When Britain voted to exit the European Union on June 23rd, 2016 Europe, and North America were shocked and confused. Living in Toronto as a Polish-Canadian student and a strong supporter of the European Union my automatic reaction was anger.
Given the wide range of advantages of the EU from economics to immigration I could not think of a single reason why 51% of British citizens could come to this decision but, I was about to find out. In September of 2016 I moved to England for law school during the most politically eventful months the UK has seen since the near Scottish referendum. The small city of Leicester known for its soccer, or should I say football team is located about two hours outside of London in what they consider the East Midlands. Growing up in the GTA I was accustomed to seeing a range of different ethnically and culturally diverse peoples and England was no different. I labeled Leicester as mini Polska within twenty-four hours of arriving there. I always knew many Poles immigrated to England in search of work as they did/ do to Canada but here they used their European passports, I thought to myself now what?
Despite Canada once being part of Great Britain and sharing the same law the two countries are far from similar. North America is not comparable to Europe when it comes to lifestyle, food, or living they are complete opposites. Yet, when I walked down the street into the city square I could find my Polish deli, Polish pharmacy, Polish convenience store, Polish restaurant and pretty much anything else Polish that I needed. Walking into the Polish grocery store felt like walking into Starsky’s back home in Mississauga. For a few minutes, there was no cultural shock because of Polish people no matter if you’re in Canada or England still make you feel like your family and living in England, this was something refreshing. I almost forgot that Britain had just gone through a referendum and are in the process of negotiations. Not only did I not understand why they wanted to leave the EU but how did it get to this point? Then I started my first semester of law school and it’s safe to say I don’t ask how or why anymore.
Numerous amount of case law suggests that parliamentary sovereignty has been undermined by the impact of the UK’s membership of the EU to the extent that it has become meaningless. Parliamentary sovereignty means parliament has the right to make or unmake any law that they want, and that no one can override or set aside the legislation of Parliament. This obviously, was challenged when Britain entered the European Communities Act of 1972 and eventually acknowledging that European Union Law is supreme over Parliament. Theoretically, parliament had given away part of their power but can they can take their powers back. Parliament created s.18 of the European Union Act 2011 which provides that directly applicable or directly effective EU law in s.2(1) of European Communities Act 1972 fails to be recognized and available within the UK only by virtue of that Act.s18. This is a declaratory provision which confirms that directly applicable or directly effective EU law only takes into effect in the UK by an Act of Parliament. This reaffirms parliamentary sovereignty as it shows that EU law needs to be supported by Parliament. Basically, Britain has attempted numerous times to challenge the EU and by studying the case law lawyers and academics had predicted UK’s exit.
The British Constitution is not a written document and therefore it allows for theoretical conventions such as parliamentary sovereignty to have such grave impacts on lawmaking. That being said, The Human Rights Act 1998 received Royal Assent on November 9th, 1998 and entered into force on October 2nd, 2000. The Human Rights Act incorporates the European Convention on Human Rights (ECHR) into United Kingdom Law. The Council of Europe has 45 member countries who are a mix of Western and Eastern Europe. It has nothing to do with the European Union. Despite Parliament being sovereign and being able to pass any laws they please the United Kingdom must respect the rights protected under the ECHR. But again, the duty is only to consider, not to necessarily follow, which indicates that a court or tribunal is not strictly bound by Strasbourg jurisprudence. Lord Hoffman has commented: ‘The house is not bound by decisions of the European Court of Human Rights and, if I thought that they compelled a conclusion fundamentally at odds with the distribution of powers within the British Constitution, I would have considerable doubt as to whether they should be followed.”
The questions I asked myself nearly a year ago still have not been answered. When it comes to immigration or really any important issue Theresa May’s government has failed to deliver any legislation with regards to her plans on a ‘hard Brexit’ and what that could mean for European Union citizens living within the United Kingdom. Any propositions May has suggested has been rejected by the European Union and negotiations have been ongoing. The effect article.50 will have on Poles living within the United Kingdom is unknown as of now. But, from the hard-working Poles I have encountered in England, I’m sure they will be fine.
By Jessica Anna Bernatek, LLB Law Candidate