Brexit: Taking Back Control

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Introduction:

This essay will discuss and explore Parliamentary Sovereignty and whether the United Kingdom is gaining back control of its borders, money and laws while protecting the economy through its departure from the European Union. It will also discuss the divided viewpoints and disputes from the supporters of Brexit, who strongly give credence to the regain of Parliamentary Sovereignty to the result of the UK’s wish to exit the European Union.

Brexit is the withdrawal of the United Kingdom from the European Union, in which a referendum was held on Britain’s membership of the European Union in 2016, where the majority voted to leave. Therefore, on Friday 30th of January 2020, the United Kingdom officially departed from the European Union. Evidently, this connects with Parliamentary Sovereignty as Parliament is regarded as the supreme legal authority in the UK, which means that the Parliament obtains absolute power to make or change any law. Moreover, A.V Dicey, a constitutional theorist, provided the following main principles of parliamentary sovereignty which are, “Parliamentary Sovereignty has the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to set aside the legislation of Parliament.” This demonstrates the importance of parliament having a legally unlimited law making capacity, as the result of an elected body which is considered as democratic. Furthermore,it has been indicated that the UK will regain control of their Parliamentary Sovereignty as Great Britain does not wish to be bound by EU laws anymore. Thus, it is how the taking back control movement took place.

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“Taking back control”

According to the Government, the Brexit deal will give the people of the United Kingdom back control of their borders, their money and their laws. The referendum was a call to reclaim the UK’s sovereignty and that deal delivers on that promise. The UK is taking back control by making their immigration laws stricter, which means that free movement will end and it will be in the hands of the Parliament deciding their domestic immigration policy. Therefore, this means that new controls will take place as part of a neutral immigration system. Moreover, Vast annual payments to the European Union will end which means the UK will leave the EU budget. This indicates that money can now be invested into domestic priorities such as the NHS since the Government announced over £394 million per week for the NHS by 2024 which means that every part of the United Kingdom will benefit with extra funding including Northern Ireland, Scotland and Wales. Lastly, EU law in the UK will end as this means the CJEU (Court of Justice of the European Union) will therefore end in addition and the laws will be passed to elected representatives within the UK. This demonstrates that UK courts will no longer refer cases to the CJEU, instead, the Parliament will be the one to take decisions on what to do with new freedoms and distribute changes in a form that functions the best for businesses and citizens across the country. Thus, this could explain how the UK is regaining control of Parliamentary Sovereignty since its departure of the UK.

Undoubtedly, there have been intense debates revolving around the UK’s departure from the European Union. However, it is challenging to acknowledge what leaving the European Union would actually look like for the UK. Discussions of whether Parliamentary Sovereignty was vanishing due to Britain’s membership with the EU has been the biggest topic for the vote to leave campaigners. Many of them consider that European Union laws should never be held higher than Acts of Parliament, this is in fact indicated in declaration 17 of the Lisbon Treaty, where it affirms that “law adopted by the Union on the basis of the Treaties have primary over the law of Members States”. This principle is also indicated in section 18 of the 2011 European Union Act 2011. Moreover, this was confirmed in the Factortame case which played a vital part in the discussion between the supremacy of the European Union and the Parliamentary Sovereignty of the United Kingdom. Furthermore, limitations were imposed by the UK government by the Merchant Shipping Act 1988 in the UK courts as section 13 and 14 suspended the requirements. This particular case is vital in the debate between the European Union and the Parliamentary Sovereignty of the UK constitution, it indicates the supremacy of the EU law over the Member State’s own law which is the UK. For instance this case is a great form to show how law courts do not act by the law created by Parliament. Therefore, the Factortame litigation is seen as evidence of the erosion of Parliamentary Sovereignty of the United Kingdom’s constitution and strengthens the views of the lack of Parliamentary Sovereignty from the Brexit vote to leave campaigners.

