A Level Ideas Long Reads

Order! What has Brexit done to our courts?

Is Brexit about to return a plethora of sovereign capabilities back from the EU?


The principle of Parliamentary sovereignty is the most important element of the British constitution, as it gives the British Parliament in Westminster, as an elected body, supreme power and legislative authority over anything. Often, ideas about sovereignty are conflated with notions of patriotism, but they are robustly different things.

Although the sovereignty of our Parliament is longstanding, the historical significance of such an imperative principle is disputed, so the best I can do is present historic law:

Perhaps one of the most important Acts of Parliament (statute) in the union’s democratic history is that of the Bill of Rights (1689), in which all royal political powers were removed. A succeeding statute, the Act of Settlement (1700) removed the monarchy’s influence from the judiciary, allowing for the first time in modern British history, a completely independent legislature and judiciary from Royal interference. But, questions about the sovereignty of Parliament have been contested and with the prominence of this issue escalating both previous to and after Brexit, the understanding of such a crucial constitutional principle is vitally important. With the sovereign power derived from the Crown, is it correct to suggest that the UK lost sovereignty to the European Union as a member? Or, is it another one of those conflated-mistruths I spoke about earlier?

A common phrase during that referendum campaign was ‘let’s take back control’, and a big political part of that message relies upon the importance of Parliamentary sovereignty- something which was eagerly discussed in that campaign. And, perhaps the biggest message was the the NHS money bus which promised an extra £350m investment if Britain decided to leave the European Union. There are two things wrong with the campaign slogans above. Before Brexit, the UK had around 98% control of its public expenditure through both the executive privileges of the government and the sovereignty of Parliament. This means that the NHS’ budget is not restricted by the European Union, but rather controlled by the British Government and scrutinised on by the various functions of the House of Commons. If politicians such as Boris Johnson and Michael Gove were so obsessed with better funding the NHS, they should’ve said so when the Conservative Party’s manifesto was written in 2015. It is the government which sets public spending via the Treasury- it isn’t threatened by zombie European leaders in Brussels or Strasbourg. They are zombies, by the way. Indeed, Brexit is something which has caused such stirs at the heart of a wholly outdated political system that people are starting to doubt whether taking back control is actually possible. As the Brookings Institute highlighted, there is a world of difference between national sovereignty and national autonomy- so don’t you dare get them mixed up!

Those who think that sovereignty will restore complete control of immigration, economics and international law are purely and simply wrong.

In simplified terms, sovereignty is something exclusively political to the nation and it cannot control the external influences of the outside world, and the effects they have within our borders. Those who think that sovereignty will restore complete control of immigration, economics and international law are purely and simply wrong. Those who do, well, I’m glad your reading my blog. I present the big questions of our day to you, On Face Value.

What is fundamental to understand is that if I was to vote based off of a usually salient issue, say the economy, and wanted the EU’s grubby hands off of it; I wouldn’t vote off of the basis of sovereignty. I would be voting for greater political and economic autonomy, which is a different idea entirely. If I want an economic structure that reflects Britain’s wider presence in the world, these changes rely upon a plethora of different contributive chapters in order for the story to be written. Elements such as trade deals, socioeconomics; politics in government and the economic tendencies of the wider world. In all truth, sovereignty should never have even been an issue in the referendum, simply because it has always been present.

A crucial example that I would point to would be the relationship between the UK’s judicial system and the legislature in Westminster. In this case, Westminster Parliament has complete favorability; it is a sovereign body, so it cannot be overruled even by the courts. The subordancance of the Courts is noticeable through legal doctrines that are referred to as ‘Common Law’, and these legal conventions follow the legislation passed by Parliament. So, if you’re unhappy that the courts haven’t got control, it isn’t a European issue at all- this precedent dates back to the 15th and 16th centuries. Blame them.

The European Court of Justice & The Supreme Court

Here’s where it gets spicy though, because it is true that we have a large chunk of our constitution reserved for the European Union- particularly in the judicial branch. Much like our courts, the European Court of Justice is a body which regulates the implementation of law, via the outlines stated by treaties and secondary legislation. Our Supreme Court must refer to the ECJ over such issues, because they are important protected elements of EU policy that must be adhered to in legislation. If the ECJ does rule that a piece of legislation is incompatible with EU law, it doesn’t have the power to strike down national law passed by a sovereign body. It is true that through a European ruling in 1964, states that had agreed to limit some of their sovereign capabilities would be obliged to follow the word of the treaties when making law. In this sense, EU law takes precedent in the manufacturing of legislation.

