Relations Between Institutions

Question 1

What system of powers does the UK have?

Answer 1

The UK system of government has traditionally featured what is known as a fusion of powers. This means that there has been an overlap between three branches of government. For example, members of the government sit in one of the two Houses of Parliament, where they are held to account for their policies.

Question 2

How has the UK moved to a greater separation of powers in recent years?

Answer 2

In one important respect the UK has moved towards a greater separation of powers in recent years.
This is in the establishment of the Supreme Court, which brought to an end the situation in which the highest court in the land was located within the House of Lords. The role of the Supreme Court and its relationship with the executive and parliament, is covered in this section.

Question 3

What is the Supreme Court?

Answer 3

the highest court in the UK political system.

Question 4

Creation of Supreme Court and reason why

Answer 4

The Supreme Court was opened on 1 October 2009. It was established by the Constitutional Reform Act of 2005 but did not begin work until the premises chosen for it, Middlesex Guildhall in Parliament Square, had been prepared. The Court was designed to end the fusion of powers at the highest level of the UK judiciary. Previously the most senior judges - the ‘law lords’ - had sat as members of the House of Lords, and were known as the Appellate Committee of the House of Lords. The reform was to create greater transparency, and to bring the UK into line with most other Western countries, by establishing that the country’s highest court was clearly independent of parliament.

Question 5

Functions of Lord Chancellor before CRA and how were they changed?

Answer 5

• Cabinet minister, who supervised the legal system (executive).
• Chairman of sittings of the House of Lords (legislature).
• Head of the judiciary, who appointed other judges (judiciary).

The act removed the last two of these responsibilities from the lord chancellor. The Lords is now chaired by the lord speaker, who is chosen by their fellow peers. Judges are selected by an independent Judicial Appointments Commission.

Question 6

Which cases does the Supreme Court hear?

Answer 6

The UK does not have a single unified legal system. There are three different systems: one for England and Wales, one for Scotland and one for Northern Ireland. The Supreme Court is the only UK-wide court and it acts as a final court of appeal for rulings made by the lower courts.

The Supreme Court is the final court of appeal for criminal cases in England, Wales and Northern Ireland, and for civil cases across the whole of the UK.
The Supreme Court also hears appeals on arguable points of law where matters of wider public and constitutional importance are involved. Until the UK leaves the European Union, the court has a responsibility to interpret law passed by the EU. The Court also makes rulings on cases where
the devolved authorities in Scotland, wales and Northern Ireland may not have acted within
their powers.

Question 7

Example of SC ruling devolved body had exceeded its power

Answer 7

In July 2016 the Supreme Court overruled the Scottish government’s scheme to introduce the named person’ service, which planned to appoint state guardians, such as health visitors or head teachers, to be responsible for the well-being of children. The Supreme Court ruled that the legislation was in conflict with Article 8 of the Human Rights Act (the right to a private and amily life) because it would allow public bodies to share personal intormation without consent.
This is an example of the Supreme Court ruline that a devolved body had exceeded its powers

Question 8

What is judicial neutrality?

Answer 8

the principle that judges should not be influenced by their personal political opinions and should remain outside of party politics.

Question 9

How many justices?

Answer 9

The Supreme Court consists of 12 members, although cases are always heard by an odd number of justices so that a majority verdict can be reached. In most cases five or possibly nine justices take part; reflecting the importance of the issue, 11 took part in the 2016-17 review of the High Court ruling that parliament rather than the government should initiate the UK’s exit from the European Union.

Question 10

How many justices took part in decision that parliament should initiate Brexit?

Answer 10

11 took part in the 2016-17 review of the High Court ruling that parliament rather than the government should initiate the UK’s exit from the European Union.

Question 11

How many female justices?

Answer 11

2

Question 12

Who is president of the SC?

Answer 12

The Lord Reed

Question 13

The SC justices lords?

Answer 13

Although they are known as ‘Lord’ or ‘Lady’, members of the Supreme Court do not sit in the House of Lords until
their term of office has come to an end.

