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Britain and Europe – The impact on Parliament

The issue of the loss of sovereignty has been a major controversy from the first British application to the present.

Other countries have written constitutions and it has not seemed such an issue to them, but parliamentary sovereignty, the doctrine that Parliament cannot be overruled by any other authority, is a central principle of the British Constitution.

In practice, of course, sovereignty is only lost by Parliament in a legal sense because, in Britain, Parliament is largely controlled by the Government and so it is the Executive that will have lost sovereignty.

There is, though, the question of whether ministers can be held to account by Parliament for European decisions. Chris Lord has explained that there were three views on sovereignty from MPs when the European Communities Bill was discussed in Parliament (Journal of Common Market Studies Vol. 30 No 4, 1992):-

  • That the EU would be an association of states leaving British sovereignty unchanged. The existence of a veto meant that Britain could stop any changes it did not want and so European legislation was rather like delegated legislation with Ministers still held to account by Parliament.  This rather ignores the compromises that British ministers had to make  in Brussels and which were then reflected in legislation and, in any case, the introduction of Qualified Majority Voting from 1986 has removed the veto.
  • Opponents of the Bill saw the EU as the beginning of a superstate that would take control away from Britain. This was always an exaggeration because, in practice, the EU is a highly decentralised system rather than a centralised state and one in which national governments are the predominant influence.
  • The argument from pro-Europeans, and the case that Heath made, in Parliament and through the 1975 referendum, was that Britain should accept that sovereignty was being pooled and, given the extra influence that Britain would have in trade and foreign policy, sovereignty would also be extended.  This view is nearer the reality of the EU but of course is still one that can be contested by Eurosceptics.

Parliament could repeal the European Communities Act and so, in a very strictly legal sense, parliamentary sovereignty is maintained, but the Act is a very broad one and applies European law to British law and so the practical effect would be to withdraw from the EU.

The Factortame case on Spanish fishing rights in British waters confirmed the superiority of European law over British law in areas where the EU has been given competence.

The Factortame Case

The Common Fisheries Policy gave free access for fishing vessels to fish in the territorial waters of any member state, but because of concern about over-fishing the EU later introduced quotas for the amount of fish that could be landed by each country.

The Treaty of Rome allowed for nationals of any country to set up in any other country and so a Spanish fishing vessel was registered in Britain under the Factortame name and, although the fish could be landed and sold in Spain, the amount caught would come from the British and not the Spanish fish quota.

To prevent this, the British Government passed the Merchant Shipping Act, 1988 which only allowed registration of vessels of firms where the management was resident in Britain and 75% of shareholders were British.

Factortame took out an injunction against the Crown claiming that the1988 Act was contrary to Article 7 of the Treaty of Rome.  The British courts considered the case and both the Court of Appeal and the House of Lords were not prepared to strike down a law passed by Parliament.

The Court of Appeal felt that the Community right was uncertain whereas British law was clear. The House of Lords said that there was no basis in British law for granting an injunction against a law passed by Parliament or against the Crown on that basis. However the House of Lords was obliged to refer the issue to the European Court of Justice.

The European Court of Justice, in its initial judgement, held that national courts must have the power to set aside a national law conflicting with Community law and that they must judge national laws together with Community law rather than assume that the Community right was only alleged.

In its later judgement it said that the British Government could not introduce nationality and residence qualifications in relation to the setting up of firms but it could, in enforcing fishing quotas, have related the vessel economically to the population that was dependent on its fishing so that there would have to be a national link.

The House of Lords accepted the judgement of the European Court of Justice but decided that they were not striking down the 1988 Act but interpreting it in terms of the European Communities Act, 1972. They therefore preserved Parliamentary Sovereignty but legal opinion has since been divided on how real this is.

Although the sovereignty issue is one that is constantly raised by Eurosceptic MPs, Parliament’s main concern has been to establish mechanisms for scrutinising European legislation and Ministers decisions in Europe.

The House of Commons European Scrutiny Committee and the House of Lords European Union Select Committee were both set up soon after Britain entered the EU and they look at draft directives which the European Commission is required to send them and for which Government departments provide an explanation. They then decide whether to refer them for debate.

The problem is that there is only time to consider a small proportion of draft European legislation in detail.  The legislation, after it has been approved in Europe, is implemented by British ministers in statutory instruments and there is the suspicion that extra provisions are often slipped in by Government departments, as this delegated legislation is also not so thoroughly scrutinised by Parliament.

The two European committees have reviewed their procedures (the Commons committee is doing so at present) but, so far, no fundamental changes have taken place.  Prime Minsters make statements and answer questions on European summits and the normal mechanisms of questions, select committees and so on can be used to probe European policy. There are, however, problems in questioning ministers on negotiations in the Council of Ministers as the principle of diplomatic confidentiality apply to these.

****This page is under review following the UK’s decision to leave the European Union and Brexit process****