How has EU membership changed the British Constitution and sovereignty?
Britain does not have a written constitution and so it is not always a simple matter to work out what has changed but there has certainly been an effect on one of the key constitutional principles, Parliamentary Sovereignty. This principle has meant that:-
- Parliament’s laws cannot be overruled by any other body. The British courts, including the Supreme Court, will interpret how legislation passed by Parliament applies in a particular case and will not declare a law unconstitutional.
- Laws passed by one Parliament can be changed by the next Parliament, which is formed after a general election. Parliament is not bound by its predecessors.
In 1972, Parliament passed the European Communities Act which allowed us to join the EU. This meant that EU regulations immediately apply in Britain without Parliament’s approval and that directives have to be implemented either by an Act of Parliament or, more normally, by the Government issuing a piece of secondary legislation, which is called a statutory instrument. Parliament is able to reject, but not amend, these statutory instruments. Although Parliament, theoretically, could repeal the European Communities Act at any time and so stop EU legislation, this would effectively take Britain out of the EU as we would no longer be following EU rules.
There is also the question as to whether a British Act of Parliament is superior to European legislation when the two conflict. In 1988, the British Parliament passed legislation which had the effect of limiting the rights of fishing vessels from other EU countries. The Spanish firm, Factortame, took the British Government to court claiming that this was contrary to the Treaty of Rome. The British courts would not make the British law null and void despite the conflict but were effectively overruled by the European Court of Justice. The compromise was that the British courts would interpret the British Act of 1988 in the light of the European Communities Act, 1972 so that the latter would always be superior to any other British legislation.
The conclusion is that the British Parliament has lost a degree of sovereignty as a result of EU membership. Sovereignty has not been given to the European Commission, however, because it does not pass legislation. Sovereignty is now pooled by the British Government in the Council of Ministers so that it takes decisions together with other Governments. There was originally a national veto over legislation in the Council but this has gradually changed to majority voting in most areas. Sovereignty is also pooled by British voters in the European Parliament so that British Members of the European Parliament vote on legislation but only with those from other countries.
Considerable sovereignty remains with the British Parliament, however, because:-
- The EU only passes legislation in some areas such as competition policy and environmental protection. Most regulations have related to creating a Single Market with the same rules on products in each country. Most areas, such as health, education and taxation, remain with the British Parliament although Eurosceptics claim that the objective in the Treaty of Rome of an ‘ever closer union’ means that what EU powers are bound to increase.
- It is accepted that the British Parliament has to agree proposed EU Treaties which make major changes to the way that the EU works.
- Parliament is able to look at all proposed EU legislation and the European Scrutiny Committee in the House of Commons and the European Union Select Committee in the House of Lords were setup to do this. However, there is so much draft legislation that Parliament is only able to look at a small proportion of it and it does not have a veto.
- The Lisbon Treaty, which came into effect in 2009, introduced a new process which allows national parliaments to object to proposed EU legislation. If enough Parliaments object, on the principle of subsidiarity, that legislation can be better dealt with at the national than the EU level, then it is pretty certain that the proposal will be withdrawn.