Question 14

How are justices chosen and appointed?

Answer 14

Supreme Court justices will usually have served as a senior judge for two years, or been a qualified lawyer for at least 15 years. The original members were the former law lords, who moved from the House of Lords to their new premises. When a vacancy occurs, nominations are made by an independent five-member Selection Commission, consisting of the president and deputy president of the Court, a member of the Judicial Appointments Commission and a member of each of the equivalent bodies for Scotland and Northern Ireland. The lord chancellor (also known as the justice secretary) either confirms or rejects the person put forward, although he or she cannot reject names repeatedly. The appointment is confirmed by the prime minister and then by the monarch

Question 15

On which two principles does the Uk judicial system rest?

Answer 15

The judicial system in the UK rests on two key principles: judicial neutrality and judicial independence. They are related but it is important to recognise that they are distinct from each other.

Question 16

What is judicial neutrality?

Answer 16

Judicial neutrality is the expectation that judges will exercise their functions without personal bias.

Question 17

How is judicial neutrality to be safeguarded? (2)

Answer 17

The code of conduct of the Supreme Court lays down a number of ways in which impartiality is to be safeguarded.

-Conflicts of interest
-Public activities

The Supreme Court is more transparent in explaining its rulings than its predecessors. Its website carries full details of its decisions, and the reasoning behind them, allowing for greater public scrutiny. The Court welcomes visitors and its proceedings are televised over the internet.

Question 18

How are justices to avoid conflicts of interest?

Answer 18

Judges must refuse to sit in a case that involves a family member, friend or
professional associate, which might give rise to doubt about the justice’s detachment.

Question 19

How must justices regulate their public activities?

Answer 19

Judges may write and give lectures as part of their function of educating the public, and they may involve themselves in charitable and voluntary activities, but they must avoid political activity. A judge may serve on an official body such as a government commission provided that it does not compromise their political neutrality.

Question 20

Why is the SC’s make-up a concern?

Answer 20

The narrowness of the Supreme Court’s composition in terms of gender, social and educational background is a real concern. This reinforces a long-standing anxiety about the senior judiciary as a whole - that it contains a disproportionate number of white, privately educated males.

Question 21

When was the SC’s lack of females significant?

Answer 21

The fact that it has only one female member was significant in the case of Radmacher v Granatino
(2010). This was a case involving a pre-nuptial agreement between marriage partners, in which a majority of the Supreme Court justices upheld the principle that claims made in the event of a divorce should be limited. Lady Hale was the only one of the nine justices to dissent from the majority verdict. She gave as her reason the likelihood that the vast majority of people who would lose out as a result of this precedent would be women. In an interview in 2015, Lady Hale called for an effort to promote greater diversity of background in appointments to the Supreme Court.
She pointed out that of 13 justices sworn in since her own appointment, all were men, all were white, all but two were educated at independent schools, and all but two attended Oxford or Cambridge Universities.

Question 22

What is judicial independence?

Answer 22

Judicial independence is the principle that judges must be free from political interference. This is vital because they may be called on to administer justice in cases where there is a conflict between the state and an individual citizen. People must know that they will receive impartial justice and judges need to be confident that they can make a decision without fear that their career prospects will suffer.

the principle that judges should not be influenced by other branches of government, particularly the executive.

Question 23

In which four areas does the UK judiciary have a number of in-built guarantees of independence?

Answer 23

-Terms of employment
-Pay
-Appointment
-Location of SC

Question 24

How do justices’ terms of employment guarantee independence?

Answer 24

Judges cannot be removed from office unless they break the law. The only limit on their service is an official retirement age, which is 70 for those who have been first appointed to a judicial post since the end of March 1995. This is known as security of tenure. Judges are also immune from legal action arising, from any comments they may make on cases in court.

Question 25

How does Judges’ pay ensure independence?

Answer 25

Judges’ salaries are paid automatically from an independent budget known as the Consolidated fund, without the possibility of manipulation by ministers.

