Parliamentary Sovereignty and Brexit- effects PDF

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PS and Brexit- UK decided to leave EU- through referendum - EU Referendum Act 2015 - 52% to leave vs 48% to stay Was the decision to leave the EU a restoration of ‘sovereignty’ of P? What was the impact on P due to Brexit? Restoration of sovereignty - The leave campaign and ‘taking back control’ fro...

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PS and Brexit - UK decided to leave EU- through referendum - EU Referendum Act 2015 - 52% to leave vs 48% to stay 1. Was the decision to leave the EU a restoration of ‘sovereignty’ of P? 2. What was the impact on P due to Brexit? Restoration of sovereignty - The leave campaign and ‘taking back control’ from the EU where the EU interfered in their eyes with the UK PS - Theresa May- ‘supernational institutions as strong as those created by the EU sit very uneasily in relation to our political history and way of life’ - David Davis- ‘at the heart of that historic decision was sovereignty… the UK P will be unquestionably be sovereign again’ Gov said that once we leave the EU then sov will be restored and take back control from the EU. However this reflects misunderstanding between EU and PS: reconcile EU membership with PS - ‘whilst P had remained sov, throughout our membership of the EU, it has not always felt like that’ – Brexit White paper - If P was always sov, but what that meant had simply changes, what was there to restore- no problem needed to be resolved by leaving EU - P made EU law temporarily supreme Process of delivering EU exit and impact on PS: - P is at the centre of delivering Brexit through statute. There are a no of a of p statutes that are important for the process: - Withdrawal NEGOTIATIONS- to start leaving the EU- started by the EU (Notifications of Withdrawal) Act 2017 - ECA 1972 repealed by EU (Withdrawal) Act 2018 s.1 - UK decided that the effects of ECA 1972 would be saved until the end of the transition period by EU Withdrawal Agreement Act 2020 s.1- ready to leave the EU- what the UK constitutional landscape would look like without EU membership What does this process tell us about PS? - Role of courts - Limited preservation of EU supremacy

- Delegated law making power - Status of the referendum

1. Role of the courts in the Brexit process: - Courts required P to introduce leg that enabled the withdrawal notifications of the EU to begin - Miller 2017- could the gov use royal P power to conduct foreign affairs to leave EU or whether A of P is needed to start the process of negotiation and leaving the EU - Court found that P’s authorisation was needed to begin the process, not just P power - UK SC says that P is sov but it required diff things in this case for diff judges Majority- Miller 2017 - ‘bearing in mind this unique history and the constitutional principle of PS, it seems most improbable that 2 parties had the intention or expectation that ministers, constitutionally the junior partner in that exercise, could remove the graft (of EU law into domestic law) without formal appropriate sanction from the constitutionally senior partner in that exercise, P’ This means PS means that P must authorise the process of the beginning of the withdrawal. And P is the senior partner and governmental ministers are the junior partner Minority- ‘the 1972 act didn’t create statutory rights in the same sense as other statutes, but gave legal effect in the UK to a body of law non known as EU law… s.2(1) recognises that the rights arising under that body of law can be altered from time to time, as a result of changes to the treaties or to the laws made under the procedures laid down in the treaties without the necessity of a further a of P’ - This means P allows the EU law to change on a continuous basis under the act without having to change future statutes - This means the UK Scourt under minority didn’t need further leg since the beginning of the withdrawal process would in the same way allow the EU law to change in the UK- wouldn’t need futher leg

Is the court asserting the law for P- define what P should do and when it should do it or is it leg itself that determines the role of P e.g ECA doesn’t say P’s authorisation is needed to authorise negs- not required as law can change under continuous basis under the act Miller- UKSC tells P it has to act but did it need to act at the start of negs? Raises questions about what PS means: 1. PS means court assert a role for P OR 2. PS means leg determines the role 2. Temporary preservation on the supremacy of P - Supremacy of the EU law was preserved after Brexit and not removed as a lot of UK law is based on EU law- employment law and environmental law all have essence from EU law - Retained EU law after Brexit which means supremacy of EU law- EU Withdrawal Act 2018 s.5 - Separation agreement law- which has supremacy in the UK- Citizens rights and NI rules by EU (Withdrawal Agreement) Act 2020 s.5situations dealing with NI and republic and Ireland itself being a member of the EU - So how long is the legacy of EU law supremacy. Leg does limit the role of the court of justice of EU (CJEU) 3. Role of CJEU limited - Doesn’t give this court free rein as national domestic courts aren’t bound by CJEU decisions AFTER Brexit - Past decisions of the CJEU can be overruled by the UKSC - Under sep agreement law- citizens rights etc- CJEU can interpret EU law concepts and the UK courts can ask questions and make references to the courts for help with interpretation and explanation of EU concepts until the end of 2028 - Continuity of the rs between the UK and EU- allow EU interpretation of key concepts in the future 4. Delegated law making power in EU (Withdrawal) Act 2018 - P has authority to delegate power to the gov to make changes

- To make corrections to retained EU law on statute book to fix deficiencies- update and make the details on track- P delegates this power to gov executives - 622 brexit laws were made under gov under delegated powers by jan 2020 - Debate- what extent is delegated law making power- good or drawbacks - Good- P cannot make all these changes on its own and cant make corrections to EU law and fill deficiencies on own and needs help from gov and more able people to make these changes - However P has taken powers from the EU only to pass to the gov and executives- sufficient scrutiny- problematic- P make leg in UK as it is accountable and involves diff actors- ensures diff actors are involved in the process. However is there sufficient scrutiny of the gov exercising powers and make law making powers in practice when there’s a lot of law covered by EU. Substantive law such as employer rights and civil rights- do they need more scrutiny 5. Popular sov and PS - Referendum was held due to the EU Referendum Act 2015 which laid down the requirement we should have- a referendum to remain member of the EU. - Referendum is popular sov as it is people that make the decision. P didn’t make the decision but the people that exercise their rights who voted in the referendum - P itself laid down the act where power is passed to the people to decide if we should leave the EU through the referendum - Isn’t a legally binding referendum- P wasn’t legally bound to follow the majority decision. No legal obligation in the EU ref Act 2015 to say that P should follow the decision reached by the people - Even if not legally bound to follow the decision, there are moral and political considerations which impacted P’s response- impossible that P would ignore the referendum result. P itself provided the referendum within this act P recognised its sov in s.38 EU (withdrawal agreement) act 2020 - Provision which shows PS- always remained and is just a political symbol which resolved doubts whether EU membership took away PS - Implied generally that there may be doubts about PS in constitution

- Statement that PS is still relevant despite doubts in virtue and status in our constitution

Conclusions about PS AND BREXIT - End of special supreme status of EU law but with exceptions due to some retained EU law and special provisions to citizens - P has been central to the process of exiting the EU- done through leg but along with powers by gov (delegated law-making powers, courts (Miller) and the people). People had a say in the referendum where P then accepted the result - Impact of EU membership will have a legacy for our understanding of PS in context of other challenges...