ETVT that parliament is sovereign Flashcards
Sovereignty meaning
Firstly this means that statue law passed by parliament is supreme over all kinds of law, such as common law. Secondly no other body such as the legislature or the supreme court can challenge or set aside any statue law past by parliament, finally parliament cannot bind its successors.
Devolution IS
Whilst legally Westminster is unaffected by the passage of the Devolution Acts, yet in the practical sense Parliament has lost power to make law in many areas of domestic law.
It is almost impossible to imagine the reversal of devolution in Scotland and Wales, without the support of the majority of the populations in those countries.
The Scotland Act 2016 and Wales Act 2017 recognise this fact, by stating that the devolution settlements can only be reversed via referendum, this appears to recognise that the UK has moved to a quasi-federal system of government and all the political pressure is now for more devolution of powers.
For example, in Scotland they now have Sovreign power over legislation such as taxation, in March 2023 the SNP government in the National Assembly voted to lower the top rate of income tax from £150,000 to £125,000.
Devolution ISNT
The power that has been devolved can be called back and the Devolution Acts could be repealed by parliament, this has happened in Northern Ireland, OR the government can be suspended.
In 1972 the Stormont parliament was suspended after 50 years of home rule, since the 1998 Good Friday agreement the Northern Ireland assembly has been suspended 5 times leaving the running of the Northern Ireland government to the NI civil service and parliament in the UK.
Parliament is still Sovreign and power still lies in Westminster.
For example, In 2023 Rishi Sunak’s government blocked legislation passed by the SNP and the Scottish parliament that would have made Scotland the first part of the UK to introduce a self-identification system for people who want to change gender.
Westminster used the ‘nuclear option’ and blocked the bill before it reached Royal Assent.
Furthermore, the UK supreme court ruled in 2022 that the Scottish Parliament and the SNP would not be able to call a second referendum without the approval from parliament, the SNP had no power to legislate In this case.
Human Rights IS
The Human Rights Act and the creatin of the Supreme Court, via the constitutional reform act 2005 do not give the courts the ability to strike down legislation passed by parliament, however the balance between parliament and the judiciary has been altered because parliament believes that it has a responsibility to respond to decisions by the court that declare statue law incompatible with the HRA.
In the case R v Secretary of state for international development 2018, the court found that the Civil Partnerships Act 2004 was incompatible with the HRA because different sex couples could not enter into civil partnership which breached their rights under article 14 of the HRA.
The government amended the law the following year via the Civil partnership regulations 2019.
Human Rights Isnt
Parliamentary sovereignty means that the supreme court cannot strike down statutes and while the court is part of the discussion about rights, Parliament has the final say in determining the law regarding human rights.
In the case A and others v Secretary of state for the home department in 2004, otherwise known as the Belmarsh case it was ruled that the indefinite detention of terror suspects was incompatible with Article 14 of the ECHR.
However, the homes secretary did not release the suspects until parliament passed new legislation granting powers to use control orders and electronic tagging.
Because parliament is legally Sovreign they have the power to repeal, replace or amend the HRA and withdraw from the ECHR, for example the 2019 conservative party manifesto had a pledge to update the HRA in order to give ‘a proper balance between the rights, our vital national security and effective governance’.
On 31st July 2020 the conservative government established a independent panel to look at whether there should be reform in the judicial review process, to see if the right balance was struck between the rights of the citizens to challenge executive decisions and the need for effective governance.
HM Treasury v Ahmed 2010, The treasury imposed an asset freezing order on three suspected terrorists. The UKSC ruled that the government had ‘exceeded their power’ and the rule of law and the United Nations Act 1946. Within a week although the Brown government legislated in parliament to allow them to freeze the assets. The Terrorist Asset-Freezing Act 2010.
Hirst v UK 2005 the ECHR ruled that the blanket ban on prisoners exercising their right to vote was violating Article 3. David Cameron described the court’s ruling as making him ‘physically ill’. The government has since refused to comply with such decision. In 2010 5 years later the blanket ban was still in place.
