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Published: Fri, 02 Feb 2018
The idea of developing power
Parliamentary Sovereinty And Regional Legislattures
The idea of developing power by the British parliament at the centre to sub-national units has brought about further challenge to parliamentary sovereignty . However, under parliamentary sovereignty, devolved powers can reversed and the institutions in the devolved sub-national units remains constitutionally subordinate to the British parliament.
The British system of devolution of power to regional areas remains asymmetric in nature, as there are different levels of development among the regional units. Scotland had different form of devolution from Wales and Northern Ireland. The Scotland Act 1998 set out framework for devolving to Scotland; which was modelled after the Westminster type. This gave Scotland a parliament and Executive arms of government. Scottish parliament can make laws or pass Acts except for those reserved to Westminster. Some 0f the areas of reservation for the Westminster include :
Constitution of the United Kingdom;
UK foreign policy;
UK defence and national security;
The protection of borders
UK,s fiscal, economic monetary system
Social security policy and administration and a host of others.
Although, the Westminster can legislate on developed areas as well, but only if permitted by the Scottish parliament under the Sewell convention
The Government of the Wales Act 1998 led to the devolution of power to Wales National Assembly with no developed executive theoretically. But in practice, there is an element of separation of power between the legislature and executive within the constraints and framework of Government of Wales Act 1998. In as much as there are devolved areas to the National assembly for Wales the fact remains that primary legislation for Wales in devolved area is still made by the British parliament.
Devolution process had been very problematic with the Northern Ireland. The Northern Ireland Act 1998 led to the devolution of power to the Northern Ireland Assembly. Though, because of its problematic nature, there had been cases of the Northern Ireland Assembly and Executive been suspended by the British parliament. This led to the UK parliament legislating in both excepted and reserved areas for Northern Ireland.
However, the question remains how far has devolution of power to sub-national units remains a challenge to parliamentary sovereignty? According to Barnett (2006 p. 187) ‘’It is the devolution of legislative power to the Scottish parliament which illustrates the complexity of the sovereignty issue most starkly”. In other words, there is a strong sense of national identity in Scotland ever since the union with England in 1707. Devolution has strengthened Scottish national identity and evoked memories national independence which might pose a challenge to British parliamentary supremacy. For example nuclear power is not within Scottish parliament competence, but ironically, it blocked the wishes of the British government to establish new nuclear power plants in Scottish territory. There is the possibility that Scottish parliament will seek to extend its competence, thereby posing a challenge to parliamentary sovereignty. Although theoretically, it is possibly to dissolve the Scottish parliament, or legislate without its consent, in practice, this may remain a political impossibility.
The danger and possibility of the erosion of parliamentary sovereignty as a result of devolution of power could come from some of the recent political developments.
The demand for more decentralisation had gathered momentum in all three developed territories, especially in Scotland where the Scottish Nationalist party is increasingly winning more seats in the Scottish parliament. There has been an increasing decentralising political trends occasioned by devolution.
Consequently, with an end to labour party ,s dominance in 2007, Nationalist parties have gained considerable amount of power not only in Scotland, but also in Wales and Northern Ireland. This may in the near possible future pose a challenge to UK,s parliamentary sovereignty.
‘’The doctrine of parliamentary sovereignty as explained by Dicey means that parliament has the right to make, unmake or amend any of its Acts and that such power is not open to challenge by any outside body”. (Fenwick & Phillipson, 2007 P. 45). In order words, Sovereignty should lie with the parliaments since it made up of elected politicians which represented the people.
However , many writers believe that UK parliamentary sovereignty is declining and constitutional legitimacy is in serious crisis. The British entry into the EU has to some extent damaged its parliamentary sovereignty. The reason for this comes from the fact that membership of the EU means acceptance of European policies. Though the parliament may want to repeal the Act that made Britain a member of the EU, and retain its sovereignty; But the possibility of this happening remains a matter of academic debate.
The human Rights Act 1998, and the incorporation of European convention on Human Rights in British law, no doubt contributed to the erosion of parliamentary sovereignty. The Human Rights Act 1998 gave the judiciary the impetus to question bills that can be seen as unconstitutional, and the power to issue a declaration of incompatibility where there is contravention of the rights guaranteed by the Act. This strikes a heavy blow at the heart of parliamentary sovereignty. Though, the real impact of declaration of incompatibility is to send a signal to parliament to amend any offending provisions. The A V secretary of state for Home Department illustrated the issue of declaration of incompatibility.
Another significant factor which contributed to the erosion of British parliamentary sovereignty was the devolution legislative power to the sub-regional units, especially to the Scottish parliament. The nationalist governments elected in sub-regional units have intensified demand for more decentralisation which could further challenge British parliamentary supremacy.
The fact that member states of the EU including the United Kingdom agreed to aced or surrender some of the parliamentary responsibilities and powers to the European Union, is to some extent a surrender of some aspects of their sovereignty. Areas most affected by the membership of the European Union include; Judicial maters, foreign and economic policies. These areas however have important political legal implications for member states, especially the British parliament.
However, cases such as Thoburn V Sunderland City Council (2002); R V Secretary of state for Transport, ex parte Factortame Ltd and others (1990); and issues such as blocking of Nuclear Power Stations in Scotland by Scottish Parliament against the wishes of the UK government have brought about a serious challenge to the tradition doctrine of British Parliamentary Supremacy. The R V Secretary of state for Transport, ex parte Factortame Ltd was a landmark case which demonstrated the supremacy of the EU laws, and a gradual erosion of parliamentary sovereignty.
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