Parliamentary Supremacy In Light Of Brexit PDF

Preview

Summary

Contents 1. Overview 1 2. Hard or Soft? 3. Brexit and Its Pertinent Statutes 4. Modern Challenges To Parliamentary Sovereignty i. European Communities Act 1972 (ECA) ii. Human Rights Act 1998 (HRA) 5. The Return of Parliamentary Supremacy? 6. Sewel Convention and a Possible Second Scottish Independe...

Description

Contents 1. Overview ………………………………………………………………………………………………………… 1 2. Brexit- Hard or Soft? …………………………………………………………………………………………1 3. Brexit and Its Pertinent Statutes ……………………………………………………………………….2 4. Modern Challenges To Parliamentary Sovereignty i. European Communities Act 1972 (ECA) …………………………………………………3 ii. Human Rights Act 1998 (HRA) ……………………………………………………………….5 5. The Return of Parliamentary Supremacy? …………………………………………………………8 6. Sewel Convention and a Possible Second Scottish Independence Referendum …8 7. Economic Impact ……………………………………………………………………………………………….9 8. Conclusion ………………………………………………………………………………………………………..10

Page |1

There has been much prediction on the aftermath of BREXIT, especially in relation to hard and soft BREXIT. There will be consequences that are both uncertain and long lasting. Discuss the notion of Parliamentary Supremacy in light of BREXIT

Overview The June 2016 Brexit referendum witnessed 51.89% of voters opting out of the European Union (EU), ending a 43-year stay1 in the confederation.2 3 Subsequent razzmatazz revolved on whether the UK should adopt a hard or soft Brexit in relation to the will of the majority. The initial cues emanating from the Conservative camp were careening towards the former but fast forward it looks increasingly moribund. Prime Minister Theresa May, who initially favoured a hard Brexit appears to have soften her stance considerably by opting for a closer relationship with the EU despite reservations by Tory Brexiteers. Cabinet fractions are apparent with the resignation of Boris Johnson and David Davis attesting to this.4 Unless a leadership challenge is mounted, a soft Brexit is inevitable, which would be a sham to the voices of 17.4 million people.5

Brexit- Hard or Soft? The subjective political and legal perception is that the UK should adopt a hard Brexit. Although the UK has representatives to the European Parliament in its own right, the Parliament has got no real powers and cannot make its own laws. Rather, the power resides with the Council of Ministers and European Commission, whose members are unelected and cannot be removed.6 The voting procedures of the Council in passing legislations have been controversial largely due to the system of qualified majority that allocates different number 1 UK Parliament, ‘The EEC and the Single European Act’ accessed 9 July 2018 2 Britain agreed in December 2017 to pay £37.1 billion as financial settlement to the EU 3 The UK Statistics Authority revealed the EU membership fee as £19 billion a year, or £350 million a week. 4 ibid 61 5 Charlie Peters, ‘Why Am I Campaigning For Article 50 Now!’ accessed 9 July 2018 6 Prager University, ‘Brexit: Why Britain Left the European Union’ (12 March 2018) accessed 12 July 2018

Page |2

of votes to different states, weighted based on its size and population. 7 A member state can be coerced to abide by a legislation which it believes is against its interests. This is seen as compromising national sovereignty.8 For decades, UK were not only bound by the acquis communautaire which were regularly paradoxical with their national laws but the courts were also impelled to consider the European common law and are required to adjudicate domestic disputes in accordance with the European Conventions. This undermines the constitutional principle of a sovereign nation given that parliamentary supremacy, in the words of A.V. Dicey, is one of the twin pillars of the British constitution.9 It is open secret that the Luxembourg has consistently made a mockery out of the Westminster Parliament and it is only righteous that Britain defends its constitutional principles to the core, something that a hard Brexit can legitimately vouch for.

Brexit and Its Pertinent Statutes The European Communities Act 1972 (ECA) was enacted to pave way for Britain to join the European Economic Community10 upon being a signatory to the Treaty of Rome. These procedures were necessary as Britain is a dualist state and requires the unanimous consent of Parliament to give effect to the European laws into domestic jurisdiction. 11 The ECA was no ordinary legislation as it took precedence over all legislation passed before and after it. However, section 1 of the European Union (Withdrawal) Act 2018 provides for the repeal of the ECA on exit day. The Act converts approximately 12000 EU laws and regulations into domestic statute on the day Britain officially leaves the bloc. 12 In Thoburn v Sunderland City Council

