Assessing the Extent of Brexit on Parliamentary Sovereignty

Assessing the Extent of Parliamentary Sovereignty Restoration after Brexit

Brexit, a name given to the UK’s departure from the EU, has been the subject of ongoing legal and political discourse. Brexit occurred on Jan 31, 2020, due to the 2016 referendum. One of the significant objects of the discourse is the constitutional impact of Brexit. This is because one of the reasons cited for the UK’s departure from the EU is the limitation of the UK’s parliament sovereignty. As a member of the European Union, the UK was bound by the EU laws, which it had to abide by due to the risk of censure from the European Court of Justice in Luxembourg. As such, the question of sovereignty arises from the fact that the European law has supremacy compared to the UK law, a sovereign nation. The belief is that, with Brexit, parliamentary sovereignty can be restored since EU laws will no longer bind the Kingdom. In the UK, the parliament is the supreme legal authority that can create or end any law, and parliamentary sovereignty defines the British constitution. The UK’s entry to the EU limited the application of its sovereignty. This poses the question of whether and the extent to which Brexit restored the parliamentary sovereignty of the UK government. This essay answers this question by arguing that there has been limited restoration of parliamentary sovereignty in the UK because the Kingdom retained most of the sovereignty in the first place through pooling, opt-outs, and vetos, and the recently exercised withdrawal. Further, the extent of the UK’s influence on the EU limits the extent of restoration, not to mention most of the laws suited the Kingdom.

According to an article by Baker, after Brexit, just 800 of the estimated 4,000 EU laws will be scraped by the end of the year. Two years after Brexit, considerations are being made on the laws that will be scraped off, and as it turns out, about 75% of the laws will be retained. Further, the laws that are going to be scraped off are the laws that are deemed non-essential and not detrimental to the development of the UK. It is, therefore, apparent that there is limited restoration of sovereignty because minimal sovereignty was lost in the first place. The politicians remain optimistic that the retained EU Law Bill will receive royal assent and end the unnecessary and burdensome laws insisting this is how it was supposed to work. However, it can be observed that the promised restoration of parliamentary sovereignty is far from being achieved, with the nation still being “shackled” to the EU laws.

In justification of the retention of the laws, the parliament argues there is no reason why the parliament cannot or should not assign the direct EU law a recognizable domestic legal status just because it is derived from the EU. Further, the argument states that there is no reason why these laws cannot be assigned domestic legal status once recognized as domestic law. Thus, reviewing the EU laws and deciding which to adopt as domestic laws was an option that did not affect the sovereignty of the Kingdom. The Kingdom, therefore, retained most of its sovereignty regardless of the claims during Brexit. Thus, the feeling that sovereignty is impacted is derived from a lack of ownership of the laws.

 Another measure of parliamentary sovereignty post-Brexit is the amount of authoritative power of the UK parliament. One would expect that restoration of the parliamentary sovereign power means the parliament gains expressive power that is not limited. However, this has not been the case, especially during the transition period. First, the sovereignty of the parliament is limited by national law and the people’s will. Chief Justice Hobert, in Day v Savage, asserted that an act of the parliament made against natural equity to make a man a judge in his case is void. As such, the sovereignty of the UK parliament is subject to the people’s will and political interference. Where Brexit was expected to restore the sovereignty of the parliament, it highlighted the shortcoming of the parliament where it seems sovereignty is nonexistent. The parliament had the authority to ignore the referendum’s outcome but could not due to the political influence of the conservative parties’ promises to the public. This is supported by Mabbett, who attests that some issues are so fundamental that the parliament cannot legitimately decide them. This is an example of such a case. Apparently, the MPs proved incapable of organizing themselves, setting an agenda, and voting for them. Thus, there has been limited sovereignty of the parliament because the people have reduced their mandate and power for legitimacy, and the executive and monarch are responsible for foreign policy. High expectations have been placed on the parliament for the restoration of sovereignty, which cannot be realized because of domestic impediments.

Bibliography

Case

Day v Savadge VLEX 802913005

EU

The European Union (Future Relationship) Act 2020 (References to the Trade and Cooperation Agreement) Regulations 2021

European Union (Withdrawal Agreement) Act 2020

Secondary Sources

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