Who is truly legally sovereign?
Posted by Gold_Instruction7273@reddit | AskABrit | View on Reddit | 32 comments
Whilst the current political reality is that parliament is sovereign, many judges through years have implied that the courts can potentially ignore Acts which go against fundamental rules of law.
In addition, parliamentary sovereignty is likely to have originated from the common law itself, as there is no legislation or political conflict (such as the civil war) which has established parliaments ultimate right. As a result, parliamentary sovereignty is potentially just a political convention which the courts respected
The monarch also doesn't have to legally sign bills into law or to abdicate without their own consent
SimpleSymonSays@reddit
Parliament is truly legally sovereign, and by that I mean it has legal supremacy, which js what most people mean when they refer to Parliamentary sovereignty.
Parliament can make or unmake any law, the courts cannot ignore Parliament or compel them to change the law, and no previous Parliament can bind a future parliament.
Although parliament is sovereign
Gold_Instruction7273@reddit (OP)
Technically the monarch can't be forced to sign bills or to abdicate legally. If parliament decided to replace the monarchy without consent then that is unlawful
Parliamentary sovereignty only works if the courts respect it, which they have.
Btw, the parliament acts 1949 technically changed how future parliaments operates
SimpleSymonSays@reddit
You are correct. But any monarch who refused to sign a bill or abdicate when requested by parliament would find themselves on very vulnerable ground. The last monarch that refused lost their head. But the ability of the monarch to do this in extreme cases does act as an emergency safeguard.
As to whether it’s unlawful is more complex. If Parliament make something lawful then it might well be lawful.
Gold_Instruction7273@reddit (OP)
But parliament can't actually pass any new acts without the royal approval... So it will just never be lawful for parliament to remove the monarch if the monarch refused approval for that bill
The last monarch to refuse was ann in 1708 and nothing happened... Although to be fair, her own government asked her not to approve due to a change of situation
SimpleSymonSays@reddit
I think it’s pretty settled that the monarch may technically be able to not sign a bill, but in actual practice they have to, unless acting on the advice of their ministers (which even then would be controversial).
And while you say it will never be lawful for Parliament to remove a monarch, there’s a couple of examples of them successfully doing just that. Either by pressure (the abdication of Edward VIII) or by force (the execution of Charles I by order of Parliament), it’s clear that if there’s a conflict between the Monarch and Parliament, it’s Parliament who wins.
Gold_Instruction7273@reddit (OP)
Parliament winning is not necessarily true
Technically the parliamentarians were committing treason in the civil war. Whilst they were absolutely politically justified, it was still technically unlawful
SimpleSymonSays@reddit
And yet Charles I was the one put on trial for treason and convicted.
That moment solidified Parliament’s constitutional role and defined the nature of constitutional monarchy. Sometimes the winning is what matters.
Gold_Instruction7273@reddit (OP)
Technically he shouldn't have been due to being the legal sovereign.
Do you think the courts can ignore parliamentary sovereignty in very extreme situations?
SimpleSymonSays@reddit
I think you’re overvaluing legal or constitutional technicalities and undervaluing the effect of what’s actually accepted in reality.
For example, I think technically courts cannot ignore parliamentary sovereignty in any circumstances. However, I think in reality, if there was an extreme situation where Parliament was destroying accepted constitutional and democratic norms (e.g. deciding we don’t need elections any more and they’ll just do the job forever), the courts would step in to exert legal and constitutional checks on Parliament.
Gold_Instruction7273@reddit (OP)
The issue with parliamentary sovereignty is the question of where it actually came from. After the civil war or the glorious revolution, parliament didn't actually pass legislation which would take away all of the monarch's legal power or influence. As a result, the monarch is still legally relevant in as to why parliament has strong legal power.
On the other hand, if parliamentary sovereignty is actually a political convention rather than law, than it's more of a common law construct than everything else. As a result, the courts can theoretically change this common law construct whenever they want.
Fusilero@reddit
It can try, but as Parliament is the recognised legal force that holds the monopoly on violence in the UK it'll have a tough time enforcing court orders.