Question 26

How does the appointment of justices ensure judicial independence?

Answer 26

The Judicial Appointments Commission and the Selection Commission for the Supreme Court are transparent in their procedure and free from political intervention.

Question 27

How does the location of the SC ensure independence?

Answer 27

The fact that the Supreme Court is physically separate from parliament is another, more visible sign of its independence. There was never any suggestion that the law lords were subject to Government pressure, and indeed there were a number of cases where they demonstrated their hdependence. However, their transfer to new premises removed any possible doubt of this.

Question 28

Concerns about SC funding and relation to independence

Answer 28

In most important respects the Supreme Court is independent of government. However, some concerns were raised in 2011 by its first president, Lord Phillips, on the subject of funding. This came in response to the spending cuts imposed on the court system as part of the coalition government’s strategy to eliminate the budget deficit. Lord Phillips argued that the independence of the Court was at risk unless it could be allocated pre-set, ring-fenced funding. He spoke of a tendency on the part of the Ministry of Justice to try to gain the Supreme Court as on outlying part of its empire. The justice secretary at the time, Kenneth Clarke, dismissed this argument. He insisted that the Supreme Court was independent of political interference and that the government accepted its judgments, even those that went against it, and that the Supreme Court could not uniquely be permitted to set its own budget.

Question 29

What is judicial review?

Answer 29

the power of the judiciary to review. and sometimes reverse, actions by other branches of government that breach the law, or that are incompatible with the Human Rights Act.

Question 30

What does ‘ultra vires’ mean?

Answer 30

literally ‘beyond the powers’ in Latin. An action that is taken without legal authority.

Question 31

How is SC limited in its influence in declaring legislation incompatible with the HRA?

Answer 31

One of the most important roles of the Supreme Court is to interpret the 1998 Human Rights Act.
If it believes that an existing piece of UK legislation is in conflict with the European Convention on Human Rights, it can issue a ‘declaration of incompatibility. There is an expectation that parliament will modify the law to bring it into line with the Convention.
• However. the doctrine of
parliamentary sovereignty means that the Supreme Court does not have the power to strike down laws as its counterpart in the USA is entitled to do. In the UK there is no codified constitution against which the Supreme Court could test legislation. This is an important way in which the power of the Supreme Court is limited.

Question 32

What can the SC do under judicial review power?

Answer 32

Instead the Supreme Court has the power of judicial review. The Court can inquire whether ministers have followed correct procedures in the way that they implemented legislation. It can examine the actions of public bodies to investigate whether they have acted ultra vires, a Latin term that means ‘beyond one’s powers’ - in other words, have they gone beyond the authority granted to them in law?

Question 33

What happened in The Al Rawi case and secret hearings 13 July 2011?

Answer 33

The case was brougnt by former inmates of the US prison at Guantanamo Bay on Cuba, who claimed that the UK security services had contributed to their detention and mistreatment. The security chiefs, supported by the government, argued that in the interests of national securty, they must be allowed to give evidence in secret. The supreme court rejected this argument on the grounds that it breached one of the principles of a fair trial. Each side must be able to see the evidence out before the judge.

Question 34

What happened with the SC and the The H52 rail link, 22 January 2014?

Answer 34

Campaigners against the government’s planned London to Birmingham high speed rail link requested a judicial review to investigate whether the project complied with EU environmental directives. The Supreme Court unanimously dismissed the appeal on the grounds that parliament had not yet reached a final decision on the scheme and so its merits remained open to debate.

Question 35

What happened in the case of Private Jason Smith, 30 June 2010?

Answer 35

Private Smith was a UK serviceman who died of heatstroke on campaign in Iraq in
2003. His family brought a case against the Ministry of Defence arguing that the authorities should have safeguarded him. The High Court ruled in their favour but when the case was appealed to the Supreme Court, this judgment was overruled by a majority of six to three.
The Supreme Court held that the jurisdiction of the Human Rights Act did
not extend to troops in combat situations.

