UK Parliamentary Sovereignty in the UK in the Wake of Brexit

On 23 June 2016, the UK government held a referendum to decide whether the country should leave the EU. The majority citizens voted for Brexit (51.89 per cent to 48.11 per cent) with a turnout of 72%, however, they thoroughly fell behind in Scottish and Northern Irish tallies. Be that as it may, the Government was still expected to trigger Article 50 of the Treaty on European Union (TEU) as soon as possible, without the express permission from Parliament. The Prime Minister at the time, David Cameron, had promised that he would follow through with the outcome, even if that meant leaving the EU (BBC, 2017).[1]

However, the situation was not as straightforward as presented by the “Leave” campaign. The principle of parliamentary sovereignty meant that the referendum result had no legal binding. Therefore, the Prime Minister and government were free to ignore the referendum result if they saw fit.

Furthermore, some argued that the government had no right to trigger a leave; only Parliament could do so, as a result of the principle parliamentary sovereignty (Weale, 2017).[2]

This paper discusses the topic of parliamentary sovereignty in the UK, particularly in the wake of Brexit, and briefly touches on some social consequences had Parliamentary Sovereignty not been respected. The structure of this paper is therefore as follows:

First, Section 1 briefly discusses the history behind parliamentary sovereignty in the UK.

Then, Section 2 discusses the Miller Case, a case where the High Court upheld parliamentary sovereignty in the wake of Brexit.

Finally, Section 3 explores the European Union (Notification of Withdrawal) Act 2017, an Act of Parliament that grants the government power to leave the EU.

The Principle of Parliamentary Sovereignty

The idea of parliamentary sovereignty was conceived circa the Case of Proclamations in 1608 (Barnett, 2017).[3] This was a court decision that reduced the power of Monarchs. Essentially, the courts decided that moving forward, Kings and Queens would have to obtain Parliament’s permission to change laws. Specifically, the Case of Proclamations stated that “the King cannot change any part of the common law [….] without parliament” (House of Lords, 1610).[4] Following this, the English Civil War occurred 1642–1651, where Parliamentarians fought against Royalists for ideals such as parliamentary sovereignty. The Parliamentarians were victorious on such occasion and thus began the ‘Glorious Revolution’ in 1688, which established parliamentary sovereignty in England (Goldsworthy, 2010).[5] Then, in 1689, parliamentary sovereignty was enshrined in the Bill of Rights. Similarly to the Case of Proclamations, this bill requires Monarchs to obtain permission from Parliament before changing laws. Specifically, the Bill of Rights said, “Suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal” (Parliament of England, 1689).[6]

In modern day Britain, Parliament consists of three main decision making bodies: the Sovereign (the monarch, i.e. the King or Queen), the House of Lords (i.e. unelected members of parliament), and the House of Commons (i.e. elected Members of Parliament, or MPs). These three bodies form the highest power in the UK. The fact that Parliament has supreme power is known as parliamentary sovereignty. In the words of Legal commentator Albert Dicey, parliamentary sovereignty gives Parliament the power “to make or unmake any law whatever” (Dicey, 1915, p.3).[7] The only limits to parliamentary sovereignty are those that Parliament sets itself (Bradley, 2011).[8] An example of this self-enforced limit is Parliament’s subordination of the UK to the EU. This came into effect in 1972, when Parliament signed the European Communities Act, under which the UK was compelled to follow EU law (Barber, 2011).[9] Parliament also has the power to lift its self-imposed limits. For example, Brexit means that Parliament will repeal the European Communities Act, thus ending the EU’s control over the UK (Supreme Court, 2017).[10] It is also important to note that only Parliament can repeal Parliamentary acts. Essentially, the government and Queen cannot repeal Acts of Parliament without Parliament’s permission. 23. Parliamentary sovereignty has been a significant part of many cases and has repeatedly been called upon during cases of importance. A quote from Lord Bingham of Cornhill in R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262 at para. [9] encapsulates this significance perfectly: “The bedrock of the British constitution is … the supremacy of the Crown in Parliament.”