Limitations on Parliamentary Sovereignty

As previously discussed by Dicey, parliament can make or unmake any law and that no one can question the validity of an Act. The principle also indicates that the only exception to the unlimited legislative power of the Parliament is that Parliament cannot bind its successors. Moreover, Dicey’s Parliamentary sovereignty view was approved by three judicial principles which are; the enrolled bill rule, the rule of recognition and the doctrine of implied repeal. However, those rules have been contradicted by obiter comments made in Jackson v Her Majesty’s Attorney General, R (HS2 Action Alliance Ltd) v Secretary of State for Transport and Thoburn v Sunderland City Council

Firstly, the Jackson v Attorney General case demonstrated potential limitations of Parliamentary Sovereignty in the United Kingdom, as the judges rejected the appeal after concluding that the 1911 Parliament Act provided no limitations that would dismiss the 1949 act from being ratified, and consequently the 1949 Parliament Act and the 2004 Hunting Act were in complete legal effect. This case negatively affects the traditional view of unlimited Parliamentary sovereignty and whether or not the House of Lords could question the validity of an Act. Moreover, Lord Steyn’s obiter view on the hypothetical limitations to Parliamentary Sovereignty provided the fact that “it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism”. This obiter view limits Parliamentary supremacy because the judiciary is not elected by citizens.Therefore, the judicial powers that he previously discussed would have no legitimacy democratically.

Furthermore, the Thoburn v Sunderland City Council case also obtains valid drawbacks of Parliamentary sovereignty in the United Kingdom. According to this case, the judges acknowledged whether there are issues between the European Union law and primary legislation, and in consequence, the European law will still be proven superior. This view goes against the orthodox view where the validity of an Act of Parliament cannot be challenged. In addition, these similar facts have also been indicated in the (HS2 Action Alliance Ltd) v Secretary of State for Transport case, as the judges were ought to investigate the relationship between the EU and UK law with respect to Parliamentary Sovereignty.

In addition, whilst the members of the parliament are elected by the public in order to represent their interest, the power to import new laws belongs with the House of Commons. It could be said that the fact that Parliament is elected is truly a form of democracy, however this does not mean the public is always content with the decisions of the Parliament. As Jennings states, “Parliament passed many laws which many people do not want. However, it never passes any laws which any substantial section of the population violently dislikes.” Jennings’ view is somewhat vital to acknowledge as it suggests the supremacy from Parliament over the public even with a democratic state where the people can elect their MP’s. This is a result of the UK’s uncodified constitution that has made the elections inconsistent and not legally binding and since the number of votes became low, Lord Lisvane requested a second referendum due to the previous one resulting to be “not sufficiently decisive.”

Regaining more sovereignty after Brexit

As previously discussed and demonstrated in the Jackson, HS2 and Thoburn cases, they have made the traditional Parliamentary Sovereignty views no longer consistent, as it is clear that Parliament will still be limited in its supremacy despite the circumstances of whether or not the United Kingdom leaves the European Union. The vote to leave campaigners declares that Britain’s membership within the EU has restricted their Parliamentary sovereignty, however, they have used royal prerogative to trigger Article 50 of the TEU (Treaty on European Union) from the Government without seeking authority from Parliament. This shows the inconsistency and the fact that they are going against what they are fighting for which is regaining Parliamentary sovereignty. In addition, there were many disputes and criticism by the media with the decision of the judges in the case of R (on the Application of Gina Miller) v Secretary of State for exiting the European Union which proved lack of concern with the United Kingdom’s constitutional values, as the judges were evaluating the laws from an unbiased viewpoint including the fact that they were supporting the idea of regaining Parliamentary Sovereignty.

On the other hand, as previously discussed, there had been political and economic limitations imposed on the United Kingdom prior to their withdrawal from the European Union. However, that will cease to be the case post-Brexit. Moreover, the ECHR Right to Freedom of Movement has also provoked the idea of creating stricter rules for UK borders, as it currently states that EU members must allow all EU citizens to have access within a country and work without restrictions. “Everyone lawfully within the territory of a State enjoys, within that territory, the right to move freely and to choose his or her place of residence”. Furthermore, according to The Office for National Statistics, the right of free movement has allowed 2.31 million European Union nationals to work within the United Kingdom. Subsequent to Brexit, the Government will commence their selectiveness with immigration laws as they hope to carry out tighter high skill immigration and student exchange measures. Therefore, this indicates how the end of EU membership will permit the UK to regain their sovereignty after Brexit.

Conclusion

From a constitutional viewpoint leaving the European Union could set drawbacks for the United Kingdom’s reputation, due to the fact that it could negatively impact their economy as a result of the complex procedure in regards to the departure from the European Union. However, the UK is currently legally recognised as sovereign and completely independent since its departure, nonetheless, it is vital to acknowledge the fact the UK still obtains international obligations that would still prevail over law subsequent to Brexit, nevertheless, as a consequence of the UK leaving the EU, European Union treaties cannot longer bind on Britain. Overall, even though the UK’s exit from the European Union will perhaps release from EU obligations, the United Kingdom will not completely regain an unlimited sovereign Parliament in consequence of Brexit.

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