Scotland’s challenge to parliamentary sovereignty: can Westminster abolish the Scottish Parliament unilaterally?

K Law (General);KDC Scotland

Spiers, Peter ; Adam, Tomkins

University:University of Glasgow

Department:School of Law

关键词: Constitutional law, political constitutionalism, legal constitutionalism, parliamentary sovereignty;   

Others  :  http://theses.gla.ac.uk/6663/1/2015SpeirsLLM%28R%29.pdf

来源: University of Glasgow

【 摘 要 】

The question of the contemporary status of parliamentary sovereignty is a significant and vexed one. The doctrine’s status in Scotland has been a vexed academic issue for centuries. It has been further problematized by the inception of the Scottish Parliament and the recent Scottish Independence Referendum. The central question of this work is: can Westminster abolish the Scottish Parliament unilaterally? This issue will be explored in five parts. The first section will consist of a broad discussion of sovereignty, focusing on the classical debates regarding Westminster’s sovereignty and the question of whether Scotland possessed a distinct tradition of popular sovereignty prior to entering the Union. The work will then examine the events of the 1980s and 1990s and argue that it represented a constitutional step change in Scotland. The work will then explore the constitutional and political meaning of referendums, before the theories of constitutional unsettlement and constitutional moments.The central contention of this work is that, whilst a distinctly Scottish approach to sovereignty did not exist until the 1990s, the political rupture created by the Conservative government of the 1980s and 1990s acted as a constitutional moment, crystalized in the 1997 Referendum on Devolution, which politically entrenched the Scottish Parliament’s status in the Scottish and British constitutional orders. The 2014 Referendum confirmed the political necessity for recourse to popular sovereignty on profound constitutional issues. This, however, has not been reflected in law. Westminster retains the theoretical capacity to abolish the Scottish Parliament. In reality, this is an almost meaningless power, but the power cannot be removed without destroying parliamentary sovereignty itself. The state of constitutional unsettlement that the United Kingdom continues to exist in means that there is little hope for formal settlement of this issue, even taking into account the impending legislative confirmation of the Scottish Parliament’s political permanence.