The UK in the EU

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Sovereignty and the EU

Introduction

No word in the debate about Britain and the European Union causes more confusion than the word “sovereignty” yet it has been central to arguments about British membership since the 1950s.  This paper seeks to clarify a complex subject by explaining what the concept means in theory and in practice. 

Background

National sovereignty, a term sometimes used to mean national independence, has to be viewed against the background of the interdependence of modern states.  When the concept of the modern nation state emerged about 400 years ago, the Sovereign, i.e. the emperor or king, was relatively free of constraints on his freedom of action (but there were some in England, e.g. Magna Carta).  But even then trade and alliances made this freedom relative; Britain’s oldest alliance with another country, for example, dates back to 1373 and the Anglo-Portuguese Treaty of that year.(1)  The history of the second half of the twentieth century was one of growing interdependence between nation states but at the same time the number of countries increased because of the break up of empires and the collapse of the Soviet Union.  Since the Second World War more and more countries have chosen to pool sovereignty in various fora in order to enhance their security and prosperity, beginning with the formation of the United Nations in 1945, soon followed by NATO in 1949.  In the 21st century even the only global superpower, the USA, has found that there are limits on its freedom of action. 

Parliamentary Sovereignty

The notion of parliamentary sovereignty developed in Britain after the “Glorious Revolution” of 1689 removed King James II from the throne and substituted a new sovereign.  The phrase conveys the constitutional principle that Parliament has unfettered power which cannot be limited by any other body or person; that means that no Parliament can bind its successors and no court or body can overrule legislation passed by Parliament.  “Parliament” means both Houses and not just the House of Commons.  The notion of parliamentary sovereignty is held by some to be beyond question and by others to be highly debatable.  The concept has been explicitly rejected in the Scottish courts, for example; in an important case in 1953 the then Lord President of the Court of Session said that “the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law”.(2)  Some have argued that modern developments, such as Britain joining the EU and its signature to the European Convention of Human Rights, has diminished parliamentary sovereignty by the creation of an effective hierarchy of legislation in which some constitutional Acts of Parliament are in practice superior to other Acts.(3)

In the context of the EU, advocates of unfettered parliamentary sovereignty argue that the acid test is whether Parliament remains free to change or reverse decisions that the UK Government has agreed to in the Council of Ministers or even Treaties that Parliament has already ratified.  The UK Parliament agreed in the European Communities Act 1972 that the UK would accept all legislation adopted in the EU, and the decisions of the European Court of Justice, without any further action by Parliament to implement them being necessary and that the rights and obligations created by such decisions would be enforceable in UK law.  So if Parliament were to legislate to overthrow an EU measure, the European Court of Justice would rule this action illegal or invalid as possibly the UK courts would too.  If the Government of the day, supported by Parliament, refused to comply, there would be a major crisis and, failing a compromise, Britain would find itself on a path which would lead to withdrawal.  This would be so because refusing to accept an EU law would be a breach of our Treaty obligations.

The principle that EU law takes precedence over national laws in the areas where the EU has been given power in the Treaties to act was in the Treaty of Rome and confirmed by an important case in the European Court of Justice in 1964.(4)  The EU would be unworkable without such a rule as otherwise Member States could choose to ignore any EU law they did not like, leading in all probability, for example, to the collapse of the Single Market.(5)  

Other notions of sovereignty

Sovereignty is used more widely to convey the freedom to decide unilaterally.  Nation states are said to give up part of their sovereignty, for example by signing a Treaty or following EU legislation, which removes the right of decision from the national government or parliament in a particular field.   Or they are said to share or pool 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.  

All countries, both inside and outside the EU, have given up or pooled some sovereignty. Margaret Thatcher said at the time of the 1975 Referendum on Europe: 

“Almost every major nation has been obliged by the pressures of the post-war world to pool significant areas of sovereignty so as to create more effective political units.” (6)

Examples are NATO, the UN or the World Trade Organisation.  Nations come together to resist threats to international peace and security, to promote free trade and investment, to protect the environment and to defend human rights, to name but a few areas affected in this way.  Each time a country joins an international organisation or signs a treaty, it restricts its freedom of action and thus gives up a part of its sovereignty, even if only a small part.  Countries are prepared to pool sovereignty in particular areas because they recognise the practical benefits of doing so.  Addressing common problems by participating in collective decision making with appropriate partners in reality gives countries more effective control over global or regional events and problems than they could possibly hope to wield alone. 

