Effect of Brexit on Parliamentary Sovereignty

Introduction:

As Great Britain prepares to leave the EU, it’s been indicated that Parliamentary Sovereignty will be restored as the UK will not be bound by EU laws anymore. While Parliament will regain authority, the Orthodox standard of Parliamentary Sovereignty will not be restored. In this paper, I will discuss the continuous growth in the common law as well as the rise in powers of the judiciary in the United Kingdom.

Dicey and a history of Orthodox Parliamentary Sovereignty:

In 1610, Chief justice Coke in Dr. Bonham’s case said that, “it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometime adjudge them to be utterly void: for when an Act of Parliament is against common right or reasons, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.”^[1]Then in Day v Savadge, Chief Justice Hobert stated only five years later that, “even an Act of Parliament, made against natural equity, as to make a man judge in his own case, is void in itself, for jura naturae sunt immutabilia, and they are leges legum”.^[2] This supported the argument that indeed people strongly did believe that the government’s control was limited by a sort of ‘divine” or “natural” law which was based on moral principles which were to be upheld by the courts; out of reach of Parliament.

Then in 1688 the “glorious revolution” took place and the way things had been done changed. The idea of natural law doctrines were disregarded; becoming unrecognized and Parliamentary supremacy was established.^[3] By 1689, the Bill of Rights was established which created a new political contract between the Monarchy and Parliament. Parliament became the ‘highest form of law’ known to the English Constitution^[4] as the courts bowed to the sovereignty of Parliament and this bill limited the power of the Monarchy.

The idea of natural law doctrines was replaced by absolute sovereignty of Parliament and in 1885, Albert Dicey then came up with three traits which are known as Orthodox Parliamentary Sovereignty. The first is that there is no law which Parliament cannot change. The second is that there is no distinction between laws which are constitutional or ordinary. The third is that there is no person or body that can pronounce an Act of Parliament as void.^[5]

Parliamentary Sovereignty and the Constitution:

The UK is set apart from other countries in that it has made Parliament the supreme legal authority; this is known as Parliamentary Sovereignty. Parliament, according to Albert Dicey, ‘has under the English constitution the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament’.^[6]While the majority of other countries around the world have a single legal document that outlines how the state should function and sets out the fundamental laws of their country, the UK does not. There is no codified or written constitution; only Parliamentary Sovereignty which has been put in place as a founding principle of the UK constitution. As a result of the absence of a written constitution and codified laws, the functioning of Parliament and the UK constitution have gone through a great deal of change throughout history which was majorly noticed when the UK joined the European Union.

The Courts and the Orthodoxy Constitutional Theory:

The courts, specifically judges are given the heavy responsibility to protect the rights of UK citizens, to make sure values in statutes are respected and to interpret UK law. It is also their responsibility to challenge statutes that don’t align with the rule of law which is a principle that demands human rights are protected. This specifically is noted in Entick v Carrington^[7] when  common law courts set a precedent of legality, making it clear that government officials weren’t allowed to use public authority unless it had legal basis for it based from a certain rule of law. The European Convention on Human Rights is what gives protection to these human rights in the UK currently. It must be noted that there isn’t a requirement to have direct effect under it unlike EU law though which means the Orthodox Parliamentary Sovereignty is not affected^[8] in this area. Adding to the ECHR, the Human Rights Act 1998 incorporated new ways for rights to be enforced into the UK’s domestic courts^[9]which has impacted the UK positively. The UK courts have play a significant role in enforcing the rule of law and values of their constitution as noted by Lord Hope in R (Jackson and ors) v Attorney General when he statedthat “the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based”.^[10]

