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Chapter

Cover Concentrate Questions and Answers Public Law

6. Parliamentary sovereignty  

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter considers questions relating to parliamentary sovereignty. There is a traditional doctrine of parliamentary supremacy, but it has had to be adapted to accommodate membership of the European Union. The questions deal with issues such as the meaning and implications of ‘parliamentary supremacy’; the impact of the UK’s EU membership on the doctrine of parliamentary sovereignty; the effect of EU legislation, such as directives, in English Law; how the European Union works; and how Brexit will affect parliamentary supremacy.

Chapter

Cover Public Law

22. Joining, Leaving, Transitioning: The UK’s Relationship With the European Union  

This chapter discusses the constitutionalization of EU law, which was led by the European Court of Justice from the 1960s using the twin principles of direct effect and supremacy. These principles were fully developed by the time the UK joined the European Community in 1973. The chapter will examine the UK’s accession process with particular reference to the European Communities Act 1972 before turning to the complex three-stage process of withdrawing from the EU. In that context, the 2016 referendum, Article 50 TEU, and the UK Supreme Court’s hearing of the English case of Miller and the Northern Irish case of McCord and Agnew, will be considered. In addition, the chapter will focus on the constitutional status of the Withdrawal Agreement, the transition period, and the constitutional importance of Northern Ireland for the current and future relationship between the UK and the EU.

Chapter

Cover Public Law Directions

5. Brexit  

This chapter discusses UK membership of the European Union and the Brexit process. On 1 January 1973, the UK became a member of the European Economic Community, and the UK Parliament passed the European Communities Act 1972, allowing directly applicable European laws to take effect as part of UK domestic law which had an impact on parliamentary sovereignty. In the 2016 Brexit referendum, a narrow majority of the public voted in favour of leaving the European Union and the European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972 on exit day when the UK left the European Union. Brexit has made significant changes to the UK constitution including the creation of a new body of retained EU law in UK domestic law, an impact on devolution, and raising the question of whether it has been a sufficient constitutional moment to trigger a codified UK constitution.

Chapter

Cover Public Law

23. Joining and Leaving the European Union  

This chapter discusses the constitutionalization of EU law, which was led by the European Court of Justice from the 1960s using the twin principles of direct effect and supremacy. These principles were fully developed by the time the UK joined the European Community in 1973. The chapter also examines the UK’s accession process and the European Communities Act 1972 before turning to the process of withdrawing from the EU. In that context, the chapter will focus on the concept of ‘retained law’, the implications of withdrawal for Scotland and Northern Ireland, and the Internal Market Act 2020.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

22. A Revolution by Due Process of Law?  

Leaving the European Union

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

Chapter

Cover The Changing Constitution

2. Parliamentary Sovereignty in a Changing Constitutional Landscape  

Mark Elliott

Parliamentary sovereignty is often presented as the central principle of the United Kingdom’s constitution. In this sense, it might be thought to be a constant: a fixed point onto which we can lock, even when the constitution is otherwise in a state of flux. That the constitution presently is—and has for some time been— in a state of flux is hard to dispute. Over the last half-century or so, a number of highly significant developments have occurred, including the UK’s joining— and now leaving—the European Union; the enactment of the Human Rights Act 1998; the devolution of legislative and administrative authority to new institutions in Belfast, Cardiff and Edinburgh; and the increasing prominence accorded by the courts to the common law as a repository of fundamental constitutional rights and values. Each of these developments raises important questions about the doctrine of parliamentary sovereignty. The question might be thought of in terms of the doctrine’s capacity to withstand, or accommodate, developments that may, at least at first glance, appear to be in tension with it. Such an analysis seems to follow naturally if we are wedded to an orthodox, and perhaps simplistic, account of parliamentary sovereignty, according to which the concept is understood in unyielding and absolutist terms: as something that is brittle, and which must either stand or fall in the face of changing circumstances. Viewed from a different angle, however, the developments of recent years and decades might be perceived as an opportunity to think about parliamentary sovereignty in a different, and arguably more useful, way—by considering how the implications of this still-central concept are being shaped by the changing nature of the constitutional landscape within which it sits. That is the task with which this chapter is concerned.