L22. Parliamentary Sovereignty and Brexit PDF

Preview

Summary

L22. Parliamentary Sovereignty and BrexitWhat is Brexit?Brexit was the decision for the UK to exit the EU. The UK’s membership of the EU took place through the ECA 1972, however this led to major constitutional cases such as Factortame, which the courts had to grapple with the consequences due to th...

Description

L22. Parliamentary Sovereignty and Brexit What is Brexit? Brexit was the decision for the UK to exit the EU. The UK’s membership of the EU took place through the ECA 1972, however this led to major constitutional cases such as Factortame, which the courts had to grapple with the consequences due to the impact of the EU membership and in particular, the supremacy of the EU law on parliamentary sovereignty. However, in 2015 Parliament enacted legislation after David Cameron was re-elected prime-minister. ⁃ European Union Referendum Act 2015 Parliament enacted legislation to hold a referendum on an in-out referendum on our membership of the EU. ⁃ In other words, should we remain in the EU or should we leave? The referendum was then held under this Act and was held in 2016. There was a very clear and distinct vote for leave. ⁃ There was a 52% vote to leave the EU. However, the UK leaving the EU left some constitutional question about the impact on PS: 1. Was it a restoration of ‘sovereignty’? 2. What was the impact on Parliament?

(1) Was it a restoration of ‘sovereignty’? The EU membership had interfered with the sovereignty of the UK Parliament, and so this was a lead argument for campaigners who were in favour of exiting the EU. They wanted to take back control of their money, laws and borders. ⁃ The EU were making laws for over 40 years for the UK and this was interfering with the sovereignty of the UK Parliament to make laws. • ‘At the heart of that historic decision was sovereignty, after Brexit the UK Parliament will unquestionably be sovereign again’. ~David Davis (Secretary of State for exiting EU) 2017 • ‘Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.’ ~Brexit White Paper 2017 ⁃ This quote captures that parliament was still sovereign but it didn’t feel like they were sovereign. So the process of delivering EU exit also raises question about our understanding of Parliament and the impact of Brexit on PS. ⁃ Statutes (Acts of Parliament) have played a critical role in structuring, delivering and creating the powers under which the Brexit process has been conducted.

⁃ Before we could exit the EU, there was a period of negotiations, a 2 year plus period of negotiations about how the UK would exit and try to come to an exit deal or withdrawal agreement. This was started by a statute, the EU Notification of Withdrawal Act 2017. ⁃ After that, while the negotiations were going on, we had the EU Withdrawal Act 2018 enacted, and this was designed to prepare the UK’s legal system for the exit of the EU law, and this is the statute which repeals the European Communities Act 1972, which is the Act which took us into the EU and made EU law part of the UK legal system. ⁃ We also notice further legislation where the EU Withdrawal Agreement Act 2020 was enacted after the negotiations had been concluded, and a deal for our exit had been reached. It is clear to see through the different Acts of Parliament that Parliament has therefore been at the centre of the process of delivering Brexit and the process of UK’s exit from the EU. ⁃ Parliament was involved at the beginning of negotiations, during the repeal of the ECA and during the withdrawal agreement of leaving the EU.

What does this process tell us about PS and how does it impact Parliament?? There are 4 main impacts on PS: ⁃ Role of Courts ⁃ Limited Preservation of EU Supremacy ⁃ Delegating Law-Making Power ⁃ Status of the Referendum

Impact on Parliament • Role Of Courts The legislation held by Parliament to authorise the beginning of negotiations to exit the EU was advised by the courts. The courts told Parliament that they had to do this, and this is shown in the famous case of Miller (2017). ⁃ In the case of Miller 2017, Gina Miller and other people challenged the government, and argued that the government couldn’t, under the royal prerogative, begin with negotiations with the EU as part of the foreign affairs power which the prerogative covers. In fact, they could only do it if Parliament authorised the Prime Minister to begin those exit negotiations. ⁃ It was then questioned whether the government can begin negotiating their exit from the EU using the Royal Prerogative power to conduct foreign affairs, or is a new Act of Parliament needed because the impact on the constitution of withdrawing from the EU will be so significant. ⁃ So the government’s original plan was that they could just negotiate this exit under the foreign affairs power under the RP, but actually the UK Supreme Court reached the alternative conclusion.

