Principle Of Parliamentary Sovereignty Flashcards
(7 cards)
Introduction
Parliamentary sovereignty- the principle that parliament is the supreme legal authority, able to make or unmake any law- has long been regarded as the foundation of the UK Constitution. However, challenges such as devolution, executive dominance and judicial review have led some to argue that this principle has been significantly eroded. While these developments have constrained Parliament’s practical power, this essay will argue that Parliament remains legally sovereign, as it retains the ability to override devolved institutions, constrain the executive and shape judicial authority through legislation
Devolution- challenges parliamentary sovereignty
-it could be argued that one of the strongest challenges to parliamentary sovereignty is devolution, which has transferred legislative power to Scotland, Wales and Northern Ireland, limiting Parliament;s authority over domestic policy in these areas.
-the Scotland Act 1998, Government Wales Act 1998 and Northern Ireland Act 1998, created devolved legislatures with increasing control over healthcare, education and justice policies, leading to some to argue that the UK effectively has become a quasi-federal state.
-the Scotland Act 2016 even declared that the Scottish Parliament is a “permanent part of the UK’s constitutional arrangements” raising questions about whether Westminster could ever realistically revoke devolved powers, without severe constitutional crisis.
-furthermore, the Sewel Convention, established in 1999, states that Westminster will not legislate on devolved matters without consent, reinforcing the idea that sovereignty has become shared rather than absolute.
-this can indicate that parliamentary sovereignty is no longer the cornerstone of the UK constitution, as Westminster has voluntarily devolved significant powers and faces political constraints in reclaiming them.
Devolution- does not threaten parliamentary sovereignty
- a more convincing argument is that while devolution has introduced practical and political constraints, it has not legally erodes parliamentary sovereignty.
-westminster retains constitutional right to legislate on any matter, including devolved affairs, as affirmed in R v Secretary of state for exiting the european union 2017 where the supreme court ruled that the Sewel Convention is not legally enforceable.
-Parliament has also demonstrated its authority by overriding devolved decisions such as imposing same-sex marriage and abortion law reform on Northern Ireland through the Northern Ireland Act 2019, despite devolved settlements.
-furthermore, devolved settlements remain subject to repeal or modification by Westminster, reinforcing that sovereignty ultimately lies with Parliament.
-this is most notably seen with the passage of the UK Internal Market Act 2020, which limited substantially Scotland’s ability to implement divergent trade policies post-Brexit.
-Likewise, the Gender Recognition Reform (Scotland) Bill 2022, was blocked by the UK government under section 35 of the Scotland Act, highlighting overarching legislative supremacy of parliament over devolved bodies.
-although Brexit has indeed created tensions with devolved administrations, it has also strengthened parliamentary sovereignty by removing the supremacy of EU law over UK legislation, reaffirming parliament’s authority.
-while devolution has introduced political complexities that constrain Westminster’s power in practice, it has not legally diminished parliament’s sovereignty, as Parliament ultimately retains the ability to override devolved legislatures if necessary.
The balance of powers between the executive and legislature and its impact on parliamentary sovereignty- undermining parliamentary sovereignty by concentrating power within the government
- it could be argued that the growing dominance of the executive over parliament has undermined parliamentary sovereignty by concentrating power within the government, thereby limiting Parliament’s ability to act independently.
-the UK’s fusion of powers means that the executive- composed of the Prime Minister and ministers drawn from Parliament- can exert significant control over the legislative process, particularly when it commands a strong majority.
-For example, Boris Johnson’s 80-seat majority in 2019 enabled him to push through Brexit-related legislation with minimal resistance, demonstrating how an executive-dominated parliament may function as a rubber stamp rather than an independent legislative body.
-additionally, the use of statutory instruments and secondary legislation has allowed governments to bypass parliamentary scrutiny. This was evident during Covid-19 pandemic, where the government enacted over 400 coronavirus related regulations without full parliamentary debate, demonstrating how executive power can limit legislative oversight.
-the royal prerogative, which grants ministers the ability to act without parliamentary approval in key areas such as foreign policy and military intervention, further reinforces executive dominance.
The 2025 EU-UK deal negotiated by Keir Starmer’s government included closer alignment with the EU single market on food and veterinary standards, re-entry into Erasmus+, and improved customs cooperation—all agreed through the royal prerogative. Despite the constitutional significance of these changes, Parliament had no binding vote on the treaty itself, only on implementing domestic legislation. This use of prerogative power to reshape UK–EU relations without full parliamentary control highlighted the enduring imbalance between executive authority and parliamentary sovereignty in foreign affairs.
