Has Devolution Limited the Sovereignty of Parliament?

It is important to understand what devolution is and how it was established. In 1997 -1998 a successful referendum was held in Scotland, Wales and Northern Ireland which evidently led to the ‘Devolution Acts’. This consisted on the Scotland Act, the Government of Wales Act and the Northern Ireland Act (all in 1998). These Acts gave the countries “their own directly elected representative bodies”.[1] As England did not take part in this, they established devolved administrations; which they delegated certain powers to.¹

A well-known definition for devolution was provided by Bogdanor who stated that “Devolution involves the transfer of powers from a superior to an inferior political authority.”² […] He also states that “Devolution involves the creation of an elected body […] it seeks to preserve intact that central feature of the British constitution.”[2] So, essentially, devolution is the transferral of powers given to other bodies.

When considering if devolution has limited Parliamentary sovereignty, it is essential to look at the effects that it has had on the UK. In the Royal Commission Report[3], it expressed that Parliament were sovereign in respect to legislative devolution. The report demonstrated the idea that as Parliament could repeal the Devolution Acts if wanted, and that they could legislated on all issues, this held them to be sovereign as this still respected the fundamentals of Dicey’s Doctrine.[4] Although the report states that Parliament are sovereign, it states that before enacting legislation the consent of the region must be given. Theoretically, this means that Parliaments sovereignty is limited as it needs ‘the permission’ of the region before legislating. Although this can be seen as a limitation, it can still be argued that Parliament maintain sovereignty as they still have the power legislate above other bodies.

When looking into the overall position of Parliament, Westminster retains all of it powers in comparison to the three devolved institutions. This is evident through the fact that the institutions are restricted from legislating against the European Convention of Human Rights (ECHR). However, if Westminster wanted to pass an act that opposed to the ECHR, they are entitled to do so. In addition to this, Feldman supported the idea that Parliament were sovereign. He suggests that the UK constitution has not changed yet the three devolved nations have been changed by devolution.[5] Hadfield then develops on this concept and stated that “Devolution shows how much change is possible and how little is likely for as long as the government dominates a sovereign Parliament.”[6] 

Overall, it can be reasonably be drawn to the conclusion that although in theory Parliament remain sovereign, in reality there are limitations that are in place due to devolution. There are various arguments that devolution has in fact honoured the traditional view that Parliament are sovereign as seen in the Royal Commission Report whereby it states that Parliament can legislate on any matter. However, when looking at the underlying facts, it is also apparent that devolution imposes limitations on Parliament. This is evident through the fact that Parliament has to take into consideration the perspectives of the region. But surely Parliament can pass any law at any time? In relation to this, it can be argued that in some sense there is an ‘unspoken’ rule that Parliament are not to legislate on devolved matters. This clearly illustrates that devolution has placed some limitation of the sovereignty of Parliament as it restricts certain powers Parliament has. To sum up this argument, it is reasonable to state that devolution has both honoured and limited the sovereignty of Parliament.

Bibliography

• V. Bogdanor, Devolution in the United Kingdom (Oxford: Oxford University Press, 2001), pp 2-3
•  A.V. Dicey, Introduction to the Study of the Law of the Constitution
•  D. Feldman, ‘None, one or several: perspectives on the UK’s constitution(s)’ (2005) 64 Cambridge
• Law Journal 329
•  B. Hadfield, ‘Devolution and the changing constitution: devolution in Wales and the unanswered English question’, in J, Jowell and D. Oliver (eds) University Press, 2007), pp 271-92, at 291-2
• Complete Public Law: Text. Cases, and Materials (4^th edn) pp.287, Lisa Webley and Harriet Samuels
•  Royal Commission on the Constitution 1969 – 73. Report; vol.1 (cm 54 60, London; HMS0, 1973.) pp.234-5

[1] Complete Public Law: Text. Cases, and Materials (4^th edn) pp.287, Lisa Webley and Harriet Samuels

[2] V. Bogdanor, Devolution in the United Kingdom (Oxford: Oxford University Press, 2001), pp 2-3

[3] Royal Commission on the Constitution 1969 – 73. Report; vol.1 (cm 54 60, London; HMS0, 1973.) pp.234-5

[4] A.V. Dicey, Introduction to the Study of the Law of the Constitution

[5] D. Feldman, ‘None, one or several: perspectives on the UK’s constitution(s)’ (2005) 64 Cambridge Law Journal 329

[6] B. Hadfield, ‘Devolution and the changing constitution: devolution in Wales and the unanswered English question’, in J, Jowell and D. Oliver (eds) University Press, 2007), pp 271-92, at 291-2