11.4.2 Shifts in Sovereignty Among Government Branches

Overview of Sovereignty in the UK

• Traditionally, sovereignty in the UK has been centred on the Westminster Parliament, meaning Parliament held supreme legislative authority. Unlike federal systems, such as in the USA, where power is shared between federal and state governments, the UK's unitary system placed ultimate legal power in the hands of Parliament. However, the location and exercise of sovereignty have become more complex over time, with shifts between different branches of government.

Shifts in Sovereignty

1. Referendums and Direct Democracy:

• Impact on Sovereignty: Since 1997, referendums have been used to make decisions on major constitutional issues, such as Scottish independence and EU membership. While legally advisory, the political reality is that Parliament is unlikely to ignore the results, effectively transferring sovereignty from Parliament to the people in these instances.
• The use of referendums has increased in recent years

2. Devolution:

3. Strong Executive and Parliamentary Majority:

• Impact on Sovereignty: When a government has a large parliamentary majority, it can dominate Parliament, effectively centralizing sovereignty within the executive branch. The Prime Minister and Cabinet can push through legislation with minimal opposition, particularly if public and media support is strong.

4. Royal Prerogative Powers:

• Impact on Sovereignty: The Prime Minister exercises certain powers traditionally held by the monarch, such as military decisions and appointments, without needing parliamentary approval. However, Parliament has increasingly challenged this, particularly regarding decisions to use military force.

5. The European Union and the Factortame Case:

• Impact on Sovereignty: While the UK was a member of the EU, European law had supremacy over UK law in areas of shared competence. The Factortame case (1990) demonstrated this, as the UK courts suspended an Act of Parliament conflicting with EU law. However, the UK's ability to leave the EU shows that parliamentary sovereignty was ultimately retained.

6. Human Rights Act 1998 and Judicial Review:

• Impact on Sovereignty: The Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law, allowing courts to review legislation for compatibility with human rights. While this does not override parliamentary sovereignty, it adds a layer of judicial scrutiny.

Conclusion

• Sovereignty in the UK, while legally centred on Parliament, has become increasingly shared and contested across different branches of government. Factors such as referendums, devolution, a strong executive, royal prerogative powers, and international obligations (e.g., EU membership and human rights) have all contributed to a more complex and fluid distribution of sovereign power in the UK.

Is Parliament Sovereign? – A Table Analysis

Factor	Argument for Sovereignty	Argument Against Sovereignty
Leaving the EU	Parliament legislated to leave the EU, demonstrating retained sovereignty.	The Factortame case showed that EU law had primacy over UK law during membership.
Globalisation	Parliament can still legislate independently within global frameworks.	Globalisation and international agreements limit national policy choices.
The Impact of Corporations	Parliament can regulate corporations within the UK.	Multinational corporations can exert significant influence, limiting national sovereignty.
Referendums	Parliament ultimately enacts the decisions, retaining legal sovereignty.	Politically, sovereignty is shifted to the electorate, as seen in the Brexit referendum.
Devolution	Devolved powers can be legally revoked by Parliament.	Politically, revoking devolved powers would be highly contentious and difficult.
Royal Prerogative	Parliament has increasingly challenged prerogative powers, asserting its role.	The Prime Minister retains significant powers, such as military action without parliamentary approval.
Human Rights Act	Parliament can amend or repeal the Human Rights Act, maintaining legal sovereignty.	Courts can issue declarations of incompatibility, challenging parliamentary decisions.