Brexit and the Doctrine of Parliamentary Sovereignty

Introduction

Brexit is a watershed moment in British constitutional history. The triggering of the Article 50 of the Treaty of the European Union (TEU) by the UK government led to caselaw which itself led to the clarification of the constitutional law and the powers of government and Parliament. Due to the application of the European law in the UK, the emerging constitutional structure of the UK has been one that can be described a multi-layered. One of the implications of Brexit is that the European law will cease to apply in the UK. One view in academic literature, for instance, expounded by Alison Young, is that while Brexit will remove some of the European layer from the multi-layered constitution, it will also threaten the relationship between England, Scotland, Wales and Northern Ireland. The question of whether Scotland would become independent post the Brexit is one of the important questions in the discussion on how post Brexit constitutional order in the UK will take effect. Other questions are related to the impact of Brexit on the relationship between England on one hand and Wales and Northern Ireland on the other.

The other issue in how Brexit will change the constitutional order in the UK relates to doctrine of parliamentary sovereignty. The doctrine of parliamentary sovereignty is one of the well-established conventions of the British constitution, which established the sovereignty of the parliament as the supreme law making authority. The application of the European law and the supremacy of the European law diluted the principle of parliamentary sovereignty to a great extent. However, in Miller, the UK Supreme Court has already laid down that the government does not have the power to trigger Article 50 withdrawal from the European Union without an Act of the Parliament permitting the government to do so, even where Article 50 allows the government to do so. Therefore, for some, the judgment is an indication of the court applying the principle of parliamentary sovereignty, which means that the possible impact of Brexit may be the restoration of the parliament’s sovereignty. However, Alison Young argues that Brexit may not lead to the restoration the sovereignty of the Parliament; instead, she argues that there may be a rebalancing of powers between the Parliament and the judiciary, with the latter getting more decision making powers. In this essay, the ways in which the doctrine of parliamentary sovereignty as a constitutional convention was diluted after the UK joined the European Union, and how Brexit will once again change the constitutional order in the UK will be discussed in the context of the doctrine of parliamentary sovereignty.

The third important issue (although not directly related to Brexit) is related to the possible impacts on the constitutional laws like the Human Rights Act 1998 and governance and policy making. Keith Ewing has argued that after the UK leaves the European Union, it is possible that “at some point in the future” one of the casualties “may well be the European Convention on Human Rights and the Human Rights Act 1998, with the introduction of a British Bill of Rights as a light makeweight.” This would be the impact of the reinforcement of the principle of Parliamentary sovereignty in the traditional sense, where Parliament can make or unmake any law and is not bound by the laws made by its predecessors. Moreover, with Brexit the European Court of Justice jurisprudence for human rights will no longer apply to the UK; the European Court of Justice also plays a role in the development of human rights jurisprudence. The Miller decision does note that Brexit will lead to the ceasing of the primacy of the European Court of Justice jurisprudence. At the same time, the court has used the proposition that the European Communities Act has already established European Union law-making and law-interpreting institutions as new ‘sources of law’ and based on this the right of people cannot be affected by the executive exercising prerogative.

This essay suggests that the effects of the Brexit on the constitutional order are too complex to clearly be predicted at this time. The decision of the Miller case also opens up some interesting aspects of how Brexit will impact British constitutional order, particularly in the area of parliamentary sovereignty, and relationship between England, Wales, Scotland and Northern Ireland.

Brexit: Meaning and possible impacts

Brexit is the name given to the concept of the exit of the UK from the European Union. Brexit is triggered by the political and popular discourse on the British membership of the European Union, which led to the 2016 referendum in the UK to decide whether the popular vote was in favour of leaving or remaining in the European Union. The British voters decided by a small majority that the UK would leave the Union, and this started the process of Brexit in the UK. Under Prime Minister Theresa May, the UK government formally invoked Article 50 of the Treaty of the European Union, which allows the government to start the process of leaving the membership of the European Union. The British government gave a notification to this effect on the 29th March 2017, which was the first step in the disengagement of the UK from the European Union law. However, in the subsequent case law with respect to the legality of the government action, conflicting decisions were given by the courts in Northern Ireland, where the court decided that the government could exercise its prerogative powers to trigger Article 50, and England, where the court held that the government could not exercise its prerogative powers unless the Parliament legislated to allow such exercise of power to trigger Article 50. Consequently, the Parliament brought the European Union (Notification of Withdrawal) Act 2017 to begin the process of withdrawal of the UK from the European Union.

