Public Law: The Executive's Role in the UK Constitution Post-Brexit

This report provides an overview of public law, focusing on the English legal system and its three branches: legislative, executive, and judiciary. It explores the doctrine of separation of powers and parliamentary supremacy, including Dicey's views on parliamentary sovereignty. The report analyzes the impact of Brexit on the keystone of the Constitution, discussing the Miller case and the evolving balance of power between the executive and Parliament. It examines how the executive has gained control over the Brexit process, despite the initial ruling favoring parliamentary involvement. The analysis highlights the complexities of sovereignty in the context of Brexit and the implications for the UK's unwritten constitution, concluding that the executive's role has been strengthened.

Public Law

Table of Contents
INTRODUCTION ..........................................................................................................................3
MAIN BODY ..................................................................................................................................3
The English legal system ...........................................................................................................3
Doctrine of Separation of power.................................................................................................4
Parliamentary supremacy............................................................................................................4
Dicey's view on Parliamentary sovereignty................................................................................4
Brexit and its impact on keystone of Constitution......................................................................5
CONCLUSION ...............................................................................................................................8
REFERENCES................................................................................................................................9

INTRODUCTION
Law is the set of rules and regulations which the particular nation and its citizens are
obliged to adhere with. It is basically the rule which defines the correct procedure or the
behaviour which an individual must undertaken in order to prevent any penalties. There are
mainly tow types of laws of which first is private law which regulates the cases relating to
private individuals and second is the public law which deals with cases relating to public and
community as a whole1. It mainly governs the relationships between the people and the
government or the relationship between the people who are connected with the society's concern.
This report shall deal with the extent to which the executive is keystone of the Constitution rather
than Parliament.
MAIN BODY
The English legal system
It mainly comprises of the three branches which includes the Legislative, Executive and
the Judiciary. The Parliament have the supreme law making authority in UK who have the role to
enact the laws and these cannot be challenged in any court of ruling. It comprises of House of
Lords, House of Commons and the Head of the State. Every bill which is passed by both the
houses are required the royal assent from the Head of the state in order to make it enforceable.
The executive comprises of the UK government which includes the cabinet minister and
the Prime Minister and the head of state. They are entrusted with the role to formulate and also
implement the policies.
The judiciary consists of the judges and the officers of the tribunals and courts. The
senior most court in UK is the Supreme court which is the least resort for the appeal and its
decision is binding on the other courts2.
The UK does not have a Written Constitution, rather they are embodied in the legal rules
and national legislations of the country. The Parliament have the power to make or repeal any
law and the judiciary have the power to interpret the existing law or make common laws from its
1 Shapiro M, 'From Public Law To Public Policy, Or The "Public" In "Public Law"' (2018) 5 PS
2 Gordon M, 'Brexit: A Challenge For The UK Constitution, Of The UK Constitution?' (2019) 12 European
Constitutional Law Review

precedents. The executive have the power to implement the laws through making such policies
and guidelines which ensure smooth implementation.
Doctrine of Separation of power
Under this, the governance of UK is divided into these three branches which are
independent and separate from each other and carries independent responsibilities. The
distribution of power is intended to prohibit the other branch from being the supreme and also
contains the system of checks and balance in order to limit the power of another branch. If the
doctrine of separation of power is strictly interpreted, no branch can exercise the power of
another branch and no person can be the member of more than one branch.
Parliamentary supremacy
It is the concept in the law of Constitution which holds that the body of legislative as an
absolute which have the sovereignty and the supremacy over other institutions of government
which includes the judiciary and the executive. The Parliament in UK have the supreme
authority to enact the law.
There is a difference between the parliamentary and legal sovereignty. In UK the
parliament is not politically sovereign which is meant as that if the Parliament have passed an
oppressive or unpopular law, then it cannot be put into practice. For instance, he judiciary is
entrusted with the role to interpret the law or create a new precedent for the said legislation in
the similar manner. But cannot be said that Parliament is not legally sovereign as it can legally
pass any statute which it wishes3.
Dicey's view on Parliamentary sovereignty
Dicey formulated the theory of sovereignty which is not original but clear, precise,
coherent and current. According to Dicey, there is no sovereign other than the Parliament in UK
and the parliamentary sovereignty is not simply the mere supremacy from the perspective of
judiciary as it is the dominant character of the political institution of the British. The traditional
concept of the parliamentary sovereignty as expounded by Dicey is that there is no such
limitation on the legislative competence of the Parliament and it guarantees legal supremacy of
the statute. The English Constitution provides that the Parliament have the right to make any law
or repeal any statute and no body or person which is recognised by law has the power to override
3 UK CONSTITUTION AFTER MILLER (HART PUBLISHING 2020)

