Relationships between institutions

Question 1

What is fusion of powers?

Answer 1

When the executive and legislative powers are intertwined

Question 2

Why is a separation of powers important?

Answer 2

There is a conflict of interest of those who make the laws are responsible for interpreting and dispensing them

Question 3

What is the legislature?

Answer 3

Those who make laws - parliament

Question 4

What did the 2005 Constitutional Reform Act seek to do?

Answer 4

Break final separation between the judiciary and the legislature by moving the Law Lords out of the Lords to create a seperate supreme court, distinct from parliament

Question 5

Lord Chancellor

Answer 5

• Lord chancellor used to act as speaker of the HoL and was also head of the judiciary, and senior judge in the HoL
• They head the Ministry of Justice as the Secretary of State for justice
• They may no longer sit as a judge
• Now concentrates on constitutional affairs
• Member of the Privy council and cabinet
• Points to fusion of powers
• Constitutional reform act removed the responsibility of head of the judiciary, and chairman of sittings of the HoL; more separation of powers, but still a cabinet minister who supervises the legal system

Question 6

Appointments to the supreme court

Answer 6

• The most senior figure is stated as the president
• Justices will usually have served as a senior judge for 2 years, or been a qualified lawyer for 15 years
• The original members were the law lords
• When a vacancy occurs, nominations are made by an independent, 5 member selection commission, consisting of the president, and deputy president of the court, and a member of each of the equivalent bodies for Scotland, Northern Ireland, and Wales

Question 7

What is the role of the Supreme Court?

Answer 7

• It was opened on 1 October 2009
• It was designed to end the fusion of powers at the highest level of the Uk judiciary
• It is the only UK wide court and it acts as a final court of appeal for rulings made by the lower courts
• It also hears appeals on arguable points of law where matters of wider public and constitutional importance are involved

Question 8

Case Study: Supreme Court and the powers of the devolved bodies

Answer 8

In July 2016, the SC overruled Scottish gov’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 SC ruled that the legislation was in conflict with Article 8 of the HRA (right to a private and family life) as it would allow public bodies to share personal info without consent. SC ruled that a devolved body had exceeded its powers

Question 9

What is judicial neutrality?

Answer 9

The expectation that judges will exercise their functions without personal bias

Question 10

In what ways is judicial neutrality protected?

Answer 10

Conflicts of interests: judges must not sit on a case that involves a family member, friend or professional associate

Public activities: Judges must avoid public political activity. They may serve on an official body, such as a government commission provided it does not compromise their political neutrality

Question 11

What are the problems with neutrality within the Supreme Court?

Answer 11

• Disproportionately white, male and upper class
• Lady Hale was the only female justice
• Lady Hale pointed out in an interview in 2015 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 oxbridge

Question 12

What is judicial independence?

Answer 12

The principle that judges will carry out their function free from political interference - they are not influence by other branches of government, particularly the executive

Question 13

What is judicial independence guaranteed by?

Answer 13

• Judges cannot be removed from office unless they break the law. They have the security of tenure
• Judges salaries are paid from an independent fund, which cannot be affected by ministers
• Appointments to the Supreme Court are made by an independent commission, not the government

Question 14

Concerns regarding judicial independence

Answer 14

• The court is funded by the government
• Concerns were raised by Lord Phillips during the coalition in 2011 when the government imposed spending cuts on the court as part of the government’s austerity scheme, 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 of the MoJ to ‘try to gain the SC as an outlying part of its empire’ (evaluate on frequency)
• Justice secretary at the time, Kenneth Clarke, dismissed this, he insisted the court was free of political interference, and the gov accepted all its judgements, and the court couldn’t be uniquely permitted to set its own budget
• The court being a separate building to parliament is a physical sign of its independence
• If the court is independent, it will not always rule in favour of the gov.

Question 15

What is one of the most important roles of the SC?

Answer 15

• To interpret the Human Rights Act 1998
• If it believes that an existing piece of UK legislation is in conflict with the ECHR, it can issue a ‘declaration of incompatibilty’
• It is expected that parliament will modify the law to bring it into line with the connection

Question 16

How is the Supreme Court’s power limited?

