1. Sovereignty and the constitution Government and Politics AS GP2 Governing Modern Wales

2. This lesson  This session will:  To ensure that you understand the concept of sovereignty and are able to use it appropriately in various circumstances.  To fully understand the concept of political sovereignty and are able to distinguish it from legal sovereignty.  To demonstrate that sovereignty is not a static concept, but that its location shifts as political circumstances change.

3. Sovereignty  Sovereignty refers to ‘ultimate power’,  Its meaning is unclear and therefore it can be applied in various ways and circumstances.  There is a fundamental distinction between legal and political sovereignty.  Parliamentary sovereignty concerns formal legal authority  Political authority, however, suggests absolute political power

4. Sovereignty There are numerous informal and formal constraints on what parliament can do. Parliament is legally sovereign, but its authority derives from the electorate:  were parliament systematically to ignore the wishes of the people,  its legitimacy would be undermined. The doctrine of the electoral mandate; allows governments to claim that they have popular support for measures that featured in their election manifestos, It also suggests, however, that the right of governments to make law is less clear if their proposals have not received popular endorsement

5. Sovereignty  The fusion of the legislative and executive branches means that parliamentary sovereignty gives the executive great power.  As we have seen, this creates the potential for elective dictatorship.  But government power is far from absolute.  Government defeats in parliament are more numerous today than 40 years ago, although parliament still finds it difficult to impose its own will.

6. Sovereignty  The House of Lords has also become more assertive in the last decade.  Defeat or the threat of defeat in the Lords forced the Blair government to amend bills on civil liberties issues for instance.  Conventions and traditional modes of behaviour may o shape opinion on what is practicable and desirable.  It is expected, for example, that proposals for significant constitutional reform should be put before the electorate before they are enacted.

7. Sovereignty  The House of Lords has also become more assertive in the last decade.  Defeat or the threat of defeat in the Lords forced the Blair government to amend bills on civil liberties issues for instance.  Conventions and traditional modes of behaviour may o shape opinion on what is practicable and desirable.  It is expected, for example, that proposals for significant constitutional reform should be put before the electorate before they are enacted.

8. Legal Sovereignty Legal sovereignty means the following and has a number of specific applications:  Legal sovereignty is the location of ultimate power to make laws. Laws made by a sovereign body are supreme and cannot be overturned except by the sovereign body.  The sovereign body is the ultimate source of all legitimate political authority. In other words the legally sovereign body is able to delegate political authority to other subordinate bodies.  Legal sovereignty is held by various institutions, but can also be held by a supreme constitution.  There is also an external form of legal sovereignty. This refers to the body or bodies that have be legitimate right to exercise power within a territory.  Such sovereignty is external in the sense that legitimacy is partly granted by other states’ recognition of that legitimacy.

9. The UK context  In the context of the UK:  In the absence of a supreme constitution, Parliament has legal sovereignty.  The unitary constitution indicates that legal sovereignty lies in one place — Parliament.  The EU has legal sovereignty in some areas of state jurisdiction such as trade, environment and agricultural subsidies. However, the UK can regain its legal sovereignty by leaving the EU.  The UK enjoys external legal sovereignty because the UK state is recognised as the legitimate authority by other states.

10. Exercise 1 Word Search + U + Y + + + + + + L + D P + + + L + T + + + + A + I + O + + + + T + N + + C + C + + W + + + + + I + G I + T + + + E + + + + + L M T I A + + + + R E + + + E + I A T E + + + + + T + + G + L + O T + R + + + + A + A + O + R + + E + E + + + M L + P + S E L E C T I V E + I + + + H + + + + + + + + O + T N O I T U T I T S N O C + S I + P + + + + + + + + + + + + G + + + + + + + + + + + + + + E + + + + + + + + + + + + + + L + + + + + + + + + + + + + + + Word search For each word state what significance it has to the concept of sovereignty?

11. Sovereignty  Exercise 2 Since real power lies outside Parliament in many ways, is legal sovereignty a useful concept or is it merely theoretical?

12. Sovereignty  We need to note that it may appear that legal sovereignty lies elsewhere, e.g. with monarchy, the prime minister, the government, or the Scottish Parliament,  This is illusory as it lies with Parliament

13. Sovereignty  Internet work exercise  Define the precise meaning and usages of legal sovereignty in the context of the UK. The answer should convey the meaning of political sovereignty and its main application in the UK.