In 2016, the ECJ ruled that the Investigatory Powers Act was in breach of EU law on surveillance. The Supreme Court then followed with a Declaration of Incompatibility, to which the government agreed to reword their legislation.

If Parliament passed a law that was incompatible with EU law and directives, the Supreme Court would rule a Declaration of Incompatibility. This highlights a very important checks-balance process between the Judiciary, the EU and the British Parliament. The courts have very limited powers over Parliament, so if a law was to found to be negating the words of the EU treaties, the Supreme Court would attempt to find a resolution through the use of common law and legal conventions. Ultimately, Parliament still effectively has control of its laws and clearly; all this process does, is it makes law more representative and better worded for adequate enforcement by the courts.

As some Brexiteers would be quick to point out, there is another European court that does have some influence over the legislation that Westminster Parliament must adhere to- The European Court of Human Rights.

This is perhaps one aspect of the European Union that has got under the nails of many Conservatives and Eurosceptics. Originally founded to protect the EU from totalitarianism in 1959, the Court of Human Rights’ oversight has been an issue of national deliberation ever since its first involvements with the UK. Correctly or incorrectly, the role of the court is fundamentally to protect the rights of European citizens across the EU, particularly in areas such as employment rights. The court oversees the implementation of and the adherence to the European convention on Human Rights, which came into force in October of 2000. Essentially, any appellate can appeal to the court, on the basis of a human rights issue; including at times, states themselves.

Once again, the ECHR can judge a law to be in breach of the Human Rights Act, and UK courts can give a declaration too. The ECHR can override the decisions of UK courts if needs be, which could highlight the discontent of some toward the powers the court holds. Although, as a sovereign body, it remains Parliament’s jurisdiction to decide to amend said law or not. Usually though, public opinion dictates that they do.

The way to rid the United Kingdom of such a court is to repeal the Human Rights Act, which establishes the link between the court’s jurisdictions and ‘interference’ with British law. This is relevant particularly to 2016, when the government drafted a ‘British Bill of Rights’ to replace the potential omission of the Human Rights Act. This was widely condemned as a rushed and ‘populist’ proposal which gained very little traction, and there hasn’t really been much chatter since. Apart from Theresa May threatening to remove it as part of the Brexit withdrawal in January of this year, no solutions have been pushed. The House of Lords Brexit Committee warned that the Act was under threat after Brexit, after they labelled the government’s response as ‘diluted’. Talk about ‘good, strong government in the national interest’.


Historic rulings from the European Court of Human Rights on the UK:

 

 


Brexit and the separations of power:

This brings me to my conclusive segment- the current dilemma of the Supreme Court. The question over whether Boris Johnson ‘lied’ to the Queen is currently being mulled over by all 11 Justices, and a ruling is widely expected next Monday. Regardless of the verdict, this case highlights the extraordinary political climate of today and to think we had seen it all. John Major (former Prime Minister) even testified through a lawyer this week, indicating the extent of the political rupture. Forget bonkers. This is unheard of.

These developments are lurching into a constitutional crisis, particularly in regards to the makeup of the balance of powers between each branch. Bear in mind that the uncodified state of our constitution makes the coming decision even more important; if the Supreme Court adjudged that Johnson misled the Queen, some will cry political interference from the Judiciary. Therefore, the key question is this: is it for the courts to intervene in such a matter? If so, what an earth does that mean for the future? Remember, legal doctrines are a vital part of the judicial process. This would break the trend.

The immediate future is indifferent; if the Supreme Court rules that it isn’t within their jurisdiction (which is quietly expected), we return to the normal state of play. Well, Brexit normal. If an opposite decision is arrived at, Parliament could be recalled immediately. Chances are, Johnson would prorogue Parliament again.

What would the likes of Erskine May, A.V Dicey and Lord Bingham think of this mess? Better not answer that. Politics students like me? Well, we’re pulling our hairs out trying to keep up. Wish us luck with that.


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2 comments on “Order! What has Brexit done to our courts?

  1. It’s interesting you mention the role of the ECJ and ECHR because their influence is clearly overstated. They have failed time and time again to push through their rulings, evidenced with the prisoner’s voting ban. It is also worth nothing that in July 2019, the High Court actually stated the Snooper’s Charter was lawful! It is indeed a very confusing and bewildering time for the judiciary.

    • The European courts are simply just a stick for which to prod the bear with for some Leavers, but it is clear that this issue has been blown out of proportion by liars and exaggerators. Funny thing is, this isn’t even a ‘f**k Brexit’ article either!

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