The
affirmative outcomes of the Scottish and Welsh devolution referenda in
September 1997, as well as the Northern Irish referendum on the Belfast
Agreement in May 1998, gave democratic legitimacy to a new programme of
devolution. But how much of an impact has devolution had on the extent to which the Westminster parliament is sovereign? (This builds on my post on sovereignty.) I argue that, whilst legal sovereignty (the main subject of my previous post) rests in the UK Parliament at Westminster, political
sovereignty is divided amongst the assemblies and parliaments of the United
Kingdom. The impact of devolution on the principle and practice of
‘parliamentary sovereignty’ has, therefore, been significant, albeit limited in
extent. To elucidate my next discussion of the politico-legal roles of
the devolved legislatures, let's begin with an overview of how sovereignty works in the
UK.
As
A.V. Dicey affirmed in 1889, ‘The sovereignty of Parliament is, from a legal
point of view, the dominant characteristic of our political institutions.’ This
was preceded by Thomas Hobbes’s view of the sovereign as a ‘Mortal God’ with
unified, indivisible authority. Hobbes and Dicey reflect the traditional
concept of the sovereign as the foundation
of legal authority from which all legitimate political power flows. Parliamentary
sovereignty, as it is traditionally conceived, constitutes this supreme and
indivisible foundation. Legally, this
view seems reasonable, since statute law is formed by Parliament, and not by
any other body. So Parliament might have legal sovereignty, or sovereignty
over the formation of legislation. Politically,
however, there are limitations on parliamentary sovereignty. Thus Parliament might
not have unfettered political sovereignty, or sovereignty over decisions which
have significant social, economic or political impacts. The European Union, for
instance, upholds the supremacy of EU law: in the ‘Factortame vs. Secretary of
State for Transport’ case, the House of Lords ruled that courts could
‘disapply’ statute law in favour of EU law. However, since the EU has legal
competence simply due to the UK ratifying EU law in the European Communities
Act of 1972, Parliament to some extent is still sovereign: after Parliament
voted by 498 votes to 114 in favour of the European Union (Notification of
Withdrawal) Bill, it is clear that Parliament has, all along, retained its
ability to withdraw from the EU and thus reject EU law. So Parliament appears to have legal sovereignty, even though it does not have sufficient
political sovereignty to initiate
legislation or challenge EU law while it upholds the European Communities Act.
Nevertheless,
perhaps executive dominance of the legislature has limited parliamentary
sovereignty. The Conservative majorities of +144 and +101 in 1983 and 1987 gave Margaret Thatcher’s Government excessive control over the
legislature, effectively controlling Parliament. Tony Blair’s majorities of
+179 from 1997 and +167 from 2001 give further weight to this idea. However, as
the Government must be, at least in large part, drawn from the legislature (in
that most cabinet members and ministers tend to be Members of the House of
Commons) it seems that the executive cannot bypass parliamentary sovereignty.
Parliament, in the context of EU law and executive power, appears to retain its
legal sovereignty.
Having
elucidated the concept of parliamentary sovereignty, let's now progress to look at whether devolution has affected the sovereignty of the Westminster Parliament.
The creation of the ‘Stormont’ Northern Irish Assembly may lend some
justification to the view that parliamentary sovereignty has been eroded. The
Westminster Government acknowledges the rights of Stormont to create
legislation in certain policy areas, such as agriculture, the environment,
health, enterprise, investment, social services, justice and policy. So Stormont is capable of forming legislation that, before its formation, would
have been Westminster’s responsibility. For instance, the new Road Traffic
(Amendment) Act is set to make Northern Irish drink-driving law harsher than
the rest of the UK, lowering drink-driving limits by 40%. At the ‘Holyrood’
Scottish Parliament, moreover, a ban on hunting with dogs was introduced in
2001, 4 years ahead of England and Wales. What is more: Holyrood, in time for
the June 2016 Scottish Parliament elections, passed the Scottish Elections
(Reduction of Voting Age) Act, making Scotland the first nation of the UK to
allow 16- and 17-year-olds to vote in elections. Also, Holyrood has powers over economic
development, some tax-raising powers, social security, justice, education,
agriculture, forestry, fishing, inter alia (amongst other things).
