Parliamentary Sovereignty and EU Membership: Did Brexit Regain Parliament’s Sovereignty?

Introduction

The principle of parliamentary sovereignty has been a long-held tenet of the UK’s unwritten constitution. AV Dicey outlined its features in 1885. However, 87 years later, the UK became a member of the European Economic Communities, with the European Communities Act 1972 providing the domestic legal basis for EU law in the UK. Lord Denning described EU law as ‘an incoming tide […] [that] cannot be held back’.[1] However, others, such as Professor Phillip Norton, likened the relationship between the UK and EU as a ‘patchwork quilt’, with the UK consistently being in a position of ‘playing catch-up of trying to make sense of the constitutional consequences of different treaties negotiated since membership’.[2] This is perhaps best illustrated by the relationship between EU supremacy and the UK’s parliamentary sovereignty.

As a result of membership to the EU, the UK became subject to the extensive doctrine of EU supremacy, firmly established by the CJEU in Costa v Enel in 1964. In 1991, the House of Lords (in Factortame) were required to set aside primary legislation which was found to be incompatible with EU Law provisions.[3] The ruling in Factortame gave rise to numerous arguments that the principle of parliamentary sovereignty and the doctrine of EU supremacy were incompatible. This argument was a significant driving force behind the UK leaving the EU. This essay explores two questions. Firstly, the position of parliamentary sovereignty while the UK was still a member state of the EU, and in particular whether or not EU supremacy and parliamentary sovereignty were in fact incompatible. Secondly, whether leaving the EU helped to restore a traditional notion of sovereignty, by examining the role and development of the courts in Miller (No 1)[4], devolution and the European Union (Withdrawal) Act 2018, and the Retained EU Law (Revocation and Reform) Bill 2022. 

While the primary focus is the legal effect that the UK’s EU membership and subsequent withdrawal had on the principle of parliamentary sovereignty, discussions regarding Brexit, Parliament, and the constitution are inherently influenced by politics. In 2009, Vernon Bogdanor argued that the UK is ‘as a nation notoriously uninterested in our constitution’, due to the nature of the constitution. As such, he notes that ‘constitution’ has two meanings. Firstly, it can refer to ‘a selection of the most important legal rules regulating the government and embodied in a document promulgated in a particular moment in time’.[5] Regarding the second meaning of ‘constitution’, Bogdanor asserts that ‘anyone living in an organised society must certainly possess a constitution’.[6] It is in this category of constitution that the UK falls. However, since conversations around the UK leaving the EU began, the UK’s constitution and parliamentary sovereignty in particular have been brought to the forefront of parliamentary debates, which have consequently been amplified by the media.[7] This has shaped public opinion on the relationship between EU membership and parliamentary sovereignty and brought the topic of the UK’s constitutional arrangements to a more prominent position compared to the suggestion of Bogdanor in 2009. Furthermore, while the question of devolution and its effect on parliamentary sovereignty is undoubtedly an important one, it is nonetheless a complex area within the UK’s constitution. In light of this complexity, and constraints on space, this essay will focus on devolution in Scotland.

This essay ultimately puts forward the view that EU membership was not incompatible with the principle of parliamentary sovereignty and that sovereignty was still able to operate in a meaningful way following Factortame. This is on the basis that while EU membership undoubtedly resulted in a move away from the traditional notion of parliamentary sovereignty, this change resulted from a natural evolution of an uncodified principle rather than a single revolutionary change. In light of this natural evolution, it is argued that the act of leaving the EU alone cannot amount to the restoration of the traditional interpretation of sovereignty in the nineteenth century.

The Position of Parliamentary Sovereignty throughout EU Membership

Following the Treaty of Rome (1958), the European Economic Community (EEC) was formed. The initial member states were comprised of Germany, France, the Netherlands, Belgium, Luxembourg, and Italy. The EEC, therefore, formed the basis for the EU. The EU expanded from a body solely focused on the economic integration of member states, into a complex and sophisticated legal system, enacting legislation throughout a large range of policy areas.[8] With the EU enacting significant amounts of legislation, in such an extensive range of areas (in addition to various requirements as to how it should be integrated into domestic law), the question arises as to how this legislation is followed uniformly and consistently throughout the member states. This question was first raised in Costa v Enel.[9]

In Costa, the issue was whether pieces of national legislation could prevail over community law where the two were in conflict. The Italian government argued that community law had been ‘transposed into the Italian legal order by national legislation’.[10] However, the CJEU, in their preliminary ruling, reasoned: ‘By contrast with ordinary principles of international treaties, the EEC treaty had created its own legal system, which on entry into force of the treaty, became an integral part of the legal systems of that member state and which their courts are bound to apply’.[11] The CJEU stated: ‘The transfer by the states from their domestic legal system to the community legal system of rights and obligations arising under the treaties carries with it a permanent limitation on their sovereign rights’.[12] The decision was a clear statement from the CJEU in regard to the doctrine of EU law supremacy—where domestic law and community law are in conflict, community law will take precedence.

