a fundamental ideological difference between regions in the UK. As a result, there have been actions impacting the security of sovereignty (e.g. second Independence Referendum - struck down by SC). In Northern Ireland, there is a republican first minister for the first time in history — perhaps an environment for greater decision and dispute in the future.
Leaving the EU has undermined sovereignty in general - when the UK were in the EU they had pooled sovereignty and had greater sovereignty and influence on the global stage, which has now been lost. Unique relationship with the EU, which has now been lost. Sovereignty in the EU was arguably respected and augmented, and we have now lost this kind of sovereignty.
Since voting to leave the EU in 2016, the UK has seen powers, previously pooled to the EU, return to the control of the UK Parliament. While this appears to suggest that parliamentary sovereignty has increased, through the powers of striking down laws, making laws and the withdrawal process itself, leaving the EU has actually more fundamentally undermined sovereignty, both by increasing executive powers and the uncertainty around relationships with devolved bodies. As a result, leaving the EU has actually undermined and made parliamentary sovereignty more fragile.
Since leaving the EU, the power to strike down laws has returned to Parliament, which appears to imply that parliamentary sovereignty has increased. Following the ruling on the 1990 Factortame case, EU law had been superior to UK law, meaning the power to strike down laws resided with the European Court of Justice. However, since leaving the EU, the highest court in the UK is now the Supreme Court. While the SC can still offer declarations of incompatibility, their advisory nature means that sovereignty has largely returned to parliament — if a bill passes in parliament, even if it is ruled as incompatible by the SC it can still pass (such as the Rwanda Bill). The ability to strike down laws is now firmly a power of parliament, restoring sovereignty whereas previously the EU had been able to challenge the legislature.
The scrutinising powers of the house of Lords, and the increasing reforms that have taking place to the Lords in the past few years, suggests that executive control over parliament has reduced. The Lords can act as a check on executive power, particularly through scrutinising legislation. For example, in the 2021-22 session, while the executive faced 0 defeats in the Commons they faced 133 defeats in the Lords. The Lords is able to — and much more lilely to — challenge the executive, particularly due to weak whip enforcement in the Lords. This suggests that the executive has less control over the Lords, unable to force them to vote a certain way and facing more legislative challenges than from the Commons, Furthermore, reforms to the HoL have decreased the executive’s control over the composition of the Lords. For example, the introduction of an independent HoL selection committee in 2000 means that the PMs power over who they can appoint to the Lords is checked — for example, Johnson had 8 out of 16 of his nominations rejected. With greater limits to their appointments power in recent years, combined with weaker whip enforcement, it appears that the executive control over the House of Lords is relatively low, and has decreased. However, this can be undermined as it is largely inconsequential for the actual power of the executive, and they still retain influence within the Lords. Firstly, lacking complete control of the Lords does not fundamentally undermine the executive’s control over parliament. While the Lords can reject bills, they cannot force any amendments: for example, while the Rwanda Bill was rejected 5 times by the Lords, it passed regardless. Due to the constitutional restraints placed on the Lords as an unelected body, they fundamentally cannot force the executive to change their policies and therefore, while the executive may not control the Lords directly, this does not challenge their control over parliament as a whole. Therefore, even though the executive may be challenged by the Lords specifically, this does not undermine their control of parliament as a whole.
However, the executive can be more robustly challenged within the Commons,especially through backbench rebellions. As they rely on the continued support of parliament, and cannot pass legislation without their support, it could be argued that the executive do not control parliament. Legislation which faces significant rebellions generally does not pass. For example, the House of Lords reform in 2012 was dropped after a second reading after 91 conservative MPs rebelled over it. Similarly, the Justice Bill in 2024, which would have criminalised homelessness, faced a rebellion by 40 MPs and therefore failed to pass. The executive cannot pass legislation if it faces challenges from the Commons and backbench rebellions, undermining their control of parliament (more significantly than the Lords). More significantly, the executive also rely on the continued support of parliament to operate — the commons can call a vote of no confidence, which ultimately removes the executive (such as Callaghan’s government in 1979). Therefore, as they rely on the Commons both to pass legislation and stay in power, the executive appears to not have power over Parliament, as they can be blocked or entirely removed from power. However, while this theoretically suggests that the executive lacks control over parliament, in practice this is not the case. Firstly, backbench rebellions are made less likely due to methods such as the whipping system, which allow for the executive to control (their party) in the Commons. The threat of having the whip removed — which can fundamentally undermine an MPs chances of reelection, such as David Gauke who failed to re-win his constituency) means that MPs are much less likely to rebel and instead tend to support party lines. As a result, the theoretical power of beckbenchers to hold the government to account and challenge their control is severely limited. Furthermore, votes of no confidence are actually weak in practice because MPs tend to avoid voting against their own party.