any legislation made by the Parliament. The traditional concept provides that the Parliament is
the keystone of the Constitution and shall remain the key stone4.
Brexit and its impact on keystone of Constitution
Brexit was withdrawal from the European Union and European Atomic Energy
Community of the United Kingdom at the end of the January 31st, 2020. There are some effect of
the Brexit on negotiated agreement of withdrawal and some effects would depend upon trade
deals which are to be negotiated during the transition period after the withdrawal. After this
withdrawal, the UK have the final say as to which laws shall govern it and the laws of European
Union shall not have any supremacy over the laws of UK and the courts would no longer be
bound by the judgements and decisions of EU court of justice.
There are mainly three notions of the sovereignty which are relevant in context to the
Brexit which are discussed below- Parliamentary sovereignty- This is said to have the particular resonance in UK because
due to vagaries of un- codified Constitution of UK, the Parliament is recognised as the
body which have unlimited power to legislate the laws. Popular sovereignty- The Parliament is seems to be at odds with the popular soveriengty
which have other implications such as Scotland where the tradition of it claims that the
sovereignty lies in the people of Scotland despite the claim of Dicey that Parliament has
sovereignty.
 External sovereignty- Where a country can be sovereign and is recognised as an
independent nation by International community but the state recognises that the
international agreements like EU treaty curbs the sovereignty in practice5.
These notions are very confusing as these are different concepts of sovereignty and have
become confusing due to Brexit and the relations of UK with EU. These concepts are internally
coherent and are at war with each other.
4 Ceil C, 'The Concept Of Separation Of Powers Is Not Well-Respected In The UK Constitution' [2018]
SSRN Electronic Journal
5 Jowell J, and O'Cinneide C, The Changing Constitution (2019)

In the case of R (Miller) v. Secretary of State for Exiting the European Union6, the
private citizens have brought have action before the Divisional Bench of High Court in order to
seek the determination of matter. The claimants have submitted the following contentions that-
 The exercise of the prerogative power would not be extended to the acts which may result
in change of the domestic laws.
 The withdrawal from the treaties of European Union will change the domestics law. The British government should not serve the notice of withdrawal by exercising the
prerogative power as such power can be exercised by the Act of the Parliament.
It also states that there is requirement that the government must seek the parliamentary
approval for triggering the Article 50 which have formally started Brexit process. It is being
argued that the Parliament have failed to capitalise on decision of court and it is the executive
which is truly in control of Brexit process and not the Parliament7.
The government claimed that they had the power to trigger Article 50 which is the
process of UK to leave EU by virtue of the foreign relations being prerogative but the Supreme
Court of UK favoured the Parliament and ruled that government would be just able to initiate the
Brexit only when the Parliament would empower it to do so. Albeit the UK Parliament would
lawfully authorise the triggering of the Article 50. This was done on the basis that foreign
relations prerogative do not extent to the changing and also affecting domestic rights and laws.
At that time, Miller appeared therefore to be of the immense political significance as it put the
Parliament firmly at the driving seat of Brexit but after 18 months, the judgement looks rather
different and was proved to be far from final word.
When the court was deciding the case of miller, it gave the golden opportunity to
Parliament to shape the Brexit and by referring to political significant, the parliamentary
supremacy was upheld and they were given the authority to trigger Article 50. As a result, the
legislation was created by Parliament which gives bare power to Prime Minister to trigger Article
50.
It would be better if the Parliament would allowed the government to trigger Article 50
only if it has obtained the approval of Parliament for the negotiating objectives. It can be said
6 (2016) EWHC 2768 (Admin) and (2016) NIQB 85
7 Murkens J, 'Democracy As The Legitimating Condition In The UK Constitution' (2018) 38 Legal Studies

