Parliament retains sovereignty Flashcards
(11 cards)
Question
Evaluate the view that Parliament retains sole sovereignty within the UK political system.
Factors
- Supreme Court.
- The EU.
- Devolution.
- PM and the Executive (alternative)
Judgement
Parliament retains sovereignty
Weaker argument Supreme Court
SC becoming semi-legislative:
→ R (Steinfeld and Keidan) v Secretary of State for International Development [2018] - unequal treatment of opposite-sex couples was unlawful, led to changes to extend civil partnerships to all couples.
→ R (on the application of GC) v The Commissioner of Police of the Metropolis (2011) - changes in how the police manage and store biometric data.
→ After 9/11 the government attempted to put “terror legislation” in place allowing suspects to be detained for 42 days - the Supreme Court ruled that it was incompatible with the Human Rights Act.
Stronger argument Supreme Court
→ Parliamentary sovereignty means that the Supreme Court cannot strike down statutes. Compare with USA.
→ Parliament, has the power to repeal, replace, or amend the Human Rights Act and withdraw from the European Convention of Human Rights.
→ The 2019 Conservative manifesto included a pledge to update the HRA in order to give “a proper balance between the rights, our vital national security, and effective government.”
→ In the case of A and others v Secretary of State for the Home Department in 2004, it was ruled that the indefinite detention of terror suspects was incompatible with human rights. However, the Home Secretary did not release the suspects until Parliament had passed new legislation to make it compatible.
→ R (AAA) v Secretary of State for the Home Department 2023 - Rishi Sunak negotiated a new treaty with Rwanda and amended UK laws in response to the ruling with the Rwanda Bill which passed in April 2024 after the Lords dropped their opposition.
→ Blair amended laws in order to pass his Terror Bill.
Weaker argument the EU
When in the EU:
→ R v Secretary of State for Transport, ex parte Factortame - Spanish fishermen challenged the UK’s Merchant Shipping Act 1988 - the courts ruled that EU law takes precedence.
→ The increasing use of QMV (Quality Majority Voting) means the EU could impose regulations on the UK in these areas, without the approval of the UK, if the qualified majority is achieved.
→ For fisheries, agriculture and the regulation of the production, distribution and sale of goods, services and capital, the UK’s political sovereignty to set its own policies was restricted.
After Brexit:
→ The EU Withdrawal Act copied across all EU law into UK law. This retained EU law is then subject to amendment, repeal and improvement in the future, but continues to shape UK politics long after Brexit.
Stronger argument the EU
→ The EU Withdrawal Act of 2018 repealed the European Communities Act. The EU no longer has primacy over UK statute and will end the jurisdiction of the European Court of Justice - both legal and political sovereignty returns to Parliament.
→ When in the EU only certain areas of legislative competency were passed to the EU. Most of the areas of public expenditure (the NHS, education, welfare, and foreign/defence policy) remained unaffected.
→ In 1986, Parliament passed the Single European Act, which replaced many unanimous decision-making processes with QMV, and ratified the Lisbon Treaty in 2008.
→ The opted out of the euro and the Schengen Zone.
→ The UK’s political sovereignty was actually increased while in the EU due to the concept of pooled sovereignty.
Weaker argument devolution
→ It is not politically viable that Parliament could reverse devolution in Scotland and Wales without the support of the majority of the populations.
→ The Scotland Act 2016 and Wales Act 2017 state that the devolution settlements can only be reversed via referendum.
→ The Sewel Convention states that Westminster will not legislate on devolved matters without the consent of the devolved legislatures.
Stronger argument devolution
→ There is no loss of legal sovereignty because devolution is not the same as federalism.
→ The power that has been devolved can be called back and the Devolution Acts could be repealed by Parliament.
→ In 1972 the Stormont Parliament was suspended, after 50 years of home rule, to be replaced with direct rule from Westminster.
→ Since the Good Friday Agreement, the Northern Ireland Assembly has been suspended 5 times, leaving the running of government to NI’s Civil Service and the British government.
→ The UK government blocked the Scottish Gender Reform Bill (that had been passed in the Scottish government) because the Bill impacted the whole of the UK.
→ In October 2020 Manchester’s Mayor, Andy Burnham, challenged the government’s decision to put Manchester into Tier 3. However, Parliament remained sovereign.
Weaker argument PM and the Executive
→ The fused branches means in practice, political sovereignty has passed from Parliament to the executive when a PM has a large majority in the Commons.
→ In the two Thatcher Governments of 1983 and 1987 and the Blair governments of 1997 and 2001 the PMs enjoyed a majority of over 100 seats in the Commons.
→ The Royal prerogative including the power of patronage and the party whip system helps ensure the PM’s dominance in Parliament.
→ The Prime Minister can deploy armed forces without requiring Parliamentary approval: Iraq in 2003 and the air strike on Syria in 2014.
→ Tony Blair did not lose a single vote before 2005.
Stronger argument PM and the Executive
→ Only Parliament has the power to make or unmake any law.
→ Whatever the size of the majority, the executive still has to rely on Parliament for legislation.
→ While Parliament may rarely exercise its power to veto legislation proposed by the executive, its ability to use this power means that the executive has to compromise with Parliament by amending the legislation in order to pass it.
→ The relationship between Parliament and the executive is constantly changing.
→ When a PM is weak, Parliament is more dominant - during the period Theresa May was in power she suffered 33 defeats in the Commons.
→ Even when there is a strong PM, such as Blair, Parliament can still exercise its powers - it did in 2005 when Blair was defeated on his proposal to allow the police to detain terror suspects for up to 90 days without charging them.
