Nature of the UK Constitution - Parliamentary Sovereignty

This vital constitutional principle, embodying the idea that Parliament, a body of the people’s elected representatives, can make, amend or repeal any law, and can neither bind its successors nor be bound by its predecessors, goes to the very heart of the UK political system.

Parliament, according to this idea, is supreme and exercises power over all other institutions and agencies of representation and governance. It does this through its primary, unchallenged role at the centre of the law-making process and via an accompanying network of accountability, scrutiny and other representative mechanisms. Virtually any law one can imagine can be passed by Parliament and no one, not even a current or former Prime Minister or a media mogul like Rupert Murdoch, can escape its forensic oversight. However, for many years now the doctrine has seemed under threat.

It was long a concern that European legislation was legally superior to UK law, as established by the Factortame Case of 1991 in which a Spanish fishing company successfully challenged the legality of the 1988 Merchant Shipping Act, which had required that all vessels registered in the UK should be at least three-quarters British owned. EU law might no longer be such a grave concern following the Brexit vote but parliamentary sovereignty was complicated anew by the swathes of constitutional reform accompanying the Labour Party’s election to office in 1997.

Technically, the devolved institutions are permitted to exercise power in specified areas only so long as Parliament supports the initiative, but the trend is very much now towards further devolution and it is impossible to imagine any attempt by Westminster to return power to the centre. Two further challenges to parliamentary sovereignty exist and threaten to erode the concept simultaneously.

Firstly, there is evidence to suggest a creeping accumulation of power at the level of the executive, as recent theories regarding Downing Street ‘presidentialism’ and the expansion of the Office of the Prime Minister attest. Tony Blair suffered no defeats at all in the House of Commons during his first two terms, a period when analysts began categorising MPs as over-spun ‘delegates’ of No.10 rather than political actors in their own right and, although parliament has been more rigorous thereafter, many were also disturbed by the sight of Theresa May in the Lords’ gallery as the Bill for Exiting the European Union was discussed earlier this year.

Secondly, enthusiasm has grown for ‘popular sovereignty’, most easily expressed in referendums but also seen in single-issue and pressure group activity, the signing of e-petitions and public participation via other digital and consultative mediums. On the surface, this seems all to the good but one argument against direct or ‘popular’ democracy of this kind is that we lose respect for and faith in our representative institutions as a result, and Parliament is certainly not yet recovered to a high point in the public’s esteem.

Former Prime Minister Gordon Brown wrote of parliamentary sovereignty having ‘taken a bashing because referendums, reflecting popular sovereignty, are now in effect required before important constitutional decisions are made.’[1] For Anthony Barnett, the Brexit debate, ‘constitutional dynamite for Britain’, challenged parliamentary sovereignty in yet more profound ways, such that he now believes the concept itself to have been fatally altered. Barnett writes of the 2016 EU referendum:

‘The assumption was that it would confirm the status quo and that deference, self-interest and fear of the consequences, would renew consent to elite rule. Instead, consent was withdrawn. A new sovereign, ‘The people’, has now displaced the old. Unless 'the people' changes its mind, the Commons and Lords – both with Remain majorities - must obey and vote to leave the EU. It is no longer a matter of acting on the basis of their own judgment. By terminating the 1972 European Communities Act, 'parliamentary sovereignty' will only be restored as a technicality. For in fact and in spirit the referendum drove a stake through its heart. The 'Will of the People' must now prevail. Those who resist are 'Enemies of the People'. This is the raw meat of dictatorship.’[2]

This is strong stuff and for some will seem rather hysterical, but such are the passions referendums engender. For Barnett, only a ‘democratic constitution’, that is, a new, codified constitution born of a reawakening of ‘England’s passionate constitutional culture’, can restore the UK political system. Still, there is no formal imperative for Parliament to call any further referendums. The recent trend can be reversed, and too many referendums could be unpopular and would likely result in voter fatigue. What seems certain, though, is that no discussion on the nature of the UK Constitution can take place without a serious and substantive focus on the doctrine of parliamentary sovereignty.

[1] Gordon Brown, ‘Union does not mean uniform: Are we moving to a federal United Kingdom and a written constitution?’, in The New Statesman, 19 June 2014. http://www.newstatesman.com/politics/2014/06/union-does-not-mean-uniform

[2] Anthony Barnett, ‘Brexit has killed the sovereignty of Parliament’, published by openDemocracy, 05 December 2016.  https://www.opendemocracy.net/anthony-barnet/brexit-has-killed-sovereignty-of-parliament