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BREXIT & THE RECLAMATION OF PARLIAMENTARY SOVEREIGNTY

In 2005, while considering the extent of parliamentary sovereignty of UK in the case of Jackson[1], Lord Hope of Craighead made the following obiter:

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"Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King[2]. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified."

"For the most part these qualifications are themselves the product of measures enacted by Parliament. Part I of the European Communities Act 1972 is perhaps the prime example. Although Parliament was careful not to say in terms that it could not enact legislation which was in conflict with Community law, that in practice is the effect of section 2(1) when read with section 2(4) of that Act. The direction in section 2(1) that Community law is to be recognised and available in law and is to be given legal effect without further enactment, which is the method by which the Community Treaties have been implemented, concedes the last word in this matter to the courts. The doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants in this area."

In the year 2013, the then Prime Minister of United Kingdom, David Cameron, while addressing Bloomberg on the subject of European Union, said, "people feel that the EU is heading in a direction that they never signed up to. They resent the interference in our national life by what they see as unnecessary rules and regulation. And they wonder what the point of it all is."

It was precisely this idea of an endangered British Parliament that sowed the seeds of Brexit in the people. The campaign of Vote Leave was centred on the idea that the Westminster could not exercise its parliamentary sovereignty as long as it was under the domination of European Union, and hence the only way out was to leave the European Union and take back Britain's power.[3]

All these sentiments grew as the referendum got closer and the British population voted to leave the European Union so the UK could exercise its sovereignty free from the domination of the EU.

While the decision of the referendum shocked international media and public alike, it plunged the United Kingdom into an unprecedented constitutional crisis. Now that the people had given their mandate to leave the country, steps had to be initiated to honour the decision of the people. However, there was no clarity as to who held the power to initiate the process to leave European Union.[4] The Referendum Act[5], which had granted the permission for a referendum, did not specify any procedures following a decision to leave EU was taken.

On the government's side the view was that the power to leave EU vested with the executive, in exercise of its prerogative power.[6] While a section of the population believed that power lied with the parliament in exercise of its parliamentary sovereignty to leave EU.

Ultimately this crisis reached the doors of judiciary for its resolution. The case, Miller[7], caused much brouhaha amongst the legal scholars, media, and the public alike. The Court discussed two major questions while sitting on this case. One was the scope of parliamentary sovereignty of the United Kingdom while in EU. Second question also dealt with the parliamentary sovereignty of the UK as the question was to determine as to who, among the executive or the parliament, had the right to withdraw from the European Union as per Article 50[8].

The present article will make a humble attempt to discuss the parliamentary sovereignty in the United Kingdom, particularly in reference to the Brexit referendum, and as discussed in the Miller case.

BASICS OF PARLIAMENTARY SOVEREIGNTY

AV Dicey elucidated the elusive and the most basic theory of the British parliament i.e., of 'parliamentary sovereignty' in the following words:

"Under all the formality, the antiquarianism, the shams of the British Constitution, there lies latent an element of power which has been the true course of its life and growth. This secret source of strength is the absolute omnipotence, the sovereignty of ParliamentHere constitutional theory and constitutional practice are for once at oneIt is, like all sovereignty at bottom, nothing less but unlimited power."[9]

"The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined [as the Queen, the House of Commons, and the House of Lords] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament."[10]

For a simpler understanding, it can be said that parliamentary sovereignty is basically a theory that establishes the legal supremacy of the parliament according to the British constitutional principles, and thus bestows upon it the power to legislate or repeal any law.[11] Another qualification that follows from the legal supremacy of the parliament is the idea of no parliament being able to bind future parliaments through its laws.[12]

The United Kingdom joined the European Union in January, 1973. However, this sparked debates in all the corners of the UK. The controversy concerned itself with parliament handing over its legislative supremacy to another organisation, namely EU, and thus inflicting damage on the parliamentary sovereignty of the UK.

The controversy caught more fire after the landmark decision of Factortame[13] which stated explicitly that a legislation of the European Union could override an Act of British Parliament if the latter was in conflict with the former. Additionally, a similar judgement was already passed by the ECJ in Costa v Enel[14] that a national law had to be set aside if it in conflict with a legislation of the European Union.

