In therefore Parliamentary Sovereignty. The Westminster Model

In this essay, I will be arguing
that the Westminster Model has lost its meaning as a result of significant
devolution to London, Scotland, Wales and Northern Ireland since 1998.
Moreover, a great deal of legislative power has been shifted to the European Union,
which implies that European law takes precedence over British law. Likewise, it
could be argued that ‘prime ministerial government’ no longer exists and
instead the system has become more ‘presidential’. All these factors indicate
the erosion of the Westminster Model and therefore Parliamentary
Sovereignty.  The Westminster Model is
based on the notion of parliamentary sovereignty which involves a fusion and
centralisation of executive and legislative power at Westminster. Nonetheless,
most representative democracies, with the exception of the USA, have such a
parliamentary executive, with the government emerging from, and dependent on, a
parliamentary majority. However, the British Prime Minister and Cabinet appear
to control Parliament to a far greater extent than parliamentary executives in
other countries. This is due to the two-party system and single party majority
government that the British government has witnessed for most of the entire
period from 1945-2010, predominantly as the consequence of its distinctly
disproportionate electoral system. The key elements of the Westminster Model
are as follows: Parliamentary Sovereignty; concentrated Executive power; weak
bicameralism and the ‘First Past the Post’ electoral system and two-party
government. Furthermore, the Model is also based on an emphasis on clear
accountability of government. This essentially means that a ruling government
can do what it promises while concurrently centralising power – which suggests
that the system could be regarded as an elective dictatorship.

 

Parliament sovereignty is a key
principle of the UK’s uncodified constitution. Parliamentary sovereignty
effectually denies the principle of the separation of powers. The executive in
Britain is a parliamentary executive, whose existence relies upon the
continuing confidence of Parliament. The judiciary is bound to accept law
passed by Parliament. Parliamentary sovereignty essentially means in practice
is that parliamentary authority in the United Kingdom is unlimited. In other terms,
Parliament is the supreme legal authority in the UK. William Blackstone stated
that Parliament ‘can do everything that is not naturally impossible’ (Leach, 2011, p.178). According to the
principle of parliamentary sovereignty, statute law, a law passed by
Parliament, is supreme over other kinds of law. Not one person can question its
legislative competence and the courts must give effect to its legislation.
Furthermore, no Parliament can bind its successors. This may seem as a
limitation on the power of Parliament, but if an Act of Parliament contained a
clause that it could not be repealed, this would effectively end parliamentary
sovereignty. Another key principle of the UK’s uncodified constitution is the
idea of a unitary state; a state governed by one single power in which the
central government is the ultimately supreme. Besides the separation of
executive, legislative and judicial powers, some constitutions divide the
functions of the state between different levels. In comparison to a federal system,
sovereignty is purposely divided between two or more levels of government. Each
level of government is, in theory, sovereign in its own domain. The United
Kingdom remains a unitary state, in the sense of legal form. Legally and
constitutionally the recent devolution of power to Scotland, Wales, and
Northern Ireland does not affect the unity of the United Kingdom nor the
sovereignty of Parliament. However, some would say that devolution in practice
includes a quasi-federal system of government.

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On the contrary, it can be argued
that parliamentary sovereignty has been reduced due to many factors.
Parliamentary sovereignty has been eroded by UK membership of the European
Union. The 1972 European Communities Act acknowledged that in areas of EU
legislative competence, EU law is supreme and is given precedence over UK law
where the two conflict. For example, the Factortame case, 1991, witnessed The
European Court of Justice quashed sections of the Merchant Shipping Act 1988
which provided that UK – registered boats must be 75% British-owned and have
75% of crew resident in the UK. The Act was aimed to prevent boats from Spain
and other EC countries ‘quota-hopping’ by registering under the British flag
and using the UK’s EC fishing quotas.