However, things weren’t always the way they are now and the courts didn’t always have such authority despite the rule of law being upheld as a major part of the UK’s constitution. In Pickin v British Railways Board, the House of Lords made clear that the court should not concern itself with how Parliament carries out its functions as the court’s role is to apply the enactments of Parliament.^[11]The enrolled Bill rule was echoed in this case as it states no court may inquire such things. In the Orthodox constitutional theory, the courts’ allegiance is not to the people, nor to a supra-legislative constitution, but simply to the will of Parliament as expressed in the words of a statute.^[12] However, this way of doing things slowly began to change and the UK slowly grew away from the Orthodoxy constitutional theory. The judiciary’s role began to change as they began to question Parliament’s power; reducing Parliament’s supremacy and questioning the validity of statutes. They gained an important role of protecting human rights in the United Kingdom as international law was adhered to and as a result of the UK’s choices, common law constitutionalism changed as well the perception of Parliamentary Sovereignty into what it is today.

Joining the EU and New Limitations to Parliamentary Sovereignty:

Orthodox Parliamentary Sovereignty was notably different to that of European Law which made joining the EU controversial. Major changes would be brought forth if the UK became members of the EU. Some of these major changes included that Community law would prevail over Parliamentary law as well as over UK law.^[13] EU law would not allow UK legislation to be passed that was not compatible with EU law^[14] and by overruling domestic rule of law, immunity was provided to some constitutional institutions like Parliament^[15] under EU law. European Law went directly against the idea Orthodox Parliamentary Sovereignty as it limited Parliament’s power. Being aware of this, the UK still joined.

According to Lord Bridge of Harwich, whatever limitation of its sovereignty, Parliament accepted when it enacted the European Communities Act 1972 and it did this voluntarily.^[16] “He was explaining the political circumstances in which the courts were now obliged to make sense of Parliament’s various enactments”^[17] with this comment. European law was then accepted by the UK courts as superior as observed in the case of Factortame in which the House of Lords issued an interlocutory injunction displaying primary legislation^[18] and EU law was adhered to. As a result, limitations to Orthodox Parliamentary Sovereignty was put forth by joining the European Union and UK law changed.

 When the UK entered the European Union, the power of Parliament became limited by the doctrine of direct effect. This was established by the European Court of Justice who made clear before members joined that if Member States have a conflict, EU law prevails and national law must be put aside. This was seen in the case of Van Gend en Loos when Dutch customs authorities required an import tax be paid but Van Gend could rely on EU law to refuse to pay such a tax. It was stated that, “The European Court of Justice specifies that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights and the subjects of which comprise not only Member States but also their nationals. The Court concludes from this a fundamental principle: that of the direct effect of Community law”^[19].This was also seen in the Costa v ENEL case where judgment stated that “the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States, and which their courts are bound to apply.”^[20]

Parliamentary Sovereignty and Withdrawal From the European Union:

By leaving the European Union, the UK will remove a strong external source that limited Parliament’s supremacy when they joined the EU in 1972. However, it will also create legal limitations on itself at the same time by doing it though they will be able to change law by gaining ultimate power on the other hand. As it is currently, According to Tomkins, “if an act is passed that takes away power of future Parliament then the future Parliament will not be legislatively supreme”.^[21] And as stated in the Ellen Street Estates Ltd case by Maugham Lj, “legislature cannot…bind itself as to the form of subsequent legislation”.^[22]

As a result of leaving the EU, a great deal of change will take place to the structure of Parliament which is thought to be ‘continuing’ in regards to sovereignty currently and unable to bind its successors. By controlling the withdrawal process it can put forth its own legislation as change takes place. After Brexit, Parliament may have the power to bind its successors becoming self-embracing which is opposite of what it is currently under EU law today.

Throughout the years surrounding the UK’s exit from the EU, a heavy felt transition will take place. Many are unsure if EU law will continue to influence UK law after withdrawal but according to R (Miller) v Secretary of State for Exiting the European Union, for a transitional period of time this will be the case.^[23] On Brexit Day, the Great Repeal Bill, also coined the European Union Withdrawal Bill controversially will come into play. This Bill will repeal the ECA of 1972 but will also preserve much of EU law that is at force in the UK by converting directly effective EU law into UK law and preserving secondary legislation enacted under ECA.^[24] It will help to make this transition as smooth as possible.

