the constitution & sovereignty

  • Sovereignty is ultimate political power and the source of all political authority

  • Not to be confused with the term 'the Sovereign' for the King, reflecting pre-Civil War monarchic authority

  • Distinctions:

    • Legal Sovereignty: ultimate power lies with Parliament

    • Political Sovereignty: ultimately rests with the Government

    • Popular Sovereignty: exercised by the people through elections and referendums

learned works:

  • The UK constitution is not written in one document. ​

  • Many elements feed into it.​

  • One of those is the work of respected political writers and theorists. ​

  • Two key ones are Bagehot and Dicey.

nineteenth century concepts:

  • Walter Bagehot: claimed UK constitution has 2 parts » dignified = Monarchy + House of Lords, efficient = House of Commons

  • Bagehot praises "cabinet government" in the Westminster system

  • Mocks the American system for perceived flaws, lack of flexibility, and accountability

  • According to him, "Cabinet governments educate the nation; the presidential does not educate it, and may corrupt it."

twin pillars:

- A.V. Dicey identified two pillars supporting the constitution:

- Rule of law, universally obeyed, even by the government

- Sovereignty of Parliament, the highest authority for law-making

rule of law:

- Everyone entitled to a fair trial, no imprisonment without due legal process

- All citizens must obey and are equal under the law

- Public officials not above the law, accountable to the courts

- Judiciary must be independent, free from political interference

parliamentary sovereignty:

  • Parliament can make any law on any subject​

  • Legislation passed by parliament cannot be overturned​

  • No parliament can bind its successor

changing times:

- Dicey wrote in the latter half of the 19th century. Since then:

  • Electoral reforms in 1867, 1884, 1918, and 1929 significantly expanded the electorate, enhancing popular sovereignty.

  • Massive government majorities can bypass Parliament, leading to an elective dictatorship.

  • European laws and international treaties have undermined parliamentary sovereignty.

» “Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.” ~ A.V. Dicey

is it parliament sovereign?

  • Monarch's power declined since the 17th century, with Queen Anne in the early 1700s being the last to refuse assent to a parliamentary law.

  • Despite this decline, there are exceptions to parliamentary sovereignty.

6 ways sovereignty lies elsewhere:

- By treaty, the UK granted significant sovereignty to the EU.

- A major argument for Leave was to reclaim sovereignty from "bureaucrats in Brussels," often emphasized by Nigel Farage, a former Brussels bureaucrat.

- Membership in the EU limited control over EU-to-UK movement, fuelling debates on immigration and serving as a primary reason for Brexit.

prerogative powers:

- The Prime Minister has inherited powers once held by the monarch, including:

  • Appointing and dismissing ministers

  • Negotiating and signing foreign treaties

  • Commanding the armed forces

  • Parliament has the authority to diminish some of these powers, as seen in the 2011 Fixed-term Parliaments Act, which initially removed the PM's authority to decide election timing (now repealed).

devolution:

- Under Tony Blair and continued by the Tories, decentralization of power to Scotland, Wales, and Northern Ireland occurred.

- While theoretically, Parliament could reclaim powers, this is unlikely without a referendum, leaving some sovereignty with the regions.

- Cities are increasingly electing mayors, following London's lead.

referendums:

- Practice of granting referendums for key constitutional changes, like Scottish independence and EU membership.

- Governments not bound by votes, but going against them seems unthinkable.

- Post-Brexit, the willingness to grant referendums on issues may change.

- Labour Party Conference approved including proportional representation (PR) in the next manifesto, but Sir Keir has been relatively silent on this since.

the ECHR:

- The European Convention on Human Rights is upheld by the Court of Human Rights in Europe.

- While not inherently binding on the UK, Parliament typically complies with its rulings.

- Home Secretary Suella Braverman has proposed leaving the convention and creating a UK-specific alternative.

government majority:

- more MPs = more power for government

- seen as an electoral mandate to implement promises

- huge majority limits opposition influence ('tyranny of the majority')

new labour government:

- Large majority post-election allows for a more far-reaching government agenda ('landslide' victory)

- 1997: Blair's huge majority enabled sweeping changes, including devolution

- 2010: Cameron's coalition government with the Liberal Democrats had less influence due to no overall majority

new labour constitutional reform:

- new labour with huge majority passed constitutional reforms:

- devolution (1998)

- human rights act (1998)

- elected mayors and london government (1999)

- freedom of information act (2000)

- judicial reform (2005)

not all reforms succeed…

  • 1999 – House of Lords reform – fail​

  • 2011 – Electoral Reform – fail​

  • 2013 – Parliamentary constituencies – fail