When we say Parliament is sovereign, we recognise this isn't a god given right from on high but simply a statement of convention and recognition of reality.
Much the same as when De Gaulle overthrew the fourth republic, when it comes down to it legality takes a back seat to reality.
Gold_Instruction7273@reddit (OP)
They would only oppose parliament in very dire situations. For instance, if the voting population was determined to only include the geriatric, or if mps were to become illegally immune to the law, then the courts would likely ignore such legislation
Fusilero@reddit
Ok, but what would the mechanism for them enforcing that opposition be?
Until Parliament delegitimises itself sufficiently that the police and armed forces (and to a lesser extent the population at large? no longer recognises it as legitimate, it kind of doesn't matter if judges decide to rule against them.
Gold_Instruction7273@reddit (OP)
Except it means that until parliament decides to pass a new legislation, the controversial act will be deemed unlawful by the supreme court. If parliament has to remove a majority of the supreme court, then that will cause public outrage.
The monarch may even decide to side with the courts if the situation is that bad. Think like parliament deciding to make the next general election late by 30 years bad
Fusilero@reddit
The Supreme Court doesn't have the right to simply declare a law not in operation; it's rights are to interpret laws and declare when laws are incompatible with other laws. It is not the US Supreme Court; it cannot "strike down" laws as not compatible with a constitution that doesn't exist.
In reality, the Government does tend to respect when the Supreme Court renders a judgement on incompatibilities i.e. a new law would breach our obligations under the HRA. It does however retain the right to simply plough on regardless; the reason it doesn't is because in general MPs like the HRA.
Parliament doesn't even have to remove the court - itself a creation of parliament - but simply declare their interpretation null and void. To be clear this isn't theoretical - the Tories did this to lower courts with the Judicial Review and Courts Act 2022.
Gold_Instruction7273@reddit (OP)
The declaration of incompatibility does not even strike down legislation, it's literally just a notice for the government to respond to and remedy if possible.
It's a theoretical power of the courts and in factortame no 2, the courts did actually ignore an act of parliament technically...
SimpleSymonSays@reddit
I would say it’s a constitutional convention and not a political one but that might just be semantics.
Not every part of our constitution has to be written on statute.
In fact Parliamentary sovereignty is a concept which must by definition be above statute, as any Parliament which put into law that they had legal sovereignty must have already possessed the legal sovereignty to do so in the first place. But things like the Bill of Rights reinforce Parliamentary Sovereignty.
And while you may be again technically correct on the courts, judicial precedent has long established support for the principle of Parliamentary sovereignty and courts have ruled to defend it.
And if the judicial system suddenly found themselves with a legal change of heart and wanted to challenge Parliament’s sovereignty they’d be very brave to do so considering Parliament retains the power to impeach judges, has influence and oversight of the MoJ who pay and appoint judges, and can reorganise the judicial system in any way it sees fit, as it has done over the years.
Gold_Instruction7273@reddit (OP)
Our constitution is both political and legal. The courts are not supposed to enforce political conventions such if the king decided to appoint a random person to be PM instead of an Mp. I suppose technically the courts could legally enforce political conventions by creating a new common law rule but that it's quite a controversial thing.
Parliamentary sovereignty was allowed for centuries because the courts accepted it. The courts modified the common law so that parliamentary sovereignty was stronger. However, if parliamentary sovereignty is just a common law construct, than the supreme court can just change it.
The courts would only oppose parliament if parliament itself was being grossly inappropriate, for example passing laws which massively reduces the voting population.
blamordeganis@reddit
But in the end, facts on the ground matter more than strict legalities. Take the Glorious Revolution James II fled in the country in the face of William of Orange’s invasion. William then summoned a convention — not a parliament, as only the king could do that — which declared that James had abandoned the throne and offered the crown to William and Mary. They then retrospectively elevated the convention to a parliament and legitimised its acts post facto.
The whole thing’s a legal bootstrap paradox. But it’s a foundational part of English constitutional law.
Gold_Instruction7273@reddit (OP)
This is was allowed as the courts accepted it.
blamordeganis@reddit
Well yes, courts often show a tendency to side with the winning side in a coup.