The subsequent German case of Internationale Handelsgesellschaft[13] demonstrated how far the doctrine of EU supremacy could extend. At issue was whether or not EU law can take precedence over the fundamental rights enshrined in the German constitution where the two were in conflict.[14] The CJEU held that the government could not take recourse to the legal rules or concepts of national law in order to judge the validity of community law.[15] Costa and Internationale Handelsgesellschaft demonstrate the wide-reaching effect that the doctrine of EU law supremacy has upon the domestic legal systems of EU member states. This brings us to the question of how the doctrine of EU supremacy has been received within the UK’s unwritten constitution and legal framework.

In 1972, the UK became a member of the EU. This was facilitated within domestic law via the European Communities Act 1972 (ECA 1972).[16] The UK constitution is unwritten, meaning that the principle of parliamentary sovereignty is not codified formally. Nonetheless, the principle has historically been written about and defined by writers such as AV Dicey. In 1885, Dicey outlined three key elements of the principle of parliamentary sovereignty. Firstly, parliament can make or unmake any law that it chooses. Secondly, parliament cannot bind its successors. And finally, no other institution can set aside or override an act of parliament.[17] The first significant UK case concerning the potential conflict between the doctrine of EU supremacy and the principle of parliamentary sovereignty came in 1991 in Factortame.[18]

The Factortame case arose following the implementation of the Merchant Shipping Act 1988. S 14 required vessels to register in order to be able to fish in British waters. However, to do so, the vessels were required to either be British-owned or be managed from within the UK. Therefore, any vessel which did not meet these requirements was unable to be re-registered under the new provisions. 95 (predominately Spanish-controlled) vessels were unable to re-register under the act.[19] The Spanish vessels sought a judicial review, claiming that this provision infringed on their rights granted by EU law. A key question arose as to whether the appellants could be granted interim relief. While the House of Lords agreed that the appellants would ‘suffer irreparable damage’[20] if they were not granted interim relief by temporarily suspending the provision, they held that the national courts did not have the power to grant such a measure[21] and sent the case to the CJEU for a preliminary ruling.

Regarding this, the CJEU held that ‘the obligations on national courts to apply community law having direct effect and to protect rights which the latter confers on individuals includes the obligation to consider whether interim protection of rights claimed against the authorities of a member state should be granted in order to avoid irremediable damage and, where appropriate, to grant such interim relief’.[22] It has often been suggested that the ruling demonstrates how the UK’s membership in the EU, and therefore the acceptance of EU supremacy, was incompatible with the principle of parliamentary sovereignty since an institution other than Parliament was obliged to suspend the enforcement of a provision from an Act. Therefore, the Parliament of 1988 had been bound by the Parliament of 1972.

This was the view taken by William Wade. Writing in 1996, following the Factortame decision, Wade states: ‘While Britain remains in the community, we are in a regime in which Parliament has bound it’s successors successfully, and for which it is nothing if not revolutionary’.[23] Wade goes on note that while the 1972 Act was being passed by Parliament, there was much debate as to whether entering the EU would bind Parliament’s successors. However, ultimately, ‘members were assured that the sovereignty of Parliament would remain intact because it was legally indestructible’[24] on the basis that any provision made under the Act could be repealed and that Parliament remained free to repeal the 1972 Act whenever it chose. While recent history has demonstrated the latter remained true throughout the UK’s period as a member state, Wade nevertheless ultimately argues that ‘Parliament’s powers had suffered a seismic change’ following Factortame.[25] However, the extent to which this could be considered to be true has been subject to debate.

In the House of Lords ruling on Factortame,[26] Lord Bridge asserts that there was clear jurisprudence surrounding the doctrine of EU supremacy prior to the UK joining the EU. Therefore, ‘whatever limitation of its sovereignty when it enacted the European Communities Act 1972 was entirely voluntary’. Furthermore, Lord Bridge goes on to state that ‘similarly, when decisions of the CJEU have exposed areas of UK statute law which have failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus, there is nothing in any way novel in according supremacy to rules of community law to those areas to which they apply’.[27]

The statements of Lord Bridge therefore give rise to the suggestion that parliamentary sovereignty was not drastically changed as a consequence of the UK being a member of the EU. While some change to parliamentary sovereignty did occur, the changes were not as ‘seismic’ as Wade asserts. Mark Elliot notes that the constitutional significance of disapplying an Act of Parliament ‘was reduced to little more than background to the litigation’. Furthermore, Elliot highlights that while it was only Lord Bridge who spoke about such issues in his judgement, this was only insofar as to highlight that, as noted earlier, Parliament voluntarily accepted a limitation on its sovereignty by enacting the ECA 1972. However, Elliot also notes several ways in which the domestic courts could have responded to Factortame. Firstly, the House of Lords could have held that ‘the primary responsibility of the UK Courts is to give effect to the most recent expression of Parliament’s will’ and consequently enforced the provisions of the Merchant Shipping Act 1988 in question, regardless of their compatibility with EU Law. However, as Elliot notes, ‘such a response would have implied a very rigid understanding of the domestic constitutional order and notion of parliamentary sovereignty’, notwithstanding the difficulties which would arise as a consequence of the UK breaching its international obligations. The second approach explained by Elliot highlights that the approach adopted by the House of Lords was more ‘intermediate’ in nature. Thus, instead of the UK constitution being fixed and unmoving, it is, ‘flexible enough to accord to EU law some degree of priority over incompatible domestic legislation’.[28]

