20 October, 2020

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. 

A Codified Constitution for the UK ?

 Introduction:

The United Kingdom's constitutional arrangements are essentially political in nature as opposed to being based on a legally binding formal (or codified) constitution. 

The political nature of the arrangements continues to be true even though there are a number of "constitutional" Acts of Parliament such as those creating devolved legislatures / government for Scotland, Wales, and Northern Ireland.  

One consequence of the political nature of the arrangements is that conventions play a considerable part by setting out the usual course of action to be adopted in particular situations. Conventions are not rules of law and the courts, whilst recognising their existence, do not enforce them. 

It will suffice to give three examples of conventions -

1. By convention, Royal Assent is not withheld for a bill which has passed through all its parliamentary stages.  

2. By convention, the Monarch appoints as Prime Minister the individual who appears most likely to be able to command a majority in the House of Commons - normally the leader of the political party which has gained the most seats at a general election.

3. The so-called Sewel Convention is to the effect that the UK Parliament will not normally legislate for devolved matters without the consent of the devolved legislature - see Miller 1 [2017] UKSC 5 at paras 136 to 151. At para 151 the court stated - " ... we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law."

Reform:

The absence of a formal constitution has the result that