UK Membership in the European Union: Undermining Parliamentary Sovereignty?

By Miles G. Kellerman
2011, Vol. 3 No. 09 | pg. 1/2 |

Of the European Union’s twenty-seven member states, no country is more sceptical of political and economic integration than Great Britain. The English are profoundly independent and inherently suspicious of their continental neighbours; an attitude no doubt inspired by the geographical barriers between the two, and the heavily ingrained ‘islander mentality’ that has ensued. In journalist Jeremy Paxman’s book, The English, the relationship between Britain and her neighbours is symbolized in the following anecdote:

In 1836, Mrs. Frances Trollope landed at Calais and overheard the conversation of a young man making his first visit to France. He was accompanied by a more experienced traveller, wise to the ways of the world beyond the white cliffs of Dover. She recalled the exchange. “What a dreadful smell!” said the initiated stranger, enveloping his nose in his pocket-handkerchief. “It is the smell of the continent, sir,” replied the man of experience. And so it was. 1

This account, albeit comical, illustrates the power of geography in the development of a national identity, and perhaps provides insight into Great Britain’s general animosity towards European integration. Throughout the development and expansion of the European Union, challenges to British sovereignty and independence have been met with strong internal opposition and intense Parliamentary debate. The United Kingdom Independence Party gained its first Parliamentary seat in 2008 – a signal of growing disillusionment with the EU in Britain, and a feeling no doubt exacerbated by the 2008 financial crisis and recent austerity measures in Greece.2

In particular, Eurosceptics are extremely concerned with the apparent loss of Parliamentary Sovereignty due to the expansion of EU powers. At first glance, such claims appear legitimate: Britain’s signing of the Treaty of Accession in 1972 added 2,900 regulations and 410 directives to English law, a full forty-three volumes of EU legislation.3 Those fearful of the European super-state also point towards the Factortame legal cases of 1990 and 1991, whose ruling in favour of European Community law over the Merchant Shipping Act of 1988 is perceived by many to be a legitimate challenge to the judicial sovereignty of Parliament.4

These fears, however, are unfounded. The principle of Parliamentary sovereignty is the unshakeable keystone of Britain’s judicial system; it guarantees the continued supremacy of parliament. A codified constitution, which in many other countries restricts the powers of government, does not exist in Britain. Thus the only check on the power of Parliament is the sovereignty of future parliaments – legislation can always be overturned, treaties can always be broken and participation in the European Union is never truly binding.5

Furthermore, despite the growing number of legislative powers voluntarily delegated by the sovereign ‘Crown’ to the European Union, the United Kingdom parliament is often described as an extremely ‘strong’ parliament in the sense that it has put in place a number of institutions both within the House of Commons and the House of Lords for scrutinizing EU legislation.6

Lastly, aside from legislative authority, Parliamentary sovereignty is non-existent in a number of policy areas, including defence, economics and trade. To suggest that the European Union undermines parliamentary sovereignty in these areas ignores the fact that globalization and geopolitical integration has changed, if not totally eliminated national sovereignty in its most traditional conception.

The Sovereign Legislature: The Queen, The Lords and The Commons

The go-to description of Parliamentary sovereignty is often attributed to Albert Venn Dicey, who wrote that Parliament has “the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”7 Sir William Wade, another traditional theorist, expands upon this view, writing:

If it [Parliament] should wish to adopt a Bill of Rights which would be repealable only by some specially safeguarded process…under English law this is a legal impossibility: it is easy enough to pass such legislation, but since that legislation, like all other legislation, would be repealable by any ordinary Act of Parliament the special safeguards would be legally futile…Parliament cannot bind its successors. It follows therefore that there is one, and only one, limit to Parliament’s legal power: it cannot detract from its own continuing sovereignty.8

These descriptions hold enormous consequences for the relationship between the European Union and Parliament in legislative policy. The ‘continuing sovereignty’ of Parliament confirms that despite the many EU standards and requirements accepted into British law, these agreements are never truly binding, for a future Government could overturn them if it so wished (via implied repeal or the theoretical situation in which Britain expressly and unequivocally declared that it wished to derogate from its European Community obligations)9. Furthermore, any legislative power afforded to the European Union is technically delegated legislation, much like the delegated legislation Parliament grants to local government in Great Britain.10 Such delegated powers do not challenge Parliamentary supremacy for they are voluntarily granted and retractable by future Governments.