that the case of Miller was a victory for the Parliament over the executive power but the same
cannot be seen under the European Union (withdrawal) Act of 2018. This power under the
legislation is problematic as it includes the Henry VIII clause which enables the delegated
legislation to amend and modify the primary legislation but this statute contains many limits on
the powers and states that a committee must be formed in order to determine when parliamentary
scrutiny is required over the delegated legislation.
One of the provision in the European Union (withdrawal) Act of 2018 have attempted to
asset the degree of control on the negotiations of Brexit by adding the provision of meaningful
vote and prohibits ratification at the time of absence of approval of Parliament.
In 2016, The referendum campaign was initiated in order to ask the electorate as to
whether the nation should leave or remain as the member of EU. It has provided itself with two
irony, of which first is the will of people which have paralysed the parliament's member who
have voted for the parliamentary insight at each stage. The UK have an unwritten constitution
and the referendum have made it nigh in order to capitalise on opportunity that the decision of
Miller have afforded. The second irony is the sovereignty which is being restored in truth of the
ever powerful executive and not that of the Parliament. The supreme court in the case of miller
have held that the Executive is the junior partner in Constitution of UK8. It can be said that the
judicial resolution of the questions which have been raised in Miller case have placed long
lasting and significant implications on the political developments and since the case of Miller
demonstrates that whatever be the form of Brexit, it shall remain of the executive only. The
lower court held in this case that the did government do have power to give notice without the
authority of Parliament and on an appeal, the Supreme court also upheld the decision9.
8 Leyland P, The Constitution Of The United Kingdom (2021)
9 Payne S, 'The Supreme Court And The Miller Case: More Reasons Why The UK Needs A Written
Constitution' (2018) 107 The Round Table

CONCLUSION
It is concluded from the above report that the English legal system comprises of three
branches, which are embodied in the principle of separation of power and comprise of executive,
legislative and judiciary. The Parliament is considered as the supreme law making authority and
have the parliamentary sovereignty. This parliamentary sovereignty is the key stone of the
Constitution even from the traditional concept of Dicey and still remains after the impact of
Brexit also. The Supreme court ruled that the Parliament is the sovereign body and remains the
keystone of Constitution. In the case of R v. Secretary of State for Exiting the European Union,
the court ruled that the Parliament have the supreme authority to make or unmake any legislation
and executive can exercise its power with the prior approval of the Parliament only when seeking
the power to make any delegated legislation. Hence, Executive is not the keystone of
Constitution and Parliamentary sovereignty is the only keystone of Constitution.

REFERENCES
Books and Journals
Ceil C, 'The Concept Of Separation Of Powers Is Not Well-Respected In The UK Constitution'
[2018] SSRN Electronic Journal
Gordon M, 'Brexit: A Challenge For The UK Constitution, Of The UK Constitution?' (2019) 12
European Constitutional Law Review
Jowell J, and O'Cinneide C, The Changing Constitution (2019)
Leyland P, The Constitution Of The United Kingdom (2021)
Murkens J, 'Democracy As The Legitimating Condition In The UK Constitution' (2018) 38
Legal Studies
Payne S, 'The Supreme Court And The Miller Case: More Reasons Why The UK Needs A
Written Constitution' (2018) 107 The Round Table
Shapiro M, 'From Public Law To Public Policy, Or The "Public" In "Public Law"' (2018) 5 PS
UK CONSTITUTION AFTER MILLER (HART PUBLISHING 2020)