The Miller Case

Following the Brexit referendum in June 2016, Times journalist David Pannick noted that the government could not trigger Article 50 by itself; the government would have to first obtain permission from Parliament (Pannick, 2016).[11] This was because of the principle of parliamentary sovereignty. Specifically, Pannick noted that Parliament had agreed to the European Communities Act in 1972, and because only Parliament can reverse its own decisions, and therefore only Parliament can repeal the act and withdraw from the EU. He also drew attention to Article 50 of the Treaty on European Union, which says, “any member state may decide to withdraw from the union in accordance with its own constitutional requirements” (EU, 2007).[12] Pannick argued that since parliamentary sovereignty is a constitutional requirement, the EU would not accept the UK’s withdrawal without parliamentary approval (Pannick, 2016).[13]

Theresa May was dismissive of these claims. She asserted that they were a tactic to delay Brexit and subvert democracy (BBC, 2017).[14] She also stated that the government did not need parliamentary approval to trigger Article 50 (Freehills, 2016).[15] Notably, Theresa May stated, “It is up to the Government to trigger Article 50 – and the Government alone” (BBC, 2017).[16]

Many disagreed with Theresa May, as they believed that withdrawal from the EU without Parliament’s permission would be unlawful (Weale, 2017).[17] Several members of the public felt so strongly about this that took legal action against the government. Miller v Secretary of State for Exiting the European Union, or the Miller case as it was known informally, was heard in the High Court of Justice. Miller argued that Parliamentary involvement was necessary because:

“By enacting the 1972 Act, Parliament surrendered aspects of its legislative sovereignty and conferred the same upon (what are now) the EU Institutions. Such conferral cannot be undone […] without Parliamentary consent.” (Supreme Court, 2016, p.21)[18]

In plain English, Miller’s argument was that considering Parliament surrendered power to the EU in 1972, only Parliament could take this power back (Supreme Court, 2016).[19] The government disagreed with this claim. They believed that once the UK leaves the EU, the European Communities Act 1972 would simply cease to apply, because former treaties would not exist (Supreme Court, 2016; Weale, 2017).[20] Furthermore, the government argued that they had the royal prerogative to override parliamentary sovereignty. The royal prerogative is an old power that allows governments to make decisions without Parliament, in exceptional circumstances (Freehills, 2016).[21] The government also noted a rule that “the making and unmaking of treaties is […] within the competence of the government” (Supreme Court, 2017, p.84)[22]

The case was debated in the High Court for several weeks until the High Court delivered its verdict on 3 November 2016. The High Court ruled in favour of Miller: the government had to obtain parliamentary authority to trigger Article 50. The High Court had agreed with Miller’s arguments about the principle of parliamentary sovereignty (Supreme Court, 2017).[23] The court explained that because of parliamentary sovereignty, only Parliament could repeal the European Communities Act. This is because only Parliament can repeal an Act of Parliament. The High Court also explained that Article 50 would nullify several rights of UK citizens (Supreme Court, 2017).[24] These rights included the right of UK citizens to live and work freely in other EU countries, and the right to 20 days paid holiday under the Working Time Directive 2003. Parliament put these rights in place when it passed the European Communities Act in 1972.

The High Court also ruled against the government’s right to use the royal prerogative (Supreme Court, 2017).[25] To explain why, the High Court cited the case of Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, 101. This case involved use of the royal prerogative. Lord Reid, dismissed the royal prerogative as a “relic of a past age” (House of Lords, 1965, p.101).[26] Lord Reid also explained that the royal prerogative is “only available for a case not covered by statute” (p.101).[27] Typically, the royal prerogative is only for situations such as declaring war, dissolving parliament and governing colonies (Wade, 1961).[28] So, in Miller’s case, the High Court explained that a royal prerogative was inappropriate for triggering Brexit. Therefore, the government did not have the power to trigger Article 50 without Parliament’s approval.

The government was unhappy with the High Court’s decision and chose to appeal it, and as a result the case went to the Supreme Court. Ultimately, the Supreme Court dismissed the government’s appeal, citing the same reason as the High Court (Supreme Court, 2017).[29] Essentially, the court explained, the government in 1972 needed Parliament’s approval to sign the 1972 Accession Treaty. This meant that present-day government also needed Parliament’s approval to repeal this treaty (Supreme Court, 2017).[30] Of course, those in the “Leave” camp were outraged with the High Court’s decision. Like Theresa May, they believed that Parliament was attempting to obstruct the progression of Brexit. A Ukip donor accused the High Court of “declaring war on British democracy” (Maguire, 2016).[31] In reality, however, this was not the case; the High Court was merely upholding the British constitution as intended, by honouring the principle of parliamentary sovereignty (Weale, 2017)[32] and following the Rule of Law.

