Saturday, 6 August 2016

Sovereignty ~ What is it?

"Do you want to see sovereignty back?  Then vote to leave the EU."  That was the headline to an article in The Telegraph 8th February 2016.  It suggested that, by being in the EU, the United Kingdom had lost its sovereignty but what does that word actually mean?

There is a large amount of discussion in texts on International Law as to what a STATE actually is; how one comes into being; how one ceases to exist.  Basically, a State in international law has a population, defined territory (including airspace and water adjacent to the land territory), a government and the capacity to enter into relations with other States.  Moreover, it will be recognised as a State by other States and, of course, States can enter into alliances with eachother or other agreements (such as trade treaties, extradition treaties etc).  It is said that the State has SOVEREIGNTY. 



The "government" of a State (however that government is formed) controls the State and exercises, to a greater or lesser degree, power over those within the State.  "Government" in this widest sense embraces the power to make laws for the State (a legislative power), to administer State affairs (e.g.  government departments implementing domestic policy and foreign relations) - the Executive power, and to have machinery for the peaceful settlement of disputes and to deal with those who are found to have broken the laws of the State - Judicial power.

Many constitutional thinkers of the 17th and 18th centuries realised that it is not desirable for any single individual or entity to hold more than one of the powers: legislative, executive, judicial.  In this way, nobody holds absolute power. This idea of separation of powers has been an enduring feature: at least in western democratic nations where it is found in varying degrees.

Nobody would have seriously suggested that by joining the European Union, which is NOT a State, the UK had somehow ceased to be a State.  In that sense, the UK has not lost any of its "State sovereignty.  What then was the headline getting at?

The answer relates to sovereignty in a different sense - Parliamentary Sovereignty - a concept stemming principally from the work of the work of Professor A.V. Dicey (1835-1922) who wrote that:


"The principle of Parliamentary Sovereignty means neither more nor less than this, namely, that Parliament … has, .... , the right to make any law whatever; and, further, that no person or body is recognised by the law .... as having a right to override or set aside the legislation of Parliament."

Parliament may therefore make any law and is, in legal theory, not restricted in any way.  Parliament expresses its will by enacting ACTS of PARLIAMENT and no person or court may override or set aside an ACT.  If there is a dispute about the meaning of an Act,  it is for the courts to interpret the Act. 

In R (Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the court said (at para 40) - "Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. Our constitutional arrangements have developed over time in a pragmatic as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions. Reflecting its development and its contents, the UK constitution was described by the constitutional scholar, Professor AV Dicey, as “the most flexible polity in existence” - Introduction to the Study of the Law of the Constitution (8th ed, 1915), p 87."

Those who advocate a written (formal) constitution often envisage that such a document would limit this legally unrestricted power since laws made by Parliament could not be contrary to anything permitted by the constitution.  For others, that is a problem because they do not wish to increase judicial power and thereby enable judges to "strike down" laws enacted by a duly elected Parliament.

On joining the EU (as it now is) Parliament enacted the European Communities Act 1972 and it is by means of this Act - an Act of our own Sovereign Parliament - that EU laws apply within the UK.  It was the will of Parliament that this be so since Parliament had decided to enter into co-operation with the other member States and to share aspects of our sovereignty as a nation.

Therefore, when the word sovereignty is used, ask in what sense it is being used.  The answer is often Parliamentary Sovereignty.

For a succinct article on this topic please see Head of Legal blog - What is Parliamentary Sovereignty anyway?

Some further reading:

States - The {new} International Law blog - What makes a State?

John Austin and his theory of sovereignty and some criticisms of Austin's theory.

Parliament - Separation of Powers


Globalization - The issue of sovereignty

Parliament - Parliamentary Sovereignty - Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.

Chatham House Research Paper May 2016 - Britain, the EU and the Sovereignty Myth



 





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