Sovereignty of Member States (UK) after joining European Union structures – does it still exist?
It is important first to address what the perception of the doctrine of supremacy is to then examine what effect membership of the European Union has had on the sovereignty of the United Kingdom Parliament. The doctrine of Parliamentary sovereignty in the UK can be traced back to the Glorious Revolution of 1688, which is considered by some as being one of the most important events in the long evolution of the respective powers of Parliament, establishing the superiority of statute over prerogative powers. Parliament’s legislative supremacy involves not only the right to change the law, but that they alone should have that right. By the sovereignty of Parliament it is meant that there are no constitutional limitations on legislative powers of ‘Parliament’: the Queen in Parliament, through which a Bill approved by the House of Commons and House of Lords receives Royal Assent and becomes an Act of Parliament. It also extends to include the concept that the courts are under an obligation to give effect to legislation passed by Parliament, and not to question Parliamentary decisions embodied in statute. Thus defined, Dicey said of Parliament, which is had ‘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.’(Dicey, The Law of the Constitution 1885 p39-40). This statement by Dicey exemplifies the classic interpretation of the doctrine of Parliamentary sovereignty. However, the Diceyan concept of the absolute, infinite sovereignty of Parliament is considered out of date and therefore in need of being revised.
The impact of European law on the ‘sovereignty’ of Member States is one of the most controversial aspects of its working. Sovereignty is generally taken to be the capacity of a state for independent action both within and outside its own territory. That definition may be broken down into three elements. First, and most importantly in the context of international law, comes external sovereignty or the capacity of a state freely to determine its relations with other states or international organisations. A state possessing such capacity is clearly independent of other states. So, in this context, independence is a near synonym for external sovereignty.
The counter part of (and necessary condition for) external sovereignty is internal sovereignty which is a state’s exclusive right and jurisdiction to establish its own internal institutions, to make the necessary arrangements for their working, to legislate for all purposes and to secure observance of such legislation. Finally territorial sovereignty is the exclusive authority which a state may exercise over anything or anybody within, above or beneath its territory. This includes the jealousy guarded right to regulate access to the air space above the territory or, for example, to seize foreign submarines which encroach within the territorial waters of a maritime country.
Clearly, sovereignty as so defined cannot be absolute. All states must respect the sovereignty of others and accept limitations to their sovereignty stemming either from their interaction with other states or, for example, from treaties which they have entered into.
Sovereignty is defined as “the ultimate overseer or supreme authority in a state. In a state sovereignty is vested in the institution, person, or body to impose law on everyone else and to alter any pre-existing law.” The word sovereignty is also defined in another ways. Nation states are said to renounce part of their sovereignty, for example by signing a Treaty or by agreeing to an EU Directive which removes the right of decision from the national government or parliament in a particular field. Or they are said to share sovereignty by agreeing to common action though EU institutions, thus participating in decisions taken by the EU in accordance with its procedures, and no longer retaining the right to act unilaterally. In this use of sovereignty it virtually means the same as freedom to decide unilaterally.
Before analyzing sovereignty of UK after joining the EU, it is important to outline the reasoning for the supremacy of Community Law from the Community point of view, and then a definition of Parliamentary sovereignty will be given. To summarise the Community view on supremacy according to the Court of Justice is that Community law, because of its unique nature, denies the Member States the right to resolve conflicts of law by reference to their own rules or constitutional provisions. Community law obtains its supremacy because of the transfer of state power and sovereignty to the Community by the Member States in those areas agreed. Furthermore, the Member States have provided the Community with legislative powers to enable it to perform its tasks. There would be no point in such a transfer of powers if the Member States could annul or suspend the effect of Community law by later national law or provisions of the constitutions. If that were allowed to be the case, the existence of the Community legal order and the Community itself would be called into question.
A precondition of the existence and functioning of the Community is the uniform and consistent application of Community law and the Community legal order in all the Member States. It can only achieve such an effect if it takes precedence over national law. Therefore the legal and logical consequence of this is that any provision of national law which conflicts with Community law must be invalid.
Now that the supremacy of the Community has been considered, Parliamentary sovereignty must now be considered.