Parliamentary sovereignty
Executive versus parliament
Influence of SC
Relationship with EU
Evaluate how far Parliament retains sole sovereignty within the UK political system.
Evaluate the extent to which Parliament remains sovereign.
Evaluate the extent to which the UK government’s control over Parliament has reduced in recent years.
Evaluate the view that although the House of Lords has less power than the House of Commons, in practice it exerts more influence on government decisions.
Evaluate the view that judges should not exercise control over the power of government
Evaluate the extent to which the balance of power has shifted from the executive to parliament in recent years.
Evaluate the extent to which the executive has become less powerful in relation to Parliament.
Evaluate the view that the European Court of Human Rights undermines democracy in the UK.
Evaluate how far the judiciary is the right body to protect civil liberties.
Evaluate the extent to which the EU has impacted UK institutions.
Evaluate the view that membership of the EU undermined parliamentary sovereignty.
Evaluate the view that the Supreme Court has too much influence over the executive.
The UK has always had a unique relationship to the EU: Britain opted out of the Schengan area, opted out of the Eurozone (preparations for joining the Eurozone hit the UK hard - Black Wednesday in 1992). We also had a partial opt out on the charter of fundamental rights of the EU - European Courts could not overturn UK laws on these issues — did the UK ever really lose sovereignty?
The Brexit Referendum: in response to growing UKIP support, the Conservatives promise a referendum on the EU in their manifesto, Leave wins 52-48 with a 72% turnout. After the Miller I case, Parliament vote to trigger Article 50, May calls an election to strengthen her majority. This fails and the Tories have to enter an agreement with the DUP, May fails to get a majority to pass her withdrawal plans and they are rejected 3 times. After crushing loss in the European Parliament elections, May resigns, Johnson takes over and pushes a much harsher Brexit (opposed by ON conservatives). Johnson wins the 2019 election with an 80 seat majority, passing a hard withdrawal agreement, with Britain leaving on the 31st January 2020.
Striking Down Laws:
there is no longer a court that can strike down UK laws (like the European Court of Justice), making the SC the highest court in the land (which cannot strike down UK law). Prior to our exit, the UK had accepted the supremacy of EU law (Factortame case 1990). Leaving the ECJ means Parliament has full control of
The European Convention on Human Rights is NOT EU law, but you can say thst the EU is in the process of itself becoming a signatory to the ECHR. All the members have signed up to the ECHR, but the EU itself is not yet a signatory, so if the UK were still in the EU, it would definitively stopped the UK from leaving the ECHR
But
Northern Ireland counters this → under the Windsor Framework, NI continues to follow EU rules on goods entering the single market. This means that any disputes on compliance remain a matter for the ECJ, which would rule on whether the UK has met its obligations (things moving between N Ireland and Ireland have to meet EU regulations, the ECJ is the arbiter of this). Stormont Brake - allows MLAs to raise concerns about changes to EU laws.
Making Laws:
Parliament can now legislate on areas where it couldn’t before e.g. trade and immigration.
Trade — new trade deals have been established since scratch e.g. Australia in 2021, NZ in 2022 and the proposed CP TransPacific Partnership in 2024)
Immigration — we can now establish our own criteria for removal of immigration (Illegal Immigration Act passed in 2023), affording parliament the freedom to set criteria for removal and border control
The Retained EU Law Act (REUL) 2023 — grants parliament the ability to amend, repeal or uphold previously retained EU law; means they can jettison laws they no longer want to uphold. 600 laws have been amended by Parliament.
