The location of sovereignty in the UK

Sovereignty is a key concept in all constitutions. This is because it defines the location of supreme constitutional power. If constitutions define the duties, power and functions of the various institutions of government, the sovereign body, or any body that shares sovereignty, has the ability to shape or reshape the constitution itself. In this way, it defines the powers of subordinate bodies. In the UK, sovereignty is located in Parliament or, technically, the ‘Crown in Parliament’. Parliamentary sovereignty is strictly a form of legal sovereignty: it means that Parliament has the ability to make, unmake or remove any law it wishes. As J. S. Mill (1806–73) put it, ‘Parliament can do anything except turn a man into a woman’. Parliamentary sovereignty is, without doubt, the most important principle in the UK constitution, but it is also its most controversial.

The debate over Brexit was concerned with the extent to which Parliament had lost and would regain sovereignty.

One of the main arguments for leaving the EU was in order to restore sovereignty to Parliament. Has this happened?

To an extent - yes. Statute law is no longer subject to EU law and the European Court of Justice has no jurisdiction over EU law as is applied in the UK. The precedent set by the Factortame Case no longer applies. However, apart form the argument that sovereignty was never lost; since Parliament always had the option to leave or the argument that the referendum diminished parliamentary sovereignty more substantially then membership of the EU, there is an argument that any trade deal with the EU involves some continued loss of sovereignty sine the treaty will have some lasting restriction on Parliamentary freedom of action. For example, N Ireland now remains within the single market - and any future regulatory changes are open to EU sanctions. You might argue that sovereignty itself is a rather out dated concept give the globalised and interdependent world we live in.

However, there are doubts about the accuracy and continuing relevance of parliamentary sovereignty. This is for three reasons:

• Parliament is not, and has never been, politically sovereign. Parliament has the legal right to make, amend or unmake any law it wishes, but not always the political ability to do so. A simple example would be that Parliament could, in theory, abolish elections, but this would be likely to result in widespread public protests, if not popular rebellion.

The main political constraints on parliamentary sovereignty therefore include the following:

• Powerful pressure groups, especially major business interests

• Public opinion, particularly electoral pressures

• The views of major trading partners, notably the USA and leading EU states

• The policies of international organisations, such as the EU, the World Trade Organization (WTO) and the UN.

• There has been a shift from parliamentary sovereignty to popular sovereignty. Evidence of the growth of popular sovereignty can be seen, for example, in the wider use of referendums, the establishment of popularly elected devolved assemblies and in more clearly defined citizen’s rights, particularly through the Human Rights Act

. • Parliament may no longer be legally sovereign. This view has developed primarily as a result of the constitutional implications of EU membership . It is also implied by the idea that devolution has resulted in ‘quasi-federalism’, reflected in the reluctance (or inabilty) of Parliament to challenge decisions made by devolved bodies.

Here are some arguments to support the idea that Parliamentary sovereignty is still a reality.

· 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.

Here are some counter arguments.

· 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.