Question 36

What happened with the SC and the right of sex offenders to appeal against registration for life,
21 April 2010?

Answer 36

The government’s position was that
individuals who had committed serious sexual offences in England and Wales must register with the police for life after being released from prison. The Supreme Court ruled that this breached their human rights and that they should have the right to appeal against registration 15 years after leaving jail. This infuriated
the government and police who argued that dangerous individuals do not change their behaviour. Given public concern over the safety of children, this was a particularly sensitive issue

Question 37

What happened with the SC and Brexit?

Answer 37

the most important constitutional case to come hefore the Supreme Court to date has been the January 2017 ruling on Brexit - on whether the government needed the authority of parliament to trigger the process of leaving the EU, following the referendum the previous June.
The case was brought by a businesswoman, Gina Miller, who argued that the prime minister could not take such a step simply by using prerogative powers. The Supreme Court upheld an earlier ruling in Ms Miller’s favour by the High Court, on the grounds that EU membership had Introduced statutory rights for UK cftizens, which only parliament could remove. Supporters of Brexit were outraged, claiming that the justices had set themselves against the democratic will of the people. However, the Supreme Court was not opposing the decision to leave the EU, only reasserting the constitutional principles governing how Brexit should be carried out.

Question 38

Meaning of elective dictatorship

Answer 38

a government that dominates parliament, usually due to a large majority, and therefore has few limits on its power.

Question 39

What did Lord Hailsham argue?

Answer 39

It is now more than 40 years since the senior Conservative politician Lord Hailsham (1907-2001)
coined the phrase ‘elective dictatorship’ to describe the way in which power had become concentrated in the hands of the executive. He was giving a lecture on the BBC in 1976, at a time when a Labour government was in office with a small parliamentary majority, yet was still able to get most of its legislation through the House of Commons. Hailsham argued that the only real check on executive power is the periodic holding of general elections. In the intervals, the executive can do more or less as it wishes, introducing far-reaching, even irreversible changes.

Question 40

Instances where elective dictatorship has been able to bring in radical reforms (3)

Answer 40

• In 2003 the Blair government (elected two years earlier on 40 per cent of the vote) first attempted to abolish the post of lord chancellor, without any prior consultation. On meeting constitutional difficulties with its plans, it then carried out a drastic remodelling of the office in the 2005 Constitutional Reform Act
• In 2011 the coalition government, created the previous year through an agreement that had not been put before the electorate, passed the Fixed Term Parliaments Act.
•David Cameron, backed by the leaders of the Labour and Liberal Democrat parties, offered to devolve more powers if the Scottish people rejected independence in the 2014 referendum.

Question 41

What factors have caused executive dominance to arise? (5)

Answer 41

•the first-past-the-post electoral system, which tends to deliver single-party government, sometimes enjoys the benefit of a large parliamentary majority based on a small share of the popular vote
•the whip system and the prime minister’s use of patronage, which reinforce party loyalty and discipline
• government domination of the legislative timetable
•the use of the Salisbury convention and the Parliament Acts to limit opposition to a government’s programme from the House of Lords.
•In the absence of a codified constitution, the doctrine of parliamentary sovereignty effectively means that the Commons is the main chamber, and whoever controls the Commons is the dominant force in the political system.

Question 42

What are three roles of parliament in holding the executive to account?

Answer 42

-Influencing government legislation
-Scrutinising other government activities
-Removing governments and ministers

Question 43

How common are parliamentary rebellions and what is more likely?

Answer 43

Parliamentary rebellions have become more common in recent years. However, defeats for government measures are rare. Blair did not lose a vote in the Commons until after the 2005 election, when his majority dropped by 100 seats, and even then it took a combination of Labour
rebels and the opposition parties to defeat his plans to extend the detention of terrorist suspects
to 90 days. More commonly, a government that fears defeat will withdraw a contentious measure.
In July 2015 Cameron shelved plans for a vote on relaxing the ban on hunting after the SP made it clear that they would vote against.