Importance of the Rule of Law

On 29 March 2017, the Prime Minister wrote to the President of the European Council to notify the European Council of the United Kingdom’s intention to leave the European Unit and the triggering of Article 50 of the Treaty. Brexit is no longer a hypothetical question. It is a concrete fact – it is happening. An issue that has been brought to the front is the belief that the Government has the power, and right, to act on Brexit without Parliaments involvement. This is even more troubling as the very constitution is built upon Parliamentary sovereignty. The issue of human rights comes up as it can be dangerous, in a country where the legislature is mostly under the control of the executive, to leave it solely up to a sovereign Parliament with an absent constitution. If the Parliament can be avoided altogether, this can lead to an even worse situation overall and so highlights how important it was for the Supreme Court in Miller to stand up for and defend the power of Parliament over the executive.

 Brexit is one of the most influential and far-reaching changes to the international social and political landscapes today. Brexit will shape Britain, and the international community, for years to come. It is for this reason that it is undeniable that this process should be founded in the rule of law. To comprehend the importance of the rule of law we must give it a clear definition. A well-known definition is that of Lord Bingham: “…that all persons and authorities in the State, whether public or private, should be bound by and be entitled to the benefit of all laws publicly made, taking effect (generally) in the future and publicly administered in the courts.” The Venice Commission has identified the following 8 components of the rule of law: ‘(1) Accessibility of the law (that it be intelligible, clear and predictable); (2) Questions of legal right should be normally decided by law and not discretion; (3) Equality before the law; (4) Power must be exercised lawfully, fairly and reasonably; (5) Human rights must be protected; (6) Means must be provided to resolve disputes without undue cost or delay; (7) Trials must be fair, and (8) Compliance by the state with its obligations in international law as well as in national law.’ The importance of the rule of law is recognised in multiple international documents. For example, the preamble to the UN Declaration of Human Rights notes the importance of the rule of law in protecting human rights. The Treaty on European Union also couples ‘the rule of law and respect for human rights’. It is this human rights element that the remained of this short essay will focus on. Brexit will reform the social landscape of Britain and Europe. It is of paramount importance that the rule of law is respected in this reformation to ensure that fundamental rights, particularly those of minorities and vulnerable individuals, continue to be respected. This is especially true given that there has been much debate as to whether the Brexit vote was fuelled by xenophobia and racism. Research has shown that there was an increase in support for far-right groups during the Brexit campaign and following the murder of Jo Cox. There has also been an alleged escalation in hate crime targeting migrant communities as well an increase in anti-immigration rhetoric. The Brexit vote, coupled with Trump, and the rise of the far-right, summons fears surrounding the polarization of politics and the creeping rise of extremism. With this in mind, it is quite chilling to consider Lord Bingham’s thoughts on a system which is not founded on the rule of law: “The hallmark of a regime which flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiments, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide and ethnic cleansing, the waging of aggressive wars.” In a time when international politics is becoming increasingly unclear and strained and communities are fraught with increased fear and racial tensions, now more than ever, the rule of law and the importance of Parliamentary Sovereignty must be respected. As noted by the Prime Minister, the task before the British nation is momentous but it should not be insurmountable. Britain post-Brexit has an unclear future and an undefined path. By adhering to the rule of law, the certainty, stability and protection that it provides will ensure that this difficult task is negotiated with the utmost respect for all peoples and their inalienable human rights.

The European Union (Notification of Withdrawal) Act 2017

Given that the Supreme Court had dismissed the government’s appeal, the government now needed Parliament’s approval to trigger Article 50. In order to receive this approval, the government introduced a new bill in Parliament. This bill was called the European Union (Notification of Withdrawal) Act 2017.Essentially, this bill would give Theresa May the power to trigger Article 50. However, Parliament had the power to reject the bill if it felt appropriate. This was again because of parliamentary sovereignty (Weale, 2017).[33] Despite that most voters voted ‘Leave’ in the referendum, this result was not legally binding and Parliament could ignore the referendum result. The principle of parliamentary sovereignty means that the ultimate power rests with Parliament, not the public nor the results of referendums. The public only have the power to elect MPs, and once elected, MPs can go against the wishes of their constituents and make their own decisions if they want to. MPs can even go against a referendum result, despite that this might cause great anger with the British public. As Dicey stated, “the electors can in the long run always enforce their will” (Dicey, 1915).[34]

However,  all three decision making bodies of Parliament – the Queen, the House of Lords and the House of Commons – approved the Notification of Withdrawal Act (BBC, 2017).[35] The Queen gave the final green flag on 16 March 2017. This gave the Prime Minister the power trigger to Article 50 and inform the EU of the UK’s withdrawal. The government officially triggered Article 50 on 29 March 2017, when a UK envoy delivered a letter of withdrawal to the President of the European Council (BBC, 2017).[36] The issue of parliamentary sovereignty then took a back seat as the UK began exit negotiations with the EU.