Upon this view, it can be suggested that Wade’s approach fails to consider any form of flexibility in domestic constitutional law. Paul Craig highlights that Wade’s analysis of the traditional view of sovereignty is based, in part, on the reasoning that ‘Parliament is sovereign in the sense there depicted because it accords with the reasoning of Coke, Blackstone and Dicey’.[29] While this accords with Elliot’s rigid interpretation of how Factortame could have potentially been decided, this ultimately was not followed by the Court. Therefore, Wade’s strong adherence to the traditional notion of sovereignty fails to consider the possibility of flexibility and, consequently, any degree of a natural evolution of sovereignty and how this may affect its operation.

At the time of the Factortame case, Dicey’s writing on parliamentary sovereignty was already over 100 years old. In addition to this, sovereignty, alongside other principles of the UK constitution, remains formally uncodified. Due to the uncodified nature of parliamentary sovereignty, it is impossible for it to not be subject to change or evolution as society evolves. While membership to the EU has changed Dicey’s traditional notion of parliamentary sovereignty, such a change ultimately highlights the existence of the ability for sovereignty to evolve and adapt to the needs of modern society. In Factortame, sovereignty was shown to be flexible enough to encompass the doctrine of EU supremacy. Consequently, Wade’s strong assertions that sovereignty suffered a ‘seismic change’ in the wake of Factortame and that this was ‘nothing short of revolutionary’ seem diminished.[30]

NW Barber arguably takes a more extreme view than Wade and states that parliamentary sovereignty no longer existed following Factortame. Barber asserts that ‘when the pre-1991 interpretations are considered, it is clear that the rule ceased to be a feature in the British Constitution after Factortame’.[31] However, the role of the courts under the Human Rights Act 1998 (HRA 1998) can be seen as evidence to challenge this view. The HRA 1998 was enacted to give effect to the European Convention of Human Rights (ECHR) within domestic law. However, in situations where courts cannot give effect to a provision in a way which is compatible with convention rights, courts do not have the power to strike down incompatible legislation. Section 4 only allows for higher courts to make a declaration of incompatibility. However, such declarations do not ‘affect the validity, continuing operation or enforcement of the provision in respect to which it was given’.[32] It is therefore the decision of Parliament to amend any provisions deemed incompatible with convention rights. Although Lord Hope notes that the court’s ability to interpret legislation under s 3(1) is ‘far-reaching’,[33] the fact that the courts cannot strike down legislation and such power remained with Parliament suggests that parliamentary sovereignty did in fact continue to operate following Factortame. This is on the basis that powers granted to the courts under s 4 ultimately respects that Parliament is the ultimate law-making body.

Overall, concerning the question of whether EU Membership infringed on parliamentary sovereignty, it can be shown that while there was a move away from the traditional interpretation of sovereignty as a result of EU membership, the principle was nonetheless still able to operate while the UK was a member of the EU. This is on the basis that this represented a natural development of a long-standing uncodified principle. Therefore, sovereignty was able to adapt and change to fulfil the requirements of EU membership while still being able to operate meaningfully.

The Courts and Parliamentary Sovereignty 

The case of Miller (No1)[34] arose amid the Government’s attempt to use prerogative powers in order to trigger Article 50 of the Treaty of the European Union (TEU),[35] which enables member states to begin the process of leaving the EU. Article 50(2) requires that the member state notifies the European Council of their intention to withdraw. Once this notice has been given, a two-year period begins in which a withdrawal agreement must be negotiated between the member state and the European Council.[36]

Following the 2016 Referendum, Prime Minister Theresa May’s government attempted to use prerogative powers to trigger Article 50. Gina Miller, alongside other applicants, challenged this use of prerogative powers. The case was brought on the basis that once notice had been given it could not be reversed. Consequently, the use of prerogative powers would ‘pre-empt the decision of Parliament on the Great Repeal Bill’ which would amount to ‘altering the law by ministerial action […] Without prior legislation’.[37] Delivering their judgement in January 2017, the Supreme Court highlighted the comments of Lord Denning in Blackburn v Attorney General, which outlined the general position of treaty negotiations: ‘The treaty making provisions of this country rest not in the courts but the Crown […] When ministers negotiate a treaty […] They act on behalf of the country as a whole’.[38] However, despite recognising this general position, the court noted that withdrawing from the EU would ‘constitute as significant a constitutional change’[39] as joining the EU in 1972. Accordingly, ‘it would be inconsistent with the long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by[…]ministerial action alone’.[40] Additionally, it was noted that EU law created a distinct source of law and legal rights which had become ‘inextricably linked’ with domestic rights and obligations from other sources of law.[41] It was the view of the majority that the government could not trigger Article 50 using prerogative powers and instead required the consent of Parliament via an Act of Parliament in order to do so.[42] This led to the passing of the European Union (Notification of Withdrawal) Act 2017.