Question 44

Example of gov withdrawing proposal out of fear of it being defeated

Answer 44

In July 2015 Cameron shelved plans for a vote on relaxing the ban on hunting after the SNP made it clear that they would vote against.

Question 45

Example of opposition to a measure compelling PM to allow free vote

Answer 45

Sometimes opposition can compel a prime minister to allow a free vote. Cameron did so in May 2013 on the issue of same-sex marriage, knowing how strongly opposed many Conservative MPs were to the move. He won the vote thanks to the support of the Labour Party, in spite of an attempt by almost half of his own MPs to block the measure.

Question 46

What can the government usually rely on to pass measures? Example

Answer 46

Normally the pressure of party discipline and loyalty will ensure that a government secures the passage of even the most controversial parts of its programme.

In December 2010 the coalition won a vote to increase student tuition fees, even though this meant that the Liberal Democrats had to abandon an election promise, and the government majority fell from 83 to 21.

Question 47

Example of government getting support from opposition

Answer 47

On certain issues a government can rely on support from opposition MPs. Blair won a vote on the renewal of the Trident nuclear weapon system in March 2007 because Conservative support cancelled out a rebellion on his own side,

Question 48

General opposition from Lords

Answer 48

The Lords has become increasingly willing to oppose government measures since the removal of most hereditary peers and the ending of single-party control in the upper house. It has used its power of amendment to secure compromises from the government, as with the ‘sunset clause’ in the 2005 Prevention of Terrorism Act, but as the unelected chamber it will normally defer to the Commons after making its point. The Parliament Act was used three times by the Blair government to push legislation through.

Question 49

Power of select committees

Answer 49

Changes to select committees, notably the 2010 decision to allow MPs to elect their chairs, has enhanced their status. Long-serving chairs such as Andrew Tyrie (Treasury Select Committee) have accumulated expertise and gained public standing. Their role has expanded to include pre-appointment hearings and scrutiny of legislation.

Select committee proceedings allow for more in-depth scrutiny of policy than the theatrical duels with the leader of the opposition that occur each week in Prime Minister’s Questions. Of more practical value are oral and written questions to departmental ministers, although these receive less publicity.

Question 50

Limited power of select committees

Answer 50

However, ministers can block the appearance of Officials as witnesses, and although governments have to respond to select committee reports, they do not have to act on their recommendations. Resources available to them for research remain limited. The prime minister appears twice a year at the Liaison Committee, which consists of the chairs of the select committees. Even so, the prime minister is likely to be treated more leniently by committee chairs from their own party.

Questions and proceedings more valuable than PMQs but receive less publicity.

Question 51

How influential are debates in opposing the government

Answer 51

Debates on major events, such as the one on military action in Syria in August 2013, can occasionally lead to government defeats, but this can be partly attributed to poor management of MPs by government whips. The opposition parties are allocated 20 days in each session to choose the topic for debate, but the government can ordinarily rely on its Commons majority to carry an amendment to a hostile motion. The Backbench Business Committee, created in 2010, has scheduled debates on topics that the government would not have chosen. It works on a cross-party basis. However, with some exceptions, such as the release of documents on the Hillsborough football-stadium disaster, its work has attracted limited media attention. It is also worth noting that the government determines how much time is allocated to its debates.

Question 52

Example of gov being defeated in parliament debate

Answer 52

one on military action in Syria in August 2013

Question 53

Parliament’s limited power to remove governments and ministers

Answer 53

In modern times parliament’s power in this area has been limited. In theory the Commons can remove a government using a vote of no confidence, but this has not happened since March
1979. By making a vote a matter of confidence in the government, as John Major did on a crucial division on the Maastricht Treaty in July 1993, a prime minister can face down opposition; MPs will not normally risk triggering a general election in which they may lose their seats. The Fixed Term Parliaments Act has in any case introduced safeguards for the executive, allowing a prime minister who loses such a vote a 14-day period in which to form a new government.