Answer 16

• Parliamentary sovereignty means the court doesn’t have the power to strike down law
• There is no codified constitution which legislation could be tested against, meaning the power of the court is limited
• The gov. tends not to ignore rulings because of democracy and public opinion

Question 17

What is judicial review?

Answer 17

• Judicial review is the power of the the judiciary to review and sometimes reverse actions by other branches of government that breach the law, or are incompatible with the HRA
• The court can enquire whether ministers have followed correct procedure when implementing legislation, and examine the actions of public bodies to determine whether they have acted ultra vires (‘beyond ones powers’

Question 18

Case study: The right of sex offenders to appeal against registration for life, 21 April 2010

Answer 18

• The gov.’s position was that individuals who had committed serious sexual offences must register with the police for life after prison
• The court ruled that this breached their human rights (right to privacy) and they should have the right to appeal against registration 15 years after leaving jail

Question 19

Case Study: The case of Private Jason Smith, 30 June 2010

Answer 19

• Private Smith was a serviceman who died of heatstroke on campaign in Iraq in 2003
• His family brought a case against the Ministry if Defence, arguing that the authorities should have safeguarded him
• The High Court ruled in their favour, but when this was appealed to the SC, it was overruled, 6 to 3
• The SC held that the jurisdiction of the HRA didn’t extended to troops in combat situations

Question 20

Case Study: The Al Rawi case and secret hearings, 13 July 2011

Answer 20

• Brough forward by former inmates of U.S. prison at Guantanomo Bay, who claimed that UK security services had contributed to their detainment and mistreatment
• The security chiefs, supported by the UK government, argued that they must be allowed to give evidence in secret, in the interest of national security
• SC rejected this on the grounds that it breached one of the principles of a fair trial

Question 21

Case study: HS2 rail link, 22 January 2014

Answer 21

• Campaigners against the government’s planned London to Birmingham high speed rail link requested a judicial review to investigate whether it complied with EU environmental policies
• The court unanimously dismissed the appeal on the grounds that parliament hadn’t reached a final decision on the scheme, so its merits remained open to debate

Question 22

Case study: Theresa May and Article 50

Answer 22

• 9 months after the Brexit referendum, May activated article 50 of the Lisbon Treaty (as she thought it was her prerogative to implement it) which was the mechanism to make Brexit a reality
• Article 50 provides the mechanism for a voluntary and unilateral withdrawal of a country from the EU
• Campaigners argued that denying the UK Parliament a vote was undemocratic and a breach of long-standing constitutional principles; they said that overturning Article 50 would mean overturning existing UK law
• The Supreme Court ruled against the government saying that they can’t trigger Article 50 without an act of Parliament authorising it
• The government said that it wouldn’t delay Brexit - they planned to trigger Article 50 by the end of March

Question 23

Case Study: Boris Johnson and Article 50

Answer 23

• Johnson advised the Queen that parliament should be prorogued for 5 weeks at the height of the Brexit crisis- he though it was his prerogative power
• The Court ruled that this was unlawful, void and of no effect
• Critics said that prorogation would threaten parliamentary sovereignty

Question 24

Case studies for judicial independence

Answer 24

• Theresa May and Article 50
• Boris Johnson and Prorogation
• The right of sex offenders to appeal
• The case of Private Jason Smith
• The Al Rawi Case and secret hearings
• HS2 rail link

The court found against the government in high profile cases, which indicates independence
4 against the government
2 in favour of the government

Question 25

What is the European Union?

Answer 25

An association of 28 states, originally founded as the Economic European Community in 1957, which has evolved into a political and economic union

Question 26

What are the reasons for the development of the EU?