The most famous constitutional debate regarding the relationship between Parliament and the European Union centres on the aforementioned Factortame cases of 1990 and 1991.11 The high-profile case developed from the passage of the Merchant Shipping Act by the Thatcher government in 1988. The legislation attempted to eliminate ‘quota-hopping’ by Spanish fishing vessels, which would register as British ships in order to increase profits. The European Court of Justice, however, ruled that the Merchant Shipping Act did not comply with EC law because it discriminated against certain fishing vessels within the European Union.12 The verdict is perceived by many to be a landmark case in which the supremacy of Community law over British law is confirmed – a significant sacrifice of Parliamentary sovereignty.13

Such conclusions, however, represent a misunderstanding of Parliament’s legislative supremacy. The case exemplified that UK courts, when faced with contradictory legislation between Parliament and Community law, should revert to Community law or attempt to adjust legislation in order to meet Community standards.14 But this was an agreement accepted by Parliament when it signed the European Communities Act of 1972.15 Thus, the agreement, although admittedly a limitation of sovereignty accepted by Parliament, was voluntary and remains retractable. In the 1991 House of Lords debate on Factortame, Lord Bridge echoed this sentiment, stating, “Under the terms of the 1972 Act it has always been clear that it was the duty of a UK court, when delivering final judgement, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law…Thus, whatever limitation of its sovereignty Parliament accepted…was entirely voluntary.”16

Factortame, despite the apparent delegation of power to the EU, actually only further solidifies Parliament’s judicial sovereignty. Such delegation is not binding; it is a voluntary sacrifice of legislative power, crucial to the proper function of the European Union. As Professor Paul Craig emphasizes in The Changing Constitution, “…it was always inherent in a regime such as the Community that it could only function adequately is EC law could take precedence in the event of a clash with domestic legal norms.”17 Thus Parliament’s acknowledgment that in certain areas Community law should supersede British law does not challenge the sovereignty of Parliament – it was a voluntary and retractable grant of power, which Parliament recognized as necessary for the European Union to function properly.

It must be noted, however, that there is a difference between ‘theoretical’ and ‘real’ sovereignty. Take, for example, Britain’s potential acceptance of membership to the Eurozone and the adoption of a common currency. Doing so would sacrifice an enormous amount of Parliamentary power regarding monetary policy to the European Central Bank. Theoretically, this would not challenge Parliamentary sovereignty because it would be a voluntary delegation of power to the European Union. To retract such a delegation, however, would result in an enormous economic cost (as seen in the current monetary crisis in Greece).

Thus, if the cost of Parliament reversing a past decision is enormously high to the point of being unsustainable, does that Parliament truly enjoy legislative sovereignty? In European Monetary Union: The Kingsdown Inquiry, EU academic M. Pani addresses this question, stating:

[The introduction of the euro] will not change this position [parliamentary sovereignty] radically…a single currency to be managed by a single central bank is bound to remove what little vestige of national autonomy is left in monetary policy. But on its own it will not affect national sovereignty, and thus the ability of a country to leave the European Union…it will, of course, increase the cost of doing so…18

In reality, some delegations of legislative power by Parliament, such as the potential acceptance of the Euro, would be extremely difficult to reverse. Yet as Pani emphasizes, the cost of reversal does not necessarily challenge Parliamentary sovereignty for they still retain the ability to reverse any decision regardless of the cost of doing so. Thus while it is important to note the practical challenges associated with reversing some decisions by Parliament, the essential sovereign power of the Crown remains intact.

Legislative Scrutiny within Parliament

As stated earlier, despite the large amount of regulation and legislation imposed upon Britain, European Union membership does not undermine the legal sovereignty of Parliament. Further solidifying that fact is the numerous institutions both within the House of Commons and the House of Lords for scrutinizing EU legislation.

Faced with an increase of qualified majority voting and a decreasing use of the veto within the EU Council of Ministers, the Scrutiny Reserve Resolution was introduced and applied to both Houses of Parliament in 1988.19 In the House of Commons, five specific select committees were developed in 1991, called European Standing Committees. These committees, composed of EU-interested members of the House, review every single EU document in a timely matter, and, if the committee feels necessary, introduce the bill to the House floor for debate.20 The process maintains accountability by making the committee minister responsible for producing a report and responding to inquiries on the House floor. Through this process, the Prime Minister and EU Council of Ministers is made clear of Parliament’s position on individual legislation.21

In the House of Lords, scrutiny is even more in-depth. A number of specialized committees analyze EU legislation; most notably the Select Committee on the European Union, which also includes the following sub-committees:

Sub-Committee A

Economic and Financial Affairs, Trade and External Relations

Sub-Committee B

Internal Market

Sub-Committee C

Foreign, Defence and Development Policy

Sub-Committee D

Agriculture and Environment

Sub-Committee E

Law and Institutions

Sub-Committee F

Home Affairs

Sub-Committee G

Social Policy and Consumer Affairs

Together, these sub-committees submit an average of 25 technical, extremely detailed reports every year, which in turn are consistently read by European Commission officials.22 The collective scrutiny procedure of the two Houses, combined with the Scrutiny Reserve Resolution that requires the Prime Minister to consult Parliamentary committees regarding EU legislation, provides an important check on Community power.23 As discussed earlier, any power granted to the EU is a delegated power of Parliament, and thus not a true loss of sovereignty. The two Houses’ strong scrutiny processes help solidify this sovereignty by keeping check on the delegated powers granted to the European Union.

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