sovereignty and the constitution

sovereignty and the constitution

1. sovereignty in the UK

   • legal sovereignty
     • the ultimate power to make laws that will be enforced within the state
     • legal sovereignty means that it lies firmly with parliament
       • this means that no other body has the power to make laws or overrule laws made by parliament. however, EU. although parliament could restore all its sovereignty by withdrawing from the EU
     • each successive parliament is equally sovereign. it is not bound by the laws made by previous parliaments. also each parliament cannot entrench laws and cannot prevent future parliaments from repealing them.
     • parliament can also grant statutory powers. in these cases parliament delegates its sovereignty. e.g. scotting parlaiment has devolved powers in primary legislation given to it by the scotland act 1998, but in theory the act could be repealed
     • this is a contrast to places such as new zealand and canada, where the parliaments can pass basic laws that cannot be repealed in future without a special procedure.
   • political sovereignty
     • where political power lies in reality. whoever may possess legal sovereignty, real power lies with those bodies that are able to determine what political decisions are made
     • peope occupy it at elections
       • at an election people become politically sovereign because they decide who will make up the government and thus parliament. they also choose between competing manifestos but between election people loose control of the decision making process
     • the government has it
       • in general it is the government who has it. we expect ministers will control the decision making process. the executive branch domiantes parliament and this is generally what we expect to happen. it is the government that has the mandate and it is a tight knit group of ministers from the same party whihc can provide firm political directon. parlaiment may have the ultimate oiwer ti pass ro veto proposed legislation but it is not normally acceptied that it shoudl be the decision making body
     • the monarch
       • the monarch is sometimes described as the sovereign but this is misleading as it refers to when the monarch was the decision making body but this is no longer true.the monarch is technically part of parliament due to royal assent but this is ceremonial as they are not expected to refuse it. the status of the royal prerogative is different as the prime mimister by convention exericises prerogative powers such as
         • prerogative powers possessed by the PM
           • appointing and dismissing gov ministers
           • creating peerages
           • granting honours
           • appointing ambassadors
           • final appointment of senior judges
           • commanding the armed forces and declaring war
     • the PM
       • due to the amount of prerogative powers the PM can be said to have great sovereignty that is not directly controlled by parliament. however, it is concievable that the monarch could take back her prerogatve powers. this could happen if the PM or government acted unconstitutionally, or if an election failed to provide a decisive decision. so the monarch culd restore herself political sovereignty under unusual circumstances. but for the mist part the monarch is passive and powerless

2. the EU

   • britain joined the european community in 1973 which had an effect on britains constitutional arrangements
   • there are some areas of government that is not affected by the EU but there are some that are deeply effected, so much so that they are controlled by the EU. in between these two areas there are areas of policy that are affected by membership of the EU but they don't fall into european control/
   • the realtionship between the EU and the UK is constantly changing and Union treaties have gradually moved powers from london to brussles. e.g. the lisbon treaty from 2007.
   • we can say that the question of where legal and political sovereignty lies has clouded but it can be summarised as:
     • EU laws are superioir to UK law and was established in the case of regina v SST in the appeal court of the HoL. it was ruled that the merchant shipping act, a UK law was inferior to the EU fishing regulations. in this case spanish fishing vessels were given rights to operate in british waters against the wishes of the british parliament
     • british laws must implement EU laws
     • Where an interpretation of the EU is required it must be referred to the european court of justice. thus the supreme court is not the highest court of appeal in all cases. this was established in the case of regina versus international stcok exchange, by lord bingham
     • For proposals that require a unanimous vote in the EU council of ministers to become EU law the uk does not sacrifice sovereignty as it has an effective veto. w.g. the UK has vetoed any attempts to harmonise taxation through europe
     • where proposals can become EU law with only a qualified majority vote in the councils of ministers, the uk must submit to the shared sovereignty of the EU
     • parliament should not pass any statute that conflicts with existing EU law. if it does so, the courts will not enforce such law
   • areas where jurisdiction has passed to the EU
     • trade
     • agriculture
     • fishing
     • employmnt law
   • areas where eu membership influences but does not control government policy
     • economic policy
     • environmental policy
     • defence
     • foreign policy
   • areas where virtually no jurisdction has passed to the EU
     • education
     • health provision
     • social security
     • law, order and justice

3. where has sovereignty gone in the UK

   • parliament remains legally sovereign even when it has deleagted some of its to bodies or individuals , it can reclaim those powers at any time. this applies to devolved governments of scotland, wales and northern ireland
   • a good deal of political sovereignty has been transferred away from parlaiment and to the primeminister or the government. it has also gone to the people when a referendum is called but referendums are notbinding on parliament but it is unlikely that parliament will overrule the people.
   • some legal sovereignty has been transferred to the EU. such transfers are called pooled sovereignty, to denote sharing rather than the complete surrender of sovereignty. this refers to a range of government responsibilities such as trade, enviornment and employment. however, amny areas of government have not been transferred. where EU decisions require a unanimous vote such as the admission of new members states, britain retains a veto vote and does not give up sovereignty. it must be remembered that britain can leave the EU to retsore all legal sovereignty and we did.

