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Control vs. Community – Sacrificing Sovereignty

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About The Author

Rachel Dean (Regular Writer)

Rachel graduated from the University of Leicester with her LLB European Hons in 2010. She is now a trainee solicitor at Lockett Loveday McMahon in Manchester and is due to qualify in May 2016. Her interests lie predominantly in commercial law.

This article is part of the 'Brexit' series, edited by Matt Bogdan.

With the upcoming referendum on the UK's membership of the European Union, the Brexit series intends to explore key issues surrounding Brexit, particularly what effect EU law currently has on the UK, and what would be left with it gone.

Other articles from this series are listed at the end of this article.

Following on from Matt Bogdan’s engaging introductory article in June last year (which I would highly recommend reading), I aim here to tackle the issue of UK national sovereignty and how it works alongside our EU membership. This is an especially topical issue considering the upcoming referendum on the EU, which can potentially take place as early as this June. With plenty of confusion surrounding the notion of EU supremacy on both sides of the Brexit debate, it is essential for us to clarify the current state of affairs so that Britons can make an informed choice at the ballot boxes.

Have we lost control of our own national affairs since joining the EU? And if the answer is yes, what is the most effective and appropriate solution to regaining it?

Parliamentary Sovereignty

The UK is a unique country in many ways. Perhaps the most notable feature of the UK’s legal structure is the absence of a formal written constitution, something which is prevalent amongst other EU member states. Instead, we are founded on the principle of constitutional rule otherwise known as parliamentary or national sovereignty. Martin Howe argues that ‘perhaps no unwritten doctrine is more fundamental to the British constitution than the supremacy of Parliament.’ Broadly expressed, this means that the legislative body (our monarch, the House of Lords and the House of Commons) have absolute sovereignty and reign supreme over all other government institutions, executive and judicial bodies. A.V. Dicey, writing in 1885 explained the concept well:

that Parliament has…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

The Origins

The origins of parliamentary sovereignty can be found in the 17th century. It was a tumultuous period in history with much political and religious tension culminating in Guy Fawkes’ gunpowder plot, the English civil war between the Royalists and Parliamentarians, the Great Fire of London and the Glorious Revolution which ultimately saw the decline of the divine right of Kings in favour of Parliamentary rule. Until this time, ruling monarchs were considered rightfully able to make and pass legislation without recourse to any other body. Whilst the concept had faced some challenges, it was the Stuart kings who pushed the limits, claiming they were subject only to God, which led (unfortunately for them, i.e. the Stuart kings) to Charles I being sentenced to death by beheading outside Whitehall in London on 30 January 1649.

The Bill of Rights 1689, drawn up by the Parliamentarians of the day established thereafter the basic tenets of the concept we know today. These included freedom from royal interference with tax, freedom for common people to petition the King and freedom to elect members of Parliament without the interference of the monarchy; such freedoms are clearly still of great importance today.

Deriving therefore from centuries of upheaval, subsequent constitutional practice reflected in our constitutional writings and in the decisions of our judiciary, the principle of parliamentary sovereignty goes to the core of what Britain is.

Now, like most principles, there are limitations to parliamentary sovereignty. For example, Parliament may limit sovereignty by territory when relinquishing a geographical area over which it previously ruled or by transferring sovereignty to another body. Our current Parliament is, for example, a product of the Acts of the Union 1800 which combined Parliaments to create the United Kingdom of Great Britain and Ireland with effect from January 1801.

The EU Era

As explained above, the UK through various transformations, has managed her own affairs under the principle of parliamentary sovereignty for the last few centuries, and judging by a PWC report which estimated a 2.4% increase in UK economic growth for 2016 I would say has not done badly.

Then came the European Community. The historical backdrop to the EU has been well detailed in Matt’s article (mentioned above) as well as by many others so I shall not spend further time dissecting it here, suffice to say the EU could best be described as a politico-economic union, now made up of 28 member states all located primarily within the continent of Europe.

The UK became a member of the second stage of the EU (then the European Economic Community) in 1973 but despite excitement for the potential this union held, there was a question mark over our ability to sustain and protect our sovereignty as fears were voiced over the impending supremacy of EU law. This has, over the years, only become a more significant issue. There is little doubt that our country has ‘been profoundly affected by…membership of the European Union’ in particular to the extent that we appear to be subject or bound by the edicts of an external body. But is that really such a bad thing? After all, would we not always have had to sacrifice some sovereignty for the greater good of international relations and trade as the world became more connected?

Chris Grayling in 2013 argued ‘we have been through hundreds of years with a common-law system…we have tended to be ahead of the rest of the world in terms of liberalising our laws so I don't really believe that the European jurisdiction of Luxembourg [which enforces EU law] or Strasbourg [which governs human rights law] makes this country a better place than it would be otherwise.’ And the common perception nowadays seems to be likewise; that the EU, through its various institutions is forcing us to acts in ways we do not like and which do not benefit the UK as a country; to take in too many immigrants, to keep too many foreign criminals and to enforce ‘ridiculous’ rulings on human rights which go against our common sense and British sensibilities. ‘Catgate’ is one example that the media (and Theresa May) latched onto, where a Bolivian man was not deported despite overstaying his visa because of owning a cat which went to prove (among other factors) he was settled here and deporting him would breach his human rights).