Basically, in terms of dicey, the doctrine of Parliamentary sovereignty means that there are no legal limitations of Parliament and it has the right to make or unmake any law whatsoever. Further, no person or body is recognised as having a right to override or set aside the legislation of Parliament. The doctrine also implies that it is impossible to bind future Parliaments. Any subsequent Act expressly or impliedly overrides a prior Act and even international treaties can be expressly overridden by municipal.
The UK’s membership of the European Union produces difficult questions of competing supremacies of Parliament and the primacy of EU law. Britain’s accession to the European Economic Community on 1st January 1973, was described by Anthony King as having “profound constitutional consequences”. (Does the United Kingdom Still Have a Constitution? 2001 p54) Britain’s application for membership was made in 1967, the Treaty of Accession signed on 22nd January 1972 and this was implemented by the European Communities Act 1972. The basis of this Act was a white paper published by the Labour government in 1967, intended to address the constitutional implications of membership of the EC. The paper pointed out that the effect of the UK adhering in advance to future instruments imposed by the Community institutions had no precedent in this country, and would result in a ‘constitutional innovation’. Whether this innovation could be successfully implemented was never resolved before the introduction of the 1972 Act.
Many have said since our membership in 1973 that our sovereignty has been said to be handed over to the EU. The issues surrounding sovereignty in the UK system are affected by Britain’s membership of the European Union (EU). The laws of the EU are binding on all member states, and therefore, take precedence over British domestic law. Apart from a few exceptions, EU legislation automatically becomes law within the UK, irrespective of the opinion of the British Parliament. Although this is the case, parliament could agree to repeal previous legislation, withdraw from the EU to demonstrate that parliamentary sovereignty still exists. Therefore this leads to the argument that Britain has kept its sovereignty with the fact that it could pass an Act to, “renounce the Treaty, or would that be an illegal act of rebellion?” (Norman Tebbit Nov. 1998) However, I believe this to be unlikely unless one of the mainstream political parties were to adopt a strong anti-EU policy. The 1986 Single European Act and the Maastrict Treaty can be seen as reducing Britain’s sovereignty since they have extended the range of policy areas on which the EU can legislate. This has caused many British Conservative members of the European Parliament to continually vote against many proposals, not because they necessarily disagree with them, but that they think they should be dealt with at a national level.
Upon Britain’s accession to the EU in 1973, direct effect was accepted by us pretty much immediately. However this was completely opposite when it came to the United Kingdom accepting the supremacy of EU law. This was seen to be a problem because the doctrine conflicts centrally with the concept of having British constitution of ‘parliamentary sovereignty.’ The acts of parliament override all existing law or legislation.
However in 1990 the House of Lords found a way to reconcile British parliamentary sovereignty and supremacy. As on a reference from the House of Lords, the European Court of Justice ruled that a 1988 act of British parliament was in breach of EU law. “The House of Lords accepted the judgement on the grounds that in passing the 1972 act of accession to the EU, British parliament had voluntarily accepted the EU legal system of which the supremacy of EU law is a central part. The House of Lords also argued that this does not compromise parliamentary sovereignty, as a future British parliament could repeal this act of accession.” (The political system of the European Union, Simon Hix, Macmillan Press, London, page 117)
Britain’s entry into the European Treaty’s has attracted huge reform, as British Parliament must legislate in conjunction with EU law. And Acts and Laws already in existence must be interpreted to conform to EU Law, and the State has to ensure that all EU law is transposed and implemented accurately. This puts a huge strain on the Courts whilst ruling, thus making a mockery of Precedent as any case incorporating EU legislation can only be considered using the purposive approach, in order that EU directive can be met. So then this means that Britain has not in fact reserved its sovereignty as promised when first mentioned to the public all those years before.
To understand the concept, we first need to acknowledge the unwritten code of the constitution and its efforts to ensure that Parliament is the executive law producing body of the land. And so, any Act of Parliaments will need to be adhered to directly by the applicable national court. In the case of Regina v Secretary of State for Transport, ex parte Factortame it is easy to see the ingratiating manoeuvres of The House of Lords as it bows to supremacy of EU law.