Answer 26

• Promoting peace (preventing WW3)
• Economic integration
• Economic and Monetary Union

Question 27

Stages in the development of the EU

Answer 27

• 1950 - European Coal and Steel Community formed by France, West Germany, Italy, Belgium, Luxembourg, and the Netherlands to remove control of these key warmaking material from individual nations (France vetoed the UK from joining originally, as they believed out interests weren’t in line with Europe)
• 1957 - Treaty of Rome was signed by the 6 ECSC states, creating the European Economic Community, later known as the European Community
• 1973 - Britain and Ireland join the EEC
• 1975 - European referendum; Britain votes by a margin of 2 to 1 to stay in the EEC
• 1992 - Treaty of Maastricht signed, transforming the EC into the more closely integrated European Union - EU is more political, EEC is economic
• 2016 - Brexit referendum - Britain vote to leave the EU 52% to leave 48% to stay
• 2020 - when Britain leave the EU

Question 28

Development of social policy under the EU

Answer 28

• To balance the economic freedoms of the single market, the EU developed a social dimension to ensure that workers didn’t suffer disadvantage and discrimination
• Another aim was to ‘create a level playing field’ for businesses, countering the danger that, if there were significant inequalities between member states, firms might move to countries where workers’ rights were weaker and labour was cheaper

Question 29

What is meant by supranationalism?

Answer 29

Decision making power is transferred to a higher body, which operates independently of nation states

Question 30

What are the pros of supranational institutions?

Answer 30

• Operates independently; more objective and holistic
• Peace keeping
• Stronger/richer states can help more vulnerable ones
• Can enforce global solutions to global problems
• Resolve disputes between member states and can enforce this
• Shared resources
• Joint approach to problems

Question 31

What are the cons of supranational institutions?

Answer 31

• Loss of sovereignty; seems distant and bureaucratic, lack of autonomy
• Can feel distant and irrelevant
• Smaller states can feel neglected and bullied
• Trade
• Not hugely cooperative
• Countries may not be treated equally and have differences in power
• Discourages cooperation

Question 32

What are the EU institutions?

Answer 32

European commission
European council
Council of the European Union
European Parliament
The European Court of Justice

Question 33

European Commission

Answer 33

Supranational
Consists of officials nominated by each member state government
Proposes EU law - decides policy
Enforces EU laws on member states and other governments
Prepares the EU budget

Question 34

European Council

Answer 34

Intergovernmental
Consists of the heads of government of the member states
Meets up to 4 times a year
Takes key strategic decisions, such as the admission of new members

Question 35

Council of the European Union

Answer 35

Intergovernmental
Consists of foreign ministers from member states
Discusses different policy areas, such as agriculture, trade or the environment
Takes decisions on whether to adopt legislation, working in co-operation with the European Parliament

Question 36

European Parliament

Answer 36

Supranational
The only directly elected EU institution
Has a say in the adoption of the EU budget
Enjoys the right of co-decision on most legislation with the Council of the European Union
Can accept or reject nominations to the commission

Question 37

The European Court of Justice

Answer 37

Supranational
Enforces Eu law
Resolves disputes between member states

Question 38

What is subsidiarity?

Answer 38

The principle that supranational institutions will only impinge on state sovereignty where necessary e.g. defence, foreign affairs, but not education or health (there is an argument post-Covid that health shouldn’t be protected under subsidiarity)

Question 39

How did the Lisbon Treaty (2007) politicise the EU?

Answer 39

• European Council were given a permanent president, serving a 2.5 year term that can be renewed once
• System of double majority voting was introduced, enabling legislative proposals to be passed with the support of 55% of the member states, representing at leats 65% of the population (means 45% can be forced into things)
• Incorporated the Charter of Fundamental Rights (which the UK refused to accept as legally binding)
• High Representative of Union for Foreign Affairs and Security Policy was appointed to co-ordinate an agreed EU foreign policy

Question 40

What does the EU have exclusive competence over?

Answer 40

Competition policy
Trade with non-EU states
Customs union

Question 41

What do the EU and member states share competence over?

Answer 41

The single market
Social and employment policy
Agriculture and fisheries
Regional development
Environmental policy

Question 42

What areas do the EU co-ordinate the individual policies of states for?

