Brexit and its Effect on Parliamentary Sovereignty

This document discusses the effect of Brexit on Parliamentary Sovereignty in Constitutional and Administrative Law. It explores the meaning of Parliamentary Sovereignty, the role of the Courts in protecting the Rule of Law and Parliamentary Sovereignty, and the impact of joining the European Union on Parliamentary sovereignty. It also evaluates whether Brexit has increased Parliamentary Sovereignty by referencing the two Miller cases.

TRI 1 EXAM REPLACEMENT
MODULE TITLE: - CONSTITUTIONAL AND ADMINISTRATIVE LAW.
FACULTY: - BUSINESS AND LAW.
DISCIPLINE: - LAW.
NUMBER OF QUESTIONS: - 1 main question (Part A); 10 MCQs + Explanation (Part B).
MAXIMUM WORD COUNT: - 2000 words.
For Constitutional and Administrative Law, the seen question (Section A) that was to
be answered under exam conditions will now be a written coursework addressing that
question (see instructions to candidates, including word count and OSCOLA rules).
SECTION A (60 marks)
“Brexit will have a dramatic effect on Parliamentary Sovereignty”. In the light of this
statement, address the following questions:
1. Explain what is meant by Parliamentary Sovereignty, offering at least one definition
and one example of its application from case law. (12 marks)
2. What is the role of the Courts in protecting the Rule of Law and Parliamentary
Sovereignty? (12 marks)
3. Explain the effect joining the European Union had on Parliamentary sovereignty. (12
marks)
4. Evaluate whether Brexit has really increased Parliamentary Sovereignty by reference
to the two Miller cases (2017 and 2019). (24 marks) 500 words

ANSWERS
1. Parliamentary Sovereignty is the power of the elected parliament to remain supreme
among the three organs and in this way execute the will of the people at large. It implies that
courts cannot legislate or completely strike down any legislation due to incompatibility. The
role of the courts is to bring to light such incompatibility and let the executive move a motion
in the parliament to do the required changes if they agree on to them.1
In this way, Parliament binds both the Executive and the Judiciary as statutory law takes the
front seat. The most recent expression of Parliament's will is to be given effect by the courts
and the executive. It is also crucial to note the same as it implies that Parliament of the day
cannot bind the future Parliament making the system dynamic and with sufficient flexibility.
It was explicitly highlighted and discussed in the 2002 judgment of Thoburn v Sunderland
City Council where it was stated that “Parliament cannot bind successors by stipulating
against repeal” and “[b]eing sovereign, it cannot abandon its sovereignty”.2
This highlights the primacy of Parliament over the other two organs. Lord Woolf noted that
such a model of parliamentary sovereignty is based in rule of law and cannot repudiate the
same. This clarifies that though parliament is supreme it is bound by the moral underpinnings
of conventions and doctrine of Rule of Law. This power is buttressed by the popular support
from people which binds its members in a political way as well.
2. Judiciary plays a key role in all democracies. It is a important part of the check and balance
system and is crucial to maintain equality in eyes of law. The underlying idea of Rule of Law
implies that the law which exists shall govern the behaviour of its subject and all shall be
deemed equal. Judiciary in this way only enunciates the law as it is or if needed filling the
gaps in interpretation by way of certain techniques popularly known as Rules of
Interpretation. These rules are in a way fetters to govern the ways of Judiciary and not take
over the role of the Parliament which is to expound laws.3
Parliamentary Sovereignty is thus ensured by subordination to the law propounded by the
will of the Parliament. Maintaining the public confidence in judiciary necessitates impartial
purview of legal disputes through the frame of laws both statutory and common law.4 In case
1 Mark Ryan, Unlocking Constitutional & Administrative Law (4th Edn., Routledge 2018).
2 Thoburn v Sunderland City Council [2002] 1 CMLR 50.
3 Alex Carroll, Constitutional And Administrative Law (9th Edn. Pearson 2017).
4 Mark Ryan, Unlocking Constitutional & Administrative Law (4th Edn., Routledge 2018); Duport Steels Ltd and
Others v Sirs and Others [1980] 1 All ER 529.

