November 23, 2009
David Cameron’s pledge to change British law so that any future transfer of power to Brussels would have to be put to referendum and the Conservatives’ vow to enact a ‘legal lock’ to prevent British accession to the euro zone without a referendum are misleading. They ignore the key principle of the British Constitution – parliamentary sovereignty.
In the traditional sense, parliamentary sovereignty means that the British parliament cannot exceed its legislative powers. It can make and unmake any law. As a consequence, any newly-elected parliament has the same powers and can repeal any law. This can be done, for instance, by expressly repealing a certain law (express repeal) or simply by legislating contrary to an already existing law (implied repeal). In other words, no British parliament can bind its successor. Thus, any such ‘legal lock’ would be a lock only during the life of parliament, that is – for a maximum of five years. After that, a new parliament could change it. In any case, no new major overhaul of the EU is foreseeable in the near future.
In the modern sense, it has been argued that the accession of Britain to the EU has eroded parliamentary sovereignty, because Westminster cannot any more legislate in the areas that are transferred to the EU and because British courts have accepted to review acts of parliament where they conflicted with EU legislation. For these reasons, the Conservatives have announced passing a law that would explicitly state that the British parliament is sovereign and that the EU could not overrule it. But what does it mean?
To the extent that Westminster can still be considered sovereign, such a law would practically be superfluous. To the extent that their intention is to prevent British courts from endorsing European Court of Justice decisions that impinge on parliament’s powers, such a law would ultimately lead to infringements of EU law and to frictions with the EU institutions and possibly with some member states, none of which is favourable either to Britain or to Europe.
To the extent that they mean to submit any transfer of power to parliamentary approval, it would be superfluous because that was largely enacted in 2008. Amendments of the founding treaties by ordinary or simplified revision as well as recourse to a whole list of EU provisions that permit the relaxation of decision-making requirements are now subject to Westminster’s approval.
To the extent that they mean to reinforce parliamentary participation in the drafting of EU law, their claim is sensible and welcome. This last interpretation is the most plausible one given that Timothy Kirkhope, Conservative leader in the European Parliament, mentioned Germany as a example for such a law, probably referring to German basic law and the acts specifying the powers of the German parliament as regards the EU. Yet the Bundestag and the Bundesrat are neither sovereign nor particularly active in controlling EU decisions.
Finally, the Conservatives’ intention to secure further opt-outs in the fields of social and employment law, criminal justice as well as a full opt-out from the Charter of Fundamental Rights will require a new intergovernmental conference and ratification by all member states, which – after the Lisbon saga – is likely to face reluctance by other member states.
More importantly, British Euroscepticism might produce European Britoscepticism, which itself undermines the spirit of the hopes underlying the Lisbon Treaty of Europe as a global power.
PhD researcher, Utrecht University
Visiting researcher, LSE