13

Lord Justice Laws held that Acts of Parliament should be bisected between

7 BBC UK, ‘Qualified Majority Voting’ accessed 12 July 2018 8 Catherine Elliott and Frances Quinn, English Legal System, (18th edn, Pearson Education Limited 2017) 105 9 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th edn, The McMillan Press Ltd 1959) 39 10 Now European Union (replaced by the Lisbon Treaty 2009) 11 Lisa Webley and Harriet Samuels, Public Law Text, Cases and Materials, (3rd edn, Oxford University Press 2015) 236 12 Victoria Friedman, ‘Gina Miller Beats Government Over DUP Brexit Deal In Latest Legal Challenge’ accessed 12 July 13 [2003] Q.B. 151

Page |3

‘ordinary’ and ‘constitutional’ statutes. The ECA takes the form a constitutional Act and can only be repealed by express provisions of an Act of Parliament, which was seen above. An implied repeal, in this case by the Weights and Measures Act 1985 will not suffice.

Modern Challenges To Parliamentary Sovereignty European Communities Act 1972 (ECA) Parliamentary supremacy, also known as parliamentary sovereignty, was propounded by A.V. Dicey. The tripartite theory asserts that Parliament had the legitimacy to make or unmake any law and no person or body recognised under the law of England had the authority to set aside or override this legislation. 14 However the view of the European Court of Justice (CJEU) is that EU laws enjoys priority over national law and asserted that the Treaty of Rome has created ‘its own legal systems of the Member States and which their courts are bound to apply.’ Simmenthal II

16

15

The CJEU laid down its most substantial assertion in

by ruling that national courts must set aside conflicting laws while in van

Gen den Loos,17 the CJEU held that article 12 of the EC Treaty had “direct effect” on the laws of member states. Confusion arises as Section 18 of the European Union Act 2011, frequently dubbed as the “sovereignty clause”, stipulates that EU law falls to be recognised and available in the British legal system by virtue of the ECA. 18 Hence if the ECA is expressly repealed by Parliament then EU laws would cease to have effect in Britain, although this would be inconceivable within the realms of realpolitik. Section 2(4) of the ECA provides that any Act of Parliament, regardless enacted before or after the entry into force of the ECA, shall be interpreted by the domestic courts consistent with EU law. On this view, section 2(4) amounts to no more than a rule of interpretation. However, this section is further construed to the extent that domestic legislations are only effective if they are consistent with EU regulations and vice versa. This insinuates that section 2(4) is not a mere rule of interpretation but also a rule of priority 14 A.V.Dicey, An Introduction to the Study of the Law of the Constitution, (8th edn, Liberty Classics 1982) 3-4 15 Costa v Enel [1964] ECR 585 16 Amministrazione delle Finanze v Simmenthal SpA Case 106/77 [1978] 17 Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen [1963] ECR 1 18 Graham Gee and Alison L. Young, ‘Regaining Sovereignty? Brexit, the UK Parliament and the Common Law’ (2016) 22 European Public Law 131

Page |4

which determines that in the event of a conflict between British law and EU regulation, the latter is to take precedence. This view was taken by Lord Diplock in Garland v British Rail Engineering Ltd

19

who gave judgement that EU law is hierarchically superior for as long as

the relevant statute remains in force. The court in Macarthys v Smith20 reviewed the inconsistency between the Equal Pay Act 1970 and Article 119 of the EEC Treaty pertaining to the Equal Treatment Directive. In the judgement, Lord Denning asserted that the Community law would take precedence if any inconsistency arose. Upon referring the case to the CJEU, it was held that the Act was in conflict with the Treaty as the Act of Parliament did not reflect and promulgate the EU’s stand of equal pay for equal work. In Factortame21 the Merchant Shipping Act 1988 was passed to prevent Spanish trawlers from taking advantage on British fishermen. Spanish fishermen alleged that the Act promoted discrimination on the grounds of nationality and was contradictory to EU law on the freedom to set up business anywhere in Europe. The House of Lords had to set aside the statutory rule to accommodate the European law and that decision was criticized as blatant disregard of parliamentary supremacy. Following the decision in Factortame, UK fishermen were only allowed to catch 20% of the fishes in territorial British waters which culminated in the loss of tens of thousands of jobs.22 Until Westminster Parliament decides to withdraw Britain from the bloc, EU-oriented legislations will continue to be passed in abundance for the mere purpose of fulfilling membership obligations. Parliament would not be making law out of its own free will but because the EU requires it to. Any man on the Clapham omnibus would be able to easily deduce that EU laws reign supreme and the notion of parliamentary supremacy is mere rhetoric. In 1993, the Department of Trade estimated that a third of existing legislation had been enacted to incorporate EU regulations.23 William Wade pointed out two central truths about parliamentary sovereignty. 24 The sovereignty of Parliament is set as a matter of constitutional law. It cannot be altered by 19 [1983] 2 AC 751 20 [1979] 3 All ER 325 21 R (Factortame Ltd) v Secretary of State for Transport (No. 2) 1991 22 ibid 6 23 Joe Owens, Marcus Shepheard and Alex Stojanovic, Institute for Government, ‘Implementing Brexit: Customs’ (September 2017) 24 Wade HWR, ‘The Basis of Legal Sovereignty’ (1955) 13 CLJ 172

