Giving Substance to Sovereignty: Parliamentary Sovereignty and Parliamentary Effectiveness

McHarg, Aileen

Abstract

In its celebrated prorogation judgment, the Supreme Court made novel and controversial use of the principle of parliamentary sovereignty to hold that Parliament could not lawfully be impeded in the exercise of its legislative function without reasonable justification. In this chapter, I contend that this decision forms part of a developing line of Supreme Court cases which treat sovereignty as a substantive rather than purely formal principle, concerned, in various ways, with the effectiveness, and not merely the authority, of Parliament’s legislative role. I argue that these cases not only represent a departure from constitutional orthodoxy, but also have the potential to undermine, as well as to enhance, Parliament’s legislative authority. While the potential ramifications of this developing doctrine of Parliamentary effectiveness are currently unclear, I nevertheless suggest that there are reasons to be concerned about its constitutional implications.

Citation

McHarg, A. (2021). Giving Substance to Sovereignty: Parliamentary Sovereignty and Parliamentary Effectiveness. In B. Dickson, & C. McCormick (Eds.), The Judicial Mind: A Festschrift for Lord Kerr of Tonaghmore. Bloomsbury

• Online Publication Date: Dec 2, 2021
• Publication Date: 2021
• Deposit Date: Jan 20, 2022
• Publicly Available Date: Jun 2, 2022
• Publisher: Bloomsbury
• Book Title: The Judicial Mind: A Festschrift for Lord Kerr of Tonaghmore
• ISBN: 9781509944781
• Public URL: https://durham-repository.worktribe.com/output/1646191
• Publisher URL: https://www.bloomsbury.com/uk/judicial-mind-9781509944781/