However, before passing hasty judgments or moving on to where we fit within the Union matrix, I believe it is important to consider how everything fits into the institutional structure of the EU and where the power comes from. It is in Article 13 of the Treaty on the Functioning of the European Union (TFEU) that we find the list of the EU institutions, namely: the European Parliament; the European Council; the Council; the European Commission; the Courts of Justice of the European Union (CJEU); the European Central Bank and the Court of Auditors.

Each institution must act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. It is also noteworthy that in all of these institutions we (the British public) are represented and have a say over matters, albeit in some circumstances indirectly. For instance, the Commission consists of 28 Commissioners, one from each Member State appointed by their national governments and acting under a principle of collective responsibility (much like our national government cabinet), which is arguably the cornerstone of what the EU stands for.

The Council with the European Parliament makes up the legislative arm of the EU composed of ministers authorised by Member States to commit their national governments to EU legislation. The Parliament on the other hand was designed to be a central point for the EU, connecting EU citizens with many of the other institutions. The CJEU is to ensure that the Treaty objectives are being fulfilled. It guarantees supremacy of the community law in the Member States. It is on this supremacy point that the arguments over the state of our national sovereignty hinge.

According to the case law of the European Court of Justice (ECJ), including the landmark decision in Van Gend & Loos, the laws of the EU created a ‘new legal order’ which has primacy over the laws of the Member States, both externally and within the domestic context. It is this system which many have and still argue is eroding our national supremacy and parliamentary sovereignty. An example of this was R (Factortame v Secretary of State for Transport); a case made against the UK government by a company of Spanish fishermen claiming the UK had breached EU law by requiring ships to have a majority British ownership to be registered here under the Merchant Shipping Act (MSA)1988. The resulting litigation was lengthy, including five separate stages and producing a number of significant judgments for our constitutional law. For current purposes it is Factortame II that is most relevant, where the ECJ held that the MSA was incompatible with EU law and the UK must recognise the primacy of the ECJ for those areas of law in which the EU has competency, here being the Common Fisheries Policy of the EU.

It is clear then, from Factortame and other cases that our membership in the EU has meant that the traditionally understood rule of parliamentary supremacy has been, at the very least, compromised. However, the question remains are we worse off for it?

The EU Competences

A good starting point in answering that is to look at the EU competences found in the TFEU which provides a legal foundation for all EU action, dictating what and how the EU can impact on the Member States’ own legislative systems.

The EU has to be multi-layered in terms of governance due to the vastness of its membership, scope and reach. Member states, whilst continuing to self govern and legislate, by their very membership agree to some extent of EU governance. As such, competencies have been allocated as a means of organising and regulating the areas of governance but it is crucial to recognise that member states retain all powers not explicitly handed to the EU through various treaties. The competencies are broken down into exclusive, shared and supportive categories.

In some areas the EU enjoys exclusive competence. These are areas in which member states have renounced any capacity to enact legislation themselves. As outlined in Title I of Part I of the TFEU, ‘the EU has exclusive competence to make directives and conclude international agreements when provided for in a Union legislative act’, while Article 3 of the TFEU notes these as follows:

  • the customs union;
  • competition rules for the functioning of the internal market;
  • monetary policy for those Member States who use the Euro;
  • the conservation of the marine biological resources;
  • common commercial policy and;
  • the conclusion of certain international agreements.

That this is the extent of the EU’s exclusive control over issues affecting the Member States nationally may come as a surprise to many, especially given the incessant claims from the media and various high level politicians that the EU membership has become ‘disastrous’ for us here in the UK.

In other areas member states share the competence to legislate with the EU. While both can legislate, member states can only legislate to the extent to which the EU has not. Contained within Article 4 of the TFEU, shared competences include the internal market, social policy, environment, energy and consumer protection. Then there are supporting competences; areas over which the EU can legislate but not to the extent that Member States are prevented from also doing so. Areas contained within shared competence include research, technological development and space, development cooperation and humanitarian aid.

That a particular policy area falls into a certain category of competence is not necessarily indicative of what legislative procedure is used for enacting legislation within that policy area. Different legislative procedures are used within the same category of competence, and even within the same policy area.

Walking the Tightrope

Having detailed the areas of EU competence, the next logical step in my mind is a frank discussion of how much of a balance we have achieved. Are we still standing on the tightrope of the EU competences or have we fallen into the abyss of its governance?

