British Politics And European Integration Law European Essay

Published Date: 02 Nov 2017

Robert Farmer

Student ID No

102040104

Module Number and Title:

PL3307: British Politics and European Integration

Date Due In:

14/1/13

Date Submitted:

14/1/13

Word Count (not including bibliography):

3000

PLEASE COPY AND PASTE YOUR ESSAY ON THE PAGE BELOW

Critically assess the impact of EU membership on British sovereignty.

The process of European integration for Britain has long been an awkward and difficult process with the ability to consistently provide internal and external divisions between the major political parties, the impact on British sovereignty being the most contentious factor. The first part of this essay will focus upon examining the traditional view of parliamentary sovereignty as put forward by A. V. Dicey including several other dimensions of sovereignty, whilst then establishing the two main concepts to be used for application in this essay. The second part will look at analysing several aspects of EU membership and how they relate and contrast between the different views of sovereignty; this will include areas such as the primacy of EU law, the extension of qualified majority voting (QMV) and a range of other political factors including opt outs and party statecraft. The argument will be put forward that whilst the supremacy of parliamentary sovereignty has undoubtedly been overruled by the EU, the basis which underpins absolute supremacy is questionable with sovereignty itself beginning to be viewed as a plural and relative in an era of such vast global change.

The meaning of sovereignty is largely disputed with Michael Newman concluding that sovereignty has become so distorted and ambiguous that the concept is ‘now a barrier to analysis’ [1] . As such it is necessary to first discuss the differing concepts before applying them.

The doctrine of parliamentary sovereignty put forward by A V Dicey asserts that "parliamentary sovereignty is the dominant characteristic of our political institutions" [2] In particular it is this view of British sovereignty that questions the ability to act independently from supranational rule, being central to concerns over the impact of EU membership. The popular notion of sovereignty derives from the consent of the people, focusing upon the relationship between the state and the people such as liberty, individual rights and democracy. In addition, the state dimension of sovereignty asserts that supreme decision-making authority resides in the state and that nation states are key actors in international affairs. Furthermore, it can be subdivided according to territorial elements (physical limits of legitimacy), functional elements (limits of the state’s economic and social role) as well as an external component that the state has exclusive jurisdiction over its citizens [3] . Such dimensions will be useful in assessing particular areas of EU supremacy. Constitutional sovereignty focuses upon the location of sovereignty within a state, citing how parliamentary legislation cannot be overturned by any higher authority as well the ability to legislate on any subject – again possible contradictions of EU law supremacy impacting sovereignty become apparent.

These dimensions of sovereignty can be generally separated into two broad positions; the first viewing sovereignty as a supreme legal authority in which an institution such as parliament possesses (absolutism) and the second viewing sovereignty as a real degree of control a nation can exert. The first count views membership of the EU as a direct transfer or loss of sovereignty, whereas the second sees the ‘pooling of sovereignty’ where the capacity to achieve things collectively for the benefit of all is increased. In order to effectively analyse the impact of EU membership on British sovereignty these two definitions will be acting as a means to measure relevant evidence and provide a strong basis for comparison and analysis.

Since becoming a fully-fledged member of the EU in 1973 Britain has signed a succession of treaties. Those who follow an absolutist line in regards to sovereignty will see this as a direct transfer of power to EU institutions, the subsequent section will analyse such impacts from membership.

The European Court of Justice (ECJ) laid down two fundamental principles of EU law, direct-effect and supremacy, through two landmark cases. The ‘Van Gend en Loos’ case (1963) saw a Dutch transportation company faced with higher tariff charges after a reclassification of a chemical product being imported from West Germany. The Court ruled that, "The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals" [4] . In this case it was found that a provision had been broken whereby members were to gradually lower custom duties. The judgement establishes that not only member states are subject to the primacy of EU law, but individuals within those member states also. From this came the principle of direct effect, allowing community law to be enforced by the courts of member states, parliament’s ability to act as a supreme legal authority in court is completely contradicted by this ruling. The second case of Costa vs. ENEL (1964) was brought forward when an Italian citizen refused to pay an electricity bill to the newly nationalised electricity company, arguing the nationalisation was against EU law. The ruling concluded that where there is a difference between EU and national law, EU law has a higher authority and therefore supremacy over the individual member states. "By creating a Community... [with] its own institutions, its own personality, its own legal capacity... the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves" [5] . This ruling extends further to appearing in conflict with popular sovereignty, individual rights and democracy are no longer territorial with the EU in authority.

