PARLIAMENTARY SOVEREIGNTY FOLLOWING BREXIT
In 2016 the citizens of the United Kingdom (U.K.) and Gibraltar voted to exit the European Union (E.U.). The Brexiters won by a small margin gaining 52 percent of the votes. Regardless, the British government had a mandate to ensure the nation leaves the European Union. Supporters of Brexit referred to lost parliamentary sovereignty among the core reasons the U.K. should leave the E.U. According to Brexiters, UK’s parliamentary sovereignty could not be restored unless the nation parts away from the E.U. The concept of parliamentary sovereignty is a critical concern that requires careful analysis to identify any false claims surrounding it (Ewing, 2017). The win by supporters of Brexit was unexpected, leading to more constitutional concerns than it resolves. These concerns still surround the concept of sovereignty.
The ideology that the British parliament is defenseless since it lost its powers to the E.U. was a trending topic before the referendum. Parliamentary sovereignty is, however, a vague concept which, according to U.K.’s parliamentary website, is described as identifying U.K.’s parliament as the nation’s supreme legal authority with the power to come up with new laws or end them. Parliamentary sovereignty would mean any legislation by the parliament cannot be overruled by any courts (Ewing, 2017). Such control allows future parliaments to pass laws that change the legislation by previous parliaments. Whilst it is challenging to breakdown what absolute parliamentary sovereignty should become, a substantial population of Brexit supporters claims that the principle motive that drove them to vote for exiting Europe is to see decisions regarding the U.K. being made in the U.K.
It is important to understand the extent to which parliamentary sovereignty was stolen by joining the E.U. Since the U.K.’s first application to be part of the E.U. in 1961 and the subsequent enactment of the European Communities Act in 1972; parliamentary sovereignty has been a subject of hot debate. The decision by the House of Lords in Factortame in 1991 forms part of the reasons why the debate sparks passion (Ringeisen-Biardeaud, 2017). It marks a key moment that clarified that laws created by U.K.’s parliament could be superseded by European legislation. Additionally, prior to Factortame, the European Court of Justice (ECJ) had already made a ruling that any national law is not to be considered if it is realized it does not integrate with community law in the 1964 case of Costa v Enel. The aforementioned are instances that evidently show the change in sovereignty from the U.K.’s parliament and courts to European Institutions and courts.
Besides, several local decisions and parliament acts have contributed to how U.K. citizens perceive national sovereignty. The 2002 case of Thoburn v Sunderland City Council is referred to as the “metric martyr” case (Ringeisen-Biardeaud, 2017). This is because it is based on a concept that makes a market trader a violator of directives by the European court for using pounds instead of kilograms when weighing their produce. Hence it makes the market trader a martyr of an absurd European law. In the case, Mr. Justice Laws ruled that several legislations and charters including the European Communities Act of 1972, the Magna Carta, the Bill of Rights, the Scotland Act of 1988 as well as the Human Rights Act 1998, were to be assigned a special status within the English constitution. However, this additional protection did not guarantee parliament’s absolute power to revoke any section of the European law, and such revokes were required to be stated expressively and could not be implied. Notably, classical British views, as well as that of a substantial current majority, points out that they believe the European legislature is prioritized over the national laws to only the extents that the parliament permits.
Resultantly, in a 2014 case involving HS2 Action Alliance Ltd v Secretary of State for Transport, the nation’s Supreme Court’s opinion was considered regarding the amount of credit and influence that European legislation receives in the event that conflict arises with key U.K. constitutional ethics. This case pertains intentions to hinder a projected high speed rail network. Complainants suggested that the courts require to scrutinize if parliamentary talks had sufficiently accounted for the high levels of scrutiny put in place for such projects by the E.U. Environmental Impact Directive. The issue concerning courts being granted the authority to scrutinize parliamentary proceedings through E.U. law directly violates Section 9 of the Bill of Rights 1689 (Ringeisen-Biardeaud, 2017). British’s Supreme Court concluded that as much as in that specific case, the directive would need anything that would breach the Bill of Rights, in case an event like that happens, British constitutional principles will be upheld.
