Scotland and parliamentary sovereignty

Abstract

The authority of the classic Diceyan approach to parliamentary sovereignty has, as is well known, been called into question as a result of the UK's membership of the EU and human rights legislation. However, this paper focuses on the implications of Scottish devolution for the orthodox doctrine of parliamentary sovereignty. The constitution, and the legislative supremacy of Westminster within it, remains a controversial political issue in Scotland. Accordingly, rather than hypothesising inductively from constitutional doctrine, consideration is given to the nature of the interaction between the socio-political forces which underlie Scottish devolution and the concept of parliamentary sovereignty. It is contended that the foundations of the Scottish political order have shifted in a way which is already presenting significant challenges. Moreover, looking to the future, the pressure on the orthodox Diceyan approach is likely to intensify over time. In this context, it is questionable whether constitutional conventions of the sort which are already evolving or the possible development by the courts of more formal constitutional norms will, in the long term, be able to reconcile parliamentary sovereignty with Scottish political reality. Indeed, it is argued that — from a Scottish perspective at least — the viability of classic, Diceyan parliamentary sovereignty as a meaningful constitutional doctrine will be called into question in the years to come.