Published on: August 04,2021 17:20 IST
By Tanya Napolean
Introduction
On November 1, 1993, the Maastricht Treaty established the European Union, which now includes 27 European countries. The European Union started as an economic entity, but it quickly evolved into a forum for member countries to work together on political, diplomatic, and other concerns.
The Maastricht Treaty was initially intended to strengthen Political integration and improve commerce by establishing the Euro as a single currency and improving collaboration such as citizenship status and immigration.
Brexit is the name given to the landmark decision made by the United Kingdom, one of the EU’s most important members, to leave the bloc. The economic and border controls that EU member states are subjected to were among Britain’s concerns Union.
The United Kingdom decided to leave the European Union on June 23, 2016. Many legal and constitutional problems have been raised as a result of the withdrawal. Theresa May began the negotiations on March 29, 2017 and set the deadline for March 29, 2019.
There were other delays and cancellations after that, as well as Theresa May’s inability to win parliament’s support for her Brexit plan. Boris Johnson of the Conservative Party took over as Prime Minister when Theresa May quit. Under Johnson’s administration, the Brexit deadline was once again extended.
Finally, at 11 p.m. on January 31st, 2020, the United Kingdom withdrew from the European Union. The European Union Referendum Act of 2015 created the legal foundation for the EU referendum.
The link between the executive administration and Parliament throughout the process of leaving the European Union is the first factor that must be considered: there are several concerns about issues that need to be handled.
This raises concerns regarding the balance of power between the two houses: it might be claimed that the executive was granted too much authority throughout the Brexit process.
Impact on the UK Constitution
The issue of who might invoke Article 50 in the United Kingdom’s exit from the European Union was the first constitutional and legal problem to arise. Originally, it was thought that the British government might use Article 50 under the Royal Prerogative, which gives the state the right to enter and exit treaties.
The European Communities Act of 1972, on the other hand, would be nullified if Article 50 was triggered.
Article 50, if triggered by Royal Prerogative, would relieve the UK of its treaty commitments under the Act, which is enshrined in domestic legislation and not within the executive’s legislative authority.
This was affirmed in the Miller case[1], which established that Article 50 must be triggered by an Act of parliament. Following the UK’s exit from the EU, Lord Hughes indicated that a “legislative program will be necessary for Parliament”[2].
This demonstrates how, from the start of the Brexit process, Parliament has been needed to hold the administration to account owing to the level of authority they have accumulated.
The EU’s Clauses 7-9 (Withdrawal) legislation raises several questions about the constitutional implications of the executive-legislative power balance. Clause 7(1) says that “a minister of the crown may make such measures as the Minister thinks necessary” in the event of “retained EU law failing to operate effectively” or “any other deficiency”[3].
Paragraph 7(5) states that the powers granted in clause 7(1) are Henry VIII powers, meaning that the executive can legislate on or repeal any main law without going through Parliament.
The bill was criticized by the House of Lords in their 2017 Select Committee on the Constitution internal report, not only because it grants the executive broad powers, but also because it prevents Parliament from holding the government accountable[4].
The committee recommended that the government utilize its constitutional authority under the Great Repeal Bill “as sparingly as feasible.” This emphasizes the constitutional problem that the executive branch has too much authority and influence over the departure process.
In a subsequent House of Lords preliminary report from January 2018, it was claimed that treating all preserved EU law as main legislation was ‘preferable’ since it was subjected to much more criticism: secondary legislation is prone to revocation and receives less scrutiny[5].
Impact on Parliamentary Sovereignty
By exiting the European Union, the United Kingdom will eliminate a powerful external body that constrained Parliament’s sovereignty when it joined the EU in 1972.
However, by doing so, it will impose legal constraints on itself, even though they will be able to modify the law by obtaining ultimate authority. “If an act is passed that takes away authority from future Parliament, then the future Parliament will not be legislatively supreme,” Tomkins says.[6]
As a consequence of leaving the European Union, there will be substantial changes to the Parliament’s structure, which is regarded to be “continuing” in terms of authority and unable to constrain its successors. It may enact its legislation when change occurs by managing the exit process.