Gold_Instruction7273@reddit (OP)
That's another point to address. The courts have not had a political fight against parliament. As a result, parliamentary sovereignty being a legal or political rule is still unknown
tmstms@reddit
In the UK, people don't go into the law because they want to be political, but rather the contrary. It's hard to imagine the legal profession getting into a political fight with parliament- the nearest equivalent I can think of is the barristers' strike - and striking is not the same as wanting to take power.
Gold_Instruction7273@reddit (OP)
I'm studying law and it's very political actually...
pjc50@reddit
People underestimate how important the ambiguity is. It's important that many of these questions haven't been tested recently, that they aren't matters for high stakes constitutional confrontation.
erinoco@reddit
For me, the most germane aspect is: what statutes may be validly passed by the King-in-Parliament, but may not be enforced by the courts thereby? The argument which has slowly arisen in jurisprudence over the past few decades, and threatens, at some point, to cause a constitutional crisis, is that the King-in-Parliament can do anything, but cannot breach the limits of the law itself.
To illustrate this with one example, a statute that rules that judges must automatically convict all men named Gerald of burglary in any trial in Crown Court, whatever evidence is offered, might be rejected by the Supreme Court, on the grounds that no judge exercising their functions rationally would exercise them in this way were it not for the statute. (That the UKSC which would actually rule this way is not a given, however.) But the statute, alternatively, might simply state that it is sufficient to name a man called Gerald in an indictment on a burglary offence for conviction of said Gerald, essentially making the offence of being named Gerald a strict liability offence, and that particular ground wouldn't apply.
Gold_Instruction7273@reddit (OP)
It's more about grossly inappropriate legislation like delaying the next general election by 30 years or by allowing MPs to be legally immune to all laws
txe4@reddit
Well the sovereign is sovereign. What would happen if a monarch opted to ignore or dissolve parliament is a very interesting question indeed. In our current situation I am fairly confident the monarch would be replaced and parliament (in practice, the executive) would come out on top.
What would the administrative machinery do if the PM and parliament said one thing and the King another?
One can imagine a future crisis situation, perhaps with a deeply unpopular parliament and Weimar-esque choice of utterly discredited political parties *or* extremist lunatics, where a monarch might actually seize power. But we are not there. Yet.
Parliament is sovereign ultimately in our current setup, therefore.
Parliament is controlled by the whips and executive, and the people in charge of controlling what the population thinks (through what they are fed in media and education) have a very considerable control over what parliament will legislate.
Parliament has also opted to surrender a large measure of its sovereignty through legislating in vague terms, legislating conflicting and overarching acts, and failing to legislate to restrain the judiciary when it interprets law in ways which seem clearly contrary to the intent of the law.
Nevertheless it remains sovereign.
GnaphaliumUliginosum@reddit
Our systems of governance evolved from an environment in which almost everyone believed that God was in charge and that the appointment of monarchs and the actions of parliament are modes through which the people attempt to enact the will of God. This is still very much present in the annointment of the monarch during the coronation service, which is screened from the public and represents the Archbishop acting as intermediary to symbolise the relationship between God and the new monarch.
Despite the relatively very recent secularisation and religious diversity of the UK, this principle is still firmly embedded in much of our unwritten constitution. So God is still technically the highest power, but discerning his will is entrusted to the monarch, parliament and the courts in a balance that is unwritten and based on both convention and that everyone involved benefits from keeping the show on the road without a constitutional crisis or similar major upset that would everyone.
Enforcing the law is a separate matter though, and juries have the right to act from their own concience (or to discern the will of God as it would have been framed) and create common law precedent which can over-ride parliamentary law. So the average potential jury member also plays a role in shaping laws and their enforcement.
swirlyglasses1@reddit
The people are.
Only_Tip9560@reddit
The truth is there are checks and balances in any democratic system, it is just that ours are held together by "convention" rather than a written constitution. No one seat of authority is de facto fully sovereign as a result. Although Parliament probably gets closest.
qualityvote2@reddit
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