The Role Of The Judiciary In The Evolution Of Parliamentary Sovereignty Since The UK's Entry Into The EEC

After the 1688 Glorious Revolution.parliamentary sovereignty has become one of the most important principles for the British unwritten constitution,providing a fundamental arrangement for the distribution of British national power.The great British constitutionalist A.V.Dicey explained the principle of parliamentary sovereignty.and pointed out that no individuals or groups in the UK have the right to review or restrict parliamentary legislation In this constitutional context,the British judiciary have always been regarded as an executor of parliamentary legislation that has no power of constitutional reviewHowever,the common law tradition in the British legal system should not be ignored as well.In order to avoid the misuse of parliamentary sovereignty as parliamentary authoritarianism,and to ensure the British Constitution flexibly adapted to the justice value of different historical periods,the British courts are entitled to violate parliamentary legislation and to pass judgement according to the common law precedents given special circumstances.Therefore,as a pair of features with tension in the British constitution,the principle of parliamentary sovereignty and the common law tradition together lay the foundation for the British courts to explore their roles in the separation of state power.Since Britain joined the EEC/EU,the traditional principle of British parliamentary sovereignty has faced a series of external challenges.An enlarging gap occurs in its theory and practice.Hence the British courts in the evolution of parliamentary sovereignty have begun to adjust their roles accordinglyThis thesis discusses three key nodes when the principle of parliamentary sovereignty is confronted with challenges from UK's EU membership.including UK's accession to the EEC/EU,the establishment of UK-Europe legal triangle of protecting human rights,and the Brexit.The classic law cases are selected to analyze the transtformation of the role of the British courts in different periods.The role of the British judiciary has transformed from the spokesperson of parliamentary sovereignty,to its mediator,and finally to its guarantor.From resolving jurisprudential conflicts between the UK and the EU,to accommodating parliamentary sovereignty to the modern concept of human rights protection.and to passively participating in domestic political disputes,the British judiciary maintains the stability of the theoretical parliamentary sovereignty.By acquiring various judicial instruments like the expansive interpretive competence.the declaration of incompatibility and the declaration of disapplication,British judiciary takes a functional expansion of judicial power.However,there has been no structural and revolutionary change in the relationship between the legislation and the jurisdiction.The British courts keep their loyalty to the Parliament who has the unlimited legislative powerDifferent from traditional judicial research,the thesis combines historical,legal and political studies to explore the evolution of the role of British courts under the influence of parliamentary sovereignty since UK's accession to the EEC.While conducting studies on the case law,the thesis digs into the historical and political reasons behind.Primary sources from online databases are utilized to explore the characteristics of judicial power under British unwritten constitution.How British judiciary adjusted its role to accommodate British constitutional convention with a rapidly changing world has lessons for other states Moreover,in the critical period of Brexit which leads to a major change on UK-EU relationship,the thesis reviews three key nodes from UK's entry into the EEC to its departure from the EU.Based on the historical development of the judiciary's role,the thesis tries to expand the frontiers of academic studies of Brexit.Examining whether a revolutionary change happened to the Parliament-Judiciary relationship under the external influence of the EEC/EU lays a foundation for the future theoretical development of parliamentary sovereignty and the analysis of the role of the British judiciary in the post-Brexit eraThe principle of parliamentary sovereignty was challenged when Britain joined the EEC.Different from other international treaties,"the principle of direct effect" and "the supremacy of EU law" in the EEC/EU legal system logically clashed against the principle of parliamentary sovereignty.By promulgating the European Communities Act 1972,the British Parliament voluntarily accepted the principles of the EEC/EU from a legal perspective,protecting the theoretical legislative sovereign of the UK Parliament.From the perspective of the judicial practice,while the EU legal order gradually integrated into the British domestic legal system,the British courts played the role of direct and indirect spokesperson of parliamentary sovereignty.As a direct spokesperson,it broke through the limitation of the legal texts,and explained the legislative intentions of the British Parliament in order to integrate the EEC/EU legal order into Britain.When it comes to the role of indirect spokesperson,the disapplication of national law recognized the supreme legal authority of the European law with the authorization of the Parliament,in which the Parliament held the top position of British constitutional hierarchy.The courts' new tools of expansive interpretive competence and declaration of disapplication reflected a functional expansion of judicial power,which aimed at eliminating the constitutional shock of EU legal order to the principle of parliamentary sovereignty.Though the principle was restricted in judicial practice,the British courts maintained the stability of parliamentary sovereignty in legal by endorsing the principle.The establishment of the UK-Europe legal triangle of protecting human rights is the second key node when British parliamentary sovereignty faced challenges.After the Second World War,the Europe started reflecting on the inadequacy of rajoritarian democracy and then developed a modern concept of human rights protection,which challenged the traditional British principle of parliamentary sovereignty.Within this context,the British Human Rights Act 1998 incorporated the European Convention on Human Rights into the British legal system.The British courts have the power to declare incompatibility under the HRA 1998 if a domestic law is contrary to the ECHR.Therefore,the British judiciary mediated the potential contradiction between the principle of parliamentary sovereignty and the modern concept of human rights protection by the declaration of incompatibility with no substantive legal effect on the parliamentary legislation.The principle of parliamentary sovereignty was assisted to adapt to the changing world.Although the UK exerted its "Opt-Out" to the Charter of Fundamental Rights of the European Union(which is binding upon the member states)through the Treaty of Lisbon,the European Court of Justice made clear in 2011 that the precedents of British courts must remain consistent with the Charter.Therefore,when domestic law violates the provisions of the Charter,the British judiciary is entitled to declare the violating law to be inapplicable.When the domestic law is contrary to both the Conventionand the Charter,the British courts would make the "declaration of disapplication" with a stronger legal effect.In this sense,the function of judicial power was further exp anded.Yet in the process of mediating a settlement between parliamentary sovereignty and the modern concept of human rights protection.the judicial practice of the British courts did not betray the principle of parliamentary sovereignty in jurisprudence.Brexit has a profound impact on the whole aspect of the UK.The British constitution was no exception to be affected.The traditional Westminster model was under threat and the British party politics was likely to become fragmented.which intensified the scramble for the decision-making power on major national issues between the Parliament and the Government.Hence Brexit gradually came to a deadlock.Against this background.the British courts,as the protector of the parliamentary sovereignty,was forced to participate in political disputes and national decision-making where it had never been involved before.which led to a series of political misunderstandings about the role of the British courts.Through making judicial reviews on the executive.the British judiciary vindicated the unlimited legislative power of the Parliament in a jurisprudential level,which appeared to be judicial activism in academic sense.However,in the judicial practice related to Brexit,the protection of parliamentary sovereignty offered by the British courts is passive and limited.The judiciary itself did not own the political power to influence the national decision-making.Therefore,the judicial power in the UK has not undergone a structural and revolutionary change.As the Conservative Party led by Boris Johnson won the 2019 general election and completed UK's de jure departure from the EU,the relationship between the party politics and the judiciary in the evolution of parliamentary sovereignty has become more complicated.