Public Administration and Constitutional Affairs Committee on the role of Parliament in the UK Constitution Inquiry

Abstract

Parliamentary sovereignty should be understood as an institutionally oriented-doctrine and in this context the ‘political limits’ on parliamentary sovereignty can be understood. Challenges to Parliamentary sovereignty stem from the increasingly fragmented nature of authority in constitutional orders today. Such a problem is not unique to the UK. In this context, while Parliament can claim superior democratic legitimacy vis-a-vis constitutional authorities such as the courts, or the Monarch as was historically the case, the same is not necessarily the case in relation to other authorities such as the devolved institutions. In particular, parliament should be particularly aware of the limits of the democratic legitimacy of parliamentary sovereignty in relation to referendums and the emergence of ‘the people’ as an alternative source of authority. In this regard, the idea of ‘constituent power’ can illuminate many of the current challenges facing parliamentary sovereignty today. Parliamentary sovereignty performs much of the functions that ‘constituent power’—the unlimited power to create and establish a constitutional order—performs in other constitutional orders. However, while constituent power is often considered to be vested in ‘the people’ Parliament’s claim to the constituent power in the UK reveals a potential tension between Parliament and ‘the People’. Parliament must be aware of, and take account of this tension if its claim to the constituent power is to be maintained and legitimated. In turn, this concept of constituent power can illuminate discussion of who ‘the people’ in the UK actually are and whether the UK is a unitary or ‘plurinational’ polity.