It may be mentioned that the actual process of a member state leaving the European Union is a protracted process, which involves negotiations on different issues, which is one of the reasons why the impacts of the process on the constitutional order of the member state becomes a significant issue, especially because membership of the European Union leads to the integration of the European laws in the domestic constitutional contexts and there are questions on how the exit from the Union will impact the constitutional order. Consequently, there is much academic discourse on how Brexit will impact the UK’s constitutional order in the political, economic and judicial contexts. Some of the important questions that have a bearing on how Brexit will impact the constitutional order of the UK relate to the possible impacts on the political ordering of the UK, with its constituent parts being England, Wales, Northern Ireland and Scotland. Another important question is the possible impact on the doctrine of parliamentary sovereignty. The third important question is related to the possible impacts on the constitutional laws like the Human Rights Act 1998 and governance and policy making.

Impact on political ordering of the constituent units of the UK

The United Kingdom of Great Britain and Northern Ireland has four constituent parts, which include England, Wales, Scotland, and Northern Ireland. The relationship of these constituent parts with the UK government have evolved over a period of time, with constitutional reforms since the 1990s introducing and continuing an asymmetric devolution of power on these constituent parts. One of the important questions relating to the UK constitutional order post the 2016 Brexit referendum relates to how these constituent parts will continue to be related to the UK as the referendum results in Northern Ireland and Scotland showed that clear majorities in these countries have preferred to remain within the European Union.

In the context of Northern Ireland, the island of Ireland was divided in 1921. The Republic of Ireland is an independent country but the six northern counties that make up Northern Ireland have remained part of the union. The region’s constitutional status has remained a contested issue and until the 1998 Good Friday agreement, there was much violence in the region. After 1998, there has been peace, and the membership of European Union for both UK and Ireland has meant that there were connections between Ireland and Northern Ireland and the UK, and that the physical, economic, and psychological barriers were removed as all these regions are part of the single market of the European Union.

Scotland and England have been a part of the same state since 1603 and the 1707 Treaty of Union created a new parliament in place of the Scottish and English Parliaments. Scotland continued the application of the Scots law , the Church of Scotland, and the Scottish education system. There have been some contesting over constitutional powers between Scotland and England, with the former asking for greater decision making authority. Constitutional reforms did take place in the UK after the May 1997 election of New Labour with Prime Minister Tony Blair. These reforms include the establishment of the Scottish Parliament by legislation in November 1998 and devolution to Edinburgh for all matters except the matters that are specifically reserved to the UK Parliament. Clearly, this was a major constitutional change in the UK, with Scotland once again having its own parliament. Over a period of time, more devolution has taken place in favour of the Scottish parliament.

Wales annexed to England under the Laws in Wales Act 1535. This annexation extended the English law and English language for official purposes to the territory of Wales. In the 1997 referendum, Wales narrowly supported devolution. This led to the establishment of a 60-member National Assembly with little authority in 1998. The Government of Wales Act 2006 led to giving limited law making ability to the Welsh Assembly in 20 broad policy areas. The Government of Wales Act 2006 also created a separate legislature, which is called the National Assembly for Wales. Wales also got a separate executive, which is the Welsh government. The March 2011 referendum further devolved the primary law making powers to the assembly in Wales. The current devolution arrangements in the UK is as follows. Scotland now has a government and a directly elected parliament. Wales has a government and a directly elected assembly. Northern Ireland has a power sharing executive with England and a directly elected assembly. The question is how far Brexit will change the arrangements between the constituents of the UK.

