Navigating Parliamentary Sovereignty Post-Brexit

We talk to lawyer and constitutional expert Alison Young about the current pressures on the UK constitution, from Brexit to devolution to political polarisation. Is parliamentary sovereignty still the linchpin of the system? What changed with the arrival of the Supreme Court? Can the constitution survive in its current form?

Talking Points:

How should we think about parliamentary sovereignty in the UK constitutional order?

• The idea is that legislation enacted by parliament is the highest form of law in the land.
• Unlike most other systems, the UK does not have a written constitution that is above legislation.

What does this mean for the Union? 

• In a nutshell, Westminster can still override other parliaments. 
• The civil convention is the idea that Westminster won’t legislate in the devolved areas or change the devolved structures without the consent of the devolved bodies.
• But this can’t be legally enforced, and Westminster doesn’t always comply with it.  
• The UK doesn’t have a federal system: there aren’t the same legal limits on Westminster but there are legal limits on the devolved bodies.
• In short, the institutions are permanent but their powers aren’t.

Did Parliament limit its sovereign powers when it created the Supreme Court?

• Parliament could still abolish the court, but that could also trigger a constitutional crisis.
• It’s not necessarily the Supreme Court that has limited parliamentary sovereignty. 
• EU law has primacy and direct effect. This is a restriction on parliamentary sovereignty.
• Another tension is how the courts are beginning to interpret legislation.

Brexit has led to renewed focus on parliamentary sovereignty. On the one hand, we see the reassertion of parliamentary sovereignty against the executive. On the other hand, the Brexiteers see themselves as this very principle from the EU.

• The Gina Miller case revolved around the tension between the government and parliament—whether the government could trigger Article 50. This case actually reinforced parliamentary sovereignty. 

The referendum created a tension between the sovereignty of the people and the sovereignty of parliament.

• This is the problem that has not been resolved.

Further Learning:

• The UK Constitutional Law Association
• Alison’s article on populism and the UK constitution
• Alison on “The Briefing Room”
• Jonathan Sumption’s Reith Lectures on “Law’s expanding empire”

And as ever, recommended reading curated by our friends at the LRB can be found here: lrb.co.uk/talking