Page |5

legislation or by any other legal recourse. It is therefore not at Parliament’s liberty to accept voluntarily, or otherwise, confinement upon its supremacy. However, the secondary theory suggests that the sovereignty of Parliament may be diminished through non-legal means. This would involve the courts adjudicating contrary to the constitution by refusing to recognise an Act of Parliament as a legitimate enforceable law. They would thereby bring down the old constitutional order and establish a new order. 25 Thus, Wade claimed that the sovereignty of Parliament can only be altered by revolution and not by legislation,26 to which he cited Factortame.

Human Rights Act 1998 (HRA) One pre-requisite for the membership of EU is that all members must ratify the European Convention of Human Rights (ECHR). It must be noted that the ECHR does not emanate from the EU. It is a wholly independent body, entirely seperate from the Union. Theoretically, UK is bound to the ECHR as long as it remains a member of the Union. This convention applies in the UK because the HRA incorporates the convention into the domestic legal system. It could therefore be argued that Parliament could simply pass a legislation to impliedly repeal the Act which in turn expressly repeals the legislation that guarantees the fundamental rights of British citizens. However, citizens can still enforce their rights enumerated in the Convention at the European Court of Human Rights (ECtHR). Regardless, UK has been bound to the ECHR by the EU. Section 3 of the HRA requires courts to read and give effect to legislation as far as possible to ensure compatibility with the Convention rights. This is a strong obligation that requires courts to go towards considerable means to interpret legislation compatibility with Convention rights. Lord Irvine warned that stretching the concept of possibility in order to fit cases within section 3 would be inappropriate constitutionally as judges would be rewriting legislation.27 Meanwhile, section 4 of that Act provides that courts may issue a declaration of incompatibility when a legislative provision cannot be interpreted compatibly with a

25 Parliament is not sovereign 26 ibid 24 27 Irvine, ‘Activism and Restraint: Human Rights and the Interpretative Process’ [1999] EHRLR 350,367

Page |6

Convention right. This empowers courts to issue a form of relief in respect of incompatible legislation. In Ghaidan v Godin-Mendoza

28

the defendant contended that he was a statutory

tenant under the paragraph 2 of Schedule 1 to the Rent Act 1977 and hence would enjoy immunity from eviction. The House of Lords had to decide whether the Act should be applied to homosexual couples. Lord Nicholls said that the courts have a strong yet unusual and far-reaching obligation as they must interpret UK law compatibly with the Convention rights, which may even require the court to depart from intention of Parliament which enacted the legislation.29 The final judgement was that the provision treated survivors of homosexual partnerships less favourably as compared to survivors of heterosexual partnerships irrationally and that was an infringement of the defendant’s rights under article 8 and 14 of the Convention. The House of Lords in Bellinger v Bellinger

30

issued a declaration of incompatibility

after finding that section 11 (c) of the Matrimonial Causes Act 1973 was incompatible with Article 8 (right to family and private life) and 12 (right to marry). The Act prevented a maleto-female transsexual from nuptial in her acquired sex as it defined marriage between a man and a woman. The Lords refused to interpret the term ‘woman’ as including a man who had undergone a sex change to become a woman under section 3 of the HRA as it would represent a major change in law. The reasoning includes that the issues are too complex to be dealt with by way of interpretation and it is Parliament’s job to pass legislation in this difficult area. Lord Nicholls opined that questions of social policy and administrative feasibility needs to be evaluated and balanced. The issues altogether should not be adjudicated by the courts and its procedures. Upon the declaration, Parliament passed the Gender Recognition Act 2004 to enable transsexuals to marry in their acquired sex. The Belmarsh Detainees Case31 saw foreign nationals suspected of terrorist activities subjected to indefinite detention under section 23 of the Anti-Terrorism, Crime and Security Act 2001. The House of Lords held that the provision was in breach of Article 5 (right to liberty and security) and 14 (protection from discrimination) and granted a declaration of 28 [2004] UKHL 30 29 Stephen Grosz, ‘Human Rights Law’ (2004) 97 The Law Society Gazette 17 30 [2003] UKHL 21 31 A v Secretary of State for the Home Department [2004] UKHL 56

