Essay on Brexit and Parliamentary Sovereignty

The European Union was formed to promote peace and prosperity within the European region and among its member states (Armingeon and Ceka 84). More importantly, the European Union was established complete with laws, and regulations, and with a court that ensured that these laws were appropriately defined (Armingeon and Ceka 86). Nevertheless, and despite the European Union’s progress, some members viewed the concept as a device that dragged political and economic success. The United Kingdom, in particular, considered the European Union as a system that denied it the sovereignty and significance accorded to other countries of its rank (Ewing 291). According to many, the European Union diminished the power and influence previously enjoyed by the United Kingdom (Ewing 294). Consequently, Brexit was introduced with the underlying premise of regaining control of economic and political matters that mattered immensely to the people of the Kingdom. To a greater extent, Brexit has made the United Kingdom independent from the European Union, but it has also influenced the powers or the sovereignty of the country’s Parliament. Brexit delegated the powers that were beforehand enjoyed by the European Parliament to the British Parliament. Today, the United Kingdom’s Parliament can decide upon its country’s legislation and direct how it negotiated international treaties. However, the process itself triggered a political stalemate regarding the roles played by the Parliament in national legislative processes.

The Significance of Brexit and Parliamentary Sovereignty

Before the institutionalization of Parliament, Britain was primarily led by a monarchy. The monarchs ruled England with the utmost power and authority, and the people had little to no influence on how they were led (Gifford 331). Scholars and revolutionists alike agreed that the monarch held too much power, an aspect that greatly affected the people of England (Gifford 331). There was a need to distribute this power evenly among the people, and in 1215 the first English Parliament was convened. For the first time in history, kings were required to seek Parliament’s approval before taking anyone’s money or taking the country into war (Armingeon and Ceka 86). The first Parliament was promising but did not solve the sovereignty issues experienced at the time. More significantly, the concept of Parliamentary sovereignty was core to the English Civil War. But before the English Civil War, the Parliament has already established its status as the ultimate ruling institution through the 1910 Case of Proclamation (Gifford 325). However, this did not mean that the controversies surrounding the concept of Parliamentary sovereignty had ended. Significantly new and more scholarly arguments arose.

Scholars, including Albert Venn Dicey, forwarded their arguments regarding Parliamentary sovereignty. Dicey’s perspective was critical as it examined the reciprocal link between the British Courts and Parliament (Lino 756). In particular, contrary to the courts, he claimed that the Parliament was supreme and had the absolute power to establish and decide the law (Lino 756). The Dicey principle remains prevalent even today; in fact, the Dicey principle of Parliamentary sovereignty is one of the most famous principles that the courts adopted when dealing with consequential sovereignty cases. Albert Venn Dicey recognized the right and the authority of the Parliament to make and unmake laws (Lino 756). Further, he stated that no person or body has the right to override or set aside the laws enacted by the Parliament (Lino 758). There are those who may argue that the Parliament acts to join the European Union were based on this particular principle. Or it could be argued that the Parliament joined the European Union because it could; it had the powers to do so.

Parliament’s Sovereignty Before Brexit

The United Kingdom is one of the most established Parliamentary democracies in the world. The kingdom’s unique status is not only defined by its unique Parliamentary democracy in the typical sense, but it is determined by the central constitutional tradition of Parliamentary sovereignty (Gordon 336). This is what makes the British Parliament the highest authority with no written constitution to bind its powers. Moreover, it is essential to note that the United Kingdom’s political system takes the form of a unitary Parliamentary constitutional monarchy with a republican form of government in which political power is entrusted to the Parliament with the confidence of the people. In other words, this means that the power of the people is delegated to the Parliament. In 1973 the Parliament used these powers to join the European Community through a Parliamentary decision rather than a referendum (Gordon 336).