Brexiters perceive sovereignty as something that a nation enjoys fully or lacks it at all, and hence it cannot be divided nor shared. However, supporters of the U.K. remaining in the E.U. view sovereignty as something that countries gain by pooling to create a collective market. The collaboration enhances regulations which is more beneficial to standing alone. Additionally, various scholars disagree on perceiving the Brexit referendum as a democratic exercise. Such scholars assert that the sovereignty subject was sold to appeal the public yet it is based on promises which are practically undeliverable. The Brexit referendum could potentially expose the divide between direct and representative democracy. The scholars claim that “Brexit could end up being a lot more damaging to parliamentary sovereignty and the domestic constitutional order than the external influences of E.U. law may ever have been” (Ringeisen-Biardeaud, 2017). Therefore, the above insight is a clear indicator of how the U.K.’s sovereignty might eventually worsen if Brexit prevails.
The U.K.’s decision to leave the E.U. also creates challenges involving the institution that will initiate the country’s withdrawal from the E.U. The inclusion of Article 50 into the European treaties through the Lisbon treaty of 2009 is meant to guide in such a process. The article which has never been used since its enactment remains a vague device to kick-start the process of exiting the European Union. In particular, Article 50 lacks anything that suggests the recommendable course of action that will kick-start such a withdrawal. A majority of scholars side with the fact that Article 50 ought to be triggered so as to start the exit process. Other scholars however suggest that revoking the European Communities Act is enough and is an effective way for the parliament to show its sovereignty. By acting individually early-on after the Brexit referendum, it will show the U.K.’s government attitude in demonstrating strong parliamentary sovereignty with the capacity to govern all things. This includes the U.K.’s partnerships with other nations and the government’s capacity to singly ignore its treaty obligations. On the other hand, such an act would be suggesting something lawless (Dahrendorf Forum Proceedings, 2018). It demonstrates to the globe that the U.K. no longer observes the policies outlined in terms of international treaties. Resultantly no nation would rely on the U.K. to uphold its international obligation. The U.K.’s challenges in self-dominance hence begin in initiating the country’s withdrawal from the E.U. in that it is controversial what institution is responsible for kick-starting Article 50 and whether the U.K. has the authority to ignore European Communities Act altogether.
According to the U.K.’s constitution, the country’s withdrawal from E.U. leads to several questions besides the parliament’s capacity to have its claim over the Brexit process. Parliamentary sovereignty leads to an efficient government as Parliament may pass laws unhindered on any subject as long as majority votes are retained. However, parliament does not have the capacity to tie its successors. This means that policies can be changed to fit changing needs.
Withdrawing from the E.U. presents a trade-off between an efficient government and its capacity to lock in desired commitments. The U.K. will experience challenges in different areas like finding ways of locking in guarantees on citizens’ rights where the judicial role for the Court of Justice of the E.U. is absent. Additionally, parliamentary scrutiny of E.U. policies and priorities is essential following Brexit (Dahrendorf Forum Proceedings, 2018). E.U. legislation will still play a crucial role in British policymaking. As much as the institutional form of such an oversight relies on the future relationship, upholding a balanced range of partisan opinions will be necessary whatsoever.
Following the U.K.’s withdrawal from the E.U., the country’s government participation in horizontal and vertical cooperation within the E.U. remains uncertain. The cooperation takes place through the Conference of Parliamentary Committees for Union Affairs of Parliaments in the E.U. (COSAC), whose role in the E.U. decision making process is recognized. COSAC has semiannual meetings which are essential to the participants (Ewing, 2017). The U.K. representatives are especially considered important for their expertise by the other states. For countries whose status is not straightforward they are required to send a request letter to participate before each meeting and is only accepted after COSAC’s approval. It is uncertain whether the U.K. will be granted the same position after Brexit. It relies on personal contacts and informal norms and, in most cases, discuss only observer status.
In summary, Brexit will have a strong impact on parliament’s role in the British constitution, the parliamentary sovereignty as well as the British citizens. Uncertainty lingers ahead as the precise nature of the withdrawal agreement is still vague. However, what is clear is the need for the U.K.’s parliament to remain in the formulation of European legislatures actively. As much as the U.K. is withdrawing from the union, its scrutiny of E.U. policies is necessary. If Brexit aims to achieve parliamentary sovereignty, the parliament’s role must then be respected during the withdrawal process.
Bibliography
Dahrendorf Forum Proceedings, 2018. Brexit and the Power of Parliament. [Online]
Available at: http://www.lse.ac.uk/ideas/Assets/Documents/Dahrendorf/Power-of-Parliament.pdf
[Accessed 01 May 2019].
Ewing, K., 2017. Brexit and Parliamentary Sovereignty, s.l.: The Modern Law Review.
Ringeisen-Biardeaud, J., 2017. “Let’s take back control”: Brexit and the Debate on Sovereignty. French Journal of British Studies, 22(2).