4. devolution

   • Background
     • devolution is a process of constitutional reform where power, but no legal sovereignty, it distributed to national or regional institutions. in the UK this has meant transfer of power to institutional in scotland, wales and northern ireland, but not to regions of the uk
     • movements that were dedicated to the introduction of greater self government for britain's national regions can be traced back to the 19th century. for example the scottish national party was introduced in 1928
       • this was influenced by ireland being granted virtually full independence in 1921
     • devolution had exusted in northern ireland since the partition of ireland in 1921. the province was self governing under the british crown. but after the violence it became clear that direct rule was needed from london and in 1972 devolution was abolished. after mostly peace ensued between the nationalists and unionists a new devolution agreement was made known as the good friday agreement, it devolved a new system of government to northern ireland
   • the demands for devolution in the 1990s
     • during the 1990s demands for devolution in scotland and wales grew. there was widespread dissatisfaction with the london government. nationalists in both countries were inspired by the experience of small countries gaining full independence after the cold war and collapse of the soviet union
     • the labour party proposed devolution in its 1997 general election manifesto which was part of a larger constitutional reform package, but was also a divisive measure. the rise of nationalism threatened the parties domination in both countries. by granting a degree of autonomy, though short of full independence, labour hoped to retain their strong voting support. meanwhile, conservative opposition to devolution undermined the party's position and it lost virtually all its seats in wales and scotland in 97
   • how devolution came about
     • labour needed to win the general election especially in scotland and wales. it did
     • a referendum was held after the GE. just over 60% turnout in scotland gave the vote authority. but in wales the turnout was lower. there was a 73% yes vote in scotland and a 50% yes vote in wales which was enough for the government to approve welsh and scottish devolution
     • the legislation was passed but there was the hurdle of the varying tax bu 3% up or down which was dubbed tartan tax by the conservatives. however, the scotland and wales acts were passed largely intact
     • the final hurdle was the elections to the scottish parliament and the welsh assembly. labour dominated both elections but failed narrowly to win overall majorities in both countries.
     • in 1999 the scottish parliament and the welsh assembly came into existence. the scottish executive was formed from a coalition between labour and the liberal democrats. since then scotland and wales have experienced coalition and minority governments
   • arguments for devolution
     • there has been growing popular demand for more self government in the national regions
     • the national regions have different needs to england, which should be reflected in stronger regional government
     • by conceding devolution demands for fuller independence will be headed off, thus preventing a break up of the united kingdom
     • it is more democratic because the government will be brought closer to the people
     • it will reduce the workload of the british parliament and government
     • it recognises the new ideas of a europe of the regions rather than separate states, that it, national boundaries will become less important than regional differences
   • arguments against devolution
     • conservatives believed that it may lead to the break-up of the UK because the demands of independence will be fuelled by devolution
     • it was argued that demands for devolution was over-exaggerated, especially in wales, so it was unnecessary
     • it creates an extra layer of government, which will increase costs to the taxpayer
     • in scotland it was feared that taxes there would inevitably rise because scotland is less prosperous than the united kingdom as a whole
     • it will lead to confusion because there is an additional layer of bureaucracy
     • nationalists have argues that devolution does not go far enough. british government has retained all the important powers for itself
     • nationalists would argue that they should have a separate voice in europe but devolution does not give them this
     • the west Lothian question
   • three types of devolution
     • administrative
       • this is the transfer of limited power ot devolved administrations. it means they can control the allocation of funds, the way laws should be implemented and the passage of secondary legslation. secondary legislation are the various rules and regulations that can be imposed within the country under powers granted by parliament and westminster
     • financial
       • the ability of devolved administrations to raise its won taxes. most funds available to devolved administrations are int he form of central government grants. this allows little financial independence. but granting taxation powers conveys a great deal of autonomy. the scottish parliament was given little financial power as it was limited to increasing or reducing the amount of income tax by 3%
     • legislative
       • is the transfer of power to make primary legislation. it is this distinction that makes scotland a representative body of parliament rather than an assembly like wales
     • scotland has all three types of devolution whereas wales and northern ireland do not have legislative- this makes them assemblies
   • devolution in scotland
     • the scottish parliament
       • additional members system
       • the first parliament was a coalition between labour and th liberals.
       • the coalition collapsed and parliament was ruled by a nationalist minority government which has lead to further demands for full independence
     • powers and functions of the scottish parliament
       • it was granted power to create primary legislation which are normal laws but also enabling legislation. thus other members of the executive and public bodies can make secondary legislation which involves orders.
       • the power of primary legislation means that scots could make themselves a distinct society and gave them a level of autonomy.
       • functions
         • primary legislation
         • determine income tax within the 3% bracket
         • approve the scottish budget
         • call the executive to account
         • elect a first minister to form the executive
     • the scottish executive
       • this is the term used to replace government and it avoids the confusion between the british government in london
       • it is headed by the first minister who is effectively a PM but they are the leader of the largest party in parliament, but they must be elected by the whole parliament and also confirmed
       • the rest of the executive is formed by heads of departments.
       • functions of the executive
         • formulate and draft policy for scotland
         • negotiate with the british government
         • implement approved policies
     • the west lothian question
       • this term was coined by Dalyell it describes the process where in british parliament all ministers vote on all issues. this means that ministers representing scottish parliament constituencies can vote on issues that affect england and wales. btu english and welsh representatives have no rights over affairs affecting scotland as they are voted on in scottish parliament
       • it could be argues that MPs representing scotland could be denied a vote on any issies that affect only england and wales. but this presents the problem of if the government can't rely on a majority of MP representing england and wales they will have to recruit scottish MPs. but only labour holds a significant number of seats in scotland so the government could have a working majority as a whole but not in england and wales
     • the future of devolution in scotland
       • scotland have already had one vote for independence in 2015 but lost, but after the 2016 brexit vote where 62% voted to remain, they have found a new mandate and sturgeon is currently wanting to hold another referendum with the approval of May