Parliamentary sovereignty has always been a source of heated debate in the United Kingdom, and this has been the case since Britain joined the European Union. More importantly, the 1999 Factortame Ltd V. Secretary of State for Transport decision by the House of Lords fueled this debate, and according to many, the decision deteriorated the situation. The decision made it clear that European legislation could supersede the act of the United Kingdom’s Parliament. In other words, the laws enacted by the European Parliament were superior to laws made within member states. British representatives, in the case of Factortame, based their claim on the 1988 Merchant Shipping Act, a British statute banning foreign ships from fishing in the territories of the United Kingdom (Frosini, and Gilbert 767). The House of Lords and the European Court of Justice established that the act violated Community Law in the European Union agreement (Frosini and Gilbert 767). At the same time, the European Court of Justice ruled that in the interest of justice, national laws had to be set aside if they contradicted Community law. Notably, the two stances showed that European Union’s laws were superior to British laws; these stances proved that any statutes established by the United Kingdom’s Parliament were inferior to the laws enacted by the European Parliament.

The ruling by the House of Lords and the European Court of Justice display a transfer of sovereignty from the British Parliament towards the European Parliament. Nevertheless, numerous domestic decisions and acts of Parliament also contributed to reshaping the concept of sovereignty. The 2002 Thoburn V. Sunderland City Council case is an excellent example. This case included all the requisite ingredients to make the market trader, who, in breach of the European Community directive, used pounds rather than kilograms to measure his vegetables, a martyr of allegedly inane European legislation. Lord Justice Laws a renowned figure, in this case, ruled that numerous laws and charters including the 1972 European Communities Act, the 1998 Human Rights Acts and other similar acts were to be granted specials status under the English Constitution (Frosini, and Gilbert 768). This extra protection did not by any way prohibit the full power of Parliament to abolish any of these pieces of legislation; however, these abolish had to be expressly specified and could not be inferred. It must be emphasized that European law takes precedence over United Kingdom laws in the classical British view only to the degree that Parliament supports it.

Parliament’s Sovereignty After Brexit

The precedence set by justice Laws and the rulings established by the House of Lords and the European Court of Justice explicitly indicates that the British Parliament’s sovereignty before the Brexit was in decline. The decision to join the European community was uncalculated. The Parliament’s decision to delegate its powers to the regional assembly significantly diminished its supremacy and influence in the United Kingdom and regionally (Douglas-Scott 1022). The laws enacted by the United Kingdom’s Parliament were demeaned and disallowed by the European Court of Justice, which adversely affected its political atmosphere. Brexit was the only way the people and the Parliament could bring back the power they previously enjoyed (Douglas-Scott 1020s). Brexit established a new start for the British Parliament. However, it is critical to note that Brexit, an excuse to regain Parliamentary sovereignty, displayed a misplaced sense of nationalism. The conventional view of Parliamentary sovereignty is no longer valid, as this seen in the Factortame, Thoburn, and HS2 cases, and Parliament is now constrained in its authority. More significantly, Theresa May’s plan to utilize royal prerogative to Article 50 of the constitution and the media’s unprecedented attacks on judges for doing their jobs shows that the limits previously placed on the British Parliament have risen (Lakin 712). Such instances show that the European Union did not limit the kingdom’s Parliamentary powers, but the limits came from its system.

The post-Brexit United Kingdom’s Parliament will experience incredible changes. For instance, the Parliament and the United Kingdom’s government will have to operate solely within the frame of the World Trade Organization (WTO); they will also be forced to negotiate a Free Trade agreement with the current European Union. Operating and negotiating solely in the World Trade Organization will offer the United Kingdom’s Parliament considerable freedom to enter and negotiate commercial deals (Gordon 337). However, the United Kingdom will not secure access to the Single Market, keeping in mind that maintaining the Single Market membership as part of the European Economic Area is worth 4 per cent on the GDP relative to World Trade Organization membership alone. At the same time, the government will be bound by the agreements adopted and accepted by its institutions in the context of sovereignty, but not generally by Parliament. Indeed, the administration could be tempted once more to resort to royal prerogative to circumvent the Parliament. Likewise, if the United Kingdom were to discuss bilateral Free Trade arrangements, the outcomes would be challenging to foresee.

Exiting the European Union might have offered the United Kingdom the opportunity to negotiate and direct its trade arrangements, but it triggers differing political stances. First, there are those who believe that because the nature of Brexit was determined through a referendum as opposed to the act of Parliament, the executive gained extra powers, particularly powers to move forward in the absence or without Parliamentary consent (Lee et al. 145). In other words, one may argue that Parliament played a minimal role in Brexit or Parliament’s ultimate role and influence in the kingdom is vanishing. The executive overlooked the role of Parliament and engaged the people directly in deciding the nature of Brexit. By this, one may argue that the unitary Parliamentary constitutional monarchy enjoyed by the United Kingdom is diminishing a fact that threatens the sovereignty of the United Kingdom’s Parliament. In like manner, the fact that Brexit was decided through a referendum means that the representative democracy currently in the country can be ignored, and the people can exercise their powers directly.