Answer 42

Common, foreign and security policy
Some aspects of macroeconomic policy

Question 43

What areas do member states have exclusive competence over?

Answer 43

National defence
Most taxation
Health
Education
Social security

Question 44

Evidence that British sovereignty is affected by British membership of the EU

Answer 44

• Some parts of policy are disagreed with, but have to be implemented (ECJ ruled that tradesmen’s travel time counted towards 48 hour working week, Cameron’s gov. disagreed)
• EU regulated the amount of deep sea fish that could be caught, and allowed boats from different member states to have equal access to each others’ grounds - Spanish fishing company sued UK gov, and the law lords followed the ECJ ruling that the 1998 Merchant Shipping Act couldnt be allowed to stand, which established the primacy of EU law over an act of parliament (Factortame Case)
• The volume of EU legislation means it is difficult for the HOC European Scrutiny Committee to perform their task

Question 45

Evidence that sovereignty is not affected by British membership of the EU

Answer 45

• Government has the ability to opt in or out of certain policies - Major’s gov opted out of the Social Chapter as they didn’t want businesses to be ‘held back’
• Executive has altered the way it works to co-ordinate British policy in order to get the best available deal
• Parliament has a responsibility to examine EU legislation and ministers shouldn’t agree to new laws unless it has been debated of reviewed by the House of Commons European Scrutiny Commission

Question 46

What is elective dictatorship?

Answer 46

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

Question 47

What are the reasons that elective dictatorships arise?

Answer 47

• FPTP tends to deliver single-party government, and 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
  Use of the Salisbury convention and Parliament Acts to limit opposition to a government’s programme from the House of Lords

Question 48

Instances of elective dictatorship in recent times

Answer 48

• In 2003 the Blair Government (elected on 40% of the vote) first attempted to abolish the post of Lord Chancellor, without any prior consultation. On meeting constitutional difficulties with its plans, it 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 Democrats parties, offered to devolved more powers if the Scottish people rejected independence in the 2014 referendum

Question 49

What is Parliament’s influence over legislation?

Answer 49

• A government that fears defeat in Parliament will withdraw a contentious measure
• Opposition can compel a Prime Minister to allow a free vote
• Normally the pressure of party discipline and loyalty will ensure that a government secures passage of even the most controversial parts of its programmes
• Lords has become increasingly more willing to oppose government measures since the removal of most hereditary peers

Question 50

Parliament’s scrutiny of other government activities

Answer 50

• Changes to select committees (2010 decision to allow them to select their chairs) has enhanced their status
• Select committees’ role has extended to include pre-appointment hearings and scrutiny of legislation
• Ministers can block the appearance of officials as witnesses, and although governments have to respond to select committee reports, they don’t have to act on their recommendations
• Debates on major events can occasionally lead to government defeats, but this can be partly attributed to poor management by party whips
• Opposition are allocated 20 days in each session, but the government can ordinarily rely on its Commons majority to carry an amendment to a hostile motion
• Backbench Business Committee has scheduled debates, but the government allocates how much time is spent on these debates
• Prime Minister appears twice a year at the Liaison Committee, but is likely to be treated more leniently by committee chairs from their own party

Question 51

Parliament’s ability to remove governments and ministers

Answer 51

• In theory, Commons can remove by a vote of no confidence, but this has not happened since 1979 (when James Callaghan, Labour, was PM)
• The Fixed Term Parliament Act introduced safeguards for the executive (Act has now been removed)
• Some minsters’ careers have been ended as a result of criticism from MPs

Question 52

Arguments that government control over parliament has reduced

Answer 52

• The last decade has seen an increased number of rebellions from Commons. Although governments rarely lose legislation in votes 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 2/3 of MPs support such a move - this has now been removed
• The creation of the Backbench Business Committee in 2010 gives backbench MP 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 have become increasingly important

Question 53

Arguments that the government still retains a large degree of control over parliament

Answer 53

• 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 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 54

What are the Four Freedoms?