Back in 2012 William Hague, then Foreign Secretary launched a full ‘audit’ of EU law and the UK. Described by Hague as a ‘necessary and positive part of reforming Europe’, it was intended to scrutinise our membership by a series of consultations, evidence analysis and contributions from the public and businesses. It was hoped it would provide a clear sense of how our national interests interact with the EU, particularly at a time of great change for the EU. It was also, reading between the lines, an attempt by the Conservative government to obtain some hard and fast evidence against our membership of the EU, coming as it did off the back of Cameron’s manifesto claims to give the country a referendum on a Brexit.

Conducted over two years, the review was the most substantial consideration of the impact and effect of the EU on the UK since we first became a Member State in 1973. The results, released at staged points over the two years and collaborated in a final report published by the Government caused quite a stir. Sadly however, probably not for David Cameron, since there have been allegations of MP’s trying to ‘bury’ its conclusions with a view to maintaining a solid ‘no’ campaign ahead of a referendum.

Interestingly, the review ‘found no evidence (my emphasis) that the EU was interfering excessively in any aspect of British life’ and ‘contributors… commented that the UK has often been successful in shaping the EU agenda’. Indeed Lord Hannay, former British ambassador to the EU said in a Guardian article ‘[t]he single, clear message from the review is that in none of its 32 chapters is there a compelling case for the repatriation of powers from Brussels to Westminster and Whitehall. So, while the EU needs reform, our relationship with it does not warrant wholesale dismantling.’ The revelations arising from the review add a new complexity to those eurosceptics claiming we are better off out by providing completely contrary evidence of the EU’s role in the functioning of our country and its impact on our parliamentary sovereignty.

By all accounts the ‘unprecedented… size and scale’ of the review alone suggests the results it has produced are at least debatable if not reliable. A proper consideration ahead of the inevitable referendum on a Brexit therefore takes on a new significance. After all, if we are suffering no actual detriment but in fact receiving many positives in terms of trade and free movement from being a part of the EU, is it sensible for us to leave?

Whilst it is clear is that we have, to an extent, sacrificed our sovereignty on the altar of the EU community in terms of being subject to community law, it is not the case that we have given up everything to the EU and we can now be considered a pawn in the EU’s game.

I appreciate this may not sit well with some readers and indeed there are aspects of our membership of the EU which cause me concern; it is hard not to worry about the numbers of migrants wanting to come to the UK or how our current infrastructure could sustain that. It is frustrating to think some of our national finances go towards supporting (and in some cases) bailing out EU countries who are less stable than us. It is also hard to sometimes see the sense in judgments handed down from the ECJ which then inevitably influence the decision making of our own judiciary and especially when concerning ridiculous, cat-centred application of human rights laws.

On the whole however, I consider the EU to be like a phoenix out of the flames of World War II; a marvel of cooperation and collaboration to create a united Europe both economically as well as socially and I feel very lucky to be able to travel freely around Member States and have the opportunity to live and study abroad so easily. On a national level too, our membership of the EU has helped UK businesses by plugging labour gaps by workers coming here for jobs, it has increased investment opportunities available to businesses and has increased trade with other EU countries, in some cases by up to 50%.

What now?

Cameron has made no secret of what he wants to see from Europe in terms of an adjusted relationship with the UK. Most recently, he set out his objectives in a letter to Donald Tusk, president of the European Council, which, it must be said makes for fairly entertaining reading. He noted that his key objectives were four-fold comprising economic governance, competitiveness, immigration and sovereignty. It remains to be seen how discussions surrounding Cameron’s objectives and renegotiation of our membership develop ahead of a country-wide referendum.

It is also possible, regardless of the results of the review of EU competences, that many in the UK will feel our only option is to leave the EU and forge a path on our own. I share William Keegan’s concerns that ‘from now until the referendum, the public are going to be bombarded with statistics from both sides. It will not be the end of the world if we leave, but it will almost certainly be the end of the UK on the reasonable assumption that Scotland would want to break away…’

Do not get me wrong, there are alternative routes (though sadly, these are outside the scope of the article) out of the EU if Cameron’s attempts to secure ‘a better deal’ fail and a referendum produces the ‘no’ result. However, the question hanging inevitably over any alternative option is whether it would actually work. What is not in question, at least in my mind, is that regardless of the context, we would always be required to sacrifice some sovereignty for the greater good of international relations and trade, for that is the price of living in an ever-increasingly connected world. I think the oft-repeated words of John Donne ‘no man is an island’ apply equally to countries too. We cannot stand alone.

Final Thoughts

I am fairly sure that the majority of the UK’s population has seen or heard some reference to parliamentary sovereignty; either how we have lost or freely given this away to Europe along the way. There is often hyperbole surrounding discussion of the principle but I hope, through this article to have provided an explanation and critical analysis of both what it is and whether we still have it. I think, for the most part we do.

Ultimately I believe we are better placed in rather than out and on an overall balance of competences we still enjoy sovereignty. But I do think there needs to be some adjustment to the role we play in Europe, not lease to appease many here and to protect our future interests, so I will be watching the development of Cameron’s negotiations to see if he can achieve this.

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Tagged: European Union, Public Law

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