The first thing to be clear on, which also makes things quite confusing, is that the different countries making up the UK don’t actually have the same laws.
The legal systems of England and Wales are the same; but there are slight differences between this system and the system used in both Scotland and Northern Ireland. These differences are in areas such as property law, criminal law and family law. However there are greater similarities in areas of national interest such as commercial law, consumer rights, taxation and health and safety regulations.
The judiciary has a few main principles, but one core principle to remember is that they are independent.
For this reason MPs cannot serve as judges. This would clearly increase the sovereignty of Parliament but it would also undermine the principles of the rule of law.
The primary role of the judiciary is to uphold the law. Though the judiciary could be said to interpret the law and even to scrutinise it, their primary role is to uphold the law in an impartial and consistent fashion.
Judges do not have the power to change the law, they only have the ability to issue a ‘declaration of incompatibility’ relating to the Human Rights Act 1998.
There is more to come on the Human Rights act later on, but just as a quick overview, the Human Rights Act 1998 includes the statement ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’.
Where the court determines a piece of legislation contravenes the Convention rights, the court can issue a declaration of incompatibility under section four of the Human Rights Act.
So we now know that judges can’t implement laws, but parliament can. However, there is a third party to consider and that’s the European Union.
The proportion of UK law which has come from Brussels since 2009 is approximately 53%.
This figure of 53% includes EU regulations and regulations influenced by or related to the EU.
The Factortame case of 1991 was the first to establish the primacy of European law over UK law. So it was pretty significant!
The Factortame case was brought by a company of Spanish fishermen who claimed that the United Kingdom had breached European Union law over ship registration rules. The case was the first time the UK courts held that they had the power to defy an Act of Parliament because it was found to be contrary to EU law.
However, the UK Parliament still has power over the defence of the country, over taxation levels and over its own foreign policy. It is free to make policy and agreements in these areas without considering EU law.
Now here’s the interesting bit: the UK would only be able to restore power from the EU to the UK Parliament by leaving the EU – enter Brexit!
A law stating that UK sovereignty supersedes EU sovereignty would be incompatible with the UK’s membership of the EU.
Therefore, to fully regain sovereignty the UK would have to leave the EU entirely. The fact that the UK is in the process of leaving the EU means that it can be argued that Parliament remains sovereign.