The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from Theresa May and her flailing Government.
In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).
One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition to Theresa May’s Brexit deal – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government).
But generally in the great debate on May’s Brexit deal, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.
For example, hitherto one would assume that, constitutionally, MPs certainly couldn’t meet together and decide for themselves the form of Brexit they wanted – or if they did, they would have no special powers to issue legislation to ensure it did so transpire. Yet, one of the options discussed by certain soft- and anti-Brexiters was just such a plan if Theresa May’s deal fell: give the matter over to the Liaison Committee, which normally has a minor advisory role, to draft and bring forward legislation that might command support of a majority in Parliament. The Daily Mail described this as: “tearing up the Commons rule book – giving backbench MPs the power to propose legislation instead of the Government”.