Question 54

Parliament’s power to remove governments and ministers. Examples

Answer 54

Some individual ministers’ careers have been ended as a result of criticism from MPs, when they scent evidence of incompetence or a scandal, but in all the best-known recent cases, parliamentary pressure has been supplemented by attacks in the media. Alastair Campbell’s supposed rule about adverse publicity applied to the downfalls of Peter Mandelson, Charles Clarke, Maria Miller and others. David Cameron’s premiership was ended by the defeat of the ‘Remain’ side, which he had championed, in the June 2016 EU referendum, and not by events in parliament.

Question 55

Points for Government control over parliament has reduced (5)

Answer 55

•The last decade has seen an increased number of rebellions in the Commons. Although governments rarely lose legislation in voles in the Commons, they do withdraw bills on which they fear defeat, or make an issue a free vote.
•Government has accepted restrictions on the exercise of certain prerogatives, such as the right to authorise military action. Even if this is not legally binding an important precedent has been set. The Fixed Term Parliaments Act has removed the PM’s power to choose the date of a general election, unless two-thirds of MPs support such a move.
•The creation of the Backbench Business Committee in 2010 gives backbench MPs more control over the choice of topics for debate, airing issues that might otherwise have been neglected.
•Select committees have grown in status due to the decision to allow MPs to elect their chairs, and their powers have increased.
•The increasing assertiveness of the House of Lords has led to several government defeats. No single party controls the Lords, making management of the House more difficult.
Cross-benchers nave become increasingly important

Question 56

Points for Government still retains a large degree of control over parliament (5)

Answer 56

•The power of the whips, and the inducements of prime-ministerial patronage, remain important tools of government.
Including parliamentary private secretaries, the government can call on an extensive ‘payroll vote’ of about 100 MPs. With a secure majority it is difficult to defeat a government
in the commons
•Government retains a number of powers including the right to change laws using secondary legislation, which has been used increasingly in recent years.
•Government controls the greater part of the legislative schedule. The limited amount of time allocated to Private Member’s Bills, and to debates selected by the opposition parties, supports this point.
•Ministers can still obstruct select committees from summoning officials to their hearings, and they do not have to act on their
reports.
•The Lords usually defers to the will of the elected House after a period of ‘parliamentary ping-pong’ The Salisbury convention protects a government’s manifesto commitments. The Parliament Acts are available to help governments overcome persistent opposition from the Lords.

Question 57

Difference between legal and political sovereignty

Answer 57

•Legal sovereignty is a concept defined in law. It belongs to the person or body in a state with unlimited legal authority. In the distant past it was exercised by the monarch, but in the present day it belongs to the UK parliament. There is no higher legal authority than parliament - it can legislate on any subiect and no parliament can bind its successors.

•Poltical sovereignty stands above legal sovereignty. In a democracy, the legal sovereign body derives its authority from the people. When the people elect a parliament, they delegate their political authority to their representatives. Parliament is accountable to the electorate for the way in which it exercises its powers, and the electorate has the right to elect a new parliament at regular intervals.
In other words, parliament is entrusted with formal, legal sovereignty - the authority to make laws
- but it can do so only because the people, who possess ultimate political power, allow it to do so.

Question 58

What is legal sovereignty?

Answer 58

the right to ultimate legal authority in a political system; in the UK, this belongs to parliament.

Question 59

What is political sovereignty?

Answer 59

the ultimate political power; in the UK’s
democracy, the electorate holds this power, which it delegates to parliament.

Question 60

How does the executive pose a challenge to parliamentary sovereignty?

Answer 60

It can be argued that although parliament is theoretically sovereign, in practice real authority has long since moved to the executive. A government with a secure parliamentary majority can use the whipping system and its control of the legislative timetable to assert its dominance. It can use the Parliament Act to override opposition from the House of Lords. It has important royal prerogative powers at its disposal. Although it is now an accepted convention that the government should consult parliament in advance on the deployment of troops, this is not legally binding.

