Relations between the Branches - Topic 4.4 Flashcards
The location of sovereignty in the British political system
Where is the location of sovereignty in the British political system?
Parliament possesses the legal sovereignty to enact any law without being overruled by any other body. The power of Parliament, however, is accountable to the public in regular elections, where the public reclaim their political sovereignty.
To what extent has sovereignty moved between branches in recent years?
In the case of referendums?
Since 1997, by convention, referendums have to be called to determine the opinion of the public on important constitutional questions. It is incredibly dangerous for a referendum to be held, and then have the government ignore the popular outcome. Referendums show a de facto transfer of authority from the representatives to the public.
To what extent has sovereignty moved between branches in recent years?
For the case of devolution?
Devolution did not cause Westminster to lose any of its sovereign power, it was given away to the domestic assemblies. Westminster could legally reclaim these powers (e.g., return of Direct Rule in Northern Ireland), however, this would be dangerous for the government also. Done so to Wales or Scotland, the popularity of government would be minimal and so raises the point that the UK is more of a quasi-federal state rather than unitary, with sovereignty shared by the union’s members.
To what extent has sovereignty moved between branches in recent years?
In relation to the royal prerogative?
Since the invasion of Iraq in 2003, the convention has developed that the Commons should be consulted over the use of military force. This is not set out in law however, demonstrating the PM’s control over royal prerogative. Lacking a codified constitution clearly setting out the relationship between the branches can lead to competing claims over sovereignty and where it lies.
To what extent has sovereignty moved between branches in recent years?
In relation to the Supreme Court?
With the Supreme Court ruling on where the government’s authority reaches, and whether it leaps over these bounds, was established in 2009, when the Law Lords moved from the Lords into Guildhall. The Supreme Court utilises judicial review to determine whether the government has acted within the accordance of the law and can quash decisions if deemed so.
To what extent has sovereignty moved between branches in recent years?
Due to the HRA?
Despite the Human Rights Act of 1998 protecting civil liberties in Britain, it is no different to any other Act of Parliament as the UK has no codified constitution meaning some of it can be suspended (Article 5 after 9/11; hold suspected foreign terrorists indefinitely without trial).
An Act of Parliament can pass a law that is in defiance of the HRA as no previous Parliament can bind the next. The Judiciary must step up then, to defend the HRA and shoot down any bill that goes against it. The HRA is becoming increasingly vulnerable with some Conservative MPs wanting to weaken the bill and replace it with a British version, rather than the EU incarnation of the Charter of Fundamental Rights applied to British law.
To what extent has sovereignty moved between branches in recent years?
Due to globalisation and the EU?
International organisations such as the International Court of Justice, the World Trade Organisation and International Criminal Court have hampered Parliamentary sovereignty. The UK is expected to obey WTO trading rules and is committed to protecting any NATO member when it is attacked (Article 5). ICJ ruled that the British control over the Chagos Islands (British Indian Ocean Territory) was unlawful; the UK ignored the ruling. Like what the UK did with leaving the EU, Parliament could technically force the UK to leave any international organisation to fully reclaim its sovereignty.
What arguments are there to support the fact that Westminster is still sovereign?
- Parliament legislated to leave the EU, in spite of the Factortame case. Parliament reserved the rights to enact legislation to repeal UK membership
- Since the UK doesn’t possess a codified constitution, there’s no higher law that statute. The Supreme Court may not, therefore, strike down an Act of Parliament
- Although the ECHR has been enacted through the HRA, it’s no different legally to any other Act, so it could be suspended or repealed
- Parliament could, in theory, abolish the devolved assemblies by Act of Parliament
- Parliament is not legally bound by the result of a referendum
What arguments are there to discredit the fact that Westminster is still sovereign?
- The devolved government of Wales and Scotland can only be abolished by Parliamen following referendums calling for their removal
- There’s now a convention that major constitutional decisions shouldn’t be agreed by the public in referendums rather than by Parliament
- Parliament accepted the result of the EU referendum, although most MPs disagreed. This suggests that the political sovereignty of the public is superior to that of Westminster
- Westminster is no sovereign in those areas involving the PM’s exercise of royal prerogative
- The Supreme Court determines where sovereignty lies. In cases such as the legitimacy of a second IndyRef, its decisions are final
