Constitutions in transition
Constitutions in transition

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Constitutions in transition

5.4 Parliamentary sovereignty

In order to understand the development of the concept of parliamentary sovereignty in the UK, it is necessary to explore the Glorious Revolution of 1688 first. The interactive map gives some historical context here, but this section adds some legal analysis.

There has been a continual drive in the make-up of the UK constitution towards power being less concentrated in the Crown and being distributed more across the three parliamentary institutions: the Crown, the Lords and the Commons. In other words, sovereignty is not vested in the monarch alone. Rather, the monarch enjoys sovereignty in as much as the ‘office’ of monarchy is an integral part of Parliament. It is the Queen-in-Parliament that is considered sovereign in the UK. Given its British heritage, unbroken by the partition of its constitution in 1982, Canada vests its sovereignty in Parliament, too. It does also commit to the supremacy of God in the preamble to the Charter of Rights and Freedoms but, as you have read earlier in the course, this can be read as a commitment to human dignity rather than the locus of sovereignty.

The notion of sovereignty (or supremacy over a territory, system of government or people) being vested in Parliament is constitutionally significant because it provides that Parliament can enact legislation on whatever subject matter it so chooses to. It has ultimate legislative supremacy, meaning it can make and unmake any law as it pleases; it cannot be challenged in its way of legislating and as per definition it cannot bind future parliaments. The principal tension that arises with such a notion is whether a parliament, with legislative supremacy, can bind subsequent parliaments from exercising their full legislative capacity. The most significant case regarding this point comes not from the Supreme Court, nor the Court of Appeal, but the High Court, Queen’s Bench Division.

Box 5 Thoburn v Sunderland CC [2002] EWHC 195 (Admin), [2003] QB 151

This case is also romantically known as the ‘Metric Martyrs case’. It concerns the conviction of a handful of greengrocers for refusing to sell produce primarily and predominantly on the basis of metric measurements per the Weights and Measures (Metrication Amendments) Regulations 1994 that gave accord to the European Community Directive aimed at harmonising the units of measurement across what is now known as the EU.

The case of those prosecuted rested on the notion that parts of the European Communities Act 1972, relevant to the issue if metrication, were impliedly repealed by the later Weights and Measures Act 1985 thus meaning the basis of prosecution was unfounded. However, the Court considered implied repeal to be no longer applicable in respect of extraordinary Acts of Parliament, Acts that had ‘constitutional status’. This included the European Communities Act 1972. The Court, then, gave a firm indication that some Acts of Parliament were constitutional statutes and could not, therefore be impliedly repealed; they would bind future parliaments until they were expressly repealed. This status extended to − as examples − Magna Carta, the Bill of Rights 1689 and the Human Rights Act 1998.

Thus, the special status of ‘constitutional statutes’ defines, to some extent, the boundaries of parliamentary sovereignty.

Activity 12 Sovereignty in comparison

Timing: You should allow yourself 15 minutes to do this activity.

You have been introduced to the notion of sovereignty in this course and have seen that it resides in Parliament in the UK and Canada. This activity will help you to consolidate your knowledge in relation to the comparative factors of sovereignty.

Answer the following two questions:

  • a.Where in South Africa is sovereignty vested?

a. 

The Truth and Reconciliation Commission


b. 

The people


c. 

The Constitution


d. 

The National Assembly


The correct answer is b.

Answer

The Truth and Reconciliation Commission as the performance of sovereignty as ubuntu is referred to in the Interim Constitution. It also shows the principles of the Constitution are enacted in the institutions of the state. The people are entitled to vote in elections and it demonstrates the commitment to parliamentary democracy in South Africa; the National Assembly is voted in by these elections but its powers, along with the rest of the South African Parliament, are limited by and extracted from the Constitution. Therefore, it is possible to say that, as the supreme law of South Africa, the Constitution is the embodiment of sovereignty. However, given that the Constitution develops the idea of legal decisions being taken though public engagement and, ultimately, consent (hence an extensive Bill of Rights), sovereignty is vested in the people.

  • b.Where in Germany is sovereignty vested?

a. 

The Federal Constitutional Court


b. 

The Parliament – Bundestag


c. 

The Basic Law – Grundgesetz


d. 

The people


The correct answer is d.

Answer

Much like South Africa, it is the German people that are to be seen as the sovereign source of power. The people elect parliament which can change the law and the constitution. The constitution itself, the Basic Law (Grundgesetz) is the highest source of law, but it derives its sovereignty from the sovereignty given to it by the people.

Now complete the graphic below as a consolidation and memory tool for you. In the centre of the graphic add ‘Legal sovereignty’ which is the focus of this exercise. Use the lines and terms provided to develop your own summary of sovereignty as studied so far. The terms relate to sovereignty and each other in a certain manner. Use lines to show these relations.

Discussion

Figure 21 Legal sovereignty graphic

You can see above an example of a graphic including some of the terms mentioned in your activity. Should you struggle to complete this exercise you can use this as a starting point to find an order for the remaining boxes, lines and arrows. This exercise is meant to train your revision skills early. It is meant to help you to find a graphic way of summarising complex matters. This can be a useful way of breaking complex structures down to be able to then rephrase them and explain them in your own words.

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