What is sovereignty and where does it reside in the British political system?

What is sovereignty?

Parliament is legally sovereign in the UK system.

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:

Sovereignty in the U.S emanates from the constitution.

Despite this, the real location of sovereignty in the UK has been questioned in recent years. Sovereignty does not have to reside in a legislature. For example, the US operates under a principle of ‘constitutional sovereignty’. Powers to the federal and state governments emanate from its codified constitution and the power of Congress is restricted by the constitution.

Where does the concept of parliamentary sovereignty come from?

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.
  • MPs and Lords were protected by parliamentary privilege.

From this point, Parliament could be deemed sovereign in England. The Acts of Union (1707) saw the Parliament of England (in Westminster) become the Parliament of the United Kingdom.

How did A.V classify the concept of Parliamentary Sovereignty?

A. V. Dicey - Wikipedia
A.V Dicey is one of Britain’s greatest ever constitutional scholars.

The concept of parliamentary sovereignty was outlined by A.V Dicey in his work ‘An Introduction to the Study of the Law of the Constitution’ (1885). In summary he said:

“The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

An Introduction to the Study of the Law of the Constitution (1885)
Introduction to the Study of the Law of the Constitution: Amazon.co.uk:  Albert V. Dicey, Roger E. Michener: 9780865970038: Books
The Law of the Constitution remains a work of authority on the constitution.

Dicey synthesized that there were three concepts that made up the principle of parliamentary sovereignty:

1. Parliament can make laws concerning any matter

Parliament can legislate on any issue that it chooses. In his book The British Constitution, Anthony King said that Parliament could pass a law that banned smoking on the streets of Paris. Of course, this law would have no practical effect, but this would not stop Parliament from legislating on it. The fact that Parliament can make (or unmake) any law enforces its sovereignty. Any statute law passed by Parliament supersedes common law.

2. No Parliament can bind its successor

Each individual Parliament is sovereign. This means that no Parliament can pass a law that could not later be repealed by a future Parliament. As part of this principle there also exists a doctrine of ‘implied repeal’. This means that if an Act of Parliament conflicts with an earlier act, the later Act automatically takes precedence, in effect repealing the earlier Act.

Brexit
Brexit is the best example of a Parliament not being able to bind its successors.

The best example of Parliament not being able to bind its successor can be seen through Brexit. In 1972 Parliament passed the European Communities Act. This act saw Britain join the EEC (now EU). However, in June 2018 the EU (Withdrawal) Act was passed by Parliament following the result of the EU Referendum. This is the piece of law that will formally saw Britain leave the European Union. This clearly shows that Parliament can repeal any Act by its predecessors.

3.  A valid Act of Parliament cannot be overturned by any other body 

As a result of Parliament’s Sovereignty, no Act or decision it takes can be overturned by another body, such as a court. This is fundamentally different from the United States. As the US has as codified constitution all actions that Congress takes must be in line with the Constitution. The courts can strike-down any action which is not in line with the Constitution. As Britain has no codified constitution, the courts cannot do this. Although the courts may advise Parliament on an issue, there is no mechanism for the striking down of a Parliamentary action.

These are the principles that underpin Parliamentary Sovereignty. These principles are all examples of legal sovereignty, the situation that exists in established law. However, this is different from political sovereignty, the situation that exists in practice.

What is the difference between legal and political sovereignty?

Legal 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 this:

” 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)

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 population 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.

Where might it be argued, or have been argued, that political sovereignty might lie in the UK?

Quintin Hogg, Baron Hailsham of St Marylebone - Wikipedia
Lord Hailsham coined the term ‘elective dictatorship’.

Executive Sovereignty – 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.

Further to this, 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.

White men still dominate judiciary, says Justice report | Judiciary | The  Guardian
The UK Supreme Court has been seen by some to be more ‘activist’ in recent years.

Judicial Sovereignty – 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. However, 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).

Boris Johnson wants to scrap Holyrood . . . but doesn't dare, says Dominic  Cummings | Scotland | The Times
Devolution has seen power given to regional legislatures, like Holyrood in Scotland.

Devolved Sovereignty – 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.

Brexit: Watch as EU officials solemnly take down the UK flag - Vox
Whilst in the EU sovereignty was pooled, however, Brexit has arguably seen it restored to Parliament.

Pooled Sovereignty – In 1972 Britain passed the European Communities Act and joined the EEC (now the EU). 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 a number of examples of EU directives that by necessity became UK Law, some 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.

Before the EU referendum in 2016 it was found that between 1993 and 2014:

945 statute laws (primary legislation) had been passed and 231 of these implemented EU obligations.

33,160 statutory instruments (secondary legislation) had been passed and 4,283 of these implemented EU obligations.

Source BBC Reality Check: 8 June 2016
R (Factortame Ltd) v Secretary of State for Transport - Wikipedia
Factortame reinforced the principle that EU law had supremacy over UK law.

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 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.

Boris Johnson: we will still claw back £350m a week after Brexit | Brexit |  The Guardian
One of the most famous deployments of the ‘take back control’ slogan.

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’ appealled to voters who felt that the British parliament not 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.

Popular Sovereignty – In any liberal democracy power can be said to actually lie with the people. Through the process of elections, the people can decide how Parliament is made up and who governs the country. In addition, in recent years, significant constitutional issues have been passed to the people to vote on directly. For example, the AV Referendum (2011), the Scottish Independence Referendum (2014) and the EU Referendum (2016). Brexit is a good example of popular sovereignty being respected. Whilst around 60% of MPs were in favour of remain, Parliament voted to trigger Article 50 in order to respect the will of the 17.4 million people who voted to leave the European Union.

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