Question 61

Does the SC pose a challenge to parliamentary sovereignty?

Answer 61

The creation of the Supreme Court could be seen as a challenge to parliamentary sovereignty, in the sense that it ended the function of the House of Lords as the UK’s final court of appeal.
However, the Court itself was established by act of parliament and it could in theory be abolished by a future act. The Supreme Court’s own website describes its role as one of interpreting the law and developing it where necessary. It cannot strike down a law, and it is up to parliament to decide whether to amend legislation.

Question 62

Does devolution pose a challenge to parliamentary sovereignty?

Answer 62

This process involves a transfer of powers and functions to new bodies, giving them the authority to make law on certain specified subjects within their own part of the UK.
This does not amount to a federal settlement, which would mean a formal, legal sharing of sovereienty between diffefent levels of government. In theory, the UK parliament could abolish the devolved assemblies.In reality, as long as these bodies command public support, this is highly unlikely. Political reality overrides constitutional theory in the real world.

Question 63

Do referendums pose a challenge to parliamentary sovereignty?

Answer 63

The increased use of referendums since 1997 is sometimes cited as a threat to parliamentary sovereignty. At a theoretical level this is not the case since a referendum is advisory and not legally binding. However, political reality makes it extremely unlikely that parliament would dare to ignore the outcome of a popular vote. This lesson was underlined after the June 2016 EU referendum, when some constitutional lawyers argued that parliament was legally entitled to reverse the result of the vote. In practice, MPs are most unlikely to risk the public backlash that would follow an attempt to defy the clearly expressed will of the people.
This highlights the difference between legal and political sovereignty.

Question 64

Does the HRA pose a challenge to parliamentary sovereignty?

Answer 64

The passing of the Human Rights Act has increased the power of judges by giving them the right to declare existing legislation incompatible with the act. They cannot, however, compell parliament to change the law. Technically parliament should implement rulings of the European Court of Human Rights but it has, for example, rejected calls to allow prisoners voting rights. The Conservative Party has proposed to pass a British Bill of Rights, which is likely to make the Supreme Court the final arbiter of human rights, and parliament would be within its rights to pass such legislation.

Question 65

Possible areas of challenge to parliamentary sovereignty

Answer 65

-Executive
-Supreme Court
-Devolution
-Referendums
-The HRA

Question 66

Points for parliamentary sovereignty still being a reality (4)

Answer 66

• It remains the ultimate legal authority in the UK, with power to pass laws on any subject, and it is not subordinate to any other body in law.
•Parliament retains the right to abolish devolved bodies in the component parts of the UK, to which it has transferred powers and functions - but not sovereignty. The UK is not a federal state, even if it has acquired some characteristics of one.
•Judges may recommend laws for amendment that do not conform to the Human Rights Act, but it is up to parliament to decide whether to change them.
• Parliament retained sovereignty when the UK entered the EU, because it voluntarily gave up some sovereignty when it passed the 1972 European Communities Act. This is why the principle that EU law took precedence over UK law (illustrated by the Factortame case) became established. Parliament is allowed to repeal the 1972 act to end the UK’s membership of the EU.

Question 67

Points against parliamentary sovereignty still being a reality (4)

Answer 67

•Parliament derives its legal sovereignty from the political sovereignty that belongs to the people.
•The steadily growing power of the executive means that parliament is to a large extent controlled by the government, which uses parliament to pass its legislation.
•Legal sovereignty is a theoretical concept. The practical realities of politics mean that there are constraints on what it can do, for example, it would be inconceivable for parliament to abolish the Scottish parliament against the wishes of the Scottish people. Similarly, even though referendums are advisory rather than binding, politically it would be virtually impossible for parliament to ignore the result.
•In the modern world, globalisation makes sovereignty a less meaningful concept. It is more realistic to think of sharing sovereignty with other international actors, in order to maximise influence.