The withdrawal from the European Union is set to take place with the UK government formally notifying the European Union of its intent to withdraw from the union by invoking Article 50 of the Lisbon Treaty in 2017. With respect to Scotland, there are already indications of impending threats to the existing constitutional order of the UK. Scotland indicated that they would call for a second independence referendum because the conditions under which Scotland was a constituent of the UK have significantly and materially. As 62 percent of those in Scotland (including majorities in all districts) have voted to remain in the European Union, this is a clear challenge. Although not much has come of it, it remains a challenge.

With respect to Northern Ireland, the challenges are more apparent. As a member of the European Union, the UK is a part of the union’s customs union and single market. However, once Brexit comes into effect, the UK will leave customs union and single market. For Ireland and Northern Ireland, the problem arises because the status of the Irish border would then change to a customs border, and this would also mean that there would be checks and controls at the border. Northern Ireland has indicated that this would create practical and economic challenges. In December 2017 European Council meeting, the UK pledged to avoid a hard border with Northern Ireland. However, the issue of “backstop” provision to protect Northern Ireland has become an important issue, which says that unless England is able to devise alternative arrangements, Northern Ireland will remain in the European Union customs union and single market. This would also mean that the checks and controls at the Irish land border will not take place. However, England wants a clause preventing “new regulatory barriers” to trade within the UK.

One of the pressing questions with regard to the Brexit effect on the constitutional ordering the UK is with relevance to the devolved legislature in the UK. The Miller decision reflects unclarity on this point because while with respect to the question of whether devolved legislatures need to make law for triggering Article 50 the court held in the negative, it is not clear whether the same principle would apply to the post Brexit. In Jackson, Baroness Hale had observed that a sovereign parliament can redefine itself downwards, upwards or even sideways, saying that, “in each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed. But that is for another day.” A question has been raised whether the Miller decision, which requires parliamentary approval in advance would also mean that a formal approval of the devolved legislatures is also required. The decision in Miller that the devolved legislatures are not required to legislate is unconvincing according to Keith Ewing because while the court has respected the statutory rights of the people of the United Kingdom, it has not extended the same to the statutory rights of the Scottish Parliament to which the legislative powers have been devolved because it is “fundamental to the principle of parliamentary sovereignty that the highest form of the expression of that sovereignty (an Act of Parliament) is respected rather than ignored.”

Doctrine of parliamentary sovereignty: Possible changes after the Brexit

The Miller decision has given an insight into how the doctrine of Parliamentary sovereignty may be reinforced in the conventional and traditional manner post Brexit. With regard to this, the following observation of Keith Ewing is relevant:

“Looking forward, however, the most eye-catching feature of the decision is its defence of parliamentary sovereignty. When all is stripped away, the core of both of the major questions the court was asked to address is the role of the Westminster Parliament in the modern British constitution, the reasoning if not the result paradoxically responding in terms that reflect the sentiment of the referendum result, at least in those parts of the country where a majority of those voting did so to leave the EU. In thus delivering a clear statement of constitutional orthodoxy and a clear re-assertion of parliamentary sovereignty as the fundamental principle of the constitution, Miller has swept aside recent uncertainties, equivocations and qualifications.”

The recent uncertainties that the above statement talks about relates to the uncertainties in the application of the doctrine of Parliamentary sovereignty in the traditional and conventional sense due to the application of the principle of European law supremacy. This is discussed in some detail below.

As per the traditional precepts of the doctrine of parliamentary sovereignty, the British Parliament could make or unmake any law, and the laws made could not be overridden or set aside by any person other than the parliament. Scholars have argued that the application of the European law to the UK meant that the doctrine of parliamentary sovereignty was diluted and the dimensions of judicial review were applied to dilute parliamentary sovereignty. Brexit or the British Exit from the European Union marks an important change in the constitutional order of the UK, in that the UK will cease to be bound by the laws made by the European Union and the doctrine of parliamentary sovereignty will reapply in the traditional sense as it did before the UK became a member of the European Union and enacted the European Communities Act 1972 to give primacy to the laws made by the European Union. Until the UK became the member of the European Union, the laws made by the Parliament were the supreme law of the land. The convention of parliamentary sovereignty meant that the laws made by the parliament were not open to judicial review and that the parliament could not bind its successors. However, with the passage of the European Communities Act 1972, these aspects of the doctrine of parliamentary sovereignty became diluted.