Answer 54

The principle of free movement of goods, services, people and capital within the EU’s single market

Question 55

What are the aims of the EU?

Answer 55

Promoting Peace
Economic integration and the single market
Economic and monetary union
Enlargement
Social policy
Political union

Question 56

The EU and economic integration and the single market

Answer 56

• Member states wanted to promote economic growth by breaking down internal barriers to trade to create a customs union
• Economic integration took a step further with the passing of the Single European Act in 1986 - its aim was to create a single European market based on the four freedoms
• Different national policies presented obstacles to this
• The free movement of EU citizens to live and work in other member states was guaranteed from 1995 by the Schengen Agreement, which the UK and Ireland negotiated opt-outs from
• Some states introduced temporary restrictions on internal movement in response to the 2015 migrant crisis, causing tensions to arise between states that were willing to accept asylum seekers and those that feared their infrastructure could not cope with the rising numbers

Question 57

The EU and economic and monetary union

Answer 57

• Establishment of Economic and Monetary Union (EMU) was the eventual goal for a majority of member states
• It meant the creation of a European Central Bank, and a single currency
• Euro introduced as a trading currency in 1999, and available as notes and coins form 2002
• Intention was to promote cross-border trade and travel by eliminating the uncertainties caused by fluctuating exchange rates - in the long run it was meant to underpin closer political union. Britain and Denmark exercised the right to opt out, as they weren’t prepared to surrender economic sovereignty
• The UK also opted out of the 2012 Fiscal Compact Treaty

Question 58

The EU and enlargement

Answer 58

• With the end of the Cold War, the EU turned attention to expanding its borders to include eastern and Central European states that had previously been under communist rule, leading to the admission of 10 new members in 2004
• The aims of enlargement were to further unity and to create an expanded and more influential trading bloc.
• There was doubt over whether new members had administrative structures capable of implementing an array or EU laws and regulation
• Another issue was the influx of Eastern European worker into established member states, provoking concern about competition of jobs - important factor in the UK’s vote to leave in 2016

Question 59

The EU and social policy

Answer 59

• EU developed a social policy to balance the economic freedoms of the single market, to ensure that workers didn’t suffer discrimination and disadvantage.
• Also aimed to create a ‘level playing field’ for businesses so that firms wouldn’t move to states where workers’ rights were weaker and labour was cheaper

Question 60

The EU and political union

Answer 60

There is no single institution corresponding to the executive or the legislature of a typical nation state - instead there is a perpetual state of balance between institutions that operate in an intergovernmental way, and those that operate in a supranational way

Question 61

What is qualified majority voting?

Answer 61

Each state is allocated a number of votes in proportion to its population size

Question 62

The negotiation of European treaties

Answer 62

Treaties are the legal documents that set out the powers of the EU institutions and the rules for decision-making. The key body in negotiating a new treaty is the European Council. The heads of government who make up the council have the authority to commit their countries to the deals they make with each other
The European Parliament then votes on the treaty.
Finally it is ratified by each member state, using its own chosen procedure. The usual method is for national parliaments to take a vote, but Ireland’s constitution requires a referendum to be held

Question 63

What are the 2 main kinds of EU laws?

Answer 63

Directive: sets out a goal that all EU member states must work towards, They are then expected to pass their own laws to achieve this e.g. the 1998 Working Time Regulations, passed in the UK to give effect to the Working Time Directive
Regulation: binding on all member states and is immediately enforceable e.g. the 2015 regulation on common safeguards on goods imported outside the EU

Question 64

What are the main stages in the passing and enforcement of an EU law?

Answer 64

1. The European Council sets the broad guidelines for the Commission in its task of proposing laws. The EU treaties set out the basic goals and rules for law-making
2. The European Commission proposes new laws. Before doing this it assesses the impact of new legislation and consults with the relevant parties
3. The Council of the European Union and European Parliament jointly decide on the adoption of the new law. If they cannot agree, a ‘conciliation committee’ is convened to find a compromise
4. Implementation of a law is the responsibility of the committees of the European Council and of the Commission. The latter can bring a case before the ECJ if a member state doesn’t comply within a given timescale

Question 65

How has the EU affected the UK’s political system and policy-making?

