Tag: Parliamentary sovereignty

Parliamentary Sovereignty: Brexit and Schrödinger’s cat

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By Marc Johnson, Lecturer in Law (Truman Boddon Law School)

Photo: Flickr

Brexit has been a source of emotionally-charged debate. One point which has received plenty of attention is the sovereignty of Parliament and its relationship with EU membership. It is often explained that the EU’s ability to make laws (which can apply in the UK) is some form of forfeiture of sovereignty. However, this statement has a number of shortcomings, not least that it ignores the election of Members of the European Parliament by the UK, providing (at least to some degree) a democratic mandate to the European Parliament. I will use Schrödinger’s cat to suggest that sovereignty can be present in multiple places and remain intact, allowing the normal operation of both the UK Parliament and European Parliament, without offending a nuanced view of sovereignty. In order to do this, one must cast aside the orthodox views of sovereignty and start with a pragmatic and philosophical approach to Parliamentary Sovereignty as it today. Brexit is akin to lifting the lid of Schrödinger’s box to observe the actual state of sovereignty at a specific point in time, but in doing so it reduces the observers to that of a quantitative measurer, and asks ‘is it dead or alive’ – when, in fact, reality is far more complex than this. (more…)

The Models of Parliamentary Sovereignty

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By Mr Marc Johnson, Teaching Associate in Law (University of Bristol Law School).

By Mайкл Гиммельфарб (Mike Gimelfarb) – https://commons.wikimedia.org/w/index.php?curid=5049123

The concept of Parliamentary Sovereignty (also referred to as Parliamentary Supremacy and Legislative Supremacy) deals with several concurrent principles and this makes it a complicated concept to grasp in its entirety. Coupled with this, the media portrayal of this subject through the campaigns on the referendum on exiting the European Union often gave a disingenuous or incomplete view of the Sovereignty of Parliament and as such there are many misconceptions.

This blog piece will address those misconceptions by setting out the models of Parliamentary Sovereignty. These models attempt to explain the way which sovereignty operates, though it may not have escaped the reader’s attention by this blog’s conclusion that each model has positive and negative attributes. This blog offers some opinion on each model of sovereignty to incite further discussion and debate on the topic.  (more…)

The dualist system of the English Constitution and the Victorian acquis

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By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).*

The Supreme Court in Miller set out the model that ‘the dualist system is a necessary corollary of Parliamentary sovereignty’ (para 57), or in the words of Campbell McLachlan in his admirable Foreign Relations Law, cited by the Supreme Court:

If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged (para 5.20).

As the Court said, this passage ‘neatly summarises’ the position: but, beyond the neatness of summarization, does it correctly capture the constitutional position? (more…)

Law and Politics in the Supreme Court

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By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. (more…)

Brexit and Parliament: Doubting John Finnis’s Dualism

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By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).

© Nick Weall
© Nick Weall

The news that the appeal will be heard by a full panel of 11 Justices of the Supreme Court confirms that the High Court’s ‘Brexit Judgment’ is of the highest constitutional significance. So the attention devoted to the judgment by eminent constitutional lawyers is hardly surprising. One powerful argument against the judgment, which is attracting a growing number of supporters, is made by Professor John Finnis in papers for the Judicial Power Project.

Finnis argues that the court mistakenly assumes that EU rights are ‘statutory rights enacted by Parliament’. On his view, the European Communities Act 1972 simply provides a means for making EU law rights enforceable in English law; they are not ‘statutory rights’ as such. Finnis draws an analogy with double-tax treaties. These serve to relieve individuals with connections to more than one country from being taxed twice on the same income. In order for this to apply, both state parties must maintain the international agreement. If one of them gives notice to rescind, as they are typically entitled to do under the treaty, the immunity lapses. In dualist systems such as the UK, there is thus an asymmetry between the creation and removal of rights. There are two conditions precedent for the enjoyment of any new right: an international treaty conferring that right, and an Act of Parliament giving effect to that treaty in domestic law. Both elements are needed to create the right, but if either condition precedent fails, so does the right. The mere fact that Parliament has to provide the domestic conduit does not stop the Government from turning off the international tap.

I am not convinced that this argument works in the context of the UK-EU relationship. (more…)

Miller: Why the Government should argue that Article 50 is reversible

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By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

© PA
© PA

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.  (more…)