The Brexit vote in favour of leaving the European Union means that there is a possibility that UK will return to the traditional doctrine of parliamentary sovereignty and that the European Union law will not prevail over the primary legislation in the UK. The Miller decision itself is a key indication of that. Therefore, one of the big changes in the UK constitutional order after the Brexit becomes final and irreversible may be the reapplication of the traditional doctrine of parliamentary sovereignty in its earlier sense. The traditional doctrine of parliamentary sovereignty has three important aspects, which come into effect because parliamentary statute is considered to be the primary legislation of the UK, or in other words, it is the supreme law of the land; these aspects are: (i) parliament can legislate on any matter and cannot be restricted in exercising its legislative powers; (ii) previous laws made by the parliament can never bind the successive parliaments in the UK, which means that the parliament can never be bound by predecessor parliaments; (iii) the validity of statutes is outside the scope of judicial review.

When the UK joined the European Union, it had to change its constitutional arrangements to some extent and therefore, the membership of the European Union did impact the traditional aspects of the doctrine of parliamentary sovereignty. In the context of the parliamentary power to legislate on any matter, the doctrine of parliamentary sovereignty was diluted to a great extent. There are examples of this in the British authorities like the Belmarsh case. The parliament of England enacted the Anti-Terrorism, Crime and Security Act 2001, in response to the terror attacks on America on the 11th September, 2001, which allowed detention of foreign terror suspects for an indefinite period of time. Because the UK was also a member of the European Union and had also signed the European Convention of Human Rights, the House of Lords held that there was an incompatibility between the statutory provisions related to detention and the rights guaranteed under the European Convention of Human Rights. The parliament had to repeal the provisions relating to indefinite detention from the Anti-Terrorism, Crime and Security Act 2001.

With regard to the traditional precepts of doctrine of parliamentary sovereignty related to parliament’s inability to bind its successors as well, the membership of the European Union meant a clear change to the concept. The European Communities Act 1972, Section 2(1) lays down the principle of compatibility between statutory law and European Union law. This meant that the statutes made before or after the passage of the European Communities Act 1972, must be in compliance with the European Union law. In Factortame, the House of Lords used Section 2 (1) of the European Communities Act 1972 to suspend the operation of statutory legislation on the ground that it was contrary to the European Union law and referred the case to the European Court of Justice. Such a situation would be untenable before the UK became a member of the EU and enacted the European Communities Act 1972. Even though the parliament has itself imposed these restrictions on itself, the restrictions are the result of the membership of the European Union. Due to this membership, UK parliament was required to allow for the supremacy of the European Union law, for which purpose it had to dilute its own sovereignty. Brexit will once again change this position.

Finally, with respect to judicial review and parliamentary sovereignty, traditionally judicial review was not permitted over parliamentary legislation, except when review was used as supplementary to principle of parliamentary sovereignty, wherein the courts applied the doctrine of ultra vires to test the validity of executive action on the basis of parliamentary law. However, after the UK became a member of the European Union, judicial review came to be applied over primary legislation also in the context of the principle of compatibility between the statutory law and the European Union law. In the GCHQ case, the court allowed judicial review on ministerial action even when that meant the rejection of Royal Prerogative argument. Thus, the principle of traditional concepts of parliamentary sovereignty were diluted in the context of judicial review as well. Courts were not always comfortable with testing the traditional boundaries of judicial review on executive action. For instance, in one case, the House of Lords refused to set up an investigative panel to test the lawfulness of government’s decision to deploy personnel in Iraq; even when there were questions related to the European Convention of Human Rights.