⁃ They said a majority of the 11 judges who heard the case, 8 of them said no, Parliament must authorise this specifically and we cannot use the RP in these circumstances. • Supremacy preserved Even though the UK have left the EU, it has been said by some of the leave campaigners that even though we are out of the EU, the supremacy of EU law has been preserved even after Brexit. ⁃ Even though we have left the EU, it is impossible to completely cut off all of the EU laws from the legal system. It would change a lot of areas of law such as employment law, competition law, environmental regulations etc. ⁃ The government and parliament had to try and work out what laws they must keep and which laws they can get rid of it. As a result, they created a scheme which is called Retained EU Law. ⁃ So some EU law will be retained in our legal system even after Brexit. That EU law will still have supremacy over non retained EU law for a considerable period of time. ⁃ As a result, this protects the right of EU citizens in the UK as it consists of supremacy. ⁃ The Separation Agreement Law also has supremacy in the UK’s domestic system. ⁃ So even though we have left the EU, we haven’t entirely abandoned the idea of the supremacy of certain bodies of rules which are connected with the EU. ⁃ However, if parliament created new domestic laws, they are able to replace this with the EU laws. • Role of CJEU limited On the other hand, even though supremacy is retained, the of the CJEU has been made much more limited. The CJEU ensure that EU laws are complied with, as evident in the case of Factortame, however due to Brexit this is now more limited in the UK. ⁃ The courts in the UK will not be bound by any decisions of the CJEU after exit, so the UK courts can decide for themselves, what they think retained EU laws mean. ⁃ Furthermore, higher courts (Supreme Court) in the UK will be able to overrule previous decisions of the CJEU as they apply in the UK. ⁃ This doesn’t change EU law but it will change our version of retained EU Law So how important will CJEU continue to be? The CJEU has not been eliminated entirely, but it is much more limited now. • Delegated law-making power in EU EU Withdrawal Act 2018 There are loads of legal changes which need to be made to our law and to retain the EU law (the laws which we are keeping as we leave the EU). This is

a lot of legislations and is too much legislation for parliament to do on its own. ⁃ So often what happens when this technical detailed lawmaking on a mass scale is required is, the parliament delegates in its primary legislation. ⁃ It delegates in an Act of Parliament the power to the government and to officials to make the more detailed changes to the law. ⁃ This is called delegated lawmaking. ⁃ It is lawmaking powers being delegated to the government, and this has happened in the EU Withdrawal Act. Has Parliament taken back its sovereignty and given it to the Government in order to make detailed changes to the UK’s law rather than Parliament using its sovereignty itself? ⁃ On one hand you may argue that this is just a necessity as Parliament cannot do all of this on its own and it needs the help of the government. ⁃ Parliament is just 650 MPs in the HL, whereas the government has thousands of civil servants who can do all this detailed work on its behalf.

Whatever the impact on Parliament, formal reaffirmation of PS Through this process of lawmaking to deliver Brexit, Parliament in the EU Withdrawal Agreement Act 2020 has actually legislated to confirm and re-recognise Parliamentary Sovereignty in Section 38 of that Act. Section 38 Parliamentary Sovereignty: (1) It is recognised that the parliament of the United Kingdom is sovereign (2) In particular, its sovereignty subsists notwithstanding (a) directly applicable or directly effective EU law continuing to be recognised and available in domestic law by virtue of section 1A or 1B of the European Union (Withdrawal) Act 2018 (savings of existing law for the implementation period), (b) section 7A of that Act (other directly applicable or directly effective aspects of the withdrawal agreement) … (3)Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.

Conclusion So to conclude: ⁃ End of special status of EU law (with exceptions to retained law which consists of some supremacy) ⁃ Parliament central to the process of Brexit through Acts of Parliaments (but along with others such as gov and courts) ⁃ Impact of EU membership will have a legacy for out understanding of PS in context of other ‘challenges’....