Sovereignty & other international organisations

It is often forgotten how much sovereignty/independence Britain has shared outside the EU.  In each case, we have done so to secure benefits for the people of this country. NATO of course is the prime example, committing its members to participate in mutual assistance in the common defence if another member is attacked.  The increase in the membership of NATO following the collapse of the Soviet Union greatly increased the number of countries to which that commitment applies.  The Council of Europe agrees conventions, of which that on Human Rights (with its Court to adjudicate) is of great importance.  That on Torture (a UN convention) allows inspections of prisons without warning.  In the economic field the IMF can impose conditions if a country gets into financial trouble, as the UK found in 1976.  The WTO has strict policies and a mandatory disputes settlement procedure.  The idea that we would have unfettered sovereignty outside the EU is therefore incorrect. 

The future of sovereignty

Globalisation, multinational corporations and organisations, the internet, the speed of modern transport and communications have increased the interdependence of nation states and, some would argue, reduced their sovereignty.  But the abolition of the nation state does not figure on any serious agenda.  Ask any European politician whether his or her country is a sovereign nation state and you will receive an emphatic ‘yes’ for an answer, even if further probing would reveal consciousness of the limitations on its freedom of action.  The ability to decide nationally on a whole range of matters, such as taxation, social security, health care systems and education, illegal immigration and drugs policy, is still important to most people. 

In the particular case of the EU, the Single European Act of 1986, negotiated by Margaret Thatcher, with its substantial increase in the fields covered by majority voting and the nearly 300 directives so far required to complete the Single Market which followed, was a major sharing of sovereignty.  But it was necessary if the non-tariff barriers to the free movement of goods, services, capital and people were to come down.  That the Single Market is good for Britain is widely accepted and sharing of sovereignty was indispensable to achieve it.

Advocates of unfettered sovereignty speak as though sovereignty was not only absolute, but an absolute good.  They ignore the fact that in the modern world it has become necessary to give up some freedom of action to achieve common ends. 

All Member States have evolved checks and balances to ensure that their country’s participation in the EU is subject to democratic scrutiny at home.  The UK has adopted legislation requiring a referendum if there is any significant transfer of sovereignty to the EU in future (there is tension between parliamentary sovereignty and making decisions by plebiscite which was not resolved in the debate on the European Union Bill in 2011).  

Over the last 15 years the EU has seen the development of differing levels of participation in aspects of EU policy.  Currently 18 Member States share a common currency in the euro and 10 do not.  Similarly, 26 European countries belong to the Schengen passport free area but that includes four non-EU states and excludes six EU Member States.  There are specific opt-outs for the UK, Ireland and Denmark in other areas too.  This development of differing levels of participation within the EU (often referred to as “variable geometry”) has challenged the notion of the EU as a single block in which all Member States pool their sovereignty to an identical degree and in a uniform system.  The reality is that Member States are, in some specific areas, sharing differing amounts of sovereignty according to their own calculation of where their national interest lies.

The reality is also that both in the EU and elsewhere, pooling of sovereignty to achieve shared objectives will continue.  International crime, money laundering, trade, foreign policy, the environment and action against terrorism are only some of the things that require common action.  The judgement as to whether to act in common or not in each case will continue to be made on the basis of practical arguments about efficacy and the proper application of the principle of subsidiarity, meaning that the EU should only act where it has the power to do so and because that would be more effective than action at a Member State or a lower level.  It is the role of the Heads of Government to ensure that the democratically elected representatives of the Member States remain the driving force behind EU action.  But many things do not require any pooling of sovereignty.  

The key question is whether in any given case, Britain’s interests would be damaged or promoted by choosing to act independently.  In many fields which require joint action it is clear that the value of full participation outweighs the theoretical freedom we would gain by standing aside, allowing others to shape the policy. 

There is now a general and a subject specific debate inside the EU about where the boundary should lie between the EU and the Member States.  Several Member States have suggested that the balance needs to change.

Sovereignty is a dynamic and not a static concept.  It is also in practice relative, not absolute.  Much sovereignty has been shared already within and outside the EU, but the sovereign nation state will be a key actor for the foreseeable future, even if its influence over some areas of policy will be less than in the past.  Countries will best protect and further their interests by exercising some of their sovereignty collectively to achieve their aims. 

October 2013


(1) www.angloportuguesesociety.org.uk/alliance-history

(2) MacCormick v Lord Advocate 1953 SC 396, 1953 SLT 255.

(3) See the case of Thoburn v Sunderland City Council.

(4) Costa v ENEL, ECR 585 1964.

(5) Although the European Union Act 2011 (Section 18) contained a section on the “status of EU law”, it did not in practice change the situation outlined above.

(6)  Quoted by Rt Hon Chris Patten in the Chatham Lecture, University of Oxford, 26.10.00.

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