14. Sovereignty  Internet work exercise answer  The term refers to the location of power in practice as opposed to theory. Thus, wherever legal sovereignty lies, it is important to establish where power is effectively located.  It can certainly be said that political sovereignty lies with the people in a democracy. However, this sovereignty can only be exercised in the UK when there are elections. Between elections, political sovereignty lies elsewhere.  The transfer of many powers to the Scottish Parliament and the Welsh and Northern Ireland Assemblies under devolution law could be said to have transferred effective, political sovereignty. It seems inconceivable that these powers will ever be reclaimed by the UK Parliament.  When the government is able to dominate Parliament, i.e. when it has a secure majority in the House of Commons, it could be said to have political sovereignty. This remains problematic as Parliament will always have the legal right to veto legislative proposals.  Similarly the prime minister has prerogative powers which appear to constitute political sovereignty. However, the legal sovereignty of Parliament means that these powers cannot be absolute. Parliament could overrule a prime minister or even remove him or her from power.

15. Sovereignty  There is some confusion over the role of the monarch  We should note that the fact that the queen is often referred to as ‘the sovereign’ is an illusion.  Sovereignty is not the same as ‘the sovereign’  The sovereignty of the monarch therefore exists only in theory.  It is parliament who has the sovereignty

16. The changing distribution of sovereignty  The sovereignty of the state may be viewed from two points of view i.e., Legal Sovereignty and Political Sovereignty.  Legal sovereignty represents the lawyer's conception of sovereignty.  It is associated with the supreme law-making authority in the state.  The body which has the power to issue final commands in the form of laws is the legal sovereign in a state.  This power may be vested in one person or a body of persons. It may be a king or dictator or parliament.  Under absolute monarchies, it was the king who was vested with the power of making laws.

17. The changing distribution of sovereignty A dictator makes laws under a dictatorship as was the case in pre-war Germany and Italy. The courts recognize only such laws as are made by a sovereign. In England, Parliament is the legal sovereign which enjoys unlimited powers of law making. In the words of Dicey it can adjudge an infant of full age, legitimize an illegitimate child or if it thinks fit, may make a man judge in his own case. The following are the characteristics of a legal sovereign: 1.A legal sovereign is definite and determinate. It may be a person as in the case of an absolute monarchy or a body of persons as in the case of the British Parliament. 2. Legal sovereignty is definitely organized and re-organized by constitutional law. 3. Legal sovereign alone has the power to declare in legal terms the will of the state.

18. Political sovereignty  The concept of political and popular sovereign is very confusing.  In the modern democratic state, a distinction, all the same, has come to stay between legal sovereign and political sovereign.  Legal sovereign is defined as that person or body of persons that makes law and whose law is final and is recognized by courts and is enforced by the executive.  However above the legal sovereign is the political sovereign, As Dicey says, "Behind the legal sovereign that the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow.

19. Political and Legal sovereignty  " This is the political sovereign. In democracies, the legal sovereign receives its authority from the electorate, whatever be the basis of the right of vote, and is answerable to it for the exercise of its powers.  Legal sovereign is subject to be changed by the mandate of the electorate at regular intervals.  Even during the term of Parliament, in the cabinet system of government, legislature may be dissolved and fresh mandate from the electorate sought.  The legislature makes laws on the basis of the policy approved by the electorate. So we may say that the electorate is political sovereign.

20. Legal sovereignty  Although it is sometimes said that much of the UK sovereignty has effectively been transferred to the EU.  When we consider political sovereignty, however, its location can be said to be changing. The following developments are to be noted: 1.Devolution has transferred much power to Scotland, Wales and Northern Ireland. 2.The growth in executive power has moved power away from Parliament.

21. Legal sovereignty  Similarly the growth of prime ministerial power has concentrated more political sovereignty in the hands of the office holder.  Referendums are not binding, but they effectively transfer power to the people, as it is almost unconceivable that Parliament would overturn a referendum result.  Though the European Human Rights Act 2000 means that the ECHR is binding on all public bodies, it is not binding on Parliament.  Thus it is not legally sovereign. However, it seems that judgments by the courts that a law offends the ECHR are accepted by government. This effectively makes the ECHR politically sovereign.

22. Legal sovereignty Exercise 3 – Advising the minister You have been appointed as the special advisor to the Home Secretary in a new government. She has asked you to write a 200 word memo to her on the subject: Where does sovereignty lie in the UK?’

23. Legal sovereignty  Exercise 4 – Writing a newspaper article  Using article 6.2. Write a newspaper article stating what the British constitution is and how it is changing? You do not have to use all the article just those bits that are relevant. The article should be about 250 words long, with a headline and sub headings. You can also use pictures.