Such rulings were made clear for Britain through the infamous Factortame case (1990) where the ECJ ruled that the Merchant Shipping Act 1988 was invalid and was incompatible with community law. Consequently, for the first time in history, Parliament had to ‘dis-apply’ the Act. This contradicts A.V. Dicey where, "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". [6] Conversely it can be argued that membership of the EU will always be provisional and unconditional, therefore allowing parliament to overturn all previous decisions of the EU meaning sovereignty is never totally surrendered. The credibility of such views is questionable, since it rests upon the likelihood of Britain leaving the EU completely, which whilst not impossible would appear to be unlikely in the short-term. The supreme authority of parliament is therefore clearly challenged.

Sweet argues that the European Court of Human Rights is effectively a constitutional court with the ability to "exercise decisive influence on the development of a rights-based, pan-European Constitutionalism" [7] . This case-by-case approach of the ECJ has provided the architecture for community law and is supported by Weiler who asserts that:

"The constitutional thesis claims that in critical aspects the Community has evolved and behaves as if its founding instrument were not a Treaty governed by international law but, to use the language of the European Court of Justice, a constitutional charter governed by a form of constitutional law". [8] 

However, the competencies that the EU possesses are limited in certain areas and are argued to be practical for the natural running of the community. For example there are certain areas such as education where community law is non-existent, recognising that many policies are best dealt with by members themselves. Furthermore, directives serve to reconcile the dual objectives of both the EU and the member state by aiming to harmonise law throughout the union whilst respecting the diversity of national traditions and structures, binding an objective whilst leaving it to the national authorities to decide on how it is put into practice [9] . This is irrelevant for many critics, Anthony King observes that once Britain joined the EEC:

"Not only did Parliament cease to be sovereign, Britain itself ceased to be an old-fashioned sovereign state. The fact of being a member of the EU permeates almost the whole of the British government – to a far greater extent than most Britons seem to realise" [10] .

Taking such a maximalist line against the transfer of powers again derives from A.V. Dicey and the doctrine of parliamentary sovereignty being "the very keystone of the law of the constitution" [11] . Bogdanor addresses this in putting forward that the defence of the modern doctrine of sovereignty is an abstract idea based upon common law and little else [12] , this raises questions about the doctrines assumptions and whether it is still relevant within the modern era.

A further argument is that membership has taken away the legitimacy of parliament in delivering democracy to the British people. For example, even if the Britain were to vote against a particular decision being taken, where it is under QMV it could potentially be passed by the majority of members and be imposed upon British citizens. Neill Nugent supports this in describing how "the extent of the loss of sovereignty arising from membership has been considerable, and the momentum of that loss has greatly increased since the mid 1980s." [13] The continued strengthening of EC institutions such as the Council of Ministers can only serve to increase the speed of integration and continue to remove channels of control over its domestic population for member states. As such this represents an erosion of state and popular dimensions of sovereignty.

The retention of the Luxembourg compromise whereby member states can exercise veto on cases where vital national interest or the transfers of parliamentary powers are at stake does represent a certain degree of control maintained for Britain. This has been recently utilised by Britain, blocking the Fiscal Compact treaty which would have seen more stringent fiscal policy compliance amongst the union. Cameron said that "if I couldn't get adequate safeguards for Britain in a new European treaty then I wouldn't agree to it" [14] . However, this reinforces the idea of a ‘two-track’ Europe, where some states agree to pool sovereignty whilst others pick and choose aspects which they feel allows them to retain aspects of sovereignty. This could be misguided judgement; the following section will approach the issue where sovereignty is interpreted as influence, rather than supreme authority.

Within the ABC of Community Law it is put forward that the "national identities of the member states are respected" and that "the idea is not for the Member States to be ‘dissolved’ into the EU, but rather for them to contribute their own particular qualities" [15] . The idea is that having a wide range of national characteristics gives the EU its moral authority, to be used to the benefit of all members. Here arises the concept of ‘pooling sovereignty’ where states surrender certain competencies to the EU in order to create the capacity for something greater. Howe describes how "sovereignty is not some predefined absolute, but a flexible, adaptable, organic notion that evolves and adjusts with circumstances" [16] . Such an idea provides an alternative where parliamentary authority has not been lost, but channelled into an overarching institution. However, the crux of the issue here solely rests upon whether the doctrine of parliamentary sovereignty is absolute or whether it can be interpreted to contribute and accept EU supremacy.

