Public Law - Parliamentary Sovereignty of the UK - Essay Example

?The Impacts of the Referendum Bill and the Scottish Independence Referendum on the Parliamentary Sovereignty of the UK Introduction Each democratic country uses its parliament as a symbol of democracy. The legislature frames laws that will be enforced by the executive. Along with the legislatures, there is also a need sometimes for referendums. Here, usually one aspect is decided upon by the electorate; and it is usually in a ‘yes-no’ format. The success of the referendum depends not so much on the outcome as on the participation or the voter turnout for the referendum. According to Dicey, “The principle of Parliamentary Sovereignty means neither more nor less than this, namely that Parliament thus defined [i.e., as the ‘King in Parliament’] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament” (as cited in Eleftheriadis, 2009). Hence, one can say that parliament alone has the power to make laws. It also has the immunity in that none can change the laws made by it. In Jackson v Attorney-General [2005] UK HL 56, Lord Steyns approved an argument put forward in 1935. He said that the monarch and the two Houses (Lords and Commons) must consent to legislate. Parliament can spread legislative powers in various ways. This was redefining parliament for a specific purpose and could not be ignored (Carroll, 2013. P. 105). In Pickin v British Railways Board [1974] AC 765, it was noted that though parliament had not followed procedure, it could not be compelled to investigate the allegation. (ibid, p. 102). 1. The EU Referendum Bill and Parliamentary Sovereignty of UK “The constitutional referendum is often conceptualised as the ultimate institutional expression of popular sovereignty’’ (Daly, 2013). Every nation has a right to express its sovereignty and the people do so by means of elections and referendums. A referendum seeks public opinion on a specific topic using the ballot. UK has had a contentious relationship with the EU. The Conservative Party had decided 2017 as the time for the referendum for continued membership of the European Union. The general elections are due in 2015. If no party receives an absolute majority, the future of the referendum could be in jeopardy. Only if the orders are passed through parliamentary assent can the referendum be conducted at the stipulated time. In the past, many amendments were proposed to EU Treaty bills. This resulted in the demand for referendum for such amendments. The Conservatives were of the opinion that the EU was intruding into various aspects of life. Hence, they supported a ‘referendum lock’ which would validate future EU association by the citizens (European Union Referendum Bill, 2013). The EU provided its members an ‘opt-out option’. However, this was cast in an all or nothing terms. This was to discourage UK and such members who took the matter lightly. The Treaty demands that opt-out decision should be taken at least six months prior to the end of the transition period allowed. The Tory Eurosceptics were in favour of no opting back. They were of the opinion that co-operation with other European countries could be possible through international arrangements on a case-by-case basis (Craig, 2013, p. 172). Sovereignty is closely related to state power. The state maintains sovereignty in that it has the power and authority to enact laws by which it can serve the national interest. Member states desired international co-operation in foreign & security policy, justice & home affairs. In such sensitive matters, they prefer inter-governmentalism, hence retaining control in their own hands. Nevertheless, EU needs to involve itself since crime and terrorism have a cross-border nature. Hence, state autonomy will have to be sacrificed in such matters as the price for resolving serious issues of global concern. The European Arrest Warrant (EAW) is a case in point. EAW makes handing over criminals to EU members easier than the cumbersome procedure of extradition. Sceptics note that the ends of the EAW can be obtained by practical co-operation instead of overarching legislation from the EU. However, the House of Lords European Union Committee found that the arguments for an opt-out were not sound. Though the government was in favour of the option, the House of Lords averred that such a measure would be harmful. They felt that in the case of criminal justice, internal security would be compromised if they opted out of the UK (Craig, 2013, pp. 173-174). The European Union referendum points towards two aspects. Firstly, it deals with parliamentary sovereignty in relation to EU law. Secondly, the referendum would be the basis for future laws being enacted (Murkens, 2012, p. 404). The European Scrutiny Committee has made the following remarks on the EU Bill and Parliamentary Sovereignty. From the Thoburn case, it can be said that dualism would remain untouched. If a parliamentary act were to derogate from a EU regulation, the courts would follow the derogating Act. Judges can be asked to disapply aspects of the EU by will of an elected parliament through an Act (Publications.parliament.uk. 2014). This would give judges a legislative role and bring in variation of the judicial climate. Moreover, clause 18 does not address the superiority of the EU law over the national law and hence is not needed. Hence, it can be concluded that the present parliament could not bind a future one, which had the right to change the EU bill (Ibid). 