It has been said that the implementation of the European Communities Act 1972, and the Human Rights Act 1998 meant that the British Parliament did not remain sovereign as it once was. The application of these two laws led to significant challenges to the application of the doctrine of parliamentary sovereignty in the traditional sense. The authorities discussed above have already made a case for how the courts have tended to dilute the statutory laws in order to ensure that they remain compatible with the European laws. On the other hand, it has been argued that the doctrine of parliamentary sovereignty is still central to understanding the British constitution. If there has been a tendency in the courts to interpret the British laws by giving them meanings that aligned them with the European laws, this too was intended by the Parliament and was made possible because the Parliament intended it. Therefore, Parliament itself legislated to limit its sovereignty and there is nothing to stop the Parliament from legislating in the future to reclaim its superiority over all laws in the future as per the doctrine of parliamentary sovereignty. The foundation for this argument is the lack of a written constitution in the English legal system, which makes the doctrine of parliamentary sovereignty a belief or a hypothesis that can be altered or modified at any point in time by the Parliament itself. The courts have accepted that any such alteration in the scheme of compatibility between domestic and European laws can only come from the Parliament.

In the event of Brexit, a possible effect on the constitutional order would be the Parliament’s reclaiming of itself as the supreme law making authority in the UK. The Miller decision has clarified much of how the UK may revert to the traditional contexts of the doctrine of Parliamentary sovereignty. For instance, while the Factortame case was the first time in postwar England that the courts had refused to apply the Parliamentary legislation, in Miller, the Supreme Court has specifically noted that the basis on which Factortame was decided being the application of the European Communities Act 1972, there is nothing to prevent the Parliament from repealing that Act in which case the Factortame decision also becomes less relevant. In particular the court has noted that not only the European Communities Act 1972 can be repealed “like any other statute”, the “principle of Parliamentary sovereignty” itself being “fundamental to the United Kingdom’s constitutional arrangements”, the “EU law can only enjoy a status in domestic law which that principle allows.”

The entrenched nature of European law and its impact on the British constitutional law, post Brexit

European law is entrenched in the British constitutional law; even if the multi-layered nature of constitutional law sees the removal of the European law in the formal sense, it will not see the removal of the jurisprudence developed by the European law and applied in the UK in the actual sense. There are implications for the constitutional order related to governance and public policy in the area of human rights, environmental protection, and immigration policy in this context.

With reference to human rights laws post the Brexit, there is some uncertainty about post-Brexit human rights laws although the UK government has given clarification on this issue in its White Paper Legislating for the United Kingdom’s withdrawal from the European Union. Even before the clarity provided by the White Paper, it was generally accepted that even if the UK leaves the European Union, it will be bound by the European Convention of Human Rights unless it repeals the Human Rights Act 1998. The White Paper has clearly noted that even after UK’s exit from the European Union, there is an intention to remove the Charter of Fundamental Rights from the UK law.

With regard to environmental protection after the Brexit, the areas of environment policy making impacted by the British membership of the European Union includes climate change, agriculture and fisheries, to name a few. European Union policies shaped the making of policy in the UK as well but after the Brexit referendum, an obvious question relates to the regulation of these areas; lobbying about the future of the environmental policy has focussed on either retaining the European Union standards or exceeding them. It may be mentioned that like all other European laws, environmental laws of the European Union are deeply entrenched in the domestic law of the UK. For instance, European law and directives on waste management are not followed in the UK. A question on how the environmental policy will change after Brexit is one of the key areas in constitutional reordering after the Brexit. The White Paper issued by the government clearly notes that it intends to convert all of existing European law into domestic law after the Brexit, after which the Parliament will carry through the process of repealing laws that it finds are inappropriate. In any case, the entrenched character of the European laws in the UK means that even after Brexit, the process to repeal the European laws will be long drawn and the repeal of the European Communities Act 1972 simply will not be able to repeal the European laws or allow the UK to change their laws in isolation from its international obligations; the supranational character of the European law and its entrenched character in the UK law will impact the post Brexit constitutional reordering in more complex ways than understood.