But
Over 300 EU laws still have to be observed in Northern Ireland in order to uphold the relationship with the Republic of Ireland.
The failure of REUL — most laws such as trade deals are still retained/’rollover’ deals from previous EU arrangements. The tories promised to repeal 4000 laws, but have only changed 600.
Giving power to the executive NOT parliament: the incorporation of EU law into UK law has mainly been delivered by secondary legislation meaning ministers have the power to determine whether they should maintained or repealed (the case for around 2,500 pieces of EU law). EU law is being reshaped by the government, not parliament.
The Brexit Process:
The method of leaving the EU has reinforced parliamntary sovereignty
Miller I case: reinforced that parliament makes the decision to leave, not the governemnt. Also reinforced sovereignty over devolved governments (they couldn’t veto article 50). Power was reserved to Westminster alone, and a majority vote was needed to trigger article 50.
SC ruling on 2018 Legal Continuity Bill decided that EU legislation concerning devolved matters would not immediately go to devolved governments, but to Westminster instead, and would be considered by parliament (by extension, the UK government). The devolved regions who wanted to assume power were unable to do so.
But
the method of leaving the EU has undermined relationships between devolved nations, possibly leading to a future undermining of devolved sovereignty and parliaments.
In Scotland and N Ireland, the majority of support was remain, reinforcing the idea that there is a fundamental ideological difference between regions in the UK. As a result, there have been actions impacting the security of sovereignty (e.g. second Independence Referendum - struck down by SC). In Northern Ireland, there is a republican first minister for the first time in history — perhaps an environment for greater decision and dispute in the future.
Leaving the EU has undermined sovereignty in general - when the UK were in the EU they had pooled sovereignty and had greater sovereignty and influence on the global stage, which has now been lost. Unique relationship with the EU, which has now been lost. Sovereignty in the EU was arguably respected and augmented, and we have now lost this kind of sovereignty.
Withdrawal from the EU:
withdrawal from the EU, especially the withdrawal process, has restored or reinforced parliamentary sovereignty
Miller I case 2017, established that it was the right of Parliament not the government to trigger article 50
2018 legal continuity bill, put laws into Westminster’s hands not governments
BUT
in practice, this has actually put more power into the hands of the government
retained EU law act — most loegislative change has come from government not parliament e.g. 600 laws changed via parliament, 2,500 amended as secondary legislation
reinforces the power of the government within parliament
Supreme Court:
rather than challenging it, the supreme court has arguable actually reinforced sovereignty
Gina Miller case, Johnson after proroguing parliament,
increased independence has limited it from government influence, defended parliamentary sovereignty
R vs attorney general 2015 — the bedrock of constitutionality was described as being parliamentary sovereignty (“the crown of parliament”)
BUT
as an advisory body, the SC has little power to reinforce this dynamic of parliamentary sovereignty if it challenges government’s power
Rwanda bill struck down as unlwaful by all SC justices, passed regardless (passed without any other party support)
also failed to enforce decisions about prisoner voting (Hirst vs UK 2005), Ahmed vs Treasury
legislative powers of the government mean they retain full sovereignty
House of Lords:
can challenge and amend government legislation, act as an effective scrutiny body
amend government legislation on sunday trading, evel, free school meals
has greater and more legitimate processes of scrutiny (32 vs 96 hours on 2020 argicultural bill)
also importantly not dominated by a government majority, 180 crossbenchers, means the government cannot directly control them
BUT
increasing limitations to the lords has actually increased government power
due to their lack of democratic legitimacy, lords have limited power e.g. house of lords act 1911 and 1949
decisions cannot be forced e.g. 3 Brexit deal defeats but legislation went through regardless
democratically limited but thus increases governments power
Backbenchers:
backbenchers can be an important limitation on parliaments power