2. The Scottish Independence Referendum and Parliamentary Sovereignty of UK The idea of independence for Scotland has far reaching implications. There is a precedent in Ireland. Wales is supposed to be next in line. While Scotland had been independent in the past, it had had a shared history with England. The Scottish referendum for independence assumes importance in this context. The Edinburgh Agreement with reference to Denmark is pertinent. In case sovereignty is transferred, a 5/6th majority of the Danish parliament is required for adopting the law (Euo.dk. 2014). Alternatively, a majority in the Folketing and in the referendum may be pre-requisites. The Barnett Formula has been a yardstick for secession and a point of dispute over the years. This formula was used to fix the budgets of Northern Ireland, Scotland and Wales. The population share of the three regions was taken to calculate the amount. It has no legal standing or justification from a democratic standpoint (Edmonds, 2011). A ‘yes vote’ in the Scottish referendum could bring this facility to an end.The Equalization (Household Subsidies) Act was passed in 2008 which had the effect of abolishing the Barnett Formula. One important question is whether it is right for Scotland to secede. That UK has agreed to a referendum for the Scotts, is recognition for this aspect. However, this does not imply that every territory could secede. Unviable territories may not be allowed to secede. UK should ensure that the questions and the manner of campaign are fair.  It should see that the question for the referendum. A neutral and positive question with two options i.e. a ‘yes’ and a ‘no’ could be ideal. When a new Scottish state comes into being, the rest of UK would have its duties. Minority groups need to be protected in Scotland. Further the new state should respect democracy, rule of law among other principles of democracy. It should also ensure that Scotland has a modern and model constitution. Just as independence cannot be withheld in case of a majority vote, independence should not be thrust on the Scottish without fulfilling the above procedure. Some constitutions are ratified by the people. Hence, after a new constitution is ratified, a new referendum may be required for ratifying the new constitution. Finally, the UK Parliament should ensure that this process is fair to the rest of UK. In case of a negative vote, a considerable amount of time should elapse before another referendum is held (Edmonds, 2011). If one state is forever on the verge of secession, it will not share the burden of the unified state until it leaves. Hence, UK should grant independence only after full negotiations are completed. The UK parliament should then include a statute that makes the secession constitutional. Scotland should then carry on from there (UK Constitutional Law Group. 2014).  Devolution instead of independence could be a better option available to Scotland. People do not differentiate between independence and devolution. What they seek is more self-government (Keating, 2013, p. 136). However, one must remember that the very idea of secession is due to a yearning for a separate identity and one must make a start somewhere if one is to develop institutions and infrastructure as part of nation-building. Conclusion After going through these two referendums one can gather implications for UK as a whole. While one deals with secession from the UK, the other concerns with continued association to the continental union (the EU). Hence, they depict the macro and the micro picture for parliamentary democracy in UK. It is not surprising that the oldest democracy in the world should face two such situations at the same time. The UK can come out with flying colours from this episode in its history and again be an exemplar for all the democracies of the world. References Carroll, A. 2013. Constitutional and Administrative Law. UK: Pearson Education. Craig, P. P. 2013. ‘Sovereignty and the Law, Domestic, European, and International Perspectives’. R Rawlings, A Young and P Leyland (eds). Chapter 10, Oxford University Press, 2013. Available at SSRN: http://ssrn.com/abstract=2365860 Daly, E. 2013. ‘A republican defence of the constitutional referendum’. Legal Studies. doi: 10.1111/lest.12038. European Union (Referendum) Bill. 28 June 2013.Bill 11 of 2013-14, RESEARCH PAPER 13/41 [online] available at: www.parliament.uk/briefing-papers/RP13-41.pdf [accessed 30 Dec 2013]. Eleftheriadis, P. 2009. Parliamentary Sovereignty and the Constitution. Canadian Journal of Law and Jurisprudence, XXII (2): 1-24. Euo.dk. 2014. Edinburgh Agreement / EU-Oplysningen. [online] Available at: http://www.euo.dk/emner_en/forbehold/edinburgh/ [Accessed: 7 Jan 2014]. Edmonds, T. 2011. The Barnett Formula, Summary of Main Points. Research papers RP01/108. Publications. parliament.uk. [online] available at: http://www.parliament.uk/business/publications/research/briefing-papers/RP01-108/the-barnett-formula. [accessed 07 Jan 2014]. Keating, M. ‘Nationalism, unionism, and session in Scotland’. In Secessionism and Separatism in Europe and Asia: To Have a State of One’ s Own. (Eds. ). J. P. Cabestan & Pavkovic, A. 2013. NY: Routledge. Murkens, J.E.K. (Jo). 2012. The European Union Act 2011: A failed statute. [online] available at: http://webcache.googleusercontent.com/search?q=cache:rcGVW-NmpEkJ:www.lse.ac.uk/collections/law/staff%2520publications%2520full%2520text/murkens/Murkens,%2520The%2520European%2520Union%2520Act%25202011,%2520a%2520failed%2520statute116.pdf+&cd=1&hl=en&ct=clnk&gl=in [accessed 30 Dec 2013]. Publications.parliament.uk. 2014. House of Commons - The EU Bill and Parliamentary Sovereignty - European Scrutiny Committee. [online] Available at: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63308.htm [Accessed: 7 Jan 2014]. UK Constitutional Law Group. 2014. Nick Barber: Scottish Independence and the Role of the United Kingdom. [online] Available at: http://ukconstitutionallaw.org/2012/01/11/nick-barber-scottish-independence-and-the-role-of-the-united-kingdom/ [Accessed: 7 Jan 2014]. Read More