In 2024–2025, Keir Starmer’s government used royal prerogative powers to suspend 30 arms export licences to Israel and later impose sanctions on violent Israeli settlers, citing risks of breaching international humanitarian law. These decisions, taken without prior parliamentary votes, were framed as legal necessities rather than political shifts. However, they reignited debate over executive overreach and the lack of parliamentary scrutiny in sensitive foreign policy matter
-the controversy surrounding the prorogation of Parliament in 2019, where Boris Johnson attempted to suspend parliamentary scrutiny during Brexit negotiations, exemplifies how the executive can seek to limit Parliament’s role.
-these examples suggest that, while parliament remains theoretically sovereign, in practice, its ability to challenge and restrain the executive is often limited, raising concerns about the erosion of its authority.
The balance of power between the executive and the legislature- while the executive can exert influence over parliament, this dominance is not absolute and remains subject to significant checks and balances, ensuring that sovereignty resides with Parliament.
- a more convincing argument is that while the executive can exert influence over Parliament, this dominance is not absolute and remains subject to significant checks and balances, ensuring that sovereignty still resides with Parliament.
-Select Committees, such as the Public Accounts Committee and the Liason Committee scrutinise government policy and expenditure, holding ministers accountable and ensuring the executive remains answerable to Parliament.
-the house of lords, despite being unelected, plays a crucial role in revising legislation, as seen in October 2015, when the Lords successfully pressured the government to rethink its plans to cut tax credits for low-income families.
-parliament retains the power to remove a government through a vote of no confidence, as seen in 1979, when James Callaghan’s Labour government fell, demonstrating that executive power ultimately depends on parliamentary support.
-Parliament has proven its ability to constrain the executive, such as when Theresa May’s government suffered three consecutive defeats on her Brexit deal in 2019, despite holding office.
-Furthermore, the supreme court ruling in R v Prime minister (2019) declared Boris Johnson’s prorogation of Parliament as ultra vires, reinforcing that the government cannot sideline the legislature without legal consequences.
-these examples highlight that while the executive may dominate in certain circumstances, Parliament retains significant mechanisms to assert its sovereignty and prevent unchecked government power, ensuring that Parliamentary sovereignty remains the defining principle of the UK Constitution.
The growth of judicial review and increasing influence of the courts- weakened parliamentary sovereignty.
-it could be argued that the expansion of judicial review has weakened parliamentary sovereignty by granting the judiciary increased power to scrutinise and influence government decisions. The HRA (1998) allows courts to issue declarations of incompatibility, which pressure Parliament to amend laws that violate human rights.
-For example, in A v Secretary of state for home department (2004), the court ruled that the indefinite detention of terror suspects under the Anti-terrorism, Crime and Security Act 2001 was incompatible with ECHR, forcing Parliament to revise law.
-Furthermore, in R v UK2005, the ECHR ruled that the UK’s blanket ban on prisoner voting rights was incompatible with the ECHR. Despite parliamentary resistance, successive governments faced ongoing legal challenges and international pressure, raising concerns that judicial rulings were indirectly forcing legislative change, limiting parliament’s autonomy.
-both these examples demonstrate how judiciary has evolved beyond its traditional role of merely interpreting the law and has instead begun shaping constitutional principles in ways that could be seen as undermining parliamentary sovereignty
The judiciary- judicial review does not undermine parliamentary sovereignty but rather reinforces constitutional accountability
-a more convincing argument is that judicial review does not undermine parliamentary sovereignty but rather reinforces constitutional accountability, ensuring that Parliament remains the ultimate legislative authority while preventing governmental overreach.
-unlike in the US, where the Supreme Court can strike sown legislation, the UK courts cannot nullify Acts of Parliament. Instead, under the HRA (1998), they can issue declarations of incompatibility, which highlight conflicts between legislation and human rights but do not force Parliament to change the law.
-for example, in R v Ministry of Justice (2014), the Supreme Court, ruled that the ban on assisted suicide conflicted with human rights, but explicitly stated that it was Parliament’s responsibility to decide whether to change the law, demonstrating judicial restraint.
-in R v Secretary of State for exiting the EU (2017), the Supreme Court ruled that Parliament has to authorise Brexit, not because the judiciary was challenging parliamentary sovereignty, but because it was ensuring that the executive did not bypass the legislature.
-Moreover, Parliament retains the power to limit or modify judicial review, as demonstrated in the Judicial Review and Courts Act 2022, which introduced reforms to restrict Judicial intervention in government decisions.
-additionally, the government has considered repealing the HRA 1998, and replacing it with a british bill of rights, which could further clarify Parliament’s control over legal frameworks.
-these examples highlight that judicial review does not erode parliamentary sovereignty but instead strengthens democratic accountability, ensuring that the executive remains subject to parliamentary laws while leaving parliament as the final arbiter of constitutional authority.