backbench rebellions can force governments to back down e.g. 2012 — 91 conservative MPs rebelled over Lords reform, 40 rebelled over 2024 Criminal justice bill, which would have made homelessness a crime
can ultimately challenge the government
also vote of no confidence, most significant way to entirely undermine a government
BUT
ultimately dependent on size of their majority
Blair suffered a rebellion by 139 MPs over Iraq, but passed his policies regardless
PMs with weak majorities suffer e.g. May’s minority government faced 33 defeats, but PMs with large majorities don’t e.g. Blair, 4 defeats in 10 years
because of FPTP, winner’s bonus
Devolved bodies:
have arguably moved power away from government and to devolved areas
its unelected and unrepresentative so lacks democratic legitimacy BUT is protected from political influence/independence maintained, only rules on legal or constitutional cases
strike down law as incompatible BUT just advisory
has become increasingly involved in the executive, especially ultra vires action BUT its only an appellate court, applications for judicial review fell by 44% between 2015 and 2019
Could be a 30 marker evaluating the impact leaving the EU has had on parliamentary sovereignty
The European Union Overview:
The EU is a political and economic union, made up of 27 member states
Key developments:
1957 - Treaty of Rome forms the EEC, followed by Common Agricultural policy and customs union afterwards
1973 - the UK joins the EEC (parliamentary decision, before a referendum) and a referendum is then held in 1975 about remaining (67% vote Remain)
1999 - Euro is established, adopted by vast majority of member states (the UK choose not to join)
2003 - Treaty of Nice is signed, committing to enlarging the EU with countries such as Bulgaria and Romania (some resistance in the UK)
2016 - the UK opts to leave the EU
Aims of the EU:
Achieving peace and stability: fundamental aim of the organisation (as the European Steel and Coal Commission), the EU promotes peace in a fractious Europe. In 2024, the EU approved £50bn aid to Ukraine, persuading Hungarian PM to drop the veto against this (passed despite contentions) BUT the EU has recently been a contributing factor to antagonisms in Europe (Eurozone crisis leading to demonstrations in Greece in 2011) and attempts to to incorporate Ukraine with the 2013 Association Agreement may have impacted Russia’s response
The Single Market: trying to achieve economic integration, connected to the four freedoms of goods, capital, services and people. Schengen area allows for frictionless movement between 23 countries. Includes the custom union - member states agreeing to the same tariffs BUT countries do temporarily control borders due to security or migration concerns e.g. such as Austria in 2024 or the migrant crisis in 2015 (these temporary border controls are usually not very temporary as well). Also many capital elements are still nationally managed (e.g. pension regulations)
Economic and Monetary Union: led to the creation of a European Central Bank and a single currency. 20 out of 27 countries have joined the Eurozone, with aligned regulatory conditions required, such as limited government debt (60% of GDP). BUT the Eurozone crisis (2008-2012); several European countries (PIIGS) were unable to repay their government debt. Countries like Greece and Portugal were unable to repay debt, requiring bail outs from the ECB and IMF.
Political Union: seen in the establishment of European institutions such as the European commission (proposing and implementing laws), the European parliament, the European Court of Justice (not the ECHR). All of these groups are supranational (level above the nation states - their interest is the EU’s interest). There are also inter-governmental bodies, such as the European Council, collectively deciding the strategy of the European Union — this is where countries are representing their own countries in intergovernmental bodies, and this coupled with Euroscepticism has made a more politically divided EU.
Enlargement: with the Treaty of Nice, the EU expressed commitment to enlarging the EU e.g. Bulgaria and Romania’s inclusion. Strict conditions need to be met (Copenhagen eligibility criteria) reinforcing the EU as a democratic union (meaning areas like Turkey are prevented from joining).
The UK has always had a unique relationship to the EU: Britain opted out of the Schengan area, opted out of the Eurozone (preparations for joining the Eurozone hit the UK hard - Black Wednesday in 1992). We also had a partial opt out on the charter of fundamental rights of the EU - European Courts could not overturn UK laws on these issues — did the UK ever really lose sovereignty?
