Where Does Sovereignty Lie In The British Constitution?

Sovereignty defined as being, ‘supreme ruler’. The British constitution draws on a number of sources which merge form the constitution as we have it today. The three sources of the constitution which could all be considered sovereign, for a variety of reasons, are the Queen (because of her prerogative powers), Parliament (because of the idea of ‘parliamentary sovereignty’) and EU law (because it overrides domestic law). There is a huge difference between who is theoretically sovereign, and who is sovereign in practice.

AV Dicey believed that there are two pillars holding up the British constitution, the Rule of Law and Parliamentary Sovereignty. He believed that parliament must be sovereign and declared ‘parliament has the right to make or unmake any law whatever; and, further, that no person has the right to override or set aside the legislation of Parliament’. This basically means that if parliament wished to, theoretically, they can reverse ANY law, or create ANY law they wish. Eg: if parliament wished it could create a law requiring everyone to have an ID card or it could, overnight, remove voting rights for women. With this idea, if there is a conflict over, for example, common law and a parliamentary statute, the parliamentary statute takes precedence. It overrules all other sources of the British constitution. There are two problems with the idea of parliamentary sovereignty, one theoretically and the other practical.

The theoretical problem is this; parliament derives its powers from those handed down by the queen. Theoretically an act is not law until passed by both houses and signed by the queen. Although the likely hood of the queen refusing to sign a statute is highly improbable (the last time a reigning monarch refused to sign an act of parliament was Queen Anne in the 18th Century), theoretically she could and the act wouldn’t be law. Also, because parliament gets its power from the monarch handing over her prerogative powers, theoretically the monarch is sovereign because they don’t have to hand over the powers. In practice however, unless the monarch had the support of the army and a large majority of the population, this would be impossible and the likely hood of it happening is highly remote.

The practical problem is quite different. When Dicey wrote his book on the British Constitution he could have no idea that one day a ‘European Union’ would exist of which Britain would be a member. When Britain joined the EU one of the conditions was that EU always would take precedence over domestic law. This is a direct attack at the principle of parliamentary sovereignty and in order to ‘get around’ this problem parliament normally just absorbed EU law into their statutes. Examples of clashes over sovereignty between parliament and the EU include the Factortame case which saw the British courts gain some power where parliament lost some. It is argued that although according to the Treaty of Rome, EU law takes precedence, Britain could revoke this treaty at any time, thus maintaining the principle of parliamentary sovereignty. In practice, the longer Britain is a member of the EU, the more dependant we are upon her and the harder it would be to leave. If Britain left the EU now it would have a severe, negative economic impact as she would lose many foreign markets and millions of pounds in EU subsidies. So although theoretically She could leave any time, in practice it would be incredibly unlikely so long as things continue as they are today.

Of the two main ‘threats’ to Dicey’s principle of parliamentary sovereignty, the EU is by far the worst. The idea of the monarch taking their prerogative powers back seems ludicrous, while the idea of parliamentary sovereignty being eroded by the power of the EU is much more realistic. It is obvious that stretching theory makes the monarch sovereign for it is they who ultimately hand down the powers with which parliament rules, in practice though, the idea of true parliamentary sovereignty is out dated in the face of organisations such as NATO and the EU. So while the monarchy holds theoretical sovereignty, the EU holds sovereignty in real life with parliament still being able to ‘hold the last card’ of leaving the EU should it so