The reasoning of the majority has been criticised. Mark Elliot puts forward the view that the majority’s assertion that major constitutional changes can only be made by legislation ‘lacks support in authority, imports into law a novel and highly imprecise criterion by which prerogative powers are delimited and rests upon normative powers that are unarticulated and notably absent’.[43] Despite this, there has been support for the court’s ruling, suggesting that it essentially accords with existing common law principles.[44] An example of such a principle can be seen in the Fire Brigades Union case in 1995, where Lord Browne-Wilkinson stated: ‘It would most surprising if, at present day, prerogative powers could be validly exercised by the executive as to frustrate the will of Parliament […] and to an extent, pre-empt the decision of Parliament’.[45] Therefore, for Barber, Hickman, and King, the decision upholds the sovereignty of Parliament.[46] In this light, the Supreme Court’s decision to prevent the Government from using prerogative in Miller (No. 1) can be seen as the Court maintaining Parliament’s sovereignty and it’s law-making power, albeit in what has been considered an unorthodox way.

Throughout the UK’s membership to the EU, the nature and role of the domestic courts have undoubtedly developed and altered.[47] However, this is in no way novel, as there have also been instances of the courts developing in order to meet the circumstances and challenges of the time. One historical example of this is the development of the Court of Chancery in the Middle Ages. Prior to the Norman Conquest in 1066, the legal system in England was fragmented and varied depending on the area, with no official records.[48] The common law system which subsequently developed during this period comprised of very rigid and inflexible principles which would often lead to unfair outcomes.[49] Individuals could petition the King to adjudicate on their issue. Sir John Baker highlights that as far back as King Alfred, coronation oaths referred to a ‘clear royal duty of ensuring equitable judgements’.[50] This function of the King was in time delegated to the Lord Chancellor and eventually led to the development of the Courts of Chancery. The Court of Chancery was much more flexible than that of the Common Law courts, having powers that the Common Law courts did not.[51] The two courts operated separately alongside one another until the Judicature Acts of 1873 and 1875, removing the Chancery and Common Law courts and replacing them with the High Court (which was split into the Chancery, King’s Bench and Family Divisions)[52] which are still seen today.[53]

The above illustrates that the development and evolution of the Constitution and other similarly important areas have arisen when needed to address areas of the law considered deficient. While membership to the EU can be considered a catalyst for some of the developments seen in recent decades, the evolution of constitutional principles can nonetheless be shown to not be limited to the period in which the UK was a member of the EU. On this basis, as the evolution of parliamentary sovereignty cannot be solely attributed to EU membership, the act of leaving the EU alone cannot restore a traditional notion of sovereignty due to other factors which may influence development.

Devolution and Parliamentary Sovereignty

Another significant constitutional development which has had a more direct impact on parliamentary sovereignty, is the implementation and development of devolution. In 1973, the Kilbrandon Commission recommended that devolution of some powers should occur, with Scotland and Wales having their own elected assemblies. Professor Norton highlights that there are both political and economic benefits to devolution: it allows individuals in devolved regions to have ‘a greater sense of attachment to the [political] process’ and resources can be more easily allocated where needed.[54]

Despite support for devolution in the early 70s, devolution in Scotland was not facilitated until the late 1990s with the Scotland Act 1998. While Scotland was already considered to have a significant degree of ‘administrative devolution’, the 1998 act nonetheless developed this in two distinct ways. Firstly, by ‘conferring legislative competence on the Scottish Parliament’, and, secondly, ‘create[ing] new institutions for political representations in Scotland’. These developments allowed Scotland to have a greater degree of control over law and policy and has been said to have created a greater divide between Scotland and Westminster in this regard.[55] The subsequent Scotland Acts of 2012 and 2016 further widened the powers of the Scottish Parliament.[56]

The implementation of devolution has given rise to a debate on whether the UK has developed into a ‘Quasi-federal’ state. Nicholas Aroney highlights that while the UK has traditionally been considered a ‘unitary state’, the development of devolution has ‘given creditability’ to this debate. Furthermore, Aroney notes that while devolution has created a degree of federalism in the UK (due to Scotland, Wales, and Northern Ireland having their own elected legislatures), there are important differences between the UK and traditional federal systems. Firstly, due to the powers of the devolved legislatures being granted by virtue of the Westminster Parliament, instead of a written constitution binding the two. Secondly, due to the level of asymmetry fundamental to the system. Aroney argues that this is because while Wales, Scotland and Northern Island’s devolution frameworks are ‘tailored’ to each territory, England does not have a corresponding devolved institution and is instead governed solely by the Westminster Parliament.[57] With the above in mind, it can be argued that devolution does not strictly accord with Dicey’s traditional interpretation of parliamentary sovereignty, due to an institution other than the Westminster Parliament having the power to make laws. While the Westminster Parliament does retain the ultimate law-making power in the UK and therefore remains sovereign in that sense, devolution can nonetheless be shown to represent another development away from Dicey’s interpretation of sovereignty.