That being said, notable changes will include that EU Law will no longer prevail over UK law, UK legislation will be able to be passed that is inconsistent with the ECC and finally, authoritative rule of Parliament will be restored as sovereign as discussed above. However, the Orthodox standard of Parliamentary Sovereignty won’t be fully restored as the nature of Parliamentary Sovereignty has changed a great deal since Dicey and can’t be argued to be to an Orthodox standard in the United Kingdom anymore.

Bibliography:

Allen, Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford 2013). p.149-150

Costa v ENEL (6/64) [1964] ECR 585

Dicey A, An Introduction to the Study of the Law of the Constitution (8th edn 1915). P. 37-39

Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 590

Entick v Carrington [1975] 19 St Tr 1029

Goldsworthy J, The Sovereignty of Parliament (1998)

Grace J, Key facts key cases: Constitutional & Administrative Law (Routledge 2016)

Home Office, Rights Brought Home: The Human Rights Bill [1997)

Loveland I, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (7TH edn 2014) p. 22, 27, 76

M. Elliott and S. Tierney, ‘The ‘Great Repeal Bill’ and Delegated Powers’, U.K. Const. L. Blog (7th Mar 2017) (available at https://ukconstitutionallaw.org/))

Merchant Shipping Act 1988, c. 12.

Oliver D and Drewry G, The Law and Parliament (1998)

O’Cinneide C, ‘Human Rights and The UK Constitution’ in Jeffrey Jowell and Dawn Oliver, The Changing Constitution (8th edn, OUP 2015)

Pickin v British Railways Board [1974] AC 765, 786-88

Thomas Bonham v College of Physicians [1610] 8 Co Rep 114a at 118a

Tomkins A, Public Law (oxford: Oxford University Press, 2003) p. 105

R (Factortame Ltd) v Secretary of State for Transport [1990] 2 AC 85 and [1991] 1 AC 603

R (Jackson and ors) v Attorney General [2005] UKHL 56

R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)

Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 at 12

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^[1] Thomas Bonham v College of Physicians [1610] 8 Co Rep 114a at 118a

^[2] Loveland I, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (7TH edn 2014) p. 22

^[3] Goldsworthy J, The Sovereignty of Parliament (1998)

^[4] Loveland I, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (7TH edn 2014) p. 27

^[5] Dicey A, An Introduction to the Study of the Law of the Constitution (8th edn 1915). P. 37-39

^[6] Ibid

^[7] Entick v Carrington [1975] 19 St Tr 1029

^[8] O’Cinneide C, ‘Human Rights and The UK Constitution’ in Jeffrey Jowell and Dawn Oliver, The Changing Constitution (8th edn, OUP 2015)

^[9] Home Office, Rights Brought Home: The Human Rights Bill [1997)

^[10] R (Jackson and ors) v Attorney General [2005] UKHL 56

^[11] Pickin v British Railways Board [1974] AC 765, 786-88

^[12] Loveland I, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (7TH edn 2014) p. 76

^[13] Oliver D and Drewry G, The Law and Parliament (1998)

^[14] Grace J, Key facts key cases: Constitutional & Administrative Law (Routledge 2016)

^[15] Oliver D and Drewry G, The Law and Parliament (1998)

^[16] R (Factortame Ltd) v Secretary of State for Transport [1990] 2 AC 85 and [1991] 1 AC 603

^[17] Allen, Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford 2013). p.149-150

^[18] Merchant Shipping Act 1988, c. 12.

^[19] Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 at 12

^[20] Costa v ENEL (6/64) [1964] ECR 585

^[21] Tomkins A, Public Law (oxford: Oxford University Press, 2003) p. 105

^[22] Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 585

^[23] R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)

^[24] M. Elliott and S. Tierney, ‘The ‘Great Repeal Bill’ and Delegated Powers’, U.K. Const. L. Blog (7th Mar 2017) (available at https://ukconstitutionallaw.org/))