Constraints on Parliamentary Sovereignty

Political Sovereignty and legal sovereignty

The growth of a mass electorate from 4.9million in 1885 to 44.4million in 2003 has meant that the House of Commons has become more important part of Parliament. So where does sovereignty lie? Even Dicey in 1885 perceived the problem. His solution was to distinguish between legal sovereignty, resting with Parliament and political sovereignty, resting with the electorate.

This may seem a sensible distinction, but it undermines the concept of sovereignty being indivisible. Further, Parliament is today by no means a supreme law-making body. Some also argue that political sovereignty only lies with the electorate on the day of a general election.

This is both trite and true. However, when Dicey distinguished between legal and political sovereignty, he was departing from a traditional doctrine in response to the growth of the electorate. The traditional doctrine – i.e. that ultimate power must reside in one body in the state, had no moral justification because it was rooted in the time when the monarch was sovereign and so he or she dictated what the constitution should be. Dicey argued that of the two types, it was political sovereignty that was morally justifiable. As Kingdom says of Dicey’s view;

“the sovereignty of Parliament was derived, not form its inheritance of the absolute powers of the monarch, or from God, but from the people, through the principle of democratic representation. This is the key to the British liberal-democratic constitution. The people do no govern themselves, they elect representatives to Parliament, which governs the country through its committee – the Cabinet. Parliament is legally served by the neutral machinery of the state, comprising institutions such as the judiciary, the civil service and the police force.” – J Kingdom, Government and Politics in Britain; An Introduction (1991)

The degree to which modern politics in Britain departs from this ideal is one of the key issues discussed in politics.

Legal power but no supreme power

The amount of power that Parliament or government can exercise is subject to limitations. Laws cannot provide for every eventuality or even when severe difficulties occur – such as rising unemployment or a decline in the international value of the pound (£). Laws have their limits. In theory, Parliament has the legal right to introduce many unpopular measures, such as banning alcohol – but a majority vote would be needed first. Would any MPs vote in favour of this policy?

Referendums

Some argue that the use of referendums has undermined the concept of the sovereignty of Parliament. They were held three times in the 1970s. The Labour government elected in 1997, held 4 in 13 months – in Scotland and Wales (September 1997) and in Greater London and Northern Ireland (May 1998). These were confirmations of decisions made in Parliament, such as plans for a devolved assembly for Scotland. Final decisions of this sort can be said to infringe Parliament’s authority. The referendum in 2011 on changing the electoral system of the UK was a product of the coalition government agreement, and came from the executive (Conservative PM and Lib Dem DPM). This referendum was to gauge public opinion on proportional representation.

 Extra-Parliamentary Power

‘Extra’ – in the sense of outside – pressures placed on parliament by powerful pressure groups have been able to force revisions to or the repeal of laws, as in the case of the anti-poll tax protests of 1990. Examples today include trade unions protesting against cuts to pensions and pay in the public sector negotiating and trying to influence changes to the Coalition’s plans.

‘External’ matters

Britain has been a member of the North Atlantic Treaty Organisation (NATO) since 1949. Membership has created defence and foreign policy obligations which, to an extent, have taken some degree of absolute control away from Parliament. Parliament could vote to cancel such obligations, but this is unlikely. As one of the founder members of the United Nations in 1945, Britain has also had obligations to fulfil.

These are just two examples of long-standing international agreements that have had an impact on parliamentary sovereignty. Another is membership of the International Monetary Fund (IMF). In 1976, the Labour government – facing a huge financial and economic crisis was forced to negotiate a loan from the IMF. In return, monetarist policies, involving heavy cuts in public spending, had to be introduced. Labour MPs, elected in October 1974, had never contemplate or been elected to support such measures.

Membership of the European Union

• EU law takes precedence over UK law
• UK courts can suspend the provisions of an Act of Parliament
• Parliament could, in theory, repeal all legislation connecting Britain with the EU, and so end Britain’s membership. This seems very unlikely.

Britain’s membership of the EU has certainly had an impact. This was highlighted by the Factortame Case (1991-1998). In a long episode, it was found that the Merchant Shipping Act, 1988, passed by the British parliament, contravened the Single European Act, 1986. Factortame Ltd was one of a number of Spanish fishing companies which under the 1988 Act were required to register and satisfy additional nationality requirements, in order to continue to operate. It failed to qualify, and was prevented from fishing from 1^st April 1989 until the European Court of Justice ruled (1990-91) that the British courts did have the power to suspend acts of Parliament which seemed to breach European law. Factortame Ltd and the other companies were then allowed to recommence fishing. Eventually, they successfully claimed compensation for loss of income during the 18months they were prevented from fishing.

The Single European Act, 1986, and the Maastricht Treaty, 1992, widened the scope and policy areas on which the EU can legislate and with which Britain complies. The Social Chapter, which laid down minimum working conditions for European employees, and was part of the 1992 Treaty was not accepted by John Major’s government, but the Blair government ‘opted in’ soon after its election in 1997.