Other arguments rest on the balance of power between the major governing bodies in the country. It is believed that the Brexit vote was not about Parliament gaining back its powers but was about the balance of power between the judiciary and the executive (Lee et al. 145). For instance, the court, through Brexit, gained considerable powers to decide or determine the laws of the land. Similarly, the executive, including the prime minister, increased its potential capabilities in that it could ignore both the court and the Parliament and engage the people in significant legislative arrangements. In other words, this may be argued that the prime minister gained enough power to enter or leave international treaties in the absence of Parliamentary supervision. According to this argument, the powers that the Parliament previously enjoyed reduced as a result of Brexit. The United Kingdom joined the European Union through the act of Parliament but left the union through a direct democratic process despite the presence of a functioning Parliament.

Brexit’s central point was to restore sovereignty to the United Kingdom’s Parliament; however, and throughout the entire process, the Parliament appeared as a bystander. In the whole Brexit process, Parliament failed to demonstrate what Parliamentary sovereignty is (Mabbett 164). The Parliament was not accountable for its activities or inactivity during Brexit. More significantly, the Parliament did not act as the people’s representatives but as mere delegates. They did not exercise their judgments and selected what was appropriate for their constituencies but excused themselves for a popular vote, an instance that has never been seen in the United Kingdom’s history. This means that the Parliament will now need to take on new functions in order to ensure that it aligns with the current political system.

Likewise, Brexit exposed loopholes in the Parliamentary procedures and displayed the uncertainties in the relationship between the legislature and the executive. For instance, there have been questions regarding what the executive can do without the approval of the Parliament (Mabbett 168). Also, Brexit has triggered questions regarding the broader ranging powers bestowed on the ministers to introduce and amend laws. In like manner, the significant role played by the House of Commons’ speaker was illuminated in the Brexit process; the process revealed the speaker’s influential position, especially in times of minority government. Notably, the decision to disallow the government to conduct a referendum by the speaker triggered specific questions about Parliament’s role in deciding the nature of international treaties.

Also, and despite the question raised regarding the speaker’s role in Brexit, the speaker of the House of Commons is allowed certain privileges. For example, the House of Commons’ Speaker is permitted to select amendments to bills and motion. There are those who argue that this is too much power, and there was a need to regulate it. The powers held by the speaker and other related issues are instances that the United Kingdom’s Parliament needs to address. Significantly, the Parliament should refrain from assuming that the country will return to a period of Parliamentary sovereignty. Brexit presents the government with an opportunity to reexamine how the legislative body should function in the 21 century. These are challenges that ought to be considered.

Conclusion

Regaining Parliamentary sovereignty was the underlying idea behind Brexit. Many believed that exiting the European Union would allow the United Kingdom’s Parliament to rejuvenate its force and influence in the United Kingdom and the European region at large. However, this has not been the case. Before Brexit, most institutions under the European Union, including the European Union Court of Justice and the European Parliament, belittled and vetoed United Kingdom’s laws. European Community laws were viewed as superior to national laws, an instance that triggered considerable political confusion. The British Parliament and the laws enacted by it did not matter in the context of the European Union. Decisions such as the one made in the 1999 Factortame Ltd V. Secretary of State for Transport made it clear that European legislation could supersede the acts enacted by the United Kingdom’s Parliament. Such instances fueled Brexit, but now that the United Kingdom is no longer a member of the European Union, the political atmosphere is more adverse than before Brexit. Brexit, an attempt to regain power, has left the Parliament without any power whatsoever. More importantly, the Brexit referendum triggers the question regarding the role of Parliament in enacted significant legislations. The representative role bestowed on the Parliament was overlooked, and instead, the people engaged in the direct democratic process. Brexit has led the Parliament into a political gridlock; the Parliament will find it challenging to pass laws that satisfy the people’s needs.

Works Cited

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