Join Alison Young, a Professor of Public Law and UK constitutional expert, as she navigates the current challenges facing the UK constitution. She delves into the complexities of parliamentary sovereignty and the delicate balance with devolved powers. Young discusses the impacts of Brexit and notable cases like Gina Miller on constitutional dynamics. The conversation raises critical questions about the future of legislative authority and the potential need for a formal constitutional convention, suggesting reforms in a rapidly changing political landscape.
Parliamentary sovereignty allows UK Parliament to legislate without an overarching written constitution, creating flexible yet potentially unstable governance.
The rise of populism challenges traditional political narratives and calls for electoral reform to better represent public will in the UK.
Deep dives
Parliamentary Sovereignty and Its Complexities
Parliamentary sovereignty serves as a cornerstone of the UK constitution, granting Parliament the authority to legislate on any matter without being legally constrained by an overarching constitution. This creates a unique situation where one Parliament can change or revoke the decisions made by a previous Parliament, leading to a flexible but potentially unstable constitutional structure. The power dynamics become particularly intricate with devolution, as while devolved parliaments in Scotland, Wales, and Northern Ireland operate with delegated authority, Westminster retains the ultimate power to override their decisions. This raises questions about the legitimacy of devolved powers, especially in contexts where Westminster may legislate without the consent of these bodies, underscoring a constant tension in constitutional governance.
The Strain of Devolution and Legal Conflicts
The evolving relationship between devolved parliaments and Westminster produces complex legal scenarios, especially regarding issues like referendums. For example, if the Scottish Parliament were to seek a referendum on independence, Westminster's power to refuse or condition that request might spark a legal challenge, potentially elevating the matter to the Supreme Court. The court's decisions could redefine the powers of devolved administrations, particularly if it were to conclude that constitutional issues can rest within their authority. This uncertainty illustrates how the lack of clear legal boundaries on devolved powers contributes to ongoing constitutional strain.
Judiciary and Parliamentary Sovereignty
The role of the judiciary has become increasingly significant in constraining parliamentary sovereignty, despite Parliament's constitutional supremacy. Landmark cases like the Gina Miller case showcase how the Supreme Court has empowered Parliament by enforcing the notion that the government cannot act unilaterally on certain matters without parliamentary approval. Additionally, decisions regarding EU law have introduced new constraints, making it possible for individual rights and EU regulations to trump domestic legislation, thereby challenging traditional notions of sovereignty. Such developments suggest a shifting balance of power, where the courts may increasingly act as a counterbalance to Parliamentary actions.
Navigating Populism and Electoral Reform
The complexities of the UK's constitutional framework are further exacerbated by the rise of populism and its implications for representative democracy. Populism often emerges from feelings of disenfranchisement, challenging traditional political narratives and prompting discussions about electoral reform. With the UK experiencing a fragmented political landscape, the existing first-past-the-post electoral system may not effectively represent public will, raising the question of whether changes to the electoral framework could address these democratic deficits. Advocates of reform suggest that evolving the voting system can facilitate better representation and deliberation, ultimately endorsing a more inclusive dialogue about parliamentary sovereignty and the will of the people.
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.