of an incompatibility that cannot be remedied through the Rules of Interpretation the same
can be highlighted by the Judiciary and then taken up by the Parliament through the
Executive action.
All executive actions are though under the scrutiny of Judiciary as per the doctrine of Judicial
Review. The independence of Judiciary is thus crucial and has been ensured somewhat
through Constitutional Reforms Act, 2005. Judiciary protects rule of law by maintaining a
strict gaze over executive action and ensures that not only the law is interpreted as per the
will of the parliament but also that justice is administered if executive differentiates. Entick v
Carrington5 is a crucial example of how Judiciary deals with its role.
3. The Parliament in UK holds primacy over the other two organs. Not just this but also, it
has powers to pass any law. These basic tenets of Parliamentary Sovereignty were both
affected directly by membership of the European Union. It affected both these aspects in the
following way:
1. It allowed Executive role to be given primary value in the International arena, which
would only be a significant and popular view of the people but not encompass whole
of the English Population as in the Parliament itself.6
2. Secondly, and rather primarily, the primacy to create suitable laws governed in
essence by doctrine of law was lost to the EU as it has its own laws and Conventions
which are to be followed and again the duty to initiate and bring them to effect was
castes upon the executive.7
3. Judicial role was to also further lead governance and promulgation in light of the EU
laws and deviance from them was frowned upon as an incompatible behaviour or
legal issue which was to be changed duly.8
In this way, we see that the Parliamentary function was usurped or largely taken over by the
EU laws and the policy to bring them to table was merely a puppet choice in the hands of
5 Entick v Carrington (1765).
6P. Giliker, ‘Interpreting retained EU private law post-Brexit: Can commonwealth comparisons help us
determine the future relevance of CJEU case law?’ [2019] COMMON LAW WORLD REVIEW, 48(1-2),
pp.15-38.
7 G. Gee and A.L. Young, ‘Regaining Sovereignty: Brexit, the UK Parliament and the Common Law’ [2016]
EUR. PUB. L.,22, p.131.
8 R. Wintemute,‘Goodbye EU Anti-Discrimination Law? Hello Repeal of the Equality Act 2010?’
[2016] KING'S LAW JOURNAL, 27(3), pp.387-397.

Executive. European Court of Justice through its judgement in Van Gend and Loos v
Nederlands administratie der belastingen9 instilled this order across the EU.
The same was furthered through the Factortame II10 decision in UK.
4. The two Miller cases , in 201711 and in 201912, are not only similar in approach but also
based in the same principle tenet of Parliamentary Sovereignty. At the outset, it is important
to understand the similarity in the two factual matrixes one witnessed in the two most crucial
judgment of the last 5 decades in the UK.
The call for severance from the EU or Brexit as it has been named was taken up unilaterally
by the Executive. In the 2017 case the Government of the day had an uphill task to establish
its version of powers based in law to initiate such action on its own. Such a reference in the
International domain of EU was thus sought to be made without any mandate from the
parliament which is the sovereign organ in the UK administrative and constitutional setup.
This was followed by the Miller II in 2019, wherein the Executive in its advise to the Queen
to prorogate Parliament failed to take consent of the Parliament itself. This advice was sought
to be held unlawful as the same lacked any perusal of the constitutional conventions despite
the same was duly acted upon by the Crown. The situation arose due to the unilateral decision
making of the executive again and was alleged to be a move that stifled parliamentary duty of
discharging constitutional functions.
These facts highlight how in both the cases, the executive went ahead of what is desired
under its powers and a probable challenge to the Parliamentary sovereignty was brought in
question in both the instances. Both the Miller cases do not enunciate something that has been
unknown to the UK. The rulings highlight how the parliamentary sovereignty is intact and
still protected through the courts as a Guardian of the Constitutional Conventions and rule of
law in general. Factortame II13 which was a crucial judgment did not in itself comment upon
the possible effects of the ruling on the sovereignty of parliament. Brexit was sought without
mandate from the Parliament and it could not have been brought about by a mere will of the
executive. A legislation to trigger Article 50 was needed and the same is a function of the
Parliament alone.
9 Van Gend & Loos v Nederlandse administratie der belastingen Case 26/62 [1963] ECR 1.
10 R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603.
11 R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5.
12 R (on the application of Miller) v The Prime Minister [2019] UKSC 41.
13 R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603.

In the 2019 Miller case, it was important for the Executive to take note of the possible effects
of the prorogation of Parliament it sought. It highlights that parliamentary sovereignty is a
fundamental tenet and as per the decision it creates penumbral implications which found its
authority in several age old cases like Keyser14. The court, in light of the facts, emphasised
that the possible abuse of such prerogative powers in the hands of Executive cannot be left
unfettered or it can lead to absurdities. Prevention of Parliament to perform its constitutional
functions cannot be given away even by the Parliament. Its sovereignty cannot be waived by
even a suitable legislation.
Thus, both decisions reiterated Parliamentary Sovereignty as a fundamental part of the
Constitutional schema and by way of Brexit the same has been reinstated to the original form.
14 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508.

BIBLIOGRAPHY
Books and Journals
Carroll, A., 2017. Constitutional and administrative law. Pearson Education.
Gee, G. and Young, A.L., 2016. Regaining Sovereignty: Brexit, the UK Parliament and the
Common Law.Eur. Pub. L.,22, p.131.
Giliker, P., 2019. Interpreting retained EU private law post-Brexit: Can commonwealth
comparisons help us determine the future relevance of CJEU case law?. Common Law
World Review, 48(1-2), pp.15-38.
Ryan, M. and Foster, S., 2013. Unlocking Constitutional & Administrative Law. Routledge.
Wintemute, R., 2016. Goodbye EU Anti-Discrimination Law? Hello Repeal of the Equality
Act 2010?. King's Law Journal, 27(3), pp.387-397.