Following Brexit, the Parliament could have had the potential to adhere to its successors, causing them to become conscience, which is the polar reverse of how it was under the EU law.
As a result, significant changes will include the following: EU law will no longer have precedence over UK law, UK laws will be allowed to be introduced that is in conflict with the European Economic Community, and, as previously said, the authoritative rule of Parliament will be reinstated as sovereign.
However, the Orthodox norm of Parliamentary Sovereignty will not be entirely restored because the essence of Parliamentary Sovereignty has radically changed since Dicey and can no longer be considered Orthodox in the United Kingdom.
Sewel Convention
The violation of the Sewel Convention established in the Scotland Act 1998, which states that “it is recognized that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament,” is the next issue concerning the Scottish Government’s judicial power. [7]
The European Union withdrawal bill has the constitutional consequence of allowing the UK executive to legislate on devolved issues without the Scottish Government’s agreement. The Sewel Convention is a legal concept that states that the UK must seek approval from the devolved government.
However, the state has said that “these powers will not generally be used to modify domestic legislation in areas of devolved competence,” in response to these issues. [8]
The second section of the Miller case addressed this issue: triggering Article 50 needed an Act of Parliament since it changed the legal authority of the Scotland Act and authorizing the removal would require approval through the Sewel Convention.
Although this is simply a constitutional change and hence not legally binding, it is important to highlight that this is a long-standing practice outlined in the Scotland Act that provides more political than constitutional recourse.
It was decided in the Miller case that there was no legal obligation to seek the agreement of devolved entities.[9]
Impact on India
India is a major investor in the United Kingdom. There are around 800 Indian-owned businesses in the nation that employ approximately 110,000 people. Several of these companies made an investment with the rest of Europe in consideration.
Over a quarter of the nation’s IT exports, worth roughly $30 billion, are sent to the UK and Europe. The United Kingdom is India’s third-largest destination for foreign direct investment and its major G20 contributor.
In terms of project statistics, India is the third-largest supplier of FDI to the UK. India invests more in the UK than the European Union combined, becoming the country’s third-largest foreign direct investment (FDI) investor. Healthcare, food, and drinks are among the main industries receiving Indian investments.
“As far as India is concerned, if there is an entrance point for us to the EU, it is the UK,” Prime Minister Narendra Modi stated in November 2015.
However, the United Kingdom is India’s 12th largest trading partner, trailing other European nations. Surprisingly, the United Kingdom is one of just seven of the top 25 nations with whom India has a trade surplus.
Conclusion
Ultimately, the United Kingdom’s exit from the European Union raises plenty of legal and constitutional concerns.
As a result, major changes will include EU law will no longer have precedence over UK law, UK legislation will be allowed to be introduced that is in conflict with the European Union and, as previously said, the authoritative rule of Parliament will be reinstated as sovereign.
However, the Orthodox norm of Parliamentary Sovereignty will not be entirely restored because the essence of Parliamentary Sovereignty has changed dramatically since Dicey.
Reference-
- R (Miller) Vs Secretary of State for Exiting the European Union [2017] UKSC 5 ↑
- R (Miller) Vs Secretary of State for Exiting the European Union [2017] UKSC 5, 283. ↑
- Jack Caird, The European Union (Withdrawal) Bill: clause 7 “the correcting power” House of Commons Library, commonslibrary.parliament.uk(last visited Jul 29, 2021). ↑
- Publications.parliament.uk, publications.parliament.uk (last visited Jul 29, 2021). ↑
- Publications.parliament.uk, publications.parliament.uk (last visited Jul 29, 2021). ↑
- Adam Tomkins, Public Law 105 (2003). ↑
- Scotland Act 1998, Legislation.gov.uk, legislation.gov.uk (last visited Jul 29, 2021). ↑
- Publications.parliament.uk, publications.parliament.uk(last visited Jul 29, 2021). ↑
- R (Miller) Vs Secretary of State for Exiting the European Un0ion [2017] UKSC 5 ↑