The potential side-effect of quasi-federalism on parliamentary sovereignty can be seen in the Retained EU Law (Revocation and Reform) Bill) 2022. The bill seeks to sunset all retained EU law by the end of December 2023, unless explicitly specifically saved by a Minister. However, in regard to retained EU law that falls under a devolved competence, the bill allows a Minister of said devolved legislature to save it from being sunsetted. However, it has been noted that the powers under the bill have been drafted so widely that ministers of devolved nations could potentially save all retained EU law and devolved competence from being sunsetted.[58] In regard to Scotland specifically, the 2016 Brexit referendum saw the majority of Scotland voting to remain in the EU. In light of this, the Scottish Parliament may elect to save all retained EU law which falls under its competence. A consequence of this would be a greater divergence of laws between Scotland and Westminster which would have further impact on the operation of parliamentary sovereignty. Furthermore, this course of action also does not align with Dicey’s interpretation of sovereignty.

Overall, the implementation of devolution in the UK represents a further development in the operation of parliamentary sovereignty away from Dicey’s traditional interpretation of it. Therefore, in light of such a significant constitutional development, an attempt to restore the traditional notion of parliamentary sovereignty can be shown to be a far more complex endeavour than simply withdrawing from the EU.

EU Withdrawal and Parliamentary Sovereignty

The European Union (Withdrawal) Act (EUWA) 2018 sought to deal with the ‘wide-ranging impact upon the law of the United Kingdom upon exit of the European Union’. Its primary aim was to create a framework whereby the roughly 20,000 pieces of EU-derived legislation could be preserved in domestic law upon the UK’s exit from the EU.[59] While the Act makes wide-ranging provisions for various types of retained EU law (REUL), this essay will focus on the continuation of EU supremacy and the extensive powers given to ministers to correct ‘deficiencies’ left behind by EU law.

S 5 of the EUWA outlines the circumstances in which the principle of supremacy continues to operate. While s 5(1) states that supremacy does not apply to legislation made on or after completion day, s 5(2) states that ‘Accordingly, the principle of supremacy of EU law continues to apply on or after [IP Completion] day so far as relevant to the interpretation, disapplication or quashing of any enactment made on or before [IP completion] day’.[60] While Elliot and Tierney note that limiting the scope of EU supremacy to pre-exit legislation was a sensible course of action, the continued use of the word ‘supremacy’ was problematic.[61] This issue was explored by the House of Lords Constitutional Committee in their report on EUWA when it was still in bill form.[62] Despite the committee agreeing with the policy aims behind the provision[63] they highlighted several issues with how the government sought to achieve it. Firstly, they expressed concern with the ‘vagueness and ambiguity’ of the provision, in particular in regard to the types of retained EU law the principle is to continue to apply to,[64] in addition to ‘which forms of domestic law […] are intended to yield to retained EU law because of the supremacy principle’.[65]

However, the most significant issue highlighted by the Constitution Committee was the question of how EU supremacy could be ‘meaningfully’ maintained following exit day,[66] saying that the continuation of supremacy ‘is a fundamental flaw at the heart of the bill’.[67] While the Committee made several suggestions as to how to remedy this, the Government declined to make any changes and the bill was enacted with EU supremacy still operating post-exit from the EU. S 1 of the EUWA expressly repeals the ECA 1972 upon exit day. Therefore, the continuation of a fundamental EU-derived principle (especially as one as strongly contested as supremacy) without its domestic legal basis seems somewhat nonsensical. Moreover, it strongly suggests that leaving the EU has been unable to restore a traditional notion of sovereignty.

Another significant provision of the EUWA is Section 8, which provides: ‘A Minister of the Crown may by regulations make such provision as the minister considers appropriate to prevent, remedy or mitigate (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the Withdrawal of the United Kingdom from the EU’.[68]

The passing of secondary legislation into law is a very different process to that of primary legislation and can be done in several ways. For example, an affirmative procedure requires the approval of Parliament before it is passed into law whereas, with a negative procedure, a draft of the SI is laid before Parliament and will automatically come into force unless a motion is passed to annul it within a fixed period.[69] It has long been recognised that while the use of secondary legislation has increased, along with the importance and complexity of its contents, the parliamentary time dedicated to its scrutiny has decreased. Additionally, Philippa Tudor highlights that there is a ‘Scarcely acknowledged […] democratic deficit in the current parliamentary scrutiny arrangements for domestic delegated legislation’.[70]

The issue of a ‘democratic deficit’ is still relevant to s 8 of the EUWA: the provision contains an extensive Henry VIII power. Such powers are defined as a ‘clause in a bill which enables ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny’.[71] In their report of the (then) bill, the House of Lords Select Committee on the Constitution highlighted a number of concerns with the inclusion of such a wide-ranging Henry VII power. An initial concern related to some of the language. In particular, the use of the word ‘appropriate’, which the committee stated was ‘subjective and wide’. The Faculty of Advocates stated that the use of the word meant that any changes made would be ‘in essence a matter for the minister’s opinion’.[72] Furthermore, concern was also expressed as to the open-endedness of the provision.[73] While it was noted that some Henry VIII powers were needed to facilitate withdrawal, it nonetheless recommended that the use of these powers should be limited. While s 8(7) does contain some restrictions on the use of the power, the committee concluded that they were not sufficient to ‘minimise the delegation of excessive powers to the Executive’.[74]