Answer 65

• ‘Europeanisation’ - the adaptation of UK government structures and domestic policies to EU policies and procedures - is uneven
• Membership heightened the profile of the PM; regular attendance at European Council meetings, meetings with counterparts to negotiate
• Foreign secretary plays an important role in support of the prime minister, attending meetings of the European Council as well as the Council of the European Union, the chancellor represents the UK when Council of Finance Ministers (Ecofin) is in session
• To a large extent the Council simply ratifies decisions drafted by a body of civil servants, drawn from member states, known as Coreper
• A cabinet committee on European affairs was set up to develop UK policy towards the EU. A European and Global Issues Secretariat seeks to co-ordinate the approach of different Whitehall departments to Britain’s role in the EU
• Parliament has a responsibility to examine EU legislation , and new laws shouldnt be agreed to unless it has been debated and reviewed by the House of Commons European Scrutiny Committee, but the sheer volume of legislation makes this a hard task to perform effectively
• The House of Lords EU Select Committee produced reports on developments in Brussels, but lacks real influence
• Devolution adds a new layer of complexity as a number of areas in which the EU shares competency with the UK have been devolved, and central government has to consult devolved administrations before negotiating with the EU

Question 66

What is legal sovereignty?

Answer 66

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

Question 67

What is political sovereignty?

Answer 67

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

Question 68

The movement of sovereignty between different branches of government

Answer 68

• While parliament is theoretically sovereign, in practice, real authority has moved to the executive; governments with secure majorities can use the whipping system and the legislative timetable to assert its dominance. It can use the Parliament Act to override Lords opposition, and has important royal prerogative powers at its disposable. While government should consult Parliament on deployment of troops, this is not legally binding
• Supreme Court could be seen as a challenge to parliamentary sovereignty as it ended the function of the HoL as the UK’s final court of appeal.
• However the court was established by an act of parliament, so could, in theory, be abolished by a future act. Additionally, the court cannot strike down a law

Question 69

How has devolution caused some commentators to question whether parliament is still sovereign?

Answer 69

• It involves a transfer of powers and functions to new bodies
• Gives authority to make law on certain specifies subjects within their own part of the UK
• Doesn’t amount to a federal settlement
• In theory, central gov. could abolish devolved bodies, but unlikely in reality as these bodies command public support - political reality overrides constitutional theory in the real world

Question 70

How have referendums caused some commentators to question whether parliament is still sovereign?

Answer 70

• Not a threat at theoretical level as they are only advisory, not legally binding
• Reality makes it unlikely that gov. would ignore the outcome of a popular vote - in practice MPs are unlikely to risk the backlash that would follow an attempt to defy the clearly expressed will of the people

Question 71

How has the Human Rights Act caused some commentators to question whether parliament is still sovereign?

Answer 71

• Increased the power of the judges by giving them the power to declare existing legislation incompatible
• Technically, Parliament should implement rulings of ECHR, but for example, has rejected calls to allow prisoners voting rights

Question 72

How has EU membership caused some commentators to question whether parliament is still sovereign?

Answer 72

• Some argue that sovereignty has not been lost, but ‘pooled’ and the UK has gained influence that it could not have obtained on its own, and given the pace of globalisation, it was no longer possible for any state to be truly independent
• Some believed sovereignty could be reclaimed by negotiating opt-outs or by securing the return of powers to the UK parliament

Question 73

What are the arguments that parliamentary sovereignty is still a reality?

Answer 73

• Parliament 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
• Judges may recommend laws for amendment that do not conform to the HRA, 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 can repeal the 1972 act to end membership

Question 74

What are the arguments that Parliamentary sovereignty is not still a reality?

Answer 74

• 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 means that there are constraints on what it can do e.g. it would be inconceivable that parliament abolish the devolved bodies, and it would be virtually impossible to ignore the result of referendums, even though they are not legally binding
• 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