Of the 170,000 statutory instruments that have been sent to Parliament in the last 65 years, only seventeen have been rejected, and any substantive debate over individual instruments is a rare occurrence. Responsibility has been delegated for regulation both to the government and the European Union. For this reason, possibly up to sixty per cent of UK law may be derived from EU law in some way. Furthermore, for many years, legislative and technical expertise in the pertinent areas have again been delegated to Brussels. This leaves domestic civil servants under prepared to handle the of important decisions that will need to be made in the coming years. David Allen Green’s analysis is difficult to refute: “under the cloak of the referendum result there will be a power grab by Whitehall from Westminster. Those rejoicing at “taking back control” should be careful what they wish for. The executive is, as usual, wanting to take control away from Parliament.”

On many occasions, it has been asserted that because the ‘people have spoken’ through the referendum, it gives the executive the right to push onward without the consent of Parliament. On many occasions, it has been asserted that because the ‘people have spoken’ through the referendum, it gives the executive the right to push onward without the consent of Parliament. Does this mean that the claims of direct democracy, in the form of the referendum, trump the claims of Parliamentary representative democracy, with the paradoxical effect of giving more power to the executive? The greater part have affirmed that referenda are in and of themselves a product of Parliamentary authority and must accordingly rely on the statute which enables them. The 2015 EU referendum Act only called for the referendum to take place, without establishing how to approach it or the potential consequences. ‘Where, as in this case, 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 actual political importance of a referendum is not subverted however. What is does assert is the basic dogma that, in a democracy, the people can speak through their representatives in Parliament. Nevertheless, direct democracy cannot be operationalised by giving undiluted power to the executive.

Conclusion

This paper has discussed parliamentary sovereignty in the UK in the wake of Brexit. First, Section 1 introduced the concept of parliamentary sovereignty in the UK. This section explained that parliamentary sovereignty goes back to the 17^th century, when the courts first enshrined the principle in the Bill of Rights. The section also drew attention to the rule that only Parliament can undo Acts of Parliament. I then discussed the Miller case in Section 2. In this case, members of the public argued that the government required Parliament’s approval to leave the EU. The courts decided in favour of Miller’s side; that explained that Parliament was needed to trigger to Article 50 due to parliamentary sovereignty. The decision was controversial because some people saw it as an attempt to subvert the referendum result. Finally, Section 3 discussed the European Union Act 2017. This act that demonstrated the principle of parliamentary sovereignty. The government essentially asked Parliament for permission to trigger Article 50, and Parliament agreed by passing the act.

In conclusion, the principle of parliamentary sovereignty was tested in the wake of Brexit. Ultimately however, courts respected the principle and gave Parliament the ultimate power over whether Britain should leave the EU. However, the future is still uncertain, as no-one yet knows what Brexit will look like. Perhaps a future Parliament will reverse the Brexit decision. After all, parliamentary sovereignty gives future Parliaments the right to reverse the decisions of previous Parliaments. What needs to be addressed is the potential consequneces that the referendum may have on Palimentary sovernety and represesentitive democracy throughout the UK. For this reason, Parliment needs to continue to be a central part of the process despite any predetermined preferences from the Government itself. Parliamentary sovereignty must remain intact as, for the many reasons stated, it is an integral part of the United Kingdom’s constitution, because its deliberate and representative functions and ability to hold the executive to account are defining features of the United Kingdom’s enduring constitution.

References

Barber, N.W., 2011. The afterlife of Parliamentary sovereignty. International Journal of Constitutional Law, 9(1), pp.144–154.

Barnett, H., 2017. Constitutional and administrative law, Taylor & Francis.

BBC, 2017. BBC News website. Available at: http://www.bbc.com/news [Accessed July 14, 2017].

Bradley, A., 2011. The Sovereignty of Parliament–Form or Substance? The Changing Constitution, 23, pp.54–56.

Dicey, A.V., 1915. Introduction to the Study of the Law of the Constitution 8th ed., Liberty Classics.

EU, 2007. Treaty on European Union,

Freehills, H.S., 2016. Judicial review litigation over the correct constitutional process for triggering Article 50 TEU. Lexology. Available at: http://www.lexology.com/library/detail.aspx?g=f43e102f-ea09-4449-b781-a35ecfe628fe [Accessed July 13, 2017].