The decision of the Supreme Court in the Miller case, and its observations are important to understanding the deeply entrenched nature of the European law, which may play a complex role in the Brexit process. The Supreme Court referred to the European Communities Act 1972 as a “conduit pipe”, which allowed the entry of the rights in European treaties as “entirely new, independent and overriding source of domestic law.” The Supreme Court further observed that the European law has acquired a special character in the UK and external changes through processes like Brexit may not impact the constitutional value of these laws unless the Parliament takes specific steps.

Brexit and the repeal of European Communities Act 1972, may not have the constitutional impact of separating European law from English law because of the development of jurisprudence in the UK through the decisions of the European Court of Justice applied in the UK by national courts. This seems to have been accepted by the government as the European Union (Withdrawal) Bill has sought to convert the European law into domestic law. Therefore, there is a justifiable question on exactly how Brexit and the repeal of the European Communities Act 1972 will impact human rights law in the UK because it is highly probable that the conduit pipe effect of the European Communities Act 1972 and the continuation of the Human Rights Act 1998 would mean that the European law would continue to effect the human rights law in the UK.

Another important question in the context of Brexit and human rights relates to the possible repercussions of Brexit for the immigration law and policy; it may be mentioned that a large segment of the British public demanded tighter immigration controls from the government. The European Economic Area residents have the right to work and live in the UK, but this right may be restricted after Brexit. However, if the Human Rights Act 1998 is still applicable to the UK after Brexit, it will have the impact of keeping the option of immigrants to approach the European Court of Human Rights open. At the same time, the UK will face policy questions that juxtaposition national concerns with the human rights standards that may well be applicable to the UK even after Brexit. There is a lack of clarity on the constitutional status of the European law already transposed into the UK law, although the Miller case has clarified to some extent:

“Upon the United Kingdom’s withdrawal from the European Union, EU law will cease to be a source of domestic law for the future (even if the Great Repeal Bill provides that some legal rules derived from it should remain in force or continue to apply to accrued rights and liabilities), decisions of the Court of Justice will (again depending on the precise terms of the Great Repeal Bill) be of no more than persuasive authority, and there will be no further references to that court from UK courts. Even those legal rules derived from EU law and transposed into UK law by domestic legislation will have a different status. They will no longer be paramount, but will be open to domestic repeal or amendment in ways that may be inconsistent with EU law.”

The different status of the legal rules derived from the European law, while remaining persuasive as noted by the court in the above statement, does not clarify what that status will be and how the rights of the people of England, Scotland, Wales, and Northern Ireland will be impacted by that. Considering that Scotland and Northern Ireland voted to stay, this question along with the fact of devolution in the UK keeps the questions of how Brexit will ultimately affect the constitutional ordering in the UK one to which there are no clear answers despite the Miller judgment which clarified some of these questions but left others in ambiguity.

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Conclusion

Proceeding from the decision in Miller, one clear change in the British constitutional ordering is with relation to the doctrine of Parliamentary sovereignty, which may be applied in the traditional sense after Brexit. However, this will have an impact on the constitutional relationship between England, Scotland, Northern Ireland, and Wales due to devolution. This also has relevance to the human rights, environmental policy and immigration policy, which is entrenched in the UK law due to the impact of European Communities Act 1972. The deeply entrenched nature of these laws means that even after the European Court of Justice loses primacy over parliament in Brexit, the jurisprudence developed by the ECJ which is already transposed into the UK may continue to be applicable.

Cases

A v Secretary of State [2004] UKHL 56.

Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 HL.

Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5.

R (Factortame Ltd) v Secretary of State for Transport [1990] 2 Lloyds Rep 351.

R (Gentle) v The Prime Minister [2006] UKHL 20.

R (Jackson) v Attorney General [2006] 1 AC 262.

Re McCord [2016] NIQB 85

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

Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568.

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