The Brexit Referendum: in response to growing UKIP support, the Conservatives promise a referendum on the EU in their manifesto, Leave wins 52-48 with a 72% turnout. After the Miller I case, Parliament vote to trigger Article 50, May calls an election to strengthen her majority. This fails and the Tories have to enter an agreement with the DUP, May fails to get a majority to pass her withdrawal plans and they are rejected 3 times. After crushing loss in the European Parliament elections, May resigns, Johnson takes over and pushes a much harsher Brexit (opposed by ON conservatives). Johnson wins the 2019 election with an 80 seat majority, passing a hard withdrawal agreement, with Britain leaving on the 31st January 2020.
Striking Down Laws:
there is no longer a court that can strike down UK laws (like the European Court of Justice), making the SC the highest court in the land (which cannot strike down UK law). Prior to our exit, the UK had accepted the supremacy of EU law (Factortame case 1990). Leaving the ECJ means Parliament has full control of
The European Convention on Human Rights is NOT EU law, but you can say thst the EU is in the process of itself becoming a signatory to the ECHR. All the members have signed up to the ECHR, but the EU itself is not yet a signatory, so if the UK were still in the EU, it would definitively stopped the UK from leaving the ECHR
But
Northern Ireland counters this → under the Windsor Framework, NI continues to follow EU rules on goods entering the single market. This means that any disputes on compliance remain a matter for the ECJ, which would rule on whether the UK has met its obligations (things moving between N Ireland and Ireland have to meet EU regulations, the ECJ is the arbiter of this). Stormont Brake - allows MLAs to raise concerns about changes to EU laws.
Making Laws:
Parliament can now legislate on areas where it couldn’t before e.g. trade and immigration.
Trade — new trade deals have been established since scratch e.g. Australia in 2021, NZ in 2022 and the proposed CP TransPacific Partnership in 2024)
Immigration — we can now establish our own criteria for removal of immigration (Illegal Immigration Act passed in 2023), affording parliament the freedom to set criteria for removal and border control
The Retained EU Law Act (REUL) 2023 — grants parliament the ability to amend, repeal or uphold previously retained EU law; means they can jettison laws they no longer want to uphold. 600 laws have been amended by Parliament.
But
Over 300 EU laws still have to be observed in Northern Ireland in order to uphold the relationship with the Republic of Ireland.
The failure of REUL — most laws such as trade deals are still retained/’rollover’ deals from previous EU arrangements. The tories promised to repeal 4000 laws, but have only changed 600.
Giving power to the executive NOT parliament: the incorporation of EU law into UK law has mainly been delivered by secondary legislation meaning ministers have the power to determine whether they should maintained or repealed (the case for around 2,500 pieces of EU law). EU law is being reshaped by the government, not parliament.
The Brexit Process:
The method of leaving the EU has reinforced parliamntary sovereignty
Miller I case: reinforced that parliament makes the decision to leave, not the governemnt. Also reinforced sovereignty over devolved governments (they couldn’t veto article 50). Power was reserved to Westminster alone, and a majority vote was needed to trigger article 50.
SC ruling on 2018 Legal Continuity Bill decided that EU legislation concerning devolved matters would not immediately go to devolved governments, but to Westminster instead, and would be considered by parliament (by extension, the UK government). The devolved regions who wanted to assume power were unable to do so.
But
the method of leaving the EU has undermined relationships between devolved nations, possibly leading to a future undermining of devolved sovereignty and parliaments.
In Scotland and N Ireland, the majority of support was remain, reinforcing the idea that there is a fundamental ideological difference between regions in the UK. As a result, there have been actions impacting the security of sovereignty (e.g. second Independence Referendum - struck down by SC). In Northern Ireland, there is a republican first minister for the first time in history — perhaps an environment for greater decision and dispute in the future.
Leaving the EU has undermined sovereignty in general - when the UK were in the EU they had pooled sovereignty and had greater sovereignty and influence on the global stage, which has now been lost. Unique relationship with the EU, which has now been lost. Sovereignty in the EU was arguably respected and augmented, and we have now lost this kind of sovereignty.
