Discuss the effect of the uk's membership of the european union on the sovereignty of parliament.

Over the years, Parliament has passed laws effecting parliamentary sovereignty. These laws reflect political changes and include the UK's entry to the European Union in 1972.

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Many things have been said about the influence of European law and we can examine some of them but it might be worth starting with Lord Denning's famous analogy when he said 'European Community membership is like a tide. It flows into the estuaries and rivers of national life.....' (The Discipline of Law: Lord Denning (1979)).


By this time we had joined, albeit rather belatedly, what was at that time known as the Community. This was as a result of the European Communities Act 1972. The main thrust of the arguments for membership being the potential benefits of the enlarged market for our goods and services.


The economic benefits are another matter but it could only be achieved over a period of time involving negotiation and the passing of a magnitude of regulations and directives to produce a tariff free market for the benefit of members of the club. Looking back was Lord Denning right to suggest that it had effected our national life? Yes he was, because what was the point of membership and how else was harmonisation and uniformity to be achieved if not by new European legislation?


We need to move on to another vexed question which arose shortly after our membership had been negotiated. The question being, what was meant to happen in the event of there being a conflict between EU law and national law? This point was answered by the European Court of Justice through a series of judgements, some of these decisions pre-date our joining the EU but are just as valid.


The Dutch case of Van Gend en Loos (1963) Landmark Cases on European Union Law » EU Laws concerned a conflict between the Treaty of Rome and an earlier Dutch law. The ECJ rules that 'the Member States have limited their sovereignty rights, albeit within limited fields, and have created a body of law which binds both their nationals and themselves.' The ruling makes clear that, where ever there is a conflict, EU law takes precedence subject to the limits mentioned.


The question then arises as to whether this issue of precedence applies to a subsequent law in the event of a conflict arising between EU law and national law. We did not need to wait very long for an answer. The issue arose in the case of Costa v ENEL (1964) which involved a conflict between Treaty provisions and a later Italian law which, according to Italian law, would take precedence. The ECJ firmly put an end to this suggestion, ruling 'The reception, within the laws of each Member State, of provisions having a Community source …...has a corollary the impossibility, for the Member Sate, to give preference to a unilateral and subsequent measure....'



Does it matter whether the source of EU law is a treaty or a regulation? Is law made under regulations in some way inferior? The answer to that is no, and such a matter was soundly resolved in the case of Internationale Handelsgesellschaft (1970) where the ECJ ruled that an EU regulation that conflicted with the German constitution took precedence over the German law.


In the final case in this series the ECJ went further and actually spelt out how the national courts should approach the matter of conflict and ruled that the domestic courts are obliged to give full effect to EU law. In addition they (the national judges) should refuse to apply or give effect to domestic law that conflicts with EU laws.


It could be argued that one of the effects of our membership is that we have given up our sovereignty and enabled the EU to somehow infiltrate and undermine our elected Parliament. History tells us that prior to our entry in 1972 the EU, and in particular the ECJ, had openly set out its stall by rulings that showed that it had full mandate to rule in the interests of the EU as a whole and that we went into the EU with our eyes wide open and were fully aware of the consequences.


We need to consider the manner in which we are said to have limited our sovereignty. The term that is used in this context is 'supranationalism' which is the form of multi-national approach to decision making in the EU. The EU has certain ideals and declared principles set out in treaties. The EU institutions, including the ECJ, has been constituted to police and achieve these goals. The EU can therefore only act to the extent of those agreed goals – national governments have not completely surrendered to the power of the EU. The EU's powers are themselves limited by the principal of supranationalism – meaning that the EU can only act in the areas agreed by the member states.


Consequently national Parliament have only given up so much of their sovereignty and there is still a role for national law making. It is all too easy to generalise and argue over this issue of sovereignty but the answer in law is that only some of our power has been given up – and even then only that which we have bargained for in negotiations and treaties.


So, is it right to say that we should no longer see our Parliament as the supreme law-maker? Yes it is correct to say that, so long as EU law takes precedence arising out of our membership of the EU. This point was brought home to us by the case of R v Secretary of State for Transport , ex parte Factortame [1990] UKHL 13 - British and Irish Legal Information Institute. Unlike the earlier cases involving the ECJ this concerned a national law of the UK which purported to control the nationality of fishermen entitled to fish in accordance with the terms of the Merchant Fishing Act 1988. The ECJ ruled that the European fishermen's claim that they should be allowed compensation because they had been deprived of the right to fish, should be granted subject to conditions being met.


Can we find specific examples where our national government has negotiated the UK out of certain provisions in treaties? Yes there are examples if we look at the economic policy of a common currency we can quickly see that this was something strenuously resisted by our elected government. As a result we were able to 'opt out' of the 'Euro-zone agreement' and many see that as the right decision now in light of the European recession that followed and the grave doubts arising about the integrity of those associated with the joining of Greece to the adoption of the Euro.


At other times we have seen strong and open resistance to the adoption of the 'Social Chapter' sponsored by the then EU Commissioner Jacques Delors with the presentation of proposals which later became the Maastricht Treaty in 1992. We, as a country, eventually ratified the Treaty but not until after we had officially 'opted out' of what had infamously become known as the 'Social Chapter'. This, in our government's view, introduced a number of unacceptable social reforms or 'socialism by the back-door', in the words of the conservative Prime Minister John Major who had been elected to office at the time.


Finally, if we might return to the views of Lord Denning, with the advance of the years as well as the tide – to use the words of Lord Denning, many might now agree with the sentiments expressed then and concur that European law cannot be held back.


(Word Count 1250)


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As always the essay lends itself to expansion and additional research using the links provided.

Does parliamentary sovereignty still reign supreme?

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