Anderson and Weymouth raise a distinction between real and theoretical sovereignty. Whilst real sovereignty is mentioned earlier as the degree of control a nation has, theoretical sovereignty represents more of a symbolic control which has no real substance. For example; the retention of the pound sterling is often regarded by the tabloid press and euro sceptics to represent a measure of real sovereignty, to them joining the euro currency would sacrifice our independence, the loss of control over the interest rate and monetary policy to Europe. However, the medium to long-term average value of the British exchange rate is largely determined by decisions taken by the American, German, Japanese and global economy as a whole [17] . This constrains the ability of Britain to take any meaningful, independent action and supports the idea of the pound sterling as being theoretical, rather than real sovereignty. This argument therefore puts forward the case that sovereignty has not been eroded from joining the EU and that decisions taken by countries are now (and have been for some time) dictated by outside market forces to such a large extent which they cannot hope to ever contend with individually. For such countries ‘pooling sovereignty’ within the EU creates a greater capacity to collectively achieve and influence internationally through creating a large trading bloc or introducing a uniform currency. Howe supports this view where sovereignty is in fact increased through actively being involved within international institutions such as the EU, increasing "practical capacity to maximise its influence in the world" [18] .

Those who oppose European integration often cite the argument that the finished product of the EU will be the ‘United States of Europe’, where a strong centralised state replaces existing nation-states and focuses upon its own identity, legitimacy and powers. An alternate view sees a new kind of political system emerging, the first post-modern state whereby there are overlapping economic and political policies, jurisdictions and institutions [19] . The nation-state transfers some functions to EU institutions, but still retains large control over a range of decision-making powers – national sovereignty is qualified and limited but not dispelled [20] .

Pro-Europeans see no reason to fear that increasing integration into the EU will undermine national sovereignty provided the integration strengthens common interests, enabling members to act within their interests. Alan James comments upon what is developing in Europe as realignment and an endorsement, rather than a superannuation of sovereign statehood [21] . This ‘pooling’ of sovereignty creates an intergovernmental framework whereby mutual cooperation can tackle global issues which otherwise would be problematic independently. Newman even concedes that state sovereignty could actually be enhanced through Britain’s integration with the EU [22] ; where a balance of power is maintained for states to retain some aspects of individual autonomy. Furthermore, where areas of policy are the same regardless of intergovernmentalism, surrendering parliamentary sovereignty on that issue would have no real impact.

Taking an alternate view of sovereignty through party statecraft Conservatives have historically regarded the defence of sovereignty as a core theme in regards to European integration [23] . From Thatcher attempting to ensure the SEA (1986) did not encourage further political integration, to Major then opting out from the controversial Social Chapter within the Maastricht treaty (which laid out policies regarding working and social regulations) the conservative party appears to be particularly sensitive in defending parliamentary authority. New Labour held an altogether more pro-European attitude, with Blair signing the Social Chapter in 1997. This demonstrates how the impact on sovereignty differs between parties in power; the Conservatives saw it as attacking authority, whereas Labour were more inclined to ‘pool’ sovereignty to gain influence in Europe.

In conclusion the impact of sovereignty on membership of the EU varies according to the contested, fragmented and multitude of definitions of sovereignty. In maximalist terms, where sovereignty is equated with the final authority of parliament, there has undoubtedly been an erosion of powers. This is in particular regards to the supremacy of EU law as interpreted by the ECJ, the extension of QMV which raises questions over democratic accountability and the ability for British authority to assert power over its people. Those who instead view membership as ‘pooling sovereignty’ recognise that there are limitations for domestic sovereignty and autonomy for individual states in a globalised world, which appears to be a far more pragmatic and realistic response. It would be naïve to view sovereignty in absolute terms since global economic and political forces have eroded its domestic relevance. Sovereignty has to be viewed from the perspective of a multidimensional concept; it embodies personal, social, local and global factors – it can no longer be attached to just domestic territory and instead it embodies global influence.