The allegation that membership of the EU results in a substantial loss of UK sovereignty is a particular bugbear of those campaigning for the UK to leave the EU.
Boris Johnson and Michael Gove in particular argue that, unlike most foreign countries, Britain has an unbroken tradition of liberty and representative democracy (a ‘golden thread’) dating back to Magna Carta and that this power should rest only in the hands of leaders elected by the UK people.
The EU, by being accountable to foreigners as well as Britons, apparently breaks this sacred bond of mutual power between decision-makers and those on whose behalf they act. This, if I may say so, is a rather idealistic definition of ‘sovereignty’, taking little account of the fact that real sovereignty is now relative for any country that wants to be a ‘global player’ financially or otherwise.
Aside from it’s membership of the EU, the UK has, for instance, signed some 700 international treaties which all involve multi-lateral obligations and compromises. It is a member of the UN, an organisation with wide-ranging strategic areas of power, and where the UK can, just as in Brussels, be outvoted. Likewise the UK’s membership of organisations like the World Trading Organisation, NATO, IMF, World Bank, all require Britain to tolerate considerable trade-offs in one form or another. Indeed all governments of nation states pass on some of their sovereignty to higher bodies, because of the advantages they bring. This is not just the EU, but can be seen in the African Union, ASEAN (in South East Asia) etc.
Traditionally the concept of sovereignty has several strands, including the democratic power of a nation to express its views on fundamental issues, and the power of a nation to establish and enforce its own laws. Although neither Mr Gove or Johnson may care to admit it openly, the former is not really put into doubt by the UK’s continued membership of the EU. Erroneous stories about the EU forbidding the re-use of tea-bags or the size/shape of bananas may garnish some headlines but they are hardly fundamental issues. The UK retains its sovereign rights over foreign policy, as well as its democratic sovereign rights in local, national and other elections (including the June referendum).
So the only substantive issue is whether the powers of the UK Parliament and Courts to make laws, is curtailed by the EU and its institutions, such as the Court of Justice (CJEU)?
A distinctive feature of UK law is that the application and validity of primary legislation made by Parliament, whilst it can be interpreted by the Courts, as through ss 3 and 4 of the HRA 1998, remains largely beyond judicial control. Parliamentary autonomy may, to some degree, be affected by EU law, but it is worth remembering that its basis is the European Communities Act 1972, which is an an Act of Parliament (see S18 of the European Union Act 2011). It is also limited to matters falling within the scope of EU law, and is just one of a complex set of international treaties and laws to which the UK agrees to adhere to.
A panoramic view
It is also a misrepresentation to say that the CJEU is supreme over the EU member states. What the Court does is to interpret, authoritatively, EU law, and require member states to comply with it. The CJEU offers, as Lord Bingham said in Samex Aps, a ‘panoramic view’ of EU law. If anything is supreme, it is EU law, not the CJEU. And EU law is made by member states, which draft the EU Treaties, and a majority of which need to consent to new EU legislation in the Council of Ministers.
Much is made of the primacy of EU law. Primacy means that in the event of a conflict between EU law and the laws of a member state the conflicting national law must be ‘disapplied’ in favour of the EU law (Costa v ENTEL). Primacy is therefore a conflict rule. It does not establish an overall ‘supremacy’ of EU law. Section 3 of the 1972 Act gives primacy to the CJEU in terms of the interpretation of EU law but Parliament can at any time amend or revoke this Act, and throw EU law primacy out of the window. However there is little judicial call for it, not least because EU law has only ever been given primacy over UK law in a handful of cases, Factortame being the one most lawyers remember, and which took place some 25 years ago. More recently the UK Court of Appeal in Benkarbouche and Janah, held State Immunity laws should be disapplied in a case concerning domestic workers who were prevented from bringing employment tribunal claims against two foreign embassies. This hardly represents an undermining of the British way of life.
Although not quite as active a protagonist as the German Constitional Court, the UK courts have also increasingly been prepared to question the correctness of the CJEU’s interpretation of EU law in cases such as HS2 Action Alliance Ltd and Pham, concerning the deprivation of British citizenship.
The primacy of EU law is for largely practical reasons – namely to harmonise certain systems (but not others such as social security or opt outs, like the Euro) across the EU. If the UK Parliament were able to decide, case by case, which EU laws apply in the UK and which didn’t, and all member states adopted such a position, then any agreement in Brussels (including those which substantially benefit the UK) would immediately unravel.
It would it seems to me, be much better for the UK, through its global alliances, language, historical significance, to influence Brussels directly and as it has done when it sets its mind to it (here). For this is real sovereignty.