Page |7

incompatibility. Baroness Hale emphasised that courts have limited powers under section 4 of the HRA as it does not invalidate the provision or anything done under it and stressed that it was up to Parliament to remedy any breach of the Convention. The then Home Secretary accepted the decision and Parliament enacted the Prevention of Terrorism Act 2005 sought to ‘meet the criticism of the Law Lords that the previous legislation was disproportionate and discriminatory’.32 Under the legislation, control orders that avoided detention was introduced but restricted individuals’ movements and communication within their homes. 33 UK found its sovereign powers severely curtailed in S & Marper v UK 2009.

34

The

applicants brought a claim under Article 8 and 14 that the authorities had continued to retain their fingerprints and DNA samples under section 64 of the Police and Criminal Evidence Act 1984 after the criminal proceedings against them had ended with an acquittal or had been discontinued.35 The EU has highlighted its stance regarding this matter through Directive 95/46 thereby stating that the processing of personal data must not fall foul of Article 8 ECHR (right to private life).36 As a result, UK was found to be in breach of Article 8 because its infringement on private life was disproportionate, hence resulting in a change in domestic law. The vexatious matter however was that although the directive allowed the UK to legislate within the relevant area it could not enact any law without paying due consideration to the Recommendation R(87)15 of the Committee of Ministers of the Council of Europe.37 UK were politically compelled to adopt the Protection of Freedoms Act 2013 which witnessed the blanket retention of approximately one million people’s DNA profiles deleted from the National Database.38 In relation to the case of prisoner voting rights, the question arises as to whether the UK government is obliged to address judgements of the ECtHR. In Chester & McGeoch v Secretary of State for Justice and another 39 Lord Sumption ruled that UK has an international obligation under Article 46.1 of the Convention to abide by the decisions of the ECtHR in any 32 Mark Elliott and Robert Thomas, Public Law, (2nd edn, Oxford University Press 2014) 719 33 ibid 34 S and Marper v United Kingdom [2008] ECHR 1581 35 Carl Gardner, ‘S and Marper v UK’ accessed 14 July 2018 36 Tanya Bamber, ‘Parliamentary Supremacy In The UK Since Joining The European Union’ accessed 16 July 2018 37 ibid 38 Human Rights News, Views and Info, ‘Hands Off Our DNA’ accessed 17 July 2018 39 [2013] UKSC 63

Page |8

case to which it is a party. The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill considered the UK’s obligation under Article 46 and noted that the witnesses they heard, including former Lord Chancellor, Lord Mackay of Clashfern40 and the previous Attorney General, Lord Goldsmith QC and were of the opinion that it would be a breach of the rule of law for the UK if it failed to comply with its obligation under international law. 41 The Committee agreed with Lord Mackay that the doctrine of parliamentary sovereignty is no argument against giving effect to the judgement of ECtHR.

The Return of Parliamentary Supremacy? There is a nascent insignia that parliamentary supremacy will arise again in Miller.42 This case was concerned principally with Dicey’s second limb, that is to say the power of the government via the exercise of the prerogative to invoke Article 50 of the Lisbon Treaty. 43 By doing so, the operation of EU Treaties in Britain would cease (after two years, subject to an agreed extension by the EU Parliament). The complainant questioned whether rights given effect by section 2(1) of the ECA 1972 could be revoked in such manner or whether additional parliamentary approval in the form of primary legislation was necessary. The argument propounded, in Dicey’s term, was that government intervention would be overriding or setting aside legislation passed by Parliament. In this context, the government had two options; to rely on prerogative powers or on section 2(1) of the 1972 Act.44 The government argued that the provisions of section 2(1) were ‘ambulatory’ in the sense that they gave effect to EU rights merely to the extent that any such rights were in force from ‘time to time’. On the grounds that those rights were incorporated into the UK law by statute and it was statute which added subsequent new treaties to the core of those rights, the argument was rejected by the majority. If the exercise of prerogative powers 40 Conservative Party 41 Alexander Horne and Vaughne Miller, ‘ Parliamentary Sovereignty and the European Convention on Human Rights’ accessed 18 July 2018 42 R (Miller) v Secretary of State for Exiting the...