Parliamentary sovereignty and the locus of constituent power in the United Kingdom

• Published in: International journal of constitutional law Vol. 18; no. 4; pp. 1166 - 1200
• Main Author: Greene, Alan
• Format: Journal Article
• Language: English
• Published: Oxford Oxford University Press 01.12.2020
• Subjects: Constitutional law; Constitutional reform; Immunities of foreign states; Judicial power; Legislatures; Power; Representative government and representation; Sovereignty; GREAT BRITAIN; United Kingdom > UK
• ISSN: 1474-2640; 1474-2659
• DOI: 10.1093/icon/moaa100

This article argues that parliamentary sovereignty's assimilation of constituent power-the ultimate power in a legal order to create and posit a constitution-has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the United Kingdom currently faces. By conceptualizing a more antagonistic relation between the Crown in Parliament and "the people" by questioning the democratic credentials of the former, this article contends that the UK constitutional order can be reinvigorated. This reappraisal, however, also requires the interrogation of the notion of "the people" in the UK constitutional order itself. Thus, despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty's inviolability is stultifying deeper constitutional reform. The result is a constitutional law in "crisis" in search of a paradigmatic revolution. A descriptive-as distinct from normative-account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and "the people." Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much of what the idea of constituent power does. However, this does not mean that constituent power is vested in "the people"; rather, the locus of constituent power in the United Kingdom should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and "the people."