The most significant area of concern related to how delegated legislation made under the Act was to be scrutinised. Scrutiny procedures are outlined under schedule 7. The vast majority of regulations would be subject to the negative procedure,[75] whereas only a limited number would be subject to the affirmative procedure.[76] Examples of the types of instruments which would require an affirmative procedure include ones creating a new public authority, or transferring new powers to said authority.[77] However, the most worrying was the ‘made affirmative’ procedure, which allows a minister to create and approve a statutory instrument without parliament’s approval in situations that the minister considers to be urgent.[78] In order to remain in force, the regulation must be approved by both houses within 28 sitting days.[79] Concern for this procedure was expressed by several groups and individuals providing written evidence to the committee. The Public Law Project stated: ‘The potency of powers that could be exercised in ‘urgent’ cases is hard to overstate. Ministers could deprive people of their liberty and Parliament could do nothing about it’.[80] Furthermore, Professor Alison Young noted the practical effect of the procedure, stating that regulations would ‘remain lawful even if the measure itself is not approved within a month and new regulations, can be made, presumably, if still urgent through the same procedure’.[81] The EUWA 2018 ultimately provided the executive with wide-ranging legislative powers, while also providing parliament with limited opportunity to effectively scrutinise the legislation being made. Despite this, s 8(8) did place a limitation on the use of s 8 to two years after exit day, seemingly limiting the long-term impact of the provision on parliamentary sovereignty.

However, this may not be the case following the enactment of the Retained EU Law (Revocation and Reform) Act 2023.[82] The bill published under Liz Truss’s government, and was taken forward by Prime Minster Rishi Sunak with the principal aim of the bill is to sunset ‘all EU-derived subordinate legislation and retained direct EU legislation’.[83] It also changes the name of retained EU law to ‘assimilated law’.[84] The effect of the bill has been described as a ‘reversal of the natural order’[85] as large amounts of EU-derived legislation will automatically be sunsetted by the end of 2023 unless chosen by a minister to either be saved, or preserved until 2026 at the latest, instead of individual pieces of legislation being chosen to be sunsetted. It is thought that there are over 2,000 pieces of retained EU legislation, spanning over 30 different policy areas.[86] The bill encompassed important EU-derived legislation such as the Working Time Directive,[87] but not primary legislation such as the Equality Act 2010.

Dr Ruth Fox, Director of the Hansard Society, has highlighted several concerns arising from the bill. Fox notes that automatically sunsetting such a large volume of retained EU law would be an ‘abdication of Parliament’s scrutiny and oversight role’.[88] Furthermore, she has noted that the bill moves democratic oversight of retained EU law away from Parliament.[89] This is evident in the extensive powers given to ministers, in clauses 12, 13,14, and 15, to revoke or alter retained EU law. Clause 15 (now s 14 of the Act) arguably contains the most extensive powers—giving ministers the power to either revoke secondary REUL without replacing it[90] or make an alternative provision that they deem to be ‘appropriate’.[91] However, as noted by George Peretz KC, the alternate provisions do not have to match the ones that they’re replacing.[92] Similar to s 8 of the EUWA, the bill grants considerable law-making provisions to the executive, while simultaneously limiting parliament’s ability to scrutinise legislation and assert its sovereignty. During its second reading in the House of Commons, the bill was strongly opposed by opposition MPs—being labelled a ‘vanity project’, ‘not fit for purpose’, and that it would result in ‘chaos and confusion’.[93] Some changes were made to the Bill prior to its enactment although the content and aims have largely remained the same. Most notably, instead of the automatic revocation of all retained law, any legislation that it to be revoked is listed in schedule 1. While this does provide for greater legal certainty, this is still affects a significant amount of legislation across a broad range of policy areas. Furthermore, the Act still removes parliamentary oversight over assimilated law and places it with ministers instead. Therefore, the Act can be shown to remain problematic for the operation of parliamentary sovereignty and its traditional interpretation.

Regardless, taken together, s 8 of the EUWA, and the Retained EU Law (Revocation and Reform) Bill, represent a significant shift in the balance of law-making powers away from Parliament and towards the Executive. Consequently, Parliament’s ability to effectively scrutinise and control what legislation is passed has also been significantly curtailed. Therefore, both the way in which Brexit was facilitated in Parliament and the way in which retained EU law has been dealt with following exit day has meant that a traditional interpretation of parliamentary sovereignty has not been restored by leaving the EU. This is on the basis that Parliament’s legislative powers have been significantly weakened by the substantial powers granted to the executive. It is difficult to determine for certain what the future holds for the operation of the principle of parliamentary sovereignty, however recent years have undoubtedly shown several attempts from the executive to diminish its power.