Furthermore, following the Government of Wales Act (2006), the ‘Senned’ Welsh
Assembly can legislate on policy areas such as agriculture, education, fishing,
housing, fire and rescue service, transport, and economic development. Since
devolved administrations can exercise these legislative powers in certain
policy areas, often to the partial exclusion of Westminster, it is arguable
that parliamentary sovereignty is being eroded, since Westminster politicians
cannot vote on matters dealt with by the devolved administrations exclusively.
However,
although Westminster generally does not involve itself in the affairs of
devolved administrations, it nevertheless retains the legal right to make
statutes which overturn the measures of Stormont, Holyrood or Senned. Statute
law, or law that's initiated by HM Government and ratified by Westminster, takes legal precedence
over the legislation of the devolved administrations. Westminster’s primary
legislation, in other words, is still primary, and thus the Westminster
Parliament still has legal sovereignty. Nevertheless, this does not detract
from the fact that political sovereignty is divided up among the four nations
of the UK, such that the devolution of powers to Stormont, Holyrood and Senned
has had a lasting political impact on the sovereignty of the Westminster
Parliament. In section 3.1 of the White Paper on ‘The United Kingdom’s exit
from and new partnership with the European Union’, the UK Government contends
that the devolved administrations are engaged in the preparation for the
delivery of ‘Brexit’. So the Westminster Parliament has forfeited some of its
political sovereignty to the devolved legislatures, since it requires at least
minimal acquiescence from the devolved legislatures in areas such as
fundamental constitutional reform. Although MP David Davis chairs the Joint
Ministerial Committee for European Negotiations, or JMC(EN), this is also
attended by ministers from each of the devolved administrations. Moreover, the
UK Government argued in section 3.5 of the Brexit White Paper that, after the
UK’s exit from the EU, the devolved assemblies will see their share of
political sovereignty enhanced: the Government will ‘use the opportunity of
bringing decision making back to the UK to ensure that more decisions are
devolved.’
Nevertheless,
the Stormont administration has not yet published its own White Paper on
Brexit, partly due to the fact that the power sharing agreement collapsed
following Sinn Féin’s outrage at the failure of the Renewable Heat Incentive, which
is set to cost up to half a billion pounds. Thus the stability at Westminster
enables it to dominate the UK both legally and politically, thus enhancing the
notion that Parliament is sovereign. Moreover, although the primary objective
of both Senned’s and Holyrood’s White Papers was continuing participation in
the Single Market, this is unlikely to be accepted by Whitehall in negotiations
or Westminster in its votes on these negotiations: PM Theresa May, in her
speech on 17 January 2017 entitled ‘A Global Britain’, said that the
disadvantages of free movement of people made membership of the Single Market
disadvantageous for the UK. Therefore, perhaps Westminster retains both legal
sovereignty and, in large part, political sovereignty. However, it must equally
be acknowledged that, although political sovereignty is distributed most
densely at Westminster, the May 2015 General Election gave the Holyrood
administration a partial say on statute law created by Westminster. Through the
election of 56 Scottish National Party MPs to the Westminster Parliament, as
well as the SNP’s winning a plurality of seats after the June 2016 Holyrood
elections, Holyrood and SNP leader Nicola Sturgeon now has the ability to
influence Westminster parliamentary scrutiny. Therefore, although Holyrood is
subservient to Westminster, in reality the Holyrood Government can, through
performing well in Westminster elections, also have political influence over
Westminster.
Overall, it seems that legal sovereignty still rests in the Westminster
Parliament, as section 2.1 of the Government’s EU White Paper acknowledges. Political
sovereignty, however, is somewhat divided amongst Westminster, Senned, Holyrood
and Stormont. But this is not to say that political sovereignty is
equally divided amongst the four legislatures of the UK. Political sovereignty,
for the most part, rests at Westminster. Therefore the impact on the
sovereignty of the Westminster Parliament of the granting of legislatures to
Wales, Scotland and Northern Ireland has been smaller than, say, the impact of
EU membership on parliamentary sovereignty. But this is not to say that the
impact of devolution, however small, is not significant. Rather, the
significance of the (unequal) division of political sovereignty amongst
different legislatures continues to require the consent, or at least minimal
acquiescence, of devolved legislatures in certain policy areas, including
devolved areas such as education as well as major constitutional reform. So the impact on the sovereignty of the Westminster Parliament of devolution since
1999 has been relatively small but nonetheless significant.