These precedents from the Courts may seem like affirming the loss of sovereignty of British parliament, however a similar number of judgements also contributed towards reaffirming the sovereignty of British parliament.

A case heard in 2014, specifically HS2[15], considered what would happen if a European Law came into conflict with a UK law. The UK Supreme Court ruled that "although in the specific case the Directive did not require anything that would breach the Bill of Rights, should such an event occur, British constitutional principles may well prevail over the laws of the European Union."

SOVEREIGNTY & LEAVE CAMPAIGN

In spite of a spate of domestic decisions reaffirming the parliamentary sovereignty of the United Kingdom, it was a widely held opinion in the public that the parliamentary sovereignty of Britain was on the decline, and the only way out of this situation was to exit from the European Union. There was an increasing clamour in the public to take back the control of their country from the EU, and therefore their parliamentary sovereignty. Thus, at the heart of all cacophony surrounding the Vote Leave cacophony was a desire to fortify the parliamentary sovereignty of the United Kingdom.[16]

The Vote Leave campaign made it very clear that referendum was a tool in the hands of the people to make a choice to both stay in the EU and hence allow themselves to be ruled over by an institution that held no accountability to them, or to restore the sovereignty of its nation by exiting the European Union.[17]

REFERENDUM: AN ATTEMPT TOWARDS RESTORING PARLIAMENTRY SOVEREIGNTY

Finally on the 23rd of June 2016, 52% of the population of the UK voted to leave EU and in the process, take power back from Brussels.

Now this decision though seemed simple to execute on the face of it, the consequences that followed were not easy to fathom or resolve, thus plunging the UK into a deep constitutional rabbit-hole.

While the decision to exit EU was taken, the Act of Parliament, which had granted permission for the referendum, did not provide on steps that would follow if the country voted to leave. Additionally, even the Treaty on European Union 2009 did not provide any clarification on this whatsoever.

"Article 50 of the Treaty on European Union states[18]:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

The peculiar nature of the UK constitution did not provide any answers either. There was no clarity as to who actually held the power to trigger this exodus from the EU. It was the government's belief that the power to communicate the European Union on UK's exit from EU was wielded by the executive; while others believed that this power vested exclusively with the parliament, and executive held no power in this regard.

In the absence of answers, and increasing uncertainty, the case was brought to the High Court. The Court was petitioned to deliberate on who held the power to trigger Article 50 of the Treaty on European Union. However, at its core, the Court was essentially asked to deliberate on the question of parliamentary sovereignty of the UK.

REAFFIRMING PARLIAMENTARY SOVEREIGNTY

The Court started the proceedings by first considering the status of the referendum. Some people believed that the referendum by itself provided enough authority to the government to commence the proceedings under Article 50.[19] Hence the question was one of importance and needed a resolution from the Court.

In 2009 however the House of Lords Constitution Committee had made the following observation, and was also cited in the Miller case:

"[B]ecause of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory."

Finally answering the question the authority of the referendum to invoke Article 50, the Court held that:

"implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation."

The Court next considered whether the UK parliament could assert its sovereignty while being a member of EU. To answer this fundamental question, Court referred to Dicey, who had famously stated that "Parliament has the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament."[20]

Finally the majority contended that "Not only can the 1972 Act 'be repealed like any other statute', but the 'principle of Parliamentary sovereignty', which is 'fundamental to the United Kingdom's constitutional arrangements', means that 'EU law can only enjoy a status in domestic law which that principle allows'."[21]

This view of the bench was directly in line with the principles enunciated in the HS2 case[22], and refuted the claims of ECJ in Factortame[23] that held that the EC laws overrides even the constitutional laws of the member States.

After clarifying the question of parliamentary sovereignty of UK as a member of the European Union, the Court turned its attention to the next important question which was regarding the power to set in motion Article 50 to leave EU.

The government argued that the power to exit EU vested with the executive, as it had the power to exercise the Crown's prerogative power to enter into and leave international treaties.

The prerogative powers have been defined to mean such ancient powers that formerly vested with the Crown, however have come to vest with and exercised by the executive acting as the representative of the Crown.

On the other hand, the claimants argued that the right to trigger Article 50 went beyond the government's prerogative power, and hence, a proclamation from the Parliament was needed.

