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The EU is not a threat to Parliamentary Sovereignty

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A major argument from Leave campaigners such as Michael Gove and Boris Johnson is that the EU undermines parliamentary sovereignty. At first glance this looks true as the EU decides laws that apply in Britain and it is difficult to change them. Sceptics also argue that it is impossible to sack the EU government in the way Britain can sack its domestic government though a vote of no confidence, meaning that the EU’s power is less accountable. However this is an incorrect understanding of parliamentary sovereignty, which in fact remains wholly intact, and would not be helped by leaving the EU.

All EU law and EU decisions that impact Britain are empowered by the 1972 European Communities Act, passed in Britain’s parliament. Legal scholars argue that enforcing EU law in Britain is actually parliament obeying itself. EU laws and EU decision-making processes are effectively part of the UK constitution for as long as the Act remains in force.  The mere fact that we are having this referendum shows that parliament still has sovereign control, as an exit vote would be respected by the EU. This was true before the Lisbon Treaty, as parliament has always been able to repeal the 1972 Act. Now Lisbon’s Article 50, which gives a mechanism for a state to leave the union, confirms all members are sovereign.

In addition, because parliamentary sovereignty is absolute, the Westminster parliament could pass legislation to directly contradict an EU law and that new legislation would have force in Britain. (The legislation’s wording would need to clearly disregard the 1972 Act.) The EU may react by taking Britain to court for breaking its treaty obligations, and losing the court case may result in a fine or a request to amend the new law: but parliament could do it. Britain has never made such a direct challenge to an EU law, but currently acts in this way with regards to the European Court of Human Rights’ conclusions on prisoner voting.

In an extreme scenario wherein the EU acts so badly that the public wish to sack the Commission, this could be achieved in several ways. First, the British government could accept overwhelming public pressure to sack the Commission and leave the EU without a referendum. Second, if the UK government did not want to do this but the public clearly did, then the government should lose a vote of no confidence and be replaced by a new cabinet that would promise immediate withdrawal. Third, parliament could refuse to implement the EU law that prompted the angry UK reaction, as explained above. In reality, moves towards such actions may well prompt the EU to change course or sack the Commission, as happened in 1998.

Britain’s EU membership has been effectively confirmed by the country voting for pro-EU governments each election since 1975. The UK could have left the EU at many times in the last 40 years, by voting in Tony Benn and Michael Foot in the 1980s, the Anti-Federalist League in 1991, Ukip in 1993, and strong sceptic platforms from William Hague, Iain Duncan Smith and Michael Howard after. All of the big changes that Eurosceptics criticise, such as the replacement of country vetoes by majority voting procedure, were agreed by British governments. There has been no electoral punishment for parties agreeing new EU treaties.

If Britain left the EU it would still have international obligations and dues to other organisations. It pays into the International Monetary Fund, for example. It has to go to support Nato wars if the right trigger events take place. City banks follow rules agreed in Basel, while engine safety and food quality standards emerge from different UN bodies. After exit Britain could not ignore all these. Even in terms of trade law, after exit Britain could be taken to a World Trade Organisation arbitration. If Britain left the EU but kept relations similar to Norway or Switzerland, the sovereignty situation would barely change: the globalised world rests on a degree of pooled responsibility. If Britain left the EU but joined the TTIP free trade deal as a third party, as many Brexiteers propose, then Britain would still be subject to investor-state resolution powers that many decry.

This means that the eurosceptic argument for absolute sovereignty is essentially insincere. It promises voters a degree of self-rule that cannot realistically be achieved after exit unless the exit government also unilaterally ends its participation in hundreds of international bodies, an action that could make the UK a diplomatic pariah with virtually no influence and a dreadful diplomatic reputation. In fact many Leavers want Britain to get more involved in global governance bodies, underlining the tension between the simple message they’re selling, and the reality they expect.

  • Jonathan Lindsell