Regaining Sovereignty? Brexit and the UK Parliament

University of Karachi , 2023

The article aims to discuss some British parliamentary issues that are directly link with the democratic values, power distribution, limitations, overlapping of national laws with the EU laws before Brexit, and restoration of state sovereignty in the post-Brexit UK. Parliamentary Sovereignty is a doctrine where the parliament wields absolute power and can therefore make and unmake laws. Many scholars argue that the doctrine is the central principle in the UK but by weighing its advantages and its disadvantages, one may assume that it can no longer be regarded as the central element of the constitution. The issue of common law radicalism can also be seen as a limitation to parliamentary sovereignty. The paper also discuss some legal issues of translating Parliamentary Acts by courts and judges. Simultaneously an act count valid on certain circumstances but not applicable when it conflicts with other status.

This dissertation examines the erosion of parliamentary sovereignty in the United Kingdom arising from its membership to the European Union. Important issues with regard to the sovereignty of parliament in Britain will be considered, including how its membership of the EU has affected it in a negative way or benefited the country whether it is economically or socially. Part one will consider the history of Parliament in the UK both before and after Britain’s integration to the EU and both before and after the enactment of the European Communities Act 1972.

Hassan I Ahmed, 2015

The dissertation attempts to assess critically assess the problem of conflicts between the supremacy of European Union law in relation to national Parliamentary sovereignty from a broadly traditional, historical, legal and political perspective. The classical Decay principle of the Westminster Parliamentary Supremacy is challenged with the doctrine of the supremacy of European Union law. European Union law constitutes legislative provisions of EU ‘Treaties and Initiatives’ and enforces series of rights and obligations upon its European Member States’ national judiciaries. Britain’s Parliamentary sovereignty is a highly controversial and vital notion, being a supreme and legitimate source of public power. However, under present-day conditions, the Parliament has an obligation to continue implementing the general commitments to European Integration as formally expressed in the European Communities Act 1972, which serves as a fundamental foundation and condition for the supremacy of European Union law. Such enforcement reaffirms the notion that European law is seen as having a major impact on Westminster Parliamentary sovereignty. The aim of this paper is to critically assess whether Britain’s Parliament can truly be considered the supreme legal authority in the United Kingdom. This includes an examination of the primacy of European Union law, how it takes precedence over UK’s national law, what constitutes the supremacy of the European Union law, and finally, how the conservative government’s plan to hold an ‘in or out’ referendum from EU membership by 2017 would work towards reintroducing the supremacy of power from Brussels back to Westminster in order to restore UK’s Parliamentary sovereignty

SUSS Working Paper, 2021

The primary obstacle to acceptance by the UK of the primacy of EU law is the constitutional principle of parliamentary sovereignty. It is not the aim of this paper to explore why such a conflict arises. Instead, this paper argues that the failure with the doctrine of primacy acquiescing with parliamentary sovereignty is in a lack of recognition that the two doctrines have evolved with the passage of time. This paper explores selected developments in national identity, fundamental rights and the economic frontiers of EU law. The issue is how such a conflict should have been reinterpreted in order to establish a mutual acquiescence between the two doctrines, paying particular attention to the external and internal pressures affecting primacy of EU law as well as the constitutional developments reshaping parliamentary sovereignty. The solution would have been to accept and apply the principle of mutual respect and communication, accepting that conflicts are inevitable, instead of dabbling in political euphemisms and nationalistic pride, which would have perhaps worked towards averting an ill-timed Brexit.

2019

This paper argues that theories of British Parliamentary sovereignty that build on Dicey's analysis are inadequate in dealing with the challenges posed by the UK's former membership of the European Union and the outcome of the 2016 referendum. Sovereignty in the British constitution is better understood according to Loughlin's theory as a relational phenomenon based on constituent power as the British constitution is re-understood in the aftermath of Brexit.