The claimants argued that the prerogative power did not extend to invoking Article 50, because invoking Article 50 would lead to a change in the domestic law and this was beyond the prerogative power of the executive. And so, it was claimed that the executive unilaterally taking the decision to leave EU and thereby communicating this to the EU, was a clear case of defacement of the parliamentary sovereignty of UK.

Finally on the 3rd November 2016, the High Court set out that the executive had the power to use royal prerogative with respect to rights and obligations created with respect to international law. However, when the question was about individual rights protected by the domestic law, all the powers were held by the Parliament. The executive could not unilaterally repeal any Act which could potentially affect the individual rights of the people.

In particular, Chief Justice Lord Thomas held that[24]:

"An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative power."

"Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers".

However, this decision by the High Court did not satisfy many sections and the question ended up reaching the doors of the Supreme Court. Given the significant implications of this case, Court sat with a bench strength of eleven justices.

The Supreme Court upheld the decision of the High Court on 24th January 2017.

The Court held that the power to notify European Union as per Article 50 of the Treaty on European Union could not be taken via royal prerogative and that this power solely vested with the parliament.

The Court concluded that "the Crown cannot through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament."[25]

The Court further added, that "the government exercised its prerogative power in 1972 to enter into the treaty to join the European Union, however an Act was required to be passed by the parliament to give effect to the rights and obligations arising out of the treaty. Similarly, an Act by the parliament was required to take away these rights and obligations."[26]

CONCLUSION

As evidenced from this brief discussion, it has been proved that the United Kingdom never lost its parliamentary sovereignty, even after its accession to the European Union. In fact, it was the exercise of the parliamentary sovereignty that allowed the rights and obligations emanating from the European Communities Act 1972 to function in the UK. Additionally, the Miller case also made it clear that it was not the executive's place to interfere with the rights and obligations of the people, and certainly not through a referendum.[27] It is solely the domain of the parliament to define the rights and obligations of the people of UK. Thus establishing the supremacy of parliamentary sovereignty in the United Kingdom.

[1][2005] UKHL 56.

[2](1920) 28 CLR 106.

[3]Hattie Middleditch, 'The Miller Decision: Continuing Uncertainty over Brexit' (2017) 49 NYU J Int'l L & Pol 971.

[4]Sarah Mackie, 'Brexit and the Trouble with an Uncodified Constitution: R (Miller) v Secretary of State for Exiting the European Union' (2017) 42 Vt L Rev 297.

[5] European Referendum Act 2015.

[6]Alison L Young, 'Brexit, Miller, and the Regulation of Treaty Withdrawal: One Step Forward, Two Steps Back' (2017-2018) 111 AJIL Unbound 434.

[7]R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

[8]Treaty of the European Union 2009.

[9]AV Dicey, England's Case Against Home Rule (1973, Richmond Publishing Company, 1886).

[10]AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn, 1915).

[11]John McGarry, 'Principle of Parliamentary Sovereignty' (2012) 32 Legal Stud 577.

[12]Ahmet Emrah Gecer, 'The Principle of Parliamentary Supremacy in the UK Constitutional Law and Its Limitations' (2013) 6 Ankara B Rev 155.

[13]R v Secretary of State for Transport, ex p Factortame [1990] ECR 2433.

[14](Case 6/64) Costa v ENEL [1964] ECR 585.

[15]R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3.

[16]Juliette Ringeisen-Biardeaud, 'Let's take back control: Brexit and the Debate on Sovereignty' (2017) FJBS <https://journals.openedition.org/rfcb/1319> accessed 24 November 2020.

[17]Hector Calleros, 'Brexit: Judicial Review, Parliamentary Sovereignty and Referendum' (2018) 9 Rom J Comp L 223.

[18]Ibid (n 9).

[19]Ibid.

[20]Miller (n 5).

[21]Ibid.

[22]HS2 (n 8).

[23]Factortame (n 6).

[24]Miller (n 5).

[25]Ibid.

[26]Ibid.

[27]Keith Ewing, 'Brexit and Parliamentary Sovereignty' <https://www.modernlawreview.co.uk/wp-content/uploads/2019/03/Ewing-2017-The_Modern_Law_Review.pdf> accessed 24 November 2020.

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