Sovereignty is the full right and power of a governing body over itself, without any interference from outside sources or bodies. It is the ultimate authority in a political system. Following the passing of the Bill of Rights Act in 1688, the powers once held by the monarch were formally transferred to Parliament. Two types of sovereignty that exist are legal and political sovereignty. Legal sovereignty is said to be in Westminster and it involves one body having the authority and freedom to change any law that it wants. There is also political sovereignty which resides in the people of the state because the electorate hold political power during election time. The different developments that affect the location of sovereignty consist of devolution of power, the Human Rights Act 1998, the establishment of Supreme Court and the UK’s EU Membership.
Devolution is a way that power has been transferred out of Westminster. Transfer of Westminster’s power to elected, sub-national governments has led to number of different legislation emanating from these new bodies. For example, Scotland, Wales and Northern Ireland have all been given greater powers over their regions as seen from Scotland and Wales having full control over their education system with university tuition fees being covered for students. Wales has been granted more legislative powers since 2011 and it has sovereignty in many legislative areas but not as much as Scotland who were expected to be given even more powers as part of a Devo-max deal following the Scottish referendum. It can be argued that this extension of powers contributes to the erosion of Westminster’s parliamentary sovereignty and has disrupted the unity of the United Kingdom.
In contrast, sovereignty remains within the UK parliament as although it is unlikely, power can be placed back into the hands of Westminster. All powers handed down to devolved bodies can be stripped and taken back to Parliament. Issues over whether further powers are given or taken away still rest in Westminster which is indicative of that fact that sovereignty has not shifted. For instance, the Northern Ireland Assembly has had its powers revoked on 4 occasions with the most recent one taking place from October 2002 to May 2007. The fact that Westminster retains the power to determine these matters highlights that the body still claims parliamentary sovereignty.
Another factor involved is the UK’s membership to the EU. The legal sovereignty of Parliament is mainly challenged by the presence and intervention of the EU. European Union law takes primacy over UK law which is shown with the European Court of Justice striking down an Act of Parliament in the Factortame case in 1990 where a Spanish fishing company was successful in arguing that they were being illegally denied access to UK waters. Also, EU powers have been further extended by increased use of qualified majority voting, meaning parliamentary sovereignty has been eroded since most decisions are made by unelected individuals in the European Commission.
On the other hand, the EU still has no say over fundamental matters of the UK such as the economy, healthcare and education. Also, the UK has been involved in the rejection of calls to allow voting rights for prisoners along with the Brexit vote which shows the EU’s lack of sovereignty. This indicates that the UK still has a large degree of sovereignty remaining.
Moreover, there is the factor of referendums that may have shifted the location of sovereignty. It has been argued that this is due to the greater emphasis on popular sovereignty within the current political climate. Since 1997 there has been a rise in the use of direct democracy within the UK on matters of devolution, electoral reform and the UK’s relationship with the EU for example the AV referendum in 2011 and the Scottish Referendum 2014. It has become a constitutional convention for Parliament to follow through on the results of these votes due to the legitimacy the outcome seems to have via popular mandate which makes them be seen as a clear threat to parliamentary sovereignty.
Despite the fact that political reality makes it highly unlikely that Parliament would ignore the outcome of popular vote due to risk of public backlash, referendums are not mandatory as it was stated after the 2016 EU referendum by constitutional lawyers that the government are legally entitled to reverse the result of the voting. Parliament holding the power to go against the will of the people is quite indicative of the authority that it holds in the UK political system.
Lastly, the concluding development that affects the location of sovereignty is the creation of the Supreme Court that stems from the Constitutional Reform Act 2005. The Supreme Court challenges parliamentary sovereignty due to its power of judicial review where it involves parliamentary scrutiny. A clearer separation of powers is established between Parliament and the judiciary which is more suited for democracy as the judiciary can control its excessive power and protect individuals’ rights. The Supreme Court is shown to have significant influence as Parliament has never failed to alter legislation returned by judicial review.
Conversely, the Supreme Court still shows parliamentary sovereignty as seen in the Gina Miller case in 2017 where it was ruled by the court that Theresa May must take a vote in Parliament if she wanted to trigger Article 50. This indicates the sovereignty of Parliament as the executive still had to go through Parliament to get a matter resolved. Also, although the Supreme Court may challenge this sovereignty through judicial review it is still up to Parliament to amend the legislation thus highlighting the power held by it.
In conclusion, it is shown through these developments that while parliamentary sovereignty is being challenged it is still very much intact due to Parliament’s retainment of power even with contention. Factors like Britain leaving the EU, devolved bodies having less power than Westminster Parliament, referendums relying on the actions of Parliament and the Supreme Court referring to Parliament all demonstrate how Parliament in Westminster is still dominant and remains the ultimate authority.