11.3.2 Impact of EU Exit on UK Parliamentary Sovereignty & Policy

Impact of EU Membership on Sovereignty

• While the UK was part of the EU, it was subject to EU law, which took precedence over domestic law in areas of shared competence. This relationship was exemplified by cases such as Factortame (1990), where the European Court of Justice (ECJ) ruled that UK courts must suspend an Act of Parliament (the Merchant Shipping Act 1988) that was inconsistent with EU law. This decision demonstrated the supremacy of EU law and the limitations it imposed on UK parliamentary sovereignty during membership.

Restoration of Sovereignty Post-Brexit

1. Legislative Independence:

• Post-Brexit, the UK Parliament has fully regained its legislative sovereignty, meaning it can now legislate independently of the EU's legal framework. This allows the UK to create, amend, or repeal laws in areas previously governed by EU regulations, including trade, agriculture, fisheries, and environmental policy.

2. Trade Policy:

3. Immigration Control:

• Ending Freedom of Movement: With Brexit, the UK ended its adherence to the EU's principle of free movement of people. Parliament has since enacted new immigration laws that prioritize skilled workers, allowing the UK to control immigration based on its own needs and criteria.

4. Judicial Independence:

• The UK courts are no longer subordinate to the European Court of Justice (ECJ). This change reasserts the role of the UK Supreme Court as the highest judicial authority, ensuring that UK laws are interpreted and applied according to domestic priorities without the need to comply with EU legal precedents.

5. Policy Divergence:

• Flexibility in Regulation: Parliament now has the freedom to diverge from EU standards. For example, in the fishing industry, the UK government has introduced policies to regain control over British waters, a key issue during Brexit negotiations. However, the practical implementation of these policies has faced challenges, including disputes with the EU over fishing rights and access.

6. The Fact of Leaving:

• The very fact that the UK was able to leave the EU underscores that parliamentary sovereignty was never fully relinquished. Despite the limitations imposed by EU membership, the UK retained the ultimate sovereignty to withdraw from the EU, as demonstrated by the 2016 referendum and the subsequent triggering of Article 50.

Challenges to Sovereignty Post-Brexit

1. Retention of EU Law:

2. Devolution and Internal Tensions:

• The repatriation of powers from the EU has led to disputes between Westminster and the devolved administrations in Scotland, Wales, and Northern Ireland. Issues such as agriculture and fisheries, previously under EU regulation, are now points of contention, with devolved governments seeking greater control over these areas, challenging the central government's sovereignty.

3. Northern Ireland Protocol:

• The Northern Ireland Protocol, part of the Brexit withdrawal agreement, keeps Northern Ireland aligned with certain EU regulations to avoid a hard border with the Republic of Ireland. This arrangement complicates the concept of UK sovereignty, as it effectively places a regulatory border in the Irish Sea, with Northern Ireland continuing to follow some EU laws.

4. International Commitments:

• As the UK establishes new trade agreements and international treaties, these commitments may impose constraints on Parliament's legislative freedom. For instance, trade deals often require adherence to specific standards, which can limit Parliament's ability to diverge from those agreements in domestic legislation.

5. Economic Interdependence:

Conclusion

Brexit has restored a significant degree of parliamentary sovereignty to the UK, allowing Parliament to legislate independently of the EU in all areas of policy. However, the legacy of EU law, the complexities of devolution, and ongoing economic interdependence present challenges to the exercise of this sovereignty. The UK's ability to leave the EU itself demonstrates that sovereignty was always retained, but the practicalities of governing outside the EU framework reveal that sovereignty in policy-making is nuanced and continually evolving. The balance between newfound legislative freedom and the realities of global and domestic constraints will shape the future of UK parliamentary sovereignty.