4.4
Location of Sovereignty in the UK
Legal and Political Sovereignty
Where sovereignty now lies
Distinction between legal & political sovereignty
Legal sovereignty
means ultimate legal power
Political sovereignty
refers to where power lies in reality
no other body/institution can overrule Parliament (has legal sovereignty)
courts will only enforce laws passed by the UK Parliament and will only uphold powers granted by the UK Parliament
although we know the UK Parliament is legally sovereign, we have to understand that real power may lie elsewhere
= called political sovereignty
Key Term(s)
Legal sovereignty:
- ultimate legal power
- is no higher political authority
- legal sovereignty cannot be set aside by any other body or by constitutional rules
Omnicompetent:
- a description of the UK Parliament stating that it is able to take any action and pass any law it wishes
- are no constitutional restraints on what the UK Parliament can do
Changing location of sovereignty
one aspect location of legal sovereignty in the UK has changed: all the sovereignty shared or passed to the EU since 1973 (when the UK joined) has been returned since 2021
location of political sovereignty has changed in many ways:
political sovereignty has moved to the devolved administrations
some of the political sovereignty of the executive is shifting towards the UK Parliament
= is particularly true in the areas of foreign interventions and negotiation of foreign treaties
increasing use of referendums has transferred political sovereignty to the people
Prime Minister has lost control over the date of general elections under the Fixed Term Parliaments Act
Human Rights Act shifted control over the enforcement of rights from the UK Parliament to the Supreme Court
remains true that UK Parliament is legally sovereign
= ultimately, Parliament is omni-competent and can determine how power is distributed in the UK
HOWEVER, if we look at sovereignty in a broader sense (i.e: political sovereignty) the location of sovereignty depends on the following circumstances:
in a referendum, the people are sovereign despite (technically) the result of a referendum is not binding on Parliament
at a GE, the people are sovereign as they determine who shall exercise power for the next 5 years
for issues that are part of the government’s electoral mandate, it can be said that the government is sovereign as it has popular consent for what it is doing
with devolved issues, the devolved administrations are effectively sovereign as it is unthinkable that they would be overruled by the UK Parliament
when implementing the ECHR, the Supreme Court becomes sovereign