Since voting to leave the EU in 2016, the UK has seen powers, previously pooled to the EU, return to the control of the UK Parliament. While this appears to suggest that parliamentary sovereignty has increased, through the powers of striking down laws, making laws and the withdrawal process itself, leaving the EU has actually more fundamentally undermined sovereignty, both by increasing executive powers and the uncertainty around relationships with devolved bodies. As a result, leaving the EU has actually undermined and made parliamentary sovereignty more fragile.
Since leaving the EU, the power to strike down laws has returned to Parliament, which appears to imply that parliamentary sovereignty has increased. Following the ruling on the 1990 Factortame case, EU law had been superior to UK law, meaning the power to strike down laws resided with the European Court of Justice. However, since leaving the EU, the highest court in the UK is now the Supreme Court. While the SC can still offer declarations of incompatibility, their advisory nature means that sovereignty has largely returned to parliament — if a bill passes in parliament, even if it is ruled as incompatible by the SC it can still pass (such as the Rwanda Bill). The ability to strike down laws is now firmly a power of parliament, restoring sovereignty whereas previously the EU had been able to challenge the legislature.
The scrutinising powers of the house of Lords, and the increasing reforms that have taking place to the Lords in the past few years, suggests that executive control over parliament has reduced. The Lords can act as a check on executive power, particularly through scrutinising legislation. For example, in the 2021-22 session, while the executive faced 0 defeats in the Commons they faced 133 defeats in the Lords. The Lords is able to — and much more lilely to — challenge the executive, particularly due to weak whip enforcement in the Lords. This suggests that the executive has less control over the Lords, unable to force them to vote a certain way and facing more legislative challenges than from the Commons, Furthermore, reforms to the HoL have decreased the executive’s control over the composition of the Lords. For example, the introduction of an independent HoL selection committee in 2000 means that the PMs power over who they can appoint to the Lords is checked — for example, Johnson had 8 out of 16 of his nominations rejected. With greater limits to their appointments power in recent years, combined with weaker whip enforcement, it appears that the executive control over the House of Lords is relatively low, and has decreased. However, this can be undermined as it is largely inconsequential for the actual power of the executive, and they still retain influence within the Lords. Firstly, lacking complete control of the Lords does not fundamentally undermine the executive’s control over parliament. While the Lords can reject bills, they cannot force any amendments: for example, while the Rwanda Bill was rejected 5 times by the Lords, it passed regardless. Due to the constitutional restraints placed on the Lords as an unelected body, they fundamentally cannot force the executive to change their policies and therefore, while the executive may not control the Lords directly, this does not challenge their control over parliament as a whole. Therefore, even though the executive may be challenged by the Lords specifically, this does not undermine their control of parliament as a whole.
However, the executive can be more robustly challenged within the Commons,especially through backbench rebellions. As they rely on the continued support of parliament, and cannot pass legislation without their support, it could be argued that the executive do not control parliament. Legislation which faces significant rebellions generally does not pass. For example, the House of Lords reform in 2012 was dropped after a second reading after 91 conservative MPs rebelled over it. Similarly, the Justice Bill in 2024, which would have criminalised homelessness, faced a rebellion by 40 MPs and therefore failed to pass. The executive cannot pass legislation if it faces challenges from the Commons and backbench rebellions, undermining their control of parliament (more significantly than the Lords). More significantly, the executive also rely on the continued support of parliament to operate — the commons can call a vote of no confidence, which ultimately removes the executive (such as Callaghan’s government in 1979). Therefore, as they rely on the Commons both to pass legislation and stay in power, the executive appears to not have power over Parliament, as they can be blocked or entirely removed from power. However, while this theoretically suggests that the executive lacks control over parliament, in practice this is not the case. Firstly, backbench rebellions are made less likely due to methods such as the whipping system, which allow for the executive to control (their party) in the Commons. The threat of having the whip removed — which can fundamentally undermine an MPs chances of reelection, such as David Gauke who failed to re-win his constituency) means that MPs are much less likely to rebel and instead tend to support party lines. As a result, the theoretical power of beckbenchers to hold the government to account and challenge their control is severely limited. Furthermore, votes of no confidence are actually weak in practice because MPs tend to avoid voting against their own party.