This paper argues that parliamentary sovereignty’s assimilation of constituent power—the ultimate power in a legal order to create and posit a constitution— has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the UK currently faces. By conceptualising a more antagonistic relation between the Crown in Parliament and ‘the People’ by questioning the democratic credentials of the former, this paper contends that the UK constitutional order can be re-invigorated. This re-appraisal, however, also requires the interrogation of the notion of ‘the People’ in the UK constitutional order itself. Part I argues that despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in ‘crisis’ in search of a paradigmatic revolution. A descriptive—as distinct from normative—account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and ‘the people’. Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much what the idea of constituent power does. However, this does not mean that constituent power is vested in ‘the people’; rather, the locus of constituent power in the UK should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and ‘the People’.

The Brexit referendum highlights the apparently anomalous role of the “people” in the constitutional order of the United Kingdom. Politically speaking, its verdict is acknowledged as unassailable and unaccountable, yet this “sovereign” status has no legal grounds. In turn, some commentators have argued that this discrepancy between “political” and “legal” understandings of popular sovereignty – or the failure to properly institutionalise popular sovereignty in a legal-constitutional form – represents a distinct site of constitutional crisis in its own right. However, I argue that such claims of constitutional anomaly, or of British exceptionalism in this regard, are misplaced. While the Brexit scenario seems to express the destabilising and disruptive potential of a popular sovereign that exceeds or evades constitutional recognition, this is in no sense a peculiarity of the British constitutional order. By its nature, popular sovereignty is inexhaustible by constitutional recognition, and so it tends to retain such disruptive potential regardless of whatever constitutional form it is assigned. Thus critics of the British constitutional status quo overestimate the capacity of constitutional law in general to regulate or domesticate the expression of popular sovereignty via referendums.

ryed@hope.ac.uk @dannyrye The first clause of Article 50 of the Lisbon Treaty states: " Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. " But as has become apparent, in the case of the UK, nobody really knows what those requirements actually are and a significant amount of energy has been consumed over the last two years in disputes over what the respective roles, responsibilities and powers of Parliament and the executive are, what the precise status of the referendum is and who, if anyone, is responsible for interpreting it. The Miller case exposed confusion and uncertainty even over who had the power to begin the process. There is no clear constitutional guidance, either, on how or by whom it should be executed, scrutinised or concluded and, crucially, how and by whom the outcomes should be approved or legitimised. This messiness reflects the UK's famously uncodified constitution, which means its basic rules are not systematically laid out in a single, document which governs the relationships of key elements of the political system. This means that the UK constitution is very flexible which has served it well in some respects, not least in adapting to European Union membership. But it means, above all, that the constitution is political. Above all, sovereignty and power in the British constitution has not been a matter for the courts, as in many codified systems, but has rather been established and maintained by political struggle, which is why the resolution of the question of who should trigger Article 50 by the courts is somewhat problematic in the UK context. A key principle of the British constitution is the notion of 'parliamentary sovereignty' – that Parliament has the sole right to make or unmake law in its territory. For many Eurosceptics, it is this that made the British system incompatible with EU membership, which (as confirmed by the Factortame Case in 1991) instituted a higher body of law over that of statute. But this was merely a qualification of Parliamentary sovereignty, and one which Parliament imposed upon itself and (as Brexit perhaps proves) can also remove. However, even if that qualification is eventually removed, there are, unfortunately for Parliamentary Sovereignty enthusiasts, many more than that. Significant constitutional changes made under the Blair and Brown governments (including devolution and the creation of a Supreme Court), as well as Cameron's (including fixed term parliaments, the creation of regional mayors and English Votes for English Laws), whilst by no means part of any strategic masterplan, have also de facto altered Parliamentary sovereignty. In some respects it has been strengthened – the Prime Minister no longer has the power to dissolve Parliament against its will. In other respects, it has weakened: it has lost control over key areas of domestic policy, including personal taxation, to the Scottish Parliament and the Welsh Assembly. One of the more significant changes in recent years, it turns out, has been the use of referendums to endorse or reject many such reform proposals. It means that, as Vernon Bogdanor has pointed out that a 'new principle … of the sovereignty of the people' has entered into the British constitution (Bogdanor 2016, 314).