UK Parliament or Executive: which is the more important?

“They didn’t end well, and in 1653 Oliver Cromwell became Lord Protector with Army officers reasserting the dual Executive/Legislature idea of sovereignty, declaring (in, perhaps, England’s first written constitution, the Instrument of Government):

“1. The supreme legislative authority of the Commonwealth of England, Scotland, Ireland and the dominions thereunto belonging shall be and reside in one person, and the people assembled in Parliament; the style [official name] of which person shall be Lord Protector of the Commonwealth of England, Scotland and Ireland.”

This reiterates the Tudor belief that “all the people” resided in Parliament. The words “the people assembled in Parliament” doesn’t mean “the odd bods whom we term members of parliament and who turn up to vote” but “the people” in aggregate who are deemed to be in Parliament and voting en masse.

This gives the lie to the idea so airily asserted by Rees Mogg and Starkey that there is some separate sovereignty residing in the people. Britain never had the revolution that successfully maintained that claim in any constitutional sense.”

Thinking legally

The recent Brexit-related goings-on in the UK Parliament seem, in some minds at least, to have thrown up a crucial question: is Britain’s “sovereign” Parliament as important – or as sovereign – as we assume? There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’ prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding…

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