Conclusion

Traditionally, discussions into the precise nature of the relationship between the doctrine of EU supremacy and the principle of parliamentary sovereignty have been portrayed has being relatively clear cut, in the sense that they were either compatible or incompatible with one another. However, such portrayals have been rooted in nineteenth-century interpretations of sovereignty, and consequently fail to take into account the degree of flexibility which is intrinsic to the UK’s unwritten constitution. In light of this, while membership to the EU can be shown to represent a move away from this traditional interpretation, it cannot be said to be completely incompatible with parliamentary sovereignty due to the latter’s inherent ability to evolve. Similarly, the act of leaving the EU has not been able to restore this traditional interpretation of parliamentary sovereignty, due to other factors external to EU membership which have shaped and influenced parliamentary sovereignty into the form which operates today. While the UK leaving the EU has closed one avenue of constitutional evolution, it is by no means the end.

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Katie Ann Twelves

Katie Twelves graduated in 2023 with a Bachelor of Laws from the University of Hull. During her time at Hull, she developed a particular interest in UK public and constitutional law. In February 2023, Katie was invited to present the above paper at the 15^th Trinity College Dublin Law Student Colloquium. She is currently studying for a Master of Laws in Legal and Political Theory at the University of York, with a dissertation project examining reform of the House of Lords.

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[1] HP Bulmer Ltd v J Bollinger SA [1974] CH 401 at 418 per Lord Denning MR.

[2] Phillip Norton, Governing Britain (Manchester University Press 2020) 167.

[3] R v Secretary of State for Transport ex parte Factortame Ltd (No 2) [1991] AC 603.

[4] R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

[5] Vernon Bogdanor, The New British Constitution (Hart Publishing 2009) 6.

[6] ibid 8.

[7] See eg Nicholas Watt and Rowena Mason, ‘EU Deal: Cameron vows to put Commons sovereignty “beyond doubt”’ Guardian (London, 3 February 2016) <https://www.theguardian.com/politics/2016/feb/03/eu-deal-david-cameron-uk-parliament-sovereignty-beyond-doubt-boris-johnson> accessed 3 August 2023.

[8] Paul Craig, ‘Development of the EU’ in Catherine Barnard and Steve Peers (eds), European Union Law (3rd edn, Oxford University Press 2020).

[9] Case 6/64 Costa v Enel [1964] ECR 585.

[10] Robert Schütze, ‘Constitutionalism and the European Union’ in Barnard and Peers (n 8) 78.

[11] Costa (n 9) [593]-[594]. The court also stated that, ‘The integration into the laws of each member state of provisions which derive from the community […] make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on the basis of reciprocity’. 

[12] ibid.

[13] Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.

[14] ibid [1].

[15] In its reasoning, the court stated: ‘The validity of such measures can only be judged in the light of community law. In fact, the law stemming from the treaty, and independent source of law, cannot because of its very nature be overridden by rules of national law […] without it being deprived of its character as community law and without the legal basis being called into question. Therefore, the validity of a community measure or its effect within a member state cannot be affected by the allegations that it runs counter to whether the fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure’ (ibid).

[16] European Communities Act 1972. Of particular relevance is s 2(1) which states: ‘All such rights, powers, liabilities, obligations and restrictions from time to time, created or arising by or under the Treaties, as in accordance with the treaties and all such remedies and procedures from time to time provided for or under the Treaties, as in accordance with the treaties are without any further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies’.

[17] AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan & Co. 1885) 3.

[18] Factortame (n 3).

[19] Case C-213/89 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1990] [1].

[20] ibid [10].

[21] ibid [11].

[22] ibid [66].

[23] HWR Wade, ‘Sovereignty – revolution or evolution?’ (1996) 112 LQR 571.

[24] ibid 573.

[25] ibid 574.

[26] Factortame (n 3).

[27] ibid per Lord Bridge at [659].

[28] Mark Elliot, ‘sovereignty, Primacy and the Common Law Constitution: What has EU Membership Taught Us?’ (University of Cambridge Legislative Research Paper series, Paper No. 24/2018).

[29] Paul Craig, ‘Sovereignty of the United Kingdom Parliament after Factortame’ (1991) 11(1) Yearbook of European Law 222.

[30] Wade (n 23) 574.

[31] NW Barber, ‘The afterlife of parliamentary sovereignty’ (2011) 9(1) International Journal of Constitutional Law (2011) 152

[32] Human Rights Act 1998, s 4(6)(a).

[33] Lord Hope, ‘The Human Rights Act 1998: The Task of the Judges’ (1999) 20(3) Statute Law Rev 185.

[34] Miller (n 4).

[35] Consolidated version of the Treaty on the Functioning of the European Union, Article 50.

[36] Mark Elliot, ‘The Supreme Court Judgement in Miller: In Search of a Constitutional principle’ (University of Cambridge Legal Research Paper Series, Paper No. 23/2017).

[37] Miller (n 4) [36].

[38] Blackburn v Attorney General [1971] 1 WLR 1037, at 1040.

[39] Miller (n 4) [81].

[40] ibid.

[41] ibid [86].

[42] ibid [101].

[43] Elliot (n 36).

[44] Nick Barber, Tom Hickman, and Jeff King, ‘Pulling the Article 50 “trigger”: Parliament’s Indispensable Role’ (UK Constitutional Law Association, 27 June 2016) <https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/> accessed 5 January 2023.

[45] R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995], 2 AC 513, per Lord Browne Wilkinson at [552].

[46] Barber, Hickman, and King (n 44).