Referendum IS
Since the referendum on the European community membership the UK government has increasingly used referendums on important constitutional issues, including multiple referendums on devolution as well as Scottish independence and continued membership of the EU
Does popular sovereignty through referendum challenge parliamentary sovereignty?
It is politically unrealistic for parliament to ignore a clear result in a referendum where there has been reasonable turnout. In 2016 while a majority of both the Commons and the lords supported the Remain, as did the leaders of the three main parties going into the referendum, in the end popular sovereignty won over the will of parliament in the triggering of Article 50 and the passage of the EU withdrawal act of 2018.
Referendum ISNT
However, referendums in the Uk can only be granted via an act of parliament and the result of a referendum is only advisory and not legally binding.
For example, the 2016 BREXIT referendum only took place because of a act of parliament, it was facilitated through the European Union Referendum Act 2015.
Many conservative MPs voted against the creation of the Scottish and Welsh devolved governments, after the referendums had been held, in their 2005 manifesto the conservative party pledged a new vote for the people on the Welsh assembly, including a option to abolish it.
Furthermore, in the 2019 general election the Labour party backed a ‘second referendum’ and the Lib Dems committed to the abolition of article 50, if one of these parties one power in 2019 then it is possible parliamentary sovereignty would have prevailed.
Dominance of the executive is
It could also be argued that there has been a drift in power from Parliament to the executive branch.
The UK has fused the executive and legislative branches, this means that in practise political sovereignty has passed from parliament to the executive when a prime minister has a large majority in the commons.
Two Thatcher government of 1983 and 1987, Blair governments of 1997 and 2001 all had majorities of over 100 seats, Blair had a majority of 179 and his government did not lose a vote in parliament until 2005, 8 years after he was elected.
This clearly suggests that political sovereignty lies within the executive.
Boris Johnson only lost in the commons three times between 2019 and 2022.
Dominance of the executive ISNT
Ultimately the executive still has to rely on parliament to pass law and legislation, whatever the size of their majority.
The relationship between the executive and parliament is constantly changing, when the prime minister is weak the parliament becomes more dominant, Mays minority government did not have political sovereignty as they lost in the commons 33 times.
The governments Brexit deal for example in January 2019 was rejected by a record 230 seat majority in the commons.
Furthermore, in Miller v Secretary of state for exiting the EU the UKSC ruled that May could not trigger article 50, to start the formal process of leaving the EU, without a vote in the commons.
UKSC decision in 2019 Boris Johnsons and the government’s decision to prorogued parliament for five weeks was unlawful, reasserting parliamentary sovereignty.
EU HAS resulted in sovereignty changing
In 1972 parliament passed the European communities Act, the implications for this in terms of parliamentary sovereignty was that EU law had primacy over UK law, transfer sovereignty to the EU, however in 2016 the UK voted to leave the EU and the 2018 withdrawal act repeals the 1972 European communities act.
In 1991 the European Court of Justice ruled in R v Secretary of state for transport that EU law has legislative supremacy and therefore overrides acts of parliament, clearly showing that the EU was Sovreign over legislative matters.
The case showed that the ECJ could strike down acts of parliament and that EU law had primacy over UK law, impairing on parliamentary sovereignty.
The move to the EU meant that 80% of regulation on the production, sale and distribution of goods and services in the UK that originated in the EU were out of the hands of parliament.
EU has not resulted in changing sovreignity
Parliamentary sovereignty was not infringed because parliament cannot bind its successor, this means that parliament could repeal the European communities Act 1972 at any time.
In 2018 Parliament passed the EU withdrawal act repealed the EC Act 1972, on the 1st January 2021 EU law no longer had primacy over UK law and the jurisdiction of the JEC will end.
During the UKs period in the EU only certain areas of legislative competency were passed to the EU, this included agriculture and fishing, most areas of public expenditure such as the NHS, education, welfare and defence policy remain unaffected.
The decision to transfer areas of legislative competency to parliament was passed by the EU, in 1986 parliament passed the single European act, which replaced many unanimous decision making processes with QMV and ratified the Lisbon treaty 2008, the UK therefore remained Sovreign.