5. devolution in wales

   • the welsh assembly
     • is the representative body in wales. this reflects the fact that it has less powers e.g. it doesn't have legislative devolution. it means the british government still rules wales
     • in the 2016 election labour won 29 seats 1 short of an overall majority and are governing with a minority government
     • the welsh assembly was elected in 1999 using AMS and has a fixed term of four years.
     • in the first election labour won 27 seats but later made a coalition with the liberal democrats
   • powers and functions of the assembly
     • their main policy areas are education, social services and local government.
     • they do not have the power to make primary legislation but it can make secondary secularisation such as orders.
     • functions
       • calls the welsh executive to account
       • elects the first minister but can also dismiss them
       • discusses welsh affairs
     • limits on its power
       • pass limited primary legislation
       • cannot grant powers to the welsh executive
       • cannot raise specialist taxes
   • the welsh executive
     • effectively the government of wales but must share this fnction with london. the head of the executive is voted for by the assembly and that person appoints the rest of the executive and the heads of these departments are accountable to the assembly.
     • functions of the welsh executive
       • allocate funds provided by the british government
       • negotiate with the welsh office in london for those funds
       • organise the implementation of devolved policy areas
   • the future of devolution in wales
     • wales seem to want to be able to pass primary legislation which would give them the same autonomy as scotland.

6. evaluation of devolution in scotland and wales

   • wales
     • welsh devolution enjoys less support than in scotland but there has been a revival in recent years with the growth of the national party plaid cymru
     • the assembly has increased in popularity especially when it abolished tuition fees for welsh students. but there are now proposals to give the welsh assembly legislative devolution and power to make primary legislation- much like scotland
   • scotland
     • the scottish government made a difference in many areas. e.g,
       • the foot and mouth crisis
       • all care for the elderly and special homes free
       • free higher education
       • abolished fox hunting
       • introduced STV for local government elections

7. devolution in northern ireland

   • it has been seen in the context of the good friday agreement
   • there are a number of reasons why devolution in northern ireland had to be different in character from that in wales and scotland
     • there is a deep sectarian divide in NA so those who wish for more independence
     • in northern ireland the domination of all political life by the protestant unionists was the main source of sicontent. a new system that restored majority unionist rule would not be acceptable so devolution had to break the unionis hegemony.
     • the electoral system had to represent the diversity of the political community in the province. it was too simple to just think of unionists and nationalists as both are fragmented with internal diviions. also northern ireland are interested in different issues to other regions in the Uk for example relations with europe. it was therefore essential to create a pluralist system where all groups could participate
     • it was clear that a power sharing system was needed. this meant that there would have to be innovation, making sure that decisions were made with a consensus. this was true to northern ireland due to the divisions which meant NA needed a unique settlement
       • power sharing is a method of forming a government in a divided society. to avoid conflict all major parties representing different groups are invited to share seats in government and to agree and develop policies
   • powers of NI
     • rimary legislation
     • security and policing
     • Educationducation
     • health
   • the electoral system
     • stv
     • multi member constituencies
     • parties can put as many people up for seats as they want
     • voters can vote for all candidates ranking them in order
     • results are based on counting and all choices down to the end of the list
     • the counting system ensures that some candidates have wide support not just from their party
     • the system ensures small parties and independents have a chance
   • legislation
     • in terms of law making in northern ireland, to pass a law there is a requirement that assembly votes are only successful if there are majority among both sdes of the sectarian divide. this ensures a consensus support
   • future of devolution
     • the referendum in 2010 seemed to remove the final obstacle to permanent power sharing

8. english regional devolution

   • the establishment of regional assemblies in 2001 was part of the labour policy supported by lib dems apposed by conservatives. there was also committment to hold referendums in these regions to determine public consent
   • in 2004 a referendum was held in the north east to ask about devolution. the proposal was rejetceted by a 77- 22 which shocked the government and they cancelled all other proposes referendums. regional devolution seemed to be a dead duck
   • however, some regional devolution has occured. england is divided into 8 regions and some government activities of some departments have been transferred to these regions. for example civil service planning around transport and environment is now done at a regional level. however, this is not regional devolution but more devolved adminsitration