[47] See Steven Gow Calabresi, ‘The United States: Creation, Reconstruction, the Progressives, and the Modern Era’ in The History and Growth of Judicial Review, Vol 1: The G-20 Common Law Countries and Israel (Oxford University Press 2021).

[48] Sir John Baker, An Introduction to English Legal History (5th edn, Oxford University Press 2019) 12

[49] Graham Virgo, The Principles of Equity and Trusts (4th edn, Oxford University Press 2020) 6

[50] Baker (n 48) 12.

[51] Virgo (n 49) 6.

[52] ibid 7.

[53] A more recent example of the courts developing and having a lasting impact can also be seen in the development of Wednesbury Reasonableness. First outlined in Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223, which developed a test to assess whether a decision of a public authority can be considered reasonable. Outlining the principle, Lord Greene stated: ‘A person entrusted with a discretion must […] Direct himself properly in the law. He must call his own attention to the matters which he bound to consider. He must exclude from consideration matters which are irrelevant to what he has to consider. If he does not obey these rules, he may truly be said to... be acting unreasonably. Similarly, there may be something so absurd that no sensible person can ever dream that it lay within the powers of the authority (per Lord Greene at 229)’. The test still constitutes an important element of judicial review; see comments of Mrs Justice Lang in Worthing Borough Council v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2044 (Admin) [37]).

[54] Norton (n 2) 168

[55] Aileen McHarg, ‘Devolution in Scotland’ in Jeffrey Jowell and Colm O’Cinneide (eds), The Changing Constitution (9th edn, Oxford University Press 2019) 271.

[56] Norton (n 2) 169.

[57] Nicholas Aroney, ‘The formation and amendment of federal constitutions in a Westminster-derived context’ (2018) 16(1) Int J Constitutional Law (2018) 41.

[58] Monckton Chambers, ‘Webinar on the Retained EU Law (Revocation and Reform) Bill’ (YouTube, 30 September 2022) 58:00 <https://www.youtube.com/watch?v=j5gQlkRadKA&list=FLAkDukVPOfZCvrVhx-lBhrA&index=3> accessed 5 January 2023.

[59] Mark Elliot and Stephen Tierney, ‘Political Pragmatism and Constitutional Principle: The European Union (Withdrawal) Act’ (University of Cambridge Legal Studies Research Paper Series, Paper No. 54/2018).

[60] European Union (Withdrawal) Act (EUWA) 2018, s 5(2).

[61] Elliot and Tierney (n 59).

[62] House of Lords Select Committee on the Constitution, European Union (Withdrawal) Bill 2018, 9^th report of Session 207-2019.

[63] ibid, para 79.

[64] ibid, para 81.

[65] ibid, para 84.

[66] ibid, para 88.

[67] ibid, para 89.

[68] EUWA (n 60) s 8(1)

[69] ‘What is Secondary Legislation?’ (UK Parliament) <https://www.parliament.uk/about/how/laws/secondary-legislation/> accessed 4 January 2023.

[70] Philippa Tudor, ‘Secondary Legislation: Second Class or Crucial?’ (2000) 21(3) Statute Law Rev 149.

[71] Henry VIII Clauses’ (UK Parliament) <https://www.parliament.uk/site-information/glossary/henry-viii-clauses/> accessed 4 January 2023.

[72] House of Lords Select Committee (n 62), para 163.

[73] ibid, para 187.

[74] ibid.

[75] ibid, para 214.

[76] ibid, para 216.

[77] Ibid

[78] EUWA (n 60) s 7, para 5(2).

[79] ibid s 7, para 5(4).

[80] ‘The Public Law Project—Written evidence (EUW0034)’ (UK Parliament) <https://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/constitution-committee/european-union-withdrawal-bill/written/71272.html> accessed 4 January 2023.

[81] ‘Professor Alison L Young, University of Oxford—Written evidence (EUW0003)’ (UK Parliament) <https://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/constitution-committee/european-union-withdrawal-bill/written/69634.html> accessed 4 January 2023.

[82] Retained EU Law (Revocation and Reform) Bill, HC Bill, Session 2022-23, 204.

[83] ibid 1(1).

[84] ibid, clause 6 (1).

[85] Monckton Chambers (n 58) 10:20.

[86] Department for Business, Energy & Industrial Strategy, ‘The Retained EU Law (Revocation and Reform) Bill 2022’ (UK Government) <https://www.gov.uk/government/news/the-retained-eu-law-revocation-and-reform-bill-2022> accessed January 5 2023.

[87] ‘Directive 2033/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time’ OJ L 299.

[88] Ruth Fox, ‘Five Problems with the Retained EU Law (Revocation and Reform) Bill’ (Hansard Society, 24 October 2022) <https://www.hansardsociety.org.uk/publications/briefings/five-problems-with-the-retained-eu-law-revocation-and-reform-bill> accessed January 5 2023.

[89] ibid.

[90] Retained EU Law Bill (n 82), clause 15(1).

[91] ibid, clause 15(3).

[92] Monckton Chambers (n 58) 24:40.

[93] Layla Moran MP, HC Deb, 25 October 2022, Vol 721, Col 229.