Goldsworthy, J., 2010. Parliamentary sovereignty: contemporary debates, Cambridge University Press.

House of Lords, 1965. Burmah Oil Co (Burma Trading) Ltd v Lord Advocate AC 75,

House of Lords, 1610. Proclamations, Case of [1610] EWHC KB J22, Available at: http://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html.

Maguire, P., 2016. Seizing our sovereignty or declaring war on democracy: split view on judges’ ruling. The Guardian. Available at: https://www.theguardian.com/politics/2016/nov/06/brexit-this-is-what-sovereignty-looks-like#img-1 [Accessed July 13, 2017].

Pannick, D., 2016. Why giving notice of withdrawal from the EU requires act of parliament. The Times. Available at: https://www.thetimes.co.uk/article/c8985886-3df9-11e6-a28b-4ed6c4bdada3.

Parliament of England, 1689. English Bill of Rights,

Supreme Court, 2016. Miller v. Secretary of State for Exiting the European Union – Written case for Mr George Birnie & Others (The “Expat Interveners”), Available at: http://www.croftsolicitors.com/wp-content/uploads/2016/11/139459-UKSC-2016-0196-Skeleton-for-Expat-Interveners-final-written-case-2.pdf.

Supreme Court, 2017. Miller v Secretary of State for Exiting the European Union, London. Available at: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf.

Wade, W., 1961. Administrative Law, London: Oxford University Press.

Weale, A., 2017. The Democratic Duty to Oppose Brexit. The Political Quarterly, 88(2), pp.170–181.

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[1] BBC

[2] Albert Weale, ‘The Democratic Duty to Oppose Brexit’ (2017) The Political Quarterly 177

[3] Hilaire Barnett, Constitutional and administrative law (Taylor & Francis 2017)

[4] House of Lords, Case of [1610] EWHC KB J22

[5] Jeffrey Goldsworthy, Parliamentary sovereignty: contemporary debates (Cambridge University Press 2010)

[6] Parliament of England, English Bill of Rights

[7] Albert Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Classics 1915)

[8] Anthony Bradley, ‘The Sovereignty of Parliament–Form or Substance?’ (2011) The Changing Constitution 54

[9] Nicholas Barber, ‘The afterlife of Parliamentary sovereignty’ (2011) International Journal of Constitutional Law 149

[10] Supreme Court, Miller v Secretary of State for Exiting the European Union

[11] David Pannick, Why giving notice of withdrawal from the EU requires act of parliament

[12] EU, Treaty on European Union

[13] David Pannick, Why giving notice of withdrawal from the EU requires act of parliament

[14] BBC

[15] Herbert Smith Freehills, Judicial review litigation over the correct constitutional process for triggering Article 50 TEU

[16] BBC

[17] Albert Weale, ‘The Democratic Duty to Oppose Brexit’ (2017) The Political Quarterly 180

[18] Supreme Court, Miller v. Secretary of State for Exiting the European Union – Written case for Mr George Birnie & Others (The “Expat Interveners”) 21

[19] Supreme Court, Miller v. Secretary of State for Exiting the European Union – Written case for Mr George Birnie & Others (The “Expat Interveners”)

[20] Albert Weale, ‘The Democratic Duty to Oppose Brexit’ (2017) The Political Quarterly 180

[21] Herbert Smith Freehills, Judicial review litigation over the correct constitutional process for triggering Article 50 TEU

[22] Supreme Court, Miller v Secretary of State for Exiting the European Union 84

[23] Supreme Court, Miller v Secretary of State for Exiting the European Union 84

[24] Supreme Court, Miller v Secretary of State for Exiting the European Union 84

[25] Supreme Court, Miller v Secretary of State for Exiting the European Union 85

[26] House of Lords, Burmah Oil Co (Burma Trading) Ltd v Lord Advocate AC 75 101

[27] House of Lords, Burmah Oil Co (Burma Trading) Ltd v Lord Advocate AC 75 101

[28] William Wade, Administrative Law (Oxford University Press 1961)

[29] Supreme Court, Miller v Secretary of State for Exiting the European Union

[30] Supreme Court, Miller v Secretary of State for Exiting the European Union

[31] Patrick Maguire, Seizing our sovereignty or declaring war on democracy: split view on judges’ ruling

[32] Albert Weale, ‘The Democratic Duty to Oppose Brexit’ (2017) The Political Quarterly 174

[33] Albert Weale, ‘The Democratic Duty to Oppose Brexit’ (2017) The Political Quarterly 174

[34] Albert Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Classics 1915)

[35] BBC

[36] BBC