 

 Vernon Bogdanor believes that parliamentary
sovereignty has been further reduced by at least three other factors: the use
of referendums, the Human Rights Act, and devolution. After the 1975 referendum
on the membership of the EC, subsequent British governments have rarely had
recourse to popular referendums on important constitutional issues. Thus
referendums were held on devolution to Scotland and Wales in 1979, and again in
1997, London government in 1998, the Northern Ireland agreement in 1998, and on
a projected elected assembly for the North-east in 2004. All these were taken
place while Labour was in office. Nevertheless, the Conservatives in opposition
were committed to a referendum on the EU Lisbon treaty, and the coalition
government promised a referendum on the Alternative Vote in 2011. Therefore,
the referendum has become an occasional but major part of the UK constitution.
Referendums require the passing of a particular Act of Parliament, and the
results remain theoretically binding, so the principle of parliamentary
sovereignty is officially upheld. Though it would be politically risky to
ignore the result of a referendum. Hence, Bogdanor argues that in practice ‘a
referendum which yields a clear outcome on a reasonable turnout binds
Parliament’ (Leach, 2011, p.185). This
means that the sovereignty of the people is substituted for the sovereignty of
Parliament; the more referendums become a regular part of the British system of
government, the further parliamentary sovereignty is eroded.

 

The Human Rights Act, 1998, does
not give judges the authority to reject Westminster legislation, but
‘nevertheless alters very considerably the balance between Parliament and the
judiciary’ so that Parliament will be forced to respond to judicial decisions
that a statute is incompatible with the European Convention on Human Rights.
The Belmarsh case in 2004 was a clear example of where a statute was
incompatible with the European Convention. Eight citizens suspected of
terrorism were being detained without a trial in Belmarsh prison. Their
detention was legal under the Anti-Terrorism Act, 2001. But eight of the nine
members of the Law Lords declared that the detention of the suspects without
trial contradicted the European Convention. However, the verdict did not
invalidate the Anti-Terrorism Act, but the political fallout from the ruling
was immense. The government was under pressure to amend the Anti-Terrorism Act
to make it compatible with the Convention. After many political disagreements,
this was achieved and a considerable number of additional legal safeguards were
built into the amended Act. This proved the fact that, although Parliament
remains legally sovereign, it will find it difficult to resist the pressure of
an opposing court decision.

 

Parliament’s sovereignty is theoretically
unaffected by devolution, but in practice, English MPs have lost the
responsibility for legislation on devolved functions, particularly in Scotland.
Bogdanor argues that the Scotland Act ‘have characteristic of fundamental laws.
They limit the rights of Westminster as a sovereign parliament, and provide for
a constitution which is quasi-federal in nature.’ (Leach,
2011, p.185) Yet, devolution and federalism are not the same. Power
devolved is the power reserved, because sovereignty is unaffected, and thus any
functions which are devolved can be recalled. Devolution itself can be
reserved, as the suspension of the Stormont parliament in 1972 and the
continuation of the direct rule of Northern Ireland after 50 years of devolved
government demonstrates. Certainly, after the Good Friday Agreement, the
Northern Ireland Assembly and Executive were suspended four times, reinforcing
the point. Moreover, any reversal of devolution to Scotland and Wales now seems
inconceivable, unless a clear majority of Scots and Welsh vote for it. However,
there’s pressure on Westminster to give more devolution to the Scottish
Parliament and Welsh Assembly; and there’s a fear amongst Conservatives that it
may lead to the break-up of the United Kingdom because demands for independence
will be fuelled by devolution. This was particularly true as there was a
referendum held on Scottish independence in 2014, and the Scottish Parliament
are now planning to hold a second referendum on independence after the UK voted
to leave the European Union in June 2016. Thus, the political impossibility of
reversing devolution clarifies the practical limitations on Parliament’s
sovereignty.

 

It can be said that the system of
government is no longer prime ministerial and instead has become more
presidential. The growing importance of the media in has politics has
contributed to the greater concentration on the individual holder of the office
of the prime minister rather than the government as a whole. For example,
Phillip Stephen’s observation of Blair’s outsider status shows that ‘he’s
better known in the media than within his own party’ (Foley, 1994, p.91), regardless of his overwhelming leadership
victory over John Prescott and Margaret Beckett. Prime ministers now have large
groups of advisers whose sole task is to enhance the media image of their
master and to control the flow of information coming out of Downing Street.
Mike Foley supports this view by claiming that ‘given the intense media
attention, the winner was in a position to claim that the leadership selection
had taken place in the public domain.’ (Foley,
2000, p.90) As a result of this, the general public has also come to see
government in terms of its leader rather than as a collection of ministers and
MPs. This is a double-edged sword for the prime minister. S/he can often claim
credit for the successes of the government in general, but s/he’s also
accountable for their failures, whatever her own role may have been. Michael
Foley developed the concept of ‘spatial leadership’, where the likes of
Thatcher and Reagan deliberately make themselves into outsiders within the
government. They separate themselves from its other members and so are able to
act independently, but also to remain part of government itself. This also
applied to Blair as he ‘had always been a stranger to Labour’s traditional
union culture and to the ideological dogmas of the party’s activists.’ (Foley, 1994, p.91) Meanwhile, Thatcher was
promising to ‘roll back the frontiers of the state’, she was roundly criticising
the civil service for its conservatism and wastefulness and was not reluctant
to openly opposing her own ministers. Both Thatcher and Reagan were popular
leaders who commanded great public support. This allowed them often to appeal
to the people above the heads of their own party leadership. Most famously
Thatcher eventually decided to use her own advisers on economic policy and to
by-pass her own Chancellor of the Exchequer, Nigel Lawson, a tactic which
ultimately led to his resignation in 1989 and contributed to her own demise a
year later.

 

Elections are the core to modern
representative democracy. They reflect the principles of popular sovereignty,
that ultimate power rests with the people, and governments derive their
authority from people’s support. Westminster uses First Past the Post to elect
the House of Commons, which involves the election of a single Member of
Parliament for each electoral area into which the country is divided. The
candidate for election who wins a plurality of votes wins, regardless of
whoever has a majority of the total votes cast. Although it tends to produce
grossly disproportionate results in terms of seats won compared with the votes
cast, frequently over-representing the leading party. Still, the party that
wins the most votes does not necessarily win the most seats. For example, in
1951 the Conservatives had 200,000 fewer votes than Labour but won a majority
of the seats and formed the government. Furthermore, it specifically penalises
third and minor parties whose support is widely spread out over the country as
a whole. For example, in the 2015 general election, UKIP gained over 4 million
votes but won only 1 seat in the Commons. First Past the Post can also penalise
major parties in parts of the UK. For example, the Conservatives won no seats
at all in Scotland and Wales in 1997, and have not improved their
representation much since then. As for Labour, they win few seats outside
London in the south of England. This suggests that the current electoral system
for Westminster affects the Westminster model because it can cause apathy
amongst the electorate as all votes for losing candidates and all surplus votes
for winning candidates can be classified as wasted as they do not contribute to
the election of representatives.

 

Overall, features within the
Westminster model have been criticised by constitutional reformers supporting
devolution and decentralisation, a clearer separation of powers, a proportional
electoral system and popular rather than parliamentary sovereignty, involving
more direct democracy. These criticisms have helped inspire constitutional
changes which have shaped British government to such an extent that the
Westminster model no longer describes British politics. Thus devolution implies
that Britain is no longer a unitary state; the formation of the Supreme Court
involves clearer separation of judicial powers and new, more proportional,
electoral systems have been introduced for European parliamentary elections and
devolved assemblies, and these have helped wider party representation. These
are all restrictions on parliamentary sovereignty, which have